EXHIBIT 10.2
SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
among
APRIA HEALTHCARE GROUP INC.
as Borrower,
CERTAIN OF ITS SUBSIDIARIES,
as Guarantors,
THE LENDERS IDENTIFIED HEREIN,
BANK OF AMERICA, N.A.,
as Agent
and
CREDIT LYONNAIS NEW YORK BRANCH,
THE BANK OF NOVA SCOTIA AND FLEET NATIONAL BANK,
as Co-Syndication Agents
Dated as of July 20, 2001
ARRANGED BY:
BANC OF AMERICA SECURITIES LLC,
as Sole Lead Arranger and Sole Book Manager
TABLE OF CONTENTS
Page
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SECTION 1 DEFINITIONS AND ACCOUNTING TERMS.................... .............1
1.1 Definitions......................................................1
1.2 Computation of Time Periods and
Other Definitional Provisions.................................28
1.3 Accounting Terms................................................28
SECTION 2 CREDIT FACILITIES................................................29
2.1 Revolving Loans.................................................29
2.2 Letter of Credit Subfacility....................................31
2.3 Swingline Loans.................................................36
2.4 Tranche A Term Loan.............................................37
2.5 Tranche B Term Loan.............................................39
SECTION 3 GENERAL PROVISIONS APPLICABLE TO LOANS...........................41
3.1 Default Rate....................................................41
3.2 Extension and Conversion........................................41
3.3 Prepayments.....................................................42
3.4 Termination and Reduction of Revolving Committed Amount.........44
3.5 Fees............................................................45
3.6 Capital Adequacy................................................46
3.7 Limitation on Eurodollar Loans..................................46
3.8 Illegality......................................................46
3.9 Requirements of Law.............................................47
3.10 Treatment of Affected Loans.....................................48
3.11 Taxes...........................................................49
3.12 Compensation....................................................50
3.13 Pro Rata Treatment..............................................51
3.14 Sharing of Payments.............................................52
3.15 Payments, Computations, Etc.....................................52
3.16 Evidence of Debt................................................54
SECTION 4 GUARANTY.........................................................55
4.1 The Guaranty....................................................55
4.2 Obligations Unconditional.......................................56
4.3 Reinstatement...................................................57
4.4 Certain Additional Waivers......................................58
4.5 Remedies........................................................58
4.6 Rights of Contribution..........................................58
4.7 Guarantee of Payment; Continuing Guarantee......................59
SECTION 5 CONDITIONS.......................................................59
5.1 Closing Conditions..............................................59
5.2 Conditions to all Extensions of Credit..........................62
SECTION 6 REPRESENTATIONS AND WARRANTIES...................................63
6.1 Financial Condition.............................................63
6.2 No Material Change..............................................64
6.3 Organization and Good Standing..................................64
6.4 Power; Authorization; Enforceable Obligations...................64
6.5 No Conflicts....................................................65
6.6 No Default......................................................65
6.7 Ownership.......................................................65
6.8 Indebtedness....................................................65
6.9 Litigation......................................................65
6.10 Taxes...........................................................66
6.11 Compliance with Law.............................................66
6.12 ERISA...........................................................66
6.13 Subsidiaries....................................................67
6.14 Governmental Regulations, Etc...................................68
6.15 Purpose of Loans and Letters of Credit..........................68
6.16 Environmental Matters...........................................68
6.17 Intellectual Property...........................................69
6.18 Investments.....................................................69
6.19 Disclosure......................................................70
6.20 Business Locations..............................................70
6.21 No Unusual Restrictions.........................................70
6.22 Fraud and Abuse.................................................70
6.23 Licensing and Accreditation.....................................71
SECTION 7 AFFIRMATIVE COVENANTS............................................71
7.1 Information Covenants...........................................71
7.2 Preservation of Existence and Franchises........................74
7.3 Books and Records...............................................74
7.4 Compliance with Law.............................................74
7.5 Payment of Taxes and Other Indebtedness.........................74
7.6 Insurance.......................................................74
7.7 Maintenance of Property.........................................75
7.8 Performance of Obligations......................................75
7.9 Use of Proceeds.................................................75
7.10 Audits/Inspections..............................................76
7.11 Financial Covenants.............................................76
7.12 Additional Credit Parties.......................................76
7.13 Pledged Assets..................................................76
SECTION 8 NEGATIVE COVENANTS...............................................78
8.1 Indebtedness....................................................78
8.2 Liens...........................................................79
8.3 Nature of Business..............................................79
8.4 Consolidation, Merger, Dissolution, etc.........................79
8.5 Asset Dispositions..............................................79
8.6 Investments.....................................................80
8.7 Restricted Payments.............................................80
8.8 Prepayments of Subordinated Indebtedness, etc...................80
8.9 Transactions with Affiliates....................................81
8.10 Fiscal Year; Organizational Documents...........................81
8.11 Limitation on Restricted Actions................................81
8.12 Ownership of Subsidiaries; Limitations on Borrower..............81
8.13 Sale Leasebacks.................................................82
8.14 No Further Negative Pledges.....................................82
8.15 No Foreign Subsidiaries.........................................82
8.16 Capital Expenditures............................................82
SECTION 9 EVENTS OF DEFAULT................................................83
9.1 Events of Default...............................................83
9.2 Acceleration; Remedies..........................................85
SECTION 10 AGENT 86
10.1 Appointment and Authorization of Agent..........................86
10.2 Delegation of Duties............................................87
10.3 Liability of Agent..............................................87
10.4 Reliance by Agent...............................................87
10.5 Notice of Default...............................................88
10.6 Credit Decision; Disclosure of Information by Agent.............88
10.7 Indemnification of Agent........................................88
10.8 Agent in its Individual Capacity................................89
10.9 Successor Agent.................................................89
SECTION 11 MISCELLANEOUS....................................................90
11.1 Notices.........................................................90
11.2 Right of Set-Off................................................90
11.3 Successors and Assigns..........................................90
11.4 No Waiver; Remedies Cumulative..................................93
11.5 Payment of Expenses; Indemnification............................93
11.6 Amendments, Waivers and Consents................................94
11.7 Counterparts....................................................96
11.8 Headings........................................................96
11.9 Defaulting Lender...............................................96
11.10 Survival of Indemnification and
Representations and Warranties................................97
11.11 Governing Law; Jurisdiction.....................................97
11.12 Waiver of Right to Trial by Jury................................97
11.13 Time............................................................98
11.14 Severability....................................................98
11.15 Entirety........................................................98
11.16 Binding Effect..................................................98
11.17 Confidentiality.................................................98
11.18 Binding Effect; Termination of Credit Agreement; etc............99
SCHEDULES
---------
Schedule 1.1(a) Investments
Schedule 1.1(b) Liens
Schedule 2.1(a) Lenders Commitments
Schedule 2.2(a) Existing Letters of Credit
Schedule 6.9 Litigation
Schedule 6.13 Subsidiaries
Schedule 6.20(a) Real Property
Schedule 6.20(b) Collateral Locations
Schedule 6.20(c) Chief Executive Offices/Principal Places of Business
Schedule 7.6 Insurance
Schedule 8.1 Indebtedness
Schedule 11.1 Notices
EXHIBITS
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Exhibit 1.1(a) Form of Pledge Agreement
Exhibit 1.1(b) Form of Security Agreement
Exhibit 2.1(b) Form of Notice of Borrowing
Exhibit 2.1(e) Form of Revolving Note
Exhibit 2.4(f) Form of Tranche A Term Note
Exhibit 2.5(f) Form of Tranche B Term Note
Exhibit 3.2 Form of Notice of Extension/Conversion
Exhibit 7.1(c) Form of Officer's Compliance Certificate
Exhibit 7.12 Form of Joinder Agreement
Exhibit 11.3(b) Form of Assignment and Acceptance
CREDIT AGREEMENT
THIS SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this "Credit Agreement"),
is entered into as of July 20, 2001 among APRIA HEALTHCARE GROUP INC., a
Delaware corporation (the "Borrower"), the Subsidiaries of the Borrower listed
on the signature pages hereto (individually a "Guarantor", collectively the
"Guarantors"), the Lenders (as defined herein), BANK OF AMERICA, N.A., as Agent
for the Lenders, and CREDIT LYONNAIS NEW YORK BRANCH, THE BANK OF NOVA SCOTIA
and FLEET NATIONAL BANK, as Co-Syndication Agents.
RECITALS
WHEREAS, the Borrower and certain of its Subsidiaries are party to that
certain Amended and Restated Credit Agreement, dated as of November 13, 1998, as
amended from time to time thereafter (as amended, the "Existing Credit
Agreement"), among the Borrower, certain of its Subsidiaries, the lenders party
thereto, Bank of America, N.A. (formerly known as Bank of America National Trust
and Savings Association), as the Administrative and Collateral Agent, and Bank
of America, N.A. (formerly known as NationsBank, N.A.), as Syndication Agent;
WHEREAS, the parties to the Existing Credit Agreement have agreed to amend
the Existing Credit Agreement and for ease of reference have agreed to amend and
restate the Existing Credit Agreement in this Credit Agreement; and
WHEREAS, the Borrower and the Guarantors have requested, and the Lenders
have agreed, to provide credit facilities in an aggregate amount of $400,000,000
(the "Credit Facilities") on the terms and conditions hereinafter set forth.
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
SECTION 1
DEFINITIONS AND ACCOUNTING TERMS
--------------------------------
1.1 DEFINITIONS.
--- ------------
As used herein, the following terms shall have the meanings herein specified
unless the context otherwise requires. Defined terms herein shall include in the
singular number the plural and in the plural the singular:
"Acquisition", by any Person, means the acquisition by such Person of
all or substantially all of the capital stock or all or substantially all of
the Property of another Person, or of a division or business unit of a
Person, whether or not involving a merger or consolidation with such Person.
"Adjusted Base Rate" means the Base Rate plus the Applicable Percentage.
"Adjusted Eurodollar Rate" means the Eurodollar Rate plus the Applicable
Percentage.
"Affiliate" means, with respect to any Person, any other Person directly
or indirectly controlling (including but not limited to all directors and
executive officers of such Person), controlled by or under direct or
indirect common control with such Person. A Person shall be deemed to
control a corporation if such Person possesses, directly or indirectly, the
power (i) to vote 5% or more of the securities having ordinary voting power
for the election of directors of such corporation or (ii) to direct or cause
direction of the management and policies of such corporation, whether
through the ownership of voting securities, by contract or otherwise.
"Agent" means Bank of America, N.A. (or any successor thereto) or any
successor Agent appointed pursuant to Section 10.9.
"Agent-Related Persons" means the Agent (including any successor agent),
together with its Affiliates (including, in the case of Bank of America in
its capacity as the Agent, the Arranger), and the officers, directors,
employees, agents and attorneys-in-fact of such Persons and Affiliates.
"Agent's Fee Letter" means the fee letter between the Agent and the
Borrower dated as of May 30, 2001, as amended.
"Applicable Lending Office" means, for each Lender, the office of such
Lender (or of an Affiliate of such Lender) as such Lender may from time to
time specify to the Agent and the Borrower by written notice as the office
by which its Eurodollar Loans are made and maintained.
"Applicable Percentage" means, for purposes of calculating the
applicable interest rate for any day for any Revolving Loan, any Tranche A
Term Loan or any Tranche B Term Loan, the applicable rate of the Commitment
Fee for any day for purposes of Section 3.5(a), the applicable rate of the
Letter of Credit Fee for any day for purposes of Section 3.5(b)(i), the
appropriate applicable percentage corresponding to the Leverage Ratio in
effect as of the most recent Calculation Date:
===========================================================================================
APPLICABLE PERCENTAGES
-------------------------------------------------------------------------------------------
FOR REVOLVING LOANS,
TRANCHE A TERM LOANS FOR
AND LETTER OF CREDIT FEE TRANCHE B TERM LOANS
------------------------ -----------------------
EURODOLLAR BASE RATE EURODOLLAR BASE RATE
LOANS AND LOANS LOANS LOANS FOR
PRICING LEVERAGE LETTER OF COMMITMENT
LEVEL RATIO CREDIT FEE FEE
------- ------------- ------------------------ ----------------------- ----------
I <1.25 to 1.0 1.50% .50% 3.00% 2.00% .25%
--------------------------------------------------------------------------------------------
II < 1.75 to 1.0 1.75% .75% 3.00% 2.00% .375%
but > 1.25 to
1.0
--------------------------------------------------------------------------------------------
III < 2.25 to 1.0 2.00% 1.00% 3.00% 2.00% .375%
but > 1.75 to
1.0
--------------------------------------------------------------------------------------------
IV > 2.25 to 1.0 2.25% 1.25% 3.00% 2.00% .50%
============================================================================================
The Applicable Percentages shall be determined and adjusted quarterly on the
date (each a "Calculation Date") five Business Days after the date on which
the Administrative Agent receives the officer's certificate in accordance
with the provisions of Section 7.1(c) for the most recently ended fiscal
quarter of the Consolidated Parties; provided, however, that (i) the initial
Applicable Percentages shall be based on Pricing Level II (as shown above)
and shall remain at Pricing Level II until the Calculation Date for the
fiscal quarter of the Consolidated Parties ending on September 30, 2001, on
and after which time the Pricing Level shall be determined by the Leverage
Ratio as of the last day of the most recently ended fiscal quarter of the
Consolidated Parties preceding the applicable Calculation Date and (ii) if
the Credit Parties fail to provide the officer's certificate to the Agency
Services Address as required by Section 7.1(c) for the last day of the most
recently ended fiscal quarter of the Consolidated Parties preceding the
applicable Calculation Date, the Applicable Percentage from such Calculation
Date shall be based on Pricing Level IV until such time as an appropriate
officer's certificate is provided, whereupon the Pricing Level shall be
determined by the Leverage Ratio as of the last day of the most recently
ended fiscal quarter of the Consolidated Parties preceding such Calculation
Date. Each Applicable Percentage shall be effective from one Calculation
Date until the next Calculation Date. Any adjustment in the Applicable
Percentages shall be applicable to all existing Loans and Letters of Credit
as well as any new Loans and Letters of Credit made or issued.
"Application Period", in respect of any Asset Disposition, shall have
the meaning assigned to such term in Section 8.5.
"Approved Fund" means any Fund that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) with respect to any Lender that
is a fund that invests in bank loans, any other fund that invests in bank
loans which is an "accredited investor" and is managed or advised by the
same investment advisor that manages or advises such Lender or by an
Affiliate of such investment advisor.
"Arranger" means Banc of America Securities LLC, in its capacity as sole
lead arranger and sole book manager.
"Asset Disposition" means any disposition, other than pursuant to an
Excluded Asset Disposition, of any or all of the Property (including without
limitation the Capital Stock of a Subsidiary) of any Consolidated Party
whether by sale, lease, transfer or otherwise, but other than pursuant to
any casualty or condemnation event.
"Asset Disposition Prepayment Event" means, with respect to any Asset
Disposition, the failure of the Credit Parties to apply (or cause to be
applied) the Net Cash Proceeds of such Asset Disposition to Eligible
Reinvestments during the Application Period for such Asset Disposition.
"Attorney Costs" means and includes all reasonable fees and
disbursements of counsel.
"Bank of America" means Bank of America, N.A. and its successors.
"Bankruptcy Code" means the Bankruptcy Code in Title 11 of the United
States Code, as amended, modified, succeeded or replaced from time to time.
"Bankruptcy Event" means, with respect to any Person, the occurrence of
any of the following with respect to such Person: (i) a court or
governmental agency having jurisdiction in the premises shall enter a decree
or order for relief in respect of such Person in an involuntary case under
any applicable bankruptcy, insolvency or other similar law now or hereafter
in effect, or appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of such Person or for any
substantial part of its Property or ordering the winding up or liquidation
of its affairs; or (ii) there shall be commenced against such Person an
involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or any case, proceeding or other
action for the appointment of a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of such Person or for any
substantial part of its Property or for the winding up or liquidation of its
affairs, and such involuntary case or other case, proceeding or other action
shall remain undismissed, undischarged or unbonded for a period of sixty
(60) consecutive days; or (iii) such Person shall commence a voluntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or consent to the entry of an order for relief in an
involuntary case under any such law, or consent to the appointment or taking
possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of such Person or for any substantial
part of its Property or make any general assignment for the benefit of
creditors; or (iv) such Person shall be unable to, or shall admit in writing
its inability to, pay its debts generally as they become due.
"Base Rate" means, for any day, a fluctuating rate per annum equal to
the higher of (a) the Federal Funds Rate in effect on such day plus 1/2 of
1% and (b) the Prime Rate in effect on such day. If for any reason the Agent
shall have determined (which determination shall be conclusive absent
manifest error) that it is unable after due inquiry to ascertain the Federal
Funds Rate for any reason, including the inability or failure of the Agent
to obtain sufficient quotations in accordance with the terms hereof, the
Base Rate shall be determined without regard to clause (a) of the first
sentence of this definition until the circumstances giving rise to such
inability no longer exist. Any change in the Base Rate due to a change in
the Prime Rate or the Federal Funds Rate shall be effective on the effective
date of such change in the Prime Rate or the Federal Funds Rate,
respectively.
"Base Rate Loan" means any Loan bearing interest at a rate determined by
reference to the Base Rate.
"Borrower" means Apria Healthcare Group Inc., a Delaware corporation,
together with any successors and permitted assigns.
"Business Day" means any day other than a Saturday, a Sunday, a legal
holiday or a day on which banking institutions are authorized or required by
law or other governmental action to close in Charlotte, North Carolina or
New York, New York; provided that in the case of Eurodollar Loans, such day
is also a day on which dealings between banks are carried on in U.S. dollar
deposits in the London interbank market.
"Calculation Date" has the meaning set forth in the definition of
Applicable Percentage.
"Capital Lease" means, as applied to any Person, any lease of any
property (whether real, personal or mixed) by that Person as lessee which,
in accordance with GAAP, is or should be accounted for as a capital lease on
the balance sheet of that Person.
"Capital Stock" means (a) in the case of a corporation, capital stock,
(b) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated)
of capital stock, (c) in the case of a partnership, partnership interests
(whether general or limited), (d) in the case of a limited liability
company, membership interests and (e) any other interest or participation
that confers on a Person the right to receive a share of the profits and
losses of, or distributions of assets of, the issuing Person.
"Cash Equivalents" means (a) securities issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the
United States of America is pledged in support thereof) having maturities of
not more than twelve months from the date of acquisition, (b) U.S. dollar
denominated time and demand deposits and certificates of deposit of (i) any
Lender, (ii) any domestic commercial bank having capital and surplus in
excess of $100,000,000 or (iii) any bank whose short-term commercial paper
rating from S&P is at least A-1 or the equivalent thereof or from ▇▇▇▇▇'▇ is
at least P-1 or the equivalent thereof (any such bank being an "Approved
Bank"), in each case with maturities of not more than 270 days from the date
of acquisition, (c) commercial paper and variable or fixed rate notes issued
by any Approved Bank (or by the parent company thereof) or any variable rate
notes issued by, or guaranteed by, any domestic corporation rated A-1 (or
the equivalent thereof) or better by S&P or P-1 (or the equivalent thereof)
or better by Moody's and maturing within six months of the date of
acquisition, (d) repurchase agreements with a bank or trust company
(including any of the Lenders) or securities dealer having capital and
surplus in excess of $500,000,000 for direct obligations issued by or fully
guaranteed by the United States of America in which the Borrower shall have
a perfected first priority security interest (subject to no other Liens) and
having, on the date of purchase thereof, a fair market value of at least
100% of the amount of the repurchase obligations and (e) shares of money
market mutual or similar funds which invest exclusively in the assets
satisfying the requirements of clauses (a) through (d) of this definition.
"CHAMPUS" means the United States Department of Defense Civilian Health
and Medical Program of the Uniformed Services.
"Change in Control" means (i) any Person or two or more Persons acting
in concert shall have acquired, after the date hereof, beneficial ownership,
directly or indirectly, of Capital Stock of the Borrower (or other
securities convertible into such Capital Stock) representing 25% or more of
the combined voting power of all Capital Stock of the Borrower or (ii)
Continuing Directors shall cease for any reason to constitute a majority of
the members of the board of directors of the Parent then in office. As used
herein, "beneficial ownership" shall have the meaning provided in Rule 13d-3
of the Securities and Exchange Commission under the Securities and Exchange
Act of 1934.
"Closing Date" means the date hereof.
"Code" means the Internal Revenue Code of 1986 and the rules and
regulations promulgated thereunder, as amended, modified, succeeded or
replaced from time to time.
"Collateral" means a collective reference to all Property with respect
to which Liens in favor of the Agent are purported to be granted pursuant to
and in accordance with the terms of the Collateral Documents.
"Collateral Documents" means a collective reference to the Security
Agreement, the Pledge Agreement, the mortgage instruments and such other
documents executed and delivered in connection with the attachment and
perfection of the Agent's security interests and liens arising thereunder,
including without limitation, UCC financing statements and patent and
trademark filings.
"Commitment" means (i) with respect to each Lender, the Revolving
Commitment of such Lender, the Tranche A Term Loan Commitment and the
Tranche B Term Loan Commitment of such Lender, (ii) with respect to the
Issuing Lender, the LOC Commitment and (iii) with respect to the Swingline
Lender, the Swingline Commitment.
"Commitment Fee" shall have the meaning assigned to such term in Section
3.5(a).
"Commitment Fee Calculation Period" shall have the meaning assigned to
such term in Section 3.5(a).
"Consolidated Assets" means, at any date, the consolidated assets of the
Borrower and the Subsidiaries at such date, as determined in accordance with
GAAP.
"Consolidated Capital Expenditures" means the sum of (without
duplication) (i) all expenditures of the Borrower and its Subsidiaries on a
consolidated basis during such period (a) for the acquisition, maintenance
or repair of fixed or capital assets (which should be capitalized in
accordance with GAAP) and (b) for Rental Equipment or for the maintenance or
repair of Rental Equipment (which should be capitalized in accordance with
GAAP) and (ii) all Capital Leases of the Borrower and its Subsidiaries
entered into during such period.
"Consolidated Cash Taxes" means, for any period, with respect to the
Borrower and its Subsidiaries on a consolidated basis the aggregate of all
taxes to the extent the same are paid in cash during such period.
"Consolidated EBITDA" means, as of any date for the four fiscal quarter
period ending on, or most recently ended prior to, such date, with respect
to the Borrower and its Subsidiaries on a consolidated basis, the sum of (i)
Consolidated Net Income, plus (ii) an amount which, in the determination of
Consolidated Net Income, has been deducted for (A) Consolidated Interest
Expense, (B) total Federal, state, local and foreign income, value added and
similar taxes and (C) depreciation and amortization expense, as determined
in accordance with GAAP.
"Consolidated EBITDAR" means, for any period, with respect to the
Borrower and its Subsidiaries on a consolidated basis, the sum of (i)
Consolidated EBITDA for such period, plus (ii) an amount which in the
determination of Consolidated Net Income for such period has been deducted
for Consolidated Rent Expense for such period.
"Consolidated Interest Expense" means, for any period, with respect to
the Borrower and its Subsidiaries on a consolidated basis, all net interest
expense, including the interest component under Capital Leases, as
determined in accordance with GAAP.
"Consolidated Net Income" means, as of any date for the four fiscal
quarter period ending on, or most recently ended prior to, such date with
respect to the Borrower and its Subsidiaries on a consolidated basis, net
income, as determined in accordance with GAAP; provided, that in any event
there shall be excluded any extraordinary items and any non-cash or
non-recurring gains or losses.
"Consolidated Parties" means a collective reference to the Borrower and
its Subsidiaries, and "Consolidated Party" means any one of them.
"Consolidated Rent Expense" means all payments (including, without
limitation, any property taxes paid as additional rent or lease payments)
made by the Borrower and its Subsidiaries on a consolidated basis under any
agreement to rent or lease Property.
"Consolidated Scheduled Funded Debt Payments" means, as of the end of
each fiscal quarter of the Borrower, for the Borrower and its Subsidiaries
on a consolidated basis, the sum of all scheduled payments of principal on
Funded Debt for the applicable period ending on such date (including the
principal component of payments due on Capital Leases during the applicable
period ending on such date); it being understood that Consolidated Scheduled
Funded Debt Payments shall not include voluntary prepayments or the
mandatory prepayments required pursuant to Section 3.3.
"Continue", "Continuation", "Continuing", and "Continued" shall refer to
the continuation pursuant to Section 3.2 hereof of a Eurodollar Loan from
one Interest Period to the next Interest Period.
"Continuing Directors" means during any period of up to 24 consecutive
months commencing after the Closing Date, individuals who at the beginning
of such 24 month period were directors of the Borrower (together with any
new director whose election by the Borrower's board of directors or whose
nomination for election by the Borrower's shareholders was approved by a
vote of at least a majority of the directors then still in office who either
were directors at the beginning of such period or whose election or
nomination for election was previously so approved).
"Contract Provider" means any Person or any employee, agent or
subcontractor of such Person who provides professional health care services
under or pursuant to any contract with any Consolidated Party.
"Convert", "Conversion", "Converting" and "Converted" shall refer to a
conversion pursuant to Section 3.2 or Sections 3.7 through 3.12, inclusive,
of a Base Rate Loan into a Eurodollar Loan.
"Credit Documents" means a collective reference to this Credit
Agreement, the Notes, the LOC Documents, each Joinder Agreement, the Agent's
Fee Letter, the Collateral Documents and all other related agreements and
documents issued or delivered hereunder or thereunder or pursuant hereto or
thereto (in each case as the same may be amended, modified, restated,
supplemented, extended, renewed or replaced from time to time), and "Credit
Document" means any one of them.
"Credit Facilities" shall have the meaning assigned to such term in the
recitals hereto.
"Credit Parties" means the Borrower and the Guarantors and "Credit
Party" means any one of them.
"Credit Party Obligations" means, without duplication, (i) all of the
obligations and liabilities of the Credit Parties to the Lenders (including
the Issuing Lender) and the Agent, whenever arising, under this Credit
Agreement, the Notes, the Collateral Documents or any of the other Credit
Documents (including, but not limited to, any interest accruing after the
occurrence of a Bankruptcy Event with respect to any Credit Party,
regardless of whether such interest is an allowed claim under the Bankruptcy
Code) and (ii) all liabilities and obligations, whenever arising, owing from
the Borrower to any Lender, or any Affiliate of a Lender, arising under any
Hedging Agreement.
"Debt Issuance" means the issuance of any Indebtedness for borrowed
money by any Consolidated Party (other than any Debt Issuance permitted by
Section 8.1(a)-(f) and (h)).
"Default" means any event, act or condition which with notice or lapse
of time, or both, would constitute an Event of Default.
"Defaulting Lender" means, at any time, any Lender that, (a) has failed
to make a Loan or purchase a Participation Interest required pursuant to the
terms of this Credit Agreement (but only for so long as such Loan is not
made or such Participation Interest is not purchased), (b) has failed to pay
to the Agent or any Lender an amount owed by such Lender pursuant to the
terms of this Credit Agreement (but only for so long as such amount has not
been repaid) or (c) has been deemed insolvent or has become subject to a
bankruptcy or insolvency proceeding or to a receiver, trustee or similar
official.
"Dollars" and "$" means dollars in lawful currency of the United States
of America.
"Domestic Subsidiary" means, with respect to any Person, any Subsidiary
of such Person which is incorporated or organized under the laws of any
State of the United States or the District of Columbia.
"Eligible Assets" means any assets or any business (or any substantial
part thereof) used or useful in the same or a similar line of business as
the Borrower and its Subsidiaries were engaged in on the Closing Date (or
any reasonable extensions or expansions thereof) and businesses ancillary
thereto.
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a Lender;
(c) an Approved Fund; and (d) any other Person (other than a natural Person)
approved by the Agent and, unless an Event of Default has occurred and is
continuing, the Borrower (each such approval not to be unreasonably withheld
or delayed).
"Eligible Reinvestment" means (i) any acquisition (whether or not
constituting a capital expenditure, but not constituting an Acquisition) of
Eligible Assets and (ii) any Permitted Acquisition.
"Environmental Claim" means any investigation, written notice,
violation, written demand, written allegation, action, suit, injunction,
judgment, order, consent decree, penalty, fine, lien, proceeding, or written
claim whether administrative, judicial, or private in nature arising (a)
pursuant to, or in connection with, an actual or alleged violation of, any
Environmental Law, (b) in connection with any Hazardous Material, (c) from
any assessment, abatement, removal, remedial, corrective, or other response
action in connection with an Environmental Law or other order of a
Governmental Authority or (d) from any actual or alleged damage, injury,
threat, or harm to health, safety, natural resources, or the environment.
"Environmental Laws" means any current or future legal requirement of
any Governmental Authority pertaining to (a) the protection of health,
safety, and the indoor or outdoor environment, (b) the conservation,
management, or use of natural resources and wildlife, (c) the protection or
use of surface water and groundwater, (d) the management, manufacture,
possession, presence, use, generation, transportation, treatment, storage,
disposal, release, threatened release, abatement, removal, remediation or
handling of, or exposure to, any hazardous or toxic substance or material or
(e) pollution (including any release to land surface water and groundwater)
and includes, without limitation, the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended by the Superfund
Amendments and Reauthorization Act of 1986, 42 USC 9601 et seq., Solid Waste
Disposal Act, as amended by the Resource Conservation and Recovery Act of
1976 and Hazardous and Solid Waste Amendment of 1984, 42 USC 6901 et seq.,
Federal Water Pollution Control Act, as amended by the Clean Water Act of
1977, 33 USC 1251 et seq., Clean Air Act of 1966, as amended, 42 USC 7401 et
seq., Toxic Substances Control Act of 1976, 15 USC 2601 et seq., Hazardous
Materials Transportation Act, 49 USC App. 1801 et seq., Occupational Safety
and Health Act of 1970, as amended, 29 USC 651 et seq., Oil Pollution Act of
1990, 33 USC 2701 et seq., Emergency Planning and Community Right-to-Know
Act of 1986, 42 USC 11001 et seq., National Environmental Policy Act of
1969, 42 USC 4321 et seq., Safe Drinking Water Act of 1974, as amended, 42
USC 300(f) et seq., any analogous implementing or successor law, and any
amendment, rule, regulation, order, or binding directive issued thereunder.
"Equity Issuance" means any issuance by the Borrower or any of its
Subsidiaries to any Person of (a) shares of its Capital Stock other than (i)
any shares of its Capital Stock pursuant to the exercise of options or
warrants, (ii) any shares of its Capital Stock pursuant to the conversion of
any debt securities to equity and (iii) in the case of Subsidiaries, any
shares of its Capital Stock issued to the Borrower or any of its
Subsidiaries or (b) any options or warrants relating to its Capital Stock.
The term "Equity Issuance" shall not include (a) any Asset Disposition, (b)
any Debt Issuance or (c) the issuance of Capital Stock so long as the Net
Cash Proceeds are used (within the period of 90 days following the
consummation of such Equity Issuance) to make Eligible Reinvestments.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute thereto, as interpreted by the rules and
regulations thereunder, all as the same may be in effect from time to time.
References to sections of ERISA shall be construed also to refer to any
successor sections.
"ERISA Affiliate" means an entity which is under common control with any
Consolidated Party within the meaning of Section 4001(a)(14) of ERISA, or is
a member of a group which includes any Consolidated Party and which is
treated as a single employer under Sections 414(b) or (c) of the Code.
"ERISA Event" means (i) with respect to any Plan, the occurrence of a
Reportable Event or the substantial cessation of operations (within the
meaning of Section 4062(e) of ERISA); (ii) the withdrawal by any
Consolidated Party or any ERISA Affiliate from a Multiple Employer Plan
during a plan year in which it was a substantial employer (as such term is
defined in Section 4001(a)(2) of ERISA), or the termination of a Multiple
Employer Plan; (iii) the distribution of a notice of intent to terminate or
the actual termination of a Plan pursuant to Section 4041(a)(2) or 4041A of
ERISA; (iv) the institution of proceedings to terminate or the actual
termination of a Plan by the PBGC under Section 4042 of ERISA; (v) any event
or condition which might constitute grounds under Section 4042 of ERISA for
the termination of, or the appointment of a trustee to administer, any Plan;
(vi) the complete or partial withdrawal of any Consolidated Party or any
ERISA Affiliate from a Multiemployer Plan; (vii) the conditions for
imposition of a lien under Section 302(f) of ERISA exist with respect to any
Plan; or (viii) the adoption of an amendment to any Plan requiring the
provision of security to such Plan pursuant to Section 307 of ERISA.
"Eurodollar Loan" means a Loan bearing interest based at a rate
determined by reference to the Eurodollar Rate.
"Eurodollar Rate" means, for any Eurodollar Loan for any Interest
Period, therefor, the rate per annum (rounded upwards, if necessary, to the
nearest 1/100th of 1%) determined by the Agent to be equal to the London
Interbank Offered Rate.
"Event of Default" means any of the events or circumstances described in
Section 9.1.
"Excluded Asset Disposition" means, with respect to any Consolidated
Party, (i) the sale of inventory in the ordinary course of such Consolidated
Party's business, (ii) the sale or disposition of machinery and equipment no
longer used or useful in the conduct of such Consolidated Party's business,
(iii) any Equity Issuance by such Consolidated Party, (iv) any Involuntary
Disposition by such Consolidated Party and (v) any sale, lease, transfer or
other disposition of Property by such Consolidated Party to any other
Consolidated Party, provided that the Credit Parties shall cause to be
executed and delivered such documents, instruments and certificates as the
Agent may request so as to cause the Credit Parties to be in compliance with
the terms of Section 7.13 after giving effect to such transaction.
"Excluded Property" means, with respect to any Consolidated Party,
including any Person that becomes a Consolidated Party after the Closing
Date as contemplated by Section 7.12, (i) any owned or leased real or
personal Property of such Consolidated Party which is located outside of the
United States, (ii) any leased real Property of such Consolidated Party,
(iii) any owned real Property of such Consolidated Party which has a net
book value of less than $500,000, provided that the aggregate net book value
of all real Property of all of the Credit Parties excluded pursuant to this
clause (iii) shall not exceed $2,000,000, (iv) any leased personal Property
of such Consolidated Party, (v) any personal Property of such Credit Party
(including, without limitation, motor vehicles) in respect of which
perfection of a Lien is not either (A) governed by the Uniform Commercial
Code or (B) effected by appropriate evidence of the Lien being filed in
either the United States Copyright Office or the United States Patent and
Trademark Office and (vi) any Property of such Consolidated Party which,
subject to the terms of Section 8.11 and Section 8.14, is subject to a Lien
of the type described in clause (vii) of the definition of "Permitted Liens"
set forth in Section 1.1 pursuant to documents which prohibit such
Consolidated Party from granting any other Liens in such Property.
"Existing Credit Agreement" shall have the meaning assigned to such term
in the recitals hereto.
"Existing Letters of Credit" means the letters of credit described by
date of issuance, letter of credit number, undrawn amount, name of
beneficiary and date of expiry on Schedule 2.2(a).
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upwards to the nearest 1/100 of 1%) equal to the weighted average of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published
by the Federal Reserve Bank on the Business Day next succeeding such day;
provided that (a) if such day is not a Business Day, the Federal Funds Rate
for such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day, and (b) if
no such rate is so published on such next succeeding Business Day, the
Federal Funds Rate for such day shall be the average rate charged to Bank of
America on such day on such transactions as determined by the Agent.
"Fixed Charge Coverage Ratio" means, as of the end of each fiscal
quarter of the Consolidated Parties for the four quarter period ending on
such date, the ratio of (a) Consolidated EBITDAR for the applicable period
minus Consolidated Cash Taxes for the applicable period to (b) the sum of
(i) Consolidated Interest Expense for the applicable period plus (ii)
Consolidated Scheduled Funded Debt Payments for the applicable period plus
(iii) Consolidated Rent Expense for the applicable period.
"Foreign Subsidiary" means, with respect to any Person, any Subsidiary
of such Person which is not a Domestic Subsidiary of such Person.
"Fund" means any Person (other than a natural Person) that is (or will
be) engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary course of
its business.
"Funded Debt" means, without duplication, the sum of (a) all
Indebtedness of the Borrower and its Subsidiaries for borrowed money, (b)
all purchase money Indebtedness of the Borrower and its Subsidiaries, (c)
the principal portion of all obligations of the Borrower and its
Subsidiaries under Capital Leases, (d) all obligations, contingent or
otherwise, relative to the face amount of all letters of credit (other than
letters of credit supporting trade payables in the ordinary course of
business), whether or not drawn, and banker's acceptances issued for the
account of such Person (it being understood that, to the extent an undrawn
letter of credit supports another obligation consisting of Indebtedness, in
calculating aggregated Indebtedness only such other obligation shall be
included), (e) all Guaranty Obligations of the Borrower and its Subsidiaries
with respect to Funded Debt of another Person, (f) all Funded Debt of
another entity secured by a Lien on any property of the Borrower and its
Subsidiaries whether or not such Funded Debt has been assumed by the
Borrower or any of its Subsidiaries, (g) all Funded Debt of any partnership
or unincorporated joint venture to the extent the Borrower or one of its
Subsidiaries is legally obligated, net of any assets of such partnership or
joint venture, (h) the principal balance outstanding under any Synthetic
Lease and (i) the aggregate amount of Governmental Reimbursement Program
Costs (exclusive of, with respect to the determination of Funded Debt in any
period, the portion of Governmental Reimbursement Program Costs paid in such
period).
"GAAP" means generally accepted accounting principles in the United
States applied on a consistent basis and subject to Section 1.3.
"Governmental Authority" means any Federal, state, local, provincial or
foreign court or governmental agency, authority, instrumentality or
regulatory body.
"Governmental Reimbursement Program Cost" means with respect to and
payable by the Borrower and its Subsidiaries the sum of:
(i) all amounts (including punitive and other similar amounts)
agreed to be paid or payable (a) in settlement of claims or (b) as a
result of a final, non-appealable judgment, award or similar order, in
each case, relating to participation in Medical Reimbursement Programs;
(ii) all final, non-appealable fines, penalties, forfeitures or
other amounts rendered pursuant to criminal indictments or other
criminal proceedings relating to participation in Medical Reimbursement
Programs; and
(iii) the amount of final, non-appealable recovery, damages, awards,
penalties, forfeitures or similar amounts rendered in any litigation,
suit, arbitration, investigation or other legal or administrative
proceeding of any kind relating to participation in Medical
Reimbursement Programs.
"Guarantor" means each of the Persons identified as a "Guarantor" on the
signature pages hereto and each Person which may hereafter execute a Joinder
Agreement pursuant to Section 7.12, together with their successors and
permitted assigns, and "Guarantor" means any one of them.
"Guaranty Obligations" means, with respect to any Person, without
duplication, any obligations (other than endorsements in the ordinary course
of business of negotiable instruments for deposit or collection)
guaranteeing or intended to guarantee any Indebtedness of any other Person
in any manner, whether direct or indirect, and including without limitation
any obligation, whether or not contingent, (a) to purchase any such
Indebtedness or other obligation or any property constituting security
therefor, (b) to advance or provide funds or other support for the payment
or purchase of such indebtedness or obligation or to maintain working
capital, solvency or other balance sheet condition of such other Person
(including, without limitation, maintenance agreements, comfort letters,
take or pay arrangements, put agreements or similar agreements or
arrangements but excluding obligations to provide funding for partnerships
and joint ventures) for the benefit of the holder of Indebtedness of such
other Person, (c) to lease or purchase property, securities or services
primarily for the purpose of assuring the owner of such Indebtedness or (d)
to otherwise assure or hold harmless the owner of such Indebtedness or
obligation against loss in respect thereof. The amount of any Guaranty
Obligation hereunder shall (subject to any limitations set forth therein) be
deemed to be an amount equal to the outstanding principal amount of the
Indebtedness in respect of which such Guaranty Obligation is made.
"Hazardous Materials" means any substance, material or waste defined or
regulated in or under any Environmental Laws.
"HCFA" means the United States Health Care Financing Administration and
any successor thereto, including the Centers for Medicare and Medicaid
Services.
"Hedging Agreements" means any interest rate protection agreement or
foreign currency exchange agreement.
"Indebtedness" means, with respect to any Person, without duplication,
(a) all obligations of such Person for borrowed money, (b) all obligations
of such Person evidenced by bonds, debentures, notes or similar instruments,
or upon which interest payments are customarily made, (c) all obligations of
such Person under conditional sale or other title retention agreements
relating to Property purchased by such Person (other than customary
reservations or retentions of title under agreements with suppliers entered
into in the ordinary course of business), (d) all obligations of such Person
issued or assumed as the deferred purchase price of Property or services
purchased by such Person (other than trade debt incurred in the ordinary
course of business and due within six months of the incurrence thereof)
which would appear as liabilities on a balance sheet of such Person, (e) all
obligations of such Person under take-or-pay or similar arrangements or
under commodities agreements, (f) all Indebtedness of others secured by (or
for which the holder of such Indebtedness has an existing right, contingent
or otherwise, to be secured by) any Lien on, or payable out of the proceeds
of production from, Property owned or acquired by such Person, whether or
not the obligations secured thereby have been assumed, (g) all Guaranty
Obligations of such Person with respect to Indebtedness of another Person,
(h) the implied principal component of all obligations of such Person under
Capital Leases, (i) all obligations of such Person under Hedging Agreements,
(j) the maximum amount of all performance and standby letters of credit
issued or bankers' acceptances facilities created for the account of such
Person and, without duplication, all drafts drawn thereunder (to the extent
unreimbursed), (k) all preferred Capital Stock issued by such Person and
which by the terms thereof could be (at the request of the holders thereof
or otherwise) subject to mandatory sinking fund payments, redemption or
other acceleration (other than as a result of a Change of Control or an
Asset Disposition that does not in fact result in a redemption of such
preferred Capital Stock) at any time prior to the Maturity Date, (l) the
principal portion of all obligations of such Person under Synthetic Leases,
(m) all obligations of such Person to repurchase any securities which
repurchase obligation is related to the issuance thereof, including, without
limitation, obligations commonly known as residual equity appreciation
potential shares, (n) the Indebtedness of any partnership or unincorporated
joint venture in which such Person is a general partner or a joint venturer
and (o) the aggregate amount of uncollected accounts receivable of such
Person subject at such time to a sale of receivables (or similar
transaction) regardless of whether such transaction is effected without
recourse to such Person or in a manner that would not be reflected on the
balance sheet of such Person in accordance with GAAP.
"Interest Payment Date" means (a) as to Base Rate Loans, the last day of
each month and the Maturity Date, (b) as to Eurodollar Loans, the last day
of each applicable Interest Period and the Maturity Date and in addition
where the applicable Interest Period for a Eurodollar Loan is greater than
three months, then also on the date three months from the beginning of the
Interest Period and each three months thereafter and (c) with respect to any
Swingline Loan, the date such Loan is required to be repaid and the Maturity
Date.
"Interest Period" means, as to Eurodollar Loans, a period of one week,
one month, two months', three months' or six months' duration, as the
Borrower may elect, commencing, in each case, on the date of the borrowing
(including continuations and conversions thereof); provided, however, (a) if
any Interest Period would end on a day which is not a Business Day, such
Interest Period shall be extended to the next succeeding Business Day
(except that where the next succeeding Business Day falls in the next
succeeding calendar month, then on the next preceding Business Day), (b) no
Interest Period shall extend beyond the Maturity Date, (c) with regard to
the Tranche A Term Loans, no Interest Period shall extend beyond any
Principal Amortization Payment Date unless the portion of Tranche A Term
Loans comprised of Base Rate Loans together with the portion of Tranche A
Term Loans comprised of Eurodollar Loans with Interest Periods expiring
prior to the date such Principal Amortization Payment is due, is at least
equal to the amount of such Principal Amortization Payment due on such date,
(d) with regard to the Tranche B Term Loans, no Interest Period shall extend
beyond any Principal Amortization Payment Date unless the portion of Tranche
B Term Loans comprised of Base Rate Loans together with the portion of
Tranche B Term Loans comprised of Eurodollar Loans with Interest Periods
expiring prior to the date such Principal Amortization Payment is due, is at
least equal to the amount of such Principal Amortization Payment due on such
date and (e) where an Interest Period begins on a day for which there is no
numerically corresponding day in the calendar month in which the Interest
Period is to end, such Interest Period shall end on the last Business Day of
such calendar month.
"Investment" in any Person means (a) the acquisition (whether for cash,
property, services, assumption of Indebtedness, securities or otherwise) of
assets comprising all or substantially all of the assets of any Person or of
a division or business unit of a Person (other than equipment, inventory and
supplies in the ordinary course of business and other than any acquisition
of assets constituting a Consolidated Capital Expenditure), Capital Stock,
bonds, notes, debentures, partnership, joint ventures or other ownership
interests or other securities of such other Person or (b) any deposit with,
or advance, loan or other extension of credit to, such Person (other than
deposits made in connection with the purchase of equipment inventory and
supplies in the ordinary course of business) or (c) any other capital
contribution to or investment in such Person, including, without limitation,
any Guaranty Obligations (including any support for a letter of credit
issued on behalf of such Person) incurred for the benefit of such Person,
but excluding any Restricted Payment to such Person.
"Involuntary Disposition" shall have the meaning assigned to such term
in Section 7.6(b).
"Issuing Lender" means Bank of America, N.A., and its successors in such
capacity as provided in Section 11.3(h).
"Issuing Lender Fees" shall have the meaning assigned to such term in
Section 3.5(b)(ii).
"Joinder Agreement" means a Joinder Agreement substantially in the form
of Exhibit 7.12.
"Lender" means any of the Persons identified as a "Lender" on the
signature pages hereto, and any Person which may become a Lender by way of
assignment in accordance with the terms hereof, together with their
successors and permitted assigns.
"Letter of Credit" means (i) any letter of credit issued by the Issuing
Lender for the account of any Credit Party in accordance with the terms of
Section 2.2 and (ii) any Existing Letter of Credit, as such Letter of Credit
or Existing Letter of Credit may be amended, modified, extended, renewed or
replaced.
"Letter of Credit Fee" shall have the meaning assigned to such term in
Section 3.5(b)(i).
"Leverage Ratio" means, as of the end of any fiscal quarter of
the Consolidated Parties for the four fiscal quarter period ending on
such date with respect to the Consolidated Parties on a consolidated
basis, the ratio of (a) Funded Debt of the Consolidated Parties on a
consolidated basis on the last day of such period to (b) Consolidated
EBITDA for such period.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, security interest, encumbrance, lien (statutory or otherwise),
preference, priority or charge of any kind, including, without limitation,
any agreement to give any of the foregoing, any conditional sale or other
title retention agreement, and any lease in the nature thereof.
"Loan" or "Loans" means the Revolving Loans, the Tranche A Term Loans
and/or the Tranche B Term Loans (or a portion of any Revolving Loan, any
Tranche A Term Loan or Tranche B Term Loan bearing interest at the Adjusted
Base Rate or the Adjusted Eurodollar Rate and referred to as a Base Rate
Loan or a Eurodollar Loan) and/or the Swingline Loans (or any Swingline Loan
bearing interest at the Adjusted Base Rate and referred to as a Base Rate
Loan), individually or collectively, as appropriate.
"LOC Commitment" means the commitment of the Issuing Lender to issue
Letters of Credit in an aggregate face amount at any time outstanding
(together with the amounts of any unreimbursed drawings thereon) of up to
the LOC Committed Amount.
"LOC Committed Amount" shall have the meaning assigned to such term in
Section 2.2.
"LOC Documents" means, with respect to any Letter of Credit, such Letter
of Credit, any amendments thereto, any documents delivered in connection
therewith, any application therefor, and any agreements, instruments,
guarantees or other documents (whether general in application or applicable
only to such Letter of Credit) governing or providing for (a) the rights and
obligations of the parties concerned or at risk of (b) any collateral
security for such obligations.
"LOC Obligations" means, at any time, the sum of (a) the maximum amount
which is, or at any time thereafter may become, available to be drawn under
Letters of Credit then outstanding, assuming compliance with all
requirements for drawings referred to in such Letters of Credit plus (b) the
aggregate amount of all drawings under Letters of Credit honored by the
Issuing Lender but not theretofore reimbursed by the Borrower.
"London Interbank Offered Rate" means, for any Eurodollar Loan for any
Interest Period therefor, the rate per annum (rounded upwards, if necessary,
to the nearest 1/100th of 1%) in each case determined by the Agent to be
equal to:
(i) the offered rate that appears on the Dow ▇▇▇▇▇ Telerate Screen
Page 3750 (or any successor page) that displays an average British
Bankers Association Interest Settlement Rate for deposits in Dollars
(for delivery on the first day of the applicable Interest Period) for a
term equivalent to the applicable Interest Period at approximately 11:00
a.m. (London time) two Business Days prior to the first day of the
applicable Interest Period; or
(ii) if for any reason the foregoing rate in clause (i) is
unavailable or undeterminable, the offered rate on such other page or
other service that displays an average British Bankers Association
Interest Settlement Rate for deposits in Dollars (for delivery on the
first day of the applicable Interest Period) for a term equivalent to
the applicable Interest Period at approximately 11:00 a.m. (London time)
two Business Days prior to the first day of the applicable Interest
Period; or
(iii) if for any reason the foregoing rates in clauses (i) and (ii)
are unavailable or undeterminable, the rate of interest at which
deposits in Dollars for delivery on the first day of the applicable
Interest Period in same day funds in the approximate amount of the
applicable Eurodollar Loan for a term equivalent to the applicable
Interest Period would be offered by the London branch of Bank of America
to major banks in the London interbank Dollar market at approximately
11:00 a.m. (London time) two Business Days prior to the first day of the
applicable Interest Period.
"Material Adverse Effect" means a material adverse effect on (a) the
operations, condition (financial or otherwise) or business of the Borrower
and its Subsidiaries taken as a whole, (b) the ability of the Borrower,
individually, or the Credit Parties, taken as a whole, to perform its or
their obligations, when such obligations are required to be performed, under
this Credit Agreement or any of the other Credit Documents, or (c) the
validity or enforceability of this Credit Agreement, any of the other Credit
Documents, or the rights and remedies of the Lenders hereunder or thereunder
taken as a whole.
"Materials of Environmental Concern" means any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated as
such in or under any Environmental Laws, including, without limitation,
asbestos, polychlorinated biphenyls and urea-formaldehyde insulation.
"Maturity Date" means (i) as to the Revolving Loans and Letters of
Credit (and the related LOC Obligations), the Swingline Loans and the
Tranche A Term Loan, July 20, 2006 and (ii) as to the Tranche B Term Loan,
July 20, 2007.
"Medicaid" means that means-tested entitlement program under Title XIX
of the Social Security Act that provides federal grants to states for
medical assistance based on specific eligibility criteria. (Social Security
Act of 1965, Title XIX, P.L. 89-87, as amended; 42 U.S.C. 1396 et seq.).
"Medicaid Regulations" means, collectively, (i) all federal statutes
(whether set forth in Title XIX of the Social Security Act or elsewhere)
affecting the medical assistance program established by Title XIX of the
Social Security Act and any statutes succeeding thereto; (ii) all applicable
provisions of all federal rules, regulations, manuals and orders of all
Governmental Authorities promulgated pursuant to or in connection with the
statutes described in clause (i) above and all federal administrative,
reimbursement and other guidelines of all Governmental Authorities having
the force of law promulgated pursuant to or in connection with the statutes
described in clause (i) above; (iii) all state statutes and plans for
medical assistance enacted in connection with the statutes and provisions
described in clauses (i) and (ii) above; and (iv) all applicable provisions
of all rules, regulations, manuals and orders of all Governmental
Authorities promulgated pursuant to or in connection with the statutes
described in clause (iii) above and all state administrative, reimbursement
and other guidelines of all Governmental Authorities having the force of law
promulgated pursuant to or in connection with the statutes described in
clause (ii) above, in each case as may be amended, supplemented or otherwise
modified from time to time.
"Medical Reimbursement Programs" means the Medicare, Medicaid and
CHAMPUS programs and any other health care program operated by or financed
in whole or in part by any federal, state or local government.
"Medicare" means that government-sponsored entitlement program under
Title XVIII of the Social Security Act that provides for a health insurance
system for eligible elderly and disabled individuals. (Social Security Act
of 1965, Title XVIII, P.L. 89-87 as amended; 42 U.S.C. 1395 et seq.).
"Medicare Regulations" means, collectively, all federal statutes
(whether set forth in Title XVIII of the Social Security Act or elsewhere)
affecting the health insurance program for the aged and disabled established
by Title XVIII of the Social Security Act and any statutes succeeding
thereto; together with all applicable provisions of all rules, regulations,
manuals and orders and administrative, reimbursement and other guidelines
having the force of law of all Governmental Authorities (including, without
limitation, the Department of Health and Human Services ("HHS"), HCFA, the
Office of the Inspector General for HHS, or any person succeeding to the
functions of any of the foregoing) promulgated pursuant to or in connection
with any of the foregoing having the force of law, as each may be amended,
supplemented or otherwise modified from time to time.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc., or any successor or
assignee of the business of such company in the business of rating
securities.
"Multiemployer Plan" means a Plan covered by Title IV of ERISA which is
a multiemployer plan as defined in Section 3(37) or 4001(a)(3) of ERISA.
"Multiple Employer Plan" means a Plan covered by Title IV of ERISA,
other than a Multiemployer Plan, with respect to which any Credit Party or
any of its Subsidiaries or any ERISA Affiliate and at least one employer
other than a Credit Party or any of its Subsidiaries or any ERISA Affiliate
are contributing sponsors.
"Net Cash Proceeds" means the aggregate proceeds paid in cash or Cash
Equivalents received by any Consolidated Party in respect of any Asset
Disposition, Equity Issuance, Debt Issuance or Involuntary Disposition, net
of (a) direct costs (including, without limitation, legal, accounting and
investment banking fees, and sales commissions) and (b) taxes paid or
payable as a result thereof; it being understood that "Net Cash Proceeds"
shall include, without limitation, any cash or Cash Equivalents received
upon the sale or other disposition of any non-cash consideration received by
any such Consolidated Party in any Asset Disposition, Equity Issuance, Debt
Issuance or Involuntary Disposition.
"Note" or "Notes" means the Revolving Loan Notes, the Tranche A Term
Notes, and the Tranche B Term Notes, if any, individually or collectively,
as appropriate.
"Notice of Borrowing" means a request by the Borrower for a Revolving
Loan, in the form of Exhibit 2.1(b).
"Notice of Extension/Conversion" means the written notice of extension
or conversion in substantially the form of Exhibit 3.2, as required by
Section 3.2.
"Operating Lease" means, as to any Person, any lease of any property
(whether real, personal or mixed) by that Person as lessee which, in
accordance with GAAP, is or should be accounted for as an operating lease.
"Participation Interest" means a purchase by a Lender of a participation
in Letters of Credit or LOC Obligations as provided in Section 2.2, in
Swingline Loans as provided in Section 2.3 or in any Loans as provided in
Section 3.14.
"PBGC" means the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA and any successor thereto.
"Permitted Acquisition" shall mean an Acquisition by the Borrower or any
Subsidiary of the Borrower, provided that (a) the capital stock or property
acquired in such Acquisition relates to a line of business similar to the
business of the Borrower and its Subsidiaries engaged in on the Closing Date
or a reasonable extension or expansion thereof or a business ancillary
thereto; (b) in the case of an Acquisition of the capital stock of another
Person, (i) the board of directors (or other comparable governing body) of
such other Person shall have duly approved such Acquisition and (ii) such
Person shall become a wholly-owned direct or indirect Subsidiary of the
Borrower (c) if the aggregate consideration for such Acquisition, exceeds
$25,000,000, the Borrower shall have delivered to the Agent, not less than
10 days prior to the consummation of such Acquisition, a pro forma
certificate of a Responsible Officer demonstrating that, upon giving effect
to such Acquisition on a pro forma basis as though it had occurred on the
first day of the relevant calculation period, the Borrower shall be in
compliance with all of the covenants set forth in Section 7.11; (d) the
representations and warranties made by the Borrower herein shall be true and
correct in all material respects at and as if made as of the date of such
Acquisition (after giving effect thereto) except to the extent such
representations and warranties expressly relate to an earlier date and no
Default or Event of Default exists as of the date of such Acquisition (after
giving effect thereto) and (e) the aggregate consideration (including cash
and non-cash consideration and any assumption of Indebtedness) for all
Acquisitions occurring after the Closing Date shall not exceed $100,000,000
during any fiscal year.
"Permitted Asset Disposition" means (i) any Asset Disposition permitted
by Section 8.5 and (ii) any Excluded Asset Disposition.
"Permitted Investments" means Investments which are (a) cash or Cash
Equivalents, (b) accounts receivable created, acquired or made in the
ordinary course of business and payable or dischargeable in accordance with
customary trade terms, (c) inventory, raw materials and general intangibles
acquired in the ordinary course of business, (d) Investments by one Credit
Party in another Credit Party; (e) Investments in notes receivables and
loans to directors, officers or employees of a Credit Party in the ordinary
course of business for reasonable business expenses, not to exceed
$2,000,000 in the aggregate, at any one time outstanding, (f) Investments in
Capital Expenditures, (g) Permitted Acquisitions, (h) Investments existing
on the date hereof and set forth on Schedule 1.1(a), and (i) other
Investments not to exceed $10,000,000, in the aggregate, at any one time
outstanding.
"Permitted Liens" means:
(i) Liens in favor of the Agent to secure the Credit Party
Obligations;
(ii) Liens (other than Liens created or imposed under ERISA) for
taxes, assessments or governmental charges or levies not yet due or
Liens for taxes being contested in good faith by appropriate proceedings
for which adequate reserves determined in accordance with GAAP have been
established (and as to which the Property subject to any such Lien is
not yet subject to foreclosure, sale or loss on account thereof);
(iii) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and suppliers and other Liens
imposed by law or pursuant to customary reservations or retentions of
title arising in the ordinary course of business, provided that such
Liens secure only amounts not yet due and payable or, if due and
payable, are unfiled and no other action has been taken to enforce the
same or are being contested in good faith by appropriate proceedings for
which adequate reserves determined in accordance with GAAP have been
established (and as to which the Property subject to any such Lien is
not yet subject to foreclosure, sale or loss on account thereof);
(iv) Liens (other than Liens created or imposed under ERISA)
incurred or deposits made by any Consolidated Party in the ordinary
course of business in connection with workers' compensation,
unemployment insurance and other types of social security, or to secure
the performance of tenders, statutory obligations, bids, leases,
government contracts, performance and return-of-money bonds and other
similar obligations (exclusive of obligations for the payment of
borrowed money);
(v) Liens in connection with attachments or judgments (including
judgment or appeal bonds) provided that the judgments secured shall,
within 30 days after the entry thereof, have been discharged or
execution thereof stayed pending appeal, or shall have been discharged
within 30 days after the expiration of any such stay;
(vi) easements, rights-of-way, restrictions (including zoning
restrictions), minor defects or irregularities in title and other
similar charges or encumbrances not, in any material respect, impairing
the use or value of the encumbered Property for its intended purposes;
(vii) Liens on Property of any Person securing purchase money
Indebtedness (including Capital Leases and Synthetic Leases) of such
Person permitted under Section 8.1(c), provided that any such Lien
attaches to such Property concurrently with or within 90 days after the
acquisition thereof;
(viii) leases or subleases granted to others not interfering in any
material respect with the business of any Consolidated Party;
(ix) any interest of title of a lessor under, and Liens arising from
UCC financing statements (or equivalent filings, registrations or
agreements in foreign jurisdictions) relating to, leases permitted by
this Credit Agreement;
(x) Liens deemed to exist in connection with Investments in
repurchase agreements permitted under Section 8.6;
(xi) normal and customary rights of setoff upon deposits of cash in
favor of banks or other depository institutions;
(xii) Liens of a collection bank arising under Section 4-210 of the
Uniform Commercial Code on items in the course of collection;
(xiii) Liens of sellers of goods to the Borrower and any of its
Subsidiaries arising under Article 2 of the Uniform Commercial Code or
similar provisions of applicable law in the ordinary course of business,
covering only the goods sold and securing only the unpaid purchase price
for such goods and related expenses;
(xiv) Liens existing on any Property prior to the acquisition
thereof by the Borrower or any Subsidiary or existing on any property or
asset of any Person that becomes a Subsidiary after the date hereof
prior to the time such Person becomes a Subsidiary; provided that (i)
such Lien is not created in contemplation of or in connection with such
acquisition or such Person becoming a Subsidiary, as the case may be,
(ii) such Lien shall not apply to any other property or assets of the
Borrower or any Subsidiary and (iii) such Lien shall secure only those
obligations which it secures on the date of such acquisition or the date
such Person becomes a Subsidiary, as the case may be, and extensions,
renewals and replacements thereof that do not increase the outstanding
principal amount thereof; and
(xv) Liens existing as of the Closing Date and set forth on Schedule
1.1(b); provided that (a) no such Lien shall at any time be extended to
or cover any Property other than the Property subject thereto on the
Closing Date and (b) the principal amount of the Indebtedness secured by
such Liens shall not be extended, renewed, refunded or refinanced.
"Person" means any individual, partnership, joint venture, firm,
corporation, limited liability company, association, trust or other
enterprise (whether or not incorporated), or any Governmental Authority.
"Plan" means any employee benefit plan (as defined in Section 3(3) of
ERISA) which is subject to Title I (other than Subtitle A or Part 1 of
Subtitle B thereof) or Title IV of ERISA and with respect to which any
Credit Party or any of its Subsidiaries or any ERISA Affiliate is (or, if
such plan were terminated at such time, would under Section 4069 of ERISA be
deemed to be) an "employer" within the meaning of Section 3(5) of ERISA.
"Pledge Agreement" means the pledge agreement dated as of the Closing
Date in the form of Exhibit 1.1(a) to be executed in favor of the Agent by
each of the Credit Parties, as amended, modified, restated or supplemented
from time to time.
"Prime Rate" means, for any day, the rate of interest in effect for such
day as publicly announced from time to time by Bank of America as its "prime
rate." Such rate is a rate set by Bank of America based upon various factors
including Bank of America's costs and desired return, general economic
conditions and other factors, and is used as a reference point for pricing
some loans, which may be priced at, above, or below such announced rate. Any
change in such rate announced by Bank of America shall take effect at the
opening of business on the day specified in the public announcement of such
change.
"Principal Amortization Payment" means a principal payment on the
Tranche A Term Loans as set forth in Section 2.4(d) or on the Tranche B Term
Loans as set forth in Section 2.5(d).
"Principal Amortization Payment Date" means the date a Principal
Amortization Payment is due.
"Property" means any interest in any kind of property or asset, whether
real, personal or mixed, or tangible or intangible.
"Qui Tam Litigation" means that certain qui tam litigation filed on
behalf of the United States of America against the Borrower, which, as of
the Closing Date, is being investigated by the United States Attorney's
Office in Los Angeles, California, as such litigation is further described
in Schedule 6.9.
"Register" shall have the meaning assigned to such term in Section
11.3(c).
"Regulation T, U, or X" means Regulation T, U or X, respectively, of the
Board of Governors of the Federal Reserve System as from time to time in
effect and any successor to all or a portion thereof.
"Rental Equipment" means all medical equipment rented to patients for
use in their homes or held by the Borrower and its Subsidiaries for such use
and any other rental equipment required in accordance with GAAP to be stated
as such on the consolidated balance sheet of the Borrower.
"Reportable Event" means a "reportable event" as defined in Section 4043
of ERISA with respect to which the notice requirements to the PBGC have not
been waived.
"Required Lenders" means, at any time, Lenders (other than Defaulting
Lenders) holding in the aggregate more than 50 percent (50%) of (i) the
Revolving Commitments (and Participation Interests therein), the outstanding
Tranche A Term Loans (and Participation Interests therein) and the
outstanding Tranche B Term Loans (and Participation Interests therein) or
(ii) if the Revolving Commitments have been terminated, the outstanding
Loans, LOC Obligations and Participation Interests (including the
Participation Interests of the Issuing Lender in any Letters of Credit and
the Participation Interests of the Swingline Lender in any Swingline Loans).
"Requirement of Law" means, as to any Person, the articles or
certificate of incorporation and by-laws or other organizational or
governing documents of such Person, and any law, treaty, rule or regulation
or final, non-appealable determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such
Person or to which any of its material property is subject.
"Responsible Officer" means the Chief Executive Officer, President and
Chief Operating Officer and Executive Vice President and Chief Financial
Officer (or principal accounting and finance officer) or other duly
authorized officer.
"Restricted Payment" means (i) any dividend or other payment or
distribution, direct or indirect, on account of any shares of any class of
Capital Stock of any Consolidated Party, now or hereafter outstanding
(including without limitation any payment in connection with any
dissolution, merger, consolidation or disposition involving any Consolidated
Party), or to the holders, in their capacity as such, of any shares of any
class of Capital Stock of any Consolidated Party, now or hereafter
outstanding (other than dividends or distributions payable in Capital Stock
of the applicable Person or to any Credit Party (directly or indirectly
through Subsidiaries)), (ii) any redemption, retirement, sinking fund or
similar payment, purchase or other acquisition for value, direct or
indirect, of any shares of any class of Capital Stock of any Consolidated
Party, now or hereafter outstanding, (iii) any payment made to retire, or to
obtain the surrender of, any outstanding warrants, options or other rights
to acquire shares of any class of Capital Stock of any Consolidated Party,
now or hereafter outstanding.
"Revolving Commitment" means, with respect to each Lender, the
commitment of such Lender (i) to make Revolving Loans in accordance with the
provisions of Section 2.1(a), (ii) to purchase Participation Interests in
Letters of Credit in accordance with the provisions of Section 2.2(c) and
(iii) to purchase Participation Interests in the Swingline Loans in
accordance with the provisions of Section 2.3, in an aggregate principal
amount not to exceed such Lender's Revolving Committed Amount.
"Revolving Committed Amount" means (i) with regard to the Lenders
collectively, the aggregate maximum amount of Revolving Loans as may be
reduced from time to time as provided in Section 3.4 and (ii) with regard to
each Lender, the amount of such Lender's Revolving Commitment, as such
amount may be reduced from time to time as provided in Section 3.4. The
initial Revolving Committed Amount of each Lender is set forth on Schedule
2.1(a).
"Revolving Loan Commitment Percentage" means, for each Lender, the
percentage identified as its Revolving Commitment Percentage on Schedule
2.1(a), as such percentage may be modified in connection with any assignment
made in accordance with the provisions of Section 11.3.
"Revolving Loans" means the Revolving Loans made to the Borrower
pursuant to Section 2.1.
"Revolving Note" or "Revolving Notes" means the promissory notes of the
Borrower in favor of each of the Lenders evidencing the Revolving Loans
provided pursuant to Section 2.1, individually or collectively, as
appropriate, as such promissory notes may be amended, modified,
supplemented, extended, renewed or replaced from time to time and as
evidenced in the form of Exhibit 2.1(e).
"S&P" means Standard & Poor's Ratings Group, a division of McGraw Hill,
Inc., or any successor or assignee of the business of such division in the
business of rating securities.
"Sale and Leaseback Transaction" means any arrangement pursuant to which
any Consolidated Party, directly or indirectly, becomes liable as lessee,
guarantor or other surety with respect to any lease, whether an Operating
Lease or a Capital Lease, of any Property (a) which such Consolidated Party
has sold or transferred (or is to sell or transfer) to a Person which is not
a Consolidated Party or (b) which such Consolidated Party intends to use for
substantially the same purpose as any other Property which has been sold or
transferred (or is to be sold or transferred) by such Consolidated Party to
another Person which is not a Consolidated Party in connection with such
lease.
"Securities Act" means the Securities Act of 1933, as amended, and all
regulations issued pursuant thereto.
"Securities Exchange Act" means the Securities Exchange Act of 1934, as
amended, and all regulations issued pursuant thereto.
"Security Agreement" means the security agreement dated as of the
Closing Date in the form of Exhibit 1.1(b) to be executed in favor of the
Agent by each of the Credit Parties, as amended, modified, restated or
supplemented from time to time.
"Senior Subordinated Notes" means those certain 9 1/2% Senior
Subordinated Notes due November 1, 2002.
"Single Employer Plan" means any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan or a Multiple Employer Plan.
"Social Security Act" means the Social Security Act as set forth in
Title 42 of the United States Code, as amended, and any successor statute
thereto, as interpreted by the rules and regulations issued thereunder, in
each case as in effect from time to time. References to sections of the
Social Security Act shall be construed also to refer to any successor
sections.
"▇▇▇▇▇ I and II" means Section 1877 of the Social Security Act as set
forth at Section 1395nn of Title 42 of the United States Code, as amended,
and any successor statute thereto, as interpreted by the rules and
regulations issued thereunder, in each case as in effect from time to time.
"Subordinated Indebtedness" means up to $200,000,000 of Indebtedness of
the Borrower (a) having a maturity of not less than 7 years, (b) no
scheduled amortization and (c) containing other terms, including
subordination provisions, reasonably acceptable to the Administrative Agent
and the Required Lenders.
"Subsidiary" means, as to any Person, (a) any corporation more than 50%
of whose stock of any class or classes having by the terms thereof ordinary
voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time, any class or classes of such
corporation shall have or might have voting power by reason of the happening
of any contingency) is at the time owned by such Person directly or
indirectly through Subsidiaries, (b) any partnership, association, joint
venture or other entity in which such person directly or indirectly through
Subsidiaries has more than a 50% equity interest at any time or (c) any
other entity whose financial information is consolidated with the Borrower's
financial statements in accordance with GAAP.
"Swingline Commitment" means the commitment of the Swingline Lender to
make Swingline Loans in an aggregate principal amount at any time
outstanding of up to the Swingline Committed Amount.
"Swingline Committed Amount" shall have the meaning assigned to such
term in Section 2.3(a).
"Swingline Lender" means Bank of America, N.A.
"Swingline Loan" shall have the meaning assigned to such term in Section
2.3(a).
"Synthetic Lease" means any synthetic lease, tax retention operating
lease, off-balance sheet loan or similar off-balance sheet financing product
where such transaction is considered borrowed money indebtedness for tax
purposes but is classified as an Operating Lease under GAAP.
"Taxes" shall have the meaning assigned to such term in Section 3.11(a).
"Tranche A Term Loan" shall have the meaning assigned to such term in
Section 2.4(a).
"Tranche A Term Loan Commitment" means, with respect to each Lender, the
commitment of such Lender to make its portion of the Tranche A Term Loan in
a principal amount equal to such Lender's Tranche A Term Loan Committed
Amount.
"Tranche A Term Loan Committed Amount" means (i) with regard to the
Lenders collectively, the aggregate amount of the Tranche A Term Loan, as
referenced in Section 2.4(a) and (ii) with regard to each Lender, the amount
of such Lender's Tranche A Term Loan Commitment, as set forth on Schedule
2.1(a).
"Tranche A Term Loan Percentage" means, for any Lender, the percentage
identified as its Tranche A Term Loan Percentage on Schedule 2.1(a), as such
percentage may be modified in connection with any assignment made in
accordance with the provisions of Section 11.3.
"Tranche A Term Note" or "Tranche A Term Notes" means the promissory
notes of the Borrower in favor of each Lender provided pursuant to Section
2.4(f) and evidencing the Tranche A Term Loans of such Lender, individually
or collectively, as appropriate, as such promissory notes may be amended,
modified, restated, supplemented, extended, renewed or replaced from time to
time.
"Tranche B Term Loan" shall have the meaning assigned to such term in
Section 2.5(a). "Tranche B Term Loan Commitment" means, with respect to each
Lender, the commitment of such Lender to make its portion of the Tranche B
Term Loan in a principal amount equal to such Lender's Tranche B Term Loan
Committed Amount. "Tranche B Term Loan Committed Amount" means (i) with
regard to the Lenders collectively, the aggregate amount of the Tranche B
Term Loan, as referenced in Section 2.5(a), and (ii) with regard to each
Lender, the amount of such Lender's Tranche B Term Loan Commitment, as set
forth on Schedule 2.1(a). "Tranche B Term Loan Percentage" means, for any
Lender, the percentage identified as its Tranche B Term Loan Percentage on
Schedule 2.1(a), as such percentage may be modified in connection with any
assignment made in accordance with the provisions of Section 11.3. "Tranche
B Term Note" or "Tranche B Term Notes" means the promissory notes of the
Borrower in favor of each Lender provided pursuant to Section 2.5(f) and
evidencing the Tranche B Term Loans of such Lender, individually or
collectively, as appropriate, as such promissory notes may be amended,
modified, restated, supplemented, extended, renewed or replaced from time to
time.
"Unused Revolving Committed Amount" means, for any period, the amount by
which (a) the then applicable Revolving Committed Amount exceeds (b) the
daily average sum for such period of (i) the outstanding aggregate principal
amount of all Revolving Loans (but not including any Swingline Loans) plus
(ii) the outstanding aggregate principal amount of all LOC Obligations.
"Voting Stock" means, with respect to any Person, Capital Stock issued
by such Person the holders of which are ordinarily, in the absence of
contingencies, entitled to vote for the election of directors (or persons
performing similar functions) of such Person, even though the right so to
vote has been suspended by the happening of such a contingency.
"Wholly Owned Subsidiary" means any Person 100% of whose Voting Stock is
at the time owned by the Borrower directly or indirectly through other
Persons 100% of whose Voting Stock is at the time owned, directly or
indirectly, by the Borrower.
1.2 COMPUTATION OF TIME PERIODS AND OTHER DEFINITIONAL PROVISIONS.
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For purposes of computation of periods of time hereunder, the word "from"
means "from and including" and the words "to" and "until" each mean "to but
excluding." References in this Credit Agreement to "Articles", "Sections",
"Schedules" or "Exhibits" shall be to Articles, Sections, Schedules or Exhibits
of or to this Credit Agreement unless otherwise specifically provided.
1.3 ACCOUNTING TERMS.
---------------------
Except as otherwise expressly provided herein, all accounting terms used
herein shall be interpreted, and all financial statements and certificates and
reports as to financial matters required to be delivered to the Lenders
hereunder shall be prepared, in accordance with GAAP applied on a consistent
basis. All calculations made for the purposes of determining compliance with
this Credit Agreement shall (except as otherwise expressly provided herein) be
made by application of GAAP applied on a basis consistent with the most recent
annual or quarterly financial statements delivered pursuant to Section 7.1;
provided, however, if (a) the Borrower shall object to determining such
compliance on such basis at the time of delivery of such financial statements
due to any change in GAAP or the rules promulgated with respect thereto or (b)
either the Agent or the Required Lenders shall so object in writing within 60
days after delivery of such financial statements (or after the Lenders have been
informed of the change in GAAP affecting such financial statements, if later,
and the impact of such change), then such calculations shall be made on a basis
consistent with the most recent financial statements delivered by the Borrower
to the Lenders as to which no such objection shall have been made.
SECTION 2
CREDIT FACILITIES
-----------------
2.1 REVOLVING LOANS.
--------------------
(a) Revolving Commitment. Subject to the terms and conditions hereof and
in reliance upon the representations and warranties set forth herein, each
Lender severally agrees to make available to the Borrower such Lender's
Revolving Commitment Percentage of revolving credit loans requested by the
Borrower in Dollars ("Revolving Loans") from time to time from the Closing
Date until the Maturity Date, or such earlier date as the Revolving
Commitments shall have been terminated as provided herein; provided,
however, that the sum of the aggregate outstanding principal amount of
Revolving Loans shall not exceed ONE HUNDRED MILLION DOLLARS ($100,000,000)
(as such aggregate maximum amount may be reduced from time to time as
provided in Section 3.4, the "Revolving Committed Amount"); provided,
further, (A) with regard to each Lender individually, such Lender's
outstanding Revolving Loans shall not exceed such Lender's Revolving
Committed Amount, and (B) the sum of the aggregate outstanding principal
amount of Revolving Loans plus LOC Obligations plus Swingline Loans shall
not exceed the aggregate Revolving Committed Amount. Revolving Loans may
consist of Base Rate Loans or Eurodollar Loans, or a combination thereof, as
the Borrower may request; provided, however, that no more than 8 Eurodollar
Loans shall be outstanding hereunder at any time (it being understood that,
for purposes hereof, Eurodollar Loans with different Interest Periods shall
be considered as separate Eurodollar Loans, even if they begin on the same
date, although borrowings, extensions and conversions may, in accordance
with the provisions hereof, be combined at the end of existing Interest
Periods to constitute a new Eurodollar Loan with a single Interest Period).
Revolving Loans hereunder may be repaid and reborrowed in accordance with
the provisions hereof.
(b) Revolving Loan Borrowings.
(i) Notice of Borrowing. The Borrower shall request a Revolving Loan
borrowing by written notice (or telephonic notice promptly confirmed
with a written Notice of Borrowing) to the Agent not later than 2:00
P.M. (Charlotte, North Carolina time) on the Business Day prior to the
date of the requested borrowing in the case of Base Rate Loans, and on
the third Business Day prior to the date of the requested borrowing in
the case of Eurodollar Loans. Each such request for borrowing shall be
irrevocable and shall specify (A) that a Revolving Loan is requested,
(B) the date of the requested borrowing (which shall be a Business Day),
(C) the aggregate principal amount to be borrowed, and (D) whether the
borrowing shall be comprised of Base Rate Loans, Eurodollar Loans or a
combination thereof, and if Eurodollar Loans are requested, the Interest
Period(s) therefor. A form of Notice of Borrowing (a "Notice of
Borrowing") is attached as Exhibit 2.1(b). If the Borrower shall fail to
specify in any such Notice of Borrowing (I) an applicable Interest
Period in the case of a Eurodollar Loan, then such notice shall be
deemed to be a request for an Interest Period of one month, or (II) the
type of Revolving Loan requested, then such notice shall be deemed to be
a request for a Base Rate Loan hereunder. The Agent shall give notice to
each affected Lender promptly upon receipt of each Notice of Borrowing
pursuant to this Section 2.1(b)(i), the contents thereof and each such
Lender's share of any borrowing to be made pursuant thereto.
(ii) Minimum Amounts. Each Eurodollar Loan or Base Rate Loan that is
a Revolving Loan shall be in a minimum aggregate principal amount of
$1,000,000 and integral multiples of $500,000 in excess thereof (or the
remaining amount of the Revolving Committed Amount, if less).
(iii) Advances. Each Lender will make its Revolving Commitment
Percentage of each Revolving Loan borrowing available to the Agent for
the account of the Borrower as specified in Section 3.15(a), or in such
other manner as the Agent may specify in writing, by 2:00 P.M.
(Charlotte, North Carolina time) on the date specified in the applicable
Notice of Borrowing in Dollars and in funds immediately available to the
Agent. Such borrowing will then be made available to the Borrower by the
Agent by crediting the account of the Borrower on the books of such
office with the aggregate of the amounts made available to the Agent by
the Lenders and in like funds as received by the Agent.
(c) Repayment. The principal amount of all Revolving Loans shall be due
and payable in full on the Maturity Date, unless accelerated
sooner pursuant to Section 9.2.
(d) Interest. Subject to the provisions of Section 3.1,
(i) Base Rate Loans. During such periods as Revolving Loans shall be
comprised in whole or in part of Base Rate Loans, such Base Rate Loans
shall bear interest at a per annum rate equal to the Adjusted Base Rate.
(ii) Eurodollar Loans. During such periods as Revolving Loans shall
be comprised in whole or in part of Eurodollar Loans, such Eurodollar
Loans shall bear interest at a per annum rate equal to the Adjusted
Eurodollar Rate.
Interest on Revolving Loans shall be payable in arrears on each applicable
Interest Payment Date (or at such other times as may be specified herein).
(e) Revolving Notes. The Revolving Loans made by each Lender may, upon
the request of a Lender, be evidenced by a duly executed promissory note of
the Borrower to such Lender in an original principal amount equal to such
Lender's Revolving Commitment Percentage of the Revolving Committed Amount
and in substantially the form of Exhibit 2.1(e).
2.2 LETTER OF CREDIT SUBFACILITY.
---------------------------------
(a) Issuance. Subject to the terms and conditions hereof and in reliance
upon the representations and warranties set forth herein, the Issuing Lender
agrees to issue, and each Lender with a Revolving Commitment severally
agrees to participate in the issuance by the Issuing Lender of, standby
Letters of Credit in Dollars from time to time from the Closing Date until
the date thirty (30) days prior to the Maturity Date as the Borrower may
request, in a form acceptable to the Issuing Lender; provided, however, that
(i) the LOC Obligations outstanding shall not at any time exceed TWENTY
MILLION DOLLARS ($20,000,000) (the "LOC Committed Amount") and (ii) the sum
of the aggregate outstanding principal amount of Revolving Loans plus LOC
Obligations plus Swingline Loans shall not at any time exceed the aggregate
Revolving Committed Amount. No Letter of Credit shall (x) have an original
expiry date more than one year from the date of issuance (provided that any
such Letter of Credit may contain customary "evergreen" provisions pursuant
to which the expiry date is automatically extended by a specific time period
unless the Issuing Lender gives notice to the beneficiary of such Letter of
Credit at least a specified time period prior to the expiry date then in
effect) or (y) as originally issued or as extended, have an expiry date
extending beyond the date thirty (30) days prior to the Maturity Date. Each
Letter of Credit shall comply with the related LOC Documents. The issuance
and expiry dates of each Letter of Credit shall be a Business Day.
(b) Notice and Reports. The request for the issuance of a Letter of
Credit shall be submitted by the Borrower to the Issuing Lender at least
five (5) Business Days prior to the requested date of issuance. The Issuing
Lender will, at least quarterly and more frequently upon request,
disseminate to each of the Lenders a detailed report specifying the Letters
of Credit which are then issued and outstanding and any activity with
respect thereto which may have occurred since the date of the prior report,
and including therein, among other things, the beneficiary, the face amount
and the expiry date, as well as any payment or expirations which may have
occurred.
(c) Participation. Each Lender with a Revolving Commitment, upon
issuance of a Letter of Credit (or, in the case of each Existing Letter of
Credit, on the Closing Date), shall be deemed to have purchased without
recourse a Participation Interest from the Issuing Lender in such Letter of
Credit and the obligations arising thereunder and any collateral relating
thereto, in each case in an amount equal to its pro rata share of the
obligations under such Letter of Credit (based on the respective Revolving
Commitment Percentages of the Lenders) and shall absolutely, unconditionally
and irrevocably assume and be obligated to pay to the Issuing Lender and
discharge when due, its pro rata share of the obligations arising under such
Letter of Credit. Without limiting the scope and nature of each Lender's
Participation Interest in any Letter of Credit, to the extent that the
Issuing Lender has not been reimbursed by the Borrower as required hereunder
or under any such Letter of Credit, each such Lender shall pay to the
Issuing Lender its pro rata share of such unreimbursed drawing in same day
funds on the day of notification by the Issuing Lender of an unreimbursed
drawing pursuant to the provisions of clause (d) below. The obligation of
each Lender to so reimburse the Issuing Lender shall be absolute and
unconditional and shall not be affected by the occurrence of a Default, an
Event of Default or any other occurrence or event. Any such reimbursement
shall not relieve or otherwise impair the obligation of the Borrower to
reimburse the Issuing Lender under any Letter of Credit, together with
interest as hereinafter provided.
(d) Reimbursement. In the event of any drawing under any Letter of
Credit, the Issuing Lender will promptly notify the Borrower. Unless the
Borrower shall immediately notify the Issuing Lender that the Borrower
intends to otherwise reimburse the Issuing Lender for such drawing, the
Borrower shall be deemed to have requested that the Lenders make a Revolving
Loan in the amount of the drawing as provided in clause (e) below on the
related Letter of Credit, the proceeds of which will be used to satisfy the
related reimbursement obligations. The Borrower promises to reimburse the
Issuing Lender on the day of drawing under any Letter of Credit (either with
the proceeds of a Revolving Loan obtained hereunder or otherwise) in same
day funds. If the Borrower shall fail to reimburse the Issuing Lender as
provided hereinabove, the unreimbursed amount of such drawing shall bear
interest at a per annum rate equal to the Adjusted Base Rate plus 2%. The
Borrower's reimbursement obligations hereunder shall be absolute and
unconditional under all circumstances irrespective of any rights of setoff,
counterclaim or defense to payment the Borrower may claim or have against
the Issuing Lender, the Agent, the Lenders, the beneficiary of the Letter of
Credit drawn upon or any other Person, including without limitation any
defense based on any failure of the Borrower or any other Credit Party to
receive consideration or the legality, validity, regularity or
unenforceability of the Letter of Credit. The Issuing Lender will promptly
notify the other Lenders of the amount of any unreimbursed drawing and each
Lender shall promptly pay to the Agent for the account of the Issuing Lender
in Dollars and in immediately available funds, the amount of such Lender's
pro rata share of such unreimbursed drawing. Such payment shall be made on
the day such notice is received by such Lender from the Issuing Lender if
such notice is received at or before 2:00 P.M. (Charlotte, North Carolina
time), and otherwise such payment shall be made at or before 12:00 Noon
(Charlotte, North Carolina time) on the Business Day next succeeding the day
such notice is received. If such Lender does not pay such amount to the
Issuing Lender in full upon such request, such Lender shall, on demand, pay
to the Agent for the account of the Issuing Lender interest on the unpaid
amount during the period from the date of such drawing until such Lender
pays such amount to the Issuing Lender in full at a rate per annum equal to,
if paid within two (2) Business Days of the date that such Lender is
required to make payments of such amount pursuant to the preceding sentence,
the Federal Funds Rate and thereafter at a rate equal to the Base Rate. Each
Lender's obligation to make such payment to the Issuing Lender, and the
right of the Issuing Lender to receive the same, shall be absolute and
unconditional, shall not be affected by any circumstance whatsoever and
without regard to the termination of this Credit Agreement or the
Commitments hereunder, the existence of a Default or Event of Default or the
acceleration of the obligations of the Borrower hereunder and shall be made
without any offset, abatement, withholding or reduction whatsoever.
Simultaneously with the making of each such payment by a Lender to the
Issuing Lender, such Lender shall, automatically and without any further
action on the part of the Issuing Lender or such Lender, acquire a
Participation Interest in an amount equal to such payment (excluding the
portion of such payment constituting interest owing to the Issuing Lender)
in the related unreimbursed drawing portion of the LOC Obligation and in the
interest thereon and in the related LOC Documents, and shall have a claim
against the Borrower with respect thereto.
(e) Repayment with Revolving Loans. On any day on which the Borrower
shall have requested, or been deemed to have requested, a Revolving Loan
advance to reimburse a drawing under a Letter of Credit, the Agent shall
give notice to the Lenders that a Revolving Loan has been requested or
deemed requested by the Borrower to be made in connection with a drawing
under a Letter of Credit, in which case a Revolving Loan advance comprised
of Base Rate Loans (or Eurodollar Loans to the extent the Borrower has
complied with the procedures of Section 2.1(b)(i) with respect thereto)
shall be immediately made to the Borrower by all Lenders (notwithstanding
any termination of the Commitments pursuant to Section 9.2) pro rata based
on the respective Revolving Commitment Percentages of the Lenders
(determined before giving effect to any termination of the Commitments
pursuant to Section 9.2) and the proceeds thereof shall be paid directly to
the Issuing Lender for application to the respective LOC Obligations. Each
such Lender hereby irrevocably agrees to make its pro rata share of each
such Revolving Loan immediately upon any such request or deemed request in
the amount, in the manner and on the date specified in the preceding
sentence notwithstanding (i) the amount of such borrowing may not comply
with the minimum amount for advances of Revolving Loans otherwise required
hereunder, (ii) whether any conditions specified in Section 5.2 are then
satisfied, (iii) whether a Default or an Event of Default then exists, (iv)
failure for any such request or deemed request for Revolving Loan to be made
by the time otherwise required hereunder, (v) whether the date of such
borrowing is a date on which Revolving Loans are otherwise permitted to be
made hereunder or (vi) any termination of the Commitments relating thereto
immediately prior to or contemporaneously with such borrowing. In the event
that any Revolving Loan cannot for any reason be made on the date otherwise
required above (including, without limitation, as a result of the
commencement of a proceeding under the Bankruptcy Code with respect to the
Borrower or any other Credit Party), then each such Lender hereby agrees
that it shall forthwith purchase (as of the date such borrowing would
otherwise have occurred, but adjusted for any payments received from the
Borrower on or after such date and prior to such purchase) from the Issuing
Lender such Participation Interests in the outstanding LOC Obligations as
shall be necessary to cause each such Lender to share in such LOC
Obligations ratably (based upon the respective Revolving Commitment
Percentages of the Lenders (determined before giving effect to any
termination of the Commitments pursuant to Section 9.2)), provided that at
the time any purchase of Participation Interests pursuant to this sentence
is actually made, the purchasing Lender shall be required to pay to the
Issuing Lender, to the extent not paid to the Issuing Lender by the Borrower
in accordance with the terms of clause (d) above, interest on the principal
amount of Participation Interests purchased for each day from and including
the day upon which such borrowing would otherwise have occurred to but
excluding the date of payment for such Participation Interests, at the rate
equal to, if paid within two (2) Business Days of the date of the Revolving
Loan advance, the Federal Funds Rate, and thereafter at a rate equal to the
Base Rate.
(f) Designation of Consolidated Parties as Account Parties.
Notwithstanding anything to the contrary set forth in this Credit Agreement,
including without limitation Section 2.2(a), a Letter of Credit issued
hereunder may contain a statement to the effect that such Letter of Credit
is issued for the account of any Subsidiary of the Borrower, provided that
notwithstanding such statement, the Borrower shall be the actual account
party for all purposes of this Credit Agreement for such Letter of Credit
and such statement shall not affect the Borrower's reimbursement obligations
hereunder with respect to such Letter of Credit.
(g) Renewal, Extension. The renewal or extension of any Letter of Credit
shall, For purposes hereof, be treated in all respects the same as the
issuance of a new Letter of Credit hereunder.
(h) Uniform Customs and Practices. The Issuing Lender may have the
Letters of Credit be subject to The Uniform Customs and Practice for
Documentary Credits (the "UCP") or the International Standby Practices 1998
(the "ISP98"), in either case as published as of the date of issue by the
International Chamber of Commerce, in which case the UCP or the ISP98, as
applicable, may be incorporated therein and deemed in all respects to be a
part thereof.
(i) Indemnification; Nature of Issuing Lender's Duties.
(i) In addition to its other obligations under this Section 2.2, the
Borrower hereby agrees to pay, and protect, indemnify and save each
Lender (including the Issuing Lender) harmless from and against, any and
all claims, demands, liabilities, damages, losses, costs, charges and
expenses (including reasonable attorneys' fees) that such Lender may
incur or be subject to as a consequence, direct or indirect, of (A) the
issuance of any Letter of Credit or (B) the failure of such Lender to
honor a drawing under a Letter of Credit as a result of any act or
omission, whether rightful or wrongful, of any present or future de jure
or de facto government or Governmental Authority (all such acts or
omissions, herein called "Government Acts").
(ii) As between the Borrower and the Lenders (including the Issuing
Lender), the Borrower shall assume all risks of the acts, omissions or
misuse of any Letter of Credit by the beneficiary thereof. No Lender
(including the Issuing Lender) shall be responsible: (A) for the form,
validity, sufficiency, accuracy, genuineness or legal effect of any
document submitted by any party in connection with the application for
and issuance of any Letter of Credit, even if it should in fact prove to
be in any or all respects invalid, insufficient, inaccurate, fraudulent
or forged; (B) for the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign any Letter
of Credit or the rights or benefits thereunder or proceeds thereof, in
whole or in part, that may prove to be invalid or ineffective for any
reason; (C) for errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable, telegraph,
telex or otherwise, whether or not they be in cipher; (D) for any loss
or delay in the transmission or otherwise of any document required in
order to make a drawing under a Letter of Credit or of the proceeds
thereof; and (E) for any consequences arising from causes beyond the
control of such Lender, including, without limitation, any Government
Acts. None of the above shall affect, impair, or prevent the vesting of
the Issuing Lender's rights or powers hereunder.
(iii) In furtherance and extension and not in limitation of the
specific provisions hereinabove set forth, any action taken or omitted
by any Lender (including the Issuing Lender), under or in connection
with any Letter of Credit or the related certificates, if taken or
omitted in the absence of gross negligence, willful misconduct or bad
faith, shall not put such Lender under any resulting liability to the
Borrower or any other Credit Party; provided, that the Issuing Bank
shall make payment under a Letter of Credit only in respect of a draft
that strictly conforms to the requirements thereof. It is the intention
of the parties that this Credit Agreement shall be construed and applied
to protect and indemnify each Lender (including the Issuing Lender)
against any and all risks involved in the issuance of the Letters of
Credit, all of which risks are hereby assumed by the Borrower (on behalf
of itself and each of the other Credit Parties), including, without
limitation, any and all Government Acts. No Lender (including the
Issuing Lender) shall, in any way, be liable for any failure by such
Lender or anyone else to pay any drawing under any Letter of Credit as a
result of any Government Acts or any other cause beyond the control of
such Lender.
(iv) Nothing in this clause (i) is intended to limit the
reimbursement obligations of the Borrower contained in clause (d) above.
The obligations of the Borrower under this clause (i) shall survive the
termination of this Credit Agreement. No act or omission of any current
or prior beneficiary of a Letter of Credit shall in any way affect or
impair the rights of the Lenders (including the Issuing Lender) to
enforce any right, power or benefit under this Credit Agreement.
(v) Notwithstanding anything to the contrary contained in this
clause (i), the Borrower shall have no obligation to indemnify any
Lender (including the Issuing Lender) in respect of any liability
incurred by such Lender (A) arising solely out of the gross negligence
or willful misconduct of such Lender, as determined by a court of
competent jurisdiction, or (B) caused by such Lender's failure to pay
under any Letter of Credit after presentation to it of a request
strictly complying with the terms and conditions of such Letter of
Credit, as determined by a court of competent jurisdiction, unless such
payment is prohibited by any law, regulation, court order or decree.
(j) Responsibility of Issuing Lender. It is expressly understood and
agreed that the obligations of the Issuing Lender hereunder to the Lenders
are only those expressly set forth in this Credit Agreement and that the
Issuing Lender shall be entitled to assume that the conditions precedent set
forth in Section 5.2 have been satisfied unless it shall have acquired
actual knowledge that any such condition precedent has not been satisfied;
provided, however, that nothing set forth in this Section 2.2 shall be
deemed to prejudice the right of any Lender to recover from the Issuing
Lender any amounts made available by such Lender to the Issuing Lender
pursuant to this Section 2.2 in the event that the payment with respect to a
Letter of Credit constituted gross negligence or willful misconduct on the
part of the Issuing Lender.
(k) Conflict with LOC Documents. In the event of any conflict between
this Credit Agreement and any LOC Document (including any letter of credit
application), this Credit Agreement shall control.
2.3 SWINGLINE LOANS.
---------------------
(a) Swingline Commitment. Subject to the terms and conditions hereof and
in reliance upon the representations and warranties herein set forth, the
Swingline Lender, in its individual capacity, agrees to make certain
revolving credit loans to the Borrower (each a "Swingline Loan" and,
collectively, the "Swingline Loans") from time to time from the Closing Date
until the Maturity Date for the purposes hereinafter set forth; provided,
however, (i) the aggregate principal amount of Swingline Loans outstanding
at any time shall not exceed TWENTY MILLION DOLLARS ($20,000,000) (the
"Swingline Committed Amount"), and (ii) the sum of the aggregate principal
amount of Revolving Loans outstanding plus LOC Obligations plus obligations
in respect of Swingline Loans outstanding at any time shall not exceed the
aggregate Revolving Committed Amount. Swingline Loans hereunder shall be
made as a Base Rate Loan in accordance with the provisions of this Section
2.3, and may be repaid and reborrowed in accordance with the provisions
hereof.
(b) Swingline Loan Advances.
(i) Notices; Disbursement. Whenever the Borrower desires a Swingline
Loan advance hereunder, the Borrower shall give written notice (or
telephone notice promptly confirmed in writing) to the Swingline Lender
not later than 2:00 P.M. (Charlotte, North Carolina time) on the
Business Day of the requested Swingline Loan advance. Each such notice
shall be irrevocable and shall specify (A) that a Swingline Loan advance
is requested, (B) the date of the requested Swingline Loan advance
(which shall be a Business Day) and (C) the principal amount of the
Swingline Loan advance requested. Each Swingline Loan shall be made as a
Base Rate Loan and shall have such maturity date as set forth in clause
(iii) below. The Swingline Lender shall make each Swingline Loan
available to the Borrower by 3:00 P.M., (Charlotte, North Carolina
time), on the Business Day of the requested Borrowing. The Swingline
Lender shall initiate the transfer of funds representing the Swingline
Loan advance to the Borrower by 3:00 P.M. (Charlotte, North Carolina
time) on the Business Day of the requested borrowing.
(ii) Minimum Amount. Each Swingline Loan shall be in a minimum
principal amount of $100,000 and in integral multiples of $100,000 in
excess thereof (or the remaining amount of the Swingline Committed
Amount, if less).
(iii) Repayment of Swingline Loans. The principal amount of all
Swingline Loans shall be due and payable on the earlier of (A) a date
that is seven (7) Business Days from the date of advance thereof or (B)
the Maturity Date. The Swingline Lender may, at any time, in its sole
discretion, by written notice to the Borrower and the Lenders, demand
repayment of its Swingline Loans by way of a Revolving Loan advance, in
which case the Borrower shall be deemed to have requested a Revolving
Loan advance comprised solely of Base Rate Loans in the amount of such
Swingline Loans; provided, however, that any such demand shall be deemed
to have been given one Business Day prior to the Maturity Date and on
the date of the occurrence of any Event of Default described in Section
9.1 and upon acceleration of the Indebtedness hereunder and the exercise
of remedies in accordance with the provisions of Section 9.2. Each
Lender hereby irrevocably agrees to make its pro rata share of each such
Revolving Loan in the amount, in the manner and on the date specified in
the preceding sentence notwithstanding (i) the amount of such borrowing
may not comply with the minimum amount for advances of Revolving Loans
otherwise required hereunder, (ii) whether any conditions specified in
Section 5.2 are then satisfied, (iii) whether a Default or Event of
Default then exists, (iv) failure of any such request or deemed request
for Revolving Loan to be made by the time otherwise required hereunder,
(v) whether the date of such borrowing is a date on which Revolving
Loans are otherwise permitted to be made hereunder of (vi) any
termination of the Commitments relating thereto immediately prior to or
contemporaneously with such borrowing. In the event that any Revolving
Loan cannot for any reason be made on the date otherwise required above
(including, without limitation, as a result of the commencement of a
proceeding under the Bankruptcy Code with respect to the Borrower), then
each Lender hereby agrees that it shall forthwith purchase (as of the
date such borrowing would otherwise have occurred, but adjusted for any
payments received from the Borrower on or after such date and prior to
such purchase) from the Swingline Lender such participations in the
outstanding Swingline Loans as shall be necessary to cause each such
Lender to share in such Swingline Loans ratably based upon its Revolving
Loan Commitment Percentage of the Revolving Committed Amount, provided
that (A) all interest payable on the Swingline Loans shall be for the
account of the Swingline Lender until the date as of which the
respective participation is purchased and (B) at the time any purchase
of participations pursuant to this sentence is actually made, the
purchasing Lender shall be required to pay to the Swingline Lender in
accordance with the terms of subsection (c)(ii) hereof, interest on the
principal amount of participation purchased for each day from and
including the day upon which such borrowing would otherwise have
occurred to but excluding the date of payment for such participation, at
the rate equal to the Federal Funds Rate.
(c) Interest on Swingline Loans.
(i) Subject to the provisions of Section 3.1, each Swingline Loan
shall bear interest at the rate per annum equal to the Adjusted Base
Rate in accordance with the provisions of Section 2.3(b).
(ii) Interest on Swingline Loans shall be payable in arrears on each
applicable Interest Payment Date (or at such other times as may be
specified herein).
2.4 TRANCHE A TERM LOAN.
-------------------------
(a) Tranche A Term Commitment. Subject to the terms and conditions
hereof and in reliance upon the representations and warranties set forth
herein each Lender severally agrees to make available to the Borrower on the
Closing Date such Lender's Tranche A Term Loan Percentage of a term loan in
Dollars (the "Tranche A Term Loan") in the aggregate principal amount of ONE
HUNDRED TWENTY-FIVE MILLION DOLLARS ($125,000,000) (the "Tranche A Term Loan
Committed Amount"). The Tranche A Term Loan may consist of Base Rate Loans
or Eurodollar Loans, or a combination thereof, as the Borrower may request;
provided, however, that no more than 5 Eurodollar Loans shall be outstanding
hereunder at any time (it being understood that, for purposes hereof,
Eurodollar Loans with different Interest Periods shall be considered as
separate Eurodollar Loans, even if they begin on the same date, although
borrowings, extensions and conversions may, in accordance with the
provisions hereof, be combined at the end of existing Interest Periods to
constitute a new Eurodollar Loan with a single Interest Period). Amounts
repaid on the Tranche A Term Loan may not be reborrowed.
(b) Borrowing Procedures. The Borrower shall submit an appropriate
Notice of Borrowing to the Agent not later than 2:00 P.M. (Charlotte, North
Carolina time) on the Business Day prior to the Closing Date, with respect
to the portion of the Tranche A Term Loan initially consisting of a Base
Rate Loan, or on the third Business Day prior to the Closing Date, with
respect to the portion of the Tranche A Term Loan initially consisting of
one or more Eurodollar Loans. Such Notice of Borrowing shall be irrevocable
and shall specify (i) that the funding of a Tranche A Term Loan is requested
and (ii) whether the funding of the Tranche A Term Loan shall be comprised
of Base Rate Loans, Eurodollar Loans or a combination thereof, and if
Eurodollar Loans are requested, the Interest Period(s) therefor. If the
Borrower shall fail to deliver such Notice of Borrowing to the Agent by 2:00
P.M. (Charlotte, North Carolina time) on the third Business Day prior to the
Closing Date, then the full amount of the Tranche A Term Loan shall be
disbursed on the Closing Date as a Base Rate Loan. Each Lender shall make
its Tranche A Term Loan Percentage of the Tranche A Term Loan available to
the Agent for the account of the Borrower at the office of the Agent
specified in Schedule 2.1(a), or at such other office as the Agent may
designate in writing, by 2:00 P.M. (Charlotte, North Carolina time) on the
Closing Date in Dollars and in funds immediately available to the Agent.
(c) Minimum Amounts. Each Eurodollar Loan or Base Rate Loan that is part
of the Tranche A Term Loan shall be in an aggregate principal amount that is
not less than $1,000,000 and integral multiples of $500,000 (or the then
remaining principal balance of the Tranche A Term Loan, if less).
(d) Repayment of Tranche A Term Loan. The principal amount of the
Tranche A Term Loan shall be repaid in consecutive quarterly installments,
as set forth below, payable on the last Business Day of each calendar
quarter, commencing with the quarter ending December 31, 2001, and on the
Maturity Date, unless accelerated sooner pursuant to Section 9.2:
Quarter Ending Installment Amount
-------------- ------------------
December 31, 2001 $5,500,000
March 31, 2002 $5,500,000
June 30, 2002 $5,500,000
September 30, 2002 $5,500,000
December 31, 2002 $6,000,000
March 31, 2003 $6,000,000
June 30, 2003 $6,000,000
September 30, 2003 $6,000,000
December 31, 2003 $6,000,000
March 31, 2004 $6,000,000
June 30, 2004 $6,000,000
September 30, 2004 $6,000,000
December 31, 2004 $6,750,000
March 31, 2005 $6,750,000
June 30, 2005 $6,750,000
September 30, 2005 $6,750,000
December 31, 2005 $7,000,000
March 31, 2006 $7,000,000
June 30, 2006 $7,000,000
Maturity Date $7,000,000
(e) Interest. Subject to the provisions of Section 3.1, the Tranche A
Term Loan shall bear interest at a per annum rate equal to:
(i) Base Rate Loans. During such periods as the Tranche A Term Loan
shall be comprised in whole or in part of Base Rate Loans, such Base
Rate Loans shall bear interest at a per annum rate equal to the Adjusted
Base Rate.
(ii) Eurodollar Loans. During such periods as the Tranche A Term
Loan shall be comprised in whole or in part of Eurodollar Loans, such
Eurodollar Loans shall bear interest at a per annum rate equal to the
Adjusted Eurodollar Rate.
Interest on the Tranche A Term Loan shall be payable in arrears on each
applicable Interest Payment Date (or at such other times as may be specified
herein).
(f) Tranche A Term Notes. The portion of the Tranche A Term Loan made by
each Lender may, upon the request of a Lender, be evidenced by a duly
executed promissory note of the Borrower to such Lender in an original
principal amount equal to such Lender's Tranche A Term Loan Percentage of
the Tranche A Term Loan and substantially in the form of Exhibit 2.4(f).
2.5 TRANCHE B TERM LOAN.
------------------------
(a) Tranche B Term Commitment. Subject to the terms and conditions
hereof and in reliance upon the representations and warranties set forth
herein, each Lender severally agrees to make available to the Borrower on
the Closing Date such Lender's Tranche B Term Loan Percentage of a term loan
in Dollars (the "Tranche B Term Loan") in the aggregate principal amount of
ONE HUNDRED SEVENTY-FIVE MILLION DOLLARS ($175,000,000) (the "Tranche B Term
Loan Committed Amount"). The Tranche B Term Loan may consist of Base Rate
Loans or Eurodollar Loans, or a combination thereof, as the Borrower may
request; provided, however, that no more than 5 Eurodollar Loans shall be
outstanding hereunder at any time (it being understood that, for purposes
hereof, Eurodollar Loans with different Interest Periods shall be considered
as separate Eurodollar Loans, even if they begin on the same date, although
borrowings, extensions and conversions may, in accordance with the
provisions hereof, be combined at the end of existing Interest Periods to
constitute a new Eurodollar Loan with a single Interest Period). Amounts
repaid on the Tranche B Term Loan may not be reborrowed.
(b) Borrowing Procedures. The Borrower shall submit an appropriate
Notice of Borrowing to the Agent not later than 2:00 P.M. (Charlotte, North
Carolina time) on the Business Day prior to the Closing Date, with respect
to the portion of the Tranche B Term Loan initially consisting of a Base
Rate Loan, or on the third Business Day prior to the Closing Date, with
respect to the portion of the Tranche B Term Loan initially consisting of
one or more Eurodollar Loans. Such Notice of Borrowing shall be irrevocable
and shall specify (i) that the funding of a Tranche B Term Loan is requested
and (ii) whether the funding of the Tranche B Term Loan shall be comprised
of Base Rate Loans, Eurodollar Loans or a combination thereof, and if
Eurodollar Loans are requested, the Interest Period(s) therefor. If the
Borrower shall fail to deliver such Notice of Borrowing to the Agent by 2:00
P.M. (Charlotte, North Carolina time) on the third Business Day prior to the
Closing Date, then the full amount of the Tranche B Term Loan shall be
disbursed on the Closing Date as a Base Rate Loan. Each Lender shall make
its Tranche B Term Loan Percentage of the Tranche B Term Loan available to
the Agent for the account of the Borrower at the office of the Agent
specified in Schedule 2.1(a), or at such other office as the Agent may
designate in writing, by 2:00 P.M. (Charlotte, North Carolina time) on the
Closing Date in Dollars and in funds immediately available to the Agent.
(c) Minimum Amounts. Each Eurodollar Loan or Base Rate Loan that is part
of the Tranche B Term Loan shall be in an aggregate principal amount that is
not less than $5,000,000 and integral multiples of $1,000,000 (or the then
remaining principal balance of the Tranche B Term Loan, if less).
(d) Repayment of Tranche B Term Loan. The principal amount of the
Tranche B Term Loan shall be repaid in (i) twenty (20) consecutive quarterly
installments of $437,500, payable on the last Business Day of each calendar
quarter, commencing with the quarter ending December 31, 2001 and (ii) four
(4) consecutive installments of $41,562,500, payable on the last Business
Day of each calendar quarter, commencing with the quarter ending December
31, 2006, and on the Maturity Date, unless accelerated sooner pursuant to
Section 9.2.
(e) Interest. Subject to the provisions of Section 3.1, the Tranche B
Term Loan shall bear interest at a per annum rate equal to:
(i) Base Rate Loans. During such periods as the Tranche B Term Loan
shall be comprised in whole or in part of Base Rate Loans, such Base
Rate Loans shall bear interest at a per annum rate equal to the Adjusted
Base Rate.
(ii) Eurodollar Loans. During such periods as the Tranche B Term
Loan shall be comprised in whole or in part of Eurodollar Loans, such
Eurodollar Loans shall bear interest at a per annum rate equal to the
Adjusted Eurodollar Rate.
Interest on the Tranche B Term Loan shall be payable in arrears on each
applicable Interest Payment Date (or at such other times as may be specified
herein).
(f) Tranche B Term Notes. The portion of the Tranche B Term Loan made by
each Lender may, upon the request of a Lender, be evidenced by a duly
executed promissory note of the Borrower to such Lender in an original
principal amount equal to such Lender's Tranche B Term Loan Percentage of
the Tranche B Term Loan and substantially in the form of Exhibit 2.5(f).
SECTION 3
GENERAL PROVISIONS APPLICABLE TO LOANS
--------------------------------------
3.1 DEFAULT RATE.
-----------------
Upon the occurrence, and during the continuance, of an Event of Default, at
the election of the Required Lenders, (i) the principal of and, to the extent
permitted by law, overdue interest on the Loans and any other amounts owing
hereunder or under the other Credit Documents shall bear interest, payable on
demand, at a per annum rate 2% greater than the rate which would otherwise be
applicable (or if no rate is applicable, whether in respect of interest, fees or
other amounts, then the Adjusted Base Rate plus 2%) and (ii) the Letter of
Credit Fee shall accrue at a per annum rate 2% greater than the rate which would
otherwise be applicable.
3.2 EXTENSION AND CONVERSION.
-----------------------------
The Borrower shall have the option, on any Business Day, to extend existing
Loans into a subsequent permissible Interest Period or to convert Loans into
Loans of another interest rate type; provided, however, that (i) except as
provided in Section 3.8, Eurodollar Loans may be converted into Base Rate Loans
or extended as Eurodollar Loans for new Interest Periods only on the last day of
the Interest Period applicable thereto, (ii) without the consent of the Required
Lenders, Eurodollar Loans may be extended, and Base Rate Loans may be converted
into Eurodollar Loans, only if no Event of Default has occurred and is
continuing on the date of extension or conversion, (iii) Loans extended as, or
converted into, Eurodollar Loans shall be subject to the terms of the definition
of "Interest Period" set forth in Section 1.1 and shall be in such minimum
amounts as provided in, with respect to Revolving Loans, Section 2.1(b)(ii),
with respect to the Tranche A Term Loan, Section 2.4(c), or, with respect to the
Tranche B Term Loan, Section 2.5(c), (iv) no more than 18 Eurodollar Loans shall
be outstanding hereunder at any time (it being understood that, for purposes
hereof, Eurodollar Loans with different Interest Periods shall be considered as
separate Eurodollar Loans, even if they begin on the same date, although
borrowings, extensions and conversions may, in accordance with the provisions
hereof, be combined at the end of existing Interest Periods to constitute a new
Eurodollar Loan with a single Interest Period), (v) any request for extension or
conversion of a Eurodollar Loan which shall fail to specify an Interest Period
shall be deemed to be a request for an Interest Period of one month and (vi)
Swingline Loans may not be extended or converted pursuant to this Section 3.2.
Each such extension or conversion shall be effected by the Borrower by giving a
Notice of Extension/Conversion (or telephonic notice promptly confirmed in
writing) to the office of the Agent specified in Schedule 11.1, or at such other
office as the Agent may designate in writing, prior to 2:00 P.M. (Charlotte,
North Carolina time) on the Business Day prior to, in the case of the conversion
of a Eurodollar Loan into a Base Rate Loan, and on the third Business Day prior
to, in the case of the extension of a Eurodollar Loan as, or conversion of a
Base Rate Loan into, a Eurodollar Loan, the date of the proposed extension or
conversion, specifying the date of the proposed extension or conversion, the
Loans to be so extended or converted, the types of Loans into which such Loans
are to be converted and, if appropriate, the applicable Interest Periods with
respect thereto. Each request for extension or conversion shall be irrevocable.
In the event the Borrower fails to request extension or conversion of any
Eurodollar Loan in accordance with this Section 3.2, or any such conversion or
extension is not permitted or required by this Credit Agreement, then such
Eurodollar Loan shall be automatically converted into a Base Rate Loan at the
end of the Interest Period applicable thereto. The Agent shall give each Lender
notice as promptly as practicable of any such proposed extension or conversion
affecting any Loan.
3.3 PREPAYMENTS.
----------------
(a) Voluntary Prepayments. The Borrower shall have the right to prepay
Loans in whole or in part from time to time; provided, however, that each
partial prepayment of Loans (other than Swingline Loans) shall be in a
minimum principal amount of $5,000,000 and integral multiples of $1,000,000
in excess thereof (or the then remaining principal balance of the Revolving
Loans, the Tranche A Term Loan or the Tranche B Term Loan, as applicable, if
less). Subject to the foregoing terms, amounts prepaid under this Section
3.3(a) shall be applied as the Borrower may elect; provided that if the
Borrower shall fail to specify, voluntary prepayments shall be applied first
to Revolving Loans and then ratably to the Tranche A Term Loan and the
Tranche B Term Loan (in each case ratably to the remaining Principal
Amortization Payments thereof), in each case first to Base Rate Loans and
then to Eurodollar Loans in direct order of Interest Period maturities. All
prepayments under this Section 3.3(a) shall be subject to Section 3.12, but
otherwise without premium or penalty, and, other than with respect to
Revolving Loans, shall be accompanied by interest on the principal amount
prepaid through the date of prepayment.
(b) Mandatory Prepayments.
(i) (A) Revolving Committed Amount. If at any time, the sum of the
aggregate outstanding principal amount of Revolving Loans plus LOC
Obligations plus Swingline Loans shall exceed the aggregate Revolving
Committed Amount, the Borrower immediately shall prepay the Revolving
Loans and (after all Revolving Loans have been repaid) cash
collateralize the LOC Obligations, in an amount sufficient to eliminate
such excess.
(B) LOC Committed Amount. If at any time, the sum of the
aggregate principal amount of LOC Obligations shall exceed the LOC
Committed Amount, the Borrower immediately shall cash collateralize
the LOC Obligations in an amount sufficient to eliminate such excess.
(ii)(A) Asset Dispositions. Immediately upon the occurrence of any
Asset Disposition Prepayment Event, the Borrower shall prepay the Loans
in an aggregate amount equal to 100% of the Net Cash Proceeds of the
related Asset Disposition not applied (or caused to be applied) by the
Credit Parties during the related Application Period to make Eligible
Reinvestments as contemplated by the terms of Section 8.5(f) (such
prepayment to be applied as set forth in clause (v) below).
(B) Casualty and Condemnation Events. Immediately upon the
occurrence of any event requiring application of any insurance proceeds
to the prepayment of Loans (and cash collateralization of LOC
Obligations) pursuant to Section 7.6(b), the Borrower shall prepay the
Loans in the amount required by such Section 7.6(b) (such prepayment to
be applied as set forth in clause (v) below).
(iii) Debt Issuances. If the Leverage Ratio, on a pro forma basis
before and after giving effect to such Debt Issuance, is equal to or
greater than 2.0 to 1.0, immediately upon receipt by any Consolidated
Party of proceeds from any Debt Issuance, the Borrower shall prepay the
Loans in an aggregate amount equal to 50% of the Net Cash Proceeds of
such Debt Issuance (such prepayment to be applied as set forth in clause
(v) below).
(iv) Equity Issuances. Immediately upon receipt by a Consolidated
Party of proceeds from any Equity Issuance, the Borrower shall prepay
the Loans in an aggregate amount equal to 50% of the Net Cash Proceeds
of such Equity Issuance (such prepayment to be applied as set forth in
clause (v) below).
(v) Application of Mandatory Prepayments. All amounts required to be
paid pursuant to this Section 3.3(b) shall be applied as follows: (A)
with respect to all amounts prepaid pursuant to Section 3.3(b)(i)(A), to
Revolving Loans and (after all Revolving Loans have been repaid) to a
cash collateral account in respect of LOC Obligations, (B) with respect
to all amounts prepaid pursuant to Section 3.3(b)(i)(B), to a cash
collateral account in respect of LOC Obligations, (C) with respect to
all amounts prepaid pursuant to Section 3.3(b)(ii), first pro rata to
the Tranche A Term Loan (ratably to the remaining Principal Amortization
Payments thereof) and the Tranche B Term Loan (ratably to the remaining
Principal Amortization Payments thereof), second (after the Tranche A
Term Loan and Tranche B Term Loan have been repaid) to the Revolving
Loans and third (after all Revolving Loans have been repaid) to a cash
collateral account in respect of LOC Obligations (with a corresponding
reduction in the Revolving Committed Amount in an amount equal to all
amounts applied to the Revolving Loans pursuant to this clause (C)) and
(D) with respect to all amounts prepaid pursuant to Section 3.3(b)(iii)
or (iv), pro rata to the Tranche A Term Loan and the Tranche B Term Loan
(in each case ratably to the remaining Principal Amortization Payments
thereof). Within the parameters of the applications set forth above,
prepayments shall be applied first to Base Rate Loans and then to
Eurodollar Loans in direct order of Interest Period maturities. All
prepayments under this Section 3.3(b) shall be subject to Section 3.12,
but otherwise without premium or penalty, and shall be accompanied by
interest on the principal amount prepaid through the date of prepayment.
3.4 TERMINATION AND REDUCTION OF REVOLVING COMMITTED AMOUNT.
------------------------------------------------------------
(a) Voluntary Reductions. The Borrower may from time to time permanently
reduce or terminate the Revolving Committed Amount in whole or in part (in
minimum aggregate amounts of $5,000,000 or in integral multiples of
$1,000,000 in excess thereof (or, if less, the full remaining amount of the
then applicable Revolving Committed Amount)) upon five Business Days' prior
written notice to the Agent; provided, however, no such termination or
reduction shall be made which would cause the sum of the aggregate
outstanding principal amount of Revolving Loans plus LOC Obligations plus
Swingline Loans to exceed the Revolving Committed Amount, unless,
concurrently with such termination or reduction, the Revolving Loans are
repaid to the extent necessary to eliminate such excess. The Agent shall
promptly notify each affected Lender of receipt by the Agent of any notice
from the Borrower pursuant to this Section 3.4(a).
(b) Term Loan Commitments. The Tranche A Term Loan Commitment of each
Lender, if any, shall automatically terminate at such time as such Lender
shall have made available to the Borrower such Lender's share of the Tranche
A Term Loan, and the Tranche B Term Loan Commitment of each Lender, if any,
shall automatically terminate at such time as such Lender shall have made
available to the Borrower such Lender's share of the Tranche B Term Loan.
(c) Mandatory Reductions. The Revolving Committed Amount automatically
shall be permanently reduced from time to time in accordance with the terms
of Section 3.3(b)(v).
(d) Maturity Date. The Revolving Commitments, the LOC Commitment and the
Swingline Commitment shall automatically terminate on the Maturity Date
(e) General. The Borrower shall pay to the Agent for the account of the
Lenders in accordance with the terms of Section 3.5(a), on the date of each
termination or reduction of the Revolving Committed Amount, the Commitment
Fee accrued through the date of such termination or reduction on the amount
of the Revolving Committed Amount so terminated or reduced.
3.5 FEES.
---------
(a) Commitment Fee. In consideration of the Revolving Commitments of the
Lenders hereunder, the Borrower promises to pay to the Agent for the account
of each Lender a fee (the "Commitment Fee") on the Unused Revolving
Committed Amount computed at a per annum rate for each day during the
applicable Commitment Fee Calculation Period (hereinafter defined) at a rate
equal to the Applicable Percentage in effect from time to time. The
Commitment Fee shall commence to accrue on the Closing Date and shall be due
and payable in arrears on the last Business Day of each March, June,
September and December (and on any date that the Revolving Committed Amount
is reduced and on the Maturity Date) for the immediately preceding quarter
(or portion thereof) (each such quarter or portion thereof for which the
Commitment Fee is payable hereunder being herein referred to as an
"Commitment Fee Calculation Period"), beginning with the first of such dates
to occur after the Closing Date.
(b) Letter of Credit Fees.
(i) Letter of Credit Issuance Fee. In consideration of the issuance
of Letters of Credit hereunder, the Borrower promises to pay to the
Agent for the account of each Lender a fee (the "Letter of Credit Fee")
on such Lender's Revolving Commitment Percentage of the average daily
maximum amount available to be drawn under each such Letter of Credit
computed at a per annum rate for each day from the date of issuance to
the date of expiration equal to the Applicable Percentage. The Letter of
Credit Fee will be payable quarterly in arrears on the last Business Day
of each March, June, September and December for the immediately
preceding quarter (or a portion thereof).
(ii) Issuing Lender Fees . In addition to the Letter of Credit Fee
payable pursuant to clause (i) above, the Borrower promises to pay to
the Agent for the account of the Issuing Lender without sharing by the
other Lenders (i) a letter of credit fronting fee of 0.125% on the
average daily maximum amount available to be drawn under each Letter of
Credit computed at a per annum rate for each day from the date of
issuance to the date of expiration (which fronting fee shall be payable
quarterly in arrears on the last Business Day of each March, June,
September and December for the immediately preceding quarter (or a
portion thereof)) and (ii) the customary charges from time to time of
the Issuing Lender with respect to the issuance, amendment, transfer,
administration, cancellation and conversion of, and drawings under, such
Letters of Credit.
(c) Administrative Fees. The Borrower promises to pay to the Agent, for
its own account, for the account of the Issuing Lender and for the account
of Banc of America Securities LLC, as applicable, the fees referred to in
the Agent's Fee Letter.
3.6 CAPITAL ADEQUACY.
---------------------
If any Lender has determined that the adoption or the becoming effective of,
or any change in, or any change by any Governmental Authority, central bank or
comparable agency charged with the interpretation or administration thereof in
the interpretation or administration of, any applicable law, rule or regulation
regarding capital adequacy in any case occurring after the date hereof, or
change after the date hereof in the manner of compliance by such Lender with any
request or directive regarding capital adequacy (whether or not having the force
of law) of any such authority, central bank or comparable agency, has or would
have the effect of reducing the rate of return on such Lender's capital or
assets as a consequence of its commitments or obligations hereunder to a level
below that which such Lender could have achieved but for such adoption,
effectiveness, change or compliance (taking into consideration such Lender's
policies with respect to capital adequacy), then, if such Lender generally is
assessing such amounts to its borrowers that are similarly situated with the
Borrower, upon notice from such Lender to the Borrower, which notice shall
include a calculation of such additional amounts in reasonable detail, the
Borrower shall be obligated to pay to such Lender such additional amount or
amounts as will compensate such Lender for such reduction. Each determination by
any such Lender of amounts owing under this Section shall, absent manifest
error, be conclusive and binding on the parties hereto.
3.7 LIMITATION ON EURODOLLAR LOANS.
-----------------------------------
If on or prior to the first day of any Interest Period for any Eurodollar
Loan:
(a) the Agent determines (which determination shall be conclusive) that
by reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate for such
Interest Period; or
(b) the Required Lenders determine (which determination shall be
conclusive) and notify the Agent that the Eurodollar Rate will not
adequately and fairly reflect the cost to the Lenders of funding Eurodollar
Loans for such Interest Period;
then the Agent shall give the Borrower prompt notice thereof, and so long as
such condition remains in effect, the Lenders shall be under no obligation to
make additional Eurodollar Loans, Continue Eurodollar Loans, or to Convert Base
Rate Loans into Eurodollar Loans and the Borrower shall, on the last day(s) of
the then current Interest Period(s) for the outstanding Eurodollar Loans, either
prepay such Eurodollar Loans or Convert such Eurodollar Loans into Base Rate
Loans in accordance with the terms of this Credit Agreement.
3.8 ILLEGALITY.
---------------
Notwithstanding any other provision of this Credit Agreement, in the event
that it becomes unlawful for any Lender or its Applicable Lending Office to
make, maintain, or fund Eurodollar Loans hereunder, then such Lender shall
promptly notify the Borrower thereof and such Lender's obligation to make or
Continue Eurodollar Loans and to Convert Base Rate Loans into Eurodollar Loans
shall be suspended until such time as such Lender may again make, maintain, and
fund Eurodollar Loans (in which case the provisions of Section 3.10 shall be
applicable).
3.9 REQUIREMENTS OF LAW.
------------------------
If the adoption of any applicable law, rule, or regulation, or any change in
any applicable law, rule, or regulation, or any change in the interpretation or
administration thereof by any Governmental Authority, central bank, or
comparable agency charged with the interpretation or administration thereof, in
any case after the date hereof or change after the date hereof in the manner of
compliance by any Lender (or its Applicable Lending Office) with any request or
directive (whether or not having the force of law) of any such Governmental
Authority, central bank, or comparable agency:
(i) shall subject such Lender (or its Applicable Lending Office) to any
tax, duty, or other charge with respect to any Eurodollar Loans, its Notes,
or its obligation to make Eurodollar Loans, or change the basis of taxation
of any amounts payable to such Lender (or its Applicable Lending Office)
under this Credit Agreement or its Notes in respect of any Eurodollar Loans
(other than taxes imposed on the overall net income of such Lender by the
jurisdiction in which such Lender has its principal office or such
Applicable Lending Office);
(ii) shall impose, modify, or deem applicable any reserve (including any
reserve imposed by the Board of Governors of the Federal Reserve System,
special deposit, capital, assessment, or similar requirement against assets
of, deposits with or for the account of, or credit extended by, any Lender
or (or its Applicable Lending Office), including the Commitment of such
Lender hereunder; or
(iii) shall impose on such Lender (or its Applicable Lending Office) or
the London interbank market any other condition affecting this Credit
Agreement or its Notes or any of such extensions of credit or liabilities or
commitments;
and the result of any of the foregoing is to increase the cost to such Lender
(or its Applicable Lending Office) of making, Converting into, Continuing, or
maintaining any Eurodollar Loans or to reduce any sum received or receivable by
such Lender (or its Applicable Lending Office) under this Credit Agreement or
its Notes with respect to any Eurodollar Loans, then, if such Lender generally
is assessing such amounts to its borrowers that are similarly situated with the
Borrower, the Borrower shall pay to such Lender on demand such amount or amounts
as will compensate such Lender for such increased cost or reduction. If any
Lender requests compensation by the Borrower under this Section 3.9, the
Borrower may, by notice to such Lender (with a copy to the Agent), suspend the
obligation of such Lender to make or Continue Eurodollar Loans, or to Convert
Base Rate Loans into Eurodollar Loans, until the event or condition giving rise
to such request ceases to be in effect (in which case the provisions of Section
3.10 shall be applicable); provided that such suspension shall not affect the
right of such Lender to receive the compensation so requested. Each Lender shall
promptly notify the Borrower and the Agent of any event of which it has
knowledge, occurring after the date hereof, which will entitle such Lender to
compensation pursuant to this Section 3.9 and will designate a different
Applicable Lending Office if such designation will avoid the need for, or reduce
the amount of, such compensation and will not, in the judgment of such Lender,
be otherwise disadvantageous to it. Any Lender claiming compensation under this
Section 3.9 shall furnish to the Borrower and the Agent a statement setting
forth the additional amount or amounts to be paid to it hereunder, and
reflecting the computation thereof in reasonable detail, which shall be
conclusive in the absence of manifest error. In determining such amount, such
Lender may use any reasonable averaging and attribution methods. The Borrower
shall not be required to compensate a Lender pursuant to this Section 3.9 for
any increased costs or reductions incurred more than 180 days prior to the date
that such Lender notifies the Borrower of the change of law giving rise to such
increased costs or reductions and of such Lender's intention to claim
compensation therefor; provided that, if the change of law giving rise to such
increased costs or reductions is retroactive, then such 180-day period referred
to above shall be extended to include the period of retroactive effect thereof.
The provisions of this Section 3.9 shall survive repayment of the loans and
obligations under the Credit Documents and termination of the Commitments
hereunder.
3.10 TREATMENT OF AFFECTED LOANS.
---------------------------------
If the obligation of any Lender to make any Eurodollar Loan or to Continue,
or to Convert Base Rate Loans into, Eurodollar Loans shall be suspended pursuant
to Section 3.7, 3.8 or 3.9 hereof, such Lender's Eurodollar Loans shall be
automatically Converted into Base Rate Loans on the last day(s) of the then
current Interest Period(s) for such Eurodollar Loans (or, in the case of a
Conversion, on such earlier date as such Lender may specify to the Borrower with
a copy to the Agent) and, unless and until such Lender gives notice as provided
below that the circumstances specified in Section 3.7, 3.8 or 3.9 hereof that
gave rise to such Conversion no longer exist:
(a) to the extent that such Lender's Eurodollar Loans have been so
Converted, all payments and prepayments of principal that would otherwise be
applied to such Lender's Eurodollar Loans shall be applied instead to its
Base Rate Loans; and
(b) all Loans that would otherwise be made or Continued by such Lender
as Eurodollar Loans shall be made or Continued instead as Base Rate Loans,
and all Base Rate Loans of such Lender that would otherwise be Converted
into Eurodollar Loans shall remain as Base Rate Loans.
If such Lender gives notice to the Borrower (with a copy to the Agent) that the
circumstances specified in Section 3.7, 3.8 or 3.9 hereof that gave rise to the
Conversion of such Lender's Eurodollar Loans pursuant to this Section 3.10 no
longer exist (which such Lender agrees to do promptly upon such circumstances
ceasing to exist) at a time when Eurodollar Loans made by other Lenders are
outstanding, such Lender's Base Rate Loans shall be automatically Converted, on
the first day(s) of the next succeeding Interest Period(s) for such outstanding
Eurodollar Loans, to the extent necessary so that, after giving effect thereto,
all Loans held by the Lenders holding Eurodollar Loans and by such Lender are
held pro rata (as to principal amounts, interest rate basis, and Interest
Periods) in accordance with their respective Commitments. The provisions of this
Section 3.10 shall survive repayment of the loans and obligations under the
Credit Documents and termination of the Commitments hereunder.
3.11 TAXES.
-----------
(a) Any and all payments by any Credit Party to or for the account of
any Lender or the Agent hereunder or under any other Credit Document shall
be made free and clear of and without deduction for any and all present or
future taxes, duties, levies, imposts, deductions, charges or withholdings,
and all liabilities with respect thereto, excluding, in the case of each
Lender and the Agent, taxes imposed on net income and franchise taxes
imposed, by the jurisdiction under the laws of which such Lender (or its
Applicable Lending Office) or the Agent (as the case may be) is organized or
any political subdivision thereof (all such non-excluded taxes, duties,
levies, imposts, deductions, charges, withholdings, and liabilities being
hereinafter referred to as "Taxes"). If any Credit Party shall be required
by law to deduct any Taxes from or in respect of any sum payable under this
Credit Agreement or any other Credit Document to any Lender or the Agent,
(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 3.11) such Lender or the Agent receives an amount
equal to the sum it would have received had no such deductions been made,
(ii) such Credit Party shall make such deductions, (iii) such Credit Party
shall pay the full amount deducted to the relevant taxation authority or
other authority in accordance with applicable law, and (iv) such Credit
Party shall furnish to the Agent, at its address referred to in Section
11.1, the original or a certified copy of a receipt evidencing payment
thereof.
(b) In addition, the Borrower agrees to pay any and all present or
future stamp or documentary taxes and any other excise or property taxes or
charges or similar levies which arise from any payment made under this
Credit Agreement or any other Credit Document or from the execution or
delivery of, or otherwise with respect to, this Credit Agreement or any
other Credit Document (hereinafter referred to as "Other Taxes").
(c) The Borrower agrees to indemnify each Lender and the Agent for the
full amount of Taxes and Other Taxes (including, without limitation, any
Taxes or Other Taxes imposed or asserted by any jurisdiction on amounts
payable under this Section 3.11) paid by such Lender or the Agent (as the
case may be) and any liability (including penalties, interest, and expenses)
arising therefrom or with respect thereto.
(d) Each Lender that is not a United States person under Section
7701(a)(30) of the Code, on or prior to the date of its execution and
delivery of this Credit Agreement in the case of each Lender listed on the
signature pages hereof and on or prior to the date on which it becomes a
Lender in the case of each other Lender, and from time to time thereafter if
requested in writing by the Borrower or the Agent (but only so long as such
Lender remains lawfully able to do so), shall provide the Borrower and the
Agent with (i) Internal Revenue Service Form W-8 BEN or W-8 ECI, as
appropriate, or any successor form prescribed by the Internal Revenue
Service, certifying that such Lender is entitled to benefits under an income
tax treaty to which the United States is a party which reduces to zero the
rate of withholding tax on payments of interest or certifying that the
income receivable pursuant to this Credit Agreement is effectively connected
with the conduct of a trade or business in the United States, (ii) Internal
Revenue Service Form W-8 or W-9, as appropriate, or any successor form
prescribed by the Internal Revenue Service, and/or (iii) any other form or
certificate required by any taxing authority (including any certificate
required by Sections 871(h) and 881(c) of the Internal Revenue Code),
certifying that such Lender is entitled to an exemption from tax on payments
pursuant to this Credit Agreement or any of the other Credit Documents.
(e) For any period with respect to which a Lender has failed to provide
the Borrower and the Agent with the appropriate form pursuant to Section
3.11(d) (unless such failure is due to a change in treaty, law, or
regulation occurring subsequent to the date on which a form originally was
required to be provided), such Lender shall not be entitled to
indemnification under Section 3.11(a) or 3.11(b) with respect to Taxes
imposed by the United States; provided, however, that should a Lender, which
is otherwise exempt from withholding tax, become subject to Taxes because of
its failure to deliver a form required hereunder, the Borrower shall take
such steps as such Lender shall reasonably request to assist such Lender to
recover such Taxes.
(f) If any Credit Party is required to pay additional amounts to or for
the account of any Lender pursuant to this Section 3.11, then such Lender
will agree to use reasonable efforts to change the jurisdiction of its
Applicable Lending Office so as to eliminate or reduce any such additional
payment which may thereafter accrue if such change, in the judgment of such
Lender, is not otherwise disadvantageous to such Lender.
(g) Without prejudice to the survival of any other agreement of the
Credit Parties hereunder, the agreements and obligations of the Credit
Parties contained in this Section 3.11 shall survive the repayment of the
Loans, LOC Obligations and other obligations under the Credit Documents and
the termination of the Commitments hereunder.
3.12 COMPENSATION.
------------------
Upon the request of any Lender, the Borrower shall pay to such Lender such
amount or amounts as shall be sufficient (in the reasonable opinion of such
Lender) to compensate it for any loss, cost, or expense (excluding loss of
anticipated profits) incurred by it as a result of:
(a) any payment, prepayment, or Conversion of a Eurodollar Loan for any
reason (including, without limitation, the acceleration of the Loans
pursuant to Section 9.2) on a date other than the last day of the Interest
Period for such Loan; or
(b) any failure by the Borrower for any reason (including, without
limitation, the failure of any condition precedent specified in Section 5 to
be satisfied) to borrow, Convert, Continue, or prepay a Eurodollar Loan on
the date for such borrowing, Conversion, Continuation, or prepayment
specified in the relevant notice of borrowing, prepayment, Continuation, or
Conversion under this Credit Agreement.
With respect to Eurodollar Loans, such indemnification may include an amount
equal to the excess, if any, of (a) the amount of interest which would have
accrued on the amount so prepaid, or not so borrowed, Converted or Continued,
for the period from the date of such prepayment or of such failure to borrow,
Convert or Continue to the last day of the applicable Interest Period (or, in
the case of a failure to borrow, Convert or Continue, the Interest Period that
would have commenced on the date of such failure) in each case at the applicable
rate of interest for such Eurodollar Loans provided for herein (excluding,
however, the Applicable Percentage included therein, if any) over (b) the amount
of interest (as reasonably determined by such Lender) which would have accrued
to such Lender on such amount by placing such amount on deposit for a comparable
period with leading banks in the interbank Eurodollar market. The covenants of
the Borrower set forth in this Section 3.12 shall survive the repayment of the
Loans, LOC Obligations and other obligations under the Credit Documents and the
termination of the Commitments hereunder.
3.13 PRO RATA TREATMENT.
------------------------
Except to the extent otherwise provided herein:
(a) Loans. Each Loan, each payment or (subject to the terms of Section
3.3) prepayment of principal of any Loan or reimbursement obligations
arising from drawings under Letters of Credit, each payment of interest on
the Loans or reimbursement obligations arising from drawings under Letters
of Credit, each payment of Commitment Fees, each payment of the Letter of
Credit Fee, each reduction of the Revolving Committed Amount and each
conversion or extension of any Loan, shall be allocated pro rata among the
Lenders in accordance with the respective principal amounts of their
outstanding Loans of the applicable type and Participation Interests in
Loans of the applicable type and Letters of Credit.
(b) Advances. No Lender shall be responsible for the failure or delay by
any other Lender in its obligation to make its ratable share of a borrowing
hereunder; provided, however, that the failure of any Lender to fulfill its
obligations hereunder shall not relieve any other Lender of its obligations
hereunder. Unless the Agent shall have been notified by any Lender prior to
the date of any requested borrowing that such Lender does not intend to make
available to the Agent its ratable share of such borrowing to be made on
such date, the Agent may assume that such Lender has made such amount
available to the Agent on the date of such borrowing, and the Agent in
reliance upon such assumption, may (in its sole discretion but without any
obligation to do so) make available to the Borrower a corresponding amount.
If such corresponding amount is not in fact made available to the Agent, the
Agent shall be able to recover such corresponding amount from such Lender.
If such Lender does not pay such corresponding amount forthwith upon the
Agent's demand therefor, the Agent will promptly notify the Borrower, and
the Borrower shall immediately pay such corresponding amount to the Agent.
The Agent shall also be entitled to recover from the Lender or the Borrower,
as the case may be, interest on such corresponding amount in respect of each
day from the date such corresponding amount was made available by the Agent
to the Borrower to the date such corresponding amount is recovered by the
Agent at a per annum rate equal to (i) from the Borrower at the applicable
rate for the applicable borrowing pursuant to the Notice of Borrowing and
(ii) from a Lender at the Federal Funds Rate.
3.14 SHARING OF PAYMENTS.
-------------------------
The Lenders agree among themselves that, in the event that any Lender shall
obtain payment in respect of any Loan, LOC Obligations or any other obligation
owing to such Lender under this Credit Agreement through the exercise of a right
of setoff, banker's lien or counterclaim, or pursuant to a secured claim under
Section 506 of Title 11 of the United States Code or other security or interest
arising from, or in lieu of, such secured claim, received by such Lender under
any applicable bankruptcy, insolvency or other similar law or otherwise, or by
any other means, in excess of its pro rata share of such payment as provided for
in this Credit Agreement, such Lender shall promptly purchase from the other
Lenders a Participation Interest in such Loans, LOC Obligations and other
obligations in such amounts, and make such other adjustments from time to time,
as shall be equitable to the end that all Lenders share such payment in
accordance with their respective ratable shares as provided for in this Credit
Agreement. The Lenders further agree among themselves that if payment to a
Lender obtained by such Lender through the exercise of a right of setoff,
banker's lien, counterclaim or other event as aforesaid shall be rescinded or
must otherwise be restored, each Lender which shall have shared the benefit of
such payment shall, by repurchase of a Participation Interest theretofore sold,
return its share of that benefit (together with its share of any accrued
interest payable with respect thereto) to each Lender whose payment shall have
been rescinded or otherwise restored. The Borrower agrees that any Lender so
purchasing such a Participation Interest may, to the fullest extent permitted by
law, exercise all rights of payment, including setoff, banker's lien or
counterclaim, with respect to such Participation Interest as fully as if such
Lender were a holder of such Loan, LOC Obligations or other obligation in the
amount of such Participation Interest. Except as otherwise expressly provided in
this Credit Agreement, if any Lender shall fail to remit to the Agent or any
other Lender an amount payable by such Lender to the Agent or such other Lender
pursuant to this Credit Agreement on the date when such amount is due, such
payments shall be made together with interest thereon for each date from the
date such amount is due until the date such amount is paid to the Agent or such
other Lender at a rate per annum equal to the Federal Funds Rate. If under any
applicable bankruptcy, insolvency or other similar law, any Lender receives a
secured claim in lieu of a setoff to which this Section 3.14 applies, such
Lender shall, to the extent practicable, exercise its rights in respect of such
secured claim in a manner consistent with the rights of the Lenders under this
Section 3.14 to share in the benefits of any recovery on such secured claim.
3.15 PAYMENTS, COMPUTATIONS, ETC.
---------------------------------
(a) Generally. Except as otherwise specifically provided herein, all
payments hereunder shall be made to the Agent in Dollars in immediately
available funds, without setoff, deduction, counterclaim or withholding of
any kind, at the Agent's office specified in Schedule 2.1(a) not later than
2:00 P.M. (Charlotte, North Carolina time) on the date when due. Payments
received after such time shall be deemed to have been received on the next
succeeding Business Day. The Agent may (but shall not be obligated to) debit
the amount of any such payment which is not made by such time to any
ordinary deposit account of the Borrower or any other Credit Party
maintained with the Agent (with notice to the Borrower or such other Credit
Party). The Borrower shall, at the time it makes any payment under this
Credit Agreement, specify to the Agent the Loans, LOC Obligations, Fees,
interest or other amounts payable by the Borrower hereunder to which such
payment is to be applied (and in the event that it fails so to specify, or
if such application would be inconsistent with the terms hereof, the Agent
shall distribute such payment to the Lenders in such manner as the Agent may
determine to be appropriate in respect of obligations owing by the Borrower
hereunder, subject to the terms of Section 3.13(a)). The Agent will
distribute such payments to such Lenders, if any such payment is received
prior to 2:00 P.M. (Charlotte, North Carolina time) on a Business Day in
like funds as received prior to the end of such Business Day and otherwise
the Agent will distribute such payment to such Lenders on the next
succeeding Business Day. Whenever any payment hereunder shall be stated to
be due on a day which is not a Business Day, the due date thereof shall be
extended to the next succeeding Business Day (subject to accrual of interest
and Fees for the period of such extension), except that in the case of
Eurodollar Loans, if the extension would cause the payment to be made in the
next following calendar month, then such payment shall instead be made on
the next preceding Business Day. Except as expressly provided otherwise
herein, all computations of interest and fees shall be made on the basis of
actual number of days elapsed over a year of 360 days, except with respect
to computation of interest on Base Rate Loans which shall be calculated
based on a year of 365 or 366 days, as appropriate. Interest shall accrue
from and include the date of borrowing, but exclude the date of payment.
(b) Allocation of Payments After Event of Default. Notwithstanding any
other provisions of this Credit Agreement to the contrary, after the
occurrence and during the continuance of an Event of Default, all amounts
collected or received by the Agent or any Lender on account of the Credit
Party Obligations or any other amounts outstanding under any of the Credit
Documents or in respect of the Collateral shall be paid over or delivered as
follows:
FIRST, to the payment of all reasonable out-of-pocket costs and
expenses (including without limitation reasonable attorneys' fees) of
the Agent in connection with enforcing the rights of the Lenders under
the Credit Documents and any protective advances made by the Agent with
respect to the Collateral under or pursuant to the terms of the
Collateral Documents;
SECOND, to payment of any fees owed to the Agent;
THIRD, to the payment of all of the Credit Party Obligations
consisting of accrued fees and interest;
FOURTH, to the payment of the outstanding principal amount of the
Credit Party Obligations (including the payment or cash
collateralization of the outstanding LOC Obligations);
FIFTH, to the payment of all reasonable out-of-pocket costs and
expenses (including without limitation, reasonable attorneys' fees) of
each of the Lenders in connection with enforcing its rights under the
Credit Documents or otherwise with respect to the Credit Party
Obligations owing to such Lender;
SIXTH, to all other Credit Party Obligations and other obligations
which shall have become due and payable under the Credit Documents or
otherwise and not repaid pursuant to clauses "FIRST" through "FIFTH"
above; and
SEVENTH, to the payment of the surplus, if any, to whomever may be
lawfully entitled to receive such surplus.
In carrying out the foregoing, (i) amounts received shall be applied in the
numerical order provided until exhausted prior to application to the next
succeeding category; (ii) each of the Lenders shall receive an amount equal
to its pro rata share (based on the proportion that the then outstanding
Loans and LOC Obligations held by such Lender bears to the aggregate then
outstanding Loans and LOC Obligations) of amounts available to be applied
pursuant to clauses "THIRD", "FOURTH", "FIFTH" and "SIXTH" above; and (iii)
to the extent that any amounts available for distribution pursuant to clause
"FOURTH" above are attributable to the issued but undrawn amount of
outstanding Letters of Credit, such amounts shall be held by the Agent in a
cash collateral account and applied (A) first, to reimburse the Issuing
Lender from time to time for any drawings under such Letters of Credit and
(B) then, following the expiration of all Letters of Credit, to all other
obligations of the types described in clauses "FOURTH", "FIFTH" and "SIXTH"
above in the manner provided in this Section 3.15(b).
3.16 EVIDENCE OF DEBT.
----------------------
(a) Each Lender shall maintain an account or accounts evidencing each
Loan made by such Lender to the Borrower from time to time, including the
amounts of principal and interest payable and paid to such Lender from time
to time under this Credit Agreement. Each Lender will make reasonable
efforts to maintain the accuracy of its account or accounts and to promptly
update its account or accounts from time to time, as necessary.
(b) The Agent shall maintain the Register pursuant to Section 11.3(c),
and a subaccount for each Lender, in which Register and subaccounts (taken
together) shall be recorded (i) the amount, type and Interest Period of each
such Loan hereunder, (ii) the amount of any principal or interest due and
payable or to become due and payable to each Lender hereunder and (iii) the
amount of any sum received by the Agent hereunder from or for the account of
any Credit Party and each Lender's share thereof. The Agent will make
reasonable efforts to maintain the accuracy of the subaccounts referred to
in the preceding sentence and to promptly update such subaccounts from time
to time, as necessary.
(c) The entries made in the accounts, Register and subaccounts
maintained pursuant to clause (b) of this Section 3.16 (and, if consistent
with the entries of the Agent, clause (a)) shall be prima facie evidence of
the existence and amounts of the obligations of the Credit Parties therein
recorded; provided, however, that the failure of any Lender or the Agent to
maintain any such account, such Register or such subaccount, as applicable,
or any error therein, shall not in any manner affect the obligation of the
Credit Parties to repay the Credit Party Obligations owing to such Lender.
3.17 REPLACEMENT OF AFFECTED LENDERS.
-------------------------------------
If any Lender having a Revolving Commitment becomes a Defaulting Lender or
otherwise defaults in its Revolving Commitment or if any Lender is owed
increased costs under Section 3.6, Section 3.8, Section 3.9, or, or the Borrower
is required to make any payments under Section 3.11 to any Lender in excess of
those to the other Lenders, the Borrower shall have the right, if no Event of
Default then exists, to replace such Lender (the "Replaced Lender") with one or
more other Eligible Assignee or Eligible Assignees, none of whom shall
constitute a Defaulting Lender at the time of such replacement (collectively,
the "Replacement Lender") reasonably acceptable to the Agent, provided that (i)
at the time of any replacement pursuant to this Section 3.17, the Replaced
Lender and Replacement Lender shall enter into an Assignment and Acceptance in
the form of Exhibit 11.3(b), pursuant to which the Replacement Lender shall
acquire at par all of the Commitments and outstanding Loans of, and
participation in Letters of Credit and Swingline Loans by, the Replaced Lender
and the Replaced Lender shall assign its Commitments, Loans and Participation
Interests to the Replacement Lender and (ii) all obligations of the Borrower
owing to the Replaced Lender (including, without limitation, such increased
costs and excluding those specifically described in clause (i) above in respect
of which the assignment purchase price has been, or is concurrently being paid)
shall be paid in full to such Replaced Lender concurrently with such
replacement. Upon the execution of the assignment documentation, the payment of
amounts referred to in clauses (i) and (ii) above and, if so requested by the
Replacement Lender, delivery to the Replacement Lender of the appropriate Note
or Notes executed by the Borrower, the Replacement Lender shall become a Lender
hereunder and the Replaced Lender shall cease to constitute a Lender hereunder,
except with respect to indemnification provisions under this Agreement, which
shall survive as to such Replaced Lender. Notwithstanding anything to the
contrary contained above, (1) the Lender that acts as the Issuing Lender may not
be replaced hereunder at any time that it has Letters of Credit outstanding
hereunder unless arrangements satisfactory to the Issuing Lender (including the
furnishing of a back-up standby letter of credit in form and substance, and
issued by an issuer satisfactory to such Issuing Lender or the depositing of
cash collateral into a cash collateral account maintained with the Agent in
amounts and pursuant to arrangements satisfactory to such Issuing Lender) have
been made with respect to such outstanding Letters of Credit and (2) the Lender
that acts as the Agent may not be replaced hereunder except in accordance with
the terms of Section 10.9. The Replaced Lender shall be required to deliver for
cancellation its applicable Notes, if any, to be canceled on the date of
replacement, or if any such Note is lost or unavailable, such other assurances
or indemnification therefor as the Borrower may reasonably request.
SECTION 4
GUARANTY
--------
4.1 THE GUARANTY.
-----------------
Each of the Guarantors hereby jointly and severally guarantees to each
Lender, each Affiliate of a Lender that enters into a Hedging Agreement, and the
Agent as hereinafter provided, as primary obligor and not as surety, the prompt
payment of the Credit Party Obligations in full when due (whether at stated
maturity, as a mandatory prepayment, by acceleration, as a mandatory cash
collateralization or otherwise) strictly in accordance with the terms thereof.
The Guarantors hereby further agree that if any of the Credit Party Obligations
are not paid in full when due (whether at stated maturity, as a mandatory
prepayment, by acceleration, as a mandatory cash collateralization or
otherwise), the Guarantors will, jointly and severally, promptly pay the same,
without any demand or notice whatsoever, and that in the case of any extension
of time of payment or renewal of any of the Credit Party Obligations, the same
will be promptly paid in full when due (whether at extended maturity, as a
mandatory prepayment, by acceleration, as a mandatory cash collateralization or
otherwise) in accordance with the terms of such extension or renewal.
Notwithstanding any provision to the contrary contained herein or in any
other of the Credit Documents or Hedging Agreements, the obligations of each
Guarantor under this Credit Agreement and the other Credit Documents shall be
limited to an aggregate amount equal to the largest amount that would not render
such obligations subject to avoidance under Section 548 of the Bankruptcy Code
or any comparable provisions of any applicable state law.
4.2 OBLIGATIONS UNCONDITIONAL.
------------------------------
The obligations of the Guarantors under Section 4.1 are joint and several,
absolute, irrevocable and unconditional, irrespective of the value, genuineness,
validity, regularity or enforceability of any of the Credit Documents or Hedging
Agreements, or any other agreement or instrument referred to therein or relating
thereto, or any substitution, release, impairment or exchange of any other
guarantee of or security for any of the Credit Party Obligations, and, to the
fullest extent permitted by applicable law, irrespective of any other
circumstance whatsoever which might otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor, it being the intent of this
Section 4.2 that the obligations of the Guarantors hereunder shall be absolute,
irrevocable and unconditional under any and all circumstances. Each Guarantor
agrees that such Guarantor shall have no right of subrogation, indemnity,
reimbursement or contribution against the Borrower or any other Guarantor for
amounts paid under this Section 4 until such time as the Lenders (and any
Affiliates of Lenders entering into Hedging Agreements) have been paid in full
in respect of all Credit Party Obligations, all Commitments under this Credit
Agreement have been terminated and no Person or Governmental Authority shall
have any right to request any return or reimbursement of funds from the Lenders
in connection with monies received under the Credit Documents or Hedging
Agreements between any Consolidated Party and any Lender, or any Affiliate of a
Lender. Without limiting the generality of the foregoing, it is agreed that, to
the fullest extent permitted by law, the occurrence of any one or more of the
following shall not alter or impair the liability of any Guarantor hereunder
which shall remain absolute, irrevocable and unconditional as described above
and each Guarantor hereby waives any and all defenses that it may now or
hereafter have arising out of any of the following or any other event set forth
in this Section 4.2:
(a) at any time or from time to time, without notice to any Guarantor,
the time for any performance of or compliance with any of the Credit Party
Obligations shall be extended, or such performance or compliance shall be
waived;
(b) any of the acts mentioned in any of the provisions of any of the
Credit Documents, any Hedging Agreement between any Consolidated Party and
any Lender, or any Affiliate of a Lender, or any other agreement or
instrument referred to in the Credit Documents or such Hedging Agreements
shall be done or omitted;
(c) the maturity of any of the Credit Party Obligations shall be
accelerated, or any of the Credit Documents or the Credit Party Obligations
shall be modified, supplemented or amended in any respect, or any right
under any of the Credit Documents, any Hedging Agreement between any
Consolidated Party and any Lender, or any Affiliate of a Lender, or any
other agreement or instrument referred to in the Credit Documents or such
Hedging Agreements or relating thereto shall be waived or any other
guarantee of any of the Credit Party Obligations or any security therefor
shall be released, impaired or exchanged in whole or in part or otherwise
dealt with;
(d) any Lien granted to, or in favor of, the Agent or any Lender or
Lenders as security for any of the Credit Party Obligations shall fail to
attach or be perfected;
(e) any manner of application of Collateral, or proceeds thereof, to any
or all of the Guaranteed Obligations, or any manner of sale or other
disposition of any Collateral for all or any of the Guaranteed Obligations
or any other assets of the Borrower or any of its Subsidiaries;
(f) any change, restructuring or termination of the corporate structure
or existence of the Borrower or any of its Subsidiaries; or
(g) any of the Credit Party Obligations shall be determined to be void
or voidable (including, without limitation, for the benefit of any creditor
of any Guarantor) or shall be subordinated to the claims of any Person
(including, without limitation, any creditor of any Guarantor).
With respect to its obligations hereunder, each Guarantor hereby expressly
waives promptness, diligence, presentment, demand of payment, protest and all
notices whatsoever, and any requirement that the Agent or any Lender exhaust any
right, power or remedy or proceed against any Person under any of the Credit
Documents, any Hedging Agreement between any Consolidated Party and any Lender,
or any Affiliate of a Lender, or any other agreement or instrument referred to
in the Credit Documents or such Hedging Agreements, or against any other Person
under any other guarantee of, or security for, any of the Credit Party
Obligations.
4.3 REINSTATEMENT.
------------------
The obligations of the Guarantors under this Section 4 shall be
automatically reinstated if and to the extent that for any reason any payment by
or on behalf of any Person in respect of the Credit Party Obligations is
rescinded or must be otherwise restored by any holder of any of the Credit Party
Obligations, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise, and each Guarantor agrees that it will indemnify
the Agent and each Lender on demand for all reasonable costs and expenses
(including, without limitation, fees and expenses of counsel) incurred by the
Agent or such Lender in connection with such rescission or restoration,
including any such costs and expenses incurred in defending against any claim
alleging that such payment constituted a preference, fraudulent transfer or
similar payment under any bankruptcy, insolvency or similar law.
4.4 CERTAIN ADDITIONAL WAIVERS.
-------------------------------
Without limiting the generality of the provisions of this Section 4,
including, without limitation, any other waivers of defenses contained herein,
each Guarantor hereby specifically waives the benefits of N.C. Gen. Stat. ▇▇.▇▇.
26-7 through 26-9, inclusive, to the extent applicable. Each Guarantor further
agrees that such Guarantor shall have no right of recourse to security for the
Credit Party Obligations, except through the exercise of rights of subrogation
pursuant to Section 4.2 and through the exercise of rights of contribution
pursuant to Section 4.6.
4.5 REMEDIES.
-------------
The Guarantors agree that, to the fullest extent permitted by law, as
between the Guarantors, on the one hand, and the Agent and the Lenders, on the
other hand, the Credit Party Obligations may be declared to be forthwith due and
payable as provided in Section 9.2 (and shall be deemed to have become
automatically due and payable in the circumstances provided in said Section 9.2)
for purposes of Section 4.1 notwithstanding any stay, injunction or other
prohibition preventing such declaration (or preventing the Credit Party
Obligations from becoming automatically due and payable) as against any other
Person and that, in the event of such declaration (or the Credit Party
Obligations being deemed to have become automatically due and payable), the
Credit Party Obligations (whether or not due and payable by any other Person)
shall forthwith become due and payable by the Guarantors for purposes of Section
4.1. The Guarantors acknowledge and agree that their obligations hereunder are
secured in accordance with the terms of the Collateral Documents and that the
Lenders may exercise their remedies thereunder in accordance with the terms
thereof.
4.6 RIGHTS OF CONTRIBUTION.
---------------------------
The Guarantors hereby agree as among themselves that, if any Guarantor shall
make an Excess Payment (as defined below), such Guarantor shall have a right of
contribution from each other Guarantor in an amount equal to such other
Guarantor's Contribution Share (as defined below) of such Excess Payment. The
payment obligations of any Guarantor under this Section 4.6 shall be subordinate
and subject in right of payment to the prior payment in full of the Guaranteed
Obligations, and none of the Guarantors shall exercise any right or remedy under
this Section 4.6 against any other Guarantor until payment and satisfaction in
full of all of such Guaranteed Obligations. For purposes of this Section 4.6,
(a) "Guaranteed Obligations" shall mean any obligations arising under the other
provisions of this Section 4; (b) "Excess Payment" shall mean the amount paid by
any Guarantor in excess of its Pro Rata Share of any Guaranteed Obligations; (c)
"Pro Rata Share" shall mean, for any Guarantor in respect of any payment of
Guaranteed Obligations, the ratio (expressed as a percentage) as of the date of
such payment of Guaranteed Obligations of (i) the amount by which the aggregate
present fair salable value of all of its assets and properties exceeds the
amount of all debts and liabilities of such Guarantor (including contingent,
subordinated, unmatured, and unliquidated liabilities, but excluding the
obligations of such Guarantor hereunder) to (ii) the amount by which the
aggregate present fair salable value of all assets and other properties of all
of the Credit Parties exceeds the amount of all of the debts and liabilities
(including contingent, subordinated, unmatured, and unliquidated liabilities,
but excluding the obligations of the Credit Parties hereunder) of the Credit
Parties; provided, however, that, for purposes of calculating the Pro Rata
Shares of the Guarantors in respect of any payment of Guaranteed Obligations,
any Guarantor that became a Guarantor subsequent to the date of any such payment
shall be deemed to have been a Guarantor on the date of such payment and the
financial information for such Guarantor as of the date such Guarantor became a
Guarantor shall be utilized for such Guarantor in connection with such payment;
and (d) "Contribution Share" shall mean, for any Guarantor in respect of any
Excess Payment made by any other Guarantor, the ratio (expressed as a
percentage) as of the date of such Excess Payment of (i) the amount by which the
aggregate present fair salable value of all of its assets and properties exceeds
the amount of all debts and liabilities of such Guarantor (including contingent,
subordinated, unmatured, and unliquidated liabilities, but excluding the
obligations of such Guarantor hereunder) to (ii) the amount by which the
aggregate present fair salable value of all assets and other properties of the
Credit Parties other than the maker of such Excess Payment exceeds the amount of
all of the debts and liabilities (including contingent, subordinated, unmatured,
and unliquidated liabilities, but excluding the obligations of the Credit
Parties) of the Credit Parties other than the maker of such Excess Payment;
provided, however, that, for purposes of calculating the Contribution Shares of
the Guarantors in respect of any Excess Payment, any Guarantor that became a
Guarantor subsequent to the date of any such Excess Payment shall be deemed to
have been a Guarantor on the date of such Excess Payment and the financial
information for such Guarantor as of the date such Guarantor became a Guarantor
shall be utilized for such Guarantor in connection with such Excess Payment.
This Section 4.6 shall not be deemed to affect any right of subrogation,
indemnity, reimbursement or contribution that any Guarantor may have under
applicable law against the Borrower in respect of any payment of Guaranteed
Obligations. Notwithstanding the foregoing, all rights of contribution against
any Guarantor shall terminate from and after such time, if ever, that such
Guarantor shall be relieved of its obligations pursuant to Section 8.4.
4.7 GUARANTEE OF PAYMENT; CONTINUING GUARANTEE.
-----------------------------------------------
The guarantee in this Section 4 is a guaranty of payment and not of
collection, is a continuing guarantee, and shall apply to all Credit Party
Obligations whenever arising.
SECTION 5
CONDITIONS
----------
5.1 CLOSING CONDITIONS.
-----------------------
The obligation of the Lenders to enter into this Credit Agreement and to
make the initial Loans or the Issuing Lender to issue the initial Letter of
Credit, whichever shall occur first, shall be subject to satisfaction of the
following conditions (in form and substance acceptable to the Lenders):
(a) Executed Credit Documents. Receipt by the Agent of duly executed
copies of (i) this Credit Agreement, (ii) the Collateral Documents, (iii)
Agent's Fee Letter and (iv) all other Credit Documents.
(b) Corporate Documents. Receipt by the Agent of the following:
(i) Charter Documents. Copies of the articles or certificates of
incorporation or other charter documents of each Credit Party certified
to be true and complete as of a recent date by the appropriate
Governmental Authority of the state or other jurisdiction of its
incorporation and certified by a secretary or assistant secretary of
such Credit Party to be true and correct as of the Closing Date.
(ii) Bylaws. A copy of the bylaws of each Credit Party certified by
a secretary or assistant secretary of such Credit Party to be true and
correct as of the Closing Date.
(iii) Resolutions. Copies of resolutions of the Board of Directors
of each Credit Party approving and adopting the Credit Documents to
which it is a party, the transactions contemplated therein and
authorizing execution and delivery thereof, certified by a secretary or
assistant secretary of such Credit Party to be true and correct and in
force and effect as of the Closing Date.
(iv) Good Standing. Copies of (A) certificates of good standing,
existence or its equivalent with respect to each Credit Party certified
as of a recent date by the appropriate Governmental Authorities of the
state or other jurisdiction of incorporation and each other jurisdiction
in which the failure to so qualify and be in good standing could have a
Material Adverse Effect and (B) to the extent available, a certificate
indicating payment of all corporate or comparable franchise taxes
certified as of a recent date by the appropriate governmental taxing
authorities.
(v) Incumbency. An incumbency certificate of each Credit Party
certified by a secretary or assistant secretary to be true and correct
as of the Closing Date.
(c) Pledge of Stock. The Agent shall have received all stock
certificates evidencing the Capital Stock pledged to the Agent pursuant to
the Pledge Agreement, together with duly executed in blank undated stock
powers attached thereto.
(d) Opinions of Counsel. The Agent shall have received, dated as of the
Closing Date, a legal opinion of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, in form and
substance reasonably satisfactory to the Agent and the Lenders.
(e) Personal Property Collateral. The Agent shall have received:
(i) searches of Uniform Commercial Code filings in the jurisdiction
of the chief executive office of each Credit Party and each jurisdiction
where any Collateral is located or where a filing would need to be made
in order to perfect the Agent's security interest in the Collateral,
copies of the financing statements on file in such jurisdictions and
evidence that no Liens exist other than Permitted Liens;
(ii) duly executed UCC financing statements for each appropriate
jurisdiction as is necessary, in the Agent's sole discretion, to perfect
the Agent's security interest in the Collateral;
(iii) searches of ownership of, and Liens on, intellectual property
of each Credit Party in the appropriate governmental offices;
(iv) all certificates evidencing any certificated Capital Stock
pledged to the Agent pursuant to the Pledge Agreement, together with
duly executed in blank, undated stock powers attached thereto (unless,
with respect to the pledged Capital Stock of any Foreign Subsidiary,
such stock powers are deemed unnecessary by the Agent in its reasonable
discretion under the law of the jurisdiction of incorporation of such
Person);
(v) such patent/trademark/copyright filings as requested by the
Agent in order to perfect the Agent's security interest in the
Collateral; and
(vi) duly executed consents as are necessary, in the Agent's sole
discretion, to perfect the Agent's security interest in the Collateral.
(f) Evidence of Insurance. Receipt by the Agent of copies of insurance
policies or certificates of insurance of the Consolidated Parties evidencing
liability and casualty insurance meeting the requirements set forth in the
Credit Documents, including, but not limited to, naming the Agent as
additional insured (in the case of liability insurance) or sole loss payee
(in the case of hazard insurance) on behalf of the Lenders.
(g) Corporate Structure. The corporate capital and ownership structure
of the Borrower and its Subsidiaries shall be as described in Schedule 6.13.
(h) Consent. Receipt by the Agent of evidence that all governmental,
shareholder and material third party consents and approvals necessary or
desirable in connection with the financings and other transactions
contemplated hereby, and no law or regulation shall be applicable which in
the judgment of the Agent could reasonably be likely to have such effect.
(i) Litigation. Except for matters disclosed in Schedule 6.9 (which
matters have not had and are not likely to have a Material Adverse Effect),
there shall not exist any pending or threatened action, suit, investigation
or proceeding against a Consolidated Party which could reasonably be
expected to have a Material Adverse Effect.
(j) Officer's Certificates. The Agent shall have received a certificate
or certificates executed by a Responsible Officer of the Borrower as of the
Closing Date, in form and substance satisfactory to the Agent, stating that
(A) each Credit Party is in compliance with all existing material financial
obligations, (B) all governmental, shareholder and third party consents and
approvals, if any, with respect to the Credit Documents and the transactions
contemplated thereby have been obtained, (C) no action, suit, investigation
or proceeding is pending or threatened in any court or before any arbitrator
or governmental instrumentality that purports to affect any Credit Party or
any transaction contemplated by the Credit Documents, if such action, suit,
investigation or proceeding could reasonably be expected to have a Material
Adverse Effect, except as disclosed in Schedule 6.9, which matters have not
had and are not likely to have a Material Adverse Effect and (D) no Default
or Event of Default exists, all representations and warranties contained
herein and in the other Credit Documents are true and correct in all
material respects and as of the Closing Date, the Credit Parties are in pro
forma compliance with each of the financial covenants set forth in Section
7.11 (assuming for purposes hereof that such financial covenants were
measured as of, and for the 12-month period ending on, such date).
(k) Other Indebtedness. Receipt by the Agent of satisfactory evidence
that the Credit Parties shall have no Funded Debt other than the
Indebtedness permitted under Section 8.1.
(l) Senior Subordinated Notes. Receipt by the Agent of satisfactory
evidence of the repayment, defeasance or other provision for payment of the
Senior Subordinated Notes.
(m) Fees and Expenses. Payment by the Credit Parties of all fees and
expenses owed by them to the Lenders and the Agent, including, without
limitation, payment to the Agent of the fees set forth in the Agent's Fee
Letter.
(n) Other. Receipt by the Lenders of such other documents, instruments,
agreements or information as reasonably requested by any Lender, including,
but not limited to, information regarding litigation, tax, accounting,
labor, insurance, pension liabilities (actual or contingent), real estate
leases, material contracts, debt agreements, property ownership and
contingent liabilities of the Consolidated Parties.
5.2 CONDITIONS TO ALL EXTENSIONS OF CREDIT.
-------------------------------------------
The obligations of each Lender to make, convert or extend any Loan and of
the Issuing Lender to issue or extend any Letter of Credit (including the
initial Loans and the initial Letter of Credit) are subject to satisfaction of
the following conditions in addition to satisfaction on the Closing Date of the
conditions set forth in Section 5.1:
(a) The Borrower shall have delivered (i) in the case of any Revolving
Loan, any portion of the Tranche A Term Loan or any portion of the Tranche B
Term Loan, an appropriate Notice of Borrowing or Notice of
Extension/Conversion or (ii) in the case of any Letter of Credit, the
Issuing Lender shall have received an appropriate request for issuance in
accordance with the provisions of Section 2.2(b);
(b) The representations and warranties set forth in Section 6 shall,
subject to the limitations set forth therein, be true and correct in all
material respects as of such date (except for those which expressly relate
to an earlier date);
(c) There shall not have been commenced against any Consolidated Party
an involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or any case, proceeding or other
action for the appointment of a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of such Person or for any
substantial part of its Property or for the winding up or liquidation of its
affairs, and such involuntary case or other case, proceeding or other action
shall remain undismissed, undischarged or unbonded;
(d) No Default or Event of Default shall exist and be continuing either
prior to or after giving effect thereto;
(e) No development or event which has had or could reasonably be
expected to have a Material Adverse Effect shall have occurred since
December 31, 2000 (other than with respect to matters reflected in Schedule
6.9, which matters have not had and are not likely to have a Material
Adverse Effect); and
(f) Immediately after giving effect to the making of such Loan (and the
application of the proceeds thereof) or to the issuance of such Letter of
Credit, as the case may be, (i) the sum of the aggregate outstanding
principal amount of Revolving Loans plus LOC Obligations plus Swingline
Loans shall not exceed the Revolving Committed Amount and (ii) the LOC
Obligations shall not exceed the LOC Committed Amount.
The delivery of each Notice of Borrowing, each Notice of Extension/Conversion
and each request for a Letter of Credit pursuant to Section 2.2(b) shall
constitute a representation and warranty by the Credit Parties of the
correctness of the matters specified in clauses (b), (c), (d), (e) and (f)
above.
SECTION 6
REPRESENTATIONS AND WARRANTIES
------------------------------
The Credit Parties hereby represent to the Agent and each Lender that:
6.1 FINANCIAL CONDITION.
------------------------
The audited consolidated balance sheets and income statements of the
Consolidated Parties for the fiscal year ended 2000 and the unaudited interim
balance sheets and income statements of the Consolidated Parties for the
quarterly period ended March 31, 2001, have been prepared in accordance with
GAAP and present fairly in all material respects (on the basis disclosed in the
footnotes to such financial statements) the financial condition, results of
operations and cash flows of the applicable parties as of such date and for such
periods. Since December 31, 2000, there has been no sale, transfer or other
disposition by any Consolidated Party of any material part of the business or
property of the Consolidated Parties, taken as a whole, and no purchase or other
acquisition by any of them of any business or property (including any capital
stock of any other person) material in relation to the consolidated financial
condition of the Consolidated Parties, taken as a whole, in each case, which, is
not (x) reflected in the foregoing financial statements or in the notes thereto
or (y) otherwise permitted by the terms of this Credit Agreement and
communicated to the Agent.
6.2 NO MATERIAL CHANGE.
-----------------------
Since December 31, 2000, except with respect to matters reflected in
Schedule 6.9 (which matters have not had and are not likely to have a Material
Adverse Effect), there has been no development or event relating to or affecting
a Consolidated Party which could reasonably be expected to have a Material
Adverse Effect.
6.3 ORGANIZATION AND GOOD STANDING.
-----------------------------------
Each of the Consolidated Parties (a) is duly organized, validly existing and
is in good standing under the laws of the jurisdiction of its incorporation or
organization, (b) has the corporate or other necessary power and authority, and
the legal right, to own and operate its property, to lease the property it
operates as lessee and to conduct the business in which it is currently engaged
and (c) is duly qualified as a foreign entity and in good standing under the
laws of each jurisdiction where its ownership, lease or operation of property or
the conduct of its business requires such qualification, other than in such
jurisdictions where the failure to be so qualified and in good standing could
not reasonably be expected to have a Material Adverse Effect.
6.4 POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS.
--------------------------------------------------
Each of the Credit Parties has the corporate or other necessary power and
authority, and the legal right, to make, deliver and perform the Credit
Documents to which it is a party, and in the case of the Borrower, to obtain
extensions of credit hereunder, and has taken all necessary corporate action to
authorize the borrowings and other extensions of credit on the terms and
conditions of this Credit Agreement and to authorize the execution, delivery and
performance of the Credit Documents to which it is a party. No consent or
authorization of, filing with, notice to or other similar act by or in respect
of, any Governmental Authority or any other Person is required to be obtained or
made by or on behalf of any Credit Party in connection with the borrowings or
other extensions of credit hereunder or with the execution, delivery,
performance, validity or enforceability of the Credit Documents to which such
Credit Party is a party. This Credit Agreement has been, and each other Credit
Document to which any Credit Party is a party will be, duly executed and
delivered on behalf of the Credit Parties. This Credit Agreement constitutes,
and each other Credit Document to which any Credit Party is a party when
executed and delivered will constitute, a legal, valid and binding obligation of
such Credit Party enforceable against such party in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
6.5 NO CONFLICTS.
-----------------
Neither the execution and delivery of the Credit Documents, nor the
consummation of the transactions contemplated therein, nor performance of and
compliance with the terms and provisions thereof by such Credit Party will (a)
violate or conflict with any provision of its articles or certificate of
incorporation or organization or bylaws or other organizational or governing
documents of such Person, (b) violate, contravene or conflict with contractual
provisions of, or cause an event of default under, any indenture, loan
agreement, mortgage, deed of trust, contract or other agreement or instrument to
which it is a party or by which it may be bound, the violation of which could
reasonably be expected to have a Material Adverse Effect, or (c) result in or
require the creation of any Lien (other than those contemplated in or created in
connection with the Credit Documents) upon or with respect to its properties.
6.6 NO DEFAULT.
---------------
No Consolidated Party is in default in any respect under any contract,
lease, loan agreement, indenture, mortgage, security agreement or other
agreement or obligation to which it is a party or by which any of its properties
is bound which default which could reasonably be expected to have a Material
Adverse Effect. No Default or Event of Default has occurred or exists except as
previously disclosed in writing to the Lenders.
6.7 OWNERSHIP.
--------------
Each Consolidated Party is the owner of, and has good and marketable title
to, or a valid leasehold interest in, all of its respective assets and none of
such assets is subject to any Lien other than Permitted Liens.
6.8 INDEBTEDNESS.
-----------------
Except as otherwise permitted under Section 8.1, the Consolidated Parties
have no Indebtedness.
6.9 LITIGATION.
---------------
Except for matters disclosed in Schedule 6.9 (which matters have not had and
are not likely to have a Material Adverse Effect), there are no actions, suits
or legal, equitable, arbitration or administrative proceedings, pending or, to
the knowledge of any Credit Party, threatened against any Consolidated Party
which could reasonably be expected to have a Material Adverse Effect.
6.10 TAXES.
-----------
Each Consolidated Party has filed, or caused to be filed, all tax
returns (federal, state, local and foreign) required to be filed and paid (a)
all amounts of taxes shown thereon to be due (including interest and penalties)
and (b) all other taxes, fees, assessments and other governmental charges
(including mortgage recording taxes, documentary stamp taxes and intangibles
taxes) owing by it, except for such taxes (i) which are not yet delinquent or
(ii) that are being contested in good faith and by proper proceedings, and
against which adequate reserves are being maintained in accordance with GAAP. No
Credit Party is aware as of the Closing Date of any proposed tax assessments
against it or any other Consolidated Party.
6.11 COMPLIANCE WITH LAW.
-------------------------
Each Consolidated Party is in compliance with all Medicare Regulations,
Medicaid Regulations and all other Requirements of Law (including without
limitation Environmental Laws) applicable to it, or to its properties, unless
such failure to comply could not reasonably be expected to have a Material
Adverse Effect. Without limiting the generality of the foregoing, each
Consolidated Party represents that (i) current billing policies, arrangements,
protocols and instructions comply with requirements of each Medical
Reimbursement Program and are administered by properly trained personnel except
where any such failure to comply could not reasonably be expected to result in
either (A) exclusion from a Medical Reimbursement Program, or (B) loss of 5% or
more of annual consolidated revenues of the Consolidated Parties and (ii)
current compensation arrangements with physicians substantially comply with
state and federal anti-kickback, fraud and abuse, and ▇▇▇▇▇ I and II
requirements except where any such failure to comply could not reasonably be
expected to result in either (A) an exclusion from a Medical Reimbursement
Program, or (B) loss of 5% or more of annual consolidated revenues of the
Consolidated Parties.
6.12 ERISA.
-----------
(a) During the five-year period prior to the date on which this
representation is made or deemed made: (i) no ERISA Event has occurred, and,
to the best knowledge of the Credit Parties, no event or condition has
occurred or exists as a result of which any ERISA Event could reasonably be
expected to occur, with respect to any Plan; (ii) no material "accumulated
funding deficiency," as such term is defined in Section 302 of ERISA and
Section 412 of the Code, whether or not waived, has occurred with respect to
any Plan; (iii) to the best knowledge of the Credit Parties, each Plan has
been maintained, operated, and funded in compliance with its own terms and
in material compliance with the provisions of ERISA, the Code, and any other
applicable federal or state laws; and (iv) no lien in favor of the PBGC or a
Plan has arisen or is reasonably likely to arise on account of any Plan.
(b) The actuarial present value of all "benefit liabilities" (as defined
in Section 4001(a)(16) of ERISA), whether or not vested, under each Single
Employer Plan, as of the last annual valuation date prior to the date on
which this representation is made or deemed made (determined, in each case,
utilizing the actuarial assumptions used in such Plan's most recent
actuarial valuation report), did not, by any material amount, exceed as of
such valuation date the fair market value of the assets of such Plan.
(c) Neither any Consolidated Party nor any ERISA Affiliate has incurred,
or, to the best knowledge of the Credit Parties, could be reasonably
expected to incur, any material withdrawal liability under ERISA to any
Multiemployer Plan or Multiple Employer Plan. Neither any Consolidated Party
nor any ERISA Affiliate would become subject to any material withdrawal
liability under ERISA if any Consolidated Party or any ERISA Affiliate were
to withdraw completely from all Multiemployer Plans and Multiple Employer
Plans as of the valuation date most closely preceding the date on which this
representation is made or deemed made. Neither any Consolidated Party nor
any ERISA Affiliate has received any notification that any Multiemployer
Plan is in reorganization (within the meaning of Section 4241 of ERISA), is
insolvent (within the meaning of Section 4245 of ERISA), or has been
terminated (within the meaning of Title IV of ERISA), and no Multiemployer
Plan is, to the best knowledge of the Credit Parties, reasonably expected to
be in reorganization, insolvent, or terminated.
(d) No prohibited transaction (within the meaning of Section 406 of
ERISA or Section 4975 of the Code) or breach of fiduciary responsibility has
occurred with respect to a Plan which has subjected or may subject any
Consolidated Party or any ERISA Affiliate to any material liability under
Sections 406, 409, 502(i), or 502(l) of ERISA or Section 4975 of the Code,
or under any agreement or other instrument pursuant to which any
Consolidated Party or any ERISA Affiliate has agreed or is required to
indemnify any person against any such liability.
(e) Neither any Consolidated Party nor any ERISA Affiliate has any
material liability with respect to "expected post-retirement benefit
obligations" within the meaning of the Financial Accounting Standards Board
Statement 106.
6.13 SUBSIDIARIES.
------------------
Set forth on Schedule 6.13 is a complete and accurate list of all
Subsidiaries of each Consolidated Party as of the Closing Date. Information on
Schedule 6.13 includes jurisdiction of incorporation or organization, the number
of shares of each class of Capital Stock outstanding, the number and percentage
of outstanding shares of each class owned (directly or indirectly) by such
Subsidiary; and the number and effect, if exercised, of all outstanding options,
warrants, rights of conversion or purchase and all other similar rights with
respect thereto. The outstanding Capital Stock of all such Subsidiaries is
validly issued, fully paid and non-assessable and is owned by each such
Consolidated Party, directly or indirectly, free and clear of all Liens (other
than those arising under or contemplated in connection with the Credit
Documents). Other than as set forth in Schedule 6.13, no Subsidiary has
outstanding any securities convertible into or exchangeable for its Capital
Stock nor does any such Person have outstanding any rights to subscribe for or
to purchase or any options for the purchase of, or any agreements providing for
the issuance (contingent or otherwise) of, or any calls, commitments or claims
of any character relating to its Capital Stock.
6.14 GOVERNMENTAL REGULATIONS, ETC.
-----------------------------------
(a) None of the transactions contemplated by this Credit Agreement
(including, without limitation, the direct or indirect use of the proceeds
of the Loans) will violate or contravene or materially conflict with any
Requirement of Law or any other law, regulation (including, without
limitation, the Securities Act, the Securities Exchange Act, Regulation U or
Regulation X), order, writ, judgment, injunction, decree or permit
applicable to it. If requested by any Lender or the Agent, the Borrower will
furnish to the Agent and each Lender a statement, in conformity with the
requirements of FR Form U-1 referred to in Regulation U, that no part of the
Letters of Credit or proceeds of the Loans will be used, directly or
indirectly, for the purpose of "buying" or "carrying" any "margin stock"
within the meaning of Regulations U and X.
(b) None of the Consolidated Parties is (i) an "investment company", or
a company "controlled" by "investment company", within the meaning of the
Investment Company Act of 1940, as amended, (ii) a "holding company" as
defined in, or otherwise subject to regulation under, the Public Utility
Holding Company Act of 1935, as amended or (iii) subject to regulation under
any other Federal or state statute or regulation which limits its ability to
incur Indebtedness.
6.15 PURPOSE OF LOANS AND LETTERS OF CREDIT.
--------------------------------------------
The proceeds of the Loans and Letters of Credit hereunder shall be used
solely by the Borrower (a) to refinance existing Indebtedness of the Borrower
under the Existing Credit Agreement and the Senior Subordinated Notes and (b) to
provide for ongoing working capital, capital expenditures and other general
corporate purposes of the Borrower and its Subsidiaries.
6.16 ENVIRONMENTAL MATTERS.
---------------------------
Except for matters that could not be reasonably expected to have a Material
Adverse Effect:
(a) Each of the facilities and properties owned, leased or operated by
the Consolidated Parties (the "Properties") and all operations at the
Properties are in compliance with all applicable Environmental Laws, and
there is no violation of any material Environmental Law with respect to the
Properties or the businesses operated by the Consolidated Parties (the
"Businesses"), and there are no conditions relating to the Businesses or
Properties, that could give rise to any material liability under any
applicable Environmental Laws.
(b) To the best knowledge of the Credit Parties, none of the Properties
contains, or has previously contained, any Materials of Environmental
Concern at, on or under the Properties in amounts or concentrations that
constitute or constituted a violation of, or could give rise to liability
under, Environmental Laws.
(c) No Consolidated Party has received any written or verbal notice of,
or inquiry from any Governmental Authority regarding, any violation, alleged
violation, non-compliance, liability or potential liability regarding
environmental matters or compliance with Environmental Laws with regard to
any of the Properties or the Businesses, nor does any Consolidated Party
have knowledge or reason to believe that any such notice will be received or
is being threatened.
(d) Materials of Environmental Concern have not been transported or
disposed of from the Properties, or generated, treated, stored or disposed
of at, on or under any of the Properties or any other location, in each case
by or on behalf of any Consolidated Party in violation of, or in a manner
that could give rise to liability under, any applicable Environmental Law.
(e) No judicial proceeding or governmental or administrative action is
pending or, to the best knowledge of any Credit Party, threatened, under any
Environmental Law to which any Consolidated Party is or will be named as a
party, nor are there any consent decrees or other decrees, consent orders,
administrative orders or other orders, or other administrative or judicial
requirements outstanding under any Environmental Law with respect to the
Consolidated Parties, the Properties or the Businesses.
(f) There has been no release or, threat of release of Materials of
Environmental Concern at or from the Properties, or arising from or related
to the operations (including, without limitation, disposal) of any
Consolidated Party in connection with the Properties or otherwise in
connection with the Businesses, in violation of or in amounts or in a manner
that could give rise to a material liability under Environmental Laws.
6.17 INTELLECTUAL PROPERTY.
---------------------------
Each Consolidated Party owns, or has the legal right to use, all trademarks,
tradenames, copyrights, technology, know-how and processes (the "Intellectual
Property") necessary for each of them to conduct its business as currently
conducted except for those the failure to own or have such legal right to use
could not reasonably be expected to have a Material Adverse Effect. No claim has
been asserted and is pending by any Person challenging or questioning the use of
any such Intellectual Property or the validity or effectiveness of any such
Intellectual Property, nor does any Credit Party know of any such claim, and to
the Credit Parties' knowledge the use of such Intellectual Property by any
Consolidated Party does not infringe on the rights of any Person, except for
such claims and infringements that in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.
6.18 INVESTMENTS.
-----------------
All Investments of each Consolidated Party are Permitted Investments.
6.19 DISCLOSURE.
----------------
The reports, financial statements, certificates or other written information
when furnished by the Borrower or any authorized representative of the Borrower
to the Administrative Agent or any Lender in connection with the negotiation of
this Credit Agreement or delivered hereunder (as modified or supplemented by
other information when so furnished), taken as a whole, did not contain any
material misstatement of fact or omit to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not materially misleading.
6.20 BUSINESS LOCATIONS.
------------------------
Set forth on Schedule 6.20(a) is a list as of the Closing Date of all real
property located in the United States and owned or leased by any Consolidated
Party with street address and state where located. Set forth on Schedule 6.20(b)
is a list as of the Closing Date of all locations where any tangible personal
property of a Consolidated Party is located, including street address and state
where located. Set forth on Schedule 6.20(c) is the exact legal name, state of
incorporation, chief executive office and principal place of business of each
Consolidated Party.
6.21 NO UNUSUAL RESTRICTIONS.
-----------------------------
No Consolidated Party is a party to any agreement or instrument or subject
to any other obligation or any charter or corporate restriction or any provision
of any applicable law, rule or regulation which, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.
6.22 FRAUD AND ABUSE.
---------------------
To the knowledge of the officers of the Consolidated Parties, neither the
Consolidated Parties nor any of their officers, directors or Contract Providers,
have engaged in any activities which are prohibited under Medicare Regulations
or Medicaid Regulations or which are prohibited by binding rules of professional
conduct, including but not limited to the following: (i) knowingly and willfully
making or causing to be made a false statement or representation of a material
fact in any applications for any benefit or payment; (ii) knowingly and
willfully making or causing to be made any false statement or representation of
a material fact for use in determining rights to any benefit or payment; (iii)
failing to disclose knowledge by a claimant of the occurrence of any event
affecting the initial or continued right to any benefit or payment on its own
behalf or on behalf of another, with intent to secure such benefit or payment
fraudulently; (iv) knowingly and willfully soliciting or receiving any
remuneration (including any kickback, bribe or rebate), directly or indirectly,
overtly or covertly, in cash or in kind or offering to pay such remuneration (a)
in return for referring an individual to a Person for the furnishing or
arranging for the furnishing of any item or service for which payment may be
made in whole or in part by Medicare, Medicaid or other applicable third party
payors, or (b) in return for purchasing, leasing or ordering or arranging for or
recommending the purchasing, leasing or ordering of any good, facility, service,
or item for which payment may be made in whole or in part by Medicare, Medicaid
or other applicable third party payors.
6.23 LICENSING AND ACCREDITATION.
---------------------------------
Each of the Consolidated Parties and, to the knowledge of the officers of
the Consolidated Parties, each Contract Provider, has, to the extent applicable:
(i) obtained (or been duly assigned) all required certificates of need or
determinations of need as required by the relevant state Governmental Authority
for the acquisition, construction, expansion of, investment in or operation of
its businesses as currently operated; (ii) obtained and maintains in good
standing all required licenses; (iii) to the extent prudent and customary in the
industry in which it is engaged, obtained and maintains accreditation from all
generally recognized accrediting agencies; and (iv) entered into and maintains
in good standing its status as a Medicare Supplier and as a Medicaid Supplier.
To the knowledge of the officers of the Consolidated Parties, each Contract
Provider is duly licensed (where license is required) by each state or state
agency or commission, or any other Governmental Authority having jurisdiction
over the provisions of such services by such Person in the locations in which
the Consolidated Parties conduct business, required to enable such Person to
provide the professional services provided by such Person and otherwise as is
necessary to enable the Consolidated Parties to operate as currently operated
and as presently contemplated to be operated. To the knowledge of the officers
of the Consolidated Parties, all such required licenses are in full force and
effect on the date hereof and have not been revoked or suspended or otherwise
limited.
SECTION 7
AFFIRMATIVE COVENANTS
---------------------
Each Credit Party hereby covenants and agrees that so long as this Credit
Agreement is in effect or any amounts payable hereunder or under any other
Credit Document or Letter of Credit shall remain outstanding, and until all of
the Commitments hereunder shall have terminated:
7.1 INFORMATION COVENANTS.
--------------------------
The Borrower will furnish, or cause to be furnished, to the Agent and each
of the Lenders:
(a) Annual Financial Statements. As soon as available, and in any event
within 120 days after the close of each fiscal year of the Consolidated
Parties, a consolidated balance sheet and income statement of the
Consolidated Parties, as of the end of such fiscal year, together with
related consolidated statements of operations and retained earnings and of
cash flows for such fiscal year, setting forth in comparative form
consolidated figures for the preceding fiscal year, all such financial
information described above to be in reasonable form and detail, audited by
independent certified public accountants of recognized national standing
reasonably acceptable to the Agent and whose opinion shall be to the effect
that such financial statements have been prepared in accordance with GAAP
(except for changes with which such accountants concur) and shall not be
limited as to the scope of the audit or qualified as to the status of the
Consolidated Parties as a going concern or qualified or limited in any other
material respect.
(b) Quarterly Financial Statements. As soon as available, and in any
event within 45 days after the close of each fiscal quarter of the
Consolidated Parties (other than the fourth fiscal quarter, in which 120
days after the end thereof) a consolidated balance sheet and income
statement of the Consolidated Parties, as of the end of such fiscal quarter,
together with related consolidated statements of operations and of cash
flows for such fiscal quarter in each case setting forth in comparative form
consolidated figures for the corresponding period of the preceding fiscal
year, all such financial information described above to be in reasonable
form and detail and reasonably acceptable to the Agent, and accompanied by a
certificate of the chief financial officer of the Borrower to the effect
that such quarterly financial statements fairly present in all material
respects the financial condition of the Consolidated Parties and have been
prepared in accordance with GAAP, subject to changes resulting from audit
and normal year-end audit adjustments.
(c) Officer's Certificate. At the time of delivery of the financial
statements provided for in Sections 7.1(a) and 7.1(b) above, a certificate
of the chief financial officer of the Borrower substantially in the form of
Exhibit 7.1(c), (i) demonstrating compliance with the financial covenants
contained in Section 7.11 by calculation thereof as of the end of each such
fiscal period and (ii) stating that no Default or Event of Default exists,
or if any Default or Event of Default does exist, specifying the nature and
extent thereof and what action the Credit Parties propose to take with
respect thereto.
(d) Operating Budget. Simultaneously with the financial statements
referred to in (a) above, an operating budget for the fiscal year succeeding
the year covered by such financial statements.
(e) Compliance With Certain Provisions of the Credit Agreement. Within
120 days after the end of each fiscal year of the Borrower, a certificate
containing information regarding (i) the amount of all Asset Dispositions,
Debt Issuances and Equity Issuances that were made during the prior fiscal
year.
(f) Auditor's Reports. Promptly upon receipt thereof, a copy of any
other report or "management letter" submitted by independent accountants to
any Consolidated Party in connection with any annual, interim or special
audit of the books of such Person.
(g) Reports. Promptly upon transmission or receipt thereof, copies of
any filings and registrations with, and reports to or from, the Securities
and Exchange Commission, or any successor agency, and copies of all
financial statements, proxy statements, notices and reports as any
Consolidated Party shall send to its shareholders.
(h) Notices. Upon obtaining knowledge thereof, each Credit Party will
give written notice to the Agent promptly of (i) the occurrence of an event
or condition consisting of a Default or Event of Default, specifying the
nature and existence thereof and what action the Credit Parties propose to
take with respect thereto, (ii) the occurrence of any of the following with
respect to any Consolidated Party (A) the pendency or commencement of any
litigation, arbitral or governmental proceeding against such Person which if
adversely determined could reasonably be expected to have a Material Adverse
Effect, (B) the institution of any proceedings against such Person with
respect to, or the receipt of notice by such Person of potential liability
or responsibility for violation, or alleged violation of any federal, state
or local law, rule or regulation, including but not limited to,
Environmental Laws, the violation of which could reasonably be expected to
have a Material Adverse Effect, (C) any notice or determination concerning
the imposition of any withdrawal liability by a Multiemployer Plan against
such Person or any ERISA Affiliate, the determination that a Multiemployer
Plan is, or is expected to be, in reorganization within the meaning of Title
IV of ERISA or the termination of any Plan or (D) the institution of any
investigation or proceedings against such Person (or, to the knowledge of
the Borrower's officers, any Contract Provider) to suspend, revoke or
terminate or which may result in the termination of its status as a Medicaid
Supplier or its status as a Medicare Supplier or exclusion from any Medical
Reimbursement Program, promptly deliver to the Agent written notice thereof
stating the nature and status of such litigation, dispute, proceeding,
investigation, levy, execution or other process and (iii) any change in
either ▇▇▇▇▇'▇ or S&P's rating for the Borrower's long term Indebtedness.
(i) ERISA. Upon obtaining knowledge thereof, the Borrower will give
written notice to the Agent promptly (and in any event within five business
days) of: (i) of any event or condition, including, but not limited to, any
Reportable Event, that constitutes, or might reasonably lead to, an ERISA
Event; (ii) with respect to any Multiemployer Plan, the receipt of notice as
prescribed in ERISA or otherwise of any withdrawal liability assessed
against the Borrower or any of its ERISA Affiliates, or of a determination
that any Multiemployer Plan is in reorganization or insolvent (both within
the meaning of Title IV of ERISA); (iii) the failure to make full payment on
or before the due date (including extensions) thereof of all amounts which
any Consolidated Party or any ERISA Affiliate is required to contribute to
each Plan pursuant to its terms and as required to meet the minimum funding
standard set forth in ERISA and the Code with respect thereto; or (iv) any
change in the funding status of any Plan that could have a Material Adverse
Effect, together with a description of any such event or condition or a copy
of any such notice and a statement by the chief financial officer of the
Borrower briefly setting forth the details regarding such event, condition,
or notice, and the action, if any, which has been or is being taken or is
proposed to be taken by the Credit Parties with respect thereto. Promptly
upon request, the Credit Parties shall furnish the Agent and the Lenders
with such additional information concerning any Plan as may be reasonably
requested, including, but not limited to, copies of each annual
report/return (Form 5500 series), as well as all schedules and attachments
thereto required to be filed with the Department of Labor and/or the
Internal Revenue Service pursuant to ERISA and the Code, respectively, for
each "plan year" (within the meaning of Section 3(39) of ERISA).
(j) Other Information. With reasonable promptness upon any such request,
such other information regarding the business, properties or financial
condition of any Consolidated Party as the Agent or any Lender, through the
Agent, may reasonably request.
7.2 PRESERVATION OF EXISTENCE AND FRANCHISES.
---------------------------------------------
Except as a result of or in connection with a dissolution, merger or
disposition of a Subsidiary permitted under Section 8.4 or Section 8.5, each
Credit Party will, and will cause each of its Subsidiaries to, do all things
necessary to preserve and keep in full force and effect its existence, rights,
franchises and authority.
7.3 BOOKS AND RECORDS.
----------------------
Each Credit Party will, and will cause each of its Subsidiaries to, keep
complete and accurate books and records of its transactions in accordance with
good accounting practices on the basis of GAAP.
7.4 COMPLIANCE WITH LAW.
------------------------
Each Credit Party will, and will cause each of its Subsidiaries to, comply
with all laws, rules, regulations and orders, and all applicable restrictions
imposed by all Governmental Authorities, applicable to it and its Property if
noncompliance with any such law, rule, regulation, order or restriction could
reasonably be expected to have a Material Adverse Effect.
7.5 PAYMENT OF TAXES AND OTHER INDEBTEDNESS.
--------------------------------------------
Each Credit Party will, and will cause each of its Subsidiaries to, pay and
discharge (a) all taxes, assessments and governmental charges or levies imposed
upon it, or upon its income or profits, or upon any of its properties, before
they shall become delinquent, (b) all lawful claims (including claims for labor,
materials and supplies) which, if unpaid, might give rise to a Lien upon any of
its properties, and (c) except as prohibited hereunder, all of its other
Indebtedness as it shall become due; provided, however, that no Consolidated
Party shall be required to pay any such tax, assessment, charge, levy, claim or
Indebtedness which is being contested in good faith by appropriate proceedings
and as to which adequate reserves therefor have been established in accordance
with GAAP, unless the failure to make any such payment (i) could give rise to an
immediate right to foreclose on a Lien securing such amounts or (ii) which could
reasonably be expected to have a Material Adverse Effect.
7.6 INSURANCE.
--------------
(a) Each Credit Party will, and will cause each of its Subsidiaries to,
at all times maintain in full force and effect insurance (including worker's
compensation insurance, liability insurance, casualty insurance and business
interruption insurance) in such amounts, covering such risks and liabilities
and with such deductibles or self-insurance retentions as are in accordance
with normal industry practice (or as otherwise required by the Collateral
Documents). The Agent shall be named as loss payee or mortgagee, as its
interest may appear, and/or additional insured with respect to any such
insurance providing coverage in respect of any Collateral, and each provider
of any such insurance shall agree, by endorsement upon the policy or
policies issued by it or by independent instruments furnished to the Agent,
that it will give the Agent thirty (30) days prior written notice before any
such policy or policies shall be altered or canceled, and that no act or
default of any Consolidated Party or any other Person shall affect the
rights of the Agent or the Lenders under such policy or policies. The
present insurance coverage of the Consolidated Parties is outlined as to
carrier, policy number, expiration date, type and amount on Schedule 7.6.
(b) In the event that the Consolidated Parties receive Net Cash Proceeds
in excess of $5,000,000 in aggregate amount during any fiscal year of the
Consolidated Parties ("Excess Proceeds") on account of any loss of, damage
to or destruction of, or any condemnation or other taking for public use of,
any Property of the Consolidated Parties (with respect to any Consolidated
Party, an "Involuntary Disposition"), the Credit Parties shall, within the
period of 180 days following the date of receipt of such Excess Proceeds,
apply (or cause to be applied) an amount equal to such Excess Proceeds to
(i) make Eligible Reinvestments (including but not limited to the repair or
replacement of the related Property) or (ii) prepay the Loans (and cash
collateralize LOC Obligations) in accordance with the terms of Section
3.3(b)(ii)(B). All insurance proceeds shall be subject to the security
interest of the Agent (for the ratable of the Lenders) under the Collateral
Documents. Pending final application of any Excess Proceeds, the Credit
Parties may apply such Excess Proceeds to temporarily reduce the Revolving
Loans or to make Permitted Investments.
7.7 MAINTENANCE OF PROPERTY.
----------------------------
Each Credit Party will, and will cause each of its Subsidiaries to, maintain
and preserve its properties and equipment material to the conduct of its
business in good repair, working order and condition, normal wear and tear and
casualty and condemnation excepted, and will make, or cause to be made, in such
properties and equipment from time to time all repairs, renewals, replacements,
extensions, additions, betterments and improvements thereto as may be needed or
proper, to the extent and in the manner customary for companies in similar
businesses.
7.8 PERFORMANCE OF OBLIGATIONS.
-------------------------------
Each Credit Party will, and will cause each of its Subsidiaries to, perform
in all material respects all of its obligations under the terms of all material
agreements, indentures, mortgages, security agreements or other debt instruments
to which it is a party or by which it is bound, unless such failure to perform
could reasonably be expected to have a Material Adverse Effect.
7.9 USE OF PROCEEDS.
--------------------
The Borrower will use the proceeds of the Loans and will use the Letters of
Credit solely for the purposes set forth in Section 6.15.
7.10 AUDITS/INSPECTIONS.
------------------------
Upon reasonable notice and during normal business hours, each Credit Party
will, and will cause each of its Subsidiaries to, permit representatives
appointed by the Agent or any Lender, including, without limitation, independent
accountants, agents, attorneys, and appraisers to visit and inspect its
property, including its books and records, its accounts receivable and
inventory, its facilities and its other business assets, and to make photocopies
or photographs thereof and to write down and record any information such
representative obtains and shall permit the Lenders or their representatives to
investigate and verify the accuracy of information provided to the Agent and to
discuss all such matters with the officers, employees and representatives of
such Person.
7.11 FINANCIAL COVENANTS.
-------------------------
(a) Fixed Charge Coverage Ratio. The Fixed Charge Coverage Ratio, as of
the last day of each fiscal quarter of the Borrower, shall be greater than
or equal to 2.0 to 1.0.
(b) Leverage Ratio. The Leverage Ratio, as of the last day of each
fiscal quarter of the Borrower, shall be less than or equal to 2.80 to 1.0.
7.12 ADDITIONAL CREDIT PARTIES.
-------------------------------
As soon as practicable and in any event within 30 days after any Person
becomes a Subsidiary of any Credit Party, the Borrower shall provide the Agent
with written notice thereof setting forth information in reasonable detail
describing all of the assets of such Person and shall (a) cause such Person to
execute a Joinder Agreement in substantially the same form as Exhibit 7.12, (b)
cause 100% of the Capital Stock of such Person to be delivered to the Agent
(together with undated stock powers signed in blank), and pledged to the Agent
pursuant to an appropriate pledge agreement(s) in substantially the form of the
Pledge Agreement and otherwise in form acceptable to the Agent and (c) if such
Person has any Subsidiaries (i) deliver all of the Capital Stock of such
Subsidiaries (together with undated stock powers signed in blank) to the Agent
and (ii) execute a pledge agreement in substantially the form of the Pledge
Agreement and otherwise in a form acceptable to the Agent.
7.13 PLEDGED ASSETS.
--------------------
(a) Each Credit Party will cause all of its owned Property other than
Excluded Property to be subject at all times to first priority, perfected
and, in the case of owned real Property, title insured Liens in favor of the
Agent to secure the Credit Party Obligations pursuant to the terms and
conditions of the Collateral Documents or, with respect to any such Property
acquired subsequent to the Closing Date, such other additional security
documents as the Agent shall reasonably request, subject in any case to
Permitted Liens. With respect to any real Property acquired by any Credit
Party subsequent to the Closing Date and required by this Section 7.13 to be
pledged to the Agent, such Person will cause to be delivered to the Agent,
in form and substance acceptable to the Agent, documents, instruments,
opinions and other items reasonably requested by the Agent, including,
without limitation:
(i) Copies of recent ALTA surveys by registered engineers or land
surveyors (including the location of special flood hazard areas);
(ii) Standard ALTA title polices ensuring the priority of the
mortgages in amounts and from companies acceptable to the Agent. The
title policies shall include only Permitted Liens and such other
exceptions as are reasonably acceptable to the Agent. Copies of recorded
documentation relating to all such exceptions shall be provided to the
Agent; and
(iii) Copies of existing environmental reports and other
environmental documentation.
(b) The Credit Parties will cause (i) 100% of the issued and outstanding
Capital Stock of the Borrower and (ii) 100% of the issued and outstanding
Capital Stock of each Domestic Subsidiary to be subject at all times to a
first priority, perfected Lien in favor of the Agent pursuant to the terms
and conditions of the Collateral Documents or such other security documents
as the Agent shall reasonably request.
(c) Notwithstanding anything to the contrary contained in Section
7.13(a), this Credit Agreement or any of the Collateral Documents:
(i) if at any time (A) the Qui Tam Litigation has been dismissed
with prejudice, or otherwise dismissed or disposed of in a manner which
precludes the refiling thereof, settled or is subject to a final,
non-appealable judgment, award or similar order and (B) (1) ▇▇▇▇▇'▇ has
assigned to the Credit Facilities a rating of Baa3 or higher and (2) S&P
has assigned to the Credit Facilities a rating of BBB- or higher, then,
so long as no Default or Event of Default shall have occurred and be
continuing, the Borrower will not be required to cause all of its owned
Property (other than the Collateral described in clause (b) above) to be
subject at all times to first priority, perfected Liens in favor of the
Agent and the Agent shall deliver to the Credit Parties, upon the Credit
Parties' request and at the Credit Parties' expense, such documentation
as is reasonably necessary to evidence the release of the Agent's
security interest in such Collateral, including, without limitation,
amendments or terminations of UCC financing statements and mortgage
instruments with respect to any owned real property.
(ii) if at any time either (A) ▇▇▇▇▇'▇ has assigned to the Credit
Facilities a rating of lower than Baa3, or (B) S&P has assigned to the
Credit Facilities a rating of lower than BBB-, the requirement of
Section 7.13(a) shall be in full force and effect and each Credit Party
shall, within 60 days following such rating change, cause all of its
owned and after acquired Property other than Excluded Property to be
subject at all times to first priority, perfected and, in the case of
owned real Property, title insured Liens in favor of the Agent and shall
deliver to the Agent such UCC financing statements, real property
documents, instruments, opinions and other items of the types required
to be delivered pursuant to Sections 5.1(e) and 7.13(a) each in form and
substance acceptable to the Agent.
SECTION 8
NEGATIVE COVENANTS
------------------
Each Credit Party hereby covenants and agrees that, so long as this Credit
Agreement is in effect or any amounts payable hereunder or under any other
Credit Document or Letter of Credit shall remain outstanding, and until all of
the Commitments hereunder shall have terminated:
8.1 INDEBTEDNESS.
-----------------
The Credit Parties will not permit any Consolidated Party to contract,
create, incur, assume or permit to exist any Indebtedness, except:
(a) Indebtedness arising under this Credit Agreement and the other
Credit Documents;
(b) Indebtedness of the Borrower and its Subsidiaries set forth in
Schedule 8.1;
(c) purchase money Indebtedness (including Capital Leases) or Synthetic
Leases hereafter incurred by the Borrower or any of its Subsidiaries to
finance the purchase of fixed assets provided that (i) the total of all such
Indebtedness for all such Persons taken together shall not exceed an
aggregate principal amount of $25,000,000 at any one time outstanding
(including any such Indebtedness referred to in subsection (b) above); (ii)
such Indebtedness when incurred shall not exceed the purchase price of the
asset(s) financed; and (iii) no such Indebtedness shall be refinanced for a
principal amount in excess of the principal balance outstanding thereon at
the time of such refinancing;
(d) obligations of the Borrower or any of its Subsidiaries in respect of
Hedging Agreements entered into in order to manage existing or anticipated
interest rate or exchange rate risks and not for speculative purposes;
(e) unsecured Indebtedness payable to the seller of the Capital Stock or
Property acquired in a Permitted Acquisition representing all or a portion
of the purchase price of the Capital Stock or Property so acquired;
(f) Indebtedness owing by one Credit Party to another Credit Party;
(g) Subordinated Indebtedness; and
(h) other Indebtedness hereafter incurred by the Borrower not exceeding
$50,000,000 in aggregate principal amount at any time outstanding.
8.2 LIENS.
----------
The Credit Parties will not permit any Consolidated Party to contract,
create, incur, assume or permit to exist any Lien with respect to any of its
Property, whether now owned or after acquired, except for Permitted Liens.
8.3 NATURE OF BUSINESS.
-----------------------
The Credit Parties will not permit any Consolidated Party to substantively
alter the character or conduct of the business conducted by such Person as of
the Closing Date.
8.4 CONSOLIDATION, MERGER, DISSOLUTION, ETC.
--------------------------------------------
Except in connection with an Permitted Asset Disposition, the Credit Parties
will not permit any Consolidated Party to enter into any transaction of merger
or consolidation or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution); provided that, notwithstanding the foregoing
provisions of this Section 8.4 but subject to the terms of Sections 7.12 and
7.13, (a) the Borrower may merge or consolidate with any of its Subsidiaries
provided that the Borrower shall be the continuing or surviving corporation, (b)
any Credit Party other than the Borrower may merge or consolidate with any other
Credit Party other than the Borrower, (c) any Consolidated Party which is not a
Credit Party may be merged or consolidated with or into any Credit Party
provided that such Credit Party shall be the continuing or surviving
corporation, (d) any Consolidated Party which is not a Credit Party may be
merged or consolidated with or into any other Consolidated Party which is not a
Credit Party, (e) any Subsidiary of the Borrower may merge with any Person that
is not a Credit Party in connection with an Asset Disposition permitted under
Section 8.5, (f) the Borrower or any Subsidiary of the Borrower may merge with
any Person other than a Consolidated Party in connection with a Permitted
Acquisition provided that, if such transaction involves the Borrower, the
Borrower shall be the continuing or surviving corporation and (g) any Wholly
Owned Subsidiary of the Borrower may dissolve, liquidate or wind up its affairs
at any time provided that such dissolution, liquidation or winding up, as
applicable, could not have a Material Adverse Effect.
8.5 ASSET DISPOSITIONS.
-----------------------
The Credit Parties will not permit any Consolidated Party to make any Asset
Disposition (including, without limitation, any Sale and Leaseback Transaction)
unless (a) the consideration paid in connection therewith shall be cash or Cash
Equivalents, (b) if such transaction is a Sale and Leaseback Transaction, such
transaction is not prohibited by the terms of Section 8.13, (c) such transaction
does not involve the sale or other disposition of a minority equity interest in
any Consolidated Party, (d) such transaction does not involve a sale or other
disposition of receivables other than receivables owned by or attributable to
other Property concurrently being disposed of in a transaction otherwise
permitted under this Section 8.5, (e) the aggregate net book value of all of the
assets sold or otherwise disposed of by the Consolidated Parties in all such
transactions after the Closing Date shall not exceed an aggregate amount of more
than ten percent (10%) of the Consolidated Assets determined as of the end of
the most recently completed fiscal quarter of the Borrower and (f) the Credit
Parties shall, within the period of 120 days following the consummation of such
Asset Disposition (with respect to any such Asset Disposition, the "Application
Period"), apply (or cause to be applied) an amount equal to the Net Cash
Proceeds of such Asset Disposition to (i) make Eligible Reinvestments or (ii)
prepay the Loans (and cash collateralize LOC Obligations) in accordance with the
terms of Section 3.3(b)(ii)(A). Pending final application of the Net Cash
Proceeds of any Asset Disposition, the Consolidated Parties may apply such Net
Cash Proceeds to temporarily reduce the Revolving Loans or to make Investments
in Cash Equivalents.
Upon a sale of assets or the sale of Capital Stock of a Consolidated Party
permitted by this Section 8.5, the Agent shall (to the extent applicable)
deliver to the Credit Parties, upon the Credit Parties' request and at the
Credit Parties' expense, such documentation as is reasonably necessary to
evidence the release of the Agent's security interest, if any, in such assets or
Capital Stock, including, without limitation, amendments or terminations of UCC
financing statements, if any, the return of stock certificates, if any, and the
release of such Consolidated Party from all of its obligations, if any, under
the Credit Documents.
8.6 INVESTMENTS.
----------------
The Credit Parties will not permit any Consolidated Party to make
Investments in or to any Person, except for Permitted Investments.
8.7 RESTRICTED PAYMENTS.
------------------------
The Credit Parties will not permit any Consolidated Party to, directly or
indirectly, declare, order, make or set apart any sum for or pay any Restricted
Payment, except, so long as no Default or Event of Default shall have occurred
or would occur as a result thereof, (a) to make dividends payable solely in the
same class of Capital Stock of such Person and (b) to make dividends or other
distributions payable to any Credit Party (directly or indirectly through
Subsidiaries) and ratably to minority shareholders and (c) other distributions
in respect the redemption, retirement, purchase or other acquisition of the
capital stock of the Borrower (or any warrant, option or other rights with
respect to any shares of capital stock (now or hereafter outstanding) of the
Borrower) so long as (i) if no Default has occurred and is continuing or would
result from such action, (ii) the aggregate amount of all such distributions
pursuant to this clause (c) shall not exceed (x) $35,000,000 during any fiscal
year of the Borrower and (y) $100,000,000 in the aggregate following the Closing
Date.
8.8 PREPAYMENTS OF SUBORDINATED INDEBTEDNESS, ETC.
--------------------------------------------------
The Credit Parties will not permit any Consolidated Party to, after the
issuance thereof, amend or modify (or permit the amendment or modification of)
any of the terms of any Subordinated Indebtedness if such amendment or
modification would add or change any terms in a manner adverse to the issuer of
such Indebtedness, or shorten the final maturity or average life to maturity or
require any payment to be made sooner than originally scheduled or increase the
interest rate applicable thereto or change any subordination provision thereof.
8.9 TRANSACTIONS WITH AFFILIATES.
---------------------------------
The Credit Parties will not permit any Consolidated Party to enter into or
permit to exist any transaction or series of transactions with any officer,
director, shareholder, Subsidiary or Affiliate of such Person other than (a)
transactions permitted by Section 8.1, Section 8.4, Section 8.6 or Section 8.7,
(b) normal compensation and reimbursement of expenses of officers and directors
and (c) except as otherwise specifically limited in this Credit Agreement, other
transactions which are entered into in the ordinary course of such Person's
business on terms and conditions substantially as favorable to such Person as
would be obtainable by it in a comparable arms-length transaction with a Person
other than an officer, director, shareholder, Subsidiary or Affiliate.
8.10 FISCAL YEAR; ORGANIZATIONAL DOCUMENTS.
-------------------------------------------
The Credit Parties will not permit any Consolidated Party to change its
fiscal year or amend, modify or change its articles of incorporation or
organization (or corporate charter or other similar organizational document) or
bylaws or operating agreement (or other similar document) in any manner adverse
to the Lenders without the prior written consent of the Required Lenders.
8.11 LIMITATION ON RESTRICTED ACTIONS.
--------------------------------------
The Credit Parties will not permit any Consolidated Party to, directly or
indirectly, create or otherwise cause or suffer to exist or become effective any
encumbrance or restriction on the ability of any such Person to (a) pay
dividends or make any other distributions to any Credit Party on its Capital
Stock or with respect to any other interest or participation in, or measured by,
its profits, (b) pay any Indebtedness or other obligation owed to any Credit
Party, (c) make loans or advances to any Credit Party, (d) sell, lease or
transfer any of its properties or assets to any Credit Party (except as
permitted under Section 8.1(c)), (e) ▇▇▇▇▇ ▇ ▇▇▇▇ on its properties or assets
whether now owned or hereafter acquired (except to the extent permitted under
Section 8.14) or (f) act as a Guarantor and pledge its assets pursuant to the
Credit Documents or any renewals, refinancings, exchanges, refundings or
extension thereof, except (in respect of any of the matters referred to in
clauses (a)-(d) above) for such encumbrances or restrictions existing under or
by reason of (i) this Credit Agreement and the other Credit Documents or (ii)
applicable law.
8.12 OWNERSHIP OF SUBSIDIARIES; LIMITATIONS ON BORROWER.
--------------------------------------------------------
Notwithstanding any other provisions of this Credit Agreement to the
contrary, the Credit Parties will not permit any Consolidated Party to (a)
permit any Person (other than the Borrower or any Wholly-Owned Subsidiary of the
Borrower) to own any Capital Stock of any Subsidiary of the Borrower, (b) permit
any Subsidiary of the Borrower to issue Capital Stock (except to the Borrower or
to a Wholly-Owned Subsidiary of the Borrower), (c) permit, create, incur, assume
or suffer to exist any Lien thereon, in each case (i) except to qualify
directors where required by applicable law or to satisfy other requirements of
applicable law with respect to the ownership of Capital Stock of Subsidiaries,
(ii) except as a result of or in connection with a dissolution, merger or
disposition of a Subsidiary not prohibited under Section 8.4 or Section 8.5 or
(iii) except for Permitted Liens and (d) notwithstanding anything to the
contrary contained in clause (b) above, permit any Subsidiary of the Borrower to
issue any shares of preferred Capital Stock.
8.13 SALE LEASEBACKS.
---------------------
The Credit Parties will not permit any Consolidated Party to enter into any
Sale and Leaseback Transaction.
8.14 NO FURTHER NEGATIVE PLEDGES.
---------------------------------
Except (a) pursuant to this Credit Agreement and the other Credit Documents,
(b) pursuant to any document or instrument governing Indebtedness incurred
pursuant to Section 8.1(c), provided that any such restriction contained therein
relates only to the asset or assets constructed or acquired in connection
therewith and (c) pursuant to any document or instrument governing Subordinated
Indebtedness permitted under Section 8.1(g) hereunder, provided that any such
restriction contained therein does not apply to "senior debt" thereunder
(including the Loans and Credit Party Obligations hereunder), the Credit Parties
will not permit any Consolidated Party to enter into, assume or become subject
to any agreement prohibiting or otherwise restricting the creation or assumption
of any Lien upon its properties or assets, whether now owned or hereafter
acquired, or requiring the grant of any security for such obligation if security
is given for some other obligation.
8.15 NO FOREIGN SUBSIDIARIES.
-----------------------------
The Credit Parties will not create, acquire or permit to exist any Foreign
Subsidiary.
8.16 CAPITAL EXPENDITURES.
--------------------------
(a) Other than Consolidated Capital Expenditures of the type set forth
in clause (b) below, the Credit Parties will not permit Consolidated Capital
Expenditures for any fiscal year to exceed 14% of the annual consolidated
revenues of the Consolidated Parties, determined in accordance with GAAP, as
of the end of the most recently completed fiscal year of the Borrower.
(b) The Credit Parties will not permit Consolidated Capital Expenditures
incurred in connection with Permitted Acquisitions, for any fiscal year to
exceed 2% of the annual consolidated revenues of the Consolidated Parties,
determined in accordance with GAAP, as of the end of the most recently
completed fiscal year of the Borrower.
SECTION 9
EVENTS OF DEFAULT
-----------------
9.1 EVENTS OF DEFAULT.
----------------------
An Event of Default shall exist upon the occurrence of any of the following
specified events (each an "Event of Default"):
(a) Payment. Any Credit Party shall
(i) default in the payment when due of any principal of any of the
Loans or of any reimbursement obligations arising from drawings under
Letters of Credit (other than solely as a result of the failure by the
Administrative Agent or any Lender to comply with Section 2.2(e)), or
(ii) default, and such default shall continue for three (3) or more
Business Days, in the payment when due of any interest on the Loans or
on any reimbursement obligations arising from drawings under Letters of
Credit, or of any fees or other amounts owing hereunder, under any of
the other Credit Documents or in connection herewith or therewith; or
(b) Representations. Any representation, warranty or statement made or
deemed to be made by any Credit Party herein, in any of the other Credit
Documents, or in any statement or certificate delivered or required to be
delivered pursuant hereto or thereto shall prove untrue in any material
respect on the date as of which it was made or deemed to have been made; or
(c) Covenants. Any Credit Party shall
(i) default in the due performance or observance of any term,
covenant or agreement contained in Sections 7.2, 7.9, 7.11 or 8.1
through 8.16, inclusive;
(ii) default in the due performance or observance of any term,
covenant or agreement contained in Section 7.1 and such default shall
continue unremedied for a period of at least 5 business days after the
earlier of a responsible officer of a Credit Party becoming aware of
such default or notice thereof by the Agent; or
(iii) default in the due performance or observance by it of any
term, covenant or agreement (other than those referred to in subsections
(a), (b), (c)(i) or (c)(ii) of this Section 9.1) contained in this
Credit Agreement and such default shall continue unremedied for a period
of at least 30 days after the earlier of a responsible officer of a
Credit Party becoming aware of such default or notice thereof by the
Agent.
(d) Other Credit Documents. (i) Any Credit Party shall default in the
due performance or observance of any term, covenant or agreement in any of
the other Credit Documents (subject to applicable grace or cure periods, if
any) or repudiate its obligations thereunder, or (ii) except as a result of
or in connection with a dissolution, merger or disposition of a Subsidiary
not prohibited under Section 8.4 or Section 8.5, any Credit Document shall
fail to be in full force and effect or to give the Agent and/or the Lenders
the Liens, rights, powers and privileges purported to be created thereby, or
any Credit Party shall so state in writing; or
(e) Guaranties. Except as the result of or in connection with a
dissolution, merger or disposition of a Subsidiary permitted under Section
8.4, the guaranty given by any Guarantor hereunder (including any Person
after the Closing Date in accordance with Section 7.12) or any provision
thereof shall cease to be in full force and effect, or any Guarantor
(including any Person after the Closing Date in accordance with Section
7.12) hereunder or any Person acting by or on behalf of such Guarantor shall
deny or disaffirm such Guarantor's obligations under such guaranty, or any
Guarantor shall default in the due performance or observance of any term,
covenant or agreement on its part to be performed or observed pursuant to
any guaranty; or
(f) Bankruptcy, etc. Any Bankruptcy Event shall occur with respect to
any Consolidated Party; or
(g) Defaults under Other Agreements. With respect to any Indebtedness
(other than Indebtedness outstanding under this Credit Agreement) in excess
of $5,000,000 in the aggregate for the Consolidated Parties taken as a
whole, (i) any Consolidated Party shall (A) default in any payment (beyond
the applicable grace period with respect thereto, if any) with respect to
any such Indebtedness, or (B) default (after giving effect to any applicable
grace period) in the observance or performance of any term, covenant or
agreement relating to such Indebtedness or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event or
condition shall occur or condition exist, the effect of which default or
other event or condition is to cause, or permit, the holder or holders of
such Indebtedness (or trustee or agent on behalf of such holders) to cause
(determined without regard to whether any notice or lapse of time is
required), any such Indebtedness to become due prior to its stated maturity;
or (ii) any such Indebtedness shall be declared due and payable, or required
to be prepaid other than by a regularly scheduled required prepayment, prior
to the stated maturity thereof.
(h) Judgments. One or more judgments or decrees shall be entered against
one or more of the Consolidated Parties involving a liability of $5,000,000
or more in the aggregate (to the extent not paid or fully covered by
insurance provided by a carrier who has acknowledged coverage and has, in
the reasonable judgment of the Agent, the ability to perform) and any such
judgments or decrees shall not have been satisfied, vacated, discharged or
stayed or bonded pending appeal within 60 days from the entry thereof; or
(i) ERISA. Any of the following events or conditions, if such event or
condition could have a Material Adverse Effect (i) any "accumulated funding
deficiency," as such term is defined in Section 302 of ERISA and Section 412
of the Code, whether or not waived, shall exist with respect to any Plan, or
any lien shall arise on the assets of any Consolidated Party or any ERISA
Affiliate in favor of the PBGC or a Plan; (ii) an ERISA Event shall occur
with respect to a Single Employer Plan, which is, in the reasonable opinion
of the Agent, likely to result in the termination of such Plan for purposes
of Title IV of ERISA; (iii) an ERISA Event shall occur with respect to a
Multiemployer Plan or Multiple Employer Plan, which is, in the reasonable
opinion of the Agent, likely to result in (A) the termination of such Plan
for purposes of Title IV of ERISA, or (B) any Consolidated Party or any
ERISA Affiliate incurring any liability in connection with a withdrawal
from, reorganization of (within the meaning of Section 4241 of ERISA), or
insolvency or (within the meaning of Section 4245 of ERISA) such Plan; or
(iv) any prohibited transaction (within the meaning of Section 406 of ERISA
or Section 4975 of the Code) or breach of fiduciary responsibility shall
occur which may subject any Consolidated Party or any ERISA Affiliate to any
liability under Sections 406, 409, 502(i), or 502(l) of ERISA or Section
4975 of the Code, or under any agreement or other instrument pursuant to
which any Consolidated Party or any ERISA Affiliate has agreed or is
required to indemnify any person against any such liability; or
(j) Ownership. There shall occur a Change of Control.
9.2 ACCELERATION; REMEDIES.
---------------------------
Upon the occurrence of an Event of Default, and at any time thereafter
unless and until such Event of Default has been waived by the requisite Lenders
(pursuant to the voting requirements of Section 11.6), the Agent shall, upon the
request and direction of the Required Lenders, by written notice to the Credit
Parties take any of the following actions:
(a) Termination of Commitments. Declare the Commitments terminated
whereupon the Commitments shall be immediately terminated.
(b) Acceleration. Declare the unpaid principal of and any accrued
interest in respect of all Loans, any reimbursement obligations arising from
drawings under Letters of Credit and any and all other indebtedness or
obligations of any and every kind owing by the Borrower to the Agent and/or
any of the Lenders hereunder to be due whereupon the same shall be
immediately due and payable without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the Borrower.
(c) Cash Collateral. Direct the Borrower to pay (and the Borrower agrees
that upon receipt of such notice, or upon the occurrence of an Event of
Default under Section 9.1(f), it will immediately pay) to the Agent
additional cash, to be held by the Agent, for the benefit of the Lenders, in
a cash collateral account as additional security for the LOC Obligations in
respect of subsequent drawings under all then outstanding Letters of Credit
in an amount equal to the maximum aggregate amount which may be drawn under
all Letters of Credits then outstanding.
(d) Enforcement of Rights. Enforce any and all rights and interests
created and existing under the Credit Documents including, without
limitation, all rights and remedies existing under the Pledge Agreement, all
rights and remedies against a Guarantor and all rights of set-off.
Notwithstanding the foregoing, if an Event of Default specified in Section
9.1(f) shall occur, then the Commitments shall automatically terminate and all
Loans, all reimbursement obligations arising from drawings under Letters of
Credit, all accrued interest in respect thereof, all accrued and unpaid fees and
other indebtedness or obligations owing to the Agent and/or any of the Lenders
hereunder automatically shall immediately become due and payable without the
giving of any notice or other action by the Agent or the Lenders, each of which
are hereby expressly waived.
SECTION 10
AGENT
-----
10.1 APPOINTMENT AND AUTHORIZATION OF AGENT.
--------------------------------------------
(a) Each Lender hereby irrevocably (subject to Section 10.9) appoints,
designates and authorizes the Agent to take such action on its behalf under the
provisions of this Credit Agreement and each other Credit Document and to
exercise such powers and perform such duties as are expressly delegated to it by
the terms of this Credit Agreement or any other Credit Document, together with
such powers as are reasonably incidental thereto. Notwithstanding any provision
to the contrary contained elsewhere herein or in any other Credit Document, the
Agent shall not have any duties or responsibilities, except those expressly set
forth herein, nor shall the Agent have or be deemed to have any fiduciary
relationship with any Lender or participant, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Credit Agreement or any other Credit Document or otherwise exist
against the Agent. Without limiting the generality of the foregoing sentence,
the use of the term "agent" herein and in the other Credit Documents with
reference to the Agent is not intended to connote any fiduciary or other implied
(or express) obligations arising under agency doctrine of any applicable law.
Instead, such term is used merely as a matter of market custom, and is intended
to create or reflect only an administrative relationship between independent
contracting parties.
(b) The Issuing Lender 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 Agent may agree at the request of the
Required Lenders to act for the Issuing Lender with respect thereto; provided,
however, that the Issuing Lender shall have all of the benefits and immunities
(i) provided to the Agent in this Section 10 with respect to any acts taken or
omissions suffered by the Issuing Lender in connection with Letters of Credit
issued by it or proposed to be issued by it and the application and agreements
for letters of credit pertaining to the Letters of Credit as fully as if the
term "Agent" as used in this Section 10 included the Issuing Lender with respect
to such acts or omissions, and (ii) as additionally provided herein with respect
to the Issuing Lender.
10.2 DELEGATION OF DUTIES.
--------------------------
The Agent may execute any of its duties under this Credit Agreement or any
other Credit Document by or through agents, employees or attorneys-in-fact and
shall be entitled to advice of counsel and other consultants or experts
concerning all matters pertaining to such duties. The Agent shall not be
responsible for the negligence or misconduct of any agent or attorney-in-fact
that it selects in the absence of gross negligence or willful misconduct.
10.3 LIABILITY OF AGENT.
------------------------
No Agent-Related Person shall (a) be liable for any action taken or omitted
to be taken by any of them under or in connection with this Credit Agreement or
any other Credit Document or the transactions contemplated hereby (except for
its own gross negligence or willful misconduct in connection with its duties
expressly set forth herein), or (b) be responsible in any manner to any Lender
or participant for any recital, statement, representation or warranty made by
any Credit Party or any officer thereof, contained herein or in any other Credit
Document, or in any certificate, report, statement or other document referred to
or provided for in, or received by the Agent under or in connection with, this
Credit Agreement or any other Credit Document, or the validity, effectiveness,
genuineness, enforceability or sufficiency of this Credit Agreement or any other
Credit Document, or for any failure of any Credit Party or any other party to
any Credit Document to perform its obligations hereunder or thereunder. No
Agent-Related Person shall be under any obligation to any Lender or participant
to ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Credit Agreement or any other
Credit Document, or to inspect the properties, books or records of any Credit
Party or any Affiliate thereof.
10.4 RELIANCE BY AGENT.
-----------------------
The Agent shall be entitled to rely, and shall be fully protected in
relying, upon any writing, communication, signature, resolution, representation,
notice, consent, certificate, affidavit, letter, telegram, facsimile, telex or
telephone message, statement or other document or conversation believed by it to
be genuine and correct and to have been signed, sent or made by the proper
Person or Persons, and upon advice and statements of legal counsel (including
counsel to any Credit Party), independent accountants and other experts selected
by the Agent. The Agent shall be fully justified in failing or refusing to take
any action under any Credit Document unless it shall first receive such advice
or concurrence of the Required Lenders as it deems appropriate and, if it so
requests, it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Agent shall in all cases be
fully protected in acting, or in refraining from acting, under this Credit
Agreement or any other Credit Document in accordance with a request or consent
of the Required Lenders or all the Lenders, if required hereunder, and such
request and any action taken or failure to act pursuant thereto shall be binding
upon all the Lenders and participants. Where this Credit Agreement expressly
permits or prohibits an action unless the Required Lenders otherwise determine,
the Agent shall, and in all other instances, the Agent may, but shall not be
required to, initiate any solicitation for the consent or a vote of the Lenders.
10.5 NOTICE OF DEFAULT.
-----------------------
The Agent shall not be deemed to have knowledge or notice of the occurrence
of any Default or Event of Default, except with respect to defaults in the
payment of principal, interest and fees required to be paid to the Agent for the
account of the Lenders, unless the Agent shall have received written notice from
a Lender or the Borrower referring to this Credit Agreement, describing such
Default or Event of Default and stating that such notice is a "notice of
default." The Agent will notify the Lenders of its receipt of any such notice.
The Agent shall take such action with respect to such Default or Event of
Default as may be directed by the Required Lenders in accordance with Section 9;
provided, however, that unless and until the Agent has received any such
direction, the Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable or in the best interest of the Lenders.
10.6 CREDIT DECISION; DISCLOSURE OF INFORMATION BY AGENT.
---------------------------------------------------------
Each Lender acknowledges that no Agent-Related Person has made any
representation or warranty to it, and that no act by the Agent hereinafter
taken, including any consent to and acceptance of any assignment or review of
the affairs of any Credit Party or any Affiliate thereof, shall be deemed to
constitute any representation or warranty by any Agent-Related Person to any
Lender as to any matter, including whether Agent-Related Persons have disclosed
material information in their possession. Each Lender represents to the Agent
that it has, independently and without reliance upon any Agent-Related Person
and based on such documents and information as it has deemed appropriate, made
its own appraisal of and investigation into the business, prospects, operations,
property, financial and other condition and creditworthiness of the Credit
Parties and their respective Subsidiaries, and all applicable bank or other
regulatory Laws relating to the transactions contemplated hereby, and made its
own decision to enter into this Credit Agreement and to extend credit to the
Borrower and the other Credit Parties hereunder. Each Lender also represents
that it will, independently and without reliance upon any Agent-Related Person
and based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Credit Agreement and the other Credit
Documents, and to make such investigations as it deems necessary to inform
itself as to the business, prospects, operations, property, financial and other
condition and creditworthiness of the Borrower and the other Credit Parties.
Except for notices, reports and other documents expressly required to be
furnished to the Lenders by the Agent herein, the Agent shall not have any duty
or responsibility to provide any Lender with any credit or other information
concerning the business, prospects, operations, property, financial and other
condition or creditworthiness of any of the Credit Parties or any of their
respective Affiliates which may come into the possession of any Agent-Related
Person.
10.7 INDEMNIFICATION OF AGENT.
------------------------------
Whether or not the transactions contemplated hereby are consummated, the
Lenders shall indemnify upon demand each Agent-Related Person (to the extent not
reimbursed by or on behalf of any Credit Party and without limiting the
obligation of any Credit Party to do so), pro rata, and hold harmless each
Agent-Related Person from and against any and all Indemnified Liabilities
incurred by it; provided, however, that no Lender shall be liable for the
payment to any Agent-Related Person of any portion of such Indemnified
Liabilities resulting from such Person's gross negligence or willful misconduct;
provided, however, that no action taken in accordance with the directions of the
Required Lenders shall be deemed to constitute gross negligence or willful
misconduct for purposes of this Section. Without limitation of the foregoing,
each Lender shall reimburse the Agent upon demand for its ratable share of any
costs or out-of-pocket expenses (including Attorney Costs) incurred by the Agent
in connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Credit Agreement, any other Credit Document, or any
document contemplated by or referred to herein, to the extent that the Agent is
not reimbursed for such expenses by or on behalf of the Borrower. The
undertaking in this Section shall survive termination of the Commitments, the
payment of all Credit Party Obligations hereunder and the resignation or
replacement of the Agent.
10.8 AGENT IN ITS INDIVIDUAL CAPACITY.
--------------------------------------
Bank of America and its Affiliates may make loans to, issue letters of
credit for the account of, accept deposits from, acquire equity interests in and
generally engage in any kind of banking, trust, financial advisory, underwriting
or other business with each of the Credit Parties and their respective
Affiliates as though Bank of America were not the Agent or the Issuing Lender
hereunder and without notice to or consent of the Lenders. The Lenders
acknowledge that, pursuant to such activities, Bank of America or its Affiliates
may receive information regarding any Credit Party or its Affiliates (including
information that may be subject to confidentiality obligations in favor of such
Credit Party or such Affiliate) and acknowledge that the Agent shall be under no
obligation to provide such information to them. With respect to its Loans, Bank
of America shall have the same rights and powers under this Credit Agreement as
any other Lender and may exercise such rights and powers as though it were not
the Agent or the Issuing Lender, and the terms "Lender" and "Lenders" include
Bank of America in its individual capacity.
10.9 SUCCESSOR AGENT.
---------------------
The Agent may resign as Agent upon thirty (30) days' notice to the Lenders.
If the Agent resigns under this Credit Agreement, the Required Lenders shall
appoint from among the Lenders a successor Agent for the Lenders which successor
Agent shall be consented to by the Borrower at all times other than during the
existence of an Event of Default (which consent of the Borrower shall not be
unreasonably withheld or delayed). If no successor Agent is appointed prior to
the effective date of the resignation of the Agent, the Agent may appoint, after
consulting with the Lenders and the Borrower, a successor Agent from among the
Lenders. Upon the acceptance of its appointment as successor Agent hereunder,
such successor Agent shall succeed to all the rights, powers and duties of the
retiring Agent and the term "Agent" shall mean such successor Agent and the
retiring Agent's appointment, powers and duties as Agent shall be terminated.
After any retiring Agent's resignation hereunder as Agent, the provisions of
this Section 10 and Sections 11.5 and 11.10 shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Agent under this Credit
Agreement. If no successor Agent has accepted appointment as Agent by the date
which is thirty (30) days following a retiring Agent's notice of resignation,
the retiring Agent's resignation shall nevertheless thereupon become effective
and the Lenders shall perform all of the duties of the Agent hereunder until
such time, if any, as the Required Lenders appoint a successor agent as provided
for above.
SECTION 11
MISCELLANEOUS
-------------
11.1 NOTICES.
-------------
Except as otherwise expressly provided herein, all notices and other
communications shall have been duly given and shall be effective (a) when
delivered, (b) when transmitted via telecopy, (c) the Business Day following the
day on which the same has been delivered prepaid to a reputable national
overnight air courier service, or (d) the third Business Day following the day
on which the same is sent by certified or registered mail, postage prepaid, in
each case to the respective parties at the address or telecopy numbers set forth
on Schedule 11.1, or at such other address as such party may specify by written
notice to the other parties hereto.
11.2 RIGHT OF SET-OFF.
----------------------
In addition to any rights now or hereafter granted under applicable law or
otherwise, and not by way of limitation of any such rights, upon the occurrence
and during the continuation of an Event of Default and the commencement of
remedies described in Section 9.2, each Lender is authorized at any time and
from time to time, without presentment, demand, protest or other notice of any
kind (all of which rights being hereby expressly waived), to set-off and to
appropriate and apply any and all deposits (general or special) and any other
indebtedness at any time held or owing by such Lender (including, without
limitation, branches, agencies or Affiliates of such Lender wherever located) to
or for the credit or the account of any Credit Party against obligations and
liabilities of such Credit Party to the Lenders hereunder, under the Notes, the
other Credit Documents or otherwise, irrespective of whether the Agent or the
Lenders shall have made any demand hereunder and although such obligations,
liabilities or claims, or any of them, may be contingent or unmatured, and any
such set-off shall be deemed to have been made immediately upon the occurrence
of an Event of Default even though such charge is made or entered on the books
of such Lender subsequent thereto.
11.3 SUCCESSORS AND ASSIGNS.
----------------------------
(a) The provisions of this Credit Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and assigns
permitted hereby, except that the Borrower may not assign or otherwise transfer
any of its rights or obligations hereunder without the prior written consent of
each Lender (and any attempted assignment or transfer by the Borrower without
such consent shall be null and void). Nothing in this Credit Agreement,
expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto, their respective successors and assigns permitted hereby
and, to the extent expressly contemplated hereby, the Indemnitees) any legal or
equitable right, remedy or claim under or by reason of this Credit Agreement.
(b) Any Lender may assign to one or more Eligible Assignees all or a portion
of its rights and obligations under this Credit Agreement (including all or a
portion of its Commitments and the Loans (including for purposes of this
subsection (b), participations in LOC Obligations and in Swingline Loans) at the
time owing to it); provided that (i) except in the case of an assignment of the
entire remaining amount of the assigning Lender's Commitment and the Loans at
the time owing to it or in the case of an assignment to a Lender or an Affiliate
of a Lender or an Approved Fund with respect to a Lender (so long as each
assignee will hold a minimum Commitment of not less than $1,000,000), the
aggregate amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or the principal outstanding balance of the Tranche A
Term Loan or Tranche B Term Loan, as the case may be, 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 Agent, shall not
be less than $1,000,000 and (ii) the parties to each assignment shall execute
and deliver to the Agent an Assignment and Acceptance, together with a
processing and recordation fee of $3,500 (with only one such fee payable in
connection with simultaneous assignments to Approved Funds). Subject to
acceptance and recording thereof by the Agent pursuant to subsection (c) of this
Section, from and after the effective date specified in each Assignment and
Acceptance, the Eligible Assignee thereunder shall be a party hereto and, to the
extent of the interest assigned by such Assignment and Acceptance, have the
rights and obligations of a Lender under this Credit Agreement, and the
assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Acceptance, be released from its obligations under this
Credit Agreement (and, in the case of an Assignment and Acceptance covering all
of the assigning Lender's rights and obligations under this Credit Agreement,
such Lender shall cease to be a party hereto but shall continue to be entitled
to the benefits of Sections 2.2(i), 3.6, 3.9, 3.11, 3.12 and 11.5). Upon
request, the Borrower (at its expense) shall execute and deliver new or
replacement Notes to the assigning Lender and the assignee Lender. Any
assignment or transfer by a Lender of rights or obligations under this Credit
Agreement that does not comply with this subsection shall be treated for
purposes of this Credit Agreement as a sale by such Lender of a participation in
such rights and obligations in accordance with subsection (d) of this Section.
(c) The Agent, acting solely for this purpose as an agent of the Borrower,
shall maintain at the Agent's principal office in Charlotte, North Carolina a
copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amount of the Loans and LOC Obligations owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries in
the Register shall be conclusive, and the Borrower, the Agent and the Lenders
may treat each Person whose name is recorded in the Register pursuant to the
terms hereof as a Lender hereunder for all purposes of this Credit Agreement,
notwithstanding notice to the contrary. The Register shall be available for
inspection by the Borrower and any Lender, at any reasonable time and from time
to time upon reasonable prior notice.
(d) Any Lender may, without the consent of, or notice to, the Borrower or
the Agent, sell participations to one or more banks or other entities (a
"Participant") in all or a portion of such Lender's rights and/or obligations
under this Credit Agreement (including all or a portion of its Commitments
and/or the Loans (including such Lender's participations in LOC Obligations
and/or Swingline Loans) owing to it); provided that (i) such Lender's
obligations under this Credit Agreement shall remain unchanged, (ii) such Lender
shall remain solely responsible to the other parties hereto for the performance
of such obligations and (iii) the Borrower, the 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 Credit Agreement. Any agreement
or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Credit
Agreement and to approve any amendment, modification or waiver of any provision
of this Credit Agreement; provided that such agreement or instrument may provide
that such Lender will not, without the consent of the Participant, agree to any
amendment, waiver or other modification that would (i) postpone any date upon
which any payment of money is scheduled to be paid to such Participant, (ii)
reduce the principal, interest, fees or other amounts payable to such
Participant or (iii) release all or substantially all of the Guarantors from
their obligations under Credit Agreement and the other Credit Documents.
(e) A Participant shall not be entitled to receive any greater payment under
Section 2.2(i), 3.6, 3.9, 3.11 or 3.14 than the applicable Lender would have
been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is made
with the Borrower's prior written consent. A Participant that would be a Foreign
Lender if it were a Lender shall not be entitled to the benefits of Section 3.11
unless the Borrower is notified of the participation sold to such Participant
and such Participant agrees, for the benefit of the Borrower, to comply with
Section 3.11(b) as though it were a Lender.
(f) Notwithstanding any other provision set forth in this Credit Agreement,
any Lender may, without the consent of the Borrower or the Agent, at any time
(i) assign and pledge all or any portion of rights under this Credit Agreement
(including under its Notes, if any) to any Federal Reserve Bank as collateral
security pursuant to Regulation A and any operating circular issued by such
Federal Reserve Bank or (ii) pledge all or any portion of its rights (but not
its obligations to make Loans or participate in Letters of Credit) hereunder to
any trustee or holders of obligations owed, or securities issued, by such Lender
as security for such obligations or securities or to any other representative of
such holders; 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.
(g) If the consent of the Borrower to an assignment or to an Eligible
Assignee is required hereunder (including a consent to an assignment which does
not meet the minimum assignment threshold specified in clause (i) of the proviso
to the first sentence of Section 11.3(b)), the Borrower shall be deemed to have
given its consent five (5) Business Days after the date notice thereof has been
delivered by the assigning Lender (through the Agent) unless such consent is
expressly refused by the Borrower prior to such fifth Business Day.
(h) Notwithstanding anything to the contrary contained herein, if at any
time Bank of America assigns all of its Commitments and Loans pursuant to
subsection (b) above, Bank of America may, (i) upon thirty (30) days' notice to
the Borrower and the Lenders, resign as Issuing Lender and/or (ii) upon five (5)
Business Days' notice to the Borrower, terminate the Swingline Commitment. In
the event of any such resignation as Issuing Lender or termination of the
Swingline Commitment, the Borrower shall be entitled to appoint from among the
Lenders a successor Issuing Lender or Swingline Lender hereunder; provided,
however, that no failure by the Borrower to appoint any such successor shall
affect the resignation of Bank of America as Issuing Lender or the termination
of the Swingline Commitment, as the case may be. Bank of America shall retain
all the rights and obligations of the Issuing Lender hereunder with respect to
all Letters of Credit outstanding as of the effective date of its resignation as
Issuing Lender and all LOC Obligations with respect thereto (including the right
to require the Lenders to make Base Rate Loans or fund participations in Letters
of Credit pursuant to Section 2.2(c)). If Bank of America terminates the
Swingline Commitment, it shall retain all the rights of the Swingline Lender
provided for hereunder with respect to Swingline Loans made by it and
outstanding as of the effective date of such termination, including the right to
require the Lenders to make Base Rate Loans or fund participations in
outstanding Swingline Loans pursuant to Section 2.3(b)(iii).
11.4 NO WAIVER; REMEDIES CUMULATIVE.
------------------------------------
No failure or delay on the part of the Agent or any Lender in exercising any
right, power or privilege hereunder or under any other Credit Document and no
course of dealing between the Borrower or any Credit Party and the Agent or any
Lender shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, power or privilege hereunder or under any other Credit
Document preclude any other or further exercise thereof or the exercise of any
other right, power or privilege hereunder or thereunder. The rights and remedies
provided herein are cumulative and not exclusive of any rights or remedies which
the Agent or any Lender would otherwise have. No notice to or demand on any
Credit Party in any case shall entitle any Credit Party to any other or further
notice or demand in similar or other circumstances or constitute a waiver of the
rights of the Agent or the Lenders to any other or further action in any
circumstances without notice or demand.
11.5 PAYMENT OF EXPENSES; INDEMNIFICATION.
------------------------------------------
(a) The Credit Parties agree to: (i) pay all reasonable out-of-pocket costs
and expenses of (A) the Agent in connection with (x) the negotiation,
preparation, execution and delivery and administration of this Credit Agreement
and the other Credit Documents and the documents and instruments referred to
therein (including, without limitation, the reasonable fees and expenses of
▇▇▇▇▇ & ▇▇▇ ▇▇▇▇▇, PLLC, special counsel to the Agent), and (y) any amendment,
waiver or consent relating hereto and thereto including, but not limited to, any
such amendments, waivers or consents resulting from or related to any work-out,
renegotiation or restructure relating to the performance by the Credit Parties
under this Credit Agreement and (B) the Agent and the Lenders in connection with
(x) enforcement of the Credit Documents and the documents and instruments
referred to therein, including, without limitation, in connection with any such
enforcement, the reasonable fees and disbursements of counsel for the Agent and
each of the Lenders, and (y) any bankruptcy or insolvency proceeding of a Credit
Party of any of its Subsidiaries.
(b) Whether or not the transactions contemplated hereby are consummated, the
Credit Parties agree to indemnify, save and hold harmless each Agent-Related
Person, each Lender and their respective Affiliates, directors, officers,
employees, counsel, agents, trustees, investment advisors and attorneys-in-fact
(collectively the "Indemnitees") from and against: (i) any and all claims,
demands, actions or causes of action that are asserted against any Indemnitee by
any Person (other than the Agent or any Lender) relating directly or indirectly
to a claim, demand, action or cause of action that such Person asserts or may
assert against any Credit Party, any Affiliate of any Credit Party or any of
their respective officers or directors; (ii) any and all claims, demands,
actions or causes of action that may at any time (including at any time
following repayment of the Obligations and the resignation or removal of the
Agent or the replacement of any Lender) be asserted or imposed against any
Indemnitee, arising out of or relating to, the Credit Documents, any predecessor
loan documents, the Commitments, the use or contemplated use of the proceeds of
any Loan or Letter of Credit, or the relationship of any Credit Party, the Agent
and the Lenders under this Credit Agreement or any other Credit Document; (iii)
any administrative or investigative proceeding by any Governmental Authority
arising out of or related to a claim, demand, action or cause of action
described in subsection (i) or (ii) above; and (iv) any and all liabilities
(including liabilities under indemnities), losses, costs or expenses (including
Attorney Costs) that any Indemnitee suffers or incurs as a result of the
assertion of any foregoing claim, demand, action, cause of action or proceeding,
or as a result of the preparation of any defense in connection with any
foregoing claim, demand, action, cause of action or proceeding, in all cases,
whether or not arising out of the negligence of an Indemnitee, and whether or
not an Indemnitee is a party to such claim, demand, action, cause of action or
proceeding (all the foregoing, collectively, the "Indemnified Liabilities");
provided that no Indemnitee shall be entitled to indemnification for any claim
caused by its own gross negligence or willful misconduct or for any loss
asserted against it by another Indemnitee. The agreements in this Section shall
survive the termination of the Commitments and repayment of all the Credit Party
Obligations.
11.6 AMENDMENTS, WAIVERS AND CONSENTS.
--------------------------------------
Neither this Credit Agreement nor any other Credit Document nor any of the
terms hereof or thereof may be amended, changed, waived, discharged or
terminated unless such amendment, change, waiver, discharge or termination is in
writing entered into by, or approved in writing by, each of the Credit Parties
party thereto and the Required Lenders, provided, however, that:
(a) without the consent of each Lender affected thereby, neither this
Credit Agreement nor any other Credit Document may be amended, changed,
waived, discharged or terminated so as to:
(i) extend the final maturity of any Loan or of any reimbursement
obligation, or any portion thereof, arising from drawings under Letters
of Credit, or extend or waive any Principal Amortization Payment of any
Loan, or any portion thereof,
(ii) reduce the rate or extend the time of payment of interest
(other than as a result of waiving the applicability of any post-default
increase in interest rates) thereon or fees hereunder,
(iii) reduce or waive the principal amount of any Loan or of any
reimbursement obligation, or any portion thereof, arising from drawings
under Letters of Credit,
(iv) increase the Commitment of a Lender over the amount thereof in
effect (it being understood and agreed that a waiver of any Default or
Event of Default or mandatory reduction in the Commitments shall not
constitute a change in the terms of any Commitment of any Lender),
(v) except as the result of or in connection with an Asset
Disposition not prohibited by Section 8.5 or in connection with the
release of Collateral set forth in Section 7.13(c), release all or any
material portion of the Collateral,
(vi) except as the result of or in connection with a dissolution,
merger or disposition of a Consolidated Party not prohibited by Section
8.4 or Section 8.5, release the Borrower or substantially all of the
other Credit Parties from its or their obligations under the Credit
Documents,
(vii) amend, modify or waive any provision of this Section 11.6,
Section 3.13, Section 3.15(b) or 7.13(c),
(viii) reduce any percentage specified in, or otherwise modify, the
definition of Required Lenders, or
(ix) consent to the assignment or transfer by the
Borrower or all or substantially all of the other Credit
Parties of any of its or their rights and obligations under
(or in respect of) the Credit Documents except as permitted
thereby;
(b) without the consent of Lenders holding in the aggregate at least a
majority of the Revolving Commitments (and Participation Interests therein)
(or if the Revolving Commitments have been terminated, the outstanding
Revolving Loans (and Participation Interests therein, including the
Participation Interests of the Issuing Lender in any Letters of Credit)), no
Default or Event of Default may be waived for purposes of Section 5.2(d);
(c) (i) without the consent of Lenders holding in the aggregate at least
a majority of the outstanding Tranche A Term Loans (and Participation
Interests therein), Section 3.3(b) may not be amended, changed, waived,
discharged or terminated so as to extend the time for or the amount or the
manner of application of proceeds in respect of the Tranche A Term Loan on
account of any mandatory prepayment required by Section 3.3(b)(ii), (iii),
or (iv) hereof, and (ii) without the consent of Lenders holding in the
aggregate at least a majority of the outstanding Tranche B Term Loans (and
Participation Interests therein), Section 3.3(b) may not be amended,
changed, waived, discharged or terminated so as to extend the time for or
the amount or the manner of application of proceeds in respect of the
Tranche B Term Loan on account of any mandatory prepayment required by
Section 3.3(b)(ii), (iii), or (iv) hereof;
(d) without the consent of the Agent, no provision of Section 10 may be
amended, changed, waived, discharged or terminated; and
(e) without the consent of the Issuing Lender, no provision of Section
2.2 may be amended, changed, waived, discharged or terminated.
(f) without the consent of the Swingline Lender, no provision of Section
2.3 may be amended.
Notwithstanding the fact that the consent of all the Lenders is required in
certain circumstances as set forth above, (x) each Lender is entitled to
vote as such Lender sees fit on any bankruptcy reorganization plan that
affects the Loans, and each Lender acknowledges that the provisions of
Section 1126(c) of the Bankruptcy Code supersedes the unanimous consent
provisions set forth herein and (y) the Required Lenders shall determine
whether or not to allow a Credit Party to use cash collateral in the context
of a bankruptcy or insolvency proceeding and such determination shall be
binding on all of the Lenders.
11.7 COUNTERPARTS.
------------------
This Credit Agreement may be executed in any number of counterparts, each of
which where so executed and delivered shall be an original, but all of which
shall constitute one and the same instrument. It shall not be necessary in
making proof of this Credit Agreement to produce or account for more than one
such counterpart. Delivery by facsimile by any of the parties hereto of an
executed counterpart of this Credit Agreement shall be as effective as an
original executed counterpart hereof and shall be deemed a representation that
an original executed counterpart hereof will be delivered.
11.8 HEADINGS.
--------------
The headings of the sections and subsections hereof are provided for
convenience only and shall not in any way affect the meaning or construction of
any provision of this Credit Agreement.
11.9 DEFAULTING LENDER.
-----------------------
Each Lender understands and agrees that if such Lender is a Defaulting
Lender then notwithstanding the provisions of Section 11.6 it shall not be
entitled to vote on any matter requiring the consent of the Required Lenders or
to object to any matter requiring the consent of all the Lenders; provided,
however, that all other benefits and obligations under the Credit Documents
shall apply to such Defaulting Lender.
11.10 SURVIVAL OF INDEMNIFICATION AND REPRESENTATIONS AND WARRANTIES.
---------------------------------------------------------------------
All indemnities set forth herein and all representations and warranties made
herein shall survive the execution and delivery of this Credit Agreement, the
making of the Loans and the repayment of the Loans and other obligations and the
termination of the Commitments hereunder.
11.11 GOVERNING LAW; JURISDICTION.
----------------------------------
(a) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK. Any legal action or proceeding with respect to this Credit Agreement
or any other Credit Document may be brought in the courts of the State of
New York, New York County or of the United States for the Southern District
of New York and, by execution and delivery of this Credit Agreement, each
Credit Party hereby irrevocably accepts for itself and in respect of its
property, generally and unconditionally, the jurisdiction of such courts.
Each Credit Party further irrevocably consents to the service of process out
of any of the aforementioned courts in any such action or proceeding by the
mailing of copies thereof by registered or certified mail, postage prepaid,
to it at the address for notices pursuant to Section 11.1, such service to
become effective 15 days after such mailing. Nothing herein shall affect the
right of a Lender to serve process in any other manner permitted by law or
to commence legal proceedings or to otherwise proceed against a Credit Party
in any other jurisdiction. Each Credit Party agrees that a final judgment in
any 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; provided that nothing in this Section 11.11(a) is intended to impair a
Credit Party's right under applicable law to appeal or seek a stay of any
judgment.
(b) Each Credit Party hereby irrevocably waives any objection which it
may now or hereafter have to the laying of venue of any of the aforesaid
actions or proceedings arising out of or in connection with this Credit
Agreement or any other Credit Document brought in the courts referred to in
subsection (a) hereof and hereby further irrevocably waives and agrees not
to plead or claim in any such court that any such action or proceeding
brought in any such court has been brought in an inconvenient forum.
11.12 WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY TO THIS CREDIT AGREEMENT
HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION
OR CAUSE OF ACTION ARISING UNDER ANY CREDIT DOCUMENT OR IN ANY WAY CONNECTED
WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF
THEM WITH RESPECT TO ANY CREDIT DOCUMENT, OR THE TRANSACTIONS RELATED THERETO,
IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN
CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT
ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT
TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE
CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
11.13 TIME.
-----------
All references to time herein shall be references to Eastern Standard Time
or Eastern Daylight time, as the case may be, unless specified otherwise.
11.14 SEVERABILITY.
-------------------
If any provision of any of the Credit Documents is determined to be illegal,
invalid or unenforceable, such provision shall be fully severable and the
remaining provisions shall remain in full force and effect and shall be
construed without giving effect to the illegal, invalid or unenforceable
provisions.
11.15 ENTIRETY.
---------------
This Credit Agreement together with the other Credit Documents represent the
entire agreement of the parties hereto and thereto, and supersede all prior
agreements and understandings, oral or written, if any, including any commitment
letters or correspondence relating to the Credit Documents or the transactions
contemplated herein and therein.
11.16 BINDING EFFECT.
---------------------
This Credit Agreement shall become effective at such time when all of the
conditions set forth in Section 5.1 have been satisfied or waived by the Lenders
and it shall have been executed by the Borrower, the Guarantors and the Agent,
and the Agent shall have received copies hereof (telefaxed or otherwise) which,
when taken together, bear the signatures of each Lender, and thereafter this
Credit Agreement shall be binding upon and inure to the benefit of the Borrower,
the Guarantors, the Agent and each Lender and their respective successors and
assigns.
11.17 CONFIDENTIALITY.
----------------------
Each of the Agent and the Lenders agrees to maintain the confidentiality of
the Information (as defined below), except that Information may be disclosed (a)
to its and its Affiliates' directors, officers, employees and agents, including
accountants, auditors, legal counsel and other advisors (it being understood
that the Persons to whom such disclosure is made will be informed of the
confidential nature of such Information and instructed to keep such Information
confidential); (b) to the extent requested by any regulatory authority; (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process; (d) to any other party to this Credit Agreement; (e) in
connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Credit Agreement or the enforcement of rights
hereunder; (f) subject to an agreement containing provisions substantially the
same as those of this Section, to (i) any Eligible Assignee of or Participant
in, or any prospective Eligible Assignee of or Participant in, any of its rights
or obligations under this Credit Agreement or (ii) any direct or indirect
contractual counterparty or prospective counterparty (or such contractual
counterparty's or prospective counterparty's professional advisor) to any credit
derivative transaction relating to obligations of the Borrower; (g) with the
consent of the Borrower; (h) to the extent such Information (i) becomes publicly
available other than as a result of a breach of this Section or (ii) was or
becomes available to the Agent or any Lender on a nonconfidential basis from a
source other than the Borrower; or (i) to the National Association of Insurance
Commissioners or any other similar organization or any nationally recognized
rating agency that requires access to information about a Lender's or its
Affiliates' investment portfolio in connection with ratings issued with respect
to such Lender or its Affiliates. For the purposes of this Section,
"Information" means all information received from the Borrower relating to the
Borrower or its business, other than any such information that is available to
the Agent or any Lender on a nonconfidential basis prior to disclosure by the
Borrower; provided that, in the case of information received from the Borrower
after the date hereof, such information is clearly identified in writing at the
time of delivery as confidential. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered
to have complied with its obligation to do so if such Person has exercised the
same degree of care to maintain the confidentiality of such Information as such
Person would accord to its similar client confidential information.
11.18 BINDING EFFECT; TERMINATION OF CREDIT AGREEMENT; ETC.
-----------------------------------------------------------
(a) This Credit Agreement shall be deemed to have become effective at
such time on or after the Closing Date when it shall have been executed by
the Borrower, the Guarantors and the Agent, and the Agent shall have
received copies thereof (telefaxed or otherwise) which, when taken together,
bear the signatures of each Lender, and thereafter the Credit Agreement
shall be binding upon and inure to the benefit of the Borrower, the
Guarantors, the Agent and each Lender and their respective successors and
assigns.
(b) The term of the Credit Agreement shall be until no Loans, Letters of
Credit, LOC Obligations or any other amounts payable under any of the Credit
Documents shall remain outstanding and until all of the Commitments shall
have expired or been terminated.
(c) At such time as this Credit Agreement shall have become effective
pursuant to the terms of Section 11.18(a), the promissory notes executed in
connection with the Existing Credit Agreement shall be replaced with the
Notes, if any, executed in connection with this Credit Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Each of the parties hereto has caused a counterpart of this Credit Agreement
to be duly executed and delivered as of the date first above written.
BORROWER:
APRIA HEALTHCARE GROUP INC.,
a Delaware corporation
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
GUARANTORS:
APRIA HEALTHCARE INC.,
a Delaware corporation
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
APRIA NUMBER TWO INC.,
a Delaware corporation
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
APRIACARE MANAGEMENT SYSTEMS INC.,
a Delaware corporation
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
APRIA HEALTHCARE OF NEW YORK
STATE, INC.,
a New York corporation
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
APRIA HEALTHCARE ESSENTIALS, LLC,
a Delaware limited liability company
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
LENDERS:
BANK OF AMERICA, N.A.,
individually in its capacity as a Lender
and in its capacity as Agent
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
[OTHER LENDERS]
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
SCHEDULE 1.1(A)
---------------
INVESTMENTS
1. Nations Fund - money market account and overnight investment facility.
Combined balance at May 31, 2001 - $11,325,113.77
2. B & B Management Group, LLC - Commercial Loan Note Secured by Deed of Trust
dated June 30, 2000
Original amount - $690,000 Interest rate - 9%
Principal balance outstanding at May 31, 2001 - $670,708.90
SCHEDULE 1.1(B)
---------------
LIENS
Computer equipment under capital lease with IBM - remaining obligation at June
30, 2001: $4,204,882.
The following vehicle and equipment lease filings for leases which are not
capital leases:
Lessor/Secured Party Location Equipment
-------------------- -------- ---------
▇▇▇▇▇ Leasing Co. Grand Rapids, MI 6 Cellular Phones
Falcon Leasing Corporation Omaha, NE 1 Ice Machine
Cura Capital Corporation Littleton, CO 1 Feeding Pump
MWM, Inc. Lenexa, KS 1 Baler
NTFC Capital Corp. Norwood, MA Telephone Systems
Xerox Corp. Costa Mesa, CA 4 Xerox Copiers
Cisco Systems Various Computer Networking Equipment
Pitney ▇▇▇▇▇ Credit Corporation Newington, CT Office Equipment
AT&T Credit Corporation Indianapolis, IN Voice Mail System
GE Capital Fleet Services Various Vehicles
IKON Office Solutions St. Louis, MO 2 Copiers and ▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇, ▇▇ 1 Ice Machine
Green Tree Vendor Services Evansville, IN Scales
▇.▇. ▇▇▇▇▇▇▇▇ Trust Various Vehicles*
El Camino Resources Various Magnetic Tape Subsystem**
*Also includes boxes on certain trucks leased from PPH
**Lease expired June 2000
SCHEDULE 2.1(A)
---------------
LENDERS COMMITMENTS
Tranche A Tranche A Tranche B Tranche B
Revolving Revolving Term Loan Term Loan Term Loan Term Loan
Commitment Commitment Commitment Commitment Commitment Commitment
Lender Amount Percentage Amount Percentage Amount Percentage
------------------------------- -------------- ------------- -------------- ------------- --------------- ----------
Bank of America, N.A. $33,333,333.33 33.333333333% $41,666,666.67 33.333333333% $175,000,000.00 100%
Fleet Boston Financial $15,555,555.56 15.555555556% $19,444,444.44 15.555555556% ▇/▇ ▇/▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ $13,333,333.33 13.▇▇▇▇▇▇▇▇▇% $16,666,666.67 13.333333333% N/A N/A
Credit Lyonnais New York Branch $13,333,333.33 13.333333333% $16,666,666.67 13.333333333% N/A N/A
UBS AG, Stamford Branch $ 8,888,888.89 8.888888889% $11,111,111.11 8.888888889% N/A N/A
The Chase Manhattan Bank $ 8,888,888.89 8.888888889% $11,111,111.11 8.888888889% N/A N/A
Credit Suisse First Boston $ 6,666,666.67 6.666666667% $ 8,333,333.33 6.666666667% N/A N/A
Total: $100,000,000.00 100% $125,000,000.00 100% $175,000,000.00 100%
SCHEDULE 2.2(A)
---------------
EXISTING LETTERS OF CREDIT
Issuer Beneficiary Purpose Amount
-------------------- ----------------- ------------ ----------
BANK OF AMERICA, N.A. LIBERTY MUTUAL GUARANTEE OF $1,000,000
INSURANCE COMPANY DEDUCTIBLE
REIMBURSEMENT
SCHEDULE 6.9
------------
LITIGATION
[The text of the disclosures appearing below is excerpted from the section
entitled "BUSINESS - Legal Proceedings" in Amendment No. 1 to
Form S-3 Registration Statement filed by the Borrower with the
Securities and Exchange Commission on July 16, 2001.]
1. SECURITIES CLASS ACTIONS
Apria and certain of its present and former officers and/or directors are
defendants in a class action lawsuit, In Re Apria Healthcare Group Securities
Litigation, filed in the U.S. District Court for the Central District of
California, Southern Division (Case No. SACV98-217 GLT). This case is a
consolidation of three similar class actions filed in March and April, 1998.
Pursuant to a court order dated May 27, 1998, the plaintiffs in the original
three class actions filed a Consolidated Amended Class Action Complaint on
August 6, 1998. The amended complaint purports to establish a class of plaintiff
shareholders who purchased Apria's common stock between May 22, 1995 and January
20, 1998. No class has been certified at this time. The amended complaint
alleges, among other things, that the defendants made false and/or misleading
public statements regarding Apria and its financial condition in violation of
federal securities laws. The amended complaint seeks compensatory and punitive
damages as well as other relief.
Two similar class actions were filed during July 1998 in the Superior Court
for the State of California for the County of Orange: ▇▇▇▇▇▇ v. Apria Healthcare
Group Inc., et. al. (Case No. 797060) and ▇▇▇▇▇▇▇▇ v. Apria Healthcare Group
Inc., et. al. (Case No. 797580). These two actions were consolidated by a court
order dated October 22, 1998 (Master Case No. 797060). On June 14, 1999, the
plaintiffs filed a Consolidated Amended Class Action Complaint asserting claims
founded on state law and on Sections 11 and 12(2) of the 1933 Securities Act.
Apria believes that it has meritorious defenses to the plaintiffs' claims,
and it intends to vigorously defend itself in both the federal and state cases.
In the opinion of Apria's management, the ultimate disposition of these class
actions will not have a material adverse effect on Apria's results of operations
or financial condition.
2. QUI TAM LITIGATION
Since mid-1998 Apria has received a number of subpoenas and document
requests from U.S. Attorneys' offices and from the U.S. Department of Health and
Human Services. The subpoenas and requests generally ask for documents, such as
patient files, billing records and other documents relating to billing
practices, related to Apria's patients whose healthcare costs are paid by
Medicare and other federal programs. Apria is cooperating with the government in
connection with these investigations and is responding to the document requests
and subpoenas. In July 1999, Apria received notification that the U.S.
Attorney's office in Sacramento closed its criminal investigation file relating
to eight subpoenas that had been issued by that office.
In January 2001, Apria was informed by the U.S. Attorney's office in Los
Angeles that the billing investigation being conducted by that office is the
result of qui tam litigation filed on behalf of the government against Apria,
and that the government is investigating certain allegations for the purpose of
determining whether it will intervene in that litigation. The complaints in the
litigation are under seal, however, and the government has not informed Apria of
either the identity of the court or courts where the proceedings are pending,
the date or dates instituted, the identity of the plaintiffs or the factual
bases alleged to underlie the proceedings. To date, the U.S. Attorney's office
has not informed Apria of any decision to intervene in the qui tam actions;
however, it could reach a decision with respect to intervention soon.
Apria has acknowledged that there may be errors and omissions in supporting
documentation affecting a portion of its ▇▇▇▇▇▇▇▇. If a judge, jury or
administrative agency were to determine that such errors and omissions resulted
in the submission of false claims to federal healthcare programs or significant
overpayments by the government, Apria could face civil and administrative claims
for refunds, sanctions and penalties for amounts that would be highly material
to its business, results of operations and financial condition, including
exclusion of Apria from participation in federal healthcare programs.
Since early 2001, Apria has had discussions with representatives of the
government concerning the results of a sampling of 300 patient files submitted
by Apria in response to government subpoenas. The government's sample of 300
patient files includes approximately 2,300 "claims" or monthly invoices for
services and products over a three-and-one-half year period from mid-1995
through year-end 1998. The government has alleged that certain of these claims,
involving up to approximately $110,000 of aggregate ▇▇▇▇▇▇▇▇, are inadequately
supported by required documentation with the result, in the government's view,
that Apria is liable for overpayments and penalties under the False Claims Act.
On July 12, 2001, government representatives and counsel for the plaintiffs in
the qui tam actions asserted that, by a process of extrapolation from the 300
patient sample to all of Apria's ▇▇▇▇▇▇▇▇ to the federal government during the
sample period, Apria is liable to the government for treble damages of $309
million (based on an extrapolation to $103 million from the alleged false claims
in the sample), plus penalties of $5,000 to $10,000 for each of over 900,000
allegedly false claims, or a range of total liability from $4.8 billion to over
$9 billion.
Apria considers these assertions and amounts to be unsupported both legally
and factually. Apria's position is that the legal analysis of the government and
the qui tam plaintiffs is incorrect, that their review of the sample vastly
overstates the number and significance of deficiencies, and that the sampling
and extrapolation methodologies under the circumstances are statistically flawed
and legally problematic. Apria believes that the number of sample invoices
affected by substantive errors or omissions in supporting documentation is much
less than the government and the qui tam plaintiffs assert. Further, Apria
believes that most of the alleged errors and omissions should not give rise to
any liability, for refunds or otherwise. In fact, Apria believes that its total
obligation to refund overpayments attributable to all of the substantively
deficient documentation in the government's sample should be less than $10,000
instead of the $110,000 alleged by the government.
Apria believes that the claims asserted are unwarranted and that Apria is in
a position to assert numerous meritorious defenses. However, Apria cannot
provide any assurances as to the outcome of these proceedings. Management cannot
estimate the possible loss or range of loss that may result from these
proceedings and therefore has not recorded any related accruals.
SCHEDULE 6.13
-------------
SUBSIDIARIES
State of Outstanding
Incorporation/ Shares % Owned by Options,
Name Organization Outstanding Subsidiary Warrants, etc.
---- -------------- ----------- ---------- --------------
Apria Healthcare, Inc. DE 1,000 100%* None
Apria Number Two, Inc. DE 100 100%* None
ApriaCare Management DE 100 100%** None
Systems, Inc.
Apria Healthcare of NY 300 100%** None
New York State, Inc.
Apria Healthcare CA N/A *** None
Essentials, LLC
*Owned by Apria Healthcare Group Inc.
**Owned by Apria Healthcare, Inc.
***Apria Healthcare, Inc. is sole member
SCHEDULE 6.20(A)
----------------
REAL PROPERTY
Owned Real Property:
None.
Leased Real Property:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇
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▇▇▇▇▇ ▇-▇ ▇▇. #▇-▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
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▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇. ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇. ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇ ▇▇. #▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇. #▇ & ▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇. #▇▇ & ▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇-▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. #▇▇▇ & ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. ▇▇ ▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇. ▇▇▇ ▇▇▇▇. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇ ▇▇. ▇-▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇ "▇" ▇▇. ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇-▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇ & ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ "▇" ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇. ▇▇▇▇ ▇▇. ▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇-▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇. ▇▇▇ & ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇ & ▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇. #▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇. ▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. ▇, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇ ▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇ ▇▇▇. ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇. ▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇. #▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇. ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ #▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇-▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇-▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇. #▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇. ▇▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
14464 ATSTAR DR. 101, 102, 103 (& ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
gas at 104)
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇ ▇▇▇. ▇-▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇ ▇▇. #▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
6275 - ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
BUSINESS PARK
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇. ▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇ ▇▇▇. ▇ - ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇, ▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇. ▇-▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇. ▇▇▇ ▇▇. ▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇. 8 & 9 ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇. ▇&▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇. ▇▇▇, ▇▇▇, ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
205, 210, 215
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇. ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇. #▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇. ▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
3782 (3802) E. ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇ ▇▇. #▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
10350 USA TODAY WAY ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇. & ▇▇▇▇/▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
PARKWAY CENTER
------------------------------------------------------------------------------------------------------------------
▇▇▇▇-▇ ▇▇▇▇▇ "▇" ▇▇. ▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇. 3 & ▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇. #▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇. #▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇. ▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇ ▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇. #▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇. #▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇ ▇▇. ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇. ▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇ ▇▇. ▇-▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇▇ & ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇ ▇▇. #▇ & ▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
73-5562 LAWEHANA ST. G48 (indicated as ▇▇▇▇▇▇-▇▇▇▇ ▇▇ ▇▇▇▇▇
1-70-48 on invoice)
------------------------------------------------------------------------------------------------------------------
KALAE HWY - KUALAPUU BUSINESS CENTER ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇ ▇▇▇. ▇*▇*▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇-▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇. ▇▇▇ ▇▇. ▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇. ▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇ & ▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇-▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇. ▇ ▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
2949 & ▇▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇. #▇ ▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇. ▇▇▇ & ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇. ▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇-▇ ▇. ▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ (▇▇ ▇▇▇ ▇▇.) ▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇-▇▇ ▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇ ▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ #▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
INDUSTRIAL PARK
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇. ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇ ▇▇. ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇. ▇▇. ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇ & ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇,▇▇,▇▇,▇▇,▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇., #▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇ ▇▇. # ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇. ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
-----------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇ #▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇. ▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇. #▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇. (▇▇ ▇▇▇▇▇ ▇▇-▇▇) ▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇-▇ ▇▇ ▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇ - ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇ ▇▇. and 1651-1653 S. ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
GREEN ST.
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇. #▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇. ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇ ▇▇▇. #▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
5311 KENTUCKY ▇▇. ▇▇▇ #▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇ ▇▇▇. #▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇ ▇ & ▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇. ▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇.▇.▇. ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇-▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (▇▇ ▇. ▇▇▇ ▇▇.) ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. #▇ (Elec. listed as ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
#C)
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇., ▇.▇. ▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇.▇. ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
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▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇ ▇. ▇. ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
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▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇. ▇▇. ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. ▇▇. ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇. ▇ ▇▇. ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇. ▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇ #▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇. #▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ #▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------------
BUSINESS ▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇. 5002 & 5004 ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇. #A-C (elec. at #I & J) ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇-▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇▇▇▇, #▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
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▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇. ▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇ ▇▇. #▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇&▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. ▇▇. ▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇ & ▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇. ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇-▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇. 5, 6, 7, & 10 ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇. & ▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇. #▇-▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇-▇ ▇▇▇ ▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇-▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇.▇. ▇▇▇▇▇ ▇▇▇▇. ▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇. ▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇ & ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇ ▇▇. ▇-▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇ ▇▇▇. ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇. ▇▇▇ ▇▇▇. ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇ ▇▇. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇ ▇▇. ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇ ▇▇▇. ▇ & ▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇ ▇▇▇. ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
41 INTERCHANGE DR. 1, ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇ ▇▇ & ▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
ONE-F ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇ ▇▇. ▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇ ▇▇▇. 908 (for gas) ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇. ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
1020 ▇. ▇▇▇▇▇▇ 1020 & 1014A&B ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇. ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇. #▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇,▇▇▇,▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇. ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇. ▇▇▇▇▇ ▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇-▇ ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇. ▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇ ▇▇. ▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇ & ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇-▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇. ▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
BUILDING ▇▇▇, ▇▇-▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇., ▇▇▇▇. ▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇. #▇ & ▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇ ▇▇. ▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇ ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇. #▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇. #▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇. #▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇. ▇&▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇ ▇▇▇▇ ▇▇. ▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. ▇.▇. ▇▇▇▇-▇▇▇-▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
(makes 1 big
unit), C124
------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
BUSINESS CENTER
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇ ▇▇. ▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇. (▇▇ ▇▇▇▇▇▇ ▇▇.) ▇ & ▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇ ▇▇▇. #▇-▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
240 & ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇. (▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
301 Harrisburg)
------------------------------------------------------------------------------------------------------------------
▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇. #▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇ ▇▇. ▇▇▇ - ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ #▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇. ▇▇. ▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇ ▇▇▇. ▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇. ▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
4355 HIGHWAY ▇▇ ▇. ▇▇▇ & ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇-▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇. ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 2, 19, 233, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇ ▇▇. #▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇. #▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇. ▇▇▇▇▇ ▇▇. #▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
401 S. ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ #▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ & ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇-▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇ ▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇-▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇. #▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇ #▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇. ▇▇▇ ▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇. ▇ & ▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇. #▇&▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇.▇. ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇ ▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
14935 NE. ▇▇▇▇ ▇▇. (▇▇ ▇▇▇▇▇▇▇ ▇▇.) ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
EAST ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
N. ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇ & ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇-▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇ ▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇. #▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ (▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
utilities)
------------------------------------------------------------------------------------------------------------------
▇▇▇-▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇-▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇. ▇▇▇▇ ▇▇. ▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇▇, ▇▇▇▇. ▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
BUSINESS PARK
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇ ▇▇▇. ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇ ▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇ ▇▇. ▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇. ▇, ▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
SCHEDULE 6.20(B)
----------------
COLLATERAL LOCATIONS
Tangible personal property of Consolidated Parties is located at all the
locations listed on Schedule 6.20(a). Additionally, there is tangible personal
property located in the homes of rental patients. The addresses of such patients
are not listed.
SCHEDULE 6.20(C)
----------------
CHIEF EXECUTIVE OFFICES/
PRINCIPAL PLACES OF BUSINESS
State of
Incorporation/ Principal
Name Organization Place of Business
--------------------------------------- -------------- ---------------------
Apria Healthcare Group Inc. DE ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Apria Healthcare, Inc DE ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Apria Number Two, Inc. DE ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
ApriaCare Management Systems, Inc. DE ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Apria Healthcare of New York State, Inc. NY ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Apria Healthcare Essentials, LLC CA ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
SCHEDULE 7.6
------------
INSURANCE
(EFFECTIVE 6/28/01 TO 6/28/02)
-----------------------------------------------------------------------------------------------------------------------------------
COVERAGE INSURANCE CARRIER POLICY #S LIMITS DESCRIPTION/LAYER
-----------------------------------------------------------------------------------------------------------------------------------
Primary Property Lexington Ins. Co. 852-8827 $5,000,000 Per Loss All Risk Including Flood
(Primary includes Deductible $25,000 Per Loss All Perils Excluding Flood
Flood)
$5,000,000 Aggregate Flood
Deductible $100,000 Per Loss Flood
Deductible> $25,000 Per Loss Wind; Coastal from Virginia to
or 2% Texas
Excess Property Westchester Fire FXL-422166 - 0 $35,000,000 Per Loss All Risk/Excluding Quake & Flood
Ins. Co.
Boiler & CNA Ins. Co. BM1057076603 $10,000,000 Per Loss Combined PD; BI & Extra Expense
Machinery
Sublimits $500,000 Per Loss Utility Interruption
$250,000 Per Loss Expediting Expense
$250,000 Per Loss Water Damage
$250,000 Per Loss Hazardous Substance
$250,000 Per Loss Ammonia Contamination
$100,000 Per Loss Consequential Damage
Deductibles $5,000 Per Loss Property Damage
>of $2,500 or 10% Per Loss Consequential Damage
Per Loss BI/EE
Per Loss Utility Interruption
------------------------------------------------------------------------------------------------------------------------------------
Directors & National Union ▇▇▇-▇▇-▇▇ $20,000,000 Aggregate 3 year Term Limit 6/28/99 to 6/28/02
Officers
$250,000 each occ. Corporate Retention (Deductible)
$0 each occ. Directors Retention
0% each occ. Co-Insurance
Zurich Ins. Co. DOC 8385392 03 $10,000,000 Aggregate 3 year Term Limit 6/28/99 to 6/28/02
Reliance Ins. Co. NDA 0130261-99 $10,000,000 Aggregate Cancelled as of 8/3/00
Twin City Fire Ins. NDA 0130261-99H $10,000,000 Aggregate Replaced Reliance policy
Co. 8/3/00-6/28/02
Royal & Sunalliance SF001149 $10,000,000 Aggregate 3 year Term Limit 6/28/99 to 6/28/02
(99 yr will begin new 3 yr term
limits)
Fiduciary Federal Insurance Co. 8181-26-24 $10,000,000 Basic Form (14-02-0941 & 14-02-0945)
Deductible $25,000 Indemnifiable Loss
Crime National Union 8735297 $3,000,000 CrimeGuard Policy Form
Deductible $25,000
------------------------------------------------------------------------------------------------------------------------------------
Worker Ins.Co.State of Penn. RMWC527-7023(AOS) Statutory Coverage A
Compensation
Ins.Co.State of Penn. RMWC527-7024(CA) $1,000,000 Each Coverage B
Accident
National Union RMWC527-7025(WI) $1,000,000 Disease Policy Limit
Maine Employers' l1810048307 (ME) $1,000,000 Disease Each Employee
Mutual ESCROW FUND FOR AIG WHICH IS ASSET OF APRIA $200,000
2001 Deductible each Loss Limit
Plan Terms:$250,000 accident
Auto Liability National Union RMCA534-8622(AOS) $1,000,000 each CSL BI/PD
accident
RMCA534-8624(TX) $10,000 Medical Payments
RMCA534-8623(OH)
Reject/Minimum Uninsured/Underinsured
ESCROW FUND FOR AIG WHICH IS ASSET OF APRIA $100,000
2001 Deductible each Loss Limit
Plan Terms:$250,000 accident
-----------------------------------------------------------------------------------------------------------------------------------
General & Columbia Casualty HHP▇▇▇▇▇▇▇▇▇▇-4
Hospital
Professional GENERAL LIABILITY- $1,000,000 per occ Each Occurrence
Liability Occurrence Form
$1,000,000 per occ Fire Damage
$1,000,000 per occ Liquor Liability
$1,000,000 per occ Personal & Advertising Injury
$25,000 per occ Medical Expense
$3,000,000 Aggregate Products/Completed Operations
$3,000,000 Aggregate General (x products/completed ops )
Above Limits apply per location
subject to $10,000,000 general agg.
$1,000,000 per claim Employee Benefits-Occurrence
$3,000,000 Aggregate Employee Benefits-Occurrence
HOSPITAL PROFESSIONAL- $1,000,000 each
person
Claims Made Form $3,000,000 Aggregate
SELF INSURED RETENTION $250,000 each
person or
occurrence
(SIR applies to both indemnity payments and defense
expenses and both erode the deductible.)
Umbrella Columbia Casualty HHE1064400899-4 Occurrence/Claims Made Where Applicable
Liability
$50,000,000 Each Medical incident or Occurrence
$50,000,000 Aggregate Professional Liability
$50,000,000 Aggregate General/Products/Completed Ops.
$50,000,000 Aggregate Other
$0 each Self Insured Retention for DIC claims
incident
SCHEDULE 8.1
------------
INDEBTEDNESS
Indebtedness at June 30, 2001:
Amount
------------
Bank of America term loan $140,000,000
9 1/2% senior subordinated notes $200,000,000 {a}
Capital Lease Obligations (multiple obligations to a single creditor
have been aggregated):
Debtor Amount
------ ------------
IBM $4,204,882
Deferred Acquisition Costs:
---------------------------
Debtor Amount Due Date
------ ------ --------
I Care Partners $265,000 12/22/01
Oxy+Plus, Inc. $754,400 7/15/01
Oxy+Plus, Inc. $768,800 11/15/01
Respiserv, Inc. $360,000 8/2/01
Respiserv, Inc. $360,000 2/2/02
HealthEast Home Med, Ltd. $287,500 8/16/01
HealthEast Home Med, Ltd. $287,500 1/16/02
Montana Oxygen Services, Inc. $175,000 11/4/01
Montana Oxygen Services, Inc. $175,000 5/4/02
CDS Home Care $ 75,000 12/8/01
CDS Home Care $ 75,000 12/8/02
CDS Home Care $ 75,000 12/8/03
The Core Group of Missouri, Inc. $300,000 7/5/01
The Core Group of Missouri, Inc. $150,000 1/15/02
The existence of interaffiliate debt between one or more of the Consolidated
Parties has been disclosed but is not specifically listed on this Schedule.
{a} Notes have been called for redemption on July 23, 2001.
SCHEDULE 11.1
-------------
NOTICES
CREDIT CONTACT ADMINISTRATIVE CONTACT
CREDIT LYONNAIS NEW YORK BRANCH
Credit Lyonnais Credit Lyonnais
Healthcare Group Client Banking Services
1301 Avenue of the Americas ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
CREDIT SUISSE FIRST BOSTON
Credit Suisse First Boston Credit Suisse First Boston
11 Madison Avenue Five World Trade Center, 8th Floor
New York, NY 10010 ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
FLEET BOSTON FINANCIAL
Fleet Boston Financial Fleet Boston Financial
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ MADE10010B
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Jr. Attn: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
THE BANK OF NOVA SCOTIA
The Bank of Nova Scotia The Bank of Nova Scotia
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. #2700
San Francisco, CA 94104 ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
UBS WARBURG
UBS AG, Stamford Branch UBS AG, Stamford Branch
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
EXHIBIT 1.1(A)
--------------
FORM OF AMENDED AND RESTATED PLEDGE AGREEMENT
THIS AMENDED AND RESTATED PLEDGE AGREEMENT (this "Pledge Agreement") is
entered into as of July __, 2001 among APRIA HEALTHCARE GROUP INC. a Delaware
corporation (the "Borrower"), certain Subsidiaries of the Borrower (each
individually a "Guarantor", and collectively the "Guarantors"; together with the
Borrower, each individually a "Pledgor", and collectively the "Pledgors") and
BANK OF AMERICA, N.A., in its capacity as agent (in such capacity, the "Agent")
for the lenders from time to time party to the Credit Agreement described below
(the "Lenders").
W I T N E S S E T H
WHEREAS, a $400 million credit facility has been established in favor of the
Borrower, pursuant to the terms of that Second Amended and Restated Credit
Agreement dated as of the date hereof (as amended, modified, increased,
extended, renewed or replaced, the "Credit Agreement") among the Borrower, the
Guarantors, the lenders identified therein and the Agent; and
WHEREAS, it is a condition precedent to the effectiveness of the Credit
Agreement and the obligations of the Lenders to make their respective Loans and
to issue Letters of Credit under the Credit Agreement that the Pledgors shall
have amended and restated the terms and conditions of that certain security
agreement dated as of March 13, 1998 (as amended, the "Existing Security
Agreement") among the Borrower, certain of its Subsidiaries and Bank of America,
N.A. (formerly known as Bank of America National Trust and Savings Association),
as agent thereunder, by execution and delivery of this Pledge Agreement and the
Security Agreement to the Agent for the ratable benefit of the Lenders;
NOW, THEREFORE, in consideration of these premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Definitions. Capitalized terms used and not otherwise defined herein
shall have the meanings provided in the Credit Agreement. As used herein:
"Secured Obligations" means, without duplication, (i) all of the
obligations and liabilities of the Credit Parties to the Lenders (including
the Issuing Lender), and the Agent, whenever arising, under the Credit
Agreement or any of the other Credit Documents (including, but not limited
to, any interest accruing after the occurrence of a Bankruptcy Event with
respect to any Credit Party, regardless of whether such interest is an
allowed claim under the Bankruptcy Code), whether now existing or hereafter
arising, due or to become due, direct or indirect, absolute or contingent,
howsoever evidenced, created, held or acquired, whether primary, secondary,
direct, contingent, or joint and several, as such obligations may be
amended, modified, increased, extended, renewed or replaced from time to
time, (ii) all obligations owing by the Credit Parties to the Lenders or any
affiliate of a Lender, whenever arising, under any interest rate protection
agreements, foreign currency exchange agreements or commodity purchase or
option agreements to the extent permitted under the Credit Agreement, and
(iii) all costs and expenses incurred in connection with enforcement and
collection of the Secured Obligations, including reasonable attorneys' fees.
2. Pledge and Grant of Security Interest. To secure the prompt payment and
performance in full when due, whether by lapse of time or otherwise, of the
Secured Obligations, each Pledgor hereby pledges and assigns to the Agent, for
the benefit of the holders of the Secured Obligations, and grants to the Agent,
for the benefit of the holders of the Secured Obligations, a continuing security
interest in any and all right, title and interest of such Pledgor in and to the
following, whether now owned or existing or owned, acquired, or arising
hereafter (collectively, the "Pledged Collateral"):
(a) Pledged Shares. (i) 100% (or, if less, the full amount owned by such
Pledgor) of the issued and outstanding Capital Stock of each Domestic
Subsidiary set forth on Schedule 2(a) attached hereto and (ii) 65% (or, if
less, the full amount owned by such Pledgor) of the issued and outstanding
shares of Capital Stock entitled to vote (within the meaning of Treas. Reg.
Section 1.956-2(c)(2)) ("Voting Equity") and 100% (or, if less, the full
amount owned by such Pledgor) of the issued and outstanding Capital Stock
not entitled to vote (within the meaning of Treas. Reg. Section
1.956-2(c)(2)) ("Non-Voting Equity") of each Foreign Subsidiary set forth on
Schedule 2(a) attached hereto, in each case together with the certificates
(or other agreements or instruments), if any, representing such Capital
Stock, and all options and other rights, contractual or otherwise, with
respect thereto (collectively, together with the Capital Stock described in
Section 2(b) and 2(c) below, the "Pledged Shares"), including, but not
limited to, the following:
(A) all shares, securities, membership interests or other equity
interests representing a dividend on any of the Pledged Shares, or
representing a distribution or return of capital upon or in respect of
the Pledged Shares, or resulting from a stock split, revision,
reclassification or other exchange therefor, and any subscriptions,
warrants, rights or options issued to the holder of, or otherwise in
respect of, the Pledged Shares; and
(B) without affecting the obligations of the Pledgors under any
provision prohibiting such action hereunder or under the Credit
Agreement, in the event of any consolidation or merger involving the
issuer of any Pledged Shares and in which such issuer is not the
surviving entity, all Capital Stock of the successor entity formed by or
resulting from such consolidation or merger issued to the Pledgor in
connection with such consolidation or merger.
(b) Additional Shares. 100% (or, if less, the full amount owned by such
Pledgor) of the issued and outstanding Capital Stock of any Person which
hereafter becomes a Domestic Subsidiary and 65% (or, if less, the full
amount owned by such Pledgor) of the Voting Equity and 100% (or, if less,
the full amount owned by such Pledgor) of the Non-Voting Equity of any
Person which hereafter becomes a Foreign Subsidiary, including, without
limitation, the certificates representing such Capital Stock.
(c) Proceeds. All proceeds and products of the foregoing, however and
whenever acquired and in whatever form.
Without limiting the generality of the foregoing, it is hereby specifically
understood and agreed that a Pledgor may from time to time hereafter deliver
additional Capital Stock to the Agent as collateral security for the Secured
Obligations. Upon delivery to the Agent, such additional Capital Stock shall be
deemed to be part of the Pledged Collateral of such Pledgor and shall be subject
to the terms of this Pledge Agreement whether or not Schedule 2(a) is amended to
refer to such additional Capital Stock.
3. Security for Secured Obligations. The security interest created hereby in
the Pledged Collateral of each Pledgor constitutes continuing collateral
security for all of the Secured Obligations of the Credit Parties to the holders
of the Secured Obligations.
4. Delivery of the Pledged Collateral. Each Pledgor hereby agrees that:
(a) Each Pledgor shall deliver to the Agent (i) simultaneously with or
prior to the execution and delivery of this Pledge Agreement, all
certificates representing the Pledged Shares of such Pledgor and (ii)
promptly upon the receipt thereof by or on behalf of a Pledgor, all other
certificates and instruments constituting Pledged Collateral of a Pledgor.
Prior to delivery to the Agent, all such certificates and instruments
constituting Pledged Collateral of a Pledgor shall be held in trust by such
Pledgor for the benefit of the Agent pursuant hereto. All such certificates
shall be delivered in suitable form for transfer by delivery or shall be
accompanied by duly executed instruments of transfer or assignment in blank,
substantially in the form provided in Exhibit 4(a) attached hereto.
(b) Additional Securities. If such Pledgor shall receive by virtue of
its being or having been the owner of any Pledged Collateral, any (i)
certificate, including without limitation, any certificate representing a
dividend or distribution in connection with any increase or reduction of
capital, reclassification, merger, consolidation, sale of assets,
combination of shares or other equity interests, stock splits, spin-off or
split-off, promissory notes or other instruments; (ii) option or right,
whether as an addition to, substitution for, or an exchange for, any Pledged
Collateral or otherwise; (iii) dividends payable in securities or other
equity interests; or (iv) distributions of securities or other equity
interests in connection with a partial or total liquidation, dissolution or
reduction of capital, capital surplus or paid-in surplus, then such Pledgor
shall receive such certificate, instrument, option, right or distribution in
trust for the benefit of the Agent, shall segregate it from such Pledgor's
other property and shall deliver it forthwith to the Agent in the exact form
received together with any necessary endorsement and/or appropriate stock
power duly executed in blank, substantially in the form provided in Exhibit
4(a), to be held by the Agent as Pledged Collateral and as further
collateral security for the Secured Obligations.
(c) Financing Statements. Each Pledgor shall execute and deliver to the
Agent such UCC or other applicable financing statements as may be reasonably
requested by the Agent in order to perfect and protect the security interest
created hereby in the Pledged Collateral of such Pledgor.
5. Representations and Warranties. Each Pledgor hereby represents and
warrants to the Agent, for the benefit of the holders of the Secured
Obligations, that:
(a) Authorization of Pledged Shares. The Pledged Shares are duly
authorized and validly issued, are fully paid and nonassessable and are not
subject to the preemptive rights of any Person.
(b) Title. Each Pledgor has good and indefeasible title to the Pledged
Collateral of such Pledgor and will at all times (unless such Pledged
Collateral is subject to an asset disposition permitted under the Credit
Agreement) be the legal and beneficial owner of such Pledged Collateral free
and clear of any Lien, other than Permitted Liens. There exists no "adverse
claim" within the meaning of Section 8-102 of the Uniform Commercial Code as
in effect in the State of New York as of the date hereof (the "UCC") with
respect to the Pledged Shares of such Pledgor.
(c) Exercising of Rights. The exercise by the Agent of its rights and
remedies hereunder will not violate any law or governmental regulation
applicable to a Pledgor or any material contractual restriction binding on
or affecting a Pledgor or any of its property.
(d) Pledgor's Authority. No authorization, approval or action by, and no
notice or filing with any Governmental Authority or with the issuer of any
Pledged Stock is required either (i) for the pledge made by a Pledgor or for
the granting of the security interest by a Pledgor pursuant to this Pledge
Agreement (except as have been already obtained) or (ii) for the exercise by
the Agent or the holders of the Secured Obligations of their rights and
remedies hereunder (except as may be required by laws affecting the offering
and sale of securities, ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ and other antitrust laws and
applicable UCC provisions).
(e) Security Interest/Priority. This Pledge Agreement creates a valid
security interest in favor of the Agent for the benefit of the holders of
the Secured Obligations, in the Pledged Collateral. The taking of possession
by the Agent of the certificates representing the Pledged Shares and all
other certificates and instruments constituting Pledged Collateral will
perfect and establish the first priority of the Agent's security interest in
the Pledged Shares and, when properly perfected by filing or registration,
in all other Pledged Collateral represented by such Pledged Shares and
instruments securing the Secured Obligations. Except as set forth in this
Section 5(e), no action is necessary to perfect or otherwise protect such
security interest.
(f) Partnership and Membership Interests. Except as previously disclosed
to the Agent, none of the Pledged Shares consisting of partnership or
limited liability company interests (i) is dealt in or traded on a
securities exchange or in a securities market, (ii) by its terms expressly
provides that it is a security governed by Article 8 of the UCC, (iii) is an
investment company security, (iv) is held in a securities account or (v)
constitutes a "security" or a "financial asset" as such terms are defined in
Article 8 of the UCC.
(g) No Other Interests. No Pledgor owns any Capital Stock in any
Subsidiary other than as set forth on Schedule 2(a) attached hereto.
6. Covenants. Each Pledgor hereby covenants, that so long as any of the
Secured Obligations or any Letter of Credit shall remain outstanding and until
all of the Commitments shall have been terminated, such Pledgor shall:
(a) Books and Records. ▇▇▇▇ its books and records (and shall cause the
issuer of the Pledged Shares of such Pledgor to ▇▇▇▇ its books and records)
to reflect the security interest granted to the Agent, for the benefit of
the holders of the Secured Obligations, pursuant to this Pledge Agreement.
(b) Defense of Title. Warrant and defend title to and ownership of the
Pledged Collateral of such Pledgor at its own expense against the claims and
demands of all other parties claiming an interest therein, keep the Pledged
Collateral free from all Liens, except for Permitted Liens, and not sell,
exchange, transfer, assign, lease or otherwise dispose of Pledged Collateral
of such Pledgor or any interest therein, except as permitted under the
Credit Agreement and the other Credit Documents.
(c) Further Assurances. Promptly execute and deliver at its expense all
further instruments and documents and take all further action that may be
reasonably necessary or that the Agent may reasonably request in order to
(i) perfect and protect the security interest created hereby in the Pledged
Collateral of such Pledgor (including, without limitation, any and all
action necessary to satisfy the Agent that the Agent has obtained a first
priority perfected security interest in all Pledged Collateral); (ii) enable
the Agent to exercise and enforce its rights and remedies hereunder in
respect of the Pledged Collateral of such Pledgor; and (iii) otherwise
effect the purposes of this Pledge Agreement, including, without limitation
and if requested by the Agent, delivering to the Agent irrevocable proxies
in respect of the Pledged Collateral of such Pledgor.
(d) Amendments. Not make or consent to any amendment or other
modification or waiver with respect to any of the Pledged Collateral of such
Pledgor or enter into any agreement or allow to exist any restriction with
respect to any of the Pledged Collateral of such Pledgor other than pursuant
hereto or as may be permitted under the Credit Agreement.
(e) Compliance with Securities Laws. File all reports and other
information now or hereafter required to be filed by such Pledgor with the
United States Securities and Exchange Commission and any other state,
federal or foreign agency in connection with the ownership of the Pledged
Collateral of such Pledgor.
(f) Issuance or Acquisition of Capital Stock. Not, without executing and
delivering, or causing to be executed and delivered, to the Agent such
agreements, documents and instruments as the Agent may reasonably require,
issue or acquire any Capital Stock consisting of an interest in a
partnership or a limited liability company that (i) is dealt in or traded on
a securities exchange or in a securities market, (ii) by its terms expressly
provides that it is a security governed by Article 8 of the UCC, (iii) is an
investment company security, (iv) is held in a securities account or (v)
constitutes a "security" or a "financial asset" as such terms are defined in
Article 8 of the UCC.
7. Advances by Holders of the Secured Obligations. On failure of any Pledgor
to perform any of the covenants and agreements contained herein, the Agent may,
at its sole option and in its sole discretion, perform the same and in so doing
may expend such sums as the Agent may reasonably deem advisable in the
performance thereof, including, without limitation, the payment of any insurance
premiums, the payment of any taxes, a payment to obtain a release of a Lien or
potential Lien, expenditures made in defending against any adverse claim and all
other expenditures which the Agent or the holders of the Secured Obligations may
make for the protection of the security hereof or which may be compelled to make
by operation of law. All such reasonable and documented sums and amounts so
expended shall be repayable by the Pledgors on a joint and several basis
promptly upon timely notice thereof and demand therefor, shall constitute
additional Secured Obligations and shall bear interest from the date said
amounts are expended at the default rate specified in Section 3.1 of the Credit
Agreement for Revolving Loans that are Base Rate Loans. No such performance of
any covenant or agreement by the Agent or the holders of the Secured Obligations
on behalf of any Pledgor, and no such advance or expenditure therefor, shall
relieve the Pledgors of any default under the terms of this Pledge Agreement,
the other Credit Documents or any other documents relating to the Secured
Obligations. The holders of the Secured Obligations may make any payment hereby
authorized in accordance with any ▇▇▇▇, statement or estimate procured from the
appropriate public office or holder of the claim to be discharged without
inquiry into the accuracy of such ▇▇▇▇, statement or estimate or into the
validity of any tax assessment, sale, forfeiture, tax lien, title or claim
except to the extent such payment is being contested in good faith by a Pledgor
in appropriate proceedings and against which adequate reserves are being
maintained in accordance with GAAP.
8. Events of Default. The occurrence of an event which under the Credit
Agreement would constitute an Event of Default shall be an Event of Default
hereunder (an "Event of Default").
9. Remedies.
(a) General Remedies. Upon the occurrence of an Event of Default and
during the continuation thereof, the Agent and the holders of the Secured
Obligations shall have, in respect of the Pledged Collateral of any Pledgor,
in addition to the rights and remedies provided herein, in the Credit
Documents, in any other documents relating to the Secured Obligations, or by
law, the rights and remedies of a secured party under the UCC or any other
applicable law.
(b) Sale of Pledged Collateral. Upon the occurrence of an Event of
Default and during the continuation thereof, without limiting the generality
of this Section and without notice, the Agent may, in its sole discretion,
sell or otherwise dispose of or realize upon the Pledged Collateral, or any
part thereof, in one or more parcels, at public or private sale, at any
exchange or broker's board or elsewhere, at such price or prices and on such
other terms as the Agent may deem commercially reasonable, for cash, credit
or for future delivery or otherwise in accordance with applicable law. To
the extent permitted by law, any Lender may in such event, bid for the
purchase of such securities. Each Pledgor agrees that, to the extent notice
of sale shall be required by law and has not been waived by such Pledgor,
any requirement of reasonable notice shall be met if notice, specifying the
place of any public sale or the time after which any private sale is to be
made, is personally served on or mailed, postage prepaid, to such Pledgor,
in accordance with the notice provisions of Section 11.1 of the Credit
Agreement at least 10 days before the time of such sale. The Agent shall not
be obligated to make any sale of Pledged Collateral of such Pledgor
regardless of notice of sale having been given. The Agent may adjourn any
public or private sale from time to time by announcement at the time and
place fixed therefor, and such sale may, without further notice, be made at
the time and place to which it was so adjourned.
(c) Private Sale. Upon the occurrence of an Event of Default and during
the continuation thereof, the Pledgors recognize that the Agent may deem it
impracticable to effect a public sale of all or any part of the Pledged
Shares or any of the securities or other equity interests constituting
Pledged Collateral and that the Agent may, therefore, determine to make one
or more private sales of any such Pledged Collateral to a restricted group
of purchasers who will be obligated to agree, among other things, to acquire
such Pledged Collateral for their own account, for investment and not with a
view to the distribution or resale thereof. Each Pledgor acknowledges that
any such private sale may be at prices and on terms less favorable to the
seller than the prices and other terms which might have been obtained at a
public sale and, notwithstanding the foregoing, agrees that such private
sale shall be deemed to have been made in a commercially reasonable manner
and that the Agent shall have no obligation to delay sale of any such
Pledged Collateral for the period of time necessary to permit the issuer of
such Pledged Collateral to register such Pledged Collateral for public sale
under the Securities Act. Each Pledgor further acknowledges and agrees that
any offer to sell such Pledged Collateral which has been (i) publicly
advertised on a bona fide basis in a newspaper or other publication of
general circulation in the financial community of New York, New York (to the
extent that such offer may be advertised without prior registration under
the Securities Act), or (ii) made privately in the manner described above
shall be deemed to involve a "public sale" under the UCC, notwithstanding
that such sale may not constitute a "public offering" under the Securities
Act, and the Agent may, in such event, bid for the purchase of such Pledged
Collateral.
(d) Retention of Pledged Collateral. To the extent permitted under
applicable law, in addition to the rights and remedies hereunder, upon the
occurrence of an Event of Default, the Agent may, after providing the
notices required by Section 9-620(2) of the UCC or otherwise complying with
the requirements of applicable law of the relevant jurisdiction, retain all
or any portion of the Pledged Collateral in satisfaction of the Secured
Obligations. Unless and until the Agent shall have provided such notices,
however, the Agent shall not be deemed to have retained any Pledged
Collateral in satisfaction of any Secured Obligations for any reason.
(e) Deficiency. In the event that the proceeds of any sale, collection
or realization are insufficient to pay all amounts to which the Agent or the
holders of the Secured Obligations are legally entitled, the Pledgors shall
be jointly and severally liable for the deficiency, together with interest
thereon at the default rate specified in Section 3.1 of the Credit Agreement
for Revolving Loans that are Base Rate Loans, together with the costs of
collection and the reasonable fees of any attorneys employed by the Agent to
collect such deficiency. Any surplus remaining after the full payment and
satisfaction of the Secured Obligations shall be returned to the Pledgors or
to whomsoever a court of competent jurisdiction shall determine to be
entitled thereto.
10. Rights of the Agent.
(a) Power of Attorney. In addition to other powers of attorney contained
herein, each Pledgor hereby designates and appoints the Agent, on behalf of
the holders of the Secured Obligations, and each of its designees or agents
as attorney-in-fact of such Pledgor, irrevocably and with power of
substitution, with authority to take any or all of the following actions
upon the occurrence and during the continuance of an Event of Default:
(i) to demand, collect, settle, compromise, adjust and give
discharges and releases concerning the Pledged Collateral of such
Pledgor, all as the Agent may reasonably determine;
(ii) to commence and prosecute any actions at any court for the
purposes of collecting any of the Pledged Collateral of such Pledgor and
enforcing any other right in respect thereof;
(iii) to defend, settle or compromise any action in respect of the
Pledged Collateral brought and, in connection therewith, give such
discharge or release as the Agent may deem reasonably appropriate;
(iv) to pay or discharge taxes, liens, security interests, or other
encumbrances levied or placed on or threatened against the Pledged
Collateral of such Pledgor;
(v) to direct any parties liable for any payment under any of the
Pledged Collateral to make payment of any and all monies due and to
become due thereunder directly to the Agent or as the Agent shall
direct;
(vi) to receive payment of and receipt for any and all monies,
claims, and other amounts due and to become due at any time in respect
of or arising out of any Pledged Collateral of such Pledgor;
(vii) to sign and endorse any drafts, assignments, proxies, stock
powers, verifications, notices and other documents relating to the
Pledged Collateral of such Pledgor;
(viii) to settle, compromise or adjust any suit, action or
proceeding described above and, in connection therewith, to give such
discharges or releases as the Agent may deem reasonably appropriate;
(ix) to execute and deliver all assignments, conveyances,
statements, financing statements, renewal financing statements, pledge
agreements, affidavits, notices and other agreements, instruments and
documents that the Agent may determine necessary in order to perfect and
maintain the security interests and liens granted in this Pledge
Agreement and in order to fully consummate all of the transactions
contemplated therein;
(x) to exchange any of the Pledged Collateral of such Pledgor or
other property upon any merger, consolidation, reorganization,
recapitalization or other readjustment of the issuer thereof and, in
connection therewith, deposit any of the Pledged Collateral of such
Pledgor with any committee, depository, transfer agent, registrar or
other designated agency upon such terms as the Agent may determine;
(xi) to vote for a shareholder resolution, or to sign an instrument
in writing, sanctioning the transfer of any or all of the Pledged
Collateral of such Pledgor into the name of the Agent or one or more of
the holders of the Secured Obligations or into the name of any
transferee to whom the Pledged Collateral of such Pledgor or any part
thereof may be sold pursuant to Section 9 hereof; and
(xii) to do and perform all such other acts and things as the Agent
may reasonably deem to be necessary, proper or convenient in connection
with the Pledged Collateral of such Pledgor.
This power of attorney is a power coupled with an interest and shall be
irrevocable (i) for so long as any of the Secured Obligations remain
outstanding, any Credit Document or any other documents relating to the Secured
Obligations, is in effect or any Letter of Credit shall remain outstanding and
(ii) until all of the Commitments shall have been terminated. The Agent shall be
under no duty to exercise or withhold the exercise of any of the rights, powers,
privileges and options expressly or implicitly granted to the Agent in this
Pledge Agreement, and shall not be liable for any failure to do so or any delay
in doing so. The Agent shall not be liable for any act or omission or for any
error of judgment or any mistake of fact or law in its individual capacity or
its capacity as attorney-in-fact except acts or omissions resulting from its
gross negligence or willful misconduct. This power of attorney is conferred on
the Agent solely to protect, preserve and realize upon its security interest in
the Pledged Collateral.
(b) Assignment by the Agent. Pursuant to the Credit Agreement, the Agent
may from time to time assign the Secured Obligations and any portion thereof
and/or the Pledged Collateral and any portion thereof, and the assignee
shall be entitled to all of the rights and remedies of the Agent under this
Pledge Agreement in relation thereto.
(c) The Agent's Duty of Care. Other than the exercise of reasonable care
to assure the safe custody of the Pledged Collateral while being held by the
Agent hereunder, the Agent shall have no duty or liability to preserve
rights pertaining thereto, it being understood and agreed that Pledgors
shall be responsible for preservation of all rights in the Pledged
Collateral of such Pledgor, and the Agent shall be relieved of all
responsibility for Pledged Collateral upon surrendering it or tendering the
surrender of it to the Pledgors. The Agent shall be deemed to have exercised
reasonable care in the custody and preservation of the Pledged Collateral in
its possession if such Pledged Collateral is accorded treatment
substantially equal to that which the Agent accords its own property, which
shall be no less than the treatment employed by a reasonable and prudent
agent in the industry, it being understood that the Agent shall not have
responsibility for (i) ascertaining or taking action with respect to calls,
conversions, exchanges, maturities, tenders or other matters relating to any
Pledged Collateral, whether or not the Agent has or is deemed to have
knowledge of such matters; or (ii) taking any necessary steps to preserve
rights against any parties with respect to any Pledged Collateral.
(d) Voting Rights in Respect of the Pledged Collateral.
(i) So long as no Event of Default shall have occurred and be
continuing, to the extent permitted by law, each Pledgor may exercise
any and all voting and other consensual rights pertaining to the Pledged
Collateral of such Pledgor or any part thereof for any purpose not
inconsistent with the terms of this Pledge Agreement or the Credit
Agreement; and
(ii) Upon the occurrence and during the continuance of an Event of
Default, and delivery by the Agent to the relevant Pledgor of its intent
to exercise its rights under this Section 10(d)(ii) all rights of a
Pledgor to exercise the voting and other consensual rights which it
would otherwise be entitled to exercise pursuant to paragraph (i) of
this subsection shall cease and all such rights shall thereupon become
vested in the Agent which shall then have the sole right to exercise
such voting and other consensual rights.
(e) Dividend Rights in Respect of the Pledged Collateral.
(i) So long as no Event of Default shall have occurred and be
continuing and subject to Section 4(b) hereof, each Pledgor may receive
and retain any and all dividends (other than stock dividends and other
dividends constituting Pledged Collateral which are addressed
hereinabove) or interest paid in respect of the Pledged Collateral to
the extent they are allowed under the Credit Agreement.
(ii) Upon the occurrence and during the continuance of an Event of
Default and delivery by the Agent to the relevant Pledgor of its intent
to exercise its rights under this Section 10(e)(ii):
(A) all rights of a Pledgor to receive the dividends and
interest payments which it would otherwise be authorized to receive
and retain pursuant to paragraph (i) of this Section shall cease and
all such rights shall thereupon be vested in the Agent which shall
then have the sole right to receive and hold as Pledged Collateral
such dividends and interest payments; and
(B) all dividends and interest payments which are received by a
Pledgor contrary to the provisions of paragraph (A) of this Section
shall be received in trust for the benefit of the Agent, shall be
segregated from other property or funds of such Pledgor, and shall
be forthwith paid over to the Agent as Pledged Collateral in the
exact form received, to be held by the Agent as Pledged Collateral
and as further collateral security for the Secured Obligations.
(f) Release of Pledged Collateral. The Agent may release any of the
Pledged Collateral from this Pledge Agreement or may substitute any of the
Pledged Collateral for other Pledged Collateral without altering, varying or
diminishing in any way the force, effect, lien, pledge or security interest
of this Pledge Agreement as to any Pledged Collateral not expressly released
or substituted, and this Pledge Agreement shall continue as a first priority
lien on all Pledged Collateral not expressly released or substituted. If any
of the Pledged Collateral shall be sold, transferred or otherwise disposed
of by any Pledgor in a transaction permitted by the Credit Agreement, then
the Agent, at the request and sole expense of such Pledgor, shall execute
and deliver to such Pledgor all releases or other documents reasonably
necessary or desirable for the release of the Liens created hereby on such
Pledged Collateral.
11. Rights of Required Lenders. All rights of the Agent hereunder, if not
exercised by the Agent, may be exercised by the requisite Lenders under the
Credit Agreement.
12. Application of Proceeds. Upon the occurrence and during the continuance
of an Event of Default, and request and direction of the Required Lenders under
Section 9.2 of the Credit Agreement any payments in respect of the Secured
Obligations and any proceeds of any Pledged Collateral, when received by the
Agent or any of the holders of the Secured Obligations in cash or its
equivalent, will be applied in reduction of the Secured Obligations in the order
set forth in the Credit Agreement or other document relating to the Secured
Obligations, and each Pledgor irrevocably waives the right to direct the
application of such payments and proceeds and acknowledges and agrees that the
Agent shall have the continuing and exclusive right to apply and reapply any and
all such payments and proceeds in the Agent's sole discretion, notwithstanding
any entry to the contrary upon any of its books and records.
13. Costs of Counsel. At all times hereafter, the Pledgors agree to promptly
pay upon demand any and all reasonable costs and expenses of the Agent and the
holders of the Secured Obligations, (a) as required under Section 11.5 of the
Credit Agreement and (b) as necessary to protect the Pledged Collateral or to
exercise any rights or remedies under this Pledge Agreement or with respect to
any Pledged Collateral. All of the foregoing costs and expenses shall constitute
Secured Obligations hereunder.
14. Continuing Agreement.
(a) This Pledge Agreement shall be a continuing agreement in every
respect and shall remain in full force and effect so long as the Secured
Obligations or any Letter of Credit shall remain outstanding and until all
of the Commitments shall have been terminated (other than any obligations
with respect to the indemnities and the representations and warranties set
forth in the Credit Documents). Upon the payment in full of the Secured
Obligations and such termination, this Pledge Agreement shall be
automatically terminated and the Agent and the holders of the Secured
Obligations shall, upon the request and at the expense of the Pledgors,
forthwith release all of its liens and security interests hereunder and
shall execute and deliver all UCC termination statements and/or other
documents reasonably requested by the Pledgors evidencing such termination.
Notwithstanding the foregoing, all releases and indemnities provided
hereunder shall survive termination of this Pledge Agreement.
(b) This Pledge Agreement shall continue to be effective or be
automatically reinstated, as the case may be, if at any time payment, in
whole or in part, of any of the Secured Obligations is rescinded or must
otherwise be restored or returned by the Agent or any holder of the Secured
Obligations as a preference, fraudulent conveyance or otherwise under any
bankruptcy, insolvency or similar law, all as though such payment had not
been made; provided that in the event payment of all or any part of the
Secured Obligations is rescinded or must be restored or returned, all
reasonable costs and expenses (including without limitation any reasonable
legal fees and disbursements) incurred by the Agent or any holder of the
Secured Obligations in defending and enforcing such reinstatement shall be
deemed to be included as a part of the Secured Obligations.
15. Amendments; Waivers; Modifications. This Pledge Agreement and the
provisions hereof may not be amended, waived, modified, changed, discharged or
terminated except as set forth in Section 11.6 of the Credit Agreement.
16. Successors in Interest. This Pledge Agreement shall create a continuing
security interest in the Collateral and shall be binding upon each Pledgor and
its successors and assigns, and shall inure, together with the rights and
remedies of the Agent and the holders of the Secured Obligations hereunder, to
the benefit of the Agent and the holders of the Secured Obligations and their
successors and permitted assigns; provided, however, that except in connection
with mergers or consolidations permitted by Section 8.4 of the Credit Agreement
that none of the Pledgors may assign its rights or delegate its duties hereunder
without the prior written consent of the requisite number of Lenders required by
the Credit Agreement. To the fullest extent permitted by law, each Pledgor
hereby releases the Agent and each Lender, and its successors and assigns, from
any liability for any act or omission relating to this Pledge Agreement or the
Collateral, except for any liability arising from the gross negligence or
willful misconduct of the Agent, or such Lender, or their respective officers,
employees or agents.
17. Notices. All notices required or permitted to be given under this Pledge
Agreement shall be given as provided in the Credit Agreement.
18. Counterparts. This Pledge Agreement may be executed in any number of
counterparts, each of which where so executed and delivered shall be an
original, but all of which shall constitute one and the same instrument. It
shall not be necessary in making proof of this Pledge Agreement to produce or
account for more than one such counterpart.
19. Headings. The headings of the sections and subsections hereof are
provided for convenience only and shall not in any way affect the meaning or
construction of any provision of this Pledge Agreement.
20. Governing Law; Submission to Jurisdiction; Venue.
(a) THIS PLEDGE AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK. Any legal action or proceeding with
respect to this Credit Agreement or any other Credit Document may be brought
in the courts of the State of New York, New York County or of the United
States for the Southern District of New York, and, by execution and delivery
of this Pledge Agreement, each Pledgor hereby irrevocably accepts for itself
and in respect of its property, generally and unconditionally, the
jurisdiction of such courts. Each Pledgor further irrevocably consents to
the service of process out of any of the aforementioned courts in any such
action or proceeding by the mailing of copies thereof by registered or
certified mail, postage prepaid, to it at the address for notices pursuant
to Section 11.1 of the Credit Agreement, such service to become effective
three days after such mailing. Nothing herein shall affect the right of the
Agent to serve process in any other manner permitted by law or to commence
legal proceedings or to otherwise proceed against any Pledgor in any other
jurisdiction.
(b) Each Pledgor hereby irrevocably waives any objection which it may
now or hereafter have to the laying of venue of any of the aforesaid actions
or proceedings arising out of or in connection with this Pledge Agreement
brought in the courts referred to in subsection (a) hereof and hereby
further irrevocably waives and agrees not to plead or claim in any such
court that any such action or proceeding brought in any such court has been
brought in an inconvenient forum.
21. Waiver of Jury Trial. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF
THE PARTIES TO THIS PLEDGE AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR
RELATING TO THIS PLEDGE AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
22. Severability. If any provision of this Pledge Agreement is determined to
be illegal, invalid or unenforceable, such provision shall be fully severable
and the remaining provisions shall remain in full force and effect and shall be
construed without giving effect to the illegal, invalid or unenforceable
provisions.
23. Entirety. This Pledge Agreement, the other Credit Documents and the
other documents relating to the Secured Obligations represent the entire
agreement of the parties hereto and thereto, and supersede all prior agreements
and understandings, oral or written, if any, including any commitment letters or
correspondence relating to the Credit Documents, the other documents relating to
the Secured Obligations or the transactions contemplated herein and therein.
24. Survival. All representations and warranties of the Pledgors hereunder
shall survive the execution and delivery of this Pledge Agreement, the other
Credit Documents and the other documents relating to the Secured Obligations,
the delivery of the Notes and the extension of credit thereunder or in
connection therewith.
25. Other Security. To the extent that any of the Secured Obligations are
now or hereafter secured by property other than the Pledged Collateral
(including, without limitation, real and other personal property owned by a
Pledgor), or by a guarantee, endorsement or property of any other Person, then
the Agent and the holders of the Secured Obligations shall have the right to
proceed against such other property, guarantee or endorsement upon the
occurrence of any Event of Default, and the Agent and the holders of the Secured
Obligations shall have the right, in their sole discretion, to determine which
rights, security, liens, security interests or remedies the Agent and the
holders of the Secured Obligations shall at any time pursue, relinquish,
subordinate, modify or take with respect thereto, without in any way modifying
or affecting any of them or the Secured Obligations or any of the rights of the
Agent and the holders of the Secured Obligations under this Pledge Agreement,
under any other of the Credit Documents or any other document relating to the
Secured Obligations.
26. Joint and Several Obligations of Pledgors.
(a) Each of the Pledgors is accepting joint and several liability
hereunder in consideration of the financial accommodation to be provided by
the Lenders under the Credit Agreement, for the mutual benefit, directly and
indirectly, of each of the Pledgors and in consideration of the undertakings
of each of the Pledgors to accept joint and several liability for the
obligations of each of them.
(b) Each of the Pledgors jointly and severally hereby irrevocably and
unconditionally accepts, not merely as a surety but also as a co-debtor,
joint and several liability with the other Pledgors with respect to the
payment and performance of all of the Secured Obligations arising under this
Pledge Agreement, the other Credit Documents and the other documents
relating to the Secured Obligations, it being the intention of the parties
hereto that all the Secured Obligations shall be the joint and several
obligations of each of the Pledgors without preferences or distinction among
them.
(c) Notwithstanding any provision to the contrary contained herein, in
any other of the Credit Documents or in any other documents relating to the
Secured Obligations, the obligations of each Guarantor under the Credit
Agreement and the other Credit Documents shall be limited to an aggregate
amount equal to the largest amount that would not render such obligations
subject to avoidance under Section 548 of the Bankruptcy Code or any
comparable provisions of any applicable state law.
[remainder of page intentionally left blank]
Each of the parties hereto has caused a counterpart of this Pledge Agreement
to be duly executed and delivered as of the date first above written.
BORROWER: APRIA HEALTHCARE GROUP INC.
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
GUARANTORS: APRIA HEALTHCARE INC.,
a Delaware corporation
By:
-----------------------------------------
Name:
Title:
APRIA NUMBER TWO INC.,
a Delaware corporation
By:
-----------------------------------------
Name:
Title:
APRIACARE MANAGEMENT SYSTEMS INC.,
a Delaware corporation
By:
-----------------------------------------
Name:
Title:
APRIA HEALTHCARE OF NEW YORK
STATE, INC.,
By:
-----------------------------------------
Name:
Title:
APRIA HEALTHCARE ESSENTIALS, LLC,
a Delaware limited liability company
By:
----------------------------------------
Name:
Title:
Accepted and agreed to as of the date first above written.
BANK OF AMERICA, N.A.,
as Agent
By:
--------------------------------------
Name:
Title:
Schedule 2(a)
-------------
to
Pledge Agreement
dated as of July __, 2001
in favor of Bank of America, N.A.
as Agent
PLEDGED STOCK
-------------
Number of Certificate Percentage
Pledgor Issuer Shares Number Ownership
------- ------ ------ ------ ---------
Apria Healthcare Group Inc. Apria Healthcare, Inc. 1,000 100%
Apria Healthcare, Inc. ApriaCare Management Systems, Inc. 100 1 100%
Apria Healthcare, Inc. Apria Healthcare of New York State, Inc. 300 1 100%
Apria Healthcare, Inc. Apria Number Two, Inc. 100 2 100%
Apria Healthcare, Inc. Apria Healthcare Essentials, LLC N/A N/A 100%
Exhibit 4(a)
------------
to
Pledge Agreement
dated as of July __, 2001
in favor of Bank of America, N.A.
as Agent
Irrevocable Stock Power
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers to
the following shares of capital stock of _____________________, a ____________
corporation:
No. of Shares Certificate No.
------------- ---------------
and irrevocably appoints __________________________________ its agent and
attorney-in-fact to transfer all or any part of such capital stock and to take
all necessary and appropriate action to effect any such transfer. The agent and
attorney-in-fact may substitute and appoint one or more persons to act for him.
The effectiveness of a transfer pursuant to this stock power shall be subject to
any and all transfer restrictions referenced on the face of the certificates
evidencing such interest or in the certificate of incorporation or bylaws of the
subject corporation, to the extent they may from time to time exist.
-------------------------------
By:
----------------------------
Name:
Title:
EXHIBIT 1.1(B)
--------------
FORM OF AMENDED AND RESTATED SECURITY AGREEMENT
THIS AMENDED AND RESTATED SECURITY AGREEMENT (this "Security Agreement") is
entered into as of July __, 2001 among APRIA HEALTHCARE GROUP INC., a Delaware
corporation (the "Borrower"), certain Subsidiaries of the Borrower (each
individually a "Guarantor" and collectively the "Guarantors"; together with the
Borrower, each individually an "Obligor", and collectively the "Obligors") and
BANK OF AMERICA, N.A., in its capacity as agent (in such capacity, the "Agent")
for the lenders from time to time party to the Credit Agreement described below
(the "Lenders").
RECITALS
WHEREAS, pursuant to that certain Second Amended and Restated Credit
Agreement, dated as of the date hereof (as amended, modified, extended, renewed
or replaced from time to time, the "Credit Agreement"), among the Borrower, the
Guarantors, the Lenders and the Agent, the Lenders have agreed to make Loans and
issue Letters of Credit upon the terms and subject to the conditions set forth
therein; and
WHEREAS, it is a condition precedent to the effectiveness of the Credit
Agreement and the obligations of the Lenders to make their respective Loans and
to issue Letters of Credit under the Credit Agreement that the Obligors shall
have amended and restated the terms and conditions of that certain security
agreement dated as of March 13, 1998 (as amended, the "Existing Security
Agreement") among the Borrower, certain of its Subsidiaries, and Bank of
America, N.A. (formerly known as Bank of America National Trust and Savings
Association), as agent thereunder, by execution and delivery of this Security
Agreement and the Pledge Agreement to the Agent for the ratable benefit of the
Lenders;
NOW, THEREFORE, in consideration of these premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Definitions.
(a) Capitalized terms used and not otherwise defined herein shall have
the meanings provided in the Credit Agreement. In addition, the following
terms which are defined in the Uniform Commercial Code in effect on the date
hereof in the State of New York are used herein as so defined: Accessions,
Accounts, As-Extracted Collateral, Chattel Paper, Commercial Tort Claim,
Commingled Goods, Consumer Goods, Deposit Account, Documents, Electronic
Chattel Paper, Equipment, Farm Products, Fixtures, General Intangibles,
Goods, Instruments, Inventory, Investment Property, Letter-of-Credit Rights,
Manufactured Home, Proceeds, Software, Standing Timber, Supporting
Obligation and Tangible Chattel Paper.
(b) In addition, the following terms shall have the following meanings:
"Copyright License" means any written agreement, naming any Obligor
as licensor, granting any right under any Copyright including, without
limitation, any Copyrights referred to in Schedule 1(b) hereto.
"Copyrights" means (a) all registered United States copyrights in
all Works, now existing or hereafter created or acquired, all
registrations and recordings thereof, and all applications in connection
therewith, including, without limitation, registrations, recordings and
applications in the United States Copyright Office including, without
limitation, any Copyrights referred to in Schedule 1(b) hereto, and (b)
all renewals thereof including, without limitation, any referred to in
Schedule 1(b) hereto.
"Patent License" means any agreement, whether written or oral,
providing for the grant by or to an Obligor of any right to manufacture,
use or sell any invention covered by a Patent, including, without
limitation, any Patent Licenses referred to in Schedule 1(b) hereto.
"Patents" means (a) all letters patent of the United States or any
other country and all reissues and extensions thereof, including,
without limitation, any letters patent referred to in Schedule 1(b)
hereto, and (b) all applications for letters patent of the United States
or any other country and all divisions, continuations and
continuations-in-part thereof, including, without limitation, any
thereof to in Schedule 1(b) hereto.
"Secured Obligations" means, without duplication, (i) all of the
obligations and liabilities of the Credit Parties to the Lenders
(including the Issuing Lender), and the Agent, whenever arising, under
the Credit Agreement or any of the other Credit Documents (including,
but not limited to, any interest accruing after the occurrence of a
Bankruptcy Event with respect to any Credit Party, regardless of whether
such interest is an allowed claim under the Bankruptcy Code), whether
now existing or hereafter arising, due or to become due, direct or
indirect, absolute or contingent, howsoever evidenced, created, held or
acquired, whether primary, secondary, direct, contingent, or joint and
several, as such obligations may be amended, modified, increased,
extended, renewed or replaced from time to time, (ii) all of the
obligations owing by the Credit Parties to the Lenders or any affiliate
of a Lender, whenever arising, under any interest rate protection
agreements, foreign currency exchange agreements or commodity purchase
or option agreements to the extent permitted under the Credit Agreement,
and (iii) all costs and expenses incurred in connection with enforcement
and collection of the Secured Obligations, including reasonable
attorneys' fees.
"Trademark License" means any agreement, written or oral, providing
for the grant by or to an Obligor of any right to use any Trademark,
including, without limitation, any Trademark Licenses referred to in
Schedule 1(b) hereto.
"Trademarks" means (a) all trademarks, trade names, corporate names,
company names, business names, fictitious business names, trade styles,
service marks, logos and other source or business identifiers, and the
goodwill associated therewith, now existing or hereafter adopted or
acquired, all registrations and recordings thereof, and all applications
in connection therewith, whether in the United States Patent and
Trademark Office or in any similar office or agency of the United
States, any state thereof or any other country or any political
subdivision thereof, or otherwise, including, without limitation, any
referred to in Schedule 1(b) hereto, and (b) all renewals thereof.
"UCC" shall have the meaning provided in Section 9(a) hereof.
"Work" means any work that is subject to copyright protection
pursuant to Title 17 of the United States Code.
2. Grant of Security Interest in the Collateral. To secure the prompt
payment and performance in full when due, whether by lapse of time, acceleration
or otherwise, of the Secured Obligations, each Obligor hereby grants to the
Agent, for the benefit of the holders of the Secured Obligations, a continuing
security interest in, and a right to set off against, any and all right, title
and interest of such Obligor in and to the following, whether now owned or
existing or owned, acquired, or arising hereafter (collectively, the
"Collateral"):
(a) all Accounts;
(b) all cash and currency;
(c) all Chattel Paper;
(d) those certain Commercial Tort Claims set forth on
Schedule 2(d) attached hereto;
(e) all Copyrights;
(f) all Copyright Licenses;
(g) all Deposit Accounts;
(h) all Documents;
(i) all Equipment;
(j) all Fixtures;
(k) all General Intangibles;
(l) all Instruments;
(m) all Inventory;
(n) all Investment Property;
(o) all Letter-of-Credit Rights;
(p) all Patents;
(q) all Patent Licenses;
(r) all Software;
(s) all Supporting Obligations;
(t) all Trademarks;
(u) all Trademark Licenses; and
(v) all Accessions to and Proceeds of any and all of the
foregoing.
The Obligors and the Agent, on behalf of the holders of the Secured
Obligations, hereby acknowledge and agree that the security interest created
hereby in the Collateral (i) constitutes continuing collateral security for all
of the Secured Obligations, whether now existing or hereafter arising (ii) is
not to be construed as an assignment of any Copyrights, Copyright Licenses,
Patents, Patent Licenses, Trademarks or Trademark Licenses and (iii) is subject
to any applicable restriction to the creation of a security interest to the
extent that such restriction is not made ineffective by UCC Section 9-401,
9-406(d), 9-407, 9-408 or 9-409.
3. Provisions Relating to Accounts.
(a) Anything herein to the contrary notwithstanding, each of the
Obligors shall remain liable under each of the Accounts to observe and
perform all the conditions and obligations to be observed and performed by
it thereunder, all in accordance with the terms of any agreement giving rise
to each such Account. Neither the Agent nor any holder of the Secured
Obligations shall have any obligation or liability under any Account (or any
agreement giving rise thereto) by reason of or arising out of this Security
Agreement or the receipt by the Agent or any holder of the Secured
Obligations of any payment relating to such Account pursuant hereto, nor
shall the Agent or any holder of the Secured Obligations be obligated in any
manner to perform any of the obligations of a Obligor under or pursuant to
any Account (or any agreement giving rise thereto), to make any payment, to
make any inquiry as to the nature or the sufficiency of any payment received
by it or as to the sufficiency of any performance by any party under any
Account (or any agreement giving rise thereto), to present or file any
claim, to take any action to enforce any performance or to collect the
payment of any amounts which may have been assigned to it or to which it may
be entitled at any time or times.
(b) Once during each calendar year or at any time after the occurrence
and during the continuation of an Event of Default, the Agent shall have the
right, but not the obligation, to make test verifications of the Accounts in
any manner and through any medium that it reasonably considers advisable,
and the Obligors shall furnish all such assistance and information as the
Agent may require in connection with such test verifications. At any time
and from time to time, upon the Agent's request and at the expense of the
Obligors, the Obligors shall cause independent public accountants or others
satisfactory to the Agent to furnish to the Agent reports showing
reconciliations, aging and test verifications of, and trial balances for,
the Accounts. The Agent in its own name or in the name of others may
communicate with account debtors on the Accounts to verify with them to the
Agent's satisfaction the existence, amount and terms of any Accounts.
4. Revised Article 9. Each of the Obligors acknowledges and agrees to the
following provisions in anticipation of the possible application, in one or more
jurisdictions applicable to the transactions contemplated hereby, of revised
Article 9 of the Uniform Commercial Code ("Revised Article 9"), in the form or
substantially in the form approved by the American Law Institute and the
National Conference of Commissioners on Uniform State Laws, as contained in
Appendix XVI of the 1999 edition of the Uniform Commercial Code Official Text:
(a) Attachment. In applying the law of any jurisdiction in which Revised
Article 9 is in effect, the Collateral is all assets of each Obligor secured
by this Agreement, whether or not within the scope of Revised Article 9. The
Collateral shall include, without limitation, the following categories of
assets as defined in Revised Article 9: goods (including inventory,
equipment and any accessions thereto), instruments (including promissory
notes), documents, accounts (including healthcare-insurance receivables),
chattel paper (whether tangible or electronic), deposit accounts,
letter-of-credit rights (whether or not the letter of credit is evidenced by
a writing), commercial tort claims, securities and all other investment
property, general intangibles (including payment intangibles and software),
supporting obligations and any and all proceeds thereof, wherever located,
whether now owned or hereafter acquired.
(b) Perfection by Filing. The Agent may at any time and from time to
time, pursuant to the provisions of Section 10 hereof, file financing
statements, continuation statements and amendments thereto that describe the
Collateral as all assets of each Obligor or words of similar effect and
which contain any other information required by Part 5 of Revised Article 9
for the sufficiency or filing office acceptance of any financing statement,
continuation statement or amendment, including whether such Obligor is an
organization, the type of organization and any organization identification
number issued to such Obligor. Each Obligor agrees to furnish any such
information to the Agent promptly upon request. Any such financing
statements, continuation statements or amendments may be signed by the Agent
on behalf of each Obligor and may be filed at any time in any jurisdiction
whether or not Revised Article 9 is then in effect in such jurisdiction.
(c) Other Perfection, etc. At any time and from time to time, each
Obligor shall, whether or not Revised Article 9 is in effect in any
applicable jurisdiction, take such steps as the Agent may reasonably request
for the Agent (a) to obtain an acknowledgment, in form and substance
reasonably satisfactory to the Agent, of any bailee having possession of any
of the Collateral, that such bailee holds such Collateral for the Agent, (b)
to obtain "control" of any investment property, deposit accounts,
letter-of-credit rights or electronic chattel paper (as such terms are
defined in Revised Article 9) as set forth in Revised Article 9, and, where
control is established by written agreement, such agreement shall be in form
and substance reasonably satisfactory to the Agent, and (c) otherwise to
insure the continued perfection and priority of the Agent's security
interest in any of the Collateral and of the preservation of its rights
therein, whether in anticipation of or following the effectiveness of
Revised Article 9 in any applicable jurisdiction.
(d) Other Provisions. In applying the law of any jurisdiction in which
Revised Article 9 is in effect, all references in this Security Agreement to
any section of existing Article 9 shall be deemed to be references to the
corresponding section of Revised Article 9.
(e) Savings Clause. Nothing contained in this Section 4 shall be
construed to narrow the scope of the Agent's security interest in any of the
Collateral or the perfection or priority thereof or to impair or otherwise
limit any of the rights, powers, privileges or remedies of the Agent or any
Secured Party hereunder, except (and then only to the extent) as mandated by
Revised Article 9, if applicable in a particular jurisdiction.
5. Representations and Warranties. Each Obligor hereby represents and
warrants to the Agent, for the benefit of the holders of the Secured
Obligations, that:
(a) Chief Executive Office; Books & Records. Each Obligor's chief
executive office and chief place of business are (and for the prior four
months have been) located at the locations set forth on Schedule 5(a)
hereto, and each Obligor keeps its books and records at such locations.
(b) Location of Collateral. The location of all Collateral owned by each
Obligor is as shown on Schedule 5(b) hereto.
(c) Ownership. Each Obligor is the legal and beneficial owner of its
Collateral and (subject to clause (iii) in the last sentence of Section 2)
has the right to pledge, sell, assign or transfer the same. Each Obligor's
legal name is as shown in this Security Agreement and no Obligor has in the
past four months changed its name, been party to a merger, consolidation or
other change in structure or used any fictitious name or tradename except as
set forth in Schedule 5(c) attached hereto.
(d) Security Interest/Priority. This Security Agreement creates a valid
security interest in favor of the Agent, for the benefit of the holders of
the Secured Obligations, in the Collateral of such Obligor and, when
properly perfected by filing, shall constitute a valid perfected security
interest in such Collateral, to the extent such security interest can be
perfected by filing under the UCC, free and clear of all Liens except for
Permitted Liens and subject to clause (iii) in the last sentence of Section
2.
(e) Farm Products. None of the Collateral constitutes, or is the
Proceeds of, Farm Products.
(f) Accounts. (i) Each Account of the Obligors and the papers and
documents relating thereto are genuine and in all material respects what
they purport to be, (ii) each Account arises out of (A) a bona fide sale of
goods sold and delivered by such Obligor (or is in the process of being
delivered) or (B) services theretofore actually rendered by such Obligor (or
in the process of being rendered) to, the account debtor named therein,
(iii) no material amount of Accounts of an Obligor is evidenced by any
Instrument or Chattel Paper unless such Instrument or Chattel Paper has been
theretofore endorsed over and delivered to the Agent and (iv) no surety bond
was required or given in connection with any material amount of Accounts of
an Obligor or the contracts or purchase orders out of which they arose.
(g) Inventory. No Inventory is held by an Obligor pursuant to
consignment, sale or return, sale on approval or similar arrangement.
(h) Copyrights, Patents and Trademarks.
(i) Schedule 1(b) hereto includes all Copyrights, Copyright
Licenses, Patents, Patent Licenses, Trademarks and Trademark Licenses
owned by the Obligors in their own names as of the date hereof.
(ii) To the best of each Obligor's knowledge, each Copyright, Patent
and Trademark of such Obligor is valid, subsisting, unexpired,
enforceable and has not been abandoned.
(iii) Except as set forth in Schedule 1(b) hereto, none of such
Copyrights, Patents and Trademarks is the subject of any licensing or
franchise agreement.
(iv) To the best of each Obligor's knowledge, no holding, decision
or judgment has been rendered by any Governmental Authority which would
limit, cancel or question the validity of any Copyright, Patent or
Trademark.
(v) No action or proceeding is pending seeking to limit, cancel or
question the validity of any Copyright, Patent or Trademark, or which,
if adversely determined, would have a material adverse effect on the
value of any Copyright, Patent or Trademark.
(vi) With such exceptions as would not individually or in the
aggregate have a Material Adverse Effect, all applications pertaining to
the Copyrights, Patents and Trademarks of each Obligor have been duly
and properly filed, and all registrations or letters pertaining to such
Copyrights, Patents and Trademarks have been duly and properly filed and
issued, and all of such Copyrights, Patents and Trademarks are valid and
enforceable.
(vii) No Obligor has made any assignment or agreement in conflict
with the security interest in the Copyrights, Patents or Trademarks of
each Obligor hereunder.
6. Covenants. Each Obligor covenants that, so long as the Secured
Obligations or any Letter of Credit shall remain outstanding and until the
Commitments shall have been terminated, such Obligor shall:
(a) Other Liens. Defend the Collateral against the claims and demands of
all other parties claiming an interest therein, keep the Collateral free
from all Liens, except for Permitted Liens, and not sell, exchange,
transfer, assign, lease or otherwise dispose of the Collateral or any
interest therein, except as permitted under the Credit Agreement.
(b) Instruments/Chattel Paper. If any amount in excess of $1,000,000
payable under or in connection with any of the Collateral shall be or become
evidenced by any Instrument or Chattel Paper, immediately deliver such
Instrument or Chattel Paper to the Agent, duly endorsed in a manner
satisfactory to the Agent, to be held as Collateral pursuant to this
Security Agreement.
(c) Change in Location. Not, without providing 10 days prior written
notice to the Agent and without filing such amendments to any previously
filed financing statements as the Agent may require, (a) change its
jurisdiction of incorporation, or (b) change its name or be party to a
merger, consolidation or other change in structure (except as permitted
under Section 8.4 of the Credit Agreement).
(d) Inspection. Upon reasonable notice, and during reasonable hours, at
all times allow the Agent or its representatives to visit and inspect the
Collateral as set forth in Section 7.10 of the Credit Agreement.
(e) Perfection of Security Interest. Execute and deliver to the Agent
such agreements, assignments or instruments (including affidavits, notices,
reaffirmations and amendments and restatements of existing documents, as the
Agent may reasonably request) and do all such other things as the Agent may
reasonably deem necessary or appropriate (i) to assure to the Agent its
security interests hereunder, including (A) such financing statements
(including renewal statements) or amendments thereof or supplements thereto
or other instruments as the Agent may from time to time reasonably request
in order to perfect and maintain the security interests granted hereunder in
accordance with the UCC, (B) with regard to Copyrights, a Notice of Grant of
Security Interest in Copyrights in the form of Schedule 6(e)(i), (C) with
regard to Patents, a Notice of Grant of Security Interest in Patents for
filing with the United States Patent and Trademark Office in the form of
Schedule 6(e)(ii) attached hereto and (D) with regard to Trademarks, a
Notice of Grant of Security Interest in Trademarks for filing with the
United States Patent and Trademark Office in the form of Schedule 6(e)(iii)
attached hereto, (ii) to consummate the transactions contemplated hereby and
(iii) to otherwise protect and assure the Agent of its rights and interests
hereunder. To that end, each Obligor agrees that the Agent may file one or
more financing statements disclosing the Agent's security interest in any or
all of the Collateral of such Obligor without, to the extent permitted by
law, such Obligor's signature thereon, and further each Obligor also hereby
irrevocably makes, constitutes and appoints the Agent, its nominee or any
other person whom the Agent may designate, as such Obligor's attorney in
fact with full power and for the limited purpose to sign in the name of such
Obligor any such financing statements, or amendments and supplements to
financing statements, renewal financing statements, notices or any similar
documents which in the Agent's reasonable discretion would be necessary,
appropriate or convenient in order to perfect and maintain perfection of the
security interests granted hereunder, such power, being coupled with an
interest, being and remaining irrevocable so long as the Secured Obligations
or any Letter of Credit remains unpaid and until the Commitments shall have
been terminated. Each Obligor hereby agrees that a carbon, photographic or
other reproduction of this Security Agreement or any such financing
statement is sufficient for filing as a financing statement by the Agent
without notice thereof to such Obligor wherever the Agent may in its sole
discretion desire to file the same. In the event for any reason the law of
any jurisdiction other than New York becomes or is applicable to the
Collateral of any Obligor or any part thereof, or to any of the Secured
Obligations, such Obligor agrees to execute and deliver all such instruments
and to do all such other things as the Agent in its sole discretion
reasonably deems necessary or appropriate to preserve, protect and enforce
the security interests of the Agent under the law of such other jurisdiction
(and, if an Obligor shall fail to do so promptly upon the request of the
Agent, then the Agent may execute any and all such requested documents on
behalf of such Obligor pursuant to the power of attorney granted
hereinabove). If any Collateral is in the possession or control of an
Obligor's agents and the Agent so requests, such Obligor agrees to notify
such agents in writing of the Agent's security interest therein and, upon
the Agent's request, instruct them to hold all such Collateral for the
account of the holders of the Secured Obligations and subject to the Agent's
instructions. Each Obligor agrees to ▇▇▇▇ its books and records to reflect
the security interest of the Agent in the Collateral.
(f) Treatment of Accounts. Not grant or extend the time for payment of
any Account, or compromise or settle any Account for less than the full
amount thereof, or release any person or property, in whole or in part, from
payment thereof, or allow any credit or discount thereon, other than as
normal and customary in the ordinary course of an Obligor's business or as
required by law.
(g) Covenants Relating to Copyrights.
(i) Not do any act or knowingly omit to do any act whereby any
material registered Copyright may become invalidated and (A) not do any
act, or knowingly omit to do any act, whereby any material registered
Copyright may become injected into the public domain except in the
ordinary course of an Obligor's business or as required by law; and (B)
take all necessary steps as it shall deem appropriate under the
circumstances, to maintain and pursue each application (and to obtain
the relevant registration) and to maintain each registration of each
material Copyright owned by an Obligor including, without limitation,
filing of applications for renewal where necessary.
(ii) Not make any assignment or agreement in conflict with the
security interest in the Copyrights of each Obligor hereunder except for
sales and other dispositions permitted by the Credit Agreement.
(h) Covenants Relating to Patents and Trademarks.
(i) Except for changes in the ordinary course of the business of the
Obligors (A) Continue to use each material Trademark on each and every
trademark class of goods applicable to its current line as reflected in
its current catalogs, brochures and price lists in order to maintain
such Trademark in full force free from any claim of abandonment for
non-use, (B) maintain as in the past the quality of products and
services offered under such Trademark, (C) employ such Trademark with
the appropriate notice of registration, and (D) not (and not permit any
licensee or sublicensee thereof to) do any act or knowingly omit to do
any act whereby any material Trademark becomes invalidated.
(ii) Not do any act, or omit to do any act, whereby any material
Patent may become abandoned or dedicated.
(iii) Notify the Agent and the holders of the Secured Obligations
immediately if it knows that any application or registration relating to
any Patent or Trademark may become abandoned or dedicated, or of any
adverse determination or development (including, without limitation, the
institution of, or any such determination or development in, any
proceeding in the United States Patent and Trademark Office or any court
or tribunal in any country) regarding a Obligor's ownership of any
Patent or Trademark or its right to register the same or to keep and
maintain the same.
(iv) Take all reasonable and necessary steps, including, without
limitation, in any proceeding before the United States Patent and
Trademark Office, or any similar office or agency in any other country
or any political subdivision thereof, to maintain and pursue each
application (and to obtain the relevant registration) and to maintain
each registration of its material Patents and Trademarks, including,
without limitation, filing of applications for renewal, affidavits of
use and affidavits of incontestability.
(v) Not make any assignment or agreement in conflict with the
security interest in the Patents or Trademarks of each Obligor hereunder
except for sales or other dispositions permitted by the Credit
Agreement.
(i) New Patents, Copyrights and Trademarks. Promptly provide the Agent
with (i) a listing of all applications, if any, for new Copyrights, Patents
or Trademarks (together with a listing of the issuance of registrations or
letters on present applications), which new applications and issued
registrations or letters shall be subject to the terms and conditions
hereunder, and (ii) (A) with respect to Copyrights, a duly executed Notice
of Security Interest in Copyrights, (B) with respect to Patents, a duly
executed Notice of Security Interest in Patents, (C) with respect to
Trademarks, a duly executed Notice of Security Interest in Trademarks or (D)
such other duly executed documents as the Agent may reasonably request in a
form acceptable to counsel for the Agent and suitable for recording to
evidence the security interest in the Copyright, Patent or Trademark which
is the subject of such new application.
(j) Insurance. Insure, repair and replace the Collateral of such Obligor
as set forth in the Credit Agreement. All insurance proceeds shall be
subject to the security interest of the Agent hereunder.
7. Advances by holders of the Secured Obligations. On failure of any Obligor
to perform any of the covenants and agreements contained herein, the Agent may,
at its sole option and in its sole discretion, perform the same and in so doing
may expend such sums as the Agent may reasonably deem advisable in the
performance thereof, including, without limitation, the payment of any insurance
premiums, the payment of any taxes, a payment to obtain a release of a Lien or
potential Lien, expenditures made in defending against any adverse claim and all
other expenditures which the Agent or the holders of the Secured Obligations may
make for the protection of the security hereof or which may be compelled to make
by operation of law. All such reasonable and documented sums and amounts so
expended shall be repayable by the Obligors on a joint and several basis
promptly upon timely notice thereof and demand therefor, shall constitute
additional Secured Obligations and shall bear interest from the date said
amounts are expended at the default rate specified in Section 3.1 of the Credit
Agreement for Revolving Loans that are Base Rate Loans. No such performance of
any covenant or agreement by the Agent or the holders of the Secured Obligations
on behalf of any Obligor, and no such advance or expenditure therefor, shall
relieve the Obligors of any default under the terms of this Security Agreement,
the other Credit Documents or any other documents relating to the Secured
Obligations. The holders of the Secured Obligations may make any payment hereby
authorized in accordance with any ▇▇▇▇, statement or estimate procured from the
appropriate public office or holder of the claim to be discharged without
inquiry into the accuracy of such ▇▇▇▇, statement or estimate or into the
validity of any tax assessment, sale, forfeiture, tax lien, title or claim
except to the extent such payment is being contested in good faith by an Obligor
in appropriate proceedings and against which adequate reserves are being
maintained in accordance with GAAP.
8. Events of Default.
The occurrence of an Event of Default (as defined in the Credit Agreement)
under the Credit Agreement shall be an Event of Default hereunder (an "Event of
Default").
9. Remedies.
(a) General Remedies. Upon the occurrence of an Event of Default and
during continuation thereof, the holders of the Secured Obligations shall
have, in addition to the rights and remedies provided herein, in the Credit
Documents or any other documents relating to the Secured Obligations, or by
law (including, but not limited to, the rights and remedies set forth in the
Uniform Commercial Code of the jurisdiction applicable to the affected
Collateral (the "UCC")) and, further, the Agent may, with or without
judicial process or the aid and assistance of others, (i) enter on any
premises on which any of the Collateral may be located and, without
resistance or interference by the Obligors, take possession of the
Collateral, (ii) dispose of any Collateral on any such premises, (iii)
require the Obligors to assemble and make available to the Agent at the
expense of the Obligors any Collateral at any place and time designated by
the Agent which is reasonably convenient to both parties, (iv) remove any
Collateral from any such premises for the purpose of effecting sale or other
disposition thereof, and/or (v) without demand and without advertisement,
notice, hearing or process of law, all of which each of the Obligors hereby
waives to the fullest extent permitted by law, at any place and time or
times, sell and deliver any or all Collateral held by or for it at public or
private sale, by one or more contracts, in one or more parcels, for cash,
upon credit or otherwise, at such prices and upon such terms as the Agent
deems advisable, in its sole discretion (subject to any and all mandatory
legal requirements). In addition to all other sums due the Agent and the
holders of the Secured Obligations with respect to the Secured Obligations,
the Obligors shall pay the Agent and each of the holders of the Secured
Obligations all reasonable documented costs and expenses incurred by the
Agent or any such holder of the Secured Obligations, including, but not
limited to, reasonable attorneys' fees and court costs, in obtaining or
liquidating the Collateral, in enforcing payment of the Secured Obligations,
or in the prosecution or defense of any action or proceeding by or against
the Agent or the holders of the Secured Obligations or the Obligors
concerning any matter arising out of or connected with this Security
Agreement, any Collateral or the Secured Obligations, including, without
limitation, any of the foregoing arising in, arising under or related to a
case under the Bankruptcy Code. To the extent the rights of notice cannot be
legally waived hereunder, each Obligor agrees that any requirement of
reasonable notice shall be met if such notice is personally served on or
mailed, postage prepaid, to the Borrower in accordance with the notice
provisions of Section 11.1 of the Credit Agreement at least 10 Business Days
before the time of sale or other event giving rise to the requirement of
such notice. The Agent and the holders of the Secured Obligations shall not
be obligated to make any sale or other disposition of the Collateral
regardless of notice having been given. To the extent permitted by law, any
holder of the Secured Obligations may be a purchaser at any such sale. To
the extent permitted by applicable law, each of the Obligors hereby waives
all of its rights of redemption with respect to any such sale. Subject to
the provisions of applicable law, the Agent and the holders of the Secured
Obligations may postpone or cause the postponement of the sale of all or any
portion of the Collateral by announcement at the time and place of such
sale, and such sale may, without further notice, to the extent permitted by
law, be made at the time and place to which the sale was postponed, or the
Agent and the holders of the Secured Obligations may further postpone such
sale by announcement made at such time and place.
(b) Remedies relating to Accounts. Upon the occurrence of an Event of
Default and during the continuation thereof, whether or not the Agent has
exercised any or all of its rights and remedies hereunder, each Obligor will
promptly upon request of the Agent instruct all account debtors to remit all
payments in respect of Accounts to a mailing location selected by the Agent.
In addition, the Agent or its designee may notify any Obligor's customers
and account debtors that the Accounts of such Obligor have been assigned to
the Agent or of the Agent's security interest therein, and may (either in
its own name or in the name of a Obligor or both) demand, collect (including
without limitation by way of a lockbox arrangement), receive, take receipt
for, sell, ▇▇▇ for, compound, settle, compromise and give acquittance for
any and all amounts due or to become due on any Account, and, in the Agent's
discretion, file any claim or take any other action or proceeding to protect
and realize upon the security interest of the holders of the Secured
Obligations in the Accounts. Each Obligor acknowledges and agrees that the
Proceeds of its Accounts remitted to or on behalf of the Agent in accordance
with the provisions hereof shall be solely for the Agent's own convenience
and that any right, title or interest of such Obligor in such Accounts or in
any such other amounts shall be subject thereto. The Agent and the holders
of the Secured Obligations shall have no liability or responsibility to any
Obligor for acceptance of a check, draft or other order for payment of money
bearing the legend "payment in full" or words of similar import or any other
restrictive legend or endorsement or be responsible for determining the
correctness of any remittance. Each Obligor hereby agrees to indemnify the
Agent and the holders of the Secured Obligations from and against all
liabilities, damages, losses, actions, claims, judgments, costs, expenses,
charges and reasonable attorneys' fees suffered or incurred by the Agent or
the holders of the Secured Obligations (each, an "Indemnified Party")
because of the maintenance of the foregoing arrangements except as relating
to or arising out of the gross negligence or willful misconduct of an
Indemnified Party or its officers, employees or agents. In the case of any
investigation, litigation or other proceeding, the foregoing indemnity shall
be effective whether or not such investigation, litigation or proceeding is
brought by an Obligor, its directors, shareholders or creditors or an
Indemnified Party or any other Person or any other Indemnified Party is
otherwise a party thereto.
(c) Access. In addition to the rights and remedies hereunder, upon the
occurrence of an Event of Default and during the continuation thereof, the
Agent shall have the right to enter and remain upon the various premises of
the Obligors without cost or charge to the Agent, and use the same, together
with materials, supplies, books and records of the Obligors for the purpose
of collecting and liquidating the Collateral, or for preparing for sale and
conducting the sale of the Collateral, whether by foreclosure, auction or
otherwise. In addition, the Agent may remove Collateral, or any part
thereof, from such premises and/or any records with respect thereto, in
order to effectively collect or liquidate such Collateral.
(d) Nonexclusive Nature of Remedies. Failure by the Agent or the holders
of the Secured Obligations to exercise any right, remedy or option under
this Security Agreement, any other Credit Document, any Other documents
relating to the Secured Obligations, or as provided by law, or any delay by
the Agent or the holders of the Secured Obligations in exercising the same,
shall not operate as a waiver of any such right, remedy or option. No waiver
hereunder shall be effective unless it is in writing, signed by the party
against whom such waiver is sought to be enforced and then only to the
extent specifically stated, which in the case of the Agent or the holders of
the Secured Obligations shall only be granted as provided herein. To the
extent permitted by law, neither the Agent, the holders of the Secured
Obligations, nor any party acting as attorney for the Agent or the holders
of the Secured Obligations, shall be liable hereunder for any acts or
omissions or for any error of judgment or mistake of fact or law other than
their gross negligence or willful misconduct hereunder. The rights and
remedies of the Agent and the holders of the Secured Obligations under this
Security Agreement shall be cumulative and not exclusive of any other right
or remedy which the Agent or the holders of the Secured Obligations may
have.
(e) Retention of Collateral. To the extent permitted under applicable
law, the Agent may, after providing the notices required by Section 9-620(2)
of the UCC or otherwise complying with the requirements of applicable law of
the relevant jurisdiction, to the extent the Agent is in possession of any
of the Collateral, retain the Collateral in satisfaction of the Secured
Obligations. Unless and until the Agent shall have provided such notices,
however, the Agent shall not be deemed to have retained any Collateral in
satisfaction of any Secured Obligations for any reason.
(f) Deficiency. In the event that the proceeds of any sale, collection
or realization are insufficient to pay all amounts to which the Agent or the
holders of the Secured Obligations are legally entitled, the Obligors shall
be jointly and severally liable for the deficiency, together with interest
thereon at the default rate specified in Section 3.1 of the Credit Agreement
for Revolving Loans that are Base Rate Loans, together with the costs of
collection and the reasonable fees of any attorneys employed by the Agent to
collect such deficiency. Any surplus remaining after the full payment and
satisfaction of the Secured Obligations shall be returned to the Obligors or
to whomsoever a court of competent jurisdiction shall determine to be
entitled thereto.
10. Rights of the Agent.
(a) Power of Attorney. In addition to other powers of attorney contained
herein, each Obligor hereby designates and appoints the Agent, on behalf of
the holders of the Secured Obligations, and each of its designees or agents,
as attorney-in-fact of such Obligor, irrevocably and with power of
substitution, with authority to take any or all of the following actions
upon the occurrence and during the continuation of an Event of Default:
(i) to demand, collect, settle, compromise, adjust, give discharges
and releases, all as the Agent may reasonably determine;
(ii) to commence and prosecute any actions at any court for the
purposes of collecting any Collateral and enforcing any other right in
respect thereof;
(iii) to defend, settle or compromise any action in respect of the
Pledged Collateral brought and, in connection therewith, give such
discharge or release as the Agent may deem reasonably appropriate;
(iv) to receive, open and dispose of mail addressed to an Obligor
(subject to delivery to such Obligor of mail unrelated to the
Collateral) and endorse checks, notes, drafts, acceptances, money
orders, bills of lading, warehouse receipts or other instruments or
documents evidencing payment, shipment or storage of the goods giving
rise to the Collateral of such Obligor on behalf of and in the name of
such Obligor, or securing, or relating to such Collateral;
(v) to sell, assign, transfer, make any agreement in respect of, or
otherwise deal with or exercise rights in respect of, any Collateral or
the goods or services which have given rise thereto, as fully and
completely as though the Agent were the absolute owner thereof for all
purposes;
(vi) to adjust and settle claims under any insurance policy relating
thereto;
(vii) to execute and deliver all assignments, conveyances,
statements, financing statements, renewal financing statements, security
agreements, affidavits, notices and other agreements, instruments and
documents that the Agent may reasonably determine necessary in order to
perfect and maintain the security interests and liens granted in this
Security Agreement and in order to fully consummate all of the
transactions contemplated therein;
(viii) to institute any foreclosure proceedings that the Agent may
reasonably deem appropriate; and
(ix) to do and perform all such other acts and things as the Agent
may reasonably deem to be necessary, proper or convenient in connection
with the Collateral.
This power of attorney is a power coupled with an interest and shall be
irrevocable (i) for so long as any of the Secured Obligations remain
outstanding, any Credit Document or any other documents relating to the Secured
Obligations is in effect or any Letter of Credit shall remain outstanding and
(ii) until all of the Commitments shall have been terminated. The Agent shall be
under no duty to exercise or withhold the exercise of any of the rights, powers,
privileges and options expressly or implicitly granted to the Agent in this
Security Agreement, and shall not be liable for any failure to do so or any
delay in doing so. The Agent shall not be liable for any act or omission or for
any error of judgment or any mistake of fact or law in its individual capacity
or its capacity as attorney-in-fact except acts or omissions resulting from its
gross negligence or willful misconduct. This power of attorney is conferred on
the Agent solely to protect, preserve and realize upon its security interest in
the Collateral.
(b) Assignment by the Agent. Pursuant to the Credit Agreement, the Agent
may from time to time assign the Secured Obligations and any portion thereof
and/or the Collateral and any portion thereof, and the assignee shall be
entitled to all of the rights and remedies of the Agent under this Security
Agreement in relation thereto.
(c) The Agent's Duty of Care. Other than the exercise of reasonable care
to assure the safe custody of the Collateral while being held by the Agent
hereunder, the Agent shall have no duty or liability to preserve rights
pertaining thereto, it being understood and agreed that the Obligors shall
be responsible for preservation of all rights in the Collateral, and the
Agent shall be relieved of all responsibility for the Collateral upon
surrendering it or tendering the surrender of it to the Obligors. The Agent
shall be deemed to have exercised reasonable care in the custody and
preservation of the Collateral in its possession if the Collateral is
accorded treatment substantially equal to that which the Agent accords its
own property, which shall be no less than the treatment employed by a
reasonable and prudent agent in the industry, it being understood that the
Agent shall not have responsibility for taking any necessary steps to
preserve rights against any parties with respect to any of the Collateral.
(d) Release of Collateral. The Agent may release any of the Collateral
from this Security Agreement or may substitute any of the Collateral for
other Collateral without altering, varying or diminishing in any way the
force, effect, lien, pledge or security interest of this Security Agreement
as to any Collateral not expressly released or substituted, and this
Security Agreement shall continue as a first priority lien on all Collateral
not expressly released or substituted. If any of the Collateral shall be
sold, transferred or otherwise disposed of by any Obligor in a transaction
permitted by the Credit Agreement, then the Agent, at the request and sole
expense of such Obligor, shall execute and deliver to such Obligor all
releases or other documents reasonably necessary or desirable for the
release of the Liens created hereby on such Collateral.
11. Application of Proceeds. Upon the occurrence and during the continuation
of an Event of Default, upon the request and direction of the Required Lenders,
any payments in respect of the Secured Obligations and any proceeds of the
Collateral, when received by the Agent or any of the holders of the Secured
Obligations in cash or its equivalent, will be applied in reduction of the
Secured Obligations in the order set forth in the Credit Agreement or other
document relating to the Secured Obligations, and each Obligor irrevocably
waives the right to direct the application of such payments and proceeds and
acknowledges and agrees that the Agent shall have the continuing and exclusive
right to apply and reapply any and all such payments and proceeds in the Agent's
sole discretion, notwithstanding any entry to the contrary upon any of its books
and records.
12. Costs of Counsel. If at any time hereafter, whether upon the occurrence
of an Event of Default or not, the Agent employs counsel to prepare or consider
amendments, waivers or consents with respect to this Security Agreement, or to
take action or make a response in or with respect to any legal or arbitral
proceeding relating to this Security Agreement or relating to the Collateral, or
to protect the Collateral or exercise any rights or remedies under this Security
Agreement or with respect to the Collateral, then the Obligors agree to promptly
pay upon demand any and all such reasonable documented costs and expenses of the
Agent or the holders of the Secured Obligations, all of which costs and expenses
shall constitute Secured Obligations hereunder.
13. Continuing Agreement.
(a) This Security Agreement shall be a continuing agreement in every
respect and shall remain in full force and effect so long as any of the
Secured Obligations or any Letter of Credit shall remain outstanding and
until the Commitments shall have terminated (other than any obligations with
respect to the indemnities and the representations and warranties set forth
in the Credit Documents). Upon such payment and termination, this Security
Agreement shall be automatically terminated and the Agent and the holders of
the Secured Obligations shall, upon the request and at the expense of the
Obligors, forthwith release all of its liens and security interests
hereunder and shall execute and deliver all UCC termination statements
and/or other documents reasonably requested by the Obligors evidencing such
termination. Notwithstanding the foregoing all releases and indemnities
provided hereunder shall survive termination of this Security Agreement.
(b) This Security Agreement shall continue to be effective or be
automatically reinstated, as the case may be, if at any time payment, in
whole or in part, of any of the Secured Obligations is rescinded or must
otherwise be restored or returned by the Agent or any holder of the Secured
Obligations as a preference, fraudulent conveyance or otherwise under any
bankruptcy, insolvency or similar law, all as though such payment had not
been made; provided that in the event payment of all or any part of the
Secured Obligations is rescinded or must be restored or returned, all
reasonable costs and expenses (including without limitation any reasonable
legal fees and disbursements) incurred by the Agent or any holder of the
Secured Obligations in defending and enforcing such reinstatement shall be
deemed to be included as a part of the Secured Obligations.
14. Amendments; Waivers; Modifications. This Security Agreement and the
provisions hereof may not be amended, waived, modified, changed, discharged or
terminated except as set forth in Section 11.6 of the Credit Agreement.
15. Successors in Interest. This Security Agreement shall create a
continuing security interest in the Collateral and shall be binding upon each
Obligor, its successors and assigns and shall inure, together with the rights
and remedies of the Agent and the holders of the Secured Obligations hereunder,
to the benefit of the Agent and the holders of the Secured Obligations and their
successors and permitted assigns; provided, however, that none of the Obligors
may assign its rights or delegate its duties hereunder without the prior written
consent of the requisite Lenders under the Credit Agreement. To the fullest
extent permitted by law, each Obligor hereby releases the Agent and each holder
of the Secured Obligations, and its successors and assigns, from any liability
for any act or omission relating to this Security Agreement or the Collateral,
except for any liability arising from the gross negligence or willful misconduct
of the Agent, or such holder of the Secured Obligations, or their respective
officers, employees or agents.
16. Notices. All notices required or permitted to be given under this
Security Agreement shall be given as provided in the Credit Agreement.
17. Counterparts. This Security Agreement may be executed in any number of
counterparts, each of which where so executed and delivered shall be an
original, but all of which shall constitute one and the same instrument. It
shall not be necessary in making proof of this Security Agreement to produce or
account for more than one such counterpart.
18. Headings. The headings of the sections and subsections hereof are
provided for convenience only and shall not in any way affect the meaning or
construction of any provision of this Security Agreement.
19. Governing Law; Submission to Jurisdiction; Venue.
(a) THIS SECURITY AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. Any legal action or
proceeding with respect to this Credit Agreement or any other Credit
Document may be brought in the courts of the State of New York, New York
County or of the United States for the Southern District of New York, and,
by execution and delivery of this Security Agreement, each Obligor hereby
irrevocably accepts for itself and in respect of its property, generally and
unconditionally, the jurisdiction of such courts. Each Obligor further
irrevocably consents to the service of process out of any of the
aforementioned courts in any such action or proceeding by the mailing of
copies thereof by registered or certified mail, postage prepaid, to it at
the address for notices pursuant to Section 11.1 of the Credit Agreement,
such service to become effective three days after such mailing. Nothing
herein shall affect the right of the Agent to serve process in any other
manner permitted by law or to commence legal proceedings or to otherwise
proceed against any Obligor in any other jurisdiction.
(b) Each Obligor hereby irrevocably waives any objection which it may
now or hereafter have to the laying of venue of any of the aforesaid actions
or proceedings arising out of or in connection with this Security Agreement
brought in the courts referred to in subsection (a) hereof and hereby
further irrevocably waives and agrees not to plead or claim in any such
court that any such action or proceeding brought in any such court has been
brought in an inconvenient forum.
20. Waiver of Jury Trial. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF
THE PARTIES TO THIS SECURITY AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR
RELATING TO THIS SECURITY AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
21. Severability. If any provision of any of the Security Agreement is
determined to be illegal, invalid or unenforceable, such provision shall be
fully severable and the remaining provisions shall remain in full force and
effect and shall be construed without giving effect to the illegal, invalid or
unenforceable provisions.
22. Entirety. This Security Agreement, the other Credit Documents and the
other documents relating to the Secured Obligations represent the entire
agreement of the parties hereto and thereto, and supersede all prior agreements
and understandings, oral or written, if any, including any commitment letters or
correspondence relating to the Credit Documents, any other documents relating to
the Secured Obligations, or the transactions contemplated herein and therein.
23. Survival. All representations and warranties of the Obligors hereunder
shall survive the execution and delivery of this Security Agreement, the other
Credit Documents and the other documents relating to the Secured Obligations,
the delivery of the Notes and the extension of credit thereunder or in
connection therewith.
24. Other Security. To the extent that any of the Secured Obligations are
now or hereafter secured by property other than the Collateral (including,
without limitation, real property and securities owned by a Obligor), or by a
guarantee, endorsement or property of any other Person, then the Agent and the
holders of the Secured Obligations shall have the right to proceed against such
other property, guarantee or endorsement upon the occurrence of any Event of
Default, and the Agent and the holders of the Secured Obligations shall have the
right, in their sole discretion, to determine which rights, security, liens,
security interests or remedies the Agent and the holders of the Secured
Obligations shall at any time pursue, relinquish, subordinate, modify or take
with respect thereto, without in any way modifying or affecting any of them or
the Secured Obligations or any of the rights of the Agent or the holders of the
Secured Obligations under this Security Agreement, under any other of the Credit
Documents or under any other document relating to the Secured Obligations.
25. Joint and Several Obligations of Obligors.
(a) Each of the Obligors is accepting joint and several liability
hereunder in consideration of the financial accommodation to be provided by
the holders of the Secured Obligations, for the mutual benefit, directly and
indirectly, of each of the Obligors and in consideration of the undertakings
of each of the Obligors to accept joint and several liability for the
obligations of each of them.
(b) Each of the Obligors jointly and severally hereby irrevocably and
unconditionally accepts, not merely as a surety but also as a co-debtor,
joint and several liability with the other Obligors with respect to the
payment and performance of all of the Secured Obligations arising under this
Security Agreement, the other Credit Documents and any other documents
relating to the Secured Obligations, it being the intention of the parties
hereto that all the Secured Obligations shall be the joint and several
obligations of each of the Obligors without preferences or distinction among
them.
(c) Notwithstanding any provision to the contrary contained herein, in
any other of the Credit Documents or in any other documents relating to the
Secured Obligations, the obligations of each Guarantor under the Credit
Agreement and the other Credit Documents shall be limited to an aggregate
amount equal to the largest amount that would not render such obligations
subject to avoidance under Section 548 of the Bankruptcy Code or any
comparable provisions of any applicable state law.
26. Rights of Required Lenders. All rights of the Agent hereunder, if not
exercised by the Agent, may be exercised by the requisite Lenders required by
the Credit Agreement.
[remainder of page intentionally left blank]
Each of the parties hereto has caused a counterpart of this Security
Agreement to be duly executed and delivered as of the date first above written.
BORROWER: APRIA HEALTHCARE GROUP INC.
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
GUARANTORS:
APRIA HEALTHCARE INC.,
a Delaware corporation
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
APRIA NUMBER TWO INC.,
a Delaware corporation
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
APRIACARE MANAGEMENT SYSTEMS INC.,
a Delaware corporation
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
APRIA HEALTHCARE OF NEW YORK
STATE, INC.,
a New York corporation
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
APRIA HEALTHCARE ESSENTIALS, LLC,
a Delaware limited liability company
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
Accepted and agreed to as of the date first above written.
Bank of America, N.A.,
as Agent
By:
---------------------------------
Name:
Title:
SCHEDULE 1(b)
-------------
INTELLECTUAL PROPERTY
SCHEDULE 4(a)
-------------
CHIEF EXECUTIVE OFFICES
SCHEDULE 4(b)
-------------
LOCATIONS OF COLLATERAL
SCHEDULE 4(c)
-------------
MERGERS, CONSOLIDATIONS, CHANGES IN STRUCTURE OR USE OF TRADENAMES
SCHEDULE 5(f)(i)
----------------
NOTICE
OF
GRANT OF SECURITY INTEREST
IN
COPYRIGHTS
United States Copyright Office
Gentlemen:
Please be advised that pursuant to the Security Agreement dated as of July
__, 2001 (as the same may be amended, modified, extended or restated from time
to time, the "Security Agreement") by and among the Obligors party thereto (each
an "Obligor" and collectively, the "Obligors") and Bank of America, N.A., as
Agent (the "Agent") for the holders of the Secured Obligations referenced
therein, the undersigned Obligor has granted a continuing security interest in
and continuing lien upon, the copyrights and copyright applications shown below
to the Agent for the ratable benefit of the holders of the Secured Obligations:
COPYRIGHTS
----------
Date of
Copyright No. Description of Copyright Copyright
------------- ------------------------ ---------
COPYRIGHT APPLICATIONS
----------------------
Copyright Description of Copyright Date of Copyright
Applications No. Applied For Applications
---------------- ------------------------ -----------------
The Obligors and the Agent, on behalf of the holders of the Secured
Obligations, hereby acknowledge and agree that the security interest in the
foregoing copyrights and copyright applications (i) may only be terminated in
accordance with the terms of the Security Agreement and (ii) is not to be
construed as an assignment of any copyright or copyright application.
Very truly yours,
----------------------------------
[Obligor]
By:
----------------------------------
Name:
Title:
Acknowledged and Accepted:
BANK OF AMERICA, N.A., as Agent
By:
---------------------------------
Name:
Title:
SCHEDULE 5(f)(ii)
-----------------
NOTICE
OF
GRANT OF SECURITY INTEREST
IN
PATENTS
United States Patent and Trademark Office
Gentlemen:
Please be advised that pursuant to the Security Agreement dated as of July
__, 2001 (the "Security Agreement") by and among the Obligors party thereto
(each an "Obligor" and collectively, the "Obligors") and Bank of America, N.A.,
as Agent (the "Agent") for the holders of the Secured Obligations referenced
therein, the undersigned Obligor has granted a continuing security interest in
and continuing lien upon, the patents and patent applications shown below to the
Agent for the ratable benefit of the holders of the Secured Obligations:
PATENTS
-------
Description of Patent Date of
Patent No. Item Patent
---------- ---- ------
PATENT APPLICATIONS
-------------------
Patent Description of Patent Date of Patent
Applications No. Applied For Applications
---------------- --------------------- --------------
The Obligors and the Agent, on behalf of the holders of the Secured
Obligations, hereby acknowledge and agree that the security interest in the
foregoing patents and patent applications (i) may only be terminated in
accordance with the terms of the Security Agreement and (ii) is not to be
construed as an assignment of any patent or patent application.
Very truly yours,
----------------------------------
[Obligor]
By:
----------------------------------
Name:
Title:
Acknowledged and Accepted:
BANK OF AMERICA, N.A., as Agent
By:
----------------------------------
Name:
Title:
SCHEDULE 5(f)(iii)
------------------
NOTICE
OF
GRANT OF SECURITY INTEREST
IN
TRADEMARKS
United States Patent and Trademark Office
Gentlemen:
Please be advised that pursuant to the Security Agreement dated as of July
__, 2001 (the "Security Agreement") by and among the Obligors party thereto
(each an "Obligor" and collectively, the "Obligors") and Bank of America, N.A.,
as Agent (the "Agent") for the holders of the Secured Obligations referenced
therein, the undersigned Obligor has granted a continuing security interest in
and continuing lien upon, the trademarks and trademark applications shown below
to the Agent for the ratable benefit of the holders of the Secured Obligations:
TRADEMARKS
----------
Description of Trademark Date of
Trademark No. Item Trademark
------------- ---- ---------
TRADEMARK APPLICATIONS
----------------------
Trademark Description of Trademark Date of Trademark
Applications No. Applied For Applications
---------------- ------------------------ -----------------
The Obligors and the Agent, on behalf of the holders of the Secured
Obligations, hereby acknowledge and agree that the security interest in the
foregoing trademarks and trademark applications (i) may only be terminated in
accordance with the terms of the Security Agreement and (ii) is not to be
construed as an assignment of any trademark or trademark application.
Very truly yours,
----------------------------------
[Obligor]
By:
----------------------------------
Name:
Title:
Acknowledged and Accepted:
BANK OF AMERICA, N.A., as Agent
By:
----------------------------------
Name:
Title:
EXHIBIT 2.1(B)
--------------
FORM OF NOTICE OF BORROWING
Bank of America, N.A.,
as Agent for the Lenders
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Independence Center, ▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Agency Services
Ladies and Gentlemen:
The undersigned, APRIA HEALTHCARE GROUP INC. (the "Borrower"), refers to the
Credit Agreement dated as of July __, 2001 (as amended, modified, restated or
supplemented from time to time, the "Credit Agreement"), among the Borrower, the
Guarantors, the Lenders and Bank of America, N.A., as Agent. Capitalized terms
used herein and not otherwise defined herein shall have the meanings assigned to
such terms in the Credit Agreement. [The Borrower hereby gives notice pursuant
to Section 2.1 of the Credit Agreement that it requests a Revolving Loan advance
under the Credit Agreement, and in connection therewith sets forth below the
terms on which such Loan advance is requested to be made:]* [The Borrower hereby
gives notice pursuant to Section 2.4 of the Credit Agreement that it requests
the Tranche A Term Loan under the Credit Agreement on the Closing Date, and in
connection therewith sets forth below the terms on which such Loan advance is
requested to be made:]** [The Borrower hereby gives notice pursuant to Section
2.5 of the Credit Agreement that it requests the Tranche A Term Loan under the
Credit Agreement on the Closing Date, and in connection therewith sets forth
below the terms on which such Loan advance is requested to be made:]***
[(A) Date of Borrowing (which is a Business Day) _______________________]*
[(B) Principal Amount of Borrowing _______________________]*
(C) Interest rate basis _______________________
(D) Interest Period and the last day thereof _______________________
In accordance with the requirements of Section 5.2, the Borrower hereby
reaffirms the representations and warranties set forth in the Credit Agreement
as provided in clause (b) of such Section, and confirms that the matters
referenced in clauses (c), (d), (e) and (f) of such Section, are true and
correct.
APRIA HEALTHCARE GROUP INC.
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
* For all Revolving Loans
**For the initial advance of the Tranche A Term Loan on the Closing Date
**For the initial advance of the Tranche B Term Loan on the Closing Date
EXHIBIT 2.1(E)
--------------
FORM OF REVOLVING NOTE
$_________________ July __, 2001
FOR VALUE RECEIVED, APRIA HEALTHCARE GROUP INC., a Delaware corporation (the
"Borrower"), hereby promises to pay to the order of __________________________,
its successors and assigns (the "Lender"), at the office of Bank of America,
N.A., as agent (the "Agent"), at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ Center,
NC1-001-15-04, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (or at such other place or places
as the holder hereof may designate), at the times set forth in the Credit
Agreement dated as of the date hereof among the Borrower, the Guarantors, the
Lenders and the Agent (as it may be as amended, modified, restated or
supplemented from time to time, the "Credit Agreement"; all capitalized terms
not otherwise defined herein shall have the meanings set forth in the Credit
Agreement), but in no event later than the Maturity Date, in Dollars and in
immediately available funds, the principal amount of
________________________DOLLARS ($____________) or, if less than such principal
amount, the aggregate unpaid principal amount of all Revolving Loans made by the
Lender to the Borrower pursuant to the Credit Agreement, and to pay interest
from the date hereof on the unpaid principal amount hereof, in like money, at
said office, on the dates and at the rates selected in accordance with Section
2.1(d) of the Credit Agreement.
Upon the occurrence and during the continuance of an Event of Default, the
balance outstanding hereunder shall bear interest as provided in Section 3.1 of
the Credit Agreement. Further, in the event the payment of all sums due
hereunder is accelerated under the terms of the Credit Agreement, this Note, and
all other indebtedness of the Borrower to the Lender shall become immediately
due and payable, without presentment, demand, protest or notice of any kind, all
of which are hereby waived by the Borrower.
In the event this Note is not paid when due at any stated or accelerated
maturity, the Borrower agrees to pay, in addition to the principal and interest,
all costs of collection, including reasonable attorneys' fees.
This Note and the Loans evidenced hereby may be transferred in whole or
in part only by registration of such transfer on the Register maintained by or
on behalf of the Borrower as provided in Section 11.3(c) of the Credit
Agreement.
IN WITNESS WHEREOF, the Borrower has caused this Note to be duly executed by
its duly authorized officer as of the day and year first above written.
APRIA HEALTHCARE GROUP INC.
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
EXHIBIT 2.4(F)
--------------
FORM OF TRANCHE A TERM NOTE
$_________________ July __, 2001
FOR VALUE RECEIVED, APRIA HEALTHCARE GROUP INC., a Delaware corporation (the
"Borrower"), hereby promises to pay to the order of __________________________,
its successors and assigns (the "Lender"), at the office of Bank of America,
N.A., as agent (the "Agent"), at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ Center,
NC1-001-15-04, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (or at such other place or places
as the holder hereof may designate), at the times set forth in the Credit
Agreement dated as of the date hereof among the Borrower, the Guarantors, the
Lenders and the Agent (as it may be as amended, modified, restated or
supplemented from time to time, the "Credit Agreement"; all capitalized terms
not otherwise defined herein shall have the meanings set forth in the Credit
Agreement), but in no event later than the Maturity Date, in Dollars and in
immediately available funds, the principal amount of
________________________DOLLARS ($____________), and to pay interest from the
date hereof on the unpaid principal amount hereof, in like money, at said
office, on the dates and at the rates selected in accordance with Section 2.4(e)
of the Credit Agreement.
Upon the occurrence and during the continuance of an Event of Default, the
balance outstanding hereunder shall bear interest as provided in Section 3.1 of
the Credit Agreement. Further, in the event the payment of all sums due
hereunder is accelerated under the terms of the Credit Agreement, this Note, and
all other indebtedness of the Borrower to the Lender shall become immediately
due and payable, without presentment, demand, protest or notice of any kind, all
of which are hereby waived by the Borrower.
In the event this Note is not paid when due at any stated or accelerated
maturity, the Borrower agrees to pay, in addition to the principal and interest,
all costs of collection, including reasonable attorneys' fees.
This Note and the Loans evidenced hereby may be transferred in whole or in
part only by registration of such transfer on the Register maintained by or on
behalf of the Borrower as provided in Section 11.3(c) of the Credit Agreement.
IN WITNESS WHEREOF, the Borrower has caused this Note to be duly executed by
its duly authorized officer as of the day and year first above written.
APRIA HEALTHCARE GROUP INC.
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
EXHIBIT 2.5(F)
--------------
FORM OF TRANCHE B TERM NOTE
$_________________ July __, 2001
FOR VALUE RECEIVED, APRIA HEALTHCARE GROUP INC., a Delaware corporation (the
"Borrower"), hereby promises to pay to the order of __________________________,
its successors and assigns (the "Lender"), at the office of Bank of America,
N.A., as agent (the "Agent"), at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ Center,
NC1-001-15-04, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (or at such other place or places
as the holder hereof may designate), at the times set forth in the Credit
Agreement dated as of the date hereof among the Borrower, the Guarantors, the
Lenders and the Agent (as it may be as amended, modified, restated or
supplemented from time to time, the "Credit Agreement"; all capitalized terms
not otherwise defined herein shall have the meanings set forth in the Credit
Agreement), but in no event later than the Maturity Date, in Dollars and in
immediately available funds, the principal amount of
________________________DOLLARS ($____________), and to pay interest from the
date hereof on the unpaid principal amount hereof, in like money, at said
office, on the dates and at the rates selected in accordance with Section 2.5(e)
of the Credit Agreement.
Upon the occurrence and during the continuance of an Event of Default, the
balance outstanding hereunder shall bear interest as provided in Section 3.1 of
the Credit Agreement. Further, in the event the payment of all sums due
hereunder is accelerated under the terms of the Credit Agreement, this Note, and
all other indebtedness of the Borrower to the Lender shall become immediately
due and payable, without presentment, demand, protest or notice of any kind, all
of which are hereby waived by the Borrower.
In the event this Note is not paid when due at any stated or accelerated
maturity, the Borrower agrees to pay, in addition to the principal and interest,
all costs of collection, including reasonable attorneys' fees.
This Note and the Loans evidenced hereby may be transferred in whole or in
part only by registration of such transfer on the Register maintained by or on
behalf of the Borrower as provided in Section 11.3(c) of the Credit Agreement.
IN WITNESS WHEREOF, the Borrower has caused this Note to be duly executed by
its duly authorized officer as of the day and year first above written.
APRIA HEALTHCARE GROUP INC.
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
EXHIBIT 3.2
-----------
FORM OF NOTICE OF EXTENSION/CONVERSION
Bank of America, N.A.,
as Agent for the Lenders
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Independence Center, ▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Agency Services
Ladies and Gentlemen:
The undersigned, APRIA HEALTHCARE GROUP INC. (the "Borrower"), refers to the
Credit Agreement dated as of July __, 2001 (as amended, modified, restated or
supplemented from time to time, the "Credit Agreement"), among the Borrower, the
Guarantors, the Lenders and Bank of America, N.A., as Agent. Capitalized terms
used herein and not otherwise defined herein shall have the meanings assigned to
such terms in the Credit Agreement. The Borrower hereby gives notice pursuant to
Section 3.2 of the Credit Agreement that it requests an extension or conversion
of a [Revolving Loan] [Tranche A Term Loan] [Tranche B Term Loan] outstanding
under the Credit Agreement, and in connection therewith sets forth below the
terms on which such extension or conversion is requested to be made:
(A) Loan Type/Tranche _______________________
(B) Date of Extension or Conversion
(which is the last day of the
the applicable Interest Period) _______________________
(C) Principal Amount of Extension or Conversion _______________________
(D) Interest rate basis _______________________
(E) Interest Period and the last day thereof ______________________
In accordance with the requirements of Section 5.2, the Borrower hereby
reaffirms the representations and warranties set forth in the Credit Agreement
as provided in clause (b) of such Section, and confirms that the matters
referenced in clauses (c), (d), (e) and (f) of such Section, are true and
correct.
APRIA HEALTHCARE GROUP INC.
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
EXHIBIT 7.1(C)
--------------
FORM OF OFFICER'S COMPLIANCE CERTIFICATE
For the fiscal quarter ended _________________, 20___.
I, ______________________, [Title] of APRIA HEALTHCARE GROUP INC. (the
"Borrower") hereby certify solely in such capacity that, to the best of my
knowledge and belief, with respect to that certain Credit Agreement dated as of
July __, 2001 (as amended, modified, restated or supplemented from time to time,
the "Credit Agreement"; all of the defined terms in the Credit Agreement are
incorporated herein by reference) among the Borrower, the Guarantors, the
Lenders and Bank of America, N.A., as Agent:
a. The company-prepared financial statements which accompany this
certificate are true and correct in all material respects and have been
prepared in accordance with GAAP applied on a consistent basis, subject to
changes resulting from normal year-end audit adjustments.
b. Since ___________ (the date of the last similar certification, or, if
none, the Closing Date) no Default or Event of Default has occurred under
the Credit Agreement; and
Delivered herewith are detailed calculations demonstrating compliance by the
Credit Parties with the financial covenants contained in Section 7.11 of the
Credit Agreement as of the end of the fiscal period referred to above.
This ______ day of ___________, 20__.
APRIA HEALTHCARE GROUP INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
Attachment to Officer's Certificate
COMPUTATION OF FINANCIAL COVENANTS
EXHIBIT 7.12
------------
FORM OF JOINDER AGREEMENT
THIS JOINDER AGREEMENT (the "Agreement"), dated as of _____________, 20__,
is by and between _____________________, a ___________________ (the
"Subsidiary"), and BANK OF AMERICA, N.A., in its capacity as Agent under that
certain Credit Agreement (as it may be amended, modified, restated or
supplemented from time to time, the "Credit Agreement"), dated as of July __,
2001, by and among APRIA HEALTHCARE GROUP INC., a Delaware corporation (the
"Borrower"), the Guarantors, the Lenders and Bank of America, N.A., as Agent.
All of the defined terms in the Credit Agreement are incorporated herein by
reference.
The Credit Parties are required by Section 7.12 of the Credit Agreement to
cause the Subsidiary to become a "Guarantor".
Accordingly, the Subsidiary hereby agrees as follows with the Agent, for the
benefit of the Lenders:
1. The Subsidiary hereby acknowledges, agrees and confirms that, by its
execution of this Agreement, the Subsidiary will be deemed to be a party to the
Credit Agreement and a "Guarantor" for all purposes of the Credit Agreement, and
shall have all of the obligations of a Guarantor thereunder as if it had
executed the Credit Agreement. The Subsidiary hereby ratifies, as of the date
hereof, and agrees to be bound by, all of the terms, provisions and conditions
applicable to the Guarantors contained in the Credit Agreement. Without limiting
the generality of the foregoing terms of this paragraph 1, the Subsidiary hereby
(i) jointly and severally together with the other Guarantors, irrevocably,
unconditionally and absolutely guarantees to each Lender and the Agent, as
further provided in Section 4 of the Credit Agreement, the prompt payment and
performance of the Credit Party Obligations in full when due (whether at stated
maturity, as a mandatory prepayment, by acceleration or otherwise) strictly in
accordance with the terms thereof.
2. The Subsidiary hereby acknowledges, agrees and confirms that, by its
execution of this Agreement, the Subsidiary will be deemed to be a party to the
Security Agreement, and shall have all the obligations of an "Obligor" (as such
term is defined in the Security Agreement) thereunder as if it had executed the
Security Agreement. The Subsidiary hereby ratifies, as of the date hereof, and
agrees to be bound by, all of the terms, provisions and conditions contained in
the Security Agreement. Without limiting generality of the foregoing terms of
this paragraph 2, the Subsidiary hereby grants to the Agent, for the benefit of
the Lenders, a continuing security interest in, and a right of set off against
any and all right, title and interest of the Subsidiary in and to the Collateral
(as such term is defined in Section 2 of the Security Agreement) of the
Subsidiary. The Subsidiary hereby represents and warrants to the Agent that:
(i) The Subsidiary's chief executive office and chief place of business
are (and for the prior four months have been) located at the locations set
forth on Schedule 1 attached hereto and the Subsidiary keeps its books and
records at such locations.
(ii) The type of Collateral owned by the Subsidiary and the location of
all Collateral owned by the Subsidiary is as shown on Schedule 2 attached
hereto.
(iii) The Subsidiary's legal name is as shown in this Agreement and the
Subsidiary has not in the past four months changed its name, been party to a
merger, consolidation or other change in structure or used any tradename
except as set forth in Schedule 3 attached hereto.
(iv) The patents and trademarks listed on Schedule 4 attached hereto
constitute all of the registrations and applications for the patents and
trademarks owned by the Subsidiary.
3. The Subsidiary hereby acknowledges, agrees and confirms that, by its
execution of this Agreement, the Subsidiary will be deemed to be a party to the
Pledge Agreement, and shall have all the obligations of a "Pledgor" thereunder
as if it had executed the Pledge Agreement. The Subsidiary hereby ratifies, as
of the date hereof, and agrees to be bound by, all the terms, provisions and
conditions contained in the Pledge Agreement. Without limiting the generality of
the foregoing terms of this paragraph 3, the Subsidiary hereby pledges and
assigns to the Agent, for the benefit of the Lenders, and grants to the Agent,
for the benefit of the Lenders, a continuing security interest in any and all
right, title and interest of the Subsidiary in and to Pledged Shares (as such
term is defined in Section 2 of the Pledge Agreement) listed on Schedule 5
attached hereto and the other Pledged Collateral (as such term is defined in
Section 2 of the Pledge Agreement).
4. The address of the Subsidiary for purposes of all notices and other
communications is ____________________, ____________________________, Attention
of ______________ (Facsimile No. ____________).
5. The Subsidiary hereby waives acceptance by the Agent and the Lenders of
the guaranty by the Subsidiary under Section 4 of the Credit Agreement upon the
execution of this Agreement by the Subsidiary.
6. This Agreement may be executed in two or more counterparts, each of which
shall constitute an original but all of which when taken together shall
constitute one contract.
7. This Agreement shall be governed by and construed and interpreted in
accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the Subsidiary has caused this Joinder Agreement to be
duly executed by its authorized officers, and the Agent, for the benefit of the
Lenders, has caused the same to be accepted by its authorized officer, as of the
day and year first above written.
[SUBSIDIARY]
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
Acknowledged and accepted:
BANK OF AMERICA, N.A.,
as Agent
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
SCHEDULE 1
----------
TO FORM OF JOINDER AGREEMENT
[Chief Executive Office and
Chief Place of Business of Subsidiary]
SCHEDULE 2
----------
TO FORM OF JOINDER AGREEMENT
[Types and Locations of Collateral]
SCHEDULE 3
----------
TO FORM OF JOINDER AGREEMENT
[Tradenames]
SCHEDULE 4
----------
TO FORM OF JOINDER AGREEMENT
[Patents and Trademarks]
SCHEDULE 5
----------
TO FORM OF JOINDER AGREEMENT
[Pledged Shares]
EXHIBIT 11.3(B)
---------------
FORM OF ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement dated as of July __, 2001 (as
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement") among Apria Healthcare Group Inc., a Delaware corporation (the
"Borrower"), the Lenders party thereto and Bank of America, N.A., as Agent for
the Lenders (the "Agent"). Terms defined in the Credit Agreement are used herein
with the same meaning.
The "Assignor" and the "Assignee" referred to on Schedule 1 hereto agree as
follows:
1. The Assignor hereby sells and assigns to the Assignee, and the Assignee
hereby purchases and assumes from the Assignor, an interest in and to the
Assignor's rights and obligations under the Credit Agreement as of the date
hereof equal to the percentage interest specified on Schedule 1 hereto of all
outstanding rights and obligations under the Credit Facilities specified on
Schedule 1 hereto. After giving effect to such sale and assignment, the
Assignee's Commitment AND THE AMOUNT OF THE ADVANCES OWING TO THE ASSIGNEE will
be as set forth on Schedule 1 hereto.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (ii) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Credit Documents
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of, or the perfection or priority of any lien or security interest
created or purported to be created under or in connection with, the Credit
Documents or any other instrument or document furnished pursuant thereto; (iii)
makes no representation or warranty and assumes no responsibility with respect
to the financial condition of any Credit Party or the performance or observance
by any Credit Party of any of its obligations under any Credit Document or any
other instrument or document furnished pursuant thereto; and (iv) attaches the
Note or Notes, if any, held by the Assignor and requests that the Agent exchange
such Note or Notes for a new Note or Notes payable to the order of the Assignee
in an amount equal to the Commitments assumed by the Assignee pursuant hereto or
new Notes payable to the order of the Assignee in an amount equal to the
Commitments assumed by the Assignee pursuant hereto and the Assignor in an
amount equal to the Commitments retained by the Assignor under the Credit
Agreement, respectively, as specified on Schedule 1 hereto.
3. The Assignee (i) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in
Section 7.1 thereof and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Acceptance; (ii) agrees that it will, independently and without
reliance upon the Agent, the Assignor or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Credit
Agreement; (iii) confirms that it is an Eligible Assignee; (iv) appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers and discretion under the Credit Documents as are delegated to the
Agent by the terms thereof, together with such powers and discretion as are
reasonably incidental thereto; (v) agrees that it will perform in accordance
with their terms all of the obligations that by the terms of the Credit
Agreement are required to be performed by it as a Lender Party; and (vi)
attaches any U.S. Internal Revenue Service forms required under Section 3.11(d)
of the Credit Agreement.
4. Following the execution of this Assignment and Acceptance, it will
be delivered to the Agent for acceptance and recording by the Agent. The
effective date for this Assignment and Acceptance (the "Effective Date") shall
be the date of acceptance hereof and the recordation of the information herein
in the Register by the Agent, unless otherwise specified on Schedule 1 hereto.
5. Upon such acceptance and recording by the Agent, as of the Effective
Date, (i) the Assignee shall be a party to the Credit Agreement and, to the
extent provided in this Assignment and Acceptance, have the rights and
obligations of a Lender thereunder and (ii) the Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Agent, from and after the
Effective Date, the Agent shall make all payments under the Credit Agreement and
the Notes in respect of the interest assigned hereby (including, without
limitation, all payments of principal, interest and commitment fees with respect
thereto) to the Assignee. The Assignor and Assignee shall make all appropriate
adjustments in payments under the Credit Agreement and the Notes for periods
prior to the Effective Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and construed in
accordance with, the laws of the State of New York.
8. This Assignment and Acceptance may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of Schedule 1 to this Assignment and Acceptance by telecopier shall
be effective as delivery of a manually executed counterpart of this Assignment
and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused Schedule 1 to
this Assignment and Acceptance to be executed by their officers thereunto duly
authorized as of the date specified thereon.
SCHEDULE 1
TO
ASSIGNMENT AND ACCEPTANCE
[As to the Tranche A Term Facility in respect of which an interest is being
assigned:
Percentage interest assigned: __________%
Aggregate outstanding principal amount of Advances assigned: $__________
Principal amount of Tranche A Term Note __ payable to Assignee: $__________
Principal amount of Tranche A Term Note __ payable to Assignor: $__________]
[As to the Tranche B Term Facility in respect of which an interest is being
assigned:
Percentage interest assigned: __________%
Aggregate outstanding principal amount of Advances assigned: $__________
Principal amount of Tranche B Term Note __ payable to Assignee: $__________
Principal amount of Tranche B Term Note __ payable to Assignor: $__________]
[As to any Revolving Credit Facility in respect of which an interest is being
assigned:
Percentage interest assigned: __________%
Assignee's Revolving Commitment: $__________
Aggregate outstanding principal amount of Advances assigned: $__________
Principal amount of Revolving Note payable to Assignee: $__________
Principal amount of Revolving Note payable to Assignor: $__________]
Effective Date (if other than date of acceptance by Agent):
1________ __, 2001
[NAME OF ASSIGNOR], as Assignor
By
--------------------------------------
Title:
Dated: _________ __, 2001
[NAME OF ASSIGNEE], as Assignee
By
---------------------------------------
Title:
Dated: , 2001
Domestic Lending Office:
Eurodollar Lending Office:
Accepted 2 [and Approved] this ____
day of ___________, 2001
BANK OF AMERICA, N.A., as Agent
By
----------------------------------
Title:
*[Approved this ____ day
of _____________, 2001
APRIA HEALTHCARE GROUP INC.
By
----------------------------------
Title:
--------
1 This date should be no earlier than five Business Days after the delivery of
this Assignment and Acceptance to the Agent.
2 If required by the Credit Agreement.