THIRD AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
DATED AS OF JULY 28, 2006
AMONG
AMSURG CORP.
AS BORROWER
AND
SUNTRUST BANK
AS ADMINISTRATIVE AGENT AND LENDER
AND
BANK OF AMERICA, N.A.
AS SYNDICATION AGENT
AND
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ BANK, ▇.▇.
▇. ▇. BANK, NATIONAL ASSOCIATION, N.A. AND
BRANCH BANKING AND TRUST COMPANY
AS CO-DOCUMENTATION AGENTS
AND
THE OTHER LENDERS FROM
TIME TO TIME MADE A PARTY HERETO
SUNTRUST ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
A DIVISION OF SUNTRUST CAPITAL MARKETS, INC.
AS LEAD ARRANGER AND BOOK MANAGER
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS; CONSTRUCTION................................................................................. 1
Section 1.1 Definitions...................................................................................... 1
Section 1.2 Classifications of Loans and Borrowings.......................................................... 20
Section 1.3 Accounting Terms and Determination............................................................... 20
Section 1.4 Terms Generally.................................................................................. 20
ARTICLE II AMOUNT AND TERMS OF THE COMMITMENTS..................................................................... 21
Section 2.1 General Description of Facilities................................................................ 21
Section 2.2 Revolving Loans.................................................................................. 21
Section 2.3 Procedure for Revolving Borrowings............................................................... 21
Section 2.4 Swingline Commitment............................................................................. 22
Section 2.5 Procedure for Swingline Borrowing; Etc. ......................................................... 22
Section 2.6 Funding of Borrowings............................................................................ 24
Section 2.7 Interest Elections............................................................................... 24
Section 2.8 Optional and Mandatory Reductions and Termination of Commitments................................. 25
Section 2.9 Repayment of Loans............................................................................... 26
Section 2.10 Evidence of Indebtedness......................................................................... 26
Section 2.11 Prepayments...................................................................................... 27
Section 2.12 Interest on Loans................................................................................ 27
Section 2.13 Fees............................................................................................. 28
Section 2.14 Computation of Interest and Fees................................................................. 29
Section 2.15 Inability to Determine Interest Rates............................................................ 29
Section 2.16 Illegality....................................................................................... 30
Section 2.17 Increased Costs.................................................................................. 30
Section 2.18 Funding Indemnity................................................................................ 31
Section 2.19 Taxes............................................................................................ 31
Section 2.20 Payments Generally; Pro Rata Treatment; Sharing of Set-offs...................................... 33
Section 2.21 Mitigation of Obligations; Replacement of Lenders................................................ 35
Section 2.22 Letters of Credit................................................................................ 35
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TABLE OF CONTENTS
(continued)
PAGE
Section 2.23 Increase of Revolving Commitments; Additional Lenders............................................ 39
ARTICLE III CONDITIONS PRECEDENT TO LOANS........................................................................... 41
Section 3.1 Conditions To Effectiveness...................................................................... 41
Section 3.2 Each Credit Event................................................................................ 43
Section 3.3 Delivery of Documents............................................................................ 44
ARTICLE IV REPRESENTATIONS AND WARRANTIES.......................................................................... 44
Section 4.1 Existence; Power................................................................................. 44
Section 4.2 Organizational Power; Authorization.............................................................. 44
Section 4.3 Governmental Approvals; No Conflicts............................................................. 44
Section 4.4 Financial Statements............................................................................. 45
Section 4.5 Litigation and Environmental Matters............................................................. 45
Section 4.6 Compliance with Laws and Agreements.............................................................. 45
Section 4.7 Investment Company Act, Etc. .................................................................... 45
Section 4.8 Taxes............................................................................................ 45
Section 4.9 Margin Regulations............................................................................... 46
Section 4.10 ERISA............................................................................................ 46
Section 4.11 Ownership of Property............................................................................ 46
Section 4.12 Disclosure....................................................................................... 46
Section 4.13 Labor Relations.................................................................................. 47
Section 4.14 Subsidiaries..................................................................................... 47
Section 4.15 Personal Holding Company; Subchapter S........................................................... 47
Section 4.16 Solvency......................................................................................... 47
Section 4.17 Foreign Assets Control Regulations, Etc. ........................................................ 47
Section 4.18 Capital.......................................................................................... 47
ARTICLE V AFFIRMATIVE COVENANTS..................................................................................... 47
Section 5.1 Financial Statements and Other Information....................................................... 48
Section 5.2 Notices of Material Events....................................................................... 49
Section 5.3 Existence; Conduct of Business................................................................... 50
Section 5.4 Compliance with Laws, Etc. ...................................................................... 50
Section 5.5 Payment of Obligations........................................................................... 50
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TABLE OF CONTENTS
(continued)
PAGE
Section 5.6 Books and Records................................................................................ 50
Section 5.7 Visitation, Inspection, Etc. .................................................................... 50
Section 5.8 Maintenance of Properties; Insurance............................................................. 50
Section 5.9 Use of Proceeds.................................................................................. 51
Section 5.10 Additional Subsidiaries.......................................................................... 51
ARTICLE VI FINANCIAL COVENANTS...................................................................................... 52
Section 6.1 Leverage Ratio................................................................................... 52
Section 6.2 Interest Charge Coverage Ratio................................................................... 52
Section 6.3 Consolidated Net Worth........................................................................... 52
ARTICLE VII NEGATIVE COVENANTS...................................................................................... 52
Section 7.1 Indebtedness..................................................................................... 52
Section 7.2 Negative Pledge.................................................................................. 53
Section 7.3 Fundamental Changes.............................................................................. 53
Section 7.4 Investments, Loans, Etc. ........................................................................ 54
Section 7.5 Restricted Payments.............................................................................. 54
Section 7.6 Sale of Assets................................................................................... 55
Section 7.7 Transactions with Affiliates..................................................................... 55
Section 7.8 Restrictive Agreements........................................................................... 55
Section 7.9 Sale and Leaseback Transactions.................................................................. 56
Section 7.10 Hedging Agreements............................................................................... 56
Section 7.11 Amendment to Material Documents.................................................................. 56
Section 7.12 Accounting Changes............................................................................... 56
Section 7.13 Acquisitions..................................................................................... 56
Section 7.14 Subsidiaries..................................................................................... 57
Section 7.15 ERISA Violation.................................................................................. 57
ARTICLE VIII EVENTS OF DEFAULT..................................................................................... 57
Section 8.1 Events of Default................................................................................ 57
ARTICLE IX THE ADMINISTRATIVE AGENT................................................................................ 60
Section 9.1 Appointment of Administrative Agent.............................................................. 60
Section 9.2 Nature of Duties of Administrative Agent......................................................... 61
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TABLE OF CONTENTS
(continued)
PAGE
Section 9.3 Lack of Reliance on the Administrative Agent.................................................... 61
Section 9.4 Certain Rights of the Administrative Agent...................................................... 61
Section 9.5 Reliance by Administrative Agent................................................................ 62
Section 9.6 The Administrative Agent in its Individual Capacity............................................. 62
Section 9.7 Successor Administrative Agent.................................................................. 62
ARTICLE X MISCELLANEOUS............................................................................................. 63
Section 10.1 Notices......................................................................................... 63
Section 10.2 Waiver; Amendments.............................................................................. 64
Section 10.3 Expenses; Indemnification....................................................................... 65
Section 10.4 Successors and Assigns.......................................................................... 67
Section 10.5 Governing Law; Jurisdiction; Consent to Service of Process...................................... 69
Section 10.6 WAIVER OF JURY TRIAL............................................................................ 70
Section 10.7 Right of Setoff................................................................................. 70
Section 10.8 Counterparts; Integration....................................................................... 70
Section 10.9 Survival........................................................................................ 70
Section 10.10 Severability.................................................................................... 71
Section 10.11 Confidentiality................................................................................. 71
Section 10.12 Interest Rate Limitation........................................................................ 71
iv
EXHIBITS AND SCHEDULES
EXHIBITS
Exhibit A - Revolving Credit Note
Exhibit B - Assignment and Acceptance
Exhibit C - Subsidiary Guarantee Agreement
Exhibit D - Indemnity, Subrogation and Contribution Agreement
Exhibit E - Acquisition Approval Letter
Exhibit F - Acquisition Informational Package
Exhibit G - Acquisition Pro Forma
Exhibit H - Swingline Note
SCHEDULES
Schedule 1.1 Revolving Commitments
Schedule 2.3 - Notice of Revolving Borrowing
Schedule 2.7 - Form of Continuation/Conversion
Schedule 3.1(b)(v) - Form of Secretary's Certificate
Schedule 3.1(b)(vii) - Opinion Letter
Schedule 4.5 - Litigation and Environmental Matters
Schedule 4.14 - Subsidiaries
Schedule 5.1(c) - Compliance Certificate
Schedule 7.1 - Outstanding Indebtedness
Schedule 7.2 - Existing Liens
Schedule 7.4 - Existing Investments
v
THIRD AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
THIS THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT (this
"AGREEMENT") is made and entered into as of July 28, 2006, by and among AMSURG
CORP., a Tennessee corporation (the "BORROWER"), the several banks and other
financial institutions from time to time party hereto (the "LENDERS"), and
SUNTRUST BANK, in its capacity as Administrative Agent for the Lenders (the
"ADMINISTRATIVE AGENT" or "AGENT").
1. Borrower and certain lenders entered into an Amended and Restated
Credit Agreement dated as of May 5, 2000, as amended by that certain First
Amendment to Amended and Restated Revolving Credit Agreement dated June 22,
2001, as further amended by that certain Second Amendment to Amended and
Restated Revolving Credit Agreement dated February 5, 2003, as further amended
by that certain Third Amendment to Amended and Restated Revolving Credit
Agreement dated March 4, 2003, as further amended by that certain Fourth
Amendment to Amended and Restated Revolving Credit Agreement dated March 10,
2004, and as further amended and restated by that certain Second Amended and
Restated Revolving Credit Agreement dated April 22, 2005 (as amended, herein
referred to as the "2005 CREDIT AGREEMENT").
2. The Borrower desires that the credit available to Borrower under the
2005 Credit Agreement be increased and that other lenders be involved in making
credit available to the Borrower.
3. The Borrower further desires to amend and restate the 2005 Credit
Agreement as provided herein, and desires that the Lenders, defined herein,
establish a $200,000,000 revolving credit facility available to Borrower with a
$10,000,000 swingline facility and a $10,000,000 Letter of Credit sub-facility.
4. Subject to the terms and conditions of this Agreement, the Lenders
severally, to the extent of their respective Commitments, are willing to
establish the requested credit facility available to Borrower.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the 2005 Credit Agreement is amended and restated as set forth
herein and the Borrower, the Lenders and the Administrative Agent agree as
follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
SECTION 1.1 Definitions. In addition to the other terms defined herein,
the following terms used herein shall have the meanings herein specified (to be
equally applicable to both the singular and plural forms of the terms defined):
"ACQUISITION" shall mean the acquisition by Borrower of a controlling
ownership interest in any existing ambulatory surgery center(s) through the
formation of a Subsidiary.
"ACQUISITION APPROVAL LETTER" shall mean a letter executed by Borrower,
Administrative Agent and the Required Lenders pursuant to Section 7.13(b) in the
form of Exhibit E.
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"ACQUISITION INFORMATION PACKAGE" shall mean information delivered by
Borrower to Administrative Agent and Lenders pursuant to Section 7.13(a) and (b)
in the form of Exhibit F.
"ACQUISITION PRO FORMA" shall mean a pro forma statement in the form of
and containing the information shown on Exhibit G hereto.
"ADJUSTED EBITDA" shall mean EBITDA calculated on an annualized trailing
six (6) month basis, together with the pro forma EBITDA of any Acquisition
annualized from the date of such Acquisition for a period not to exceed six (6)
months so long as the calculation thereof is done in a manner reasonably
calculated to comply with GAAP and such calculation is detailed in the
supporting calculations to the covenant compliance certificate as detailed and
measured to the Administrative Agent's reasonable satisfaction.
"ADJUSTED LIBO RATE" shall mean, with respect to each Interest Period for
a Eurodollar Borrowing, the rate per annum obtained by dividing (i) LIBOR for
such Interest Period by (ii) a percentage equal to 1.00 minus the Eurodollar
Reserve Percentage.
"ADMINISTRATIVE AGENT" or "AGENT" shall have the meaning assigned to such
term in the opening paragraph hereof and any successor appointed pursuant to the
provisions of Section 9.7 herein.
"ADMINISTRATIVE QUESTIONNAIRE" shall mean, with respect to each Lender, an
administrative questionnaire in the form prepared by the Administrative Agent
and submitted to the Administrative Agent duly completed by each Lender.
"AFFILIATE" shall mean, as to any Person, any other Person that directly,
or indirectly through one or more intermediaries, Controls, is Controlled by, or
is under common Control with, such Person.
"AGGREGATE REVOLVING COMMITMENTS" shall mean the sum of the Revolving
Commitments of all Lenders at any time outstanding. On the Closing Date, the
Aggregate Revolving Commitments equal $200,000,000.
"AGREEMENT" shall mean this Third Amended and Restated Credit Agreement
(including all exhibits hereto), as the same may be amended, modified, or
supplemented from time to time.
"APPLICABLE LENDING OFFICE" shall mean, for each Lender and for each Type
of Loan, the "Lending Office" of such Lender (or an Affiliate of such Lender)
designated for such Type of Loan in the Administrative Questionnaire submitted
by such Lender or such other office of such Lender (or an Affiliate of such
Lender) as such Lender may from time to time specify to the Administrative Agent
and the Borrower as the office by which its Loans of such Type are to be made
and maintained.
"APPLICABLE MARGIN" shall mean with respect to the Letter of Credit Fee,
the Commitment Fee and all Revolving Loans outstanding on any date, the number
of basis points per annum determined by reference to the applicable Leverage
Ratio in effect on such date in accordance with the table set forth below,
provided, that a change in the Applicable Margin resulting from a change in the
Leverage Ratio shall be effective on the second Business Day after which the
Borrower is required to deliver the financial statements required by Section
5.1(a) or (b) and the compliance certificate
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required by Section 5.1 (c); provided further, that if at any time the Borrower
shall have failed to deliver such financial statements and such certificate, the
Applicable Margin shall be at Level 5 (set forth below) until such time as such
financial statements and certificate are delivered, at which time the Applicable
Margin shall be determined as provided above.
▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ 5
--------- ------------- -------------- -------------- ------------
Leverage Ratio Less than Greater than Greater than Greater than Greater than
1.00x or equal to or equal to or equal to or equal to
1.00x and Less 1.50x and Less 2.00x and Less 2.50x
than 1.50x than 2.00x than 2.50x
Applicable Margin 50 75 100 125 150
for Eurodollar basis basis points basis points basis points basis points
Loans and Letter of points
Credit Fee
Applicable Margin 0 0 0 0 0
for Base Rate Loans basis basis points basis points basis points basis points
points
Commitment Fee 15 17.5 20.0 25.0 30.0
basis basis points basis points basis points basis points
points
"ARRANGER" shall mean SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, a division of SunTrust
Capital Markets, Inc.
"ASSIGNMENT AND ACCEPTANCE" shall mean an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 10.4(b)) and accepted by the Administrative
Agent, in the form of Exhibit B attached hereto or any other form approved by
the Administrative Agent.
"AVAILABILITY PERIOD" shall mean the period from the Closing Date to the
Maturity Date.
"BASE RATE" shall mean the higher of (i) the per annum rate which the
Administrative Agent publicly announces from time to time to be its prime
lending rate, as in effect from time to time, and (ii) the Federal Funds Rate,
as in effect from time to time; plus one-half of one percent (0.50%). The
Administrative Agent's prime lending rate is a reference rate and does not
necessarily represent the lowest or best rate charged to customers. The
Administrative Agent may make commercial loans or other loans at rates of
interest at, above or below the Administrative Agent's prime lending rate. Each
change in the Administrative Agent's prime lending rate shall be effective from
and including the date such change is publicly announced as being effective.
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"BASE RATE BORROWING" shall mean a Borrowing with interest accruing on
said Borrowing at the Base Rate, as elected by Borrower.
"BASE RATE LOAN" shall mean a Loan with interest accruing on said Loan at
the Base Rate, as elected by Borrower.
"BORROWER" shall have the meaning in the introductory paragraph hereof.
"BORROWING" shall mean a borrowing consisting of (i) Loans of the same
Class and Type, made, converted or continued on the same date and in case of
Eurodollar Loans, as to which a single Interest Period is in effect, or (ii) a
Swingline Loan.
"BUSINESS DAY" shall mean (i) any day other than a Saturday, Sunday or
other day on which commercial banks in Nashville, Tennessee or Atlanta, Georgia
are authorized or required by law to close and (ii) if such day relates to a
Borrowing of, a payment or prepayment of principal or interest on, a conversion
of or into, or an Interest Period for, a Eurodollar Loan or a notice with
respect to any of the foregoing, any day on which dealings in Dollars are
carried on in the London interbank market.
"CAPITAL EXPENDITURES" shall mean for any period, without duplication, (a)
the additions to property, plant and equipment and other capital expenditures of
the Borrower and its Subsidiaries that are (or would be) set forth as capital
expenditures on a consolidated statement of cash flows of the Borrower for such
period prepared in accordance with GAAP and (b) Capital Lease Obligations
incurred by the Borrower and its Subsidiaries during such period.
"CAPITAL LEASE OBLIGATIONS" of any Person shall mean all obligations of
such Person to pay rent or other amounts under any lease (or other arrangement
conveying the right to use) real or personal property, or a combination thereof,
which obligations are required to be classified and accounted for as capital
leases on a balance sheet of such Person under GAAP, and the amount of such
obligations shall be the capitalized amount thereof determined in accordance
with GAAP.
"CAPITAL STOCK" means (i) in the case of a corporation, capital stock,
(ii) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
capital stock, (iii) in the case of a partnership, partnership interests
(whether general or limited), (iv) in the case of a limited liability company,
membership interests, and (v) 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.
"CHANGE IN CONTROL" means the occurrence of (i) any Person or two or more
Persons acting in concert acquiring beneficial ownership (within the meaning of
Rule 13d-3 of the Securities and Exchange Commission under the Securities
Exchange Act of 1934, as amended), directly or indirectly, of securities of
Borrower (or other securities convertible into such securities) representing 40%
or more of the combined voting power of all securities of Borrower entitled to
vote in the election of directors; or (ii) individuals who at the beginning of
this Agreement were directors of Borrower ceasing for any reason to constitute a
majority of the Board of Directors of Borrower unless the Persons replacing such
individuals were nominated by the Board of Directors of Borrower; or (iii) any
Person or two or more Persons acting in concert acquiring by contract or
otherwise, or entering into a contract or arrangement which upon consummation
will result in its or their acquisition of, or control over, securities of
Borrower (or other securities convertible into such securities) representing
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40% or more of the combined voting power of all securities of Borrower entitled
to vote in the election of directors.
"CHANGE IN LAW" shall mean (i) the adoption of any applicable law, rule or
regulation after the date of this Agreement, (ii) any change in any applicable
law, rule or regulation, or any change in the interpretation or application
thereof, by any Governmental Authority after the date of this Agreement, or
(iii) compliance by any Lender (or its Applicable Lending Office) (or for
purposes of Section 2.17(b), by such Lender's holding company, if applicable)
with any request, guideline or directive (whether or not having the force of
law) of any Governmental Authority made or issued after the date of this
Agreement.
"CLASS" when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing, are Revolving Loans or
Swingline Loans and when used in reference to any Commitment, refers to whether
such Commitment is a Revolving Commitment or a Swingline Commitment.
"CLOSING DATE" shall mean the date on which the conditions precedent set
forth in Section 3.1 and Section 3.2 have been satisfied or waived in accordance
with Section 10.2.
"CODE" shall mean the Internal Revenue Code of 1986, as amended and in
effect from time to time.
"COMMITMENT" shall mean a Revolving Commitment and the Swingline
Commitment or any combination thereof (as the context shall permit or require).
"COMMITMENT FEE" shall have the same meaning set forth in Section 2.13(b).
"CONSOLIDATED INTEREST EXPENSE" shall mean, for the Borrower and its
Subsidiaries for any period determined on a consolidated basis in accordance
with GAAP, the sum of (i) total cash interest expense, including without
limitation the interest component of any payments in respect of Capital Lease
Obligations capitalized or expensed during such period (whether or not actually
paid during such period) plus (ii) the net amount payable (or minus the net
amount receivable) under Hedging Agreements during such period (whether or not
actually paid or received during such period).
"CONSOLIDATED LEASE EXPENSE" shall mean, for any period, the aggregate
amount of fixed and contingent rentals payable by the Borrower and its
Subsidiaries with respect to leases of real and personal property (excluding
Capital Lease Obligations) determined on a consolidated basis in accordance with
GAAP for such period.
"CONSOLIDATED NET INCOME" shall mean, for any period, the net income (or
loss) of the Borrower and its Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP, but excluding therefrom (to the
extent otherwise included therein) any gains attributable to write-ups of
assets.
"CONSOLIDATED NET WORTH" shall mean, as of any date, (a) the total assets
of the Borrower and its Subsidiaries that would be reflected as such on the
Borrower's consolidated balance sheet as of such date prepared in accordance
with GAAP, minus (b) the sum of (i) the total liabilities of the Borrower and
its Subsidiaries that would be reflected on the Borrower's consolidated balance
sheet as
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of such date prepared in accordance with GAAP, (ii) Minority Interest, and (iii)
the amount of any write-up in the book value of any assets resulting from a
revaluation thereof or any write-up in excess of the cost of such assets
acquired reflected on the consolidated balance sheet of the Borrower as of such
date prepared in accordance with GAAP.
"CONSOLIDATED STATEMENTS OF EARNINGS" shall mean the consolidated
statements of earnings provided by Borrower to Lender as part of its
consolidated balance sheets pursuant to Section 5.1 herein.
"CONSOLIDATED STATEMENTS OF OPERATIONS DATA" shall mean such information
delivered by Borrower pursuant to Section 5.1(e) hereof setting forth
information on the operations of the developed surgery centers and related
activities for the Borrower and its Subsidiaries all in a format reasonably
acceptable to the Administrative Agent.
"CONSOLIDATED TOTAL FUNDED DEBT" shall mean, with respect to the Borrower
and its Subsidiaries, all Indebtedness which by its terms or by the terms of any
instrument or agreement relating thereto matures, or which is otherwise payable
or unpaid, one year or more from, or is directly or indirectly renewable or
extendable at the option of the Borrower and/or its Subsidiaries, as applicable,
to a date one year or more (including an option of the Borrower and/or its
Subsidiaries, as applicable, under a revolving credit or similar agreement
obligating the lender or lenders to extend credit over a period of one year or
more) from, the date of the creation thereof; provided that Consolidated Total
Funded Debt shall include, as at any date of determination, any portion of such
Indebtedness outstanding on such date which matures on demand or within one year
from such date (whether by sinking fund, other required prepayment, or final
payment at maturity) and shall also include all Indebtedness of the Borrower for
money under a line of credit, guidance line, revolving credit, bankers
acceptance facility or similar arrangement for borrowed money, including,
without limitation, all unpaid drawings under letters of credit and unreimbursed
amounts pursuant to letter of credit reimbursement agreements, regardless of the
maturity date thereof.
"CONTROL" shall mean the power, directly or indirectly, either to (i) vote
10% or more of securities having ordinary voting power for the election of
directors (or persons performing similar functions) of a Person or (ii) direct
or cause the direction of the management and policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise. The
terms "Controlling", "Controlled by", and "under common Control with" have
meanings correlative thereto.
"DEBT ISSUANCE" means unsecured Indebtedness of Borrower or any
consolidated Subsidiary in the form of senior notes or other publicly or
privately placed Indebtedness.
"DEFAULT" shall mean any condition or event that, with the giving of
notice or the lapse of time or both, would constitute an Event of Default.
"DEFAULT INTEREST" shall have the meaning set forth in Section 2.12(c).
"DEFAULT RATE" shall be applicable after any Event of Default has occurred
and is continuing, and shall mean that the otherwise then applicable rates and
any letter of credit fees shall be increased by two percent (2%) per annum;
provided that, for any Eurodollar Loan, at the end of the applicable Interest
Period, interest shall accrue at the Base Rate plus the Applicable Margin plus
two percent (2%) per annum.
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"DEFAULTING LENDER" shall mean any Lender with respect to which a Lender
Default is in effect.
"DEVELOPED CENTER INFORMATION PACKAGE" shall mean such information
delivered pursuant to Section 5.1(f) hereof setting forth information on
Borrower's developed surgery centers all in a format reasonably acceptable to
the Administrative Agent.
"DISPOSITION" (or similar words such as "Dispose") shall mean any sale,
transfer, lease, contribution or other conveyance (including by way of merger)
of, or the granting of options, warrants or other rights to, any of the
Borrower's or any Subsidiaries' assets (including accounts receivable and Equity
Interests of Subsidiaries, but excluding cash) to any other Person (other than
to a Wholly-Owned Subsidiary) in a single transaction or series of transactions.
"DOLLAR(S)" and the sign "$" shall mean lawful money of the United States
of America.
"EBITDA" shall mean, for the Borrower and its Subsidiaries on a
consolidated basis for any period, an amount equal to the sum of Consolidated
Net Income for such period plus, without duplication, and to the extent deducted
in computing Consolidated Net Income for such period, the sum of (a) income
taxes, (b) Consolidated Interest Expense, (c) depreciation and amortization
expense, determined in accordance with GAAP; and (d) to the extent applicable,
stock option compensation costs applicable under (and calculated in accordance
with) Statement of Financial Accounting Standards No. 123 (revised 2004) [FAS
123(revised)] as promulgated by the Financial Accounting Standards Board;
provided, however, with respect to any Person that became a Subsidiary of, or
was merged with or consolidated into, the Borrower or any Wholly Owned
Subsidiary during such period, "EBITDA" shall also include the EBITDA of such
Person during such period and prior to the date of such acquisition, merger or
consolidation; and provided, further, with respect to any Person that ceased to
be a Subsidiary, or was the subject of a Disposition during any measurement
period, "EBITDA" shall not include the EBITDA of such Person for such
measurement period.
"ELIGIBLE TRANSFEREE" shall mean (a) a Lender; (b) an Affiliate of a
Lender or, with respect to any Lender that is an investment fund that invests in
commercial loans, any fund that invests in bank loans and is managed by the same
investment advisor as such Lender; and (c) any other Person approved by the
Administrative Agent and, unless a Default or Event of Default has occurred and
is continuing at the time any assignment is effected in accordance with Section
10.4, the Borrower (such approval not to be unreasonably withheld or delayed by
the Borrower and such approval to be deemed given by the Borrower if no
objection is received by the assigning Lender and the Administrative Agent from
the Borrower within ten (10) Business Days after notice of such proposed
assignment has been received by the Borrower); provided, however, that neither a
Borrower nor an Affiliate of a Borrower shall qualify as an Eligible Transferee.
"ENVIRONMENTAL LAWS" shall mean all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by or with any Governmental
Authority, relating in any way to the environment, preservation or reclamation
of natural resources, or the management, Release or threatened Release of any
Hazardous Material.
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"ENVIRONMENTAL LIABILITY" shall mean any liability, contingent or
otherwise (including any liability for damages, costs of environmental
investigation and remediation, costs of administrative oversight, fines, natural
resource damages, penalties or indemnities), of the Borrower or any Subsidiary
directly or indirectly resulting from or based upon (a) any actual or alleged
violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (c)
any actual or alleged exposure to any Hazardous Materials, (d) the Release or
threatened Release of any Hazardous Materials or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.
"EQUITY INTERESTS" means, with respect to any Person, any and all shares,
partnership, joint venture or other interests, participations or other
equivalents (however designated, whether voting or non-voting) of such Person's
capital, whether now outstanding or issued after the Closing Date.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any successor statute.
"ERISA AFFILIATE" shall mean any trade or business (whether or not
incorporated), which, together with the Borrower, is treated as a single
employer under Section 414(b) or (c) of the Code or, solely for the purposes of
Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.
"ERISA EVENT" shall mean (a) any "reportable event", as defined in Section
4043 of ERISA or the regulations issued thereunder with respect to a Plan (other
than an event for which the 30-day notice period is waived); (b) the existence
with respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan;
(e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan
administrator appointed by the PBGC of any notice relating to an intention to
terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f)
the incurrence by the Borrower or any of its ERISA Affiliates of any liability
with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate of
any notice, or the receipt by any Multiemployer Plan from the Borrower or any
ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability
or a determination that a Multiemployer Plan is, or is expected to be, insolvent
or in reorganization, within the meaning of Title IV of ERISA.
"EURODOLLAR" when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, bears interest at a
rate determined by reference to the Adjusted LIBO Rate.
"EURODOLLAR BORROWING" shall mean a Borrowing with interest accruing on
said Borrowing at the Adjusted LIBO Rate, as elected by Borrower.
"EURODOLLAR LOAN" shall mean a Loan with interest accruing on said Loan at
the Adjusted LIBO Rate, as elected by Borrower.
- 8 -
"EURODOLLAR RESERVE PERCENTAGE" shall mean the aggregate of the maximum
reserve percentages (including, without limitation, any emergency, supplemental,
special or other marginal reserves) expressed as a decimal (rounded upwards to
the next 1/100th of 1%) in effect on any day to which the Administrative Agent
is subject with respect to the Adjusted LIBO Rate pursuant to regulations issued
by the Board of Governors of the Federal Reserve System (or any Governmental
Authority succeeding to any of its principal functions) with respect to
eurocurrency funding (currently referred to as "eurocurrency liabilities" under
Regulation D). Eurodollar Loans shall be deemed to constitute eurocurrency
funding and to be subject to such reserve requirements without benefit of or
credit for proration, exemptions or offsets that may be available from time to
time to any Lender under Regulation D. The Eurodollar Reserve Percentage shall
be adjusted automatically on and as of the effective date of any change in any
reserve percentage.
"EVENT OF DEFAULT" shall have the meaning provided in Article VIII.
"EXCLUDED TAXES" shall mean with respect to the Administrative Agent, any
Lender, or any other recipient of any payment to be made by or on account of any
obligation of the Borrower hereunder, (a) income, franchise, or other taxes
imposed on (or measured by) its net income by the United States of America or
any other Governmental Authority, or by the jurisdiction under the laws of which
such recipient is organized or in which its principal office is located or, in
the case of any Lender, in which its applicable lending office is located, and
(b) any branch profits taxes imposed by the United States of America or any
similar tax imposed by any other jurisdiction in which the Borrower is located.
"FEDERAL FUNDS RATE" shall mean, for any day, the rate per annum (rounded
upwards, if necessary, to the next 1/100th of 1%) equal to the weighted average
of the rates on overnight Federal funds transactions with member banks of the
Federal Reserve System arranged by Federal funds brokers, as published by the
Federal Reserve Bank of New York on the next succeeding Business Day or if such
rate is not so published for any Business Day, the Federal Funds Rate for such
day shall be the average rounded upwards, if necessary, to the next 1/100th of
1% of the quotations for such day on such transactions received by the
Administrative Agent from three (3) Federal funds brokers of recognized standing
selected by the Administrative Agent.
"FOREIGN LENDER" shall mean any Lender that is organized under the laws of
a jurisdiction other than that of the Borrower. For purposes of this definition,
the United States of America or any State thereof or the District of Columbia
shall constitute one jurisdiction.
"GAAP" shall mean generally accepted accounting principles in the United
States applied on a consistent basis and subject to the terms of Section 1.3.
"GOVERNMENTAL AUTHORITY" shall mean the government of the United States of
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"GUARANTEE" of or by any Person (the "guarantor") shall mean any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether
- 9 -
directly or indirectly and including any obligation, direct or indirect, of the
guarantor (a) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Indebtedness or other obligation or to purchase (or to advance
or supply funds for the purchase of) any security for the payment thereof, (b)
to purchase or lease property, securities or services for the purpose of
assuring the owner of such Indebtedness or other obligation of the payment
thereof, (c) to maintain working capital, equity capital or any other financial
statement condition or liquidity of the primary obligor so as to enable the
primary obligor to pay such Indebtedness or other obligation or (d) as an
account party in respect of any letter of credit or letter of guaranty issued in
support of such Indebtedness or obligation; provided, that the term "Guarantee"
shall not include endorsements for collection or deposits in the ordinary course
of business. The amount of any Guarantee shall be deemed to be an amount equal
to the stated or determinable amount of the primary obligation in respect of
which Guarantee is made or, if not so stated or determinable, the maximum
reasonably anticipated liability in respect thereof (assuming such Person is
required to perform thereunder) as determined by such Person in good faith. The
term "Guarantee" used as a verb has a corresponding meaning.
"HAZARDOUS MATERIALS" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"HEDGING AGREEMENTS" shall mean interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap agreements,
currency future or option contracts, commodity agreements and other similar
agreements or arrangements designed to protect against fluctuations in interest
rates, currency values or commodity values.
"INDEBTEDNESS" of any Person shall mean, without duplication (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person in respect of the deferred purchase price of
property or services (other than trade payables incurred in the ordinary course
of business; provided, that for purposes of Section 8.1(f), trade payables
overdue by more than one hundred twenty (120) days shall be included in this
definition (except to the extent that any of such trade payables are being
disputed in good faith and by appropriate measures), (iv) all obligations of
such Person under any conditional sale or other title retention agreement(s)
relating to property acquired by such Person, (v) all Capital Lease Obligations
of such Person, (vi) all obligations, contingent or otherwise, of such Person in
respect of letters of credit, acceptances or similar extensions of credit, (vii)
all Guarantees of such Person of the type of Indebtedness described in clauses
(i) through (vi) above, excluding Guarantees of shareholders' equity or Capital
Stock or surplus or general contingency or deferred tax reserves, (viii) all
Indebtedness of a third party secured by any Lien on property owned by such
Person, whether or not such Indebtedness has been assumed by such Person, (ix)
all obligations of such Person, contingent or otherwise, to purchase, redeem,
retire or otherwise acquire for value any common stock of such Person, (x) any
obligation under any Hedging Agreements or foreign exchange agreement, (xi)
Off-Balance Sheet Liabilities, and (xii) any obligation under asset
securitization vehicles.
"INDEMNIFIED TAXES" shall mean Taxes relating to the indebtedness
evidenced hereby, all Loans made hereunder, and all payments to be made by
Borrower hereunder, other than Excluded Taxes.
- 10 -
"INDEMNITY AND CONTRIBUTION AGREEMENT" shall mean the Indemnity,
Subrogation and Contribution Agreement of even date herewith, substantially in
the form of Exhibit D, among the Borrower, the Wholly Owned Subsidiaries and the
Administrative Agent.
"INFORMATION MEMORANDUM" shall mean the Confidential Information
Memorandum dated June, 2006 relating to the Borrower, its Subsidiaries, and the
transactions contemplated by this Agreement and the other Loan Documents.
"INTERCOMPANY LOAN" shall mean any loan from the Borrower or any Wholly
Owned Subsidiary to any Subsidiary.
"INTEREST PERIOD" shall mean (a) with respect to any Eurodollar Borrowing,
a period of one, two, three or six months, and (b) with respect to a Swingline
Loan, a period of such duration not to exceed thirty (30) days, as the Borrower
may request and the Swingline Lender may agree in accordance with Section 2.5;
provided that:
(i) the initial Interest Period for such Borrowing shall commence on
the date of such Borrowing (including the date of any conversion from a
Borrowing of another Type) and each Interest Period occurring thereafter
in respect of such Borrowing shall commence on the day on which the next
preceding Interest Period expires;
(ii) if any Interest Period would otherwise end on a day other than
a Business Day, such Interest Period shall be extended to the next
succeeding Business Day, unless, in the case of a Eurodollar Borrowing,
such Business Day falls in another calendar month, in which case such
Interest Period would end on the next preceding Business Day;
(iii) any Interest Period in respect of a Eurodollar Borrowing which
begins on the last Business Day of a calendar month or on a day for which
there is no numerically corresponding day in the calendar month at the end
of such Interest Period shall end on the last Business Day of such
calendar month; and
(iv) no Interest Period may extend beyond the Swingline Termination
Date or the Maturity Date, as the case may be.
"ISSUING BANK" shall mean SunTrust Bank or any other Lender, each in its
capacity as an issuer of Letters of Credit pursuant to Section 2.22.
"LC COMMITMENT" shall mean that portion of the Aggregate Revolving
Commitments that may be used by the Borrower for the issuance of Letters of
Credit, which portion is in an aggregate face amount equal to $10,000,000.
"LC DISBURSEMENT" shall mean a payment made by the Issuing Bank pursuant
to a Letter of Credit.
"LC DOCUMENTS" shall mean the Letters of Credit and all applications,
agreements and instruments relating to the Letters of Credit.
- 11 -
"LC EXPOSURE" shall mean, at any time, the sum of (i) the aggregate
undrawn amount of all outstanding Letters of Credit at such time, plus (ii) the
aggregate amount of all LC Disbursements that have not been reimbursed by or on
behalf of the Borrower at such time. The LC Exposure of any Lender shall be its
Pro Rata Share of the total LC Exposure at such time.
"LENDER DEFAULT" shall mean (i) the refusal (which has not been retracted)
or the failure of a Lender to make available its portion of any Borrowing
required to be made available by it hereunder, or (ii) a Lender having notified
in writing the Borrower and/or the Administrative Agent that such Lender does
not intend to comply with its obligations under Article II.
"LENDERS" shall have the meaning assigned to such term in the opening
paragraph of this Agreement and shall include, where appropriate, the Swingline
Lender.
"LETTER OF CREDIT" shall mean any letter of credit issued pursuant to
Section 2.22 by the Issuing Bank for the account of the Borrower pursuant to the
LC Commitment.
"LETTER OF CREDIT FEE" shall mean the same meaning as set forth in Section
2.13(c).
"LEVERAGE RATIO" shall mean, the ratio of (i) Consolidated Total Funded
Debt to (ii) Adjusted EBITDA, as determined as of the end of each calendar
quarter on a rolling four quarter basis.
"LIBOR" shall mean, for any Interest Period, the British Bankers'
Association Interest Settlement Rate per annum for deposits in U.S. dollars for
a period equal to the Interest Period appearing on the display designated as
Page 3750 on the Dow ▇▇▇▇▇ Markets Service (or such other page on that service
or such other service designated by the British Bankers' Association for the
display of such Association's Interest Settlement Rates for Dollar deposits) as
of 11:00 a.m. (London, England time) on the day that is two (2) Business Days
prior to the first (1st) day of the Interest Period or if such Page 3750 is
unavailable for any reason at such time, the rate which appears on the Reuters
Screen ISDA Page as of such date and such time; provided, that if the
Administrative Agent determines that the relevant foregoing sources are
unavailable for the relevant Interest Period, LIBOR shall mean the rate of
interest determined by the Administrative Agent to be the average (rounded
upward, if necessary, to the nearest 1/100th of 1%) of the rates per annum at
which deposits in U.S. dollars are offered to the Administrative Agent two (2)
Business Days preceding the first (1st) day of such Interest Period by leading
banks in the London interbank market as of 10:00 a.m. for delivery on the first
(1st) day of such Interest Period, for the number of days comprised therein and
in an amount comparable to the amount of the Administrative Agent's portion of
the relevant Eurodollar Borrowing. Such rates may be adjusted for any applicable
reserve requirements.
"LIEN" shall mean any mortgage, pledge, security interest, lien (statutory
or otherwise), charge, encumbrance, hypothecation, assignment, deposit
arrangement, or other arrangement having the practical effect of the foregoing
or any preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including any conditional sale or
other title retention agreement and any capital lease having the same economic
effect as any of the foregoing).
"LOAN DOCUMENTS" shall mean, collectively, this Agreement, the Notes, the
LC Documents, all Notices of Borrowing, the Subsidiary Guarantee Agreement, the
Indemnity and Contribution
- 12 -
Agreement, the Security Documents, and any and all other instruments,
agreements, documents and writings executed in connection with any of the
foregoing.
"LOAN PARTIES" shall mean the Borrower and the Wholly Owned Subsidiaries.
"LOANS" shall mean all Revolving Loans and Swingline Loans in the
aggregate or any of them, as the context shall require.
"MATERIAL ADVERSE EFFECT" shall mean, with respect to any event, act,
condition or occurrence of whatever nature (including any adverse determination
in any litigation, arbitration, or governmental investigation or proceeding),
whether singularly or in conjunction with any other event or events, act or
acts, condition or conditions, occurrence or occurrences whether or not related,
a material adverse change in, or a material adverse effect on, (i) the business,
results of operations, financial condition, assets, liabilities or prospects of
the Borrower and of the Borrower and its Subsidiaries taken as a whole, (ii) the
ability of the Loan Parties to perform any of their respective obligations under
the Loan Documents, (iii) the rights and remedies of the Administrative Agent,
the Issuing Bank, and the Lenders under any of the Loan Documents or (iv) the
legality, validity or enforceability of any of the Loan Documents.
"MATERIAL INDEBTEDNESS" shall mean Indebtedness (other than the Loans and
Letters of Credit) or obligations in respect of one or more Hedging Agreements,
of any one or more of the Borrower and the Subsidiaries in an aggregate
principal amount exceeding $2,000,000. For purposes of determining Material
Indebtedness, the "principal amount" of the obligations of the Borrower or any
Subsidiary in respect to any Hedging Agreement at any time shall be the maximum
aggregate amount (giving effect to any netting agreements) that the Borrower or
such Subsidiary would be required to pay if such Hedging Agreement were
terminated at such time.
"MATURITY DATE" shall mean the earliest of (i) July _____, 2011, (ii) the
date on which the Revolving Commitments are terminated pursuant to Section 2.8,
and (iii) the date on which all amounts outstanding under this Agreement have
been declared or have automatically become due and payable.
"MINORITY INTEREST" means that amount depicted from time to time on
Borrower's most current consolidated balance sheet as "Minority Interest" so
long as such is calculated on a consistent basis and in accordance with GAAP.
"MOODY'S" shall mean ▇▇▇▇▇'▇ Investors Service, Inc.
"MULTIEMPLOYER PLAN" shall have the meaning set forth in Section
4001(a)(3) of ERISA.
"NET DEBT ISSUANCE PROCEEDS" means with respect to any Debt Issuance, the
excess of (a) the gross cash proceeds received by the Borrower and any of its
consolidated Subsidiaries, from such Debt Issuance, over (b) all reasonable and
customary legal, brokerage and commitment fees and expenses incurred in
connection with such Debt Issuance.
"NET EQUITY PROCEEDS" means, with respect to the sale or issuance by
Borrower or any of its consolidated Subsidiaries to any Person of any common
stock, warrants or options or the exercise of any such warrants or options, the
excess of (a) the gross cash proceeds received by such Person from
- 13 -
such sale, exercise or issuance, over (b) all reasonable and customary
underwriting commissions and legal, investment banking, brokerage and accounting
and other professional fees, sales commissions and disbursements actually
incurred in connection with such sale or issuance which have not been paid to
Affiliates of the Borrower or any consolidated Subsidiary, as applicable, in
connection therewith.
"NET DISPOSITION PROCEEDS" means, with respect to any Disposition, the
excess of (a) the gross cash proceeds received by the Borrower or any
consolidated Subsidiary from such Disposition and any cash payment received in
respect of promissory notes or other non-cash consideration delivered to such
party in respect thereof, over (b) the sum of (i) all reasonable and customary
legal, investment banking, brokerage and accounting fees and expenses incurred
in connection with such Disposition, (ii) all Taxes actually paid or estimated
by such party to be payable in cash within the next twelve (12) months in
connection with such Disposition, (iii) payments made by such party to retire
Indebtedness (other than the Loans or the issuance of any Letter of Credit)
where payment of such Indebtedness is required in connection with such
Disposition, and (iv) amounts attributable to Minority Interest; provided that
if the amount of any estimated Taxes pursuant to clause (ii) exceeds the amount
of Taxes actually required to be paid in cash in respect of such Disposition,
the aggregate amount of such excess shall constitute Net Disposition Proceeds.
"NOTES" shall mean, the Revolving Credit Notes (as applicable) and the
Swingline Note.
"NOTICE OF BORROWING" shall mean, collectively, the Notices of Revolving
Borrowing and the Notices of Swingline Borrowing.
"NOTICE OF CONVERSION/CONTINUATION" shall mean the notice given by the
Borrower to the Administrative Agent in respect of the conversion or
continuation of an outstanding Borrowing as provided in Section 2.7(b) hereof.
"NOTICE OF REVOLVING BORROWING" shall have the meaning as set forth in
Section 2.3.
"NOTICE OF SWINGLINE BORROWING" shall have the meaning as set forth in
Section 2.5.
"OBLIGATIONS" shall mean all amounts owing by the Borrower to the
Administrative Agent, the Issuing Bank, or any Lender (including the Swingline
Lender) pursuant to or in connection with this Agreement or any other Loan
Document, including without limitation, all principal, interest (including any
interest accruing after the filing of any petition in bankruptcy or the
commencement of any insolvency, reorganization or like proceeding relating to
the Borrower, whether or not a claim for post-filing or post-petition interest
is allowed in such proceeding), all reimbursement obligations, fees, expenses,
indemnification and reimbursement payments, costs and expenses (including all
reasonable fees and expenses of counsel to the Administrative Agent and any
Lender (including the Swingline Lender) incurred pursuant to this Agreement or
any other Loan Document), whether direct or indirect, absolute or contingent,
liquidated or unliquidated, now existing or hereafter arising hereunder or
thereunder, together with all renewals, extensions, modifications or
refinancings thereof.
"OFF-BALANCE SHEET LIABILITIES" of any Person shall mean (i) any
repurchase obligation or liability of such Person with respect to accounts or
notes receivable sold by such Person, (ii) any liability of such Person under
any sale and leaseback transactions which do not create a liability on the
balance sheet of such Person, (iii) any liability of such Person under any
so-called "synthetic"
- 14 -
lease transaction or (iv) any obligation arising with respect to any other
transaction which is the functional equivalent of or takes the place of
borrowing but which does not constitute a liability on the balance sheet of such
Person.
"OTHER INVESTMENTS" shall mean Investments other than Permitted
Investments and Investments identified in Section 7.4(a) through (e) herein.
"OTHER TAXES" shall mean any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement or any other
Loan Document, but specifically excluding all Excluded Taxes.
"PARTICIPANT" shall have the meaning set forth in Section 10.4(c).
"PAYMENT OFFICE" shall mean the office of the Administrative Agent located
at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other location as to
which the Administrative Agent shall have given written notice to the Borrower
and the other Lenders.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to and
defined in ERISA, and any successor entity performing similar functions.
"PERMITTED ENCUMBRANCES" shall mean
(i) Liens imposed by law for taxes not yet due or which are being
contested in good faith by appropriate proceedings and with respect to
which adequate reserves are being maintained in accordance with GAAP;
(ii) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other Liens imposed by law
created in the ordinary course of business for amounts not yet due or
which are being contested in good faith by appropriate proceedings and
with respect to which adequate reserves are being maintained in accordance
with GAAP;
(iii) pledges and deposits made in the ordinary course of business
in compliance with workers' compensation, unemployment insurance and other
social security laws or regulations;
(iv) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature, in each case in the ordinary
course of business;
(v) judgment and attachment liens not giving rise to an Event of
Default or Liens created by or existing from any litigation or legal
proceeding that are currently being contested in good faith by appropriate
proceedings and with respect to which adequate reserves are being
maintained in accordance with GAAP; and
(vi) easements, zoning restrictions, restrictive covenants,
rights-of-way and similar encumbrances on real property imposed by law or
arising in the ordinary course of business that do not secure any monetary
obligations and do not materially detract from the value of the
- 15 -
affected property or materially interfere with the ordinary conduct of
business of the Borrower and its Subsidiaries taken as a whole;
provided, that the term "Permitted Encumbrances" shall not include any Lien
securing the Obligations.
"PERMITTED INVESTMENTS" shall mean:
(i) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States (or
by any agency thereof to the extent such obligations are backed by the
full faith and credit of the United States), in each case maturing within
one year from the date of acquisition thereof;
(ii) commercial paper having the highest rating, at the time of
acquisition thereof, of S&P or Moody's and in either case maturing within
six months from the date of acquisition thereof;
(iii) certificates of deposit, bankers' acceptances and time
deposits maturing within one hundred eighty (180) days of the date of
acquisition thereof issued or guaranteed by or placed with, and money
market deposit accounts issued or offered by, any domestic office of any
commercial bank organized under the laws of the United States or any state
thereof which has a combined capital and surplus and undivided profits of
not less than $1,000,000,000;
(iv) fully collateralized repurchase agreements with a term of not
more than thirty (30) days for securities described in clause (i) above
and entered into with a financial institution satisfying the criteria
described in clause (iii) above;
(v) mutual funds investing solely in any one or more of the
Permitted Investments described in clauses (i) through (iv) above; and
(vi) funds held in the grantor trust properly established by
Borrower (which shall be subject to the claims of Lenders and general
creditors of Borrower) for the non-qualified deferred compensation plan
adopted by Borrower entitled the AmSurg Supplemental Executive Retirement
Savings Plan (the "RABBI TRUST"), provided that the funds in the Rabbi
Trust must be invested solely in any one or more of the Permitted
Investments described in clauses (i) through (v) above.
"PERSON" shall mean any individual, partnership, firm, corporation,
association, joint venture, limited liability company, trust or other entity, or
any Governmental Authority.
"PLAN" means any employee pension benefit plan (other than a Multiemployer
Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code
or Section 302 of ERISA, and in respect of which the Borrower or any ERISA
Affiliate is (or, if such plan were terminated, would under Section 4069 of
ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"PLEDGE AGREEMENT" shall mean any pledge and security agreement in form
and substance satisfactory to Administrative Agent, whereby the Borrower and
each of its presently existing and hereafter acquired Wholly Owned Subsidiaries
pledge and grant to the Administrative Agent on
- 16 -
behalf of Lenders a first perfected security interest in Borrower's and each
Wholly Owned Subsidiary's presently existing and hereafter acquired right title,
and interest in and to any Subsidiary, including without limitation, all
partnership interests, limited liability company interests, distributions,
payments, general intangibles, accounts, and other tangible and intangible
property arising out of or in connection with such Subsidiary; provided that
each such pledge and security agreement shall be subject to the Release
Provision. Applicable UCC financing statements, as required, shall be executed
along with each Pledge Agreement.
"PRO RATA SHARE" shall mean, with respect to any Lender at any time, a
percentage, the numerator of which shall be the sum of such Lender's Revolving
Commitment and the denominator of which shall be the sum of all Lenders'
Revolving Commitments; or if the Revolving Commitments have been terminated or
expired or if the Loans have been declared to be due and payable, a percentage,
the numerator of which shall be the sum of such Lender's Revolving Credit
Exposure and the denominator of which shall be the sum of the aggregate
Revolving Credit Exposure.
"REGULATION D" shall mean Regulation D of the Board of Governors of the
Federal Reserve System, as the same may be in effect from time to time, and any
successor regulations.
"REINVESTED PROCEEDS" shall mean proceeds realized from any Disposition
which are used to acquire substantially similar property or assets.
"RELATED PARTIES" shall mean, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"RELEASE" means any release, spill, emission, leaking, dumping, injection,
pouring, deposit, disposal, discharge, dispersal, leaching or migration of any
Hazardous Materials into the environment (including ambient air, surface water,
groundwater, land surface or subsurface strata) or within any building,
structure, facility or fixture.
"RELEASE PROVISION" shall mean the agreement made on behalf of the Lenders
and set forth in each Pledge Agreement as follows: provided no Default or Event
of Default exists hereunder, upon receipt of written notice that the Borrower or
such Wholly Owned Subsidiary is transferring a portion of its interest in a
Subsidiary to a physician or group of physicians who have a business
relationship with the Subsidiary and upon written request of the Borrower or any
Wholly Owned Subsidiary that is a party to any Pledge Agreement, accompanied by
such documentation as reasonably required by the Administrative Agent, the
Administrative Agent is authorized (without further action or consent by the
Lenders or Required Lenders) to release the interest being transferred by the
Borrower or any Wholly Owned Subsidiary in such Subsidiary, provided that in no
event shall such transfer reduce the ownership interest of the Borrower or any
Wholly Owned Subsidiary in such Subsidiary below fifty-one percent (51%). The
Administrative Agent shall not release the Lien held on behalf of the Lenders
against any such Subsidiary if the ownership interest of the Borrower or any
Wholly Owned Subsidiary therein is reduced below fifty-one percent (51%).
"REQUIRED LENDERS" shall mean, at any time, Lenders holding fifty-one
percent (51%) or more of the aggregate outstanding Revolving Credit Exposures at
such time; or if the Lenders have no
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Revolving Credit Exposure, then Lenders holding fifty-one percent (51%) or more
of the Aggregate Revolving Commitments.
"RESPONSIBLE OFFICER" shall mean any of the president, the chief executive
officer, the chief operating officer, the chief financial officer, the treasurer
or a vice president of the Borrower or such other representative of the Borrower
as may be designated in writing by any one of the foregoing with the consent of
the Administrative Agent; and, with respect to the financial covenants only, the
chief financial officer or the treasurer of the Borrower.
"RESTRICTED PAYMENT" shall have the meaning set forth in Section 7.5.
"REVOLVING COMMITMENT" shall mean, with respect to each Lender, the
obligation of such Lender to make Revolving Loans to the Borrower and to
participate in Letters of Credit and Swingline Loans in an aggregate principal
amount not exceeding the amount set forth with respect to such Lender on the
Schedule 1.1, or in the case of a Person becoming a Lender after the Closing
Date, the amount of the assigned "Revolving Commitment" as provided in the
Assignment and Acceptance Agreement executed by such Person as an assignee, as
the same may be changed pursuant to terms hereof.
"REVOLVING CREDIT EXPOSURE" shall mean, with respect to any Lender at any
time, the sum of the outstanding principal amount of such Lender's Revolving
Loans, such Lender's LC Exposure and such Lender's Swingline Exposure.
"REVOLVING CREDIT NOTE" shall mean, if requested by any Lender, a
promissory note of the Borrower payable to the order of a requesting Lender in
the principal amount of such Lender's Revolving Commitment, in substantially the
form of Exhibit A.
"REVOLVING LOAN" shall mean a loan made by a Lender (other than the
Swingline Lender) to the Borrower under its Revolving Commitment, which may
either be a Base Rate Loan or a Eurodollar Loan.
"S&P" shall mean Standard & Poor's.
"SECURITY DOCUMENTS" shall mean the Stock Pledge Agreement, the Pledge
Agreement, along with all UCC financing statements filed in connection with any
of the foregoing and any additional documentation delivered pursuant to or
executed in connection with the foregoing. On a going forward basis, the defined
term "Security Documents" shall include all security documents delivered in
accordance with Section 5.10 hereof, along with all additional documentation
delivered pursuant to or executed in connection with such security documents.
"STOCK PLEDGE AGREEMENT" shall mean collectively (a) that certain Stock
Pledge Agreement executed by the Borrower in favor of Administrative Agent on
behalf of the Lenders in a form acceptable to the Administrative Agent, whereby
Borrower pledges to Administrative Agent on behalf of Lenders all of the Capital
Stock it presently holds and hereafter acquires in any corporate Subsidiary, and
(b) those certain Stock Pledge Agreements executed by each Wholly Owned
Subsidiary owning a fifty-one percent (51%) or greater interest in any corporate
Subsidiary in favor of Administrative Agent in a form acceptable to the
Administrative Agent, whereby such Wholly Owned Subsidiary pledges to the
Administrative Agent on behalf of the Lenders all of the Capital Stock it
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presently holds or hereafter acquires in any such Subsidiary. The Borrower and
each Wholly Owned Subsidiary, as applicable, shall deliver along with each Stock
Pledge Agreement the securities described therein, a Reg U Form, and a stock
power, all in form and substance satisfactory to the Administrative Agent.
"SUBSIDIARY" shall mean any corporation, partnership, limited partnership,
joint venture, limited liability company, association or other entity of which
securities or other ownership interests representing more than 50% of the equity
or more than 50% of the ordinary voting power, or in the case of a partnership,
more than 50% of the general partnership interests are owned, Controlled or held
by Borrower, and shall include the Wholly Owned Subsidiaries.
"SUBSIDIARY GUARANTEE AGREEMENT" shall mean the Subsidiary Guarantee
Agreement of even date herewith, substantially in the form of Exhibit C, made by
the Wholly Owned Subsidiaries in favor of the Administrative Agent for the
benefit of the Lenders.
"SURGERY CENTER LOCATION REPORT" shall mean a listing of the developed
surgery centers of Borrower and its Subsidiaries containing such information and
provided in a format reasonably acceptable to the Administrative Agent.
"SWINGLINE COMMITMENT" shall mean the commitment of the Swingline Lender
to make Swingline Loans in an aggregate principal amount at any time outstanding
not to exceed $10,000,000.
"SWINGLINE EXPOSURE" shall mean, with respect to each Lender, the
principal amount of the Swingline Loans in which such Lender is legally
obligated to purchase a participation in accordance with Section 2.5, which
shall equal such Lender's Pro Rata Share of all outstanding Swingline Loans.
"SWINGLINE LENDER" shall mean SunTrust Bank.
"SWINGLINE LOAN" shall mean a loan made to the Borrower by the Swingline
Lender under the Swingline Commitment.
"SWINGLINE NOTE" shall mean the promissory note of the Borrower payable to
the order of the Swingline Lender in the principal amount of the Swingline
Commitment, substantially in the form of Exhibit H.
"SWINGLINE RATE" shall mean for any Interest Period, the rate as offered
by the Administrative Agent and accepted by the Borrower. The Borrower is under
no obligation to accept this rate and the Administrative Agent is under no
obligation to provide it.
"SWINGLINE TERMINATION DATE" shall mean the date that is thirty (30)
Business Days prior to the Maturity Date.
"TAXES" shall mean any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"TYPE" shall mean the distinction between a Base Rate Loan or Borrowing
and a Eurodollar Loan or Borrowing.
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"WHOLLY OWNED SUBSIDIARY" shall mean any corporation, partnership, joint
venture, limited liability company, association or other entity of which
securities or other ownership interests representing 100% of the equity or 100%
of the ordinary voting power, or in the case of a partnership, more 100% of the
general partnership interests are owned, Controlled or held by Borrower.
"WITHDRAWAL LIABILITY" shall mean liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.2 Classifications of Loans and Borrowings. For purposes of this
Agreement, Loans may be classified and referred to by Class (e.g. a "Revolving
Loan" or "Swingline Loan") or by Type (e.g. a "Eurodollar Loan" or "Base Rate
Loan") or by Class and Type (e.g. "Revolving Eurodollar Loan"). Borrowings also
may be classified and referred to by Class (e.g. "Revolving Borrowing") or by
Type (e.g. "Eurodollar Borrowing") or by Class and Type (e.g. " Revolving
Eurodollar Borrowing").
SECTION 1.3 Accounting Terms and Determination. Unless otherwise defined
or specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared, in accordance with GAAP as
in effect from time to time, applied on a basis consistent (except for such
changes approved by the Borrower's independent public accountants) with the most
recent audited consolidated financial statement of the Borrower delivered
pursuant to Section 5.1(a); provided, that if the Borrower notifies the
Administrative Agent that the Borrower wishes to amend any covenant in Article
VI to eliminate the effect of any change in GAAP on the operation of such
covenant (or if the Administrative Agent notifies the Borrower that the Required
Lenders wish to amend Article VI for such purpose), then the Borrower's
compliance with such covenant shall be determined on the basis of GAAP in effect
immediately before the relevant change in GAAP became effective, until either
such notice is withdrawn or such covenant is amended in a manner satisfactory to
the Borrower and the Required Lenders.
SECTION 1.4 Terms Generally. The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall". In
the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the word "to" means "to but
excluding". Unless the context requires otherwise (i) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as it was
originally executed or as it may from time to time be amended, supplemented or
otherwise modified (subject to any restrictions on such amendments, supplements
or modifications set forth herein), (ii) any reference herein to any Person
shall be construed to include such Person's successors and permitted assigns,
(iii) the words "hereof", "herein" and "hereunder" and words of similar import
shall be construed to refer to this Agreement as a whole and not to any
particular provision hereof, (iv) all references to Articles, Sections, Exhibits
and Schedules shall be construed to refer to Articles, Sections, Exhibits and
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Schedules to this Agreement and (v) all references to a specific time shall be
construed to refer to the time in the city and state of the Administrative
Agent's principal office, unless otherwise indicated.
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENTS
SECTION 2.1 General Description of Facilities.
(a) Facility. Subject to and upon the terms and conditions herein
set forth, (i) the Lenders hereby establish in favor of the Borrower a
revolving credit facility pursuant to which the Lenders severally agree
(to the extent of each Lender's Pro Rata Share up to such Lender's
Revolving Commitment) to make Revolving Loans to the Borrower in
accordance with Section 2.2, (ii) the Issuing Bank agrees to issue Letters
of Credit in accordance with Section 2.22; (iii) the Swingline Lender
agrees to make Swingline Loans in accordance with Section 2.4; and (iv)
each Lender agrees to purchase a participation interest in the Letters of
Credit and Swingline Loans pursuant to the terms and conditions contained
herein; provided that in no event shall the aggregate principal amount of
all outstanding Revolving Loans, Swingline Loans and the LC Exposure
exceed at any time the Aggregate Revolving Commitments from time to time
in effect.
(b) Collateral and Guarantees. The Obligations described herein
shall be secured by the following:
(i) a lien and perfected security interest in all of the
property and collateral described in the Security Documents
(including without limitation future Security Documents delivered
pursuant to Section 5.10 hereof), as amended from time to time;
(ii) all other Property of Borrower presently and/or
subsequently pledged or delivered to Administrative Agent to secure
all or a portion of the Indebtedness; and
(iii) the Subsidiary Guarantee Agreement, as amended from time
to time.
SECTION 2.2 Revolving Loans. Subject to the terms and conditions set forth
herein, each Lender severally agrees to make Revolving Loans to the Borrower,
from time to time during the Availability Period, in an aggregate principal
amount outstanding at any time that will not result in (a) such Lender's
Revolving Credit Exposure exceeding such Lender's Revolving Commitment or (b)
the sum of the aggregate Revolving Credit Exposures of all Lenders exceeding the
Aggregate Revolving Commitments. During the Availability Period, the Borrower
shall be entitled to borrow, repay and reborrow Revolving Loans in accordance
with the terms and conditions of this Agreement; provided that the Borrower may
not borrow or reborrow should there exist a Default or Event of Default.
SECTION 2.3 Procedure for Revolving Borrowings. The Borrower shall give
the Administrative Agent written notice (or telephonic notice promptly confirmed
in writing) of each Revolving Borrowing substantially in the form of Schedule
2.3 attached hereto (a "NOTICE OF REVOLVING BORROWING") (x) prior to 11:00 a.m.
(Eastern Time) on the requested date of each Base Rate Borrowing and (y) prior
to 11:00 a.m. (Eastern Time) three (3) Business Days prior to the requested date
of each Eurodollar Borrowing. Each Notice of Borrowing shall be irrevocable and
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shall specify: (i) the aggregate principal amount of such Borrowing, (ii) the
date of such Borrowing (which shall be a Business Day), (iii) the Type of such
Revolving Loan comprising such Borrowing, and (iv) in the case of a Eurodollar
Borrowing, the duration of the initial Interest Period applicable thereto
(subject to the provisions of the definition of Interest Period). Each Revolving
Borrowing shall consist entirely of Base Rate Loans or Eurodollar Loans, as the
Borrower may request. The aggregate principal amount of each Eurodollar
Borrowing shall be not less than $500,000 and in integral multiples of $100,000,
and the aggregate principal amount of each Base Rate Borrowing shall not be less
than $100,000 and in integral multiples of $100,000. At no time shall the total
number of Eurodollar Borrowings outstanding at any time exceed six (6). Promptly
following the receipt of a Notice of Revolving Borrowing in accordance herewith,
the Administrative Agent shall advise each Lender of the details thereof and the
amount of such Lender's Revolving Loan to be made as part of the requested
Revolving Borrowing.
SECTION 2.4 Swingline Commitment. Subject to the terms and conditions set
forth herein, the Swingline Lender agrees to make Swingline Loans to the
Borrower, from time to time during the Availability Period, in an aggregate
principal amount outstanding at any time not to exceed the lesser of (a) the
Swingline Commitment then in effect, and (b) the difference between the
Aggregate Revolving Commitments and the sum of the aggregate Revolving Credit
Exposures of all Lenders; provided, that the Swingline Lender shall not be
required to make a Swingline Loan to refinance an outstanding Swingline Loan.
The Borrower shall be entitled to borrow, repay and reborrow Swingline Loans in
accordance with the terms and conditions of this Agreement.
SECTION 2.5 Procedure for Swingline Borrowing; Etc.
(a) The Borrower shall give the Administrative Agent written notice
(or telephonic notice promptly confirmed in writing) of each Swingline
Borrowing ("NOTICE OF SWINGLINE BORROWING") prior to 11:00 a.m. on the
requested date of each Swingline Borrowing. Each Notice of Swingline
Borrowing shall be irrevocable and shall specify: (i) the principal amount
of such Swingline Loan, (ii) the date of such Swingline Loan (which shall
be a Business Day), and (iii) the account of the Borrower to which the
proceeds of such Swingline Loan should be credited. The Administrative
Agent will promptly advise the Swingline Lender of each Notice of
Swingline Borrowing. Each Swingline Loan shall accrue interest at the
Swingline Rate and shall have an Interest Period (subject to the
definition thereof) as agreed between the Borrower and the Swingline
Lender. The aggregate principal amount of each Swingline Loan shall be not
less than $100,000 or a larger multiple of $100,000, or such other minimum
amounts agreed to by the Swingline Lender and the Borrower. The Swingline
Lender will make the proceeds of each Swingline Loan available to the
Borrower in Dollars in immediately available funds at the account
specified by the Borrower in the applicable Notice of Swingline Borrowing
not later than 1:00 p.m. on the requested date of such Swingline Loan. The
Administrative Agent will notify the Lenders on a quarterly basis if any
Swingline Loans occurred during such quarter.
(b) The Swingline Lender, at any time and from time to time in its
sole discretion, may, on behalf of the Borrower (which hereby irrevocably
authorizes and directs the Swingline Lender to act on its behalf), give a
Notice of Revolving Borrowing to the Administrative Agent requesting the
Lenders (including the Swingline Lender) to make Base Rate Loans in an
amount equal to the unpaid principal amount of any Swingline Loan. Each
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Lender will make the proceeds of its Revolving Base Rate Loan included in
such Borrowing available to the Administrative Agent for the account of
the Swingline Lender in accordance with Section 2.6, which will be used
solely for the repayment of such Swingline Loan.
(c) If for any reason a Revolving Base Rate Borrowing may not be (as
determined in the sole discretion of the Administrative Agent), or is not,
made in accordance with the foregoing provisions, then each Lender (other
than the Swingline Lender) shall purchase an undivided participating
interest in such Swingline Loan in an amount equal to its Pro Rata Share
thereof on the date that such Revolving Base Rate Borrowing should have
occurred. On the date of such required purchase, each Lender shall
promptly transfer, in immediately available funds, the amount of its
participating interest to the Administrative Agent for the account of the
Swingline Lender. If such Swingline Loan bears interest at a rate other
than the Base Rate, such Swingline Loan shall automatically become a
Revolving Base Rate Loan on the effective date of any such participation
and interest shall become payable on demand.
(d) Each Lender's obligation to make a Revolving Base Rate Loan
pursuant to Section 2.5(b) or to purchase the participating interests
pursuant to Section 2.5(c) shall be absolute and unconditional and shall
not be affected by any circumstance, including without limitation (i) any
setoff, counterclaim, recoupment, defense or other right that such Lender
or any other Person may have or claim against the Swingline Lender, the
Borrower or any other Person for any reason whatsoever, (ii) the existence
of a Default or an Event of Default or the termination of any Lender's
Revolving Commitment, (iii) the existence (or alleged existence) of any
event or condition which has had or could reasonably be expected to have a
Material Adverse Effect, (iv) any breach of this Agreement or any other
Loan Document by the Borrower, the Administrative Agent or any Lender, or
(v) any other circumstance, happening or event whatsoever, whether or not
similar to any of the foregoing. If such amount is not in fact made
available to the Swingline Lender by any Lender, the Swingline Lender
shall be entitled to recover such amount on demand from such Lender,
together with accrued interest thereon for each day from the date of
demand thereof at the Federal Funds Rate. Until such time as such Lender
makes its required payment, the Swingline Lender shall be deemed to
continue to have outstanding Swingline Loans in the amount of the unpaid
participation for all purposes of the Loan Documents. In addition, such
Lender shall be deemed to have assigned any and all payments made of
principal and interest on its Loans and any other amounts due to it
hereunder, to the Swingline Lender to fund the amount of such Lender's
participation interest in such Swingline Loans that such Lender failed to
fund pursuant to this Section, until such amount has been purchased in
full.
(e) Upon the occurrence of and during the continuance of an Event of
Default, the Swingline Lender shall not make new Advances available under
the Swingline Commitment except with the written consent of the Required
Lenders.
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SECTION 2.6 Funding of Borrowings.
(a) Each Lender will make available each Loan to be made by it
hereunder on the proposed date thereof by wire transfer in immediately
available funds by 1:00 p.m. (Eastern Time) to the Administrative Agent at
the Payment Office. The Administrative Agent will make such Loans
available to the Borrower by promptly crediting the amounts that it
receives, in like funds by the close of business on such proposed date, to
an account maintained by the Borrower with the Administrative Agent or at
the Borrower's option, by effecting a wire transfer of such amounts to an
account designated by the Borrower to the Administrative Agent.
(b) Unless the Administrative Agent shall have been notified by any
Lender prior to 5:00 p.m. (Eastern Time) one (1) Business Day prior to the
date of a Borrowing in which such Lender is participating that such Lender
will not make available to the Administrative Agent such Lender's share of
such Borrowing, the Administrative Agent may assume that such Lender has
made such amount available to the Administrative Agent on such date, and
the Administrative Agent, in reliance on such assumption, may make
available to the Borrower on such date a corresponding amount. If such
corresponding amount is not in fact made available to the Administrative
Agent by such Lender on the date of such Borrowing, the Administrative
Agent shall be entitled to recover such corresponding amount on demand
from such Lender together with interest at the Federal Funds Rate for up
to two (2) days and thereafter at the rate specified for such Borrowing.
If such Lender does not pay such corresponding amount forthwith upon the
Administrative Agent's demand therefor, the Administrative Agent shall
promptly notify the Borrower, and the Borrower shall immediately pay such
corresponding amount to the Administrative Agent together with interest at
the rate specified for such Borrowing. Nothing in this subsection shall be
deemed to relieve any Lender from its obligation to fund its Pro Rata
Share of any Borrowing hereunder or to prejudice any rights which the
Borrower may have against any Lender as a result of any default by such
Lender hereunder.
(c) All Revolving Borrowings shall be made by the Lenders on the
basis of their respective Pro Rata Shares. No Lender shall be responsible
for any default by any other Lender in its obligations hereunder, and each
Lender shall be obligated to make its Loans provided to be made by it
hereunder, regardless of the failure of any other Lender to make its Loans
hereunder.
SECTION 2.7 Interest Elections.
(a) Each Borrowing shall be either a Eurodollar Borrowing or a Base
Rate Borrowing, as specified by Borrower in the applicable Notice of
Borrowing, and in the case of a Eurodollar Borrowing, shall have an
initial Interest Period as specified in such Notice of Borrowing.
Thereafter, the Borrower may elect to convert such Borrowing, and in the
case of a Eurodollar Borrowing, may elect Interest Periods therefor, all
as provided in this Section. The Borrower may elect different options with
respect to different portions of the affected Borrowing, in which case
each such portion shall be allocated ratably among the Lenders holding
Loans comprising such Borrowing, and the Loans comprising each such
portion shall
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be considered a separate Borrowing. This Section shall NOT apply to
Swingline Borrowings, which may not be converted or continued.
(b) To make an election pursuant to this Section, the Borrower shall
give the Administrative Agent prior written notice in the form of Schedule
2.7 (or telephonic notice promptly confirmed in writing) of each Borrowing
(a "NOTICE OF CONVERSION/CONTINUATION") that is to be converted or
continued, as the case may be, (x) prior to 11:00 a.m. (Eastern Time) on
the requested date of a conversion into a Base Rate Borrowing and (y)
prior to 11:00 a.m. (Eastern Time) three (3) Business Days prior to a
continuation of or conversion into a Eurodollar Borrowing. Each such
Notice of Conversion/Continuation shall be irrevocable and shall specify
(i) the Borrowing to which such Notice of Continuation/Conversion applies
and if different options are being elected with respect to different
portions thereof, the portions thereof that are to be allocated to each
resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) shall be specified for each resulting
Borrowing); (ii) the effective date of the election made pursuant to such
Notice of Continuation/Conversion, which shall be a Business Day, (iii)
whether the resulting Borrowing is to be a Base Rate Borrowing or a
Eurodollar Borrowing; and (iv) if the resulting Borrowing is to be a
Eurodollar Borrowing, the Interest Period applicable thereto after giving
effect to such election, which shall be a period contemplated by the
definition of "Interest Period". If any such Notice of
Continuation/Conversion requests a Eurodollar Borrowing but does not
specify an Interest Period, the Borrower shall be deemed to have selected
an Interest Period of one (1) month. The principal amount of any resulting
Borrowing shall satisfy the minimum borrowing amount for Eurodollar
Borrowings and Base Rate Borrowings set forth in Section 2.3.
(c) If, on the expiration of any Interest Period in respect of any
Eurodollar Borrowing, the Borrower shall have failed to deliver a Notice
of Conversion/Continuation, then, unless such Borrowing is repaid as
provided herein, the Borrower shall be deemed to have elected to convert
such Borrowing to a Base Rate Borrowing. No Borrowing may be converted
into, or continued as, a Eurodollar Borrowing if a Default or an Event of
Default exists. No conversion of any Eurodollar Loans shall be permitted
except on the last day of the Interest Period in respect thereof.
(d) Upon receipt of any Notice of Conversion/Continuation, the
Administrative Agent shall promptly notify each Lender of the details
thereof and of such Lender's portion of each resulting Borrowing.
SECTION 2.8 Optional and Mandatory Reductions and Termination of
Commitments.
(a) Unless previously terminated, all Revolving Commitments shall
terminate on the Maturity Date, except that the Swingline Commitment shall
terminate on the Swingline Termination Date.
(b) Upon at least three (3) Business Days' prior written notice (or
telephonic notice promptly confirmed in writing) to the Administrative
Agent (which notice shall be irrevocable), the Borrower may reduce the
Aggregate Revolving Commitments in part or terminate the Aggregate
Revolving Commitments in whole; provided that (i) any partial
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reduction shall apply to reduce proportionately and permanently the
Revolving Commitment of each Lender, (ii) any partial reduction pursuant
to this Section 2.8 shall be in an amount of at least $500,000 and any
larger multiple of $100,000, and (iii) no such reduction shall be
permitted which would reduce the Aggregate Revolving Commitments to an
amount less than the outstanding Revolving Credit Exposures of all
Lenders. Any such reduction in the Aggregate Revolving Commitments shall
result in a proportionate reduction (rounded to the next lowest integral
multiple of $100,000) in the Swingline Commitment and the LC Commitment.
(c) The Borrower shall reduce the Aggregate Revolving Commitments by
an amount equal to fifty percent (50%) of Net Disposition Proceeds, which
do not become Reinvested Proceeds within one hundred eighty (180) days of
receipt thereof, arising from any Disposition in which $20,000,000 or more
in consideration is given or exchanged or the fair market value of such
assets exceeds $20,000,000, provided that such reduction shall be made in
a manner calculated to the greatest extent possible to avoid the
Borrower's having liability under Section 2.18 hereunder. For the purpose
hereof, the consideration given or exchanged shall include the sum of (i)
all cash paid and/or Indebtedness assumed, plus (ii) the principal amount
of any promissory notes given, plus (iii) the value of any stock or other
property given or transferred in connection therewith.
SECTION 2.9 Repayment of Loans.
(a) The outstanding principal amount of all Revolving Loans shall be
due and payable (together with accrued and unpaid interest thereon) on the
Maturity Date.
(b) The principal amount of each Swingline Borrowing shall be due
and payable (together with accrued interest thereon) on the earlier of (i)
the last day of the Interest Period applicable to such Borrowing, and (ii)
the Swingline Termination Date.
SECTION 2.10 Evidence of Indebtedness.
(a) Each Lender shall maintain in accordance with its usual practice
appropriate records evidencing the indebtedness of the Borrower to such
Lender resulting from each Loan made by such Lender from time to time,
including the amounts of principal and interest payable thereon and paid
to such Lender from time to time under this Agreement. The Administrative
Agent shall maintain appropriate records in which shall be recorded (iv)
the Revolving Commitment of each Lender, (v) the amount of each Loan made
hereunder by each Lender, along with the Class and Type and the Interest
Period applicable thereto, (vi) the date of each continuation thereof
pursuant to Section 2.7, (vii) the date of each conversion of all or a
portion thereof pursuant to Section 2.7, (viii) the date and amount of any
principal or interest due and payable or to become due and payable from
the Borrower to each Lender hereunder in respect of such Loans and (ix)
both the date and amount of any sum received by the Administrative Agent
hereunder from the Borrower in respect of the Loans and each Lender's Pro
Rata Share thereof. The entries made in such records shall be prima facie
evidence of the existence and amounts of the obligations of the Borrower
therein recorded; provided, that the failure or delay of any Lender or the
Administrative Agent in maintaining or making entries into any such record
or any error therein shall not in any manner affect the obligation of the
- 26 -
Borrower to repay the Loans (both principal and unpaid accrued interest)
of such Lender in accordance with the terms of this Agreement.
(b) At the request of any Lender (including the Swingline Lender) at
any time, the Borrower agrees that it will execute and deliver to each
Lender a Revolving Credit Note, and, in the case of the Swingline Lender
only, a Swingline Note, payable to the order of such Lender.
SECTION 2.11 Prepayments.
(a) Optional Prepayments. The Borrower shall have the right at any
time and from time to time to prepay any Borrowing, in whole or in part,
without premium or penalty, by giving irrevocable written notice (or
telephonic notice promptly confirmed in writing) to the Administrative
Agent no later than three (3) Business Days prior to any such prepayment.
Each such notice shall be irrevocable and shall specify the proposed date
of such prepayment and the principal amount of each Borrowing or portion
thereof to be prepaid. Upon receipt of any such notice, the Administrative
Agent shall promptly notify each affected Lender of the contents thereof
and of such Lender's Pro Rata Share of any such prepayment. If such notice
is given, the aggregate amount specified in such notice shall be due and
payable on the date designated in such notice, together with accrued
interest to such date on the amount so prepaid in accordance with Section
2.12; provided, that if a Eurodollar Borrowing is prepaid on a date other
than the last day of an Interest Period applicable thereto, the Borrower
shall also pay all amounts required pursuant to Section 2.18. Each partial
prepayment of any Loan shall not be less than $500,000 or a larger
multiple of $100,000. Each prepayment of a Borrowing shall be applied
ratably to the Loans comprising such Borrowing.
(b) Mandatory Prepayments. The Borrower shall be required to make
mandatory principal prepayments of the Revolving Loans in an amount equal
to one hundred percent (100%) of: (i) Net Disposition Proceeds from any
Disposition in which the consideration received by Borrower and its
Subsidiaries exceeds $5,000,000, but only if such Net Disposition Proceeds
do not become Reinvested Proceeds within one hundred eighty (180) days
after receipt thereof; (ii) Net Debt Issuance Proceeds which are not used
for Acquisitions permitted by Section 7.13 within one hundred eighty (180)
days after receipt thereof; and (iii) Net Equity Proceeds, with such
prepayment to be made within three (3) Business Days after receipt
thereof; provided that so long as no Default exists the payment of
mandatory principal prepayments required hereunder shall be made in such
manner and on such date as is reasonably calculated to enable Borrower to
avoid the costs specified in Section 2.18(a) herein.
SECTION 2.12 Interest on Loans.
(a) The Borrower shall pay interest on each Base Rate Loan at the
Base Rate in effect from time to time and on each Eurodollar Loan at the
Adjusted LIBO Rate for the applicable Interest Period in effect for such
Loan, plus, in each case, the Applicable Margin in effect from time to
time.
(b) The Borrower shall pay interest on each Swingline Loan at the
Swingline Rate.
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(c) While an Event of Default exists, the Borrower shall pay
interest at the Default Rate ("DEFAULT INTEREST").
(d) Interest on the principal amount of all Loans shall accrue from
and including the date such Loans are made to but excluding the date of
any repayment thereof. Interest on all outstanding Base Rate Loans shall
be payable monthly in arrears on the last day of each calendar month and
on the Maturity Date. Interest on all outstanding Eurodollar Loans shall
be payable on the last day of each Interest Period applicable thereto,
and, in the case of any Eurodollar Loans having an Interest Period in
excess of three months or ninety (90) days, respectively, on each day
which occurs every three months or ninety (90) days, as the case may be,
after the initial date of such Interest Period, and on the Maturity Date.
Interest on each Swingline Loan shall be payable on the maturity of such
Loan, which shall be the earlier of: (i) the last day of the Interest
Period applicable thereto, or (ii) the Swingline Termination Date.
Interest on any Loan which is converted or which is repaid or prepaid
shall be payable on the date of such conversion or on the date of any such
repayment or prepayment (on the amount repaid or prepaid) thereof. All
Default Interest shall be payable on demand. Borrower must make all
interest payments prior to 1:00 p.m. (Eastern Time) on the applicable due
date in immediately available funds, free and clear of all defenses,
set-offs, counterclaims, or withholdings or deductions for taxes.
(e) The Administrative Agent shall determine each interest rate
applicable to the Loans hereunder and shall promptly notify the Borrower
and the Lenders of such rate in writing (or by telephone, promptly
confirmed in writing). Any such determination shall be conclusive and
binding for all purposes, absent manifest error.
SECTION 2.13 Fees.
(a) Fee Letter. On or before the Closing Date, Borrower shall pay to
the Administrative Agent and Arranger those fees set forth in that certain
Fee Letter dated June 5, 2006 and executed by Borrower, Administrative
Agent and Arranger.
(b) Commitment Fee. The Borrower agrees to pay to the Administrative
Agent for the account of each Lender a commitment fee (the "COMMITMENT
FEE"), which shall accrue at the Applicable Margin for Commitment Fee on
the average daily, unused portion of the Revolving Commitment of such
Lender during the Availability Period. Accrued Commitment Fees shall be
payable to the Administrative Agent (for distribution to the Lenders) in
arrears on the last day of each March, June, September and December of
each year and on the Maturity Date, commencing on the first such date
after the Closing Date. The Commitment Fee shall be calculated on the
basis of a year of 360-days for the actual number of days in each year.
For the purpose of this paragraph, the "unused portion of the Revolving
Commitment" shall mean the aggregate Revolving Commitment less an amount
equal to all outstanding Revolving Loans, less an amount equal to the LC
Exposure. For the purpose of calculating the Commitment Fee, Loans under
the Swingline Commitment shall not be deemed usage under the Revolving
Commitment.
(c) Letter of Credit Fees. The Borrower agrees to pay (i) to the
Administrative Agent, for the account of each Lender, a letter of credit
fee (the "LETTER OF CREDIT FEE") with
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respect to its participation in each Letter of Credit, which shall accrue
at the Applicable Margin for Eurodollar Loans then in effect on the
average daily amount of such Lender's LC Exposure (excluding any portion
thereof attributable to unreimbursed LC Disbursements) attributable to
such Letter of Credit during the period from and including the date of
issuance of such Letter of Credit to but excluding the date on which such
Letter of Credit expires or is drawn in full (including without limitation
any LC Exposure that remains outstanding after the Maturity Date) and (ii)
to the Issuing Bank for its own account a facing fee, which shall accrue
at the rate of 12.5 basis points per annum on the average daily amount of
the LC Exposure (excluding any portion thereof attributable to
unreimbursed LC Disbursements) during the Availability Period (or until
the date that such Letter of Credit is irrevocably canceled, whichever is
later), as well as the Issuing Bank's standard fees with respect to
issuance, amendment, renewal or extension of any Letter of Credit or
processing of drawings thereunder.
SECTION 2.14 Computation of Interest and Fees.
(a) Fees and Eurodollar Loans. All computations of interest on
Eurodollar Loans and fees hereunder shall be made on the basis of a year
of three hundred sixty (360) days for the actual number of days (including
the first day but excluding the last day) occurring in the period for
which such interest or fees are payable (to the extent computed on the
basis of days elapsed). Each determination by the Administrative Agent of
an interest amount or fee hereunder shall be made in good faith and,
except for manifest error, shall be final, conclusive and binding for all
purposes.
(b) Base Rate Loans. All computations of interest on Base Rate Loans
hereunder shall be made on the basis of a year of three hundred sixty-five
(365) days for the actual number of days (including the first day but
excluding the last day) occurring in the period for which such interest is
payable (to the extent computed on the basis of days elapsed). Each
determination by the Administrative Agent of an interest amount hereunder
shall be made in good faith and, except for manifest error, shall be
final, conclusive and binding for all purposes.
SECTION 2.15 Inability to Determine Interest Rates. If prior to the
commencement of any Interest Period for any Eurodollar Borrowing,
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that, by
reason of circumstances affecting the relevant interbank market, adequate
means do not exist for ascertaining LIBOR for such Interest Period, or
(b) the Administrative Agent shall have received notice from the
Required Lenders that the Adjusted LIBO Rate does not adequately and
fairly reflect the cost to such Lenders (or Lender, as the case may be) of
making, funding or maintaining their (or its, as the case may be)
Eurodollar Loans for such Interest Period,
the Administrative Agent shall give written notice (or telephonic notice,
promptly confirmed in writing) to the Borrower and to the Lenders as soon as
practicable thereafter. In the case of Eurodollar
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Loans, until the Administrative Agent shall notify the Borrower and the Lenders
that the circumstances giving rise to such notice no longer exist, (i) the
obligations of the Lenders to make Eurodollar Loans or to continue or convert
outstanding Loans as or into Eurodollar Loans shall be suspended and (ii) all
such affected Loans shall be converted into Base Rate Loans on the last day of
the then current Interest Period applicable thereto unless the Borrower prepays
such Loans in accordance with this Agreement. Unless the Borrower notifies the
Administrative Agent at least one (1) Business Day before the date of any
Eurodollar Borrowing for which a Notice of Revolving Borrowing has previously
been given that it elects not to borrow on such date, then such Borrowing shall
be made as a Base Rate Borrowing.
SECTION 2.16 Illegality. If any Change in Law shall make it unlawful or
impossible for any Lender to make, maintain or fund any Eurodollar Loan and such
Lender shall so notify the Administrative Agent, the Administrative Agent shall
promptly give notice thereof to the Borrower and the other Lenders, whereupon
until such Lender notifies the Administrative Agent and the Borrower that the
circumstances giving rise to such suspension no longer exist, the obligation of
such Lender to make Eurodollar Loans, or to continue or convert outstanding
Loans as or into Eurodollar Loans, shall be suspended. In the case of the making
of a Eurodollar Borrowing, such Lender's Revolving Loan shall be made as a Base
Rate Loan as part of the same Borrowing for the same Interest Period and if the
affected Eurodollar Loan is then outstanding, such Loan shall be converted to a
Base Rate Loan either (i) on the last day of the then current Interest Period
applicable to such Eurodollar Loan if such Lender may lawfully continue to
maintain such Loan to such date or (ii) immediately if such Lender shall
determine that it may not lawfully continue to maintain such Eurodollar Loan to
such date. Notwithstanding the foregoing, the affected Lender shall, prior to
giving such notice to the Administrative Agent, designate a different Applicable
Lending Office if such designation would avoid the need for giving such notice
and if such designation would not otherwise be disadvantageous to such Lender in
the good faith exercise of its discretion.
SECTION 2.17 Increased Costs.
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement that is not otherwise included in the
determination of the Adjusted LIBO Rate hereunder against assets of,
deposits with or for the account of, or credit extended by, any
Lender (except any such reserve requirement reflected in the
Adjusted LIBO Rate); or
(ii) impose on any Lender or the eurodollar interbank market
any other condition affecting this Agreement, or any Letter of
Credit, or any Eurodollar Loans made by such Lender;
and the result of the foregoing is to increase the cost to such Lender of
making, converting into, continuing or maintaining a Eurodollar Loan or to
increase the cost to such Lender to reduce the amount received or receivable by
such Lender hereunder (whether of principal, interest or any other amount), then
the Borrower shall promptly pay, upon written notice from and demand by such
Lender on the Borrower (with a copy of such notice and demand to the
Administrative Agent), to the Administrative Agent for the account of such
Lender, within five (5) Business Days after the date of
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such notice and demand, additional amount or amounts sufficient to compensate
such Lender for such additional costs incurred or reduction suffered.
(b) If any Lender shall have determined that on or after the date of
this Agreement any Change in Law regarding capital requirements has or
would have the effect of reducing the rate of return on such Lender's
capital (or on the capital of such Lender's parent corporation) as a
consequence of its obligations hereunder to a level below that which such
Lender or such Lender's parent corporation could have achieved but for
such Change in Law (taking into consideration such Lender's policies or
the policies of such Lender's parent corporation with respect to capital
adequacy) then, from time to time, within ten (10) Business Days after
receipt by the Borrower of written demand by such Lender (with a copy
thereof to the Administrative Agent), the Borrower shall pay to such
Lender such additional amounts as will compensate such Lender or such
Lender's parent corporation for any such reduction suffered.
(c) A certificate of a Lender setting forth the amount or amounts
necessary to compensate such Lender or such Lender's parent corporation,
as the case may be, specified in paragraph (a) or (b) of this Section
shall be delivered to the Borrower (with a copy to the Administrative
Agent) and shall be conclusive, absent manifest error. The Borrower shall
pay any such Lender such amount or amounts within ten (10) days after
receipt thereof.
(d) Failure or delay on the part of any Lender to demand
compensation pursuant to this Section shall not constitute a waiver of
such Lender's right to demand such compensation.
SECTION 2.18 Funding Indemnity. In the event of (a) the payment of any
principal of a Eurodollar Loan other than on the last day of the Interest Period
applicable thereto (including as a result of an Event of Default), (b) the
conversion or continuation of a Eurodollar Loan other than on the last day of
the Interest Period applicable thereto, or (c) the failure by the Borrower to
borrow, repay, convert or continue any Eurodollar Loan on the date specified in
any applicable notice (regardless of whether such notice is withdrawn or
revoked), then, in any such event, the Borrower shall compensate each Lender,
within five (5) Business Days after written demand from such Lender, for any
loss, cost or expense attributable to such event. In the case of a Eurodollar
Loan, such loss, cost or expense shall be deemed to include an amount determined
by such Lender to be the excess, if any, of (A) the amount of interest that
would have accrued on the principal amount of such Eurodollar Loan if such event
had not occurred at the Adjusted LIBO Rate applicable to such Eurodollar Loan
for the period from the date of such event to the last day of the then current
Interest Period therefor (or in the case of a failure to borrow, convert or
continue, for the period that would have been the Interest Period for such
Eurodollar Loan) over (B) the amount of interest that would accrue on the
principal amount of such Eurodollar Loan for the same period if the Adjusted
LIBO Rate were set on the date such Eurodollar Loan was prepaid or converted or
the date on which the Borrower failed to borrow, convert or continue such
Eurodollar Loan. A certificate as to any additional amount payable under this
Section 2.18 submitted to the Borrower by any Lender shall be conclusive, absent
manifest error.
SECTION 2.19 Taxes.
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(a) Any and all payments by or on account of any obligation of the
Borrower hereunder shall be made free and clear of and without deduction
for any Indemnified Taxes or Other Taxes; provided, that if the Borrower
shall be required to deduct any Indemnified Taxes or Other Taxes from such
payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent, the
Issuing Bank, or any Lender shall receive an amount equal to the sum it
would have received had no such deductions been made, (ii) the Borrower
shall make such deductions and (iii) the Borrower shall pay the full
amount deducted to the relevant Governmental Authority in accordance with
applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent, the
Issuing Bank, and each Lender within five (5) Business Days after written
demand therefor, for the full amount of any Indemnified Taxes or Other
Taxes paid by the Administrative Agent, the Issuing Bank, or such Lender
on or with respect to any payment by or on account of any obligation of
the Borrower hereunder (including Indemnified Taxes or Other Taxes imposed
or asserted on or attributable to amounts payable under this Section) and
any penalties, interest and reasonable expenses arising therefrom or with
respect thereto, whether or not such Indemnified Taxes or Other Taxes were
correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability
delivered to the Borrower by a Lender, the Issuing Bank, or by the
Administrative Agent on its own behalf or on behalf of a Lender or the
Issuing Bank, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower to a Governmental Authority, the Borrower
shall deliver to the Administrative Agent the original or a certified copy
of a receipt issued by such Governmental Authority evidencing such
payment, a copy of the return reporting such payment or other evidence of
such payment reasonably satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which
the Borrower is located, or any treaty to which such jurisdiction is a
party, with respect to payments under this Agreement shall deliver to the
Borrower (with a copy to the Administrative Agent), at the time or times
prescribed by applicable law, such properly completed and executed
documentation prescribed by applicable law or reasonably requested by the
Borrower as will permit such payments to be made without withholding or at
a reduced rate. Without limiting the generality of the foregoing, each
Foreign Lender agrees that it will deliver to the Administrative Agent and
the Borrower (or in the case of a Participant, to the Lender from which
the related participation shall have been purchased) two (2) duly
completed copies of Internal Revenue Service Form 1001 or 4224, or any
successor form thereto, as the case may be, certifying in each case that
such Foreign Lender is entitled to receive payments made by the Borrower
hereunder and under the Notes payable to it, without deduction or
withholding of any United States federal income taxes and (ii) a duly
completed Internal Revenue Service Form W-8 or W-9, or any successor form
thereto, as the case may be, to establish an exemption from United States
backup withholding tax. Each such Foreign Lender shall deliver to the
Borrower and the
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Administrative Agent such forms on or before the date that it becomes a
party to this Agreement (or in the case of a Participant, on or before the
date such Participant purchases the related participation). In addition,
each such Lender shall deliver such forms promptly upon the obsolescence
or invalidity of any form previously delivered by such Lender. Each such
Lender shall promptly notify the Borrower and the Administrative Agent at
any time that it determines that: (i) it is no longer in a position to
provide any previously delivered certificate to the Borrower (or any other
form of certification adopted by the U.S. taxing authorities for such
purpose), or (ii) it does not qualify for an exemption from or reduction
of withholding tax under the law of the jurisdiction in which the Borrower
is located.
(f) For any period with respect to which a Lender has failed to
provide the Borrower with the appropriate form pursuant to Section
2.19(e), such Lender shall not be entitled to indemnification under this
Section 2.19 or Section 10.3 with respect to any Indemnified Taxes or
Other Taxes which would not have been payable had such form been so
provided; provided that if a Lender, which is otherwise exempt from or
subject to a reduced rate of withholding tax, becomes subject to
Indemnified Taxes because of its failure to deliver a form required
hereunder, the Borrower, at such Lender's cost, shall take such steps as
such Lender shall reasonably request to assist such Lender to recover such
Indemnified Taxes (it being understood, however, that the Borrower shall
have no liability to such Lender in respect of such Indemnified Taxes).
SECTION 2.20 Payments Generally; Pro Rata Treatment; Sharing of Set-offs.
(a) The Borrower shall make each payment required to be made by it
hereunder (whether of principal, interest, or fees or reimbursement of LC
Disbursements or of amounts payable under Section 2.17, 2.18 or 2.19, or
otherwise) prior to 1:00 p.m. (Eastern Time), on the date when due, in
immediately available funds, without set-off or counterclaim. Any amounts
received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next
succeeding Business Day for purposes of calculating interest thereon. All
such payments shall be made to the Administrative Agent or to the Issuing
Bank at the Payment Office, except payments to be made directly to the
Issuing Bank or Swingline Lender as expressly provided herein and except
that payments pursuant to Sections 2.17, 2.18 and 2.19 and 10.3 shall be
made - directly to the Persons entitled thereto. The Administrative Agent
shall distribute any such payments received by it for the account of any
other Person to the appropriate recipient promptly following receipt
thereof. If any payment hereunder shall be due on a day that is not a
Business Day, the date for payment shall be extended to the next
succeeding Business Day, and, in the case of any payment accruing
interest, interest thereon shall be made payable for the period of such
extension. All payments hereunder shall be made in Dollars.
(b) If at any time insufficient funds are received by and available
to the Administrative Agent to pay fully all amounts of principal,
unreimbursed LC Disbursements, interest and fees then due hereunder, such
funds shall be applied (i) first, towards payment of interest and fees
then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of interest and fees then due to such parties,
and (ii) second, towards payment of principal and unreimbursed LC
Disbursements then due hereunder, ratably among
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the parties entitled thereto in accordance with the amounts of principal
and unreimbursed LC Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of
or interest on any of its Revolving Loans or participations in LC
Disbursements or Swingline Loans that would result in such Lender
receiving payment of a greater proportion of the aggregate amount of its
Revolving Loans and participations in LC Disbursements and Swingline Loans
and accrued interest thereon than the proportion received by any other
Lender, then the Lender receiving such greater proportion shall purchase
(for cash at face value) participations in the Revolving Loans and
participations in LC Disbursements and Swingline Loans of other Lenders to
the extent necessary so that the benefit of all such payments shall be
shared by the Lenders ratably in accordance with the aggregate amount of
principal of and accrued interest on their respective Revolving Loans and
participations in LC Disbursements and Swingline Loans; provided, that (i)
if any such participations are purchased and all or any portion of the
payment giving rise thereto - is recovered, such participations shall be
rescinded and the purchase price restored to the extent of such recovery,
without interest, and (ii) the provisions of this paragraph shall not be
construed to apply to any payment made by the Borrower pursuant to and in
accordance with the express terms of this Agreement or any payment
obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its Loans or participations in LC Disbursements or
Swingline Loans to any assignee or participant, other than to the Borrower
or any Subsidiary or Affiliate thereof (as to which the provisions of this
paragraph shall apply). The Borrower consents to the foregoing and agrees,
to the extent it may effectively do so under applicable law, that any
Lender acquiring a participation pursuant to the foregoing arrangements
may exercise against the Borrower rights of set-off and counterclaim with
respect to such participation as fully as if such Lender were a direct
creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders or the Issuing Bank
hereunder that the Borrower will not make such payment, the Administrative
Agent may assume that the Borrower has made such payment on such date in
accordance herewith and may, in reliance upon such assumption, distribute
to the Lenders or the Issuing Bank the amount or amounts due. In such
event, if the Borrower has not in fact made such payment, then each of the
Lenders or the Issuing Bank severally agrees to repay to the
Administrative Agent forthwith on demand the amount so distributed to such
Lender or the Issuing Bank with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the
date of payment to the Administrative Agent, at the greater of the Federal
Funds Effective Rate and a rate determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to be made
by it pursuant to Section 2.5(b), Section 2.7(b), Section 2.20(d), Section
2.22(c) or (d), or 10.3(d), then the Administrative Agent may, in its
discretion (notwithstanding any contrary provision hereof), apply any
amounts thereafter received by the Administrative Agent for the account of
such Lender to satisfy such Lender's obligations under such Sections until
all such unsatisfied obligations are fully paid.
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SECTION 2.21 Mitigation of Obligations; Replacement of Lenders. If any
Lender requests compensation under Section 2.17, or if the Borrower is required
to pay any additional amount to any Lender or any Governmental Authority for the
account of any Lender pursuant to Section 2.19, then such Lender shall use
reasonable efforts to designate a different lending office for funding or
booking its Loans hereunder or to assign its rights and obligations hereunder to
another of its offices, branches or affiliates, if, in the sole judgment of such
Lender, such designation or assignment (iv) would eliminate or reduce amounts
payable under Section 2.17 or Section 2.19, as the case may be, in the future
and (v) would not subject such Lender to any unreimbursed cost or expense and
would not otherwise be disadvantageous to such Lender. The Borrower hereby
agrees to pay all costs and expenses incurred by any Lender in connection with
such designation or assignment.
SECTION 2.22 Letters of Credit.
(a) During the Availability Period, the Issuing Bank, in reliance
upon the agreements of the other Lenders pursuant to Section 2.22(d),
agrees to issue, at the request of the Borrower, Letters of Credit for the
account of the Borrower on the terms and conditions hereinafter set forth;
provided that (i) each Letter of Credit shall expire on the earlier of (A)
the date one year after the date of issuance of such Letter of Credit (or
in the case of any renewal or extension thereof, one year after such
renewal or extension) and (B) the date that is five (5) Business Days
prior to the Maturity Date; (ii) each Letter of Credit shall be in a
stated amount of at least $100,000; and (iii) the Borrower may not request
any Letter of Credit, if, after giving effect to such issuance (A) the
aggregate LC Exposure would exceed the LC Commitment or (B) the aggregate
LC Exposure, plus the aggregate outstanding Revolving Loans and Swingline
Exposure of all Lenders would exceed the Aggregate Revolving Commitments.
Upon the issuance of each Letter of Credit each Lender shall be deemed to,
and hereby irrevocably and unconditionally agrees to, purchase from the
Issuing Bank without recourse a participation in such Letter of Credit
equal to such Lender's Pro Rata Share of the aggregate amount available to
be drawn under such Letter of Credit. Each issuance of a Letter of Credit
shall be deemed to utilize the Revolving Commitment of each Lender by an
amount equal to the amount of such participation. Upon the occurrence of
and during the continuance of an Event of Default, the Issuing Bank shall
not issue any new Letters of Credit under the LC Commitment except with
the written consent of the Required Lenders.
(b) To request the issuance of a Letter of Credit (or any amendment,
renewal or extension of an outstanding Letter of Credit), the Borrower
shall give the Issuing Bank and the Administrative Agent irrevocable
written notice at least three (3) Business Days prior to the requested
date of such issuance specifying the date (which shall be a Business Day)
such Letter of Credit is to be issued (or amended, extended or renewed, as
the case may be), the expiration date of such Letter of Credit, the amount
of such Letter of Credit , the name and address of the beneficiary thereof
and such other information as shall be necessary to prepare, amend, renew
or extend such Letter of Credit. In addition to the satisfaction of the
conditions in Article III, the issuance of such Letter of Credit (or any
amendment which increases the amount of such Letter of Credit) will be
subject to the further conditions that such Letter of Credit shall be in
such form and contain such terms as the Issuing Bank shall approve and
that the Borrower shall have executed and delivered any additional
applications, agreements and instruments relating to such Letter of Credit
as the Issuing Bank shall reasonably require;
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provided, that in the event of any conflict between such applications,
agreements or instruments and this Agreement, the terms of this Agreement
shall control.
(c) At least two (2) Business Days prior to the issuance of any
Letter of Credit, the Issuing Bank will confirm with the Administrative
Agent (by telephone or in writing) that the Administrative Agent has
received such notice and if not, the Issuing Bank will provide the
Administrative Agent with a copy thereof. Unless the Issuing Bank has
received notice from the Administrative Agent on or before the Business
Day immediately preceding the date the Issuing Bank is to issue the
requested Letter of Credit directing the Issuing Bank not to issue the
Letter of Credit because such issuance is not then permitted hereunder
because of the limitations set forth in Section 2.22(a) or that one or
more conditions specified in Article III are not then satisfied, then,
subject to the terms and conditions hereof, the Issuing Bank shall, on the
requested date, issue such Letter of Credit in accordance with the Issuing
Bank's usual and customary business practices.
(d) The Issuing Bank shall examine all documents purporting to
represent a demand for payment under a Letter of Credit promptly following
its receipt thereof. The Issuing Bank shall notify the Borrower and the
Administrative Agent of such demand for payment and whether the Issuing
Bank has made or will make a LC Disbursement thereunder; provided, that
any failure to give or delay in giving such notice shall not relieve the
Borrower of its obligation to reimburse the Issuing Bank and the Lenders
with respect to such LC Disbursement. The Borrower shall be irrevocably
and unconditionally obligated to reimburse the Issuing Bank for any LC
Disbursements paid by the Issuing Bank in respect of such drawing, without
presentment, demand or other formalities of any kind. Unless the Borrower
shall have notified the Issuing Bank and the Administrative Agent prior to
11:00 a.m. (Eastern Time) on the Business Day immediately prior to the
date on which such drawing is honored that the Borrower intends to
reimburse the Issuing Bank for the amount of such drawing in funds other
than from the proceeds of Revolving Loans, the Borrower shall be deemed to
have timely given a Notice of Revolving Borrowing to the Administrative
Agent requesting the Lenders to make a Base Rate Borrowing on the date on
which such drawing is honored in an exact amount due to the Issuing Bank;
provided that for purposes solely of such Borrowing, the conditions
precedents set forth in Section 3.2 hereof shall not be applicable. The
Administrative Agent shall notify the Lenders of such Borrowing in
accordance with Section 2.3, and each Lender shall make the proceeds of
its Base Rate Loan included in such Borrowing available to the
Administrative Agent for the account of the Issuing Bank in accordance
with Section 2.6. The proceeds of such Borrowing shall be applied directly
by the Administrative Agent to reimburse the Issuing Bank for such LC
Disbursement.
(e) If for any reason a Base Rate Borrowing may not be (as
determined in the sole discretion of the Administrative Agent), or is not,
made in accordance with the foregoing provisions, then each Lender (other
than the Issuing Bank) shall be obligated to fund the participation that
such Lender purchased pursuant to subsection (a) in an amount equal to its
Pro Rata Share of such LC Disbursement on and as of the date which such
Base Rate Borrowing should have occurred. Each Lender's obligation to fund
its participation shall be absolute and unconditional and shall not be
affected by any circumstance, including without limitation (i) any setoff,
counterclaim, recoupment, defense or other right that such Lender or any
other Person may have against the Issuing Bank or any other Person for any
reason
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whatsoever, (ii) the existence of a Default or an Event of Default or the
termination of the Aggregate Revolving Commitments, (iii) any adverse
change in the condition (financial or otherwise) of the Borrower or any of
its Subsidiaries, (iv) any breach of this Agreement by the Borrower or any
other Lender, (v) any amendment, renewal or extension of any Letter of
Credit or (vi) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing. On the date that such
participation is required to be funded, each Lender shall promptly
transfer, in immediately available funds, the amount of its participation
to the Administrative Agent for the account of the Issuing Bank. Whenever,
at any time after the Issuing Bank has received from any such Lender the
funds for its participation in a LC Disbursement, the Issuing Bank (or the
Administrative Agent on its behalf) receives any payment on account
thereof, the Administrative Agent or the Issuing Bank, as the case may be,
will distribute to such Lender its Pro Rata Share of such payment;
provided, that if such payment is required to be returned for any reason
to the Borrower or to a trustee, receiver, liquidator, custodian or
similar official in any bankruptcy proceeding, such Lender will return to
the Administrative Agent or the Issuing Bank any portion thereof
previously distributed by the Administrative Agent or the Issuing Bank to
it.
(f) To the extent that any Lender shall fail to pay any amount
required to be paid pursuant to paragraph (d) of this Section 2.22 on the
due date therefor, such Lender shall pay interest to the Issuing Bank
(through the Administrative Agent) on such amount from such due date to
the date such payment is made at a rate per annum equal to the Federal
Funds Rate; provided that if such Lender shall fail to make such payment
to the Issuing Bank within three (3) Business Days of such due date, then,
retroactively to the due date, such Lender shall be obligated to pay
interest on such amount at the Default Rate.
(g) If any Event of Default shall occur and be continuing, on the
Business Day that the Borrower receives notice from the Administrative
Agent or the Required Lenders demanding the deposit of cash collateral
pursuant to this paragraph, the Borrower shall deposit in an account with
the Administrative Agent, in the name of the Administrative Agent and for
the benefit of the Lenders, an amount in cash equal to the LC Exposure as
of such date plus any accrued and unpaid interest thereon; provided, that
the obligation to deposit such cash collateral shall become effective
immediately, and such deposit shall become immediately due and payable,
without demand or notice of any kind, upon the occurrence of any Event of
Default with respect to the Borrower described in clause (g) or (h) of
Section 8.1. Such deposit shall be held by the Administrative Agent as
collateral for the payment and performance of the obligations of the
Borrower under this Agreement. The Administrative Agent shall have
exclusive dominion and control, including the exclusive right of
withdrawal, over such account. Other than any interest earned on the
investment of such deposits, which investments shall be made at the option
and sole discretion of the Administrative Agent and at the Borrower's risk
and expense, such deposits shall not bear interest. Interest and profits,
if any, on such investments shall accumulate in such account. Moneys in
such account shall applied by the Administrative Agent to reimburse the
Issuing Bank for LC Disbursements for which it had not been reimbursed and
to the extent so applied, shall be held for the satisfaction of the
reimbursement obligations of the Borrower for the LC Exposure at such time
or, if the maturity of the Loans has been accelerated, with the consent of
the Required Lenders, be applied to satisfy other obligations of the
Borrower under this Agreement. If the Borrower is required to provide an
amount of cash collateral hereunder as a result of the occurrence of an
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Event of Default, such amount (to the extent not so applied as aforesaid)
shall be returned to the Borrower within three (3) Business Days after all
Events of Default have been cured or waived.
(h) Promptly following the end of each fiscal quarter, the Issuing
Bank shall deliver (through the Administrative Agent) to each Lender and
the Borrower a report describing the aggregate Letters of Credit
outstanding at the end of such fiscal quarter. Upon the request of any
Lender from time to time, the Issuing Bank shall deliver to such Lender
any other information reasonably requested by such Lender with respect to
each Letter of Credit then outstanding.
(i) The Borrower's obligation to reimburse LC Disbursements
hereunder shall be absolute, unconditional and irrevocable and shall be
performed strictly in accordance with the terms of this Agreement under
all circumstances whatsoever and irrespective of any of the following
circumstances:
(i) Any lack of validity or enforceability of any Letter of
Credit or this Agreement;
(ii) The existence of any claim, set-off, defense or other
right which the Borrower or any Subsidiary or Affiliate of the
Borrower may have at any time against a beneficiary or any
transferee of any Letter of Credit (or any Persons or entities for
whom any such beneficiary or transferee may be acting), any Lender
(including the Issuing Bank) or any other Person, whether in
connection with this Agreement or the Letter of Credit or any
document related hereto or thereto or any unrelated transaction;
(iii) Any draft or other document presented under a Letter of
Credit proving to be forged, fraudulent or invalid in any respect or
any statement therein being untrue or inaccurate in any respect;
(iv) Payment by the Issuing Bank under a Letter of Credit
against presentation of a draft or other document to the Issuing
Bank that does not comply with the terms of such Letter of Credit;
(v) Any other event or circumstance whatsoever, whether or not
similar to any of the foregoing, that might, but for the provisions
of this Section, constitute a legal or equitable discharge of, or
provide a right of setoff against, the Borrower's obligations
hereunder; or
(vi) The existence of a Default or an Event of Default.
Neither the Administrative Agent, the Issuing Bank, the Lenders nor any
Related Party of any of the foregoing shall have any liability or
responsibility by reason of or in connection with the issuance or transfer
of any Letter of Credit or any payment or failure to make any payment
thereunder (irrespective of any of the circumstances referred to above),
or any error, omission, interruption, loss or delay in transmission or
delivery of any draft, notice or other communication under or relating to
any Letter of Credit (including any document required to make a drawing
thereunder), any error in interpretation of technical terms or any
consequence
- 38 -
arising from causes beyond the control of the Issuing Bank; provided, that
the foregoing shall not be construed to excuse the Issuing Bank from
liability to the Borrower to the extent of any direct damages (as opposed
to consequential damages, claims in respect of which are hereby waived by
the Borrower to the extent permitted by applicable law) suffered by the
Borrower that are caused by the Issuing Bank's failure to exercise care
when determining whether drafts or other documents presented under a
Letter of Credit comply with the terms thereof. The parties hereto
expressly agree, that in the absence of gross negligence or willful
misconduct on the part of the Issuing Bank (as finally determined by a
court of competent jurisdiction), the Issuing Bank shall be deemed to have
exercised care in each such determination. In furtherance of the foregoing
and without limiting the generality thereof, the parties agree that, with
respect to documents presented that appear on their face to be in
substantial compliance with the terms of a Letter of Credit, the Issuing
Bank may, in its sole discretion, either accept and make payment upon such
documents without responsibility for further investigation, regardless of
any notice or information to the contrary, or refuse to accept and make
payment upon such documents if such documents are not in strict compliance
with the terms of such Letter of Credit.
(j) Each Letter of Credit shall be subject to the International
Standby Practices 98 (ISP 98) published by the International Chamber of
Commerce, as revised from time to time and to the extent not inconsistent
therewith, the Uniform Customs and Practices for Documentary Credits (1993
Revision), International Chamber of Commerce Publication No. 500, as the
same may be amended from time to time, and, to the extent not inconsistent
with ISP 98 and the UCP referenced above, the governing law of this
Agreement set forth in Section 10.5.
SECTION 2.23 Increase of Revolving Commitments; Additional Lenders.
(a) So long as no Default or Event of Default has occurred and is
continuing, Borrower may, from time to time during the term of this
Agreement, upon prior notice to the Administrative Agent (which shall
promptly notify each Lender following its receipt thereof), propose to
increase the Aggregate Revolving Commitments from $200,000,000 up to an
aggregate amount that would not exceed $300,000,000 (the amount of any
such increase referred to herein as the "ADDITIONAL COMMITMENT AMOUNT").
Each Lender shall have the right for a period of ten (10) Business Days
following receipt of such notice to elect by written notice to the
Borrower and the Administrative Agent to increase its Revolving Commitment
by a principal amount equal to its Pro Rata Share of the Additional
Commitment Amount. No Lender shall have any obligation to increase its
Revolving Commitment and any decision by a Lender to increase its
Revolving Commitment shall be made in its sole discretion independently
from any other Lender. Any Lender which does not respond within such ten
(10) Business Day period shall be deemed to have advised the
Administrative Agent and the Borrower that it elected not to increase its
Revolving Commitment.
(b) If any one or more Lenders shall elect not to increase its
Revolving Commitment pursuant to subsection (a) of this Section (each a
"NON-CONSENTING LENDER"), the Administrative Agent shall, promptly after
the end of such ten (10) Business Day period or promptly after the date
the Administrative Agent shall have received all written responses from
the Lenders, whichever shall occur first, notify all other Lenders (the
"CONSENTING
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LENDERS") of the amount of the Additional Commitment Amount that remains
unsubscribed (the "UNSUBSCRIBED AMOUNT"). Each such Consenting Lender
shall have the right for a period of five (5) Business Days following
receipt of such notice to elect by written notice to the Borrower and the
Administrative Agent to increase its Revolving Commitment by a principal
amount up to the remaining Unsubscribed Amount. The sum of the increases
in the Revolving Commitments of the Consenting Lenders pursuant to
subsections (a) and (b) of this Section shall not in the aggregate exceed
the Additional Commitment Amount; provided, however, that if accepted by
the Borrower, and - subject to the right of any Consenting Lender to
promptly revoke its prior election to increase its Revolving Commitment in
such event, such increases in the Revolving Commitments of the Consenting
Lenders may exceed the Unsubscribed Amount (but shall in no event cause
the Aggregate Revolving Commitments in effect to exceed $300,000,000). If
the sum of the additional increases in the Revolving Commitments of the
Consenting Lenders pursuant to this subsection (b) exceeds the
Unsubscribed Amount, or any greater amount accepted by the Borrower as
provided in the immediately preceding sentence, then the additional
increases in Revolving Commitments pursuant to this subsection (b) shall
be reduced as determined by the Administrative Agent in its discretion
such that the amount of the Consenting Lenders' Revolving Commitments
increased pursuant to this subsection (b) shall not exceed the
Unsubscribed Amount or such greater amount, as applicable.
(c) If the Consenting Lenders shall not increase their Revolving
Commitments pursuant to subsection (a) and (b) of this Section in an
amount equal to the Additional Commitment Amount, then not later than five
(5) Business Days prior to the effective date of the increase in the
Revolving Commitments, the Borrower may designate in writing to the
Administrative Agent other banks or financial institutions which at the
time agree to become parties to this Agreement (each an "ADDITIONAL
LENDER"); provided that any new bank or financial institution must be
reasonably acceptable to the Administrative Agent. The sum of the
increases in the Revolving Commitments of the Consenting Lenders pursuant
to subsections (a) and (b), plus the Commitments of the Additional Lenders
pursuant to this subsection (c), shall not in the aggregate exceed the
Additional Commitment Amount.
(d) An increase in the aggregate amount of the Revolving Commitments
pursuant to this Section 2.23 shall become effective upon the receipt by
the Administrative Agent of an agreement in form and substance
satisfactory to the Administrative Agent signed by the Borrower, by each
Additional Lender and by each Consenting Lender, setting forth the new
Revolving Commitments of such Lenders and setting forth the agreement of
each Additional Lender to become a party to this Agreement and to be bound
by all the terms and provisions hereof, together with such evidence of
appropriate authorization on the part of the Borrower with respect to the
increase in the Revolving Commitments, such opinions of counsel for the
Borrower with respect to the increase in the Revolving Commitments as the
Administrative Agent may reasonably request, and such other certificates
and documents as the Administrative Agent may reasonably request.
(e) Upon the acceptance of any such agreements and documentation by
the Administrative Agent, the Aggregate Revolving Commitments shall
automatically be increased by the amount of the Revolving Commitments
added through such agreements and this Agreement shall automatically be
deemed amended to reflect the Revolving
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Commitments of all Lenders after giving effect to such additional
Revolving Commitments and Additional Lenders, as applicable.
(f) Upon any increase in the aggregate amount of the Revolving
Commitments pursuant to this Section 2.23 that is not shared by all
Lenders in accordance with their Pro Rata Shares immediately prior to such
increases, and effective upon such increase, the amount of the
participations held by the Lenders (including any Additional Lenders) in
the Revolving Credit Exposure shall be adjusted such that, after giving
effect to such adjustments, each Lender (including each Additional Lender)
shall hold participations in each such Revolving Credit Exposure in the
proportion of its respective Revolving Commitment bears to the aggregate
Revolving Commitments after giving effect to such increase.
SECTION 2.24 Replacement of Lenders. (i) If any Lender becomes a
Defaulting Lender, or (ii) upon the occurrence of an event giving rise to the
operation of Section 2.16, Section 2.17 or Section 2.19 with respect to any
Lender which results in such Lender charging to the Borrower increased costs or
such other amounts due thereunder, the Borrower shall have the right, if no
Default or Event of Default then exists, and if no Default or Event of Default
will exist immediately after giving effect to such replacement), to replace such
Lender (the "REPLACED LENDER") with one or more other Eligible Transferees, none
of whom shall constitute a Defaulting Lender at the time of such replacement
(collectively, the "REPLACEMENT LENDER") and each of whom shall be required to
be reasonably acceptable to the Administrative Agent; provided, that (i) at the
time of any replacement pursuant to this Section, the Replacement Lender shall
enter into one or more Assignment and Acceptance pursuant to Section 10.4 (and
with all fees payable pursuant to said Section to be paid by the Replacement
Lender) pursuant to which the Replacement Lender shall acquire all of the
Commitments and outstanding Loans of, and participations in Letters of Credit
by, the Replaced Lender and, in connection therewith, shall pay to (x) the
Replaced Lender in respect thereof an amount equal to the sum of (I) an amount
equal to the principal of, and all accrued interest on, all outstanding Loans of
the Replaced Lender, (II) an amount equal to all LC Disbursements that have been
funded by (and not reimbursed to) such Replaced Lender, together with all then
unpaid interest with respect thereto at such time, and (III) an amount equal to
all accrued, but theretofore unpaid, fees owing to the Replaced Lender, (y) the
Issuing Bank an amount equal to such Replaced Lender's Pro Rata Share of any LC
Disbursements (which at such time remains unpaid) to the extent such amount was
not theretofore funded by such Replaced Lender to the Issuing Bank, and (z) the
Swingline Lender an amount equal to such Replaced Lender's Pro Rata Share of any
Swingline Loan to the extent such amount was not theretofore funded by such
Replaced Lender to the Swingline Lender, and (ii) all obligations of the
Borrower due and owing to the Replaced Lender at such time shall be paid in full
to such Replaced Lender concurrently with such replacement. Upon the execution
of the respective Assignment and Acceptance, the payment of amounts referred to
in clauses (i) and (ii) above and delivery, if requested by 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.
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ARTICLE III
CONDITIONS PRECEDENT TO LOANS AND LETTERS OF CREDIT
SECTION 3.1 Conditions To Effectiveness. The obligations of the Lenders
(including the Swingline Lender) to make Loans hereunder and the obligation of
the Issuing Bank to issue any Letter of Credit hereunder shall not become
effective until the date on which each of the following conditions is satisfied
(or waived in accordance with Section 10.2).
(a) The Administrative Agent shall have received all fees and other
amounts due and payable on or prior to the Closing Date, including
reimbursement or payment of all out-of-pocket expenses (including
reasonable fees, charges and disbursements of counsel to the
Administrative Agent) required to be reimbursed or paid by the Borrower
hereunder, under any other Loan Document and under any agreement with the
Administrative Agent or Arranger.
(b) The Administrative Agent (or its counsel) shall have received
the following:
(i) a counterpart of this Agreement signed by or on behalf of
each party thereto or written evidence satisfactory to the
Administrative Agent (which may include telecopy transmission of a
signed signature page of this Agreement) that such party has signed
a counterpart of this Agreement;
(ii) duly executed Notes payable to any Lender requesting
delivery of such;
(iii) duly executed Subsidiary Guarantee Agreements and
Indemnity and Contribution Agreements;
(iv) duly executed Security Documents, along with such
additional Security Documents as may be required pursuant to the
terms of this Agreement as of the Closing Date;
(v) a certificate of the Secretary or Assistant Secretary of
each Loan Party, attaching and certifying copies of its bylaws and
of the resolutions of its boards of directors, authorizing the
execution, delivery and performance of the Loan Documents to which
it is a party and certifying the name, title and true signature of
each officer of such Loan Party executing the Loan Documents to
which it is a party;
(vi) certified copies of the articles of incorporation or
other charter documents of each Loan Party, together with
certificates of good standing or existence, as may be available from
the Secretary of State of the jurisdiction of incorporation of such
Loan Party and each other jurisdiction where such Loan Party is
required to be qualified to do business as a foreign corporation;
(vii) a favorable written opinion of Bass, ▇▇▇▇▇ & ▇▇▇▇, PLC,
counsel to the Loan Parties, addressed to the Administrative Agent
and each of the Lenders, and covering such matters relating to the
Loan Parties, the Loan Documents and the
- 42 -
transactions contemplated therein as the Administrative Agent or the
Required Lenders shall reasonably request;
(viii) a certificate, dated the Closing Date and signed by a
Responsible Officer, confirming compliance with the conditions set
forth in paragraph (a), (b) and (c) of Section 3.2;
(ix) if required by the Administrative Agent, a duly executed
funds disbursements agreement;
(x) certified copies of all required consents, approvals,
authorizations, registrations, and filings required to be made or
obtained by the Borrower and all Loan Parties in connection with
this Agreement, together with any information or documentation
reasonably required by the Administrative Agent to confirm that all
such consents and approvals are in full force and effect and all
applicable waiting periods have expired without any action being
taken by any Person that would restrain, prevent, or impose any
material adverse conditions on the transactions contemplated by this
Agreement;
(xi) satisfactory review by the Administrative Agent of the
financial statements referenced in Section 4.4 herein;
(xii) certificates of insurance issued on behalf of insurers
of the Loan Parties describing in reasonable detail the types and
amounts of insurance (property and liability) maintained by the Loan
Parties;
(xiii) all fees and expenses (including without limitation all
filing fees, recording costs, indebtedness tax, and similar fees)
required hereunder or under any letter agreement executed by
Borrower in connection with the Loan Documents;
(xiv) duly executed Notices of Borrowing;
(xv) receipt of a certificate from Borrower of any other
information required by the Administrative Agent confirming that
there is no action, suit, investigation or proceeding pending or
threatened in any court or before any arbitrator or governmental
authority that could reasonably be expected to have a Material
Adverse Effect; and
(xvi) receipt of all other documents and information as the
Administrative Agent reasonably requests.
SECTION 3.2 Each Credit Event. The obligation of each Lender to make a
Loan on the occasion of any Borrowing and of the Issuing Bank to issue, amend,
renew, or extend any Letter of Credit is subject to the satisfaction of the
following conditions:
(a) at the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal, or extension of such Letter
of Credit, as applicable, no Default or Event of Default shall exist;
- 43 -
(b) all representations and warranties of each Loan Party set forth
in the Loan Documents shall be true and correct in all material respects
on and as of the date of such Borrowing or the date of issuance,
amendment, extension or renewal of such Letter of Credit, in each case
before and after giving effect thereto;
(c) since the date of the most recent financial statements of the
Borrower described in Section 5.1(a), there shall have been no change
which has had or could reasonably be expected to have a Material Adverse
Effect; and
(d) the Administrative Agent shall have received such other
documents, certificates, information or legal opinions as the
Administrative Agent or the Required Lenders may reasonably request, all
in form and substance reasonably satisfactory to the Administrative Agent
or the Required Lenders.
Each Borrowing and each issuance, amendment, extension, or renewal of any
Letter of Credit shall be deemed to constitute a representation and warranty by
the Borrower on the date thereof as to the matters specified in paragraphs (a),
(b) and (c) of this Section 3.2.
SECTION 3.3 Delivery of Documents. All of the Loan Documents,
certificates, legal opinions and other documents and papers referred to in this
Article III, unless otherwise specified, shall be delivered to the
Administrative Agent for the account of each of the Lenders and, except for the
Notes, in sufficient counterparts or copies for each of the Lenders and shall be
in form and substance satisfactory in all respects to the Administrative Agent.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative Agent and each
Lender as follows:
SECTION 4.1 Existence; Power. The Borrower and each of its Subsidiaries
(i) is duly organized, validly existing and in good standing as a corporation,
limited liability company, or limited partnership, as the case may be, under the
laws of the jurisdiction of its organization, (ii) has all requisite power and
authority to carry on its business as now conducted, and (iii) is duly qualified
to do business, and is in good standing, in each jurisdiction where such
qualification is required, except where a failure to be so qualified could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 4.2 Organizational Power; Authorization. The execution, delivery
and performance by each Loan Party of the Loan Documents to which it is a party
are within such Loan Party's organizational powers and have been duly authorized
by all necessary organizational, and if required, stockholder, member, or
partner, action. This Agreement has been duly executed and delivered by the
Borrower, and constitutes, and each other Loan Document to which any Loan Party
is a party, when executed and delivered by such Loan Party, will constitute,
valid and binding obligations of the Borrower or such Loan Party (as the case
may be), enforceable against it in accordance with their respective terms.
- 44 -
SECTION 4.3 Governmental Approvals; No Conflicts. The execution, delivery
and performance by the Borrower of this Agreement, and by each Loan Party of the
other Loan Documents to which it is a party (a) do not require any consent or
approval of, registration or filing with, or any action by, any Governmental
Authority, except those as have been obtained or made and are in full force and
effect or where the failure to do so, individually or in the aggregate, could
not reasonably be expected to have a Material Adverse Effect, (b) to the
Borrower's knowledge, will not violate any applicable law or regulation or any
order of any Governmental Authority, and will not violate the charter, by-laws
or other organizational documents of the Borrower or any of its Subsidiaries,
(c) will not violate or result in a default under any indenture, material
agreement or other material instrument binding on the Borrower or any of its
Subsidiaries or any of its assets or give rise to a right thereunder to require
any payment to be made by the Borrower or any of its Subsidiaries, and (d) will
not result in the creation or imposition of any Lien on any asset of the
Borrower or any of its Subsidiaries, except Liens (if any) created under the
Loan Documents.
SECTION 4.4 Financial Statements. The Borrower has furnished to each
Lender the audited consolidated balance sheet of the Borrower and its
Subsidiaries for the fiscal year ending December 31, 2005, and the related
consolidated statements of income, shareholders' equity and cash flows, audited
by independent public accountants of recognized national standing and prepared
in accordance with GAAP. Since December 31, 2005, there have been no changes
with respect to the Borrower and its Subsidiaries which have had or could
reasonably be expected to have, singularly or in the aggregate, a Material
Adverse Effect.
SECTION 4.5 Litigation and Environmental Matters.
(a) Except for matters set forth on Schedule 4.5(a), no litigation,
investigation or proceeding of or before any arbitrators or Governmental
Authorities is pending against or, to the knowledge of the Borrower,
threatened against or affecting the Borrower or any of its Subsidiaries
(i) that is not covered fully by insurance and as to which there is a
reasonable possibility of an adverse determination that could reasonably
be expected to have, either individually or in the aggregate, a Material
Adverse Effect or (ii) which in any manner draws into question the
validity or enforceability of this Agreement or any other Loan Document.
(b) Except for the matters set forth on Schedule 4.5(b), neither the
Borrower nor any of its Subsidiaries (i) has failed to comply in any
material respect with any Environmental Law or to obtain, maintain or
comply with any permit, license or other approval required under any
Environmental Law, (ii) has become subject to any Environmental Liability,
(iii) has received notice of any claim with respect to any Environmental
Liability or (iv) knows of any basis for any Environmental Liability.
SECTION 4.6 Compliance with Laws and Agreements. Neither the Borrower nor
any Subsidiary has knowingly violated (a) any applicable laws, rules,
regulations and orders of any Governmental Authority which have a reasonable
likelihood of resulting in a Material Adverse Effect, and (b) any indentures,
agreements or other instruments binding upon it or its properties, except where
such violation, either singularly or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect. Neither the Borrower nor any
Subsidiary is in default under or breach of any agreement or contract, the
effect of which would be to cause a Material Adverse Effect.
- 45 -
SECTION 4.7 Investment Company Act, Etc. Neither the Borrower nor any of
its Subsidiaries is (a) an "investment company", as defined in, or subject to
regulation under, the Investment Company Act of 1940, as amended, (b) a "holding
company" as defined in, or subject to regulation under, the Public Utility
Holding Company Act of 1935, as amended or (c) otherwise subject to any other
regulatory scheme limiting its ability to incur debt.
SECTION 4.8 Taxes. The Borrower and its Subsidiaries have timely filed or
caused to be filed all Federal income tax returns and all other material tax
returns that are required to be filed by them, and have paid all taxes shown to
be due and payable on such returns or on any assessments made against it or its
property and all other taxes, fees or other charges imposed on it or any of its
property by any Governmental Authority, except (i) to the extent the failure to
do so would not have a Material Adverse Effect or (ii) where the same are
currently being contested in good faith by appropriate proceedings and for which
the Borrower or such Subsidiary, as the case may be, has set aside on its books
adequate reserves.
SECTION 4.9 Margin Regulations. None of the proceeds of any of the Loans
or Letters of Credit will be used for "purchasing" or "carrying" any "margin
stock" with the respective meanings of each of such terms under Regulation U as
now and from time to time hereafter in effect or for any purpose that violates
the provisions of the applicable margin regulations. The Borrower and its
Subsidiaries are in full compliance with, and have not violated or allowed to be
violated, any provision of, any of the regulations T, U, or X, and any laws and
regulations to employee benefit plans.
SECTION 4.10 ERISA. No ERISA Event has occurred or is reasonably expected
to occur that, when taken together with all other such ERISA Events for which
liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect.
SECTION 4.11 Ownership of Property.
(a) Each of the Borrower and its Subsidiaries has good and
marketable title to, or valid leasehold interests in, all of its real and
personal property material to the operation of its respective business.
(b) Each of the Borrower and its Subsidiaries has good and
marketable title to and ownership of all of the material assets described
as being owned by Borrower or its Subsidiaries in the Borrower's most
recent consolidated financial statements, free and clear of all Liens,
except for Permitted Encumbrances and those other Liens allowed by Section
7.2.
(c) Each of the Borrower and its Subsidiaries owns, or is licensed,
or otherwise has the right, to use, all patents, trademarks, service
marks, tradenames, copyrights and other intellectual property material to
its business, and the use thereof by the Borrower and its Subsidiaries
does not infringe on the rights of any other Person, except for any such
infringements that, individually or in the aggregate, would not have a
Material Adverse Effect.
SECTION 4.12 Disclosure. The Borrower has disclosed to the Lenders all
agreements, instruments, and corporate or other restrictions to which the
Borrower or any of its Subsidiaries is subject, and all other matters known to
any of them, that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect. Neither the Information
Memorandum
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nor any of the reports, financial statements, certificates or other information
furnished by or on behalf of the Borrower to the Administrative Agent or any
Lender in connection with the negotiation or syndication of this Agreement or
any other Loan Document or delivered hereunder or thereunder (as modified or
supplemented by any other information so furnished) contains any material
misstatement of fact or omits to state any material fact necessary to make the
statements therein, taken as a whole, in light of the circumstances under which
they were made, not misleading; provided that with respect to projected
financial information, the Borrower represents only that such information was
prepared in good faith based upon assumptions believed to be reasonable at the
time.
SECTION 4.13 Labor Relations. There are no strikes, lockouts or other
material labor disputes or grievances against the Borrower or any of its
Subsidiaries, or, to the Borrower's knowledge, threatened against or affecting
the Borrower or any of its Subsidiaries, except those that could not reasonably
be expected to have a Material Adverse Effect and no significant unfair labor
practice, charges or grievances are pending against the Borrower or any of its
Subsidiaries, or to the Borrower's knowledge, threatened against any of them
before any Governmental Authority, except those that could not reasonably be
expected to have a Material Adverse Effect. All payments due from the Borrower
or any of its Subsidiaries pursuant to the provisions of any collective
bargaining agreement have been paid or accrued as a liability on the books of
the Borrower or any such Subsidiary, except where the failure to do so could not
reasonably be expected to have a Material Adverse Effect.
SECTION 4.14 Subsidiaries. Schedule 4.14 sets forth the names of, the
address of, the states of incorporation or organization, and the ownership
interest of the Borrower in each Subsidiary as of the Closing Date. The Borrower
uses no trade names.
SECTION 4.15 Personal Holding Company; Subchapter S. Neither Borrower nor
any Subsidiary is a "personal holding company" as defined in Section 542 of the
Code, and neither Borrower nor any Subsidiary is a "Subchapter S" corporation
within the meaning of the Code.
SECTION 4.16 Solvency. Borrower and each Subsidiary are solvent as of the
date hereof and shall remain solvent at all times hereafter. Borrower and each
Subsidiary are generally paying their respective debts as they mature and the
fair value of Borrower's and such Subsidiary's assets substantially exceeds the
sum total of their respective liabilities.
SECTION 4.17 Foreign Assets Control Regulations, Etc. Neither the making
of any Loan nor the use of the proceeds thereof will violate (a) the Trading
with the Enemy Act, as amended, or any of the foreign assets control regulations
of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as
amended) or any enabling legislation or executive order relating thereto, (b)
the Uniting and Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism Act of 2001 (the "PATRIOT ACT") or (c)
Executive Order No. 13,224, 66 Fed. Reg. 49,079 (2001), issued by the President
of the United States (Executive Order Blocking Property and Prohibiting
Transactions with Persons Who Commit, Threaten to Commit or Support Terrorism).
Without limiting the foregoing, neither Borrower nor any of its Subsidiaries is
or will become a "blocked person" as described in Section 1 of such Executive
Order or engages or will engage in any dealings or transactions with, or is
otherwise associated with, any such blocked person.
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SECTION 4.18 Capital. Borrower now has capital sufficient to carry on its
business and transactions and all businesses and transactions in which it is
engaged.
ARTICLE V
AFFIRMATIVE COVENANTS
The Borrower covenants and agrees that so long as any Lender has a
Commitment hereunder or the principal of and interest on any Loan or any fee or
LC Disbursements remains unpaid or any Letter of Credit remains outstanding:
SECTION 5.1 Financial Statements and Other Information. The Borrower will
deliver to the Administrative Agent and each Lender (subject to Section
10.1(b)):
(a) as soon as available and in any event within ninety (90) days
after the end of each fiscal year of Borrower, a copy of the annual
unqualified audited report for such fiscal year for the Borrower and its
Subsidiaries, containing a consolidated and unaudited consolidating
balance sheet and income statement of the Borrower and its Subsidiaries as
of and for the end of such fiscal year and the related consolidated
statements of shareholders' equity and cash flows (together with all
footnotes thereto) of the Borrower and its Subsidiaries for such fiscal
year, setting forth for the consolidated statements only in comparative
form the figures for the previous fiscal year, all in reasonable detail
and reported on by Deloitte & Touche, LLP or other independent public
accountants of nationally recognized standing (without a "going concern"
or like qualification, exception or explanation and without any
qualification or exception as to scope of such audit) to the effect that
such financial statements present fairly in all material respects the
financial condition and the results of operations of the Borrower and its
Subsidiaries for such fiscal year on a consolidated basis in accordance
with GAAP and that the examination by such accountants in connection with
such consolidated financial statements has been made in accordance with
generally accepted auditing standards;
(b) as soon as available and in any event within forty-five (45)
days after the end of each of the first three fiscal quarters of each
fiscal year of the Borrower, an unaudited consolidated and consolidating
balance sheet and income statement of the Borrower and its Subsidiaries as
of the end of such fiscal quarter and the then elapsed portion of such
fiscal year and the related unaudited consolidated statement of cash flows
of the Borrower and its Subsidiaries for such fiscal quarter and the then
elapsed portion of such fiscal year, setting forth for the consolidated
statements only in comparative form the figures for the corresponding
quarter and the corresponding portion of Borrower's previous fiscal year,
all certified by the chief financial officer or treasurer of the Borrower
as presenting fairly in all material respects the financial condition and
results of operations of the Borrower and its Subsidiaries on a
consolidated basis in accordance with GAAP, subject to normal year-end
audit adjustments and the absence of footnotes;
(c) concurrently with the delivery of the financial statements
referred to in clauses (a) and (b) above, a certificate of a Responsible
Officer in the form of Schedule 5.1(c), (i) certifying as to whether there
exists a Default or Event of Default on the date of such certificate, and
if a Default or an Event of Default then exists, specifying the details
thereof and the action which the Borrower has taken or proposes to take
with respect thereto, (ii)
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setting forth in reasonable detail calculations demonstrating compliance
with Article VI and (iii) stating whether any change in GAAP or the
application thereof has occurred since the date of the Borrower's audited
financial statements referred to in Section 4.4 and, if any change has
occurred, specifying the effect of such change on the financial statements
accompanying such certificate;
(d) within ninety (90) days after the end of each fiscal year, the
Borrower shall provide to the Administrative Agent its consolidated annual
budget;
(e) within forty-five (45) days after the end of each fiscal
quarter, the Borrower shall provide to the Administrative Agent its
Consolidated Statements of Operations Data, with quarterly operating
history;
(f) concurrently with the delivery of the financial statements
referred to in clauses (a) and (b) above, a Developed Center Information
Package, including the Surgery Center Location Report for existing surgery
centers, together with the information submitted to the Board of Directors
for each new surgery center acquired during the prior fiscal quarter;
(g) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed
with the Securities and Exchange Commission, or any Governmental Authority
succeeding to any or all functions of said Commission, or with any
national securities exchange, or distributed by the Borrower to its
shareholders generally, as the case may be; and
(h) promptly upon receipt of copies of any management letters
delivered to Borrower by its auditors and promptly following any request
therefore, such other information regarding the results of operations,
business affairs and financial condition of the Borrower or any Subsidiary
as the Administrative Agent or any Lender may reasonably request.
SECTION 5.2 Notices of Material Events. The Borrower will furnish to the
Administrative Agent and each Lender (subject to Section 10.1(b)) prompt written
notice of the following:
(a) the occurrence of any Default or Event of Default;
(b) the filing or commencement of any action, suit or proceeding by
or before any arbitrator or Governmental Authority against or, to the
knowledge of the Borrower, affecting the Borrower or any Subsidiary which,
if adversely determined, could reasonably be expected to result in a
Material Adverse Effect;
(c) the occurrence of any event or any other development by which
the Borrower or any of its Subsidiaries (i) fails to comply with any
Environmental Law or to obtain, maintain or comply with any permit,
license or other approval required under any Environmental Law, (ii)
becomes subject to any Environmental Liability, (iii) receives notice of
any claim with respect to any Environmental Liability, or (iv) becomes
aware of any basis for any Environmental Liability, and in each of the
preceding clauses, which individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect;
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(d) the occurrence of any ERISA Event that alone, or together with
any other ERISA Events that have occurred, could reasonably be expected to
result in liability of the Borrower and its Subsidiaries in an aggregate
amount exceeding $100,000; and
(e) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a written
statement of a Responsible Officer setting forth the details of the event or
development requiring such notice and any action taken or proposed to be taken
with respect thereto.
SECTION 5.3 Existence; Conduct of Business. The Borrower will, and will
cause each of its Subsidiaries to, do or cause to be done all things necessary
to preserve, renew and maintain in full force and effect: (i) its legal
existence, and (ii) its respective rights, licenses, permits, privileges,
franchises, patents, copyrights, trademarks and trade names material to the
conduct of its business except where such failure would not cause a Material
Adverse Effect. The Borrower will, and will cause each of its Subsidiaries to
engage in the same business as presently conducted or such other businesses that
are reasonably related thereto; provided that nothing in this Section shall
prohibit any merger, consolidation, liquidation or dissolution permitted under
Section 7.3.
SECTION 5.4 Compliance with Laws, Etc. The Borrower will, and will cause
each of its Subsidiaries to, comply with all laws, rules, regulations and
requirements (including, without limitation, environmental laws, employee
benefits laws, and ERISA) of any Governmental Authority applicable to its
properties, except where the failure to do so, either individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 5.5 Payment of Obligations. The Borrower will, and will cause each
of its Subsidiaries to, pay and discharge at or before maturity, all of its
obligations and liabilities (including without limitation all tax liabilities
and claims that could result in a statutory Lien) before the same shall become
delinquent or in default, except where (b) the validity or amount thereof is
being contested in good faith by appropriate proceedings, (c) the Borrower or
such Subsidiary has set aside on its books adequate reserves with respect
thereto in accordance with GAAP and (d) the failure to make payment pending such
contest could not reasonably be expected to result in a Material Adverse Effect.
SECTION 5.6 Books and Records. The Borrower will, and will cause each of
its Subsidiaries to, keep proper books of record and account in which full, true
and correct entries shall be made of all dealings and transactions in relation
to its business and activities to the extent necessary to prepare the
consolidated financial statements of Borrower in conformity with GAAP.
SECTION 5.7 Visitation, Inspection, Etc. To the extent permitted by
applicable law, the Borrower will, and will cause each of its Subsidiaries to,
permit any representative of the Administrative Agent, to visit and inspect its
properties, to make field audits, to examine its books and records (excluding
any confidential patient records required by law to be excluded from such
examination) and to make copies and take extracts therefrom, and to discuss its
affairs, finances and accounts with any of its officers and with its independent
certified public accountants, all at such reasonable times and as often as the
Administrative Agent may reasonably request after reasonable
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prior notice to the Borrower, provided that the Administrative Agent may not
make field audits at any one location more than once in every twelve (12) months
without the consent of the Borrower.
SECTION 5.8 Maintenance of Properties; Insurance. The Borrower will, and
will cause each of its Subsidiaries to, (a) keep and maintain all property
material to the conduct of its business in good working order and condition,
subject to ordinary wear and tear except where the failure to do so, either
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect and (b) maintain with financially sound and reputable
insurance companies, insurance with respect to its properties and business, and
the properties and business of its Subsidiaries, against loss or damage of the
kinds customarily insured against by companies in the same or similar businesses
operating in the same or similar locations.
SECTION 5.9 Use of Proceeds. Borrower will use the proceeds of the Loan to
refinance the Indebtedness evidenced by the 2005 Credit Agreement and thereafter
to finance general corporate needs, including working capital, Capital
Expenditures, newly developed surgery centers, share repurchases, and for
permitted Acquisitions, all in accordance with the terms hereof. No part of the
proceeds of any Loan will be used, whether directly or indirectly, for any
purpose that would violate any rule or regulation of the Board of Governors of
the Federal Reserve System, including Regulations T, U or X. All Letters of
Credit will be used for general corporate purposes.
SECTION 5.10 Additional Subsidiaries.
(a) If any additional Wholly Owned Subsidiary is acquired or formed
by Borrower, the Borrower shall within fifteen (15) Business Days after
such Wholly Owned Subsidiary is acquired or formed: (i) if such Wholly
Owned Subsidiary is a corporation, execute a Stock Pledge Agreement
pledging to the Administrative Agent on behalf of Lenders all of the stock
or other evidence of ownership interest it presently holds and acquires in
such Wholly Owned Subsidiary, and the Borrower shall deliver along with
such Stock Pledge Agreement or amendment the securities described therein,
a Reg U form, and a stock power, all in form and substance satisfactory to
Administrative Agent, (ii) if such Wholly Owned Subsidiary is not a
corporation, execute such security agreements as are reasonably
satisfactory to the Administrative Agent pledging to the Administrative
Agent on behalf of Lenders all of the ownership interest the Borrower
holds and acquires in such Wholly Owned Subsidiary, including, without
limitation, all presently existing and hereafter arising right, title, and
interest in and to distributions, payments, general intangibles, accounts,
and other tangible and intangible property and (iii) cause such Wholly
Owned Subsidiary to execute a Subsidiary Guarantee Agreement and an
Indemnity and Contribution Agreement (or appropriate amendments or
joinders to the existing Subsidiary Guarantee Agreement and Indemnity and
Contribution Agreement). Administrative Agent is hereby authorized to file
such UCC financing statements necessary to perfect the security interests
described herein, all without the necessity of Borrower's execution
thereof.
(b) If any Subsidiary (other than a Wholly Owned Subsidiary) is
acquired or formed by a Wholly Owned Subsidiary or the Borrower, the
applicable Wholly Owned Subsidiary or Borrower, as applicable, within ten
(10) Business Days after such Subsidiary is acquired or formed, shall,
subject to the Release Provision, execute a Pledge Agreement, pledging its
interest in such Subsidiary, and in the event such Subsidiary is not a
corporation,
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execute such security agreements as are reasonably satisfactory to the
Administrative Agent pledging to the Administrative Agent on behalf of the
Lenders the ownership interest that the Borrower or such applicable Wholly
Owned Subsidiary holds and acquires in such Subsidiary. Administrative
Agent is hereby authorized to file such UCC financing statements necessary
to perfect the security interest described herein, all without the
necessity of Borrower's or such Wholly Owned Subsidiary's execution
thereof.
(c) In connection with the acquisition or formation of any Wholly
Owned Subsidiary or other Subsidiary referenced in subparts (a) and (b)
above, the Borrower shall also cause the Administrative Agent to receive
simultaneously with the documentation referenced above the resolution of
the respective Person executing such documentation and an opinion letter
issued by Borrower's legal counsel regarding such matters as may be
reasonably required by the Administrative Agent, all without the necessity
of Borrower's execution thereof.
SECTION 5.11 Security Documents.
(a) (a) The Borrower will cooperate with the Administrative Agent to
cause an annual review to be undertaken of the Security Documents and the
procedures required for compliance by any Loan Party with the requirements
contained therein and in Section 5.10 herein, and following such review
the Borrower will, and will cause each Loan Party, to undertake any
actions and implement such procedures to maintain compliance by each Loan
Party with the requirements, purpose, and intent of the Security Documents
and Section 5.10 herein.
(b) The Borrower agrees that upon the occurrence of an Event of
Default, or at any such other time in the reasonable discretion of the
Required Lenders or the Administrative Agent and after consultation with
the Borrower, the Administrative Agent may cause to be filed any such UCC
financing statements (and amendments thereto) as it deems necessary to
perfect the security interests described in the Security Documents and/or
to comply with any federal, state, or local governmental requirements, and
that in connection with such filing, cause all fees, indebtedness taxes,
or other charges to be paid, all without the necessity of Borrower's or
such Loan Party's execution thereof, at Borrower's expense, which Borrower
agrees to pay to the Administrative Agent immediately upon receipt of
written notice thereof.
ARTICLE VI
FINANCIAL COVENANTS
The Borrower covenants and agrees that so long as any Lender has a
Commitment hereunder or the principal of or interest on or any Loan remains
unpaid or any fee or any LC Disbursement remains unpaid or any Letter of Credit
remains outstanding:
SECTION 6.1 Leverage Ratio. The Borrower shall maintain, on a consolidated
basis and as calculated at the end of each calendar quarter, a Leverage Ratio of
not greater than 2.75 to 1.00.
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SECTION 6.2 Interest Charge Coverage Ratio. The Borrower shall maintain,
on a consolidated basis and as calculated at the end of each calendar quarter on
a rolling four quarter basis, a ratio of (a) the sum of (i) Adjusted EBITDA,
plus (ii) Consolidated Lease Expense to (b) the sum of (i) Consolidated Interest
Expense, plus (ii) Consolidated Lease Expense of not less than 2.00 to 1.00.
For the purpose of calculating the Interest Charge Coverage Ratio as set
forth above, the Borrower shall calculate the ratio in a manner consistent with
the calculation of Adjusted EBITDA, provided that such calculations are done in
a manner reasonably calculated to comply with GAAP and the calculations are
detailed and measured to the Administrative Agent's reasonable satisfaction.
SECTION 6.3 Consolidated Net Worth. The Borrower, on a consolidated basis,
shall maintain at all times a Consolidated Net Worth, as measured on the last
day of each fiscal quarter, of not less than (a) $250,425,300, plus (b) fifty
percent (50%) of its cumulative positive Consolidated Net Income since December
31, 2005 plus (c) one hundred percent (100%) of the net proceeds received from
the issuance, sale, or disposition of the Borrower's Capital Stock (common,
preferred, or special), converted into or exchanged for Capital Stock, and any
rights, options, warrants, and similar instruments from December 31, 2005 to any
date of determination less (d) the amount equal to Borrower's treasury stock
purchases permitted by Section 7.5(a) herein up to but not in excess of an
aggregate amount equal to $50,000,000 measured from December 31, 2005 to any
date of determination.
ARTICLE VII
NEGATIVE COVENANTS
The Borrower covenants and agrees that so long as any Lender has a
Commitment hereunder or the principal of or interest on any Loan remains unpaid
or any fee or LC Disbursement remains unpaid or any Letter of Credit remains
outstanding:
SECTION 7.1 Indebtedness. The Borrower will not, and will not permit any
of its Subsidiaries to, create, incur, assume or suffer to exist any
Indebtedness, except:
(a) Indebtedness arising under the Loan Documents;
(b) Indebtedness existing on the date hereof and extensions,
renewals and replacements of any such Indebtedness that do not increase
the outstanding principal amount thereof (immediately prior to giving
effect to such extension, renewal or replacement) or shorten the maturity
or the weighted average life thereof (all Indebtedness existing on the
date hereof with a principal or committed amount outstanding equal to or
greater than $250,000 is set forth on Schedule 7.1 attached hereto);
(c) Intercompany Loans not to exceed in the aggregate at any time
outstanding an amount equal to forty percent (40%) of the sum of Adjusted
EBITDA, plus expense attributed to minority interest as identified as the
line item "minority interest" on Borrower's Consolidated Statements of
Earnings;
(d) Indebtedness in respect of obligations under Hedging Agreements
permitted by Section 7.10; and
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(e) Indebtedness that does not exceed $20,000,000 in the aggregate,
inclusive of all amounts referenced in Section 7.1(b) above, but
specifically excluding all amounts referred in Sections 7.1(a), 7.1(c),
and 7.1(d) above.
SECTION 7.2 Negative Pledge. The Borrower will not, and will not permit
any of its Subsidiaries to, create, incur, assume or suffer to exist any Lien on
any of its assets or property now owned or hereafter acquired, except:
(a) Liens created in favor of the Administrative Agent for the
benefit of the Lenders pursuant to the Loan Documents;
(b) Permitted Encumbrances;
(c) any Liens on any property or asset of the Borrower or any
Subsidiary existing on the Closing Date set forth on Schedule 7.2;
provided that such Lien shall not apply to any other property or asset of
the Borrower or any Subsidiary; and
(d) Liens securing the Indebtedness permitted under Section 7.1(c)
and/or 7.1(e) above; and
(e) extensions, renewals, or replacements of any Lien referred to in
paragraphs (a) through (d) of this Section; provided that the principal
amount of the Indebtedness secured thereby is not increased and that any
such extension, renewal or replacement is limited to the assets originally
encumbered thereby.
SECTION 7.3 Fundamental Changes.
(a) The Borrower will not, and will not permit any Subsidiary to,
merge into or consolidate into any other Person, or permit any other
Person to merge into or consolidate with it, or sell, lease, transfer or
otherwise dispose of all or substantially all of the stock of any of its
Subsidiaries (in each case, whether now owned or hereafter acquired) or
liquidate or dissolve; provided, that if at the time thereof and
immediately after giving effect thereto, no Default or Event of Default
shall have occurred and be continuing (i) the Borrower or any Subsidiary
may merge with a Person if the Borrower (or such Subsidiary if the
Borrower is not a party to such merger) is the surviving Person, (ii) any
Subsidiary may merge into another Subsidiary; provided, that if any party
to such merger is a Wholly Owned Subsidiary, the Wholly Owned Subsidiary
shall be the surviving Person, (iii) any Subsidiary may merge into the
Borrower if Borrower is the surviving Person, and (iv) any Subsidiary
(other than a Wholly Owned Subsidiary) may liquidate or dissolve if the
Borrower determines in good faith that such liquidation or dissolution is
in the best interests of the Borrower and is not materially
disadvantageous to the Lenders; provided, that any such merger involving a
Person that is not a Wholly Owned Subsidiary immediately prior to such
merger shall not be permitted unless also permitted by Section 7.4.
(b) The Borrower will not, and will not permit any of its
Subsidiaries to, engage to any material extent in any business other than
businesses of the type conducted by the Borrower and its Subsidiaries on
the date hereof and businesses reasonably related thereto.
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SECTION 7.4 Investments, Loans, Etc. The Borrower will not, and will not
permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant
to any merger with any Person that was not a Wholly Owned Subsidiary prior to
such merger), any common stock, evidence of indebtedness or other securities
(including any option, warrant, or other right to acquire any of the foregoing)
of, make or permit to exist any loans or advances to, or make or permit to exist
any investment or any other interest in, any other Person (all of the foregoing
being collectively called "INVESTMENTS"), or purchase or otherwise acquire (in
one transaction or a series of transactions) any assets of any other Person that
constitute a business unit, except:
(a) Investments (other than Permitted Investments) existing on the
date hereof and set forth on Schedule 7.4 (including Investments in
Subsidiaries);
(b) Permitted Investments;
(c) Intercompany Loans not to exceed the amount specified in Section
7.1(c) herein;
(d) loans or advances to employees, officers or directors of the
Borrower or any Subsidiary in the ordinary course of business for travel,
relocation and related expenses not to exceed $250,000 in the aggregate
outstanding amount;
(e) Hedging Agreements permitted by Section 7.10; and
(f) Other Investments which in the aggregate do not exceed
$2,500,000.
SECTION 7.5 Restricted Payments.
(a) Except for dividends payable from a Wholly Owned Subsidiary to
the Borrower, the Borrower will not, and will not permit any of its
corporate Subsidiaries to, declare or make, or agree to pay or make,
directly or indirectly, any dividend on any class of its stock, or make
any payment on account of, or set apart assets for a sinking or other
analogous fund for, the purchase, redemption, retirement, defeasance or
other acquisition of, any shares of treasury stock (each, a "RESTRICTED
PAYMENT"); provided however, that at the time thereof and immediately
after giving effect thereto, no Default or Event of Default shall have
occurred and be continuing, the Borrower shall be permitted to purchase in
the aggregate after December 31, 2005 and continuing during the term of
this Agreement treasury stock totaling no greater than $50,000,000 plus
fifty percent (50%) of its cumulative positive Consolidated Net Income
since the December 31, 2005;
(b) Upon the occurrence, and during the continuance of, a Default or
Event of Default, Borrower will not, and will not permit any of its
corporate Subsidiaries to, pay or make, or agree to pay or make, directly
or indirectly, any principal payments against any Intercompany Loans; and
SECTION 7.6 Sale of Assets. The Borrower will not, and will not permit any
of its Subsidiaries to, convey, sell, lease, assign, transfer or otherwise
dispose of to any Person other than to Borrower or a Wholly Owned Subsidiary,
any of its assets, business or property, whether now owned or hereafter
acquired, or, in the case of any Subsidiary, issue or sell any shares of such
Subsidiary's
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common stock to any Person other than the Borrower or a Wholly Owned Subsidiary
(or to qualify directors if required by applicable law), except:
(a) the sale or other disposition for fair market value of obsolete
or worn out property or other property not necessary for operations
disposed of in the ordinary course of business;
(b) the sale of inventory and Permitted Investments in the ordinary
course of business; and
(c) subject to Section 2.11(b), the sale or other disposition of
such assets in an amount not to exceed in the aggregate five percent (5%)
of the Borrower's consolidated total assets as determined as of the date
of any sale or disposition and as calculated on a cumulative basis
measured from the Closing Date.
SECTION 7.7 Transactions with Affiliates. The Borrower will not, and will
not permit any of its Subsidiaries to, sell, lease or otherwise transfer any
property or assets to, or purchase, lease or otherwise acquire any property or
assets from, or otherwise engage in any other transactions with, any of its
Affiliates, except (a) in the ordinary course of business at prices and on terms
and conditions not less favorable to the Borrower or such Subsidiary than could
be obtained on an arm's-length basis from unrelated third parties, (b)
transactions between or among the Borrower and its Subsidiaries not involving
any other Affiliates and (c) any Restricted Payment permitted by Section 7.5.
SECTION 7.8 Restrictive Agreements. The Borrower will not, and will not
permit any Subsidiary to, directly or indirectly, enter into, incur or permit to
exist any agreement that prohibits, restricts or imposes any condition upon (a)
the ability of the Borrower or any Subsidiary to create, incur or permit any
Lien upon any of its assets or properties, whether now owned or hereafter
acquired, or (b) the ability of any Subsidiary to pay dividends or other
distributions with respect to its common stock, to make or repay loans or
advances to the Borrower or any other Subsidiary, to Guarantee Indebtedness of
the Borrower or any other Subsidiary or to transfer any of its property or
assets to the Borrower or any Subsidiary of the Borrower; provided, that (i) the
foregoing shall not apply to restrictions or conditions imposed by law or by
this Agreement or any other Loan Document, (ii)the foregoing shall not apply to
customary restrictions and conditions contained in agreements relating to the
sale of a Subsidiary pending such sale, provided such restrictions and
conditions apply only to the Subsidiary that is sold and such sale is permitted
hereunder, (iii) clause (a) shall not apply to restrictions or conditions
imposed by any agreement relating to secured Indebtedness permitted by this
Agreement if such restrictions and conditions apply only to the property or
assets securing such Indebtedness and (iv) clause (a) shall not apply to
customary provisions in leases restricting the assignment thereof.
SECTION 7.9 Sale and Leaseback Transactions. The Borrower will not, and
will not permit any of the Subsidiaries to, enter into any arrangement, directly
or indirectly, whereby it shall sell or transfer any property, real or personal,
used or useful in its business, whether now owned or hereinafter acquired, and
thereafter rent or lease such property or other property that it intends to use
for substantially the same purpose or purposes as the property sold or
transferred.
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SECTION 7.10 Hedging Agreements. The Borrower will not, and will not
permit any of the Subsidiaries to, enter into any Hedging Agreement, other than
Hedging Agreements entered into in the ordinary course of business to hedge or
mitigate risks to which the Borrower or any Subsidiary is exposed in the conduct
of its business or the management of its liabilities. Solely for the avoidance
of doubt, the Borrower acknowledges that a Hedging Agreement entered into for
speculative purposes or of a speculative nature (which shall be deemed to
include any Hedging Agreement under which the Borrower or any of the
Subsidiaries is or may become obliged to make any payment (i) in connection with
the purchase by any third party of any common stock or any Indebtedness or (ii)
as a result of changes in the market value of any common stock or any
Indebtedness) is not a Hedging Agreement entered into in the ordinary course of
business to hedge or mitigate risks.
SECTION 7.11 Amendment to Material Documents. (a) The Borrower will not
permit any Subsidiary to, amend, modify or waive any of its rights in a manner
materially adverse to the Lenders under its certificate of incorporation, bylaws
or other organizational documents.
(b) Upon the occurrence, and during the continuance of, a Default or
Event of Default, the Borrower will not, and will not permit any of its
corporate Subsidiaries to, amend or terminate, or agree to, amend or
terminate, directly or indirectly, any Intercompany Loans.
SECTION 7.12 Accounting Changes. The Borrower will not, and will not
permit any Subsidiary to, make any significant change in accounting treatment or
reporting practices, except as required by GAAP, or change the fiscal year of
the Borrower or of any Subsidiary, except to change the fiscal year of a
Subsidiary to conform its fiscal year to that of the Borrower.
SECTION 7.13 Acquisitions.
(a) Without the prior written consent of the Required Lenders, the
Borrower may not make any Acquisition unless such Acquisition satisfies
all of the following conditions:
(i) the total consideration (including cash, stock, personal
property, debt assumed, and other Property) exchanged for any single
Acquisition does not exceed $20,000,000;
(ii) the aggregate number of Acquisitions, in a rolling twelve
(12) month period does not exceed an amount equal to 1.25 times(x)
the EBITDA of the Borrower and the Subsidiaries for such four
consecutive quarters;
(iii) at least one (1) Business Day before any Acquisition for
a total consideration equal to or in excess of $15,000,000 not
requiring Required Lender approval, and at least fifteen (15) days
before any Acquisition for a total consideration equal to or in
excess of $20,000,000 requiring Required Lender approval, the
Borrower delivers to Administrative Agent and Lenders the
Acquisition Information Package; and
(iv) simultaneously with the Acquisition, the Borrower shall
deliver to Administrative Agent the documentation and agreements
required by Section 5.10 herein.
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(b) The Borrower may not make an Acquisition that does not comply
with subsection (a) hereof unless the Borrower obtains the prior approval
in writing of the Required Lenders as evidenced by an Acquisition Approval
Letter and satisfaction of the following conditions:
(i) at least fifteen (15) Business Days prior to the proposed
Acquisition the Borrower delivers to Administrative Agent and
Lenders the Acquisition Information Package (it being understood
that the Lenders shall use reasonable efforts to notify the Borrower
within ten (10) Business Days after receipt of the Acquisition
Information Package of their decision to approve or disapprove the
proposed Acquisition); and
(ii) if the Required Lenders approve the Acquisition, then
simultaneously with the Acquisition, the Borrower shall deliver to
Administrative Agent the documentation and agreements required by
Section 5.10 herein.
SECTION 7.14 Subsidiaries.
(a) The Borrower may not hold an ownership interest in any
Subsidiary except a Wholly Owned Subsidiary.
(b) A Wholly Owned Subsidiary may not hold an ownership interest in
any Person except for a Subsidiary.
SECTION 7.15 ERISA Violation. The Borrower will not, and will not permit
any of its Subsidiaries, to engage in any transaction, take any action, or fail
to take any action which could subject the Borrower, any Subsidiary of Borrower,
or any Affiliate of the Borrower or any Subsidiary of Borrower to a material
civil penalty pursuant to an ERISA violation.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1 Events of Default. If any of the following events (each an
"EVENT OF DEFAULT") shall occur:
(a) the Borrower shall fail to pay any principal of any Loan or of
any reimbursement obligation in respect of any LC Disbursements when and
as the same shall become due and payable, whether at the due date thereof
or at a date fixed for prepayment or otherwise; or
(b) the Borrower shall fail to pay any interest on any Loan or any
fee or any other amount (other than an amount payable under clause (a) of
this Article) payable under this Agreement or any other Loan Document,
when and as the same shall become due and payable, and such failure shall
continue unremedied for a period of five (5) Business Days; or
(c) any representation or warranty made or deemed made by or on
behalf of the Borrower or any Subsidiary in or in connection with this
Agreement or any other Loan Document (including the Schedules attached
thereto) and any amendments or modifications
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hereof or waivers hereunder, or in any certificate, report, financial
statement or other document submitted to the Administrative Agent or the
Lenders by any Loan Party or any representative of any Loan Party pursuant
to or in connection with this Agreement or any other Loan Document shall
prove to be incorrect in any material respect when made or deemed made or
submitted; or
(d) the Borrower shall fail to observe or perform any covenant or
agreement contained in Sections 5.1, 5.2, 5.3 (with respect to the
Borrower's existence), 5.7 or Articles VI or VII; or
(e) any Loan Party shall fail to observe or perform any covenant or
agreement contained in this Agreement (other than those referred to in
clauses (a), (b) and (d) above), and such failure shall remain unremedied
for thirty (30) days after the earlier of (i) any officer of the Borrower
becomes aware of such failure, or (ii) notice thereof shall have been
given to the Borrower by the Administrative Agent or any Lender; or
(f) the Borrower or any Subsidiary (whether as primary obligor or as
guarantor or other surety) shall fail to pay any principal of or premium
or interest on any Material Indebtedness that is outstanding, when and as
the same shall become due and payable (whether at scheduled maturity,
required prepayment, acceleration, demand or otherwise), and such failure
shall continue after the applicable grace period, if any, specified in the
agreement or instrument evidencing such Indebtedness; or any other event
shall occur or condition shall exist under any agreement or instrument
relating to such Material Indebtedness and shall continue after the
applicable grace period, if any, specified in such agreement or
instrument, if the effect of such event or condition constitutes a default
or accelerates, or permit the acceleration of, the maturity of such
Material Indebtedness; or any such Material Indebtedness shall be declared
to be due and payable prior to the stated maturity date thereof; or any
such Material Indebtedness shall be required to be prepaid or redeemed
(other than by a regularly scheduled required prepayment or redemption),
purchased or defeased, or any offer to prepay, redeem, purchase or defease
such Indebtedness shall be required to be made, in each case prior to the
stated maturity thereof; or
(g) the Borrower or any Subsidiary shall (i) commence a voluntary
case or other proceeding or file any petition seeking liquidation,
reorganization or other relief under any federal, state or foreign
bankruptcy, insolvency or other similar law now or hereafter in effect or
seeking the appointment of a custodian, trustee, receiver, liquidator or
other similar official of it or any substantial part of its property, (ii)
consent to the institution of, or fail to contest in a timely and
appropriate manner, any proceeding or petition described in clause (i) of
this Section, (iii) apply for or consent to the appointment of a
custodian, trustee, receiver, liquidator or other similar official for the
Borrower or any such Subsidiary or for a substantial part of its assets,
(iv) file an answer admitting the material allegations of a petition filed
against it in any such proceeding, (v) make a general assignment for the
benefit of creditors, or (vi) take any action for the purpose of effecting
any of the foregoing; or
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other
relief in respect of the Borrower or any Subsidiary or its debts, or any
substantial part of its assets, under any federal, state or foreign
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bankruptcy, insolvency or other similar law now or hereafter in effect or
(ii) the appointment of a custodian, trustee, receiver, liquidator or
other similar official for the Borrower or any Subsidiary or for a
substantial part of its assets, and in any such case, such proceeding or
petition shall remain undismissed for a period of sixty (60) days or an
order or decree approving or ordering any of the foregoing shall be
entered; or
(i) the Borrower or any Subsidiary shall become unable to pay, shall
admit in writing its inability to pay, or shall fail to pay, its debts as
they become due; or
(j) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with other ERISA Events that have
occurred, could reasonably be expected to result in a Material Adverse
Effect for the Borrower and the Subsidiaries; or
(k) any uninsured judgment or order for the payment of money in
excess of $2,000,000, in the aggregate, or in such amount that would
result in a Material Adverse Effect, shall be rendered against the
Borrower or any Subsidiary, and either (i) enforcement proceedings shall
have been commenced by any creditor upon such judgment or order and shall
not have been stayed within fifteen (15) days after the commencement
thereof, or (ii) there shall be a period of thirty (30) consecutive days
during which a stay of enforcement of such judgment or order, by reason of
a pending appeal or otherwise, shall not be in effect; or
(l) any non-monetary judgment or order shall be rendered against the
Borrower or any Subsidiary that could reasonably be expected to have a
Material Adverse Effect, and there shall be a period of thirty (30)
consecutive days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in effect;
or
(m) a Change in Control shall occur or exist; or
(n) any material provision of any Subsidiary Guarantee Agreement,
the Security Documents, or any other document securing the Obligations of
Borrower and the Subsidiaries hereunder shall for any reason cease to be
valid and binding on, or enforceable against the Borrower or the
Subsidiaries; or
(o) Borrower or any Subsidiary violates or otherwise fails to comply
with any law, rule, regulation, decree, order, or judgment under the laws
of the United States of America or of any state or jurisdiction thereof
which violation has a Material Adverse Effect on Borrower or any
Subsidiary, or Borrower or any Subsidiary fails or refuses at any time to
remain current in its financial reporting requirements pursuant to such
laws, rules, and regulations or pursuant to the rules and regulations of
any exchange upon which any shares of Borrower are traded; or
(p) a default shall occur under any other Loan Document and shall
continue beyond any applicable notice and cure period;
then, and in every such event (other than an event with respect to the Borrower
described in clause (g) or (h) of this Section) and at any time thereafter
during the continuance of such event, the Administrative Agent may, and upon the
written request of the Required Lenders shall, by notice to the Borrower, take
any or all of the following actions, at the same or different times: (i)
terminate the Commitments, whereupon the Commitment of each Lender shall
terminate immediately; (ii) declare
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the principal of and any accrued interest on the Loans, and all other
Obligations owing hereunder, to be, whereupon the same shall become due and
payable immediately, without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrower and (iii) exercise all
remedies contained in any other Loan Document; and that, if an Event of Default
specified in either clause (g) or (h) shall occur, the Commitments shall
automatically terminate and the principal of the Loans then outstanding,
together with accrued interest thereon, and all fees, and all other Obligations
shall automatically become due and payable, without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by the Borrower.
ARTICLE IX
THE ADMINISTRATIVE AGENT
SECTION 9.1 Appointment of Administrative Agent.
(a) Each Lender irrevocably appoints SunTrust Bank as the
Administrative Agent and authorizes it to take such actions on its behalf
and to exercise such powers as are delegated to the Administrative Agent
under this Agreement and the other Loan Documents, together with all such
actions and powers that are reasonably incidental thereto. The
Administrative Agent may perform any of its duties hereunder by or through
any one or more sub-agents appointed by the Administrative Agent. The
Administrative Agent and any such sub-agent may perform any and all of its
duties and exercise its rights and powers through their respective Related
Parties. The exculpatory provisions set forth in this Article shall apply
to any such sub-agent and the Related Parties of the Administrative Agent
and any such sub-agent and shall apply to their respective activities in
connection with the syndication of the credit facilities provided for
herein as well as activities as Administrative Agent.
(b) The Issuing Bank shall act on behalf of the Lenders with respect
to any Letters of Credit issued by it and the documents associated
therewith until such time and except for so long as the Administrative
Agent may agree at the request of the Required Lenders to act for the
Issuing Bank with respect thereto; provided, that the Issuing Bank shall
have all the benefits and immunities (i) provided to the Administrative
Agent in this Article IX with respect to any acts taken or omissions
suffered by the Issuing Bank in connection with Letters of Credit issued
by it or proposed to be issued by it, and (ii) as additionally provided in
this Agreement with respect to the Issuing Bank.
SECTION 9.2 Nature of Duties of Administrative Agent. The Administrative
Agent shall not have any duties or obligations except those expressly set forth
in this Agreement and the other Loan Documents. Without limiting the generality
of the foregoing, (a) the Administrative Agent shall not be subject to any
fiduciary or other implied duties, regardless of whether a Default or an Event
of Default has occurred and is continuing, (b) the Administrative Agent shall
not have any duty to take any discretionary action or exercise any discretionary
powers, except those discretionary rights and powers expressly contemplated by
the Loan Documents that the Administrative Agent is required to exercise in
writing by the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary under the circumstances as provided in Section
10.2), and (c) except as expressly set forth in the Loan Documents, the
Administrative Agent shall not have any duty to disclose, and shall not be
liable for the failure to disclose, any information relating to the Borrower or
any of its Subsidiaries that is communicated to or obtained by the
Administrative Agent or any of its Affiliates
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in any capacity. The Administrative Agent shall not be liable for any action
taken or not taken by it with the consent or at the request of the Required
Lenders (or such other number or percentage of the Lenders as shall be necessary
under the circumstances as provided in Section 10.2) or in the absence of its
own gross negligence or willful misconduct. The Administrative Agent shall not
be deemed to have knowledge of any Default or Event of Default unless and until
written notice thereof is given to the Administrative Agent by the Borrower or
any Lender, and the Administrative Agent shall not be responsible for or have
any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with any Loan Document, (ii) the
contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (iii) the performance or
observance of any of the covenants, agreements, or other terms and conditions
set forth in any Loan Document, (iv) the validity, enforceability, effectiveness
or genuineness of any Loan Document or any other agreement, instrument or
document, or (v) the satisfaction of any condition set forth in Article III or
elsewhere in any Loan Document, other than to confirm receipt of items expressly
required to be delivered to the Administrative Agent.
SECTION 9.3 Lack of Reliance on the Administrative Agent. Each of the
Lenders and the Swingline Lender acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other Lender and based on
such documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each of the Lenders and the
Swingline Lender also acknowledges that it will, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it has deemed appropriate, continue to make its own
decisions in the taking or not taking of any action under or based on this
Agreement, any related agreement or any document furnished hereunder or
thereunder.
SECTION 9.4 Certain Rights of the Administrative Agent. If the
Administrative Agent shall request instructions from the Required Lenders with
respect to any action or actions (including the failure to act) in connection
with this Agreement, the Administrative Agent shall be entitled to refrain from
such act or taking such act, unless and until it shall have received
instructions from the Required Lenders; and the Administrative Agent shall not
incur liability to any Person by reason of so refraining. Without limiting the
foregoing, no Lender shall have any right of action whatsoever against the
Administrative Agent as a result of the Administrative Agent acting or
refraining from acting hereunder in accordance with the instructions of the
Required Lenders where required by the terms of this Agreement.
SECTION 9.5 Reliance by Administrative Agent. The Administrative Agent
shall be entitled to rely upon, and shall not incur any liability for relying
upon, any notice, request, certificate, consent, statement, instrument, document
or other writing believed by it to be genuine and to have been signed, sent or
made by the proper Person. The Administrative Agent may also rely upon any
statement made to it orally or by telephone and believed by it to be made by the
proper Person and shall not incur any liability for relying thereon. The
Administrative Agent may consult with legal counsel, independent public
accountants and other experts selected by it and shall not be liable for any
action taken or not taken by it in accordance with the advice of such counsel,
accountants or experts.
SECTION 9.6 The Administrative Agent in its Individual Capacity. The bank
serving as the Administrative Agent shall have the same rights and powers under
this Agreement and any other Loan Document in its capacity as a Lender as any
other Lender and may exercise or refrain from
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exercising the same as though it were not the Administrative Agent; and the
terms "Lenders", "Required Lenders", "holders of Notes", or any similar terms
shall, unless the context clearly otherwise indicates, include the
Administrative Agent in its individual capacity. The bank acting as the
Administrative Agent and its Affiliates may accept deposits from, lend money to,
and generally engage in any kind of business with the Borrower or any Subsidiary
or Affiliate of the Borrower as if it were not the Administrative Agent
hereunder.
SECTION 9.7 Successor Administrative Agent.
(a) The Administrative Agent may resign at any time by giving notice
thereof to the Lenders and the Borrower. Upon any such resignation, the
Required Lenders shall have the right to appoint a successor
Administrative Agent, subject to the approval by the Borrower provided
that no Default or Event of Default shall exist at such time. If no
successor Administrative Agent - shall have been so appointed, and shall
have accepted such appointment within thirty (30) days after the retiring
Administrative Agent gives notice of resignation, then the retiring
Administrative Agent may, on behalf of the Lenders and the Issuing Bank,
appoint a successor Administrative Agent, which shall be a commercial bank
organized under the laws of the United States of America or any state
thereof or a bank which maintains an office in the United States, having a
combined capital and surplus of at least $5,000,000,000.
(b) Upon the acceptance of its appointment as the Administrative
Agent hereunder by a successor, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent, and the
retiring Administrative Agent shall be discharged from its duties and
obligations under this Agreement and the other Loan Documents. If within
forty-five (45) days after written notice is given of the retiring
Administrative Agent's resignation under this Section 9.7 no successor
Administrative Agent shall have been appointed and - shall have accepted
such appointment, then on such forty-fifth (45th) day (i) the retiring
Administrative Agent's resignation shall become effective, (ii) the
retiring Administrative Agent shall thereupon be discharged from its
duties and obligations under the Loan Documents, and (iii) the Required
Lenders shall thereafter perform all duties of the retiring Administrative
Agent under the Loan Documents until such time as the Required Lenders
appoint a successor Administrative Agent as provided above. After any
retiring Administrative Agent's resignation hereunder, the provisions of
this Article IX shall continue in effect for the benefit of such retiring
Administrative Agent and its representatives and agents in respect of any
actions taken or not taken by any of them while it was serving as the
Administrative Agent.
ARTICLE X
MISCELLANEOUS
SECTION 10.1 Notices.
(a) Except in the case of notices and other communications expressly
permitted to be given by telephone, all notices and other communications
to any party herein to be effective shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
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To the Borrower: AmSurg Corp.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
To the Administrative Agent: SunTrust Bank
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, 24th Floor
MC 3956
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Syndicated Finance
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
To the Issuing Bank: SunTrust Bank
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
To any other Lender: the address set forth in the
Administrative Questionnaire
Any party hereto may change its address or telecopy number for notices and
other communications hereunder by notice to the other parties hereto. All
such notices and other communications shall, when transmitted by overnight
delivery, or faxed, be effective when delivered for overnight (next-day)
delivery, or transmitted in legible form by facsimile machine,
respectively, or if mailed, upon receipt or rejection thereof by the
intended recipient or if delivered, upon delivery; provided, that notices
delivered to the Administrative Agent or
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the Issuing Bank shall not be effective until actually received or
rejected by such Person at its address specified in this Section 10.1.
(b) Documents required to be delivered pursuant to Sections 5.1 or
5.2 herein may be delivered electronically and if so delivered, shall be
deemed to have been delivered on the date on such documents are posted on
the Borrower's behalf on an Internet or intranet website, to which each
Lender and the Administrative Agent have access (whether a commercial,
third-party website, and whether sponsored by the Administrative Agent);
provided that: (i) the Borrower shall deliver paper copies of such
documents to the Administrative Agent until a written request to cease
delivering paper copies is given by the Administrative Agent; and (ii) the
Borrower shall notify the Administrative Agent of the posting of any such
documents and shall provide to the Administrative Agent copies of such
documents. Notwithstanding anything contained herein, in every instance
the Borrower shall be required to provide paper copies of the compliance
certificate required by Section 5.1(c) to the Administrative Agent. Except
for such compliance certificate, the Administrative Agent shall have no
obligation to request the delivery or to maintain copies of the documents
referred to above, and in any event shall have no responsibility to
monitor compliance by the Borrower with any such request for delivery, and
each Lender shall be solely responsible for requesting delivery to it or
maintaining its copies of such documents.
(c) Any agreement of the Administrative Agent, the Issuing Bank, and
the Lenders herein to receive certain notices by telephone or facsimile is
solely for the convenience and at the request of the Borrower. The
Administrative Agent, the Issuing Bank, and the Lenders shall be entitled
to rely on the authority of any Person purporting to be a Person
authorized by the Borrower to give such notice and the Administrative
Agent, the Issuing Bank, and Lenders shall not have any liability to the
Borrower or other Person on account of any action taken or not taken by
the Administrative Agent, the Issuing Bank, or the Lenders in reliance
upon such telephonic or facsimile notice. The obligation of the Borrower
to repay the Loans, the LC Exposure, and all other Obligations hereunder
shall not be affected in any way or to any extent by any failure of the
Administrative Agent, the Issuing Bank, and the Lenders to receive written
confirmation of any telephonic or facsimile notice or the receipt by the
Administrative Agent, the Issuing Bank, and the Lenders of a confirmation
which is at variance with the terms understood by the Administrative
Agent, the Issuing Bank, and the Lenders to be contained in any such
telephonic or facsimile notice.
SECTION 10.2 Waiver; Amendments.
(a) No failure or delay by the Administrative Agent, the Issuing
Bank, or any Lender in exercising any right or power hereunder or any
other Loan Document, and no course of dealing between the Borrower and the
Administrative Agent, the Issuing Bank, or any Lender, shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right
or power or any abandonment or discontinuance of steps to enforce such
right or power, preclude any other or further exercise thereof or the
exercise of any other right or power hereunder or thereunder. The rights
and remedies of the Administrative Agent, the Issuing Bank, and the
Lenders hereunder and under the other Loan Documents are cumulative and
are not exclusive of any rights or remedies provided by law. No waiver of
any provision of this Agreement or any other Loan Document or consent to
any departure by the Borrower
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therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) of this Section, and then such waiver or
consent shall be effective only in the specific instance and for the
purpose for which given. Without limiting the generality of the foregoing,
the making of a Loan or the issuance of a Letter of Credit shall not be
construed as a waiver of any Default or Event of Default, regardless of
whether the Administrative Agent, the Issuing Bank, or any Lender or the
Issuing Bank may have had notice or knowledge of such Default or Event of
Default at the time.
(b) No amendment or waiver of any provision of this Agreement or the
other Loan Documents, nor consent to any departure by the Borrower
therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Borrower and the Required Lenders or the
Borrower and the Administrative Agent with the consent of the Required
Lenders and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given; provided,
that no amendment or waiver shall: (i) increase the Commitment of any
Lender without the written consent of such Lender, (ii) reduce the
principal amount of any Loan or LC Disbursement or reduce the rate of
interest thereon, or reduce any fees payable hereunder, without the
written consent of each Lender affected thereby, (iii) postpone the date
fixed for any payment of any principal of, or interest on, any Loan or LC
Disbursement or interest thereon or any fees hereunder or reduce the
amount of, waive or excuse any such payment, or postpone the scheduled
date for the termination or reduction of any Commitment, without the
written consent of each Lender affected thereby, (iv) change any Section
in a manner that would alter the pro rata sharing of payments required
thereby, without the written consent of each Lender, (v) change any of the
provisions of this Section or the definition of "Required Lenders" or any
other provision hereof specifying the number or percentage of Lenders
which are required to waive, amend or modify any rights hereunder or make
any determination or grant any consent hereunder, without the consent of
each Lender; (vi) release any guarantor or limit the liability of any such
guarantor under any guaranty agreement; (vii) except as contemplated by
the Release Provision, release all or substantially all collateral
securing any of the Obligations; provided further, that no such agreement
shall amend, modify or otherwise - affect the rights, duties or
obligations of the Administrative Agent or the Issuing Bank without the
prior written consent of the Administrative Agent.
SECTION 10.3 Expenses; Indemnification.
(a) The Borrower shall pay (i) all reasonable, out-of-pocket costs
and expenses of the Administrative Agent and its Affiliates, including the
reasonable fees, charges and disbursements of counsel for the
Administrative Agent and its Affiliates, in connection with the
syndication of the credit facilities provided for herein, the preparation
and administration of the Loan Documents and any amendments, modifications
or waivers thereof (whether or not the transactions contemplated in this
Agreement or any other Loan Document shall be consummated) (ii) all
reasonable out-of-pocket expenses incurred by the Issuing Bank in
connection with the issuance, amendment, renewal or extension of any
Letter of Credit or any demand for payment thereunder and (iii) all
out-of-pocket costs and expenses (including, without limitation, the
reasonable fees, charges and disbursements of outside counsel) incurred by
the Administrative Agent, the Issuing Bank, or any Lender in connection
with the enforcement or protection of its rights in connection with this
Agreement, including its rights
- 66 -
under this Section, or in connection with the Loans made or any Letters of
Credit issued hereunder, including all such out-of-pocket expenses
(including, without limitation, the reasonable fees, charges and
disbursements of outside counsel) incurred during any workout,
restructuring or negotiations in respect of such Loans or Letters of
Credit.
(b) The Borrower shall indemnify the Administrative Agent, the
Arranger, the Issuing Bank, and each Lender, and each Related Party of any
of the foregoing (each, an "INDEMNITEE") against, and hold each of them
harmless from, any and all costs, losses, liabilities, claims, damages and
related expenses, including the reasonable fees, charges and disbursements
of any counsel for any Indemnitee, which may be incurred by or asserted
against any Indemnitee arising out of, in connection with or as a result
of (i) the execution or delivery of this Agreement or any other agreement
or instrument contemplated hereby, the performance by the parties hereto
of their respective obligations hereunder or the consummation of any of
the transactions contemplated hereby, (ii) any Loan or Letter of Credit or
any actual or proposed use of the proceeds therefrom (including any
refusal by the Issuing Bank to honor a demand for payment under a Letter
of Credit if the documents prepared in connection with such demand do not
strictly comply with the terms of such Letter of Credit), (iii) any actual
or alleged presence or release of Hazardous Materials on or from any
property owned by the Borrower or any Subsidiary or any Environmental
Liability related in any way to the Borrower or any Subsidiary or (iv) any
actual or prospective claim, litigation, investigation or proceeding
relating to any of the foregoing, whether based on contract, tort or any
other theory and regardless of whether any Indemnitee is a party thereto;
provided that the Borrower shall not be obligated to indemnify any
Indemnitee for any of the foregoing to the extent (as determined by a
court of competent jurisdiction) that such losses, claims, damages,
liabilities, or expenses resulted from such Indemnitee's gross negligence
or willful misconduct; and provided that the Borrower shall not be
obligated to indemnify any Indemnitee for Excluded Taxes, the costs and
expenses incurred in connection with the assignment of or participation in
any Lender's interest in the Loans or the LC Exposure, and attorney fees
incurred by any Lender other than SunTrust Bank. The provisions of this
paragraph in favor of any Indemnitee shall be in addition to any right
that such Indemnitee has at common law or otherwise.
(c) The Borrower shall pay, and hold the Administrative Agent, the
Issuing Bank, and each of the Lenders harmless from and against, any and
all present and future stamp, documentary, and other similar taxes with
respect to this Agreement and any other Loan Documents, any collateral
described therein, or any payments due thereunder, and save the
Administrative Agent, the Issuing Bank, and each Lender harmless from and
against any and all liabilities with respect to or resulting from any
delay or omission to pay such taxes.
(d) To the extent that the Borrower fails to pay any amount required
to be paid to the Administrative Agent, the Swingline Lender or the
Issuing Bank under clauses (a), (b) or (c) hereof, each Lender severally
agrees to pay to the Administrative Agent or the Issuing Bank such
Lender's Pro Rata Share (determined as of the time that the unreimbursed
expense or indemnity payment is sought) of such unpaid amount; provided,
that the unreimbursed expense or indemnified payment, claim, damage,
liability or related expense, as the case may be, was incurred by or
asserted against the Administrative Agent or the Issuing Bank in its
capacity as such.
- 67 -
(e) No Indemnitee shall be liable to Borrower or any of its
Subsidiaries for any damages arising from the use by other Persons of
information or other materials obtained through the internet, Intralinks,
or other similar information transmission systems in connection with this
Agreement.
(f) No Indemnitee shall have any liability (whether direct or
indirect, in contract or tort or otherwise) to the Borrower or any other
Loan Party arising out of, related to, or in connection with the
transactions contemplated by this Agreement or any Loan Documents, except
to the extent that such liability shall be finally judicially determined
by a court of competent jurisdiction to have resulted from the gross
negligence or willful misconduct of the Indemnitee.
(g) To the extent permitted by applicable law, the Borrower shall
not assert, and hereby waives, any claim against any Indemnitee, on any
theory of liability, for special, indirect, consequential or punitive
damages (as opposed to actual or direct damages) arising out of, in
connection with or as a result of, this Agreement or any agreement or
instrument contemplated hereby, the transactions contemplated therein, any
Loan or any Letter of Credit or the use of proceeds thereof.
(h) All amounts due under this Section shall be payable promptly
after written demand therefore.
(i) The provisions contained in this Section 10.3 shall survive and
continue beyond the repayment of the Loans and Obligations described
herein.
SECTION 10.4 Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns, except that the Borrower may not assign or transfer any of its
rights hereunder without the prior written consent of each Lender (and any
attempted assignment or transfer by the Borrower without such consent
shall be null and void).
(b) So long as no Default or Event of Default exists and is
continuing, any Lender may at any time assign to one or more assignees all
or a portion of its rights and obligations under this Agreement and the
other Loan Documents (including all or a portion of its Commitment and the
Loans and LC Exposure at the time owing to it); provided that (i) except
in the case of an assignment to a Lender or an Affiliate of a Lender, each
of the Borrower and the Administrative Agent (and, in the case of an
assignment of all or a portion of a Commitment or any Lender's obligations
in respect of its LC Exposure or Swingline Exposure, the Issuing Bank or
the Swingline Lender, as applicable) must give their prior written consent
(which consent shall not be unreasonably withheld or delayed), (ii) except
in the case of an assignment to a Lender or an Affiliate of a Lender or an
assignment of the entire amount of the assigning Lender's Commitment
hereunder, the amount of the Commitment of the assigning Lender subject to
each such assignment (determined as of the date the Assignment and
Acceptance with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $1,000,000 unless the
Borrower and the
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Administrative Agent shall otherwise consent, (iii) each partial
assignment shall be made as an assignment of a proportionate part of all
the assigning Lender's rights and obligations under this Agreement and the
other Loan Documents, (iv) the assigning Lender and the assignee shall
execute and deliver to the Administrative Agent an Assignment and
Acceptance, together with a processing and recordation fee payable by the
assigning Lender or the assignee (as determined between such Persons) in
an amount equal to $3,500.00, and (v) such assignee, if it is not a
Lender, shall deliver a duly completed Administrative Questionnaire to the
Administrative Agent; provided that any consent of the Borrower otherwise
required hereunder shall not be required if an Event of Default has
occurred and is continuing. Upon the execution and delivery of the
Assignment and Acceptance and payment by such assignee to the assigning
Lender of an amount equal to the purchase price agreed between such
Persons, such assignee shall become a party to this Agreement and any
other Loan Documents to which such assigning Lender is a party and, to the
extent of such interest assigned by such Assignment and Acceptance, shall
have the rights and obligations of a Lender under this Agreement, and the
assigning Lender shall be released from its obligations hereunder to a
corresponding extent (and, in the case of an Assignment and Acceptance
covering all of the assigning Lender's rights and obligations under this
Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 2.16, 2.17 and 2.18 and 10.3).
Upon the consummation of any such - assignment hereunder, the assigning
Lender, the Administrative Agent and the Borrower shall make appropriate
arrangements to have new Notes issued if so requested by either or both
the assigning Lender or the assignee. Any assignment or other transfer by
a Lender that does not fully comply with the terms of this clause (b)
shall be treated for purposes of this Agreement as a sale of a
participation pursuant to clause (c) below.
(c) Any Lender may at any time, without the consent of the Borrower,
the Issuing Bank, the Swingline Lender or the Administrative Agent, sell
participations to one or more banks or other entities (a "PARTICIPANT") in
all or a portion of such Lender's rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans
owing to it and its LC Exposure); provided, that (i) such Lender's
obligations under this Agreement shall remain unchanged, (ii) such Lender
shall remain solely responsible to the other parties hereto for the
performance of its obligations hereunder, and (iii) the Borrower, the
Issuing Bank, the Swingline Lender, the Administrative Agent, and the
other Lenders shall continue to deal solely and directly with such Lender
in connection with such Lender's rights and obligations under this
Agreement and the other Loan Documents. Any agreement between such Lender
and the Participant with respect to such participation shall provide that
such Lender shall retain the sole right and responsibility to enforce this
Agreement and the other Loan Documents and the right to approve any
amendment, modification or waiver of this Agreement and the other Loan
Documents; provided, that such participation agreement may provide that
such Lender will not, without the consent of the Participant, agree to any
amendment, modification or waiver of this Agreement described in the first
proviso of Section 10.2(b) that affects the Participant. The Borrower
agrees that each Participant shall be entitled to the benefits of Sections
2.16, 2.17 and 2.18 to the same extent as if it were a Lender hereunder
and had acquired its interest by assignment pursuant to paragraph (b);
provided, that no Participant shall be entitled to receive any greater
payment under Section 2.16 or 2.18 than the applicable Lender would have
been entitled to receive with respect to the participation sold to such
Participant unless the sale of such participation is made with the
Borrower's prior
- 69 -
written consent. To the extent permitted by law, the Borrower agrees that
each Participant shall be entitled to the benefits of Section 2.19 as
though it were a Lender, provided, that such Participant agrees to share
with the Lenders the proceeds thereof in accordance with Section 2.19 as
fully as if it were a Lender hereunder.
(d) Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement and its Notes (if
any) to secure its obligations to a Federal Reserve Bank without complying
with this Section; provided, that no such pledge or assignment shall
release a Lender from any of its obligations hereunder or substitute any
such pledgee or assignee for such Lender as a party hereto.
SECTION 10.5 Governing Law; Jurisdiction; Consent to Service of Process.
(a) This Agreement and the other Loan Documents shall be construed
in accordance with and be governed by the law (without giving effect to
the conflict of law principles thereof) of the State of Tennessee.
(b) The Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the non-exclusive jurisdiction of the United
States District Court of the Middle District of Tennessee, and of any
state court of the State of Tennessee, and any appellate court from any
thereof, in any action or proceeding arising out of or relating to this
Agreement or any other Loan Document or the transactions contemplated
hereby or thereby, or for recognition or enforcement of any judgment, and
each of the parties hereto hereby irrevocably and unconditionally agrees
that all claims in respect of any such action or proceeding may be heard
and determined in such Tennessee state court or , to the extent permitted
by applicable law, such Federal court. Each of the parties hereto agrees
that a final judgment in any such action or proceeding shall be conclusive
and may be enforced in other jurisdictions by suit on the judgment or in
any other manner provided by law. Nothing in this Agreement or any other
Loan Document shall affect any right that the Administrative Agent, the
Issuing Bank, or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement or any other Loan Document against
the Borrower or its properties in the courts of any jurisdiction.
(c) The Borrower irrevocably and unconditionally waives any
objection which it may now or hereafter have to the laying of venue of any
such suit, action or proceeding described in paragraph (b) of this Section
and brought in any court referred to in paragraph (b) of this Section.
Each of the parties hereto irrevocably waives, to the fullest extent
permitted by applicable law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to the service
of process in the manner provided for notices in Section 10.1. Nothing in
this Agreement or in any other Loan Document will affect the right of any
party hereto to serve process in any other manner permitted by law.
SECTION 10.6 WAIVER OF JURY TRIAL. EACH PARTY HERETO IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT
- 70 -
MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY
ARISING OUT OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER, AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 10.7 Right of Setoff. In addition to any rights now or hereafter
granted under applicable law and not by way of limitation of any such rights,
each Lender and the Issuing Bank shall have the right, at any time or from time
to time upon the occurrence and during the continuance of an Event of Default,
without prior notice to the Borrower, any such notice being expressly waived by
the Borrower to the extent permitted by applicable law, to set off and apply
against all deposits (general or special, time or demand, provisional or final)
of the Borrower at any time held or other obligations at any time owing by such
Lender and the Issuing Bank to or for the credit or the account of the Borrower
against any and all Obligations held by such Lender or the Issuing Bank, as the
case may be, irrespective of whether such Lender or the Issuing Bank shall have
made demand hereunder and although such Obligations may be unmatured. Each
Lender and the Issuing Bank agree promptly to notify the Administrative Agent
and the Borrower after any such set-off and any application made by such Lender
and the Issuing Bank, as the case may be; provided, that the failure to give
such notice shall not affect the validity of such set-off and application.
SECTION 10.8 Counterparts; Integration. This Agreement may be executed by
one or more of the parties to this Agreement on any number of separate
counterparts (including by telecopy), and all of said counterparts taken
together shall be deemed to constitute one and the same instrument. This
Agreement, the other Loan Documents, and any separate letter agreement(s)
relating to any fees payable to the Administrative Agent constitute the entire
agreement among the parties hereto and thereto regarding the subject matters
hereof and thereof and supersede all prior agreements and understandings, oral
or written, regarding such subject matters.
SECTION 10.9 Survival. All covenants, agreements, representations and
warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any Loans
and issuance of any Letters of Credit, regardless of any investigation made by
any such other party or on its behalf and notwithstanding that the
Administrative Agent or the Issuing Bank or any Lender may have had notice or
knowledge of any Default or incorrect representation or warranty at the time any
credit is extended hereunder, and shall continue in full force and effect as
long as the principal of or any accrued interest on any Loan or any fee or any
other amount payable under this Agreement is outstanding and unpaid or any
Letter of Credit is outstanding and so long as the Commitments have not expired
or terminated. The provisions of Sections 2.17, 2.18, 2.19, and 10.3 and Article
IX shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the
Loans, the expiration or termination of the Letters of Credit and the
Commitments or the termination of this Agreement or any provision hereof. All
- 71 -
representations and warranties made herein, in the certificates, reports,
notices, and other documents delivered pursuant to this Agreement shall survive
the execution and delivery of this Agreement and the other Loan Documents, and
the making of the Loans and the issuance of the Letters of Credit.
SECTION 10.10 Severability. Any provision of this Agreement or any other
Loan Document held to be illegal, invalid or unenforceable in any jurisdiction,
shall, as to such jurisdiction, be ineffective to the extent of such illegality,
invalidity or unenforceability without affecting the legality, validity or
enforceability of the remaining provisions hereof or thereof; and the
illegality, invalidity or unenforceability of a particular provision in a
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
SECTION 10.11 Confidentiality. Each of the Administrative Agent, the
Issuing Bank, and each Lender agrees to take normal and reasonable precautions
to maintain the confidentiality of any information designated in writing as
confidential and provided to it by the Borrower or any Subsidiary, except that
such information may be disclosed (i) to any Related Party of the Administrative
Agent, the Issuing Bank, or any such Lender, including without limitation
accountants, legal counsel and other advisors, (ii) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process,
(iii) to the extent requested by any regulatory agency or authority, (iv) to the
extent that such information becomes publicly available other than as a result
of a breach of this Section, or which becomes available to the Administrative
Agent, the Issuing Bank, any Lender or any Related Party of any of the foregoing
on a nonconfidential basis from a source other than the Borrower, (v) in
connection with the exercise of any remedy hereunder or any suit, action or
proceeding relating to this Agreement or the enforcement of rights hereunder,
(vi) subject to provisions substantially similar to this Section 10.11, to any
actual or prospective assignee or Participant, or (vii) with the consent of the
Borrower. Any Person required to maintain the confidentiality of any information
as provided for in this Section shall be considered to have complied with its
obligation to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such information as such Person would accord its
own confidential information.
SECTION 10.12 Interest Rate Limitation. Notwithstanding anything herein to
the contrary, if at any time the interest rate applicable to any Loan, together
with all fees, charges and other amounts which may be treated as interest on
such Loan under applicable law (collectively, the "CHARGES"), shall exceed the
maximum lawful rate of interest (the "MAXIMUM RATE") which may be contracted
for, charged, taken, received or reserved by a Lender holding such Loan in
accordance with applicable law, the rate of interest payable in respect of such
Loan hereunder, together with all Charges payable in respect thereof, shall be
limited to the Maximum Rate and, to the extent lawful, the interest and Charges
that would have been payable in respect of such Loan but were not payable as a
result of the operation of this Section shall be cumulated and the interest and
Charges payable to such Lender in respect of other Loans or periods shall be
increased (but not above the Maximum Rate therefore) until such cumulated
amount, together with interest thereon at the Federal Funds Rate to the date of
repayment, shall have been received by such Lender.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
BORROWER:
AMSURG CORP.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇
Title: Executive Vice President,
Chief Financial Officer and Secretary
LENDER:
SUNTRUST BANK
as Administrative Agent, as Issuing Bank, and
as a Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------------
Title: Managing Director
---------------------------------------
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BANK OF AMERICA, N.A.
as Syndication Agent and as a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Title: V.P.
-----------------------------------
U.S. BANK, NATIONAL ASSOCIATION
as Co-Documentation Agent and as a Lender
By: /s/
--------------------------------------
Title: Regional President
-----------------------------------
▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇ BANK, N.A.
as Co-Documentation Agent and as a Lender
By: /s/
--------------------------------------
Title: Senior Vice President
-----------------------------------
BRANCH BANKING AND TRUST COMPANY
as Co-Documentation Agent and as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Title: Senior Vice President
-----------------------------------
KEY BANK NATIONAL ASSOCIATION
By: /s/ ▇.▇. ▇▇▇▇▇▇
--------------------------------------
Title: Senior Vice President
-----------------------------------
LA SALLE BANK MIDWEST, N.A.
By: /s/
--------------------------------------
Title: AVP
-----------------------------------
NATIONAL CITY BANK
By: /s/ ▇▇▇▇▇ ▇▇▇▇
--------------------------------------
Title: Assistant Vice President
-----------------------------------
REGIONS BANK
By: /s/
--------------------------------------
Title: SVP
-----------------------------------
AMSOUTH BANK
By: /s/
--------------------------------------
Title: AVP
-----------------------------------
THE BANK OF NASHVILLE
By: /s/
--------------------------------------
Title: Vice President
-----------------------------------
FIRST TENNESSEE BANK
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Title: Vice President
-----------------------------------
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EXHIBIT A
[FORM OF]
REVOLVING CREDIT NOTE
$___________________ ______________ __, ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
FOR VALUE RECEIVED, the undersigned, AMSURG CORP., a Tennessee corporation
(the "BORROWER"), hereby promises to pay to the order of _______________________
(the "LENDER") or its registered assigns, at the Payment Office of the
Administrative Agent, on the Maturity Date, as defined in the Third Amended and
Restated Revolving Credit Agreement dated as of July ___, 2006 (as the same may
be amended, supplemented, or otherwise modified from time to time, the "CREDIT
AGREEMENT") among the Borrower, the Lenders from time to time party thereto, and
SunTrust Bank, as Administrative Agent for the Lenders, the lesser of the
principal sum of up to_________________________________ and No/100 Dollars
($______________), or so much thereof advanced as Revolving Loans by the Lender
to the Borrower pursuant to the Credit Agreement, outstanding from time to time,
in lawful money of the United States of America in immediately available funds,
and to pay interest from the date hereof on the principal amount thereof from
time to time outstanding, in like funds, at said office, at the rate or rates
per annum and payable on such dates as provided in the Credit Agreement. In
addition, should legal action or an attorney-at-law be utilized to collect any
amount due hereunder, the Borrower further promises to pay all costs of
collection, including the reasonable attorneys' fees of the Administrative Agent
and the Lender. Terms not defined herein shall have the meanings ascribed to
such terms in the Credit Agreement.
The Borrower promises to pay interest, on demand, on any overdue principal
and, to the extent permitted by law, overdue interest from their due dates at a
rate or rates provided in the Credit Agreement.
All borrowings evidenced by this Revolving Credit Note and all payments
and prepayments of the principal hereof and the date thereof shall be endorsed
by the holder hereof on the schedule attached hereto and made a part hereof or
on a continuation thereof which shall be attached hereto and made a part hereof,
or otherwise recorded by such holder in its internal records; provided, that the
failure of the holder hereof to make such a notation or any error in such
notation shall not affect the obligations of the Borrower to make the payments
of principal and interest in accordance with the terms of this Revolving Credit
Note and the Credit Agreement.
This Revolving Credit Note is issued in connection with, and is entitled
to the benefits of, the Credit Agreement which, among other things, contains
provisions for the acceleration of the maturity hereof upon the happening of
certain events, for prepayment of the principal hereof prior to the maturity
hereof and for the amendment or waiver of certain provisions of the Credit
Agreement, all upon the terms and conditions therein specified. THIS REVOLVING
CREDIT NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF
THE STATE OF TENNESSEE AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
1
ENTERED INTO as of the date first written above.
AMSURG CORP.
By: _____________________________
Title: __________________________
2
LOANS AND PAYMENTS
Unpaid
Principal Name of Person
Amount and Payments of Balance of Making
Date Type of Loan Principal Note Notation
---- ------------ ----------- ---------- --------------
____ ____________ ___________ __________ ______________
____ ____________ ___________ __________ ______________
____ ____________ ___________ __________ ______________
____ ____________ ___________ __________ ______________
____ ____________ ___________ __________ ______________
____ ____________ ___________ __________ ______________
____ ____________ ___________ __________ ______________
____ ____________ ___________ __________ ______________
____ ____________ ___________ __________ ______________
____ ____________ ___________ __________ ______________
____ ____________ ___________ __________ ______________
____ ____________ ___________ __________ ______________
____ ____________ ___________ __________ ______________
____ ____________ ___________ __________ ______________
____ ____________ ___________ __________ ______________
____ ____________ ___________ __________ ______________
____ ____________ ___________ __________ ______________
3
EXHIBIT B
[FORM OF]
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Third Amended and Restated Revolving Credit
Agreement dated as of July ____, 2006 (as amended and in effect on the date
hereof, the "CREDIT AGREEMENT"), among AMSURG CORP., a Tennessee corporation,
the Lenders from time to time party thereto and SunTrust Bank, as Administrative
Agent for the Lenders. Terms defined in the Credit Agreement are used herein
with the same meanings.
The Assignor hereby sells and assigns, without recourse, to the Assignee
designated below, and the Assignee hereby purchases and assumes, without
recourse, from the Assignor, effective as of the Assignment Date set forth
below, the interests set forth below (the "ASSIGNED INTEREST") in the Assignor's
rights and obligations under the Credit Agreement, including, without
limitation, the interests set forth below in the Revolving Commitment of the
Assignor on the Assignment Date and Revolving Loans owing to the Assignor which
are outstanding on the Assignment Date, together with participations in the LC
Exposure and Swingline Exposure of the Assignor on the Assignment Date, but
excluding accrued interest and fees to and excluding the Assignment Date. The
Assignee hereby acknowledges receipt of a copy of the Credit Agreement. From and
after the Assignment Date (i) the Assignee shall be a party to and be bound by
the provisions of the Credit Agreement and, to the extent of the Assigned
Interest, have the rights and obligations of a Lender thereunder and (ii) the
Assignor shall, to the extent of the Assigned Interest, relinquish its rights
and be released from its obligations under the Credit Agreement.
This Assignment and Acceptance is being delivered to the Administrative
Agent together with (i) if the Assignee is a Foreign Lender, any documentation
required to be delivered by the Assignee pursuant to Section 2.19(e) of the
Credit Agreement, duly completed and executed by the Assignee, and (ii) if the
Assignee is not already a Lender under the Credit Agreement, an Administrative
Questionnaire in the form supplied by the Administrative Agent, duly completed
by the Assignee. The Assignee shall pay the fee payable to the Administrative
Agent pursuant to Section 10.4(b) of the Credit Agreement.
This Assignment and Acceptance shall be governed by and construed in accordance
with the laws of the State of Tennessee.
Date of Assignment: _______________________________________
Legal Name of Assignor: ___________________________________
Legal Name of Assignee: ___________________________________
Assignee's Address for Notices: ___________________________
___________________________
___________________________
___________________________
1
Effective Date of Assignment: _____________________________
("Assignment Date"): _____________________________________
Principal Amount Percentage Assigned of
Facility Assigned Revolving
-------- ---------------- -----------------------
Commitment (set forth, to at least 8
decimals, as a percentage
of the aggregate Revolving
Commitments of all
Lenders thereunder)
Revolving Loans: $ ___________ ______________%
The terms set forth above are hereby agreed to as of this
____________________, 20____:
[NAME OF ASSIGNOR], as Assignor
By: ____________________________________
Title: _________________________________
[NAME OF ASSIGNEE], as Assignee
By: ____________________________________
Title: _________________________________
The undersigned hereby consents to the within assignment as of this
____________________, 20____:
AMSURG CORP. SUNTRUST BANK, as
Administrative Agent
By: ______________________________ By: ___________________________________
Title: ___________________________ Title: ________________________________
2
EXHIBIT C
[FORM OF]
SECOND AMENDED AND RESTATED SUBSIDIARY GUARANTEE AGREEMENT
ENTERED INTO by and between the undersigned Wholly Owned Subsidiaries
(each such subsidiary individually, a "GUARANTOR" and collectively the
"GUARANTORS") of AMSURG CORP., a Tennessee corporation (the "BORROWER") in favor
of SUNTRUST BANK, a Georgia state banking corporation as Administrative Agent
(the "ADMINISTRATIVE AGENT"), for the ratable benefit of the Lenders as defined
in the Credit Agreement referred to below, as of July ___, 2006.
WITNESSETH:
WHEREAS, pursuant to the 2005 Credit Agreement (as such term is defined in
the Credit Agreement described below), the Wholly Owned Subsidiaries of Borrower
guaranteed the obligations thereby pursuant to an Amended and Restated
Subsidiary Guarantee Agreement executed contemporaneously therewith and pursuant
to supplements executed subsequent thereto; and as described in more detail
below, the Wholly Owned Subsidiaries desire to amend and restate said Amended
and Restated Subsidiary Guarantee Agreement in connection with the execution of
the Credit Agreement described below pursuant to the terms hereof;
WHEREAS, reference is made to the Third Amended and Restated Credit
Agreement dated July ___, 2006 (as amended, supplemented or otherwise modified
from time to time, the "CREDIT AGREEMENT"), among the Borrower, the lenders from
time to time party thereto (the "LENDERS") and SunTrust Bank, as Administrative
Agent for the Lenders, Swingline Lender and Issuing Bank (in such capacity, the
"ISSUING BANK");
WHEREAS, capitalized terms used in this Second Amended and Restated
Subsidiary Guarantee Agreement and not defined herein shall have the meanings
assigned to such terms in the Credit Agreement;
WHEREAS, the Lenders have agreed to make Loans to the Borrower, and the
Issuing Bank has agreed to issue Letters of Credit for the account of the
Borrower, pursuant to, and upon the terms and subject to the conditions
specified in, the Credit Agreement;
WHEREAS, each of the Guarantors is a Wholly Owned Subsidiary of the
Borrower and acknowledges that it will derive substantial benefit from the
making of the Loans by the Lenders, and the issuance of the Letters of Credit by
the Issuing Bank.
WHEREAS, the obligations of the Lenders to make Loans and of the Issuing
Bank to issue Letters of Credit are conditioned on, among other things, the
execution and delivery by the Guarantors of a Second Amended and Restated
Subsidiary Guarantee Agreement in the form hereof.
WHEREAS, as consideration therefor and in order to induce the Lenders to
make Loans and the Issuing Bank to issue Letters of Credit, the Guarantors are
willing to execute this Subsidiary Guarantee Agreement.
1
WHEREAS, the Borrower may from time to time enter into agreements, devices
or arrangements with any Lender, or any Affiliate thereof, providing for
payments which are related to fluctuations of interest rates, exchange rates or
forward rates, including, but not limited to, dollar-denominated or
cross-currency interest rate exchange agreements, forward currency exchange
agreements, interest rate cap or collar protection agreements, forward rate
currency or interest rate options, puts and warrants (each, a "HEDGING
AGREEMENT");
WHEREAS, it is a requirement of Section 3.1 and Section 5.10(a) of the
Credit Agreement that each Wholly Owned Subsidiary (as such term is defined in
the Credit Agreement) shall execute and deliver a guarantee of this form,
whereby each Guarantor shall guarantee the payment when due of (i) principal,
interest and other amounts that shall be at any time payable by the Borrower to
the Lenders and Administrative Agent under the Credit Agreement, the Revolving
Credit Notes, the Swingline Note, the LC Exposure, and the other Loan Documents,
and (ii) any and all obligations of the Borrower under (A) any and all Hedging
Agreements, and (B) any and all cancellations, buy backs, reversals,
terminations or assignment of any Hedging Agreement (the "HEDGING OBLIGATIONS");
and
WHEREAS, in consideration of the financial and other support that the
Borrower has provided, and such financial and other support as the Borrower may
in the future provide to each Guarantor, the Guarantors are willing to guarantee
the Borrower's obligations under the Credit Agreement, the Revolving Credit
Notes, and the other Loan Documents;
NOW, THEREFORE, in consideration of the mutual premises and covenants
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. Definitions. Terms not otherwise defined herein shall have the
same meanings as ascribed to them in the Credit Agreement.
SECTION 2. Representations and Warranties. Each Guarantor represents and
warrants (which representations and warranties shall be deemed to have been
renewed upon each Advance pursuant to or under the Credit Agreement) that:
(a) It (i) is a corporation duly organized or formed, validly
existing and in good standing under the laws of its jurisdiction of
organization or formation; (ii) has all requisite power, and has all
material governmental licenses, authorizations, consents and approvals
necessary to own its assets and carry on its business as now being or as
proposed to be conducted, and (iii) is qualified to do business in all
jurisdictions in which the nature of the business conducted by it makes
such qualification necessary and where failure so to qualify would have a
materially adverse effect.
(b) It has all necessary power and authority to execute, deliver and
perform its obligations under this Guarantee; the execution, delivery and
performance of this Guarantee have been duly authorized by all necessary
organizational action; and this Guarantee has been duly and validly
executed and delivered by it and constitutes its legal, valid and binding
obligation, enforceable in accordance with its terms.
(c) Neither the execution and delivery by it of this Guarantee nor
compliance with the terms and provisions hereof will conflict with or
result in a breach of, or require
2
any consent under, organizational documents or any material applicable law
or regulation or any order, writ, injunction or decree of any court or
governmental authority or agency, or any material contractual obligation
to which it is a party or by which it is bound or to which it is subject,
or constitute a default under any such material contractual obligation, or
result in the creation or imposition of any Lien upon any of its revenues
or assets pursuant to the terms of any such material contractual
obligation.
SECTION 3. Covenants. Each Guarantor covenants that so long as any Lender
has any commitment to Borrower outstanding under the Credit Agreement, or any
obligation remains to be performed or any amount remains payable by Borrower to
Lender under the Credit Agreement, any Revolving Credit Notes, the Swingline
Note, any LC Exposure, or other Loan Documents, each Guarantor shall comply with
all covenants contained in this Guarantee and all those covenants in the Credit
Agreement applicable to any Guarantor that, if necessary, will enable the
Borrower to fully comply with those covenants and agreements set forth in the
Credit Agreement.
SECTION 4. Guarantee. Each Guarantor unconditionally guarantees, jointly
with the other Guarantors and severally, as a primary obligor and not merely as
a surety, (a) the due and punctual payment of (i) the principal of and premium,
if any, and interest (including interest accruing during the pendency of any
bankruptcy, insolvency, receivership or other similar proceeding, regardless of
whether allowed or allowable in such proceeding) on the Loans, when and as due,
whether at maturity, by acceleration, upon one or more dates set for prepayment
or otherwise, (ii) each payment required to be made by the Borrower under the
Credit Agreement in respect of any Letter of Credit, when and as due, including
payments in respect of reimbursement or disbursements, interest thereon and
obligations to provide cash collateral, and (iii) all other monetary
obligations, including fees, costs, expenses and indemnities, whether primary,
secondary, direct, contingent, fixed or otherwise (including monetary
obligations incurred during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding), of the Loan Parties to the Administrative Agent
and the Lenders under the Credit Agreement and the other Loan Documents, (b) the
due and punctual performance of all covenants, agreements, obligations and
liabilities of the Loan Parties under or pursuant to the Credit Agreement and
the other Loan Documents; and (c) the due and punctual payment and performance
of all obligations of the Borrower, monetary or otherwise, under any Hedging
Agreement mitigating any interest rate risk under the Credit Agreement, entered
into with a counterparty that was a Lender or an Affiliate of a Lender at the
time any such Hedging Agreement is entered into (all the monetary and other
obligations referred to in the preceding clauses (a) through (c) being
collectively called the "Obligations"). Each Guarantor further agrees that the
Obligations may be extended or renewed, in whole or in part, without notice to
or further assent from it, and that it will remain bound upon its guarantee
notwithstanding any extension or renewal of any Obligation.
SECTION 5. Obligations Not Waived. To the fullest extent permitted by
applicable law, each Guarantor waives presentment to, demand of payment from and
protest to the Borrower of any of the Obligations, and also waives notice of
acceptance of its guarantee and notice of protest for nonpayment. To the fullest
extent permitted by applicable law, the obligations of each Guarantor hereunder
shall not be affected by (a) the failure of the Administrative Agent or any
Lender to assert any claim or demand or to enforce or exercise any right or
remedy against the Borrower or any other Guarantor under the provisions of the
Credit Agreement, any other Loan Document or otherwise, (b) any rescission,
waiver, amendment or modification of, or any release
3
from any of the terms or provisions of, this Agreement, any other Loan Document,
any Guarantee or any other agreement, including with respect to any other
Guarantor under this Agreement, or (c) the failure to perfect any security
interest in, or the release of, any of the security held by or on behalf of the
Administrative Agent or any Lender.
SECTION 6. Security. Each of the Guarantors authorizes the Administrative
Agent and each of the Lenders to (a) take and hold security for payment of this
Guarantee and the Obligations and exchange, enforce, waive and release any such
security, (b) apply such security and direct the order or manner of sale thereof
as they in their sole discretion may determine and (c) release or substitute any
one or more endorsees, other guarantors of other obligors.
SECTION 7. Guarantee of Payment. Each Guarantor further agrees that its
guarantee constitutes a guarantee of payment when due and not of collection, and
waives any right to require that any resort be had by the Administrative Agent
or any Lender to any of the security held for payment of the Obligations or to
any balance of any deposit account or credit on the books of the Administrative
Agent or any Lender in favor of the Borrower or any other person.
SECTION 8. No Discharge or Diminishment of Guarantee. The obligations of
each Guarantor hereunder shall not be subject to any reduction, limitation,
impairment or termination for any reason (other than the indefeasible payment in
full in cash of the Obligations), including any claim of waiver, release,
surrender, alteration or compromise of any of the Obligations, and shall not be
subject to any defense or setoff, counterclaim, recoupment or termination
whatsoever by reason of the invalidity, illegality or unenforceability of the
Obligations or otherwise. Without limiting the generality of the foregoing, the
obligations of each Guarantor hereunder shall not be discharged or impaired or
otherwise affected by the failure of the Administrative Agent or any Lender to
assert any claim or demand or to enforce any remedy under the Credit Agreement,
any other Loan Document or any other agreement, by any waiver or modification of
any provision of any thereof, by any default, failure or delay, willful or
otherwise, in the performance of the Obligations, or to the maximum extent
permitted by applicable law, by any other act or omission that may or might in
any manner or to the extent vary the risk of any Guarantor or that would
otherwise operate as a discharge of each Guarantor as a matter of law or equity
(other than the indefeasible payment in full in cash of all the Obligations).
SECTION 9. Defenses of Borrower Waived. To the fullest extent permitted by
applicable law, each Guarantor waives any defense based on or arising out of any
defense of the Borrower or the unenforceability of the Obligations or any part
thereof from any cause, or the cessation from any cause of the liability of the
Borrower, other than the final and indefeasible payment in full in cash of the
Obligations. The Administrative Agent and the Lenders may, at their election,
foreclose on any security held by one or more of them by one or more judicial or
nonjudicial sales, accept an assignment of any such security in lieu of
foreclosure, compromise or adjust any part of the Obligations, make any other
accommodation with the Borrower or any other guarantor, without affecting or
impairing in any way the liability of any Guarantor hereunder except to the
extent the Obligations have been fully, finally and indefeasibly paid in cash.
Pursuant to applicable law, each Guarantor waives any defense arising out of any
such election even though such election operates, pursuant to applicable law, to
impair or to extinguish any right of reimbursement or subrogation or other right
or remedy of such Guarantor against the Borrower or any other Guarantor or
guarantor, as the case may be, or any security.
4
SECTION 10. Agreement to Pay; Subordination. In furtherance of the
foregoing and not in limitation of any other right that the Administrative Agent
or any Lender has at law or in equity against any Guarantor by virtue hereof,
upon the failure of the Borrower or any other Loan Party to pay any Obligation
when and as the same shall become due, whether at maturity, by acceleration,
after notice of prepayment or otherwise, each Guarantor hereby promises to and
will forthwith pay, or cause to be paid, to the Administrative Agent for the
benefit of the Lenders in cash the amount of such unpaid Obligations. Upon
payment by any Guarantor of any sums to the Administrative Agent, all rights of
such Guarantor against the Borrower arising as a result thereof by way of right
of subrogation, contribution, reimbursement, indemnity or otherwise shall in all
respects be subordinate and junior in right of payment to the prior indefeasible
payment in full in cash of all the Obligations. In addition, any indebtedness of
the Borrower now or hereafter held by any Guarantor is hereby subordinated in
right of payment to the prior payment in full in cash of the Obligations. If any
amount shall erroneously be paid to any Guarantor on account of (i) such
subrogation, contribution, reimbursement, indemnity or similar right or (ii) any
such indebtedness of the Borrower, such amount shall be held in trust for the
benefit of the Administrative Agent and the Lenders and shall forthwith be paid
to the Administrative Agent to be credited against the payment of the
Obligations, whether matured or unmatured, in accordance with the terms of the
Loan Documents.
SECTION 11. Information. Each Guarantor assumes all responsibility for
being and keeping itself informed of the Borrower's financial condition and
assets, and of all other circumstances bearing upon the risk of nonpayment of
the Obligations and the nature, scope and extent of the risks that such
Guarantor assumes and incurs hereunder, and agrees that none of the
Administrative Agent or the Lenders will have any duty to advise any of the
Guarantors of information known to it or any of them regarding such
circumstances or risks.
SECTION 12. Representations and Warranties. Each Guarantor represents and
warrants as to itself that all representations and warranties relating to it (as
a Subsidiary of the Borrower) contained in the Credit Agreement are true and
correct in all material respects.
SECTION 13. Termination. The guarantees made hereunder (a) shall terminate
when all the Obligations have been paid in full in cash and the Lenders have no
further commitment to lend under the Credit Agreement, the LC Exposure has been
reduced to zero and the Issuing Bank has no further obligation to issue Letters
of Credit under the Credit Agreement and (b) shall continue to be effective or
be reinstated, as the case may be, if and to the extent that any payment, or any
part thereof, of any Obligation is rescinded or must otherwise be restored by
any Lender or any Guarantor upon the bankruptcy or reorganization of the
Borrower, any Guarantor or otherwise. In connection with the foregoing, the
Administrative Agent shall execute and deliver to such Guarantor or Guarantor's
designee, at such Guarantor's expense, any documents or instruments which such
Guarantor shall reasonably request from time to time to evidence such
termination and release.
SECTION 14. Binding Effect; Several Agreement; Assignments. Whenever in
this Agreement any of the parties hereto is referred to, such reference shall be
deemed to include the successors and assigns of such party; and all covenants,
promises and agreements by or on behalf of the Guarantors that are contained in
this Agreement shall bind and inure to the benefit of each party hereto and
their respective successors and assigns. This Agreement shall become effective
as to any Guarantor when a counterpart hereof executed
5
on behalf of such Guarantor shall have been delivered to the Administrative
Agent, and a counterpart hereof shall have been executed on behalf of the
Administrative Agent, and thereafter shall be binding upon such Guarantor and
the Administrative Agent and their respective successors and assigns, and shall
inure to the benefit of such Guarantor, the Administrative Agent and the
Lenders, and their respective successors and assigns, except that (i) no
Guarantor shall have the right to assign its rights or obligations hereunder or
any interest herein (and any such attempted assignment shall be void) and (ii)
any assignment by the Administrative Agent must be in accordance with the Credit
Agreement. If all of the capital stock of a Guarantor is sold, transferred or
otherwise disposed of pursuant to a transaction permitted by the Credit
Agreement, such Guarantor shall be released from its obligations under this
Agreement without further action. This Agreement shall be construed as a
separate agreement with respect to each Guarantor and may be amended, modified,
supplemented, waived or released with respect to any Guarantor without the
approval of any other Guarantor and without affecting the obligations of any
other Guarantor hereunder.
SECTION 15. Waivers; Amendment. (a) No failure or delay of the
Administrative Agent in exercising any power or right hereunder shall operate as
a waiver thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any
other right or power. The rights of the Administrative Agent hereunder and of
the Lenders under the other Loan Documents are cumulative and are not exclusive
of any rights or remedies that they would otherwise have. No waiver of any
provision of this Agreement or consent to any departure by any Guarantor
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) below, and then such waiver and consent shall be effective only in
the specific instance and for the purpose for which given. No notice or demand
on any Guarantor in any case shall entitle such Guarantor to any other or
further notice in similar or other circumstances.
Neither this Agreement nor any provision hereof may be waived, amended or
modified except pursuant to a written agreement entered into between the
Guarantors with respect to which such waiver, amendment or modification relates
and the Administrative Agent, with the prior written consent of the Required
Lenders (except as otherwise provided in the Credit Agreement).
SECTION 16. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TENNESSEE.
SECTION 17. Notices. All communications and notices hereunder shall be in
writing and given as provided in Section 10.1 of the Credit Agreement. All
communications and notices hereunder to each Guarantor shall be given to it at
its address set forth on Schedule I attached hereto.
SECTION 18. Survival of Agreement; Severability. (a) All covenants,
agreements representations and warranties made by the Guarantors herein and in
the certificates or other instruments prepared or delivered in connection with
or pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the Administrative Agent and the Lenders and shall
survive the making by the Lenders of the Loans and the issuance of the Letters
of Credit by the Issuing Bank regardless of any investigation made by any of
them or on their behalf, and shall continue in full force and effect as long as
the principal of or any accrued interest on any Loan or any other fee or amount
payable under this Agreement or any other Loan
6
Document is outstanding and unpaid or the LC Exposure does not equal zero and as
long as the Commitments have not been terminated.
(b) In the event one or more of the provisions contained in this
Agreement or in any other Loan Document should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of
the remaining provisions contained herein and therein shall not in any way
be affected or impaired thereby (it being understood that the invalidity
of a particular provision in a particular jurisdiction shall not in and of
itself affect the validity of such provision in any other jurisdiction).
The parties shall endeavor in good-faith negotiations to replace the
invalid, illegal or unenforceable provisions with valid provisions the
economic effect of which comes as close as possible to that of the
invalid, illegal or unenforceable provisions.
SECTION 19. Counterparts. This Agreement may be executed in counterparts,
each of which shall constitute an original, but all of which when taken together
shall constitute a single contract (subject to Section 14), and shall become
effective as provided in Section 14. Delivery of an executed signature page to
this Agreement by facsimile transmission shall be as effective as delivery of a
manually executed counterpart of this Agreement.
SECTION 20. Rules of Interpretation. The rules of interpretation specified
in Section 1.4 of the Credit Agreement shall be applicable to this Agreement.
SECTION 21. Jurisdiction; Consent to Service of Process. (a) Each
Guarantor hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of the United States District Court
of the Middle District of Tennessee and any state court of the State of
Tennessee sitting in Davidson County, Tennessee and any appellate court from any
thereof, in any action or proceeding arising out of or relating to this
Agreement or the other Loan Documents, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be heard
and determined in such Tennessee State court or, to the extent permitted by law,
in such Federal court. Each of the parties hereto agrees that a final judgment
in any such action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner provided by
law. Nothing in this Agreement shall affect any right that the Administrative
Agent, the Issuing Bank or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement or the other Loan Documents against any
Guarantor or its properties in the courts of any jurisdiction.
Each Guarantor hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection that it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement or the other Loan Documents in any
Tennessee State or Federal court. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
Each party to this Agreement irrevocably consents to service of process in
the manner provided for notices in Section 17. Nothing in this Agreement will
affect the right of any party to this Agreement to serve process in any other
manner permitted by law.
7
SECTION 22. Waiver of Jury Trial. EACH PARTY HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER
OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS. EACH PARTY
HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT,
IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 22.
SECTION 23. Additional Guarantors. Pursuant to Section 5.10 of the Credit
Agreement, each Wholly Owned Subsidiary that was not in existence on the date of
the Credit Agreement is required to enter into this Agreement as a Guarantor
upon becoming a Wholly Owned Subsidiary. Upon execution and delivery after the
date hereof by the Administrative Agent and such Wholly Owned Subsidiary of an
instrument in the form of Annex 1, such Wholly Owned Subsidiary shall become a
Guarantor hereunder with the same force and effect as if originally named as a
Guarantor herein. The execution and delivery of any instrument adding an
additional Guarantor as a party to this Agreement shall not require the consent
of any other Guarantor hereunder. The rights and obligations of each Guarantor
hereunder shall remain in full force and effect notwithstanding the addition of
any new Guarantor as a party to this Agreement.
SECTION 24. Right of Setoff. If an Event of Default shall have occurred
and be continuing, each Lender and the Issuing Bank are hereby authorized at any
time and from time to time, to the fullest extent permitted by law, to set off
and apply any and all deposits (general or special, time or demand, provisional
or final, other than trust or tax withholding accounts) at any time held and
other Indebtedness at any time owing by such Lender or the Issuing Bank to or
for the credit or the account of any Guarantor against any or all the
obligations of such Guarantor due under this Agreement and the other Loan
Documents held by such Lender or the Issuing Bank, irrespective of whether or
not such Person shall have made any demand under this Agreement or any other
Loan Document and although such obligations may be unmatured. Each Lender and
the Issuing Bank agree promptly to notify the Administrative Agent and the
Borrower after any such set-off and any application made by such Lender and the
Issuing Bank, as the case may be; provided, that the failure to give such notice
shall not affect the validity of such set-off and application. The rights of
each Lender and the Issuing Bank under this Section 24 are in addition to other
rights and remedies (including other rights of setoff) which such Lender or the
Issuing Bank, as the case may be, may have.
SECTION 25. Savings Clause.
(a) It is the intent that each Guarantor's maximum obligations
hereunder shall be, but not in excess of:
(i) in a case or proceeding commenced by or against a
Guarantor under the Bankruptcy Code on or within one year from the
date on which any of the Obligations are incurred, the maximum
amount which would not otherwise cause the Obligations (or any other
obligations of Guarantors to Lenders) to be
8
avoidable or unenforceable against such Guarantor under (A) Section
548 of the Bankruptcy Code or (B) any state fraudulent transfer or
fraudulent conveyance act or statute applied in such case or
proceeding by virtue of Section 544 of the Bankruptcy Code; or
(ii) in a case or proceeding commenced by or against a
Guarantor under the Bankruptcy Code subsequent to one year from the
date on which any of the Obligations are incurred, the maximum
amount which would not otherwise cause the Obligations to be
avoidable or unenforceable against such Guarantor under any state
fraudulent transfer or fraudulent conveyance act or statute applied
in any such case or proceeding by virtue of Section 544 of the
Bankruptcy Code; or
(iii) in a case or proceeding commenced by or against a
Guarantor under any law, statute or regulation other than the
Bankruptcy Code (including, without limitation, any other
bankruptcy, reorganization, arrangement, moratorium, readjustment of
debt, dissolution, liquidation or similar debtor relief laws), the
maximum amount which would not otherwise cause the Obligations to be
avoidable or unenforceable against such Guarantor under such law,
statute or regulation including, without limitation, any state
fraudulent transfer or fraudulent conveyance act or statute applied
in any such case or proceeding.
(The substantive laws under which the possible avoidance or
unenforceability of the Obligations (or any other obligations of
Guarantors to Lenders) shall be determined in any such case or
proceeding shall hereinafter be referred to as the "Avoidance
Provisions").
(b) To the end set forth in Section 25(a), but only to the extent
that the Obligations would otherwise be subject to avoidance under the
Avoidance Provisions, if a Guarantor is not deemed to have received
valuable consideration, fair value or reasonably equivalent value for the
Obligations, or if the Obligations would render a Guarantor insolvent, or
leave a Guarantor with an unreasonably small capital to conduct its
business, or cause a Guarantor to have incurred debts (or to have intended
to have incurred debts) beyond its ability to pay such debts as they
mature, in each case as of the time any of the Obligations are deemed to
have been incurred under the Avoidance Provisions and after giving effect
to the contribution by such Guarantor, the maximum Obligations for which
such Guarantor shall be liable hereunder shall be reduced to that amount
which, after giving effect thereto, would not cause the Obligations (or
any other obligations of Guarantors to Lenders), as so reduced, to be
subject to avoidance under the Avoidance Provisions. This Section 25(b) is
intended solely to preserve the rights of Lenders hereunder to the maximum
extent that would not cause the Obligations of Guarantors to be subject to
avoidance under the Avoidance Provisions, and neither the Guarantors nor
any other Person shall have any right or claim under this Section 25 as
against Lenders that would not otherwise be available to such person under
the Avoidance Provisions.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
9
IN WITNESS WHEREOF, the parties hereto have duly executed this Second
Amended and Restated Subsidiary Guarantee Agreement as of the day and year first
above written.
GUARANTOR:
AmSurg EC Centennial, Inc.
AmSurg EC Topeka, Inc.
AmSurg EC St. ▇▇▇▇▇▇, Inc.
AmSurg ▇▇ ▇▇▇▇▇▇▇▇, Inc.
AmSurg KEC, Inc.
AmSurg EC Santa Fe, Inc.
AmSurg ▇▇ ▇▇▇▇▇▇▇▇▇▇, Inc.
AmSurg Torrance, Inc.
AmSurg Encino, Inc.
AmSurg Sebastopol, Inc.
AmSurg Abilene, Inc.
AmSurg Suncoast, Inc.
AmSurg Lorain, Inc.
AmSurg LaJolla, Inc.
AmSurg Hillmont, Inc.
AmSurg South Florida Network, Inc.
AmSurg Palmetto, Inc.
AmSurg Northwest Florida, Inc.
AmSurg Ocala, Inc.
AmSurg Maryville, Inc.
AmSurg Holdings, Inc.
AmSurg Miami, Inc.
AmSurg Burbank, Inc.
AmSurg Melbourne, Inc.
AmSurg El Paso, Inc.
AmSurg Crystal River, Inc.
AmSurg Abilene Eye, Inc.
AmSurg Westlake, Inc.
AmSurg Naples, Inc.
AmSurg FL Eyecare Network, Inc.
AmSurg Inglewood, Inc.
AmSurg Glendale, Inc.
AmSurg Weslaco, Inc.
AmSurg Harlingen, Inc.
AmSurg San Antonio TX, Inc.
AmSurg San Luis Obispo CA, Inc.
AmSurg Temecula CA, Inc.
AmSurg Escondido CA, Inc.
AmSurg Scranton PA, Inc.
AmSurg Arcadia CA, Inc.
AmSurg Brevard, Inc.
ACCEPTED AND AGREED TO BY: AmSurg Dade County, Inc.
AmSurg ENT Brevard, Inc.
ADMINISTRATIVE AGENT: AmSurg Largo, Inc.
AmSurg Miami Urology, Inc
SUNTRUST BANK, Administrative Agent AmSurg SWFLA, Inc
on behalf of Lenders:
By:__________________
By:_______________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:____________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ has executed this Second
Amended and Restated Indemnity,
Subrogation and Contribution Agreement in
her capacity as Vice President, Secretary
and Treasurer of each of the Guarantors.
10
SCHEDULE I
ADDRESS FOR NOTICES
AmSurg Corp.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
11
ANNEX 1 TO THE
SECOND AMENDED AND RESTATED
SUBSIDIARY GUARANTEE AGREEMENT
SUPPLEMENT NO. [ ] dated as of [ ], to the Second Amended and Restated
Subsidiary Guarantee Agreement (the "GUARANTEE AGREEMENT") dated as of July ___,
2006 among each of the Wholly Owned Subsidiaries set forth therein (each such
Subsidiary individually, a "GUARANTOR" and collectively, the "Guarantors") of
AMSURG CORP., a Tennessee corporation (the "BORROWER"), and SUNTRUST BANK, a
Georgia banking corporation, as Administrative Agent (the "ADMINISTRATIVE
AGENT") for the Lenders (as defined in the Credit Agreement referred to below).
A. Reference is made to the Third Amended and Restated Revolving Credit
Agreement dated as of July ____, 2006 (as amended, supplemented or otherwise
modified from time to time, the "CREDIT AGREEMENT"), among the Borrower, the
lenders from time to time party thereto (the "LENDERS") and SunTrust Bank, as
Administrative Agent, Swingline Lender and Issuing Bank (in such capacity, the
"ISSUING BANK"). Capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to such terms in the Credit Agreement.
B. Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Guarantee Agreement and the
Credit Agreement.
C. The Guarantors have entered into the Guarantee Agreement in order to
induce the Lenders to make Loans and the Issuing Bank to issue Letters of
Credit. Pursuant to Section 5.10 of the Credit Agreement, each Wholly Owned
Subsidiary that was not in existence or not a Wholly Owned Subsidiary on the
date of the Credit Agreement is required to enter into the Guarantee Agreement
as a Guarantor upon becoming a Wholly Owned Subsidiary. Section 23 of the
Guarantee Agreement provides that additional Wholly Owned Subsidiaries of the
Borrower may become Guarantors under the Guarantee Agreement by execution and
delivery of an instrument in the form of this Supplement. The undersigned Wholly
Owned Subsidiary of the Borrower (the "NEW GUARANTOR") is executing this
Supplement in accordance with the requirements of the Credit Agreement to become
a Guarantor under the Guarantee Agreement in order to induce the Lenders to make
additional Loans and the Issuing Bank to issue additional Letters of Credit and
as consideration for Loans previously made and Letters of Credit previously
issued.
Accordingly, the Administrative Agent and the New Guarantor agree as
follows:
SECTION 1. In accordance with Section 23 of the Guarantee Agreement, the
New Guarantor by its signature below becomes a Guarantor under the Guarantee
Agreement with the same force and effect as if originally named therein as a
Guarantor and the New Guarantor hereby (a) agrees to all the terms and
provisions of the Guarantee Agreement applicable to it as Guarantor thereunder,
and (b) represents and warrants that the representations and warranties made by
it as a Guarantor thereunder are true and correct on and as of the date hereof.
Each reference to a Guarantor in the Guarantee Agreement shall be deemed to
include the New Guarantor. The Guarantee Agreement is hereby incorporated herein
by reference.
12
SECTION 2. The New Guarantor represents and warrants to the Administrative
Agent and the Lenders that this Supplement has been duly authorized, executed
and delivered by it and constitutes its legal, valid and binding obligation,
enforceable against it in accordance with its terms, except as may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws
affecting the enforcement of creditors' rights generally and by general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
SECTION 3. This Supplement may be executed in counterparts each of which
shall constitute an original, but all of which when taken together shall
constitute a single contract. This Supplement shall become effective when the
Administrative Agent shall have received counterparts of this Supplement that,
when taken together, bear the signatures of the New Guarantor and the
Administrative Agent. Delivery of an executed signature page to this Supplement
by facsimile transmission shall be as effective as delivery of a manually signed
counterpart of this Supplement.
SECTION 4. Except as expressly supplemented hereby, the Guarantee
Agreement shall remain in full force and effect.
SECTION 5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF TENNESSEE.
SECTION 6. In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein and in the Guarantee Agreement shall not in any way be affected or
impaired thereby (it being understood that the invalidity of a particular
provision hereof in a particular jurisdiction shall not in and of itself affect
the validity of such provision in any other jurisdiction). The parties hereto
shall endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 7. All communications and notices hereunder shall be in writing
and given as provided in Section 17 of the Guarantee Agreement. All
communications and notices hereunder to the New Guarantor shall be given to it
at the address set forth under its signature below, with a copy to the Borrower.
SECTION 8. To the extent such expenses are not paid by the Borrower under
the Credit Agreement, the New Guarantor agrees to reimburse the Administrative
Agent for its reasonable and documented out-of-pocket expenses in connection
with this Supplement, including the fees, disbursements and other charges of
counsel for the Administrative Agent, all to the extent set forth under Section
10.3 of the Credit Agreement.
13
IN WITNESS WHEREOF, the New Guarantor and the Administrative Agent have
duly executed this Supplement to the Guarantee Agreement as of the day and year
first above written.
[NAME OF NEW GUARANTOR]
By:_____________________________
Name:
Title:
Address:
SUNTRUST BANK, as
Administrative Agent
By:______________________________
Name:
Title:
14
EXHIBIT D
[FORM OF]
SECOND AMENDED AND RESTATED
INDEMNITY, SUBROGATION AND CONTRIBUTION AGREEMENT
THIS SECOND AMENDED AND RESTATED INDEMNITY, SUBROGATION and CONTRIBUTION
AGREEMENT IS ENTERED INTO by and between the undersigned Wholly Owned
Subsidiaries (each such subsidiary individually, a "GUARANTOR" and collectively
the "GUARANTORS") of AMSURG CORP., a Tennessee corporation (the "BORROWER") in
favor of SUNTRUST BANK, a Georgia state banking corporation as Administrative
Agent (the "ADMINISTRATIVE AGENT"), for the ratable benefit of the Lenders as
defined in the Credit Agreement referred to below, as of July ___, 2006.
Pursuant to the 2005 Credit Agreement (as such term is defined in the
Credit Agreement described below), the Guarantors entered into an Indemnity,
Subrogation and Contribution Agreement (or entered into a supplement thereto)
related to their guaranty of the obligations evidenced by the 2005 Credit
Agreement; and as described in more detail below, the Guarantors desire to amend
and restate said Indemnity, Subrogation and Contribution Agreement in connection
with the execution of the Credit Agreement described below pursuant to the terms
hereof.
Reference is made to (a) the Third Amended and Restated Revolving Credit
Agreement dated as of July ___, 2006 (as amended, supplemented or otherwise
modified from time to time, the "CREDIT AGREEMENT"), among the Borrower, the
lenders from time to time party thereto (the "LENDERS") and SunTrust Bank, as
Administrative Agent, and (b) the Second Amended and Restated Subsidiary
Guarantee Agreement dated as of July ___, 2006, among the Guarantors and the
Administrative Agent (as amended, supplemented or otherwise modified from time
to time, the "GUARANTEE AGREEMENT"). Capitalized terms used herein and not
defined herein shall have the meanings assigned to such terms in the Credit
Agreement.
The Lenders have agreed to make Loans to the Borrower, pursuant to, and
upon the terms and subject to the conditions specified in, the Credit Agreement.
The Guarantors have guaranteed such Loans and the other Obligations (as defined
in the Guarantee Agreement) of the Borrower under the Credit Agreement pursuant
to the Guarantee Agreement. The obligations of the Lenders to make Loans and of
the Issuing Bank to issue Letters of Credit are conditioned on, among other
things, the execution and delivery by the Borrower and the Guarantors of an
agreement in the form hereof.
Accordingly, the Borrower, each Guarantor and the Administrative Agent
agree as follows:
SECTION 1. Indemnity and Subrogation. In addition to all such rights of
indemnity and subrogation as the Guarantors may have under applicable law (but
subject to Section 3), the Borrower agrees that (a) in the event a payment shall
be made by any Guarantor under the Guarantee Agreement, the Borrower shall
indemnify such Guarantor for the full amount of such payment and such Guarantor
shall be subrogated to the rights of the person to whom such payment shall have
been made to the extent of such payment, and (b) in the event any assets of any
Guarantor shall be sold pursuant to any Security Document to satisfy a claim of
any secured
1
party thereunder, the Borrower shall indemnify such Guarantor in an amount equal
to the greater of the book value of the fair market value of the assets so sold.
SECTION 2. Contribution and Subrogation. Each Guarantor (a "CONTRIBUTING
GUARANTOR") agrees (subject to Section 3) that, in the event a payment shall be
made by any other Guarantor under the Guarantee Agreement or assets of any other
Guarantor shall be sold pursuant to any Security Document to satisfy a claim of
any secured party and such other Guarantor (the "CLAIMING GUARANTOR") shall not
have been fully indemnified by the Borrower as provided in Section 1, the
Contributing Guarantor shall indemnify the Claiming Guarantor in an amount equal
to the amount of such payment or the greater of the book value or the fair
market value of such assets, as the case may be, in each case multiplied by a
fraction of which the numerator shall be the net worth of the Contributing
Guarantor on the date hereof and the denominator shall be the aggregate net
worth of all the Guarantors on the date hereof (or, in the case of any Guarantor
becoming a party hereto pursuant to Section 12, the date of the Supplement
hereto executed and delivered by such Guarantor). Any Contributing Guarantor
making any payment to a Claiming Guarantor pursuant to this Section 2 shall be
subrogated to the rights of such Claiming Guarantor under Section 1 to the
extent of such payment.
SECTION 3. Subordination. Notwithstanding any provision of this Agreement
to the contrary, all rights of the Guarantors under Sections 1 and 2 and all
other rights of indemnity, contribution or subrogation under applicable law or
otherwise shall be fully subordinated to the indefeasible payment in full in
cash of the Obligations. No failure on the part of the Borrower or any Guarantor
to make the payments required under applicable law or otherwise shall in any
respect limit the obligations and liabilities of any Guarantor with respect to
its obligations hereunder, and each Guarantor shall remain liable for the full
amount of the obligations of such Guarantor hereunder.
SECTION 4. Termination. This Agreement shall survive and be in full force
and effect so long as any Obligation is outstanding and has not been
indefeasibly paid in full in cash, and so long as the LC Exposure has not been
reduced to zero or any of the Commitments under the Credit Agreement have not
been terminated, and shall continue to be effective or be reinstated, as the
case may be, if at any time payment, or any part thereof, of any Obligation is
rescinded or must otherwise be restored by any Lender or any Guarantor upon the
bankruptcy or reorganization of the Borrower, any Guarantor or otherwise.
SECTION 5. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TENNESSEE.
SECTION 6. No Waiver; Amendment.
(a) No failure on the part of the Administrative Agent or any
Guarantor to exercise, and no delay in exercising, any right, power or
remedy hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise of any such right, power or remedy by the
Administrative Agent or any Guarantor preclude any other or further
exercise thereof or the exercise of any other right, power or remedy. All
remedies hereunder are cumulative and are not exclusive of any other
remedies provided by law. None of the Administrative Agent and the
Guarantors shall be deemed to have waived any rights hereunder unless such
waiver shall be in writing and signed by such parties.
2
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to a written agreement entered into
between the Borrower, the Guarantors and the Administrative Agent, with
the prior written consent of the Required Lenders (except as otherwise
provided in the Credit Agreement).
SECTION 7. Notices. All communications and notices hereunder shall be in
writing and given as provided in the Guarantee Agreement and addressed as
specified therein.
SECTION 8. Binding Agreement; Assignments. Whenever in this Agreement any
of the parties hereto is referred to, such reference shall be deemed to include
the successors and assigns of such party; and all covenants, promises and
agreements by or on behalf of the parties that are contained in this Agreement
shall bind and inure to the benefit of their respective successors and assigns.
Neither the Borrower nor any Guarantor may assign or transfer any of its rights
or obligations hereunder (and any such attempted assignment or transfer shall be
void) without the prior written consent of the Required Lenders. Notwithstanding
the foregoing, at the time any Guarantor is released from its obligations under
the Guarantee Agreement in accordance with such Guarantee Agreement and the
Credit Agreement, such Guarantor will cease to have any rights or obligations
under this Agreement.
SECTION 9. Survival of Agreement; Severability.
(a) All covenants and agreements made by the Borrower and each
Guarantor herein and in the certificates or other instruments prepared or
delivered in connection with this Agreement or the other Loan Documents
shall be considered to have been relied upon by the Administrative Agent,
the Lenders and each Guarantor and shall survive the making by the Lenders
of the Loans and the issuance of the Letters of Credit by the Issuing
Bank, and shall continue in full force and effect as long as the principal
of or any accrued interest on any Loans or any other fee or amount payable
under the Credit Agreement or this Agreement or under any of the other
Loan Documents is outstanding and unpaid or the LC Exposure does not equal
zero and as long as the Commitments have not been terminated.
(b) In case one or more of the provisions contained in this
Agreement should be held invalid, illegal or unenforceable in any respect,
no party hereto shall be required to comply with such provision for so
long as such provision is held to be invalid, illegal or unenforceable,
but the validity, legality and enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired thereby. The
parties shall endeavor in good-faith negotiations to replace the invalid,
illegal or unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the invalid, illegal
or unenforceable provisions.
SECTION 10. Counterparts. This Agreement may be executed in counterparts
(and by different parties hereto on different counterparts) each of which shall
constitute an original, but all of which when taken together shall constitute a
single contract. This Agreement shall be effective with respect to any Guarantor
when a counterpart bearing the signature of such Guarantor shall have been
delivered to the Administrative Agent. Delivery of an executed signature page to
this Agreement by facsimile transmission shall be as effective as delivery of a
manually signed counterpart of this Agreement.
3
SECTION 11. Rules of Interpretation. The rules of interpretation specified
in Section 1.03 of the Credit Agreement shall be applicable to this Agreement.
SECTION 12. Additional Guarantors. Pursuant to Section 5.10(a) of the
Credit Agreement, each Wholly Owned Subsidiary of the Borrower that was not in
existence or not such a Wholly Owned Subsidiary on the date of the Credit
Agreement is required to enter into the Guarantee Agreement as Guarantor upon
becoming such a Wholly Owned Subsidiary. Upon the execution and delivery, after
the date hereof, by the Administrative Agent and such Wholly Owned Subsidiary of
an instrument in the form of Annex 1, such Subsidiary shall become a Guarantor
hereunder with the same force and effect as if originally named as a Guarantor
hereunder. The execution and delivery of any instrument adding an additional
Guarantor as a party to this Agreement shall not require the consent of any
Guarantor hereunder. The rights and obligations of each Guarantor hereunder
shall remain in full force and effect notwithstanding the addition of any new
Guarantor as a party to this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
4
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the date first appearing above.
BORROWER:
AMSURG CORP.
By: __________________________________
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Senior Vice President,
Chief Financial Officer and Secretary
5
WHOLLY OWNED SUBSIDIARIES:
AmSurg EC Centennial, Inc.
AmSurg EC Topeka, Inc.
AmSurg EC St. ▇▇▇▇▇▇, Inc.
AmSurg ▇▇ ▇▇▇▇▇▇▇▇, Inc.
AmSurg KEC, Inc.
AmSurg EC Santa Fe, Inc.
AmSurg ▇▇ ▇▇▇▇▇▇▇▇▇▇, Inc.
AmSurg Torrance, Inc.
AmSurg Encino, Inc.
AmSurg Sebastopol, Inc.
AmSurg Abilene, Inc.
AmSurg Suncoast, Inc.
AmSurg Lorain, Inc.
AmSurg LaJolla, Inc.
AmSurg Hillmont, Inc.
AmSurg South Florida Network, Inc.
AmSurg Palmetto, Inc.
AmSurg Northwest Florida, Inc.
AmSurg Ocala, Inc.
AmSurg Maryville, Inc.
AmSurg Holdings, Inc.
AmSurg Miami, Inc.
AmSurg Burbank, Inc.
AmSurg Melbourne, Inc.
AmSurg El Paso, Inc.
AmSurg Crystal River, Inc.
AmSurg Abilene Eye, Inc.
AmSurg Westlake, Inc.
AmSurg Naples, Inc.
AmSurg FL Eyecare Network, Inc.
AmSurg Inglewood, Inc.
AmSurg Glendale, Inc.
AmSurg Weslaco, Inc.
AmSurg Harlingen, Inc.
AmSurg San Antonio TX, Inc.
AmSurg San Luis Obispo CA, Inc.
AmSurg Temecula CA, Inc.
AmSurg Escondido CA, Inc.
AmSurg Scranton PA, Inc.
AmSurg Arcadia CA, Inc.
AmSurg Brevard, Inc.
AmSurg Dade County, Inc.
AmSurg ENT Brevard, Inc.
AmSurg Largo, Inc.
AmSurg Miami Urology, Inc
AmSurg SWFLA, Inc
By:__________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ has executed this Second Amended and
Restated Indemnity, Subrogation and Contribution
Agreement in her capacity as Vice President, Secretary
and Treasurer of each of the Guarantors.
6
ADMINISTRATIVE AGENT:
SUNTRUST BANK, Administrative Agent on
behalf of Lenders
By: ____________________________________
Title: _________________________________
7
ANNEX I TO
SECOND AMENDED AND RESTATED INDEMNITY, SUBROGATION AND
CONTRIBUTION AGREEMENT
SUPPLEMENT NO. ____ dated as of ____________________, 20____, to the
Second Amended and Restated Indemnity, Subrogation and Contribution Agreement
dated as of July ___, 2006 (as the same may be amended, supplemented or
otherwise modified from time to time, the "INDEMNITY AND CONTRIBUTION
AGREEMENT") among AMSURG CORP., a Tennessee corporation (the "BORROWER"), the
Wholly Owned Subsidiaries, as defined in the Credit Agreement referred to below
(the "GUARANTORS"), and SUNTRUST BANK, a Georgia banking corporation, as
administrative agent (the "ADMINISTRATIVE AGENT") for the Lenders (as defined in
the Credit Agreement referred to below).
A. Reference is made to (a) the Third Amended and Restated Revolving
Credit Agreement dated as of July ___, 2006 (as amended, supplemented or
otherwise modified from time to time, the "CREDIT AGREEMENT"), among the
Borrower, the lenders from time to time party thereto (the "LENDERS") and
SunTrust Bank, as the Administrative Agent, and (b) the Second Amended and
Restated Subsidiary Guarantee Agreement dated as of July ____, 2006, among the
Guarantors and the Administrative Agent (as amended, supplemented or otherwise
modified from time to time, the "GUARANTEE AGREEMENT").
B. Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Indemnity and Contribution
Agreement and the Credit Agreement.
C. The Borrower and the Guarantors have entered into the Indemnity and
Contribution Agreement in order to induce the Lenders to make Revolving Loans.
Pursuant to Section 5.10(a) of the Credit Agreement, each Wholly Owned
Subsidiary that was not in existence or not such a Wholly Owned Subsidiary on
the date of the Credit Agreement is required to enter into the Guarantee
Agreement as a Guarantor upon becoming a Wholly Owned Subsidiary. Section 12 of
the Indemnity and Contribution Agreement provides that additional Wholly Owned
Subsidiaries may become Guarantors under the Indemnity and Contribution
Agreement by execution and delivery of an instrument in the form of this
Supplement. The undersigned Wholly Owned Subsidiary (the "NEW GUARANTOR") is
executing this Supplement in accordance with the requirements of the Credit
Agreement to become a Guarantor under the Indemnity and Contribution Agreement
in order to induce the Lenders to make additional Loans and as consideration for
Loans previously made.
Accordingly, the Administrative Agent and the New Guarantor agree as
follows:
SECTION 1. In accordance with Section 12 of the Indemnity and Contribution
Agreement, the New Guarantor by its signature below becomes a Guarantor under
the Indemnity and Contribution Agreement with the same force and effect as if
originally named therein as a Guarantor and the New Guarantor hereby agrees to
all the terms and provisions of the Indemnity and Contribution Agreement
applicable to it as Guarantor thereunder. Each reference to a Guarantor in the
Indemnity and Contribution Agreement shall be deemed to include the New
Guarantor. The Indemnity and Contribution Agreement is hereby incorporated
herein by reference.
8
SECTION 2. The New Guarantor represents and warrants to the Administrative
Agent and the Lenders that this Supplement has been duly authorized, executed
and delivered by it and constitutes its legal, valid and binding obligation,
enforceable against it in accordance with its terms.
SECTION 3. This Supplement may be executed in counterparts (and by
different parties hereto on different counterparts) each of which shall
constitute an original, but all of which when taken together shall constitute a
single contract. This Supplement shall become effective when the Administrative
Agent shall have received counterparts of this Supplement that, when taken
together, bear the signature of the New Guarantor and the Administrative Agent.
Delivery of an executed signature page to this Supplement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
of this Supplement.
SECTION 4. Except as expressly supplemented hereby, the Indemnity and
Contribution Agreement shall remain in full force and effect.
SECTION 5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF TENNESSEE.
SECTION 6. In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect,
neither party hereto shall be required to comply with such provision for so long
as such provision is held to be invalid, illegal or unenforceable, but the
validity, legality and enforceability of the remaining provisions contained
herein and in the Indemnity and Contribution Agreement shall not in any way be
affected or impaired. The parties hereto shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions with
valid provisions the economic effect of which comes as close as possible to that
of the invalid, illegal or unenforceable provisions.
SECTION 7. All communications and notices hereunder shall be in writing
and given as provided in Section 7 of the Indemnity and Contribution Agreement.
All communications and notices hereunder to the New Guarantor shall be given to
it at the address set forth under its signature.
SECTION 8. The New Guarantor agrees to reimburse the Administrative Agent
for its reasonable out-of-pocket expenses in connection with this Supplement,
including the reasonable fees, other charges and disbursements of counsel for
the Administrative Agent.
IN WITNESS WHEREOF, the New Guarantor and the Administrative Agent have
duly executed this Supplement to the Indemnity and Contribution Agreement as of
the day and year first above written.
9
NEW GUARANTOR:
[NAME OF NEW GUARANTOR]
By:________________________________________
Title:_____________________________________
ADMINISTRATIVE AGENT:
SUNTRUST BANK, as Administrative Agent on
behalf of Lenders
By:________________________________________
Title:_____________________________________
10
EXHIBIT E
[FORM OF]
ACQUISITION APPROVAL LETTER
____________________, 20_____
To the Administrative Agent and Lenders
under the Credit Agreement referred to below
Ladies and Gentlemen:
Reference is made to the Third Amended and Restated Revolving Credit
Agreement, dated as of July ___, 2006 (as amended, supplemented or otherwise
modified from time to time, the "CREDIT AGREEMENT"), among AmSurg Corp. (the
"BORROWER"), the lender parties thereto (the "LENDERS"), and SunTrust Bank, as
the Administrative Agent for the Lenders (the "ADMINISTRATIVE AGENT"). Unless
otherwise defined herein, the terms defined in the Credit Agreement shall be
used herein as therein defined.
In connection with the proposed Acquisition, the Borrower hereby requests
that the Administrative Agent and the Lenders approve the Acquisition pursuant
to Section 7.14 of the Credit Agreement. The Borrower hereby acknowledges that
the Lenders' approval of the Acquisition is subject to satisfaction of all of
the conditions precedent set forth in Section 7.14 of the Credit Agreement.
The Borrower herewith submits the Acquisition Informational Package.
The execution and delivery of this Acquisition Approval Letter by the
Required Lenders shall constitute approval of the Acquisition.
This Acquisition Approval Letter may be executed in any number of
counterparts and by any combination of the parties hereto in separate
counterparts, each of which counterparts shall be an original and all of which
taken together shall constitute one and the same consent.
This Acquisition Approval Letter shall become effective upon the receipt
by the Administrative Agent of executed counterparts of this consent duly
executed by the Borrower and by the Required Lenders.
The Borrower certifies to the Lender that immediately after completion of
the Acquisition no Default or Event or Default shall exist, and all of the
representations of the Borrower contained in Article IV are true and correct in
all material respects.
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Very truly yours,
AMSURG CORP.
By:_____________________________________
Title:__________________________________
Approved as of:
________________________, _____________:
ADMINISTRATIVE AGENT:
SUNTRUST BANK
By:_______________________________________
Title:____________________________________
LENDERS:
SUNTRUST BANK
By:_______________________________________
Title:____________________________________
[ADDITIONAL LENDERS TO BE ADDED]
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EXHIBIT F
[FORM OF]
ACQUISITION INFORMATION PACKAGE
Pursuant to Section 7.13(a) and (b) of the Credit Agreement, AmSurg Corp.
(the "BORROWER") shall deliver to SunTrust Bank, as Administrative Agent (with
enough copies for each of the Lenders) the following information in connection
with any Acquisition:
(1) the total consideration given in connection with any Acquisition in
the following format:
(a) Cash: $_______________
(b) Stock: $_______________
(c) Personal Property: $ ____________
(d) Other Property: [identify type and value]
____________________________________________________
____________________________________________________
____________________________________________________
____________________________________________________
(2) summary financial information relating to the interest or entity to
be acquired, including percentage interest being acquired and
operating forecasts,
(3) (a) the Acquisition Pro Forma duly certified by the chief financial
officer of the Borrower and (b) calculations of the chief financial
officer of the Borrower demonstrating compliance on a pro-forma
basis with the financial covenants contained in Article VI and
Section 7.13 of the Credit Agreement after such Acquisition is
completed.
As used herein, the "CREDIT AGREEMENT" means that certain Third Amended
and Restated Revolving Credit Agreement dated July ___, 2006 among Borrower,
SunTrust Bank, as Administrative Agent and a Lender, and the Lenders party
thereto.
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EXHIBIT G
[FORM OF]
ACQUISITION PRO-FORMA
DELIVERED PURSUANT TO THE ACQUISITION INFORMATION PACKAGE
Name of Entity to be Acquired: ________________________________
Annual Projections
------------------
Gross Revenue $_____________
Contractual Adj. & Refunds $_____________
Net Revenue $_____________
Operating Expenses:
Non-Owner Doctors Payments $_____________
Salaries and benefits $_____________
Drugs and Medical Supplies $_____________
Other Variable Expenses:
General and Administrative $_____________
Facilities Expenses $_____________
Marketing Expenses $_____________
Professional Fees $_____________
Malpractice Insurance $_____________
Other Expenses $_____________
Total Other Variable Expenses $_____________
Total Operating Expenses $_____________
Non-Operating Expenses:
Depreciation Expense $_____________
Interest Income $_____________
Interest Expense $_____________
Other (Income) Expense $_____________
Total Non-Operating Expenses $_____________
Total Expenses $_____________
Pretax Earnings $_____________
EBITDA $_____________
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Total Consideration
Cash $___________
Borrowings $___________
Stock $___________
Purchase Price $___________
A.R. net $___________
Inventory $___________
PP & E $___________
$___________
_________%
$___________
Goodwill $___________
Purchase Price $___________
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EXHIBIT H
[FORM OF]
SWINGLINE NOTE
$_________________ Nashville, Tennessee
___________ ____, 2006
FOR VALUE RECEIVED, the undersigned, AMSURG CORP., a Tennessee corporation
(the "BORROWER"), hereby promises to pay to the order of SUNTRUST BANK, a
Georgia state banking corporation (the "SWINGLINE LENDER") or its registered
assigns, at the office of SunTrust Bank ("SUNTRUST") at the Payment Office of
the Administrative Agent, on the Swingline Termination Date (as such terms are
defined in the Third Amended and Restated Revolving Credit Agreement dated as of
July ___, 2006 as the same may be amended, supplemented or otherwise modified
from time to time, the "CREDIT AGREEMENT"), among the Borrower, the Lenders from
time to time party thereto and SunTrust, as Administrative Agent for the
Lenders, the lesser of the principal sum of AND NO/100 DOLLARS ($ ) or the
aggregate unpaid principal amount of all outstanding Swingline Loans made by the
Swingline Lender to the Borrower pursuant to the Credit Agreement from time to
time, in lawful money of the United States of America in immediately available
funds, and to pay interest from the date hereof on the principal amount thereof
from time to time outstanding, in like funds, at said office, at the rate or
rates per annum and payable on such dates as provided in the Credit Agreement.
In addition, should legal action or an attorney-at-law be utilized to collect
any amount due hereunder, the Borrower further promises to pay all costs of
collection, including the reasonable attorneys' fees of the Administrative Agent
and the Swingline Lender. Terms not defined herein shall have the meanings
ascribed to such terms in the Credit Agreement.
The Borrower promises to pay interest on any overdue principal and, to the
extent permitted by law, overdue interest from their due dates at the times and
at a rate or rates provided in the Credit Agreement.
All borrowings evidenced by this Swingline Note and all payments and
prepayments of the principal hereof and the date thereof shall be endorsed by
the holder hereof on the schedule attached hereto and made a part hereof or on a
continuation thereof which shall be attached hereto and made a part hereof, or
otherwise recorded by such holder in its internal records; provided, that the
failure of the holder hereof to make such a notation or any error in such
notation shall not affect the obligations of the Borrower to make the payments
of principal and interest in accordance with the terms of this Swingline Note
and the Credit Agreement.
This Swingline Note is issued in connection with, and is entitled to the
benefits of, the Credit Agreement which, among other things, contains provisions
for the acceleration of the maturity hereof upon the happening of certain
events, for optional and mandatory prepayment of the principal hereof prior to
the maturity hereof and for the amendment or waiver of certain provisions of the
Credit Agreement, all upon the terms and conditions therein specified.
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THIS SWINGLINE NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAWS OF THE STATE OF TENNESSEE AND ANY APPLICABLE LAWS OF THE UNITED STATES
OF AMERICA.
ENTERED INTO as of the date first written above.
AMSURG CORP.
By:_____________________________________
Title:__________________________________
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LOANS AND PAYMENTS
Amount and Payments of Unpaid Principal Name of Person Making
Date Type of Loan Principal Balance of Note Notation
---- ------------ ----------- ---------------- ----------------------
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