EXHIBIT 10.1
EXECUTION COPY
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$445,000,000
CREDIT AGREEMENT
among
GENTIVA HEALTH SERVICES, INC.,
as Borrower,
The Several Lenders
from Time to Time Parties Hereto,
▇▇▇▇▇▇ BROTHERS INC.,
as Sole Lead Arranger and Sole Bookrunner,
and
▇▇▇▇▇▇ COMMERCIAL PAPER INC.,
as Administrative Agent
Dated as of February 28, 2006
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TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS............................................................................................1
1.1 Defined Terms...................................................................................1
1.2 Other Definitional Provisions..................................................................23
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS.......................................................................24
2.1 Term Loan Commitments..........................................................................24
2.2 Procedure for Term Loan Borrowing..............................................................24
2.3 Repayment of Term Loans........................................................................24
2.4 Revolving Credit Commitments...................................................................25
2.5 Procedure for Revolving Credit Borrowing.......................................................26
2.6 Swing Line Commitment..........................................................................26
2.7 Procedure for Swing Line Borrowing; Refunding of Swing Line Loans..............................27
2.8 Repayment of Loans; Evidence of Debt...........................................................28
2.9 Commitment Fees, etc...........................................................................29
2.10 Termination or Reduction of Revolving Credit Commitments.......................................30
2.11 Optional Prepayments...........................................................................30
2.12 Mandatory Prepayments and Commitment Reductions................................................30
2.13 Conversion and Continuation Options............................................................31
2.14 Minimum Amounts and Maximum Number of Eurodollar Tranches......................................32
2.15 Interest Rates and Payment Dates...............................................................32
2.16 Computation of Interest and Fees...............................................................33
2.17 Inability to Determine Interest Rate...........................................................33
2.18 Pro Rata Treatment and Payments................................................................34
2.19 Requirements of Law............................................................................36
2.20 Taxes..........................................................................................37
2.21 Indemnity......................................................................................39
2.22 Illegality.....................................................................................40
2.23 Change of Lending Office.......................................................................40
2.24 Replacement of Lenders under Certain Circumstances.............................................40
2.25 New Revolving Credit Commitments...............................................................41
SECTION 3. LETTERS OF CREDIT.....................................................................................42
3.1 L/C Commitment.................................................................................42
3.2 Procedure for Issuance of Letters of Credit....................................................43
3.3 Fees and Other Charges.........................................................................43
3.4 L/C Participations.............................................................................43
3.5 Reimbursement Obligation of the Borrower.......................................................45
3.6 Obligations Absolute...........................................................................45
3.7 Letter of Credit Payments......................................................................46
3.8 Applications...................................................................................46
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SECTION 4. REPRESENTATIONS AND WARRANTIES........................................................................46
4.1 Financial Condition............................................................................46
4.2 No Change......................................................................................47
4.3 Corporate Existence; Compliance with Law.......................................................48
4.4 Corporate Power; Authorization; Enforceable Obligations........................................48
4.5 No Legal Bar...................................................................................48
4.6 No Material Litigation.........................................................................48
4.7 No Default.....................................................................................49
4.8 Ownership of Property; Liens...................................................................49
4.9 Intellectual Property..........................................................................49
4.10 Taxes..........................................................................................49
4.11 Federal Regulations............................................................................49
4.12 Labor Matters..................................................................................49
4.13 ERISA..........................................................................................50
4.14 Investment Company Act; Other Regulations......................................................50
4.15 Subsidiaries...................................................................................50
4.16 Use of Proceeds................................................................................51
4.17 Environmental Matters..........................................................................51
4.18 Accuracy of Information, etc...................................................................52
4.19 Security Documents.............................................................................52
4.20 Solvency.......................................................................................53
4.21 Regulation H...................................................................................53
4.22 Insurance......................................................................................53
4.23 Acquisition Documentation......................................................................53
4.24 Real Estate....................................................................................54
4.25 Compliance with Health Care Laws...............................................................54
4.26 Patriot Act....................................................................................55
4.27 Inactive Subsidiary............................................................................56
SECTION 5. CONDITIONS PRECEDENT..................................................................................56
5.1 Conditions to Initial Extension of Credit......................................................56
5.2 Conditions to Each Extension of Credit.........................................................59
SECTION 6. AFFIRMATIVE COVENANTS.................................................................................60
6.1 Financial Statements...........................................................................60
6.2 Certificates; Other Information................................................................61
6.3 Payment of Obligations.........................................................................62
6.4 Conduct of Business and Maintenance of Existence, etc..........................................62
6.5 Maintenance of Property; Insurance.............................................................63
6.6 Inspection of Property; Books and Records; Discussions.........................................63
6.7 Notices........................................................................................63
6.8 Environmental Laws.............................................................................64
6.9 Additional Collateral, etc.....................................................................64
6.10 Use of Proceeds................................................................................66
6.11 ERISA Documents................................................................................66
6.12 Further Assurances.............................................................................67
6.13 Compliance with Health Care Laws...............................................................67
6.14 Inactive Subsidiary............................................................................68
6.15 Post Closing...................................................................................68
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SECTION 7. NEGATIVE COVENANTS....................................................................................68
7.1 Financial Condition Covenants..................................................................68
7.2 Limitation on Indebtedness.....................................................................69
7.3 Limitation on Liens............................................................................70
7.4 Limitation on Fundamental Changes..............................................................72
7.5 Limitation on Disposition of Property..........................................................72
7.6 Limitation on Restricted Payments..............................................................73
7.7 Limitation on Capital Expenditures.............................................................74
7.8 Limitation on Investments......................................................................74
7.9 Limitation on Optional Payments and Modifications of Debt Instruments,
Certificates of Incorporation,By-laws, etc.....................................................76
7.10 Limitation on Transactions with Affiliates.....................................................77
7.11 Limitation on Sales and Leasebacks.............................................................77
7.12 Limitation on Changes in Fiscal Periods........................................................77
7.13 Limitation on Negative Pledge Clauses..........................................................77
7.14 Limitation on Restrictions on Subsidiary Distributions.........................................77
7.15 Limitation on Lines of Business................................................................78
7.16 Limitation on Amendments to Acquisition Documentation..........................................78
7.17 Limitation on Hedge Agreements.................................................................78
SECTION 8. EVENTS OF DEFAULT.....................................................................................78
SECTION 9. THE ADMINISTRATIVE AGENT; THE ARRANGER................................................................82
9.1 Appointment....................................................................................82
9.2 Delegation of Duties...........................................................................82
9.3 Exculpatory Provisions.........................................................................82
9.4 Reliance by the Administrative Agent...........................................................83
9.5 Notice of Default..............................................................................83
9.6 Non-Reliance on the Arranger, the Administrative Agent and Other Lenders.......................83
9.7 Indemnification................................................................................84
9.8 Arranger and Administrative Agent in their Individual Capacities...............................84
9.9 Successor Administrative Agent.................................................................85
9.10 Authorization to Release Liens and Guarantees..................................................85
9.11 The Arranger...................................................................................85
9.12 Withholding Tax................................................................................85
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SECTION 10. MISCELLANEOUS........................................................................................86
10.1 Amendments and Waivers.........................................................................86
10.2 Notices........................................................................................88
10.3 No Waiver; Cumulative Remedies.................................................................89
10.4 Survival of Representations and Warranties.....................................................89
10.5 Payment of Expenses............................................................................89
10.6 Successors and Assigns; Participations and Assignments.........................................91
10.7 Adjustments; Set-off...........................................................................94
10.8 Counterparts...................................................................................95
10.9 Severability...................................................................................95
10.10 Integration....................................................................................95
10.11 GOVERNING LAW..................................................................................95
10.12 Submission To Jurisdiction; Waivers............................................................95
10.13 Acknowledgments................................................................................96
10.14 Confidentiality................................................................................96
10.15 Release of Collateral and Guarantee Obligations................................................97
10.16 Accounting Changes.............................................................................98
10.17 Delivery of Lender Addenda.....................................................................98
10.18 WAIVERS OF JURY TRIAL..........................................................................98
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ANNEX:
A Pricing Grids
SCHEDULES:
4.4 Consents, Authorizations, Filings and Notices
4.15 Subsidiaries; Commitments Related to Capital Stock
4.19(a)-1 UCC Filing Jurisdictions
4.19(a)-2 UCC Financing Statements to Remain on File
4.19(a)-3 UCC Financing Statements to be Terminated
4.23 Acquisition Documentation
4.24 Owned and Leased Property
4.25(a) Compliance with Health Care Laws
4.25(b) Health Care Permits
4.25(c) Program Participation Agreements
4.25(d) Excluded Entities
4.25(e) Corporate Integrity Agreements, Settlement Agreements, Plans of
Correction, etc.
6.15 Post Closing Obligations
7.2(d) Existing Indebtedness
7.3(f) Existing Liens
EXHIBITS:
A Form of Guarantee and Collateral Agreement
B Form of Compliance Certificate
C Form of Closing Certificate
D Form of Assignment and Acceptance
E-1 Form of Legal Opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP
E-2 Form of Legal Opinion of ▇▇▇▇▇▇▇▇▇ Traurig LLP
E-3 Form of Legal Opinion of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP (Acquisition)
E-4 Form of Legal Opinion of Farmer, Price, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇, LLP
E-5 Form of Legal Opinion of Parker, Poe, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP
F-1 Form of Term Note
F-2 Form of Revolving Credit Note
F-3 Form of Swing Line Note
G Form of Exemption Certificate
H Form of Lender Addendum
I Form of Borrowing Notice
J Form of Solvency Certificate
K Form of Subordinated Intercompany Note
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CREDIT AGREEMENT, dated as of February 28, 2006, among GENTIVA HEALTH
SERVICES, INC., a Delaware corporation (the "Borrower"), the several banks and
other financial institutions or entities from time to time parties to this
Agreement (the "Lenders"), ▇▇▇▇▇▇ BROTHERS INC., as advisor, sole lead arranger
and sole bookrunner (in such capacity, the "Arranger"), and ▇▇▇▇▇▇ COMMERCIAL
PAPER INC., as administrative agent (in such capacity, the "Administrative
Agent").
W I T N E S S E T H:
WHEREAS, the Borrower wishes to acquire (the "Acquisition") all of
the issued and outstanding capital stock of The Healthfield Group, Inc., a
Delaware corporation ("Healthfield"), and to refinance certain existing debt
thereof (the "Refinancing");
WHEREAS, the Borrower has requested that the Lenders make credit
facilities available to the Borrower in order to finance the Acquisition and the
Refinancing and for the other purposes set forth herein;
WHEREAS, the Lenders are willing to make such credit facilities
available upon and subject to the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the agreements
hereinafter set forth, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the terms listed in
this Section 1.1 shall have the respective meanings set forth in this Section
1.1.
"Acquired Person": any Person (a) acquired by the Borrower or its
Subsidiaries which, upon such acquisition, becomes a Subsidiary or is merged or
combined into the Borrower or a Subsidiary or (b) all or substantially all of
the assets of which (or all or substantially all of the assets of any business
or division of which) are acquired by the Borrower or a Subsidiary.
"Acquisition": as defined in the recitals hereto.
"Acquisition Agreement": the Agreement and Plan of Merger by and
among the Borrower, ▇▇▇▇ Acquisition Sub Corp., The Healthfield Group, Inc.,
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, in his capacity as stockholder representative, and the
Securityholders named therein, dated as of January 4, 2006, as the same may be
amended, supplemented, replaced or otherwise modified from time to time in
accordance with this Agreement.
"Acquisition Documentation": collectively, the Acquisition Agreement
and all schedules, exhibits, annexes and amendments thereto and all side letters
and agreements affecting the terms thereof or entered into in connection
therewith, in each case, as amended, supplemented, replaced or otherwise
modified from time to time.
"Adjustment Date": as defined in Annex A.
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"Administrative Agent": as defined in the preamble hereto.
"Affiliate": as to any Person, any other Person that, directly or
indirectly, is in control of, is controlled by, or is under common control with,
such Person. For purposes of this definition, "control" of a Person means the
power, directly or indirectly, either to (a) vote 10% or more of the securities
having ordinary voting power for the election of directors (or persons
performing similar functions) of such Person or (b) direct or cause the
direction of the management and policies of such Person, whether by contract or
otherwise.
"Aggregate Exposure": with respect to any Lender at any time, an
amount equal to (a) until the Closing Date, the aggregate amount of such
Lender's Commitments at such time and (b) thereafter, the sum of (i) the
aggregate then unpaid principal amount of such Lender's Term Loans and (ii) the
amount of such Lender's Revolving Credit Commitment then in effect or, if the
Revolving Credit Commitments have been terminated, the amount of such Lender's
Revolving Extensions of Credit then outstanding.
"Aggregate Exposure Percentage": with respect to any Lender at any
time, the ratio (expressed as a percentage) of such Lender's Aggregate Exposure
at such time to the sum of the Aggregate Exposures of all Lenders at such time.
"Agreement": this Credit Agreement, as amended, supplemented,
replaced or otherwise modified from time to time.
"Applicable Margin": for each Type of Loan under each Facility, the
rate per annum set forth opposite such Facility under the relevant column
heading below:
Base Rate Eurodollar
Loans Loans
Revolving Credit Facility 1.25% 2.25%
Term Loan Facility 1.25% 2.25%
provided, that on and after the first Adjustment Date occurring after the
completion of two fiscal quarters of the Borrower after the Closing Date, the
Applicable Margins with respect to Term Loans, Revolving Credit Loans and Swing
Line Loans will be determined pursuant to the applicable Pricing Grid.
"Application": an application, in such form as the relevant Issuing
Lender may specify from time to time, requesting such Issuing Lender to issue a
Letter of Credit.
"Approved Captive Insurance Subsidiary": Gentiva Insurance
Corporation, a New York insurance company, and any other captive insurance
subsidiary formed by the Borrower and approved by the Administrative Agent
pursuant to Section 6.9(f).
"Arranger": as defined in the preamble hereto.
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"Asset Sale": any Disposition of Property or series of related
Dispositions of Property (excluding any such Disposition permitted by clause
(a), (b), (c) or (d) of Section 7.5) which yields gross proceeds to the Borrower
or any of its Subsidiaries (valued at the initial principal amount thereof in
the case of non-cash proceeds consisting of notes or other debt securities and
valued at fair market value in the case of other non-cash proceeds) in excess of
$1,000,000.
"Assignee": as defined in Section 10.6(c).
"Assignment and Acceptance": as defined in Section 10.6(c).
"Assignor": as defined in Section 10.6(c).
"Auction Rate Securities": variable rate bonds in which the yield is
reset on each payment date via an auction in which all successful bidders
receive the same yield.
"Available Amount": as of any date of determination, the Available
Amount for purposes of Section 7.6(e), 7.6(f), 7.7, 7.8(h) or 7.8(i) (such
Sections, the "Specified Sections") shall be the Base Amount as of the first day
of then applicable fiscal year, less the aggregate amount of such Base Amount
which has been expended pursuant to any Specified Section during such fiscal
year on or prior to such date of determination. As used herein "Base Amount"
means, $25,000,000 per fiscal year; provided that up to 100% of such amount, if
not so expended in the fiscal year for which it is permitted, may be carried
over for expenditure in the next succeeding fiscal year.
"Available Revolving Credit Commitment": with respect to any
Revolving Credit Lender at any time, an amount equal to the excess, if any, of
(a) such Lender's Revolving Credit Commitment then in effect over (b) such
Lender's Revolving Extensions of Credit then outstanding; provided, that in
calculating any Lender's Revolving Extensions of Credit for the purpose of
determining such Lender's Available Revolving Credit Commitment pursuant to
Section 2.9(a), the aggregate principal amount of Swing Line Loans then
outstanding shall be deemed to be zero.
"Base Rate": for any day, a rate per annum equal to the greater of
(a) the Prime Rate in effect on such day and (b) the Federal Funds Effective
Rate in effect on such day plus 1/2 of 1%. For purposes hereof: "Prime Rate"
shall mean the prime lending rate as set forth on the British Banking
Association Telerate Page 5 (or such other comparable page as may, in the
opinion of the Administrative Agent, replace such page for the purpose of
displaying such rate), as in effect from time to time. The Prime Rate is a
reference rate and does not necessarily represent the lowest or best rate
actually available. Any change in the Base Rate due to a change in the Prime
Rate or the Federal Funds Effective Rate shall be effective as of the opening of
business on the effective day of such change in the Prime Rate, or the Federal
Funds Effective Rate, respectively.
"Base Rate Loans": Loans for which the applicable rate of interest is
based upon the Base Rate.
"Benefitted Lender": as defined in Section 10.7(a).
3
"Board": the Board of Governors of the Federal Reserve System of the
United States (or any successor).
"Borrower": as defined in the preamble hereto.
"Borrowing Date": any Business Day specified by the Borrower in a
Borrowing Notice as a date on which the relevant Lenders are requested to make
Loans hereunder.
"Borrowing Notice": with respect to any request for borrowing of
Loans hereunder, a notice from the Borrower, substantially in the form of, and
containing the information prescribed by, Exhibit I, delivered to the
Administrative Agent.
"Business Day": (a) for all purposes other than as covered by clause
(b) below, a day other than a Saturday, Sunday or other day on which commercial
banks in New York City are authorized or required by law to close and (b) with
respect to all notices and determinations in connection with, and payments of
principal and interest on, Eurodollar Loans, any day which is a Business Day
described in clause (a) and which is also a day for trading by and between banks
in Dollar deposits in the interbank eurodollar market.
"Capital Expenditures": for any period, with respect to any Person,
the aggregate of all expenditures by such Person for the acquisition or leasing
(pursuant to a capital lease) of fixed or capital assets or additions to
equipment (including replacements, capitalized repairs and improvements during
such period) which are required to be capitalized under GAAP on a balance sheet
of such Person.
"Capital Lease Obligations": with respect to any Person, the
obligations of such Person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP;
and, for the purposes of this Agreement, the amount of such obligations at any
time shall be the capitalized amount thereof at such time determined in
accordance with GAAP.
"Capital Stock": any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person (other than a corporation)
and any and all warrants, rights or options to purchase any of the foregoing.
"Capital Stock Percentage": 50.0%; provided, that the Capital Stock
Percentage shall be 0.0% if the Consolidated Leverage Ratio as of any date of
determination is less than 3.0 to 1.0.
"Cash Equivalents": (a) marketable direct obligations issued by, or
unconditionally guaranteed by, the United States government or issued by any
agency thereof and backed by the full faith and credit of the United States, in
each case maturing within one year from the date of acquisition; (b)
certificates of deposit, time deposits, bankers' acceptances, eurodollar time
deposits or overnight bank deposits having maturities of one year or less from
the date of acquisition issued by any Lender or by any commercial bank organized
under the laws of the United States of America or any state thereof having
combined capital and surplus of not less than $100,000,000; (c) commercial paper
4
of an issuer rated at least A-2 by Standard & Poor's Ratings Services ("S&P") or
P-2 by ▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's"), or carrying an equivalent
rating by a nationally recognized rating agency, if both of the two named rating
agencies cease publishing ratings of commercial paper issuers generally, and
maturing within nine months from the date of acquisition; (d) repurchase
obligations of any Lender or of any commercial bank satisfying the requirements
of clause (b) of this definition, having a term of not more than 30 days with
respect to securities issued or fully guaranteed or insured by the United States
government; (e) securities with maturities of one year or less from the date of
acquisition issued or fully guaranteed by any state, commonwealth or territory
of the United States, by any political subdivision or taxing authority of any
such state, commonwealth or territory or by any foreign government, the
securities of which state, commonwealth, territory, political subdivision,
taxing authority or foreign government (as the case may be) are rated at least A
by S&P or A by Moody's; (f) securities with maturities of one year or less from
the date of acquisition backed by standby letters of credit issued by any Lender
or any commercial bank satisfying the requirements of clause (b) of this
definition; (g) shares of money market mutual or similar funds which invest
exclusively in assets satisfying the requirements of clauses (a) through (f) of
this definition and (h) Auction Rate Securities if rated at least AAA by a
nationally recognized statistical rating organization.
"Change of Control": the occurrence of any of the following events:
(a) any "person" or "group" (as such terms are used in Sections 13(d) and 14(d)
of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) shall
become, or obtain rights (whether by means or warrants, options or otherwise) to
become, the "beneficial owner" (as defined in Rules 13(d)-3 and 13(d)-5 under
the Exchange Act), directly or indirectly, of more than 35% of the outstanding
common stock of the Borrower or (b) the board of directors of the Borrower shall
cease to consist of a majority of Continuing Directors.
"Closing Date": the date on which the conditions precedent set forth
in Section 5.1 shall have been satisfied, which date is February 28, 2006.
"Code": the Internal Revenue Code of 1986, as amended from time to
time.
"Collateral": all Property of the Loan Parties, now owned or
hereafter acquired, upon which a Lien is purported to be created by any Security
Document.
"Commitment": with respect to any Lender, the sum of the Term Loan
Commitment and the Revolving Credit Commitment of such Lender.
"Commitment Fee Rate": with respect to the Revolving Credit
Commitments, 0.50% per annum, provided, that on and after the first Adjustment
Date occurring after the completion of two full fiscal quarters of the Borrower
(and on each Adjustment Date thereafter), if the Consolidated Leverage Ratio is
less than 3.5 to 1.0 as of such Adjustment Date and if no Event of Default shall
exist and be continuing, the Commitment Fee Rate shall be 0.375% per annum.
"Commonly Controlled Entity": an entity, whether or not incorporated,
that is under common control with the Borrower within the meaning of Section
4001 of ERISA or is part of a group that includes the Borrower and that is
treated as a single employer under Section 414 of the Code.
5
"Compliance Certificate": a certificate duly executed by a
Responsible Officer, substantially in the form of Exhibit B.
"Confidential Information Memorandum": the Confidential Information
Memorandum dated February, 2006 and furnished to the initial Lenders in
connection with the syndication of the Facilities.
"Consolidated Current Assets": of any Person at any date, all amounts
(other than cash and Cash Equivalents) that would, in conformity with GAAP, be
set forth opposite the caption "total current assets" (or any like caption) on a
consolidated balance sheet of such Person and its Subsidiaries at such date.
"Consolidated Current Liabilities": of any Person at any date, all
amounts that would, in conformity with GAAP, be set forth opposite the caption
"total current liabilities" (or any like caption) on a consolidated balance
sheet of such Person and its Subsidiaries at such date, but in any event
excluding (a) the current portion of Funded Debt and (b) all Indebtedness
consisting of Revolving Credit Loans and Swing Line Loans.
"Consolidated EBITDA": of any Person for any period, Consolidated Net
Income of such Person and its Subsidiaries for such period plus, without
duplication and to the extent reflected as a charge in the statement of such
Consolidated Net Income for such period, the sum of (a) income tax expense, (b)
Consolidated Interest Expense of such Person and its Subsidiaries, amortization
or write-off of debt discount and debt issuance costs and commissions, discounts
and other fees and charges associated with Indebtedness, (c) depreciation and
amortization expense, (d) amortization of intangibles (including, but not
limited to, goodwill) and organization costs, (e) any extraordinary, unusual or
non-recurring expenses or losses (including, whether or not otherwise includable
as a separate item in the statement of such Consolidated Net Income for such
period, losses on sales of assets outside of the ordinary course of business)
and (f) any other non-cash charges, and minus, to the extent included in the
statement of such Consolidated Net Income for such period, the sum of (x)
interest income (except to the extent deducted in determining Consolidated
Interest Expense), (y) any extraordinary, unusual or non-recurring income or
gains (including, whether or not otherwise includable as a separate item in the
statement of such Consolidated Net Income for such period, gains on the sales of
assets outside of the ordinary course of business) and (z) any other non-cash
income, all as determined on a consolidated basis.
"Consolidated Interest Coverage Ratio": for any period, the ratio of
(a) Consolidated EBITDA of the Borrower and its Subsidiaries for such period to
(b) Consolidated Interest Expense of the Borrower and its Subsidiaries for such
period; provided that for any period of four consecutive fiscal quarters ending
on the last day of any Specified Fiscal Quarter, for purposes of this
6
definition, Consolidated Interest Expense for such period shall be deemed equal
to (a) for the period ending on the last day of the first Specified Fiscal
Quarter, four times Consolidated Interest Expense with respect to the first
Specified Fiscal Quarter, (b) for the period ending on the last day of the
second Specified Fiscal Quarter, two times the sum of Consolidated Interest
Expense for the first and second Specified Fiscal Quarters, and (c) for the
period ending on the last day of the third Specified Fiscal Quarter, 4/3 times
the sum of Consolidated Interest Expense for the first, second and third
Specified Fiscal Quarters.
"Consolidated Interest Expense": of any Person for any period, total
cash interest expense (including that attributable to Capital Lease Obligations)
of such Person and its Subsidiaries for such period with respect to all
outstanding Indebtedness of such Person and its Subsidiaries (including, without
limitation, all commissions, discounts and other fees and charges owed by such
Person with respect to letters of credit and bankers' acceptance financing and
net costs of such Person under Hedge Agreements in respect of interest rates to
the extent such net costs are allocable to such period in accordance with GAAP).
"Consolidated Leverage Ratio": as at the last day of any period of
four consecutive fiscal quarters of the Borrower, the ratio of (a) Consolidated
Total Debt on such day to (b) Consolidated EBITDA of the Borrower and its
Subsidiaries for such period; provided that for purposes of calculating
Consolidated EBITDA of the Borrower and its Subsidiaries for any period, (i) the
Consolidated EBITDA of any Acquired Person (or of any business or division of
any Acquired Person which is acquired by the Borrower or its Subsidiaries) shall
be included for the period in which such Acquired Person (or such business or
division) was acquired on a pro forma basis for such period (as if the
consummation of such acquisition and the incurrence or assumption of any
Indebtedness in connection therewith occurred on the first day of such period)
if the consolidated balance sheet of such Acquired Person as at the end of the
period preceding the acquisition thereof and the related consolidated statements
of income and stockholders' equity and of cash flows for the period in respect
of which Consolidated EBITDA is to be calculated (x) have been previously
provided to the Administrative Agent and (y) either (1) have been reported on
without a qualification arising out of the scope of the audit by independent
certified public accountants of nationally recognized standing or (2) have been
found acceptable by the Administrative Agent and (ii) the Consolidated EBITDA of
any Person (or assets comprising a business) Disposed of by the Borrower or its
Subsidiaries during such period shall be excluded for such period (as if the
consummation of such Disposition and the repayment of any Indebtedness in
connection therewith had occurred on the first day of such period) and,
provided, further, that in calculating Consolidated EBITDA of the Borrower and
its consolidated Subsidiaries for any period of four consecutive fiscal quarters
ending on the last day of any Specified Fiscal Quarter, for purposes of this
definition, Consolidated EBITDA for such period shall be deemed equal to (a) for
the period ending on the last day of the first Specified Fiscal Quarter, four
times Consolidated EBITDA with respect to the first Specified Fiscal Quarter,
(b) for the period ending on the last day of the second Specified Fiscal
Quarter, two times the sum of Consolidated EBITDA for the first and second
Specified Fiscal Quarters, and (c) for the period ending on the last day of the
third Specified Fiscal Quarter, 4/3 times the sum of Consolidated EBITDA for the
first, second and third Specified Fiscal Quarters.
"Consolidated Net Income": of any Person for any period, the
consolidated net income (or loss) of such Person and its Subsidiaries for such
period, determined on a consolidated basis in accordance with GAAP; provided,
that in calculating Consolidated Net Income of the Borrower and its consolidated
Subsidiaries for any period, there shall be excluded (a) the income (or deficit)
of any Person accrued prior to the date it becomes a Subsidiary of the Borrower
or is merged into or consolidated with the Borrower or any of its Subsidiaries,
7
(b) the income (or deficit) of any Person (other than a Subsidiary of the
Borrower) in which the Borrower or any of its Subsidiaries has an ownership
interest, except to the extent that any such income is actually received by the
Borrower or such Subsidiary in the form of dividends or similar distributions
and (c) the undistributed earnings of any Subsidiary of the Borrower to the
extent that the declaration or payment of dividends or similar distributions by
such Subsidiary is not at the time permitted by the terms of any Contractual
Obligation (other than under any Loan Document) or Requirement of Law applicable
to such Subsidiary.
"Consolidated Total Debt": at any date, the aggregate principal
amount of all Funded Debt of the Borrower and its Subsidiaries at such date,
determined on a consolidated basis in accordance with GAAP.
"Consolidated Working Capital": at any date, the difference of (a)
Consolidated Current Assets of the Borrower on such date less (b) Consolidated
Current Liabilities of the Borrower on such date.
"Continuing Directors": the directors of the Borrower on the Closing
Date and each other director of the Borrower, if, in each case, such other
director's nomination for election to the board of directors of the Borrower is
recommended by at least a majority of the then Continuing Directors.
"Contractual Obligation": with respect to any Person, any provision
of any security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
Property is bound.
"Control Investment Affiliate": with respect to any Person, any other
Person that (a) directly or indirectly, is in control of, is controlled by, or
is under common control with, such Person and (b) is organized by such Person
primarily for the purpose of making equity or debt investments in one or more
companies. For purposes of this definition, "control" of a Person means the
power, directly or indirectly, to direct or cause the direction of the
management and policies of such Person, whether by contract or otherwise.
"Default": any of the events specified in Section 8, whether or not
any requirement for the giving of notice, the lapse of the applicable grace
period, or both, has been satisfied.
"Derivatives Counterparty": as defined in Section 7.6.
"Disposition": with respect to any Property, any sale, lease, sale
and leaseback, assignment, conveyance, transfer or other disposition thereof;
and the terms "Dispose" and "Disposed of" shall have correlative meanings.
"Disqualified Stock": any Capital Stock or other ownership or profit
interest of any Loan Party that any Loan Party is or, upon the passage of time
or the occurrence of any event, may, at any time prior to six months after the
final scheduled maturity of the Term Loans, become obligated to redeem,
purchase, retire, defease or otherwise make any payment in respect of in
consideration other than Capital Stock (other than Disqualified Stock).
8
"Dollars" and "$": lawful currency of the United States of America.
"Domestic Subsidiary": any Subsidiary of the Borrower organized under
the laws of any jurisdiction within the United States of America.
"ECF Percentage": with respect to any fiscal year of the Borrower,
50.0%; provided, that, with respect to any fiscal year of the Borrower ending on
or after December 31, 2006, the ECF Percentage shall be 0.0% if the Consolidated
Leverage Ratio as of the last day of such fiscal year is less than 3.0 to 1.0.
"Environmental Laws": any and all laws, rules, orders, regulations,
statutes, ordinances, guidelines, codes, decrees, or other legally enforceable
requirements (including, without limitation, common law) of any international
authority, foreign government, the United States, or any state, local, municipal
or other governmental authority, regulating, relating to or imposing liability
or standards of conduct concerning protection of the environment or of human
health, or employee health and safety, as has been, is now, or may at any time
hereafter be, in effect.
"Environmental Permits": any and all permits, licenses, approvals,
registrations, notifications, exemptions and other authorizations required under
any Environmental Law.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Eurocurrency Reserve Requirements": for any day, the aggregate
(without duplication) of the maximum rates (expressed as a decimal fraction) of
reserve requirements in effect on such day (including, without limitation,
basic, supplemental, marginal and emergency reserves) under any regulations of
the Board or other Governmental Authority having jurisdiction with respect
thereto dealing with reserve requirements prescribed for eurocurrency funding
(currently referred to as "Eurocurrency Liabilities" in Regulation D of the
Board) maintained by a member bank of the Federal Reserve System.
"Eurodollar Base Rate": with respect to each day during each Interest
Period, the rate per annum determined on the basis of the rate for deposits in
Dollars for a period equal to such Interest Period commencing on the first day
of such Interest Period appearing on Page 3750 of the Telerate screen as of
11:00 A.M., London time, two Business Days prior to the beginning of such
Interest Period. In the event that such rate does not appear on Page 3750 of the
Telerate screen (or otherwise on such screen), the "Eurodollar Base Rate" for
purposes of this definition shall be determined by reference to such other
comparable publicly available service for displaying eurodollar rates as may be
selected by the Administrative Agent.
"Eurodollar Loans": Loans for which the applicable rate of interest
is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each Interest
Period, a rate per annum determined for such day in accordance with the
following formula (rounded upward to the nearest 1/100th of 1%):
Eurodollar Base Rate
----------------------------------------
1.00 - Eurocurrency Reserve Requirements
9
"Eurodollar Tranche": the collective reference to Eurodollar Loans
the then current Interest Periods with respect to all of which begin on the same
date and end on the same later date (whether or not such Loans shall originally
have been made on the same day).
"Event of Default": any of the events specified in Section 8,
provided that any requirement for the giving of notice, the lapse of time, or
both, has been satisfied.
"Excess Cash Flow": for any fiscal year of the Borrower (or with
respect to the period ending December 31, 2006, the six-month period ending on
such date), the excess, if any, of (a) the sum, without duplication, of (i)
Consolidated Net Income of the Borrower and its Subsidiaries for such fiscal
period, (ii) the amount of all non-cash charges (including depreciation and
amortization) deducted in arriving at such Consolidated Net Income, (iii) the
amount of the decrease, if any, in Consolidated Working Capital for such fiscal
period, (iv) the aggregate net amount of non-cash loss on the Disposition of
Property by the Borrower and its Subsidiaries during such fiscal period (other
than sales of inventory in the ordinary course of business), to the extent
deducted in arriving at such Consolidated Net Income and (v) the net increase
during such fiscal period (if any) in deferred tax accounts of the Borrower
minus (b) the sum, without duplication, of (i) the amount of all non-cash
credits included in arriving at such Consolidated Net Income, (ii) the aggregate
amount actually paid by the Borrower and its Subsidiaries in cash during such
fiscal period on account of Capital Expenditures (minus the principal amount of
Indebtedness incurred in connection with such expenditures and minus the amount
of any such expenditures financed with the proceeds of any Reinvestment Deferred
Amount), (iii) the aggregate amount of all prepayments of Revolving Credit Loans
and Swing Line Loans during such fiscal period to the extent accompanying
permanent optional reductions of the Revolving Credit Commitments and all
optional prepayments of the Term Loans during such fiscal period, (iv) the
aggregate amount of all regularly scheduled principal payments of Funded Debt
(including, without limitation, the Term Loans) of the Borrower and its
Subsidiaries made during such fiscal period (other than in respect of any
revolving credit facility to the extent there is not an equivalent permanent
reduction in commitments thereunder), (v) the amount of the increase, if any, in
Consolidated Working Capital for such fiscal period, (vi) the aggregate net
amount of non-cash gain on the Disposition of Property by the Borrower and its
Subsidiaries during such fiscal period (other than sales of inventory in the
ordinary course of business), to the extent included in arriving at such
Consolidated Net Income, and (vii) the net decrease during such fiscal period
(if any) in deferred tax accounts of the Borrower.
"Excess Cash Flow Application Date": as defined in Section 2.12(c).
"Excluded Foreign Subsidiaries": any Foreign Subsidiary in respect of
which either (a) the pledge of all of the Capital Stock of such Subsidiary as
Collateral or (b) the guaranteeing by such Subsidiary of the Obligations, would,
in the good faith judgment of the Borrower, result in adverse tax consequences
to the Borrower.
"Existing Credit Facilities": (i) the Loan and Security Agreement,
dated June 13, 2002, by and among the lending institutions parties thereto,
Fleet Capital Corporation, a Rhode Island corporation, as administrative agent,
and the Borrower, Gentiva Health Services Holding Corp., a Delaware corporation,
10
and each of the Subsidiary Borrowing Corporations parties thereto, as amended
from time to time prior to the date hereof and (ii) the Second Amended and
Restated Loan and Security Agreement, dated as of June 30, 2005, by and among
Residential Funding Corporation, a Delaware corporation, Healthfield Operating
Group, Inc., a Delaware corporation, and the other Credit Parties (as defined
therein).
"Existing Mezzanine Debt": all notes and warrants issued pursuant to
the Note Purchase Agreement, dated as of September 25, 2003, among Four Seasons
Healthcare, Inc., a Delaware corporation, Fortress Credit Opportunities I LP and
Chatham Investment Fund II, LLC or any amendment or amendment and restatement
thereof from time to time prior to the date hereof.
"Facility": each of (a) the Term Loan Commitments and the Term Loans
made thereunder (the "Term Loan Facility") and (b) the Revolving Credit
Commitments and the extensions of credit made thereunder (the "Revolving Credit
Facility").
"Federal Funds Effective Rate": for any day, the weighted average of
the rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day which is a Business Day, the average of the
quotations for the day of such transactions received by the Administrative Agent
from three federal funds brokers of recognized standing selected by it.
"Foreign Subsidiary": any Subsidiary of the Borrower that is not a
Domestic Subsidiary.
"FQ1", "FQ2 ", "FQ3", and "FQ4": when used with a numerical year
designation, means the first, second, third or fourth fiscal quarters,
respectively, of the designated fiscal year of the Borrower (e.g., FQ1 2005
means the first fiscal quarter of the Borrower's 2005 fiscal year, which ended
April 3, 2005).
"Funded Debt": with respect to any Person, all Indebtedness of such
Person of the types described in clauses (a) through (e) of the definition of
"Indebtedness" in this Section.
"Funding Office": the office specified from time to time by the
Administrative Agent as its funding office by notice to the Borrower and the
Lenders.
"GAAP": generally accepted accounting principles in the United States
of America as in effect from time to time.
"Governmental Authority": any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, taxing, regulatory or administrative functions of or
pertaining to government.
"Guarantee and Collateral Agreement": the Guarantee and Collateral
Agreement to be executed and delivered by the Borrower and each Guarantor,
substantially in the form of Exhibit A, as the same may be amended,
supplemented, replaced or otherwise modified from time to time.
11
"Guarantee Obligation": with respect to any Person (the "guaranteeing
person"), any obligation of (a) the guaranteeing person or (b) another Person
(including any bank under any letter of credit), if to induce the creation of
which the guaranteeing person has issued a reimbursement, counterindemnity or
similar obligation, in either case guaranteeing or in effect guaranteeing any
Indebtedness, leases, dividends or other obligations (the "primary obligations")
of any other third Person (the "primary obligor") in any manner, whether
directly or indirectly, including, without limitation, any obligation of the
guaranteeing person, whether or not contingent, (i) to purchase any such primary
obligation or any Property constituting direct or indirect security therefor,
(ii) to advance or supply funds (1) for the purchase or payment of any such
primary obligation or (2) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (iii) to purchase Property, securities or services primarily
for the purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary obligation or
(iv) otherwise to assure or hold harmless the owner of any such primary
obligation against loss in respect thereof; provided, however, that the term
Guarantee Obligation shall not include endorsements of instruments for deposit
or collection in the ordinary course of business. The amount of any Guarantee
Obligation of any guaranteeing person shall be deemed to be the lower of (a) an
amount equal to the stated or determinable amount of the primary obligation in
respect of which such Guarantee Obligation is made and (b) the maximum amount
for which such guaranteeing person may be liable pursuant to the terms of the
instrument embodying such Guarantee Obligation, unless such primary obligation
and the maximum amount for which such guaranteeing person may be liable are not
stated or determinable, in which case the amount of such Guarantee Obligation
shall be such guaranteeing person's maximum reasonably anticipated liability in
respect thereof as determined by the Borrower in good faith.
"Guarantor": each Subsidiary of the Borrower other than a Foreign
Subsidiary, any Approved Captive Insurance Subsidiary, QHR Southwest Business
Trust, a Pennsylvania business trust, and any not-for-profit entity established
in the State of Michigan for the purpose of rendering neuropsychology services.
"Health Care Laws": as defined in Section 4.25(a).
"Health Care Permits": as defined in Section 4.25(b).
"Health Care Reportable Event": (i) the Borrower or any of its
Subsidiaries becomes subject to any civil or criminal investigations, or any
other material inquiries, validation reviews, program integrity reviews,
reimbursement audits or statements of deficiencies, involving and/or related to
its compliance with Health Care Laws; (ii) any material exclusion, voluntary
disclosure, notice of claim to recover material overpayments, revocation,
suspension, termination, probation, restriction, limitation, denial, or
non-renewal affecting the Borrower or any of its Subsidiaries with respect to
any material Program; or (iii) the occurrence of any reportable event under any
settlement agreement or corporate integrity agreement involving and/or related
to its compliance with Health Care Laws entered into with any Governmental
Authority.
12
"Healthfield": as defined in the recitals hereto.
"Hedge Agreements": all interest rate or currency swaps, caps or
collar agreements, foreign exchange agreements, commodity contracts or similar
arrangements entered into by the Borrower or its Subsidiaries providing for
protection against fluctuations in interest rates, currency exchange rates,
commodity prices or the exchange of nominal interest obligations, either
generally or under specific contingencies.
"Increased Amount Date": as defined in Section 2.25(a).
"Indebtedness": of any Person at any date, without duplication, (a)
all indebtedness of such Person for borrowed money, (b) all obligations of such
Person for the deferred purchase price of Property or services (other than trade
payables incurred in the ordinary course of such Person's business), (c) all
obligations of such Person evidenced by notes, bonds, debentures or other
similar instruments, (d) all indebtedness created or arising under any
conditional sale or other title retention agreement with respect to Property
acquired by such Person (even though the rights and remedies of the seller or
lender under such agreement in the event of default are limited to repossession
or sale of such Property), (e) all Capital Lease Obligations or Synthetic Lease
Obligations of such Person, (f) all obligations of such Person, contingent or
otherwise, as an account party or applicant under acceptance, letter of credit
or similar facilities, (g) all obligations of such Person, contingent or
otherwise, to purchase, redeem, retire or otherwise acquire for value any
Capital Stock of such Person, (h) all Guarantee Obligations of such Person in
respect of obligations of the kind referred to in clauses (a) through (g) above,
(i) all obligations of the kind referred to in clauses (a) through (h) above
secured by (or for which the holder of such obligation has an existing right,
contingent or otherwise, to be secured by) any Lien on Property (including,
without limitation, accounts and contract rights) owned by such Person, whether
or not such Person has assumed or become liable for the payment of such
obligation and (j) for the purposes of Section 8(e) only, all obligations of
such Person in respect of Hedge Agreements.
"Indemnified Liabilities": as defined in Section 10.5.
"Indemnitee": as defined in Section 10.5.
"Insolvency": with respect to any Multiemployer Plan, the condition
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Intellectual Property": the collective reference to all rights,
priorities and privileges relating to intellectual property, whether arising
under United States, state, multinational or foreign laws or otherwise,
including, without limitation, copyrights, copyright licenses, patents, patent
licenses, trademarks, trademark licenses, service-marks, technology, know-how
and processes, recipes, formulas, trade secrets, and all rights to ▇▇▇ at law or
in equity for any infringement or other impairment thereof, including the right
to receive all proceeds and damages therefrom.
13
"Interest Payment Date": (a) as to any Base Rate Loan, the last day
of each March, June, September and December to occur while such Loan is
outstanding and the final maturity date of such Loan, (b) as to any Eurodollar
Loan having an Interest Period of three months or less, the last day of such
Interest Period, (c) as to any Eurodollar Loan having an Interest Period longer
than three months, each day that is three months, or a whole multiple thereof,
after the first day of such Interest Period and the last day of such Interest
Period and (d) as to any Loan (other than any Revolving Credit Loan that is a
Base Rate Loan (unless all Revolving Credit Loans are being repaid in full and
the Revolving Credit Commitments terminated) and any Swing Line Loan), the date
of any repayment or prepayment made in respect thereof.
"Interest Period": as to any Eurodollar Loan, (a) initially, the
period commencing on the borrowing or conversion date, as the case may be, with
respect to such Eurodollar Loan and ending one, two, three or six months
thereafter, as selected by the Borrower in its Borrowing Notice or notice of
conversion, as the case may be, given with respect thereto; and (b) thereafter,
each period commencing on the last day of the immediately preceding Interest
Period applicable to such Eurodollar Loan and ending one, two, three or six
months thereafter, as selected by the Borrower by irrevocable notice to the
Administrative Agent not less than three Business Days prior to the last day of
the then current Interest Period with respect thereto; provided that, all of the
foregoing provisions relating to Interest Periods are subject to the following:
(a) if any Interest Period would otherwise end on a day that is
not a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless the result of such extension would be
to carry such Interest Period into another calendar month in which
event such Interest Period shall end on the immediately preceding
Business Day;
(b) any Interest Period that would otherwise extend beyond the
Revolving Credit Termination Date or beyond the date final payment is
due on the Term Loans shall end on the Revolving Credit Termination
Date or such due date, as applicable; and
(c) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of the calendar month at
the end of such Interest Period.
"Investments": as defined in Section 7.8.
"Issuing Lender": any Revolving Credit Lender from time to time
designated by the Borrower as an Issuing Lender with the consent of such
Revolving Credit Lender and the Administrative Agent.
"L/C Commitment": $55,000,000.
"L/C Fee Payment Date": the last day of each March, June, September
and December and the last day of the Revolving Credit Commitment Period.
14
"L/C Obligations": at any time, an amount equal to the sum of,
without duplication, (a) the aggregate then undrawn and unexpired amount of the
then outstanding Letters of Credit and (b) the aggregate amount of drawings
under Letters of Credit that have not then been reimbursed pursuant to Section
3.5.
"L/C Participants": with respect to any Letter of Credit, the
collective reference to all the Revolving Credit Lenders other than the Issuing
Lender that issued such Letter of Credit.
"Lender Addendum": with respect to any initial Lender, a Lender
Addendum, substantially in the form of Exhibit H, or otherwise acceptable to the
Administrative Agent, executed and delivered by such Lender as provided in
Section 10.17.
"Lenders": as defined in the preamble hereto, and specifically
including each Issuing Lender.
"Letters of Credit": as defined in Section 3.1(a).
"Lien": any mortgage, pledge, hypothecation, assignment for security,
deposit arrangement for security, encumbrance, lien (statutory or other), charge
or other security interest or any preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title retention
agreement and any capital lease having substantially the same economic effect as
any of the foregoing).
"Loan": any loan made by any Lender pursuant to this Agreement.
"Loan Documents": this Agreement, the Security Documents, the
Applications and the Notes.
"Loan Parties": the Borrower and each Subsidiary of the Borrower that
is a party to a Loan Document.
"Majority Facility Lenders": with respect to any Facility, the
holders of more than 50% of the aggregate unpaid principal amount of the Term
Loans or the Total Revolving Extensions of Credit, as the case may be,
outstanding under such Facility (or, in the case of the Revolving Credit
Facility, prior to any termination of the Revolving Credit Commitments, the
holders of more than 50% of the Total Revolving Credit Commitments).
"Majority Revolving Credit Facility Lenders": the Majority Facility
Lenders in respect of the Revolving Credit Facility.
"Material Adverse Effect": a material adverse effect on (a) the
Acquisition, (b) the business, operations, assets, property, condition
(financial or otherwise) or prospects of the Borrower and its Subsidiaries taken
as a whole or (c) the validity or enforceability of this Agreement or any of the
other material Loan Documents or any material rights or remedies of the
Administrative Agent or the Lenders hereunder or thereunder (to the extent such
rights and remedies are currently permitted under applicable Requirements of
Law).
15
"Materials of Environmental Concern": any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products,
polychlorinated biphenyls, urea-formaldehyde insulation, asbestos, pollutants,
contaminants, radioactivity, and any other substances or forces of any kind,
whether or not any such substance or force is defined as hazardous or toxic
under any Environmental Law, that is regulated pursuant to or could give rise to
liability under any Environmental Law.
"Mortgaged Properties": any real properties as to which the
Administrative Agent for the benefit of the Secured Parties shall have been
granted a Lien pursuant to any Mortgage.
"Mortgages": any and all mortgages or deeds of trust made by any Loan
Party in favor of, or for the benefit of, the Administrative Agent for the
benefit of the Secured Parties, in a form as may be reasonably agreed by the
Administrative Agent and the Loan Parties thereto.
"Multiemployer Plan": a Plan that is a multiemployer plan as defined
in Section 4001(a)(3) of ERISA.
"Net Cash Proceeds": (a) in connection with any Asset Sale or any
Recovery Event, the proceeds thereof in the form of cash and Cash Equivalents
(including any such proceeds received by way of deferred payment of principal
pursuant to a note or installment receivable or purchase price adjustment
receivable or otherwise, but only as and when received) of such Asset Sale or
Recovery Event, net of reasonable and customary attorneys' fees, accountants'
fees, investment banking fees, amounts required to be applied to the repayment
of Indebtedness secured by a Lien expressly permitted hereunder on any asset
which is the subject of such Asset Sale or Recovery Event (other than any Lien
pursuant to a Security Document) and other reasonable and customary fees and
expenses actually incurred in connection therewith and net of taxes paid or
reasonably estimated to be payable as a result thereof (after taking into
account any available tax credits or deductions and any tax sharing
arrangements) and (b) in connection with any issuance or sale of equity
securities or debt securities or instruments or the incurrence of loans, the
cash proceeds received from such issuance or incurrence, net of attorneys' fees,
investment banking fees, accountants' fees, underwriting discounts and
commissions and other customary fees and expenses actually incurred in
connection therewith.
"New Revolving Credit Commitments": as defined in Section 2.25(a).
"New Revolving Credit Lender": as defined in Section 2.25(a).
"New Revolving Credit Loan": as defined in Section 2.25(b).
"Non-Excluded Taxes": as defined in Section 2.20(a).
"Non-U.S. Lender": as defined in Section 2.20(d).
"Note": any promissory note evidencing any Loan.
"Obligations": the unpaid principal of and interest on (including,
without limitation, interest accruing after the maturity of the Loans and
Reimbursement Obligations and interest accruing after the filing of any petition
in bankruptcy, or the commencement of any insolvency, reorganization or like
16
proceeding, relating to the Borrower, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding) the Loans, the
Reimbursement Obligations and all other obligations and liabilities of the
Borrower to the Administrative Agent or to any Lender or any Qualified
Counterparty, whether direct or indirect, absolute or contingent, due or to
become due, or now existing or hereafter incurred, which may arise under, out
of, or in connection with, this Agreement, any other Loan Document, the Letters
of Credit, any Specified Hedge Agreement or any other document made, delivered
or given in connection herewith or therewith, whether on account of principal,
interest, reimbursement obligations, fees, indemnities, costs, expenses
(including, without limitation, all fees, charges and disbursements of counsel
to the Arranger, to the Administrative Agent or to any Lender that are required
to be paid by the Borrower pursuant hereto) or otherwise; provided, that (i)
obligations of the Borrower or any Subsidiary under any Specified Hedge
Agreement shall be secured and guaranteed pursuant to the Security Documents
only to the extent that, and for so long as, the other Obligations are so
secured and guaranteed and (ii) any release of Collateral or Guarantors effected
in the manner permitted by this Agreement shall not require the consent of
holders of obligations under Specified Hedge Agreements.
"Other Taxes": 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.
"Participant": as defined in Section 10.6(b).
"Payment Office": the office specified from time to time by the
Administrative Agent as its payment office by notice to the Borrower and the
Lenders.
"PBGC": the Pension Benefit Guaranty Corporation established pursuant
to Subtitle A of Title IV of ERISA (or any successor).
"Permits": the collective reference to (i) Environmental Permits,
(ii) Health Care Permits, and (iii) any and all other franchises, licenses,
leases, permits, approvals, notifications, certifications, registrations,
authorizations, exemptions, qualifications, easements, and rights of way.
"Permitted Acquisitions": as defined in Section 7.8(h).
"Permitted Liens": the collective reference to (i) in the case of
Collateral other than Pledged Stock, Liens permitted by Section 7.3 and (ii) in
the case of Collateral consisting of Pledged Stock, non-consensual Liens
permitted by Section 7.3 to the extent arising by operation of law.
"Permitted Perfection Exception": as defined in the Guarantee and
Collateral Agreement.
"Permitted Subordinated Indebtedness": Indebtedness otherwise
permitted hereunder that is subordinated in right of payment to any of the
Obligations.
17
"Person": an individual, partnership, corporation, limited liability
company, business trust, joint stock company, trust, unincorporated association,
joint venture, Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan that is
covered by ERISA and in respect of which the Borrower or a Commonly Controlled
Entity is (or, if such plan were terminated at such time, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA
and which is subject to Title IV of ERISA or Section 412 of the Code.
"Pledged Stock": as defined in the Guarantee and Collateral
Agreement.
"Pricing Grids": the pricing grids attached hereto as Annex A.
"Pro Forma Balance Sheet": as defined in Section 4.1(a).
"Programs": as defined in Section 4.25(c).
"Projections": as defined in Section 6.2(c).
"Property": of any Person means any right or interest of such Person
in or to property of any kind whatsoever, whether real, personal or mixed and
whether tangible or intangible, including, without limitation, Capital Stock in
which such Person has an interest.
"Qualified Counterparty": with respect to any Specified Hedge
Agreement, any counterparty thereto that, at the time such Specified Hedge
Agreement was entered into, was a Lender or an affiliate of a Lender.
"Real Estate": All real property held or used by the Borrower or its
Subsidiaries, which the Borrower or the relevant Subsidiary owns in fee or in
which it holds a leasehold interest as a tenant, all of which is more
particularly identified in Schedule 4.24.
"Recovery Event": any settlement of or payment in respect of any
property or casualty insurance claim or any condemnation proceeding relating to
any asset of the Borrower or any of its Subsidiaries.
"Refinancing": as defined in the recitals hereto.
"Refunded Swing Line Loans": as defined in Section 2.7(b).
"Refunding Date": as defined in Section 2.7(c).
"Register": as defined in Section 10.6(d).
"Regulation H": Regulation H of the Board as in effect from time to
time.
"Regulation U": Regulation U of the Board as in effect from time to
time.
18
"Reimbursement Obligation": the obligation of the Borrower to
reimburse each Issuing Lender pursuant to Section 3.5 for amounts drawn under
Letters of Credit issued by such Issuing Lender.
"Reinvestment Deferred Amount": with respect to any Reinvestment
Event, the aggregate Net Cash Proceeds received by the Borrower or any of its
Subsidiaries in connection therewith that are not applied to prepay the Term
Loans or reduce the Revolving Credit Commitments pursuant to Section 2.12(b) as
a result of the delivery of a Reinvestment Notice.
"Reinvestment Event": any Asset Sale or Recovery Event in respect of
which the Borrower has delivered a Reinvestment Notice.
"Reinvestment Notice": a written notice executed by a Responsible
Officer stating that no Default or Event of Default shall exist and be
continuing and that the Borrower (directly or indirectly through a Wholly Owned
Subsidiary) intends and expects to use all or a specified portion of the Net
Cash Proceeds of an Asset Sale or Recovery Event to acquire assets useful in its
or such Subsidiary's business.
"Reinvestment Prepayment Amount": with respect to any Reinvestment
Event, the Reinvestment Deferred Amount relating thereto less any amount
expended prior to the relevant Reinvestment Prepayment Date to acquire assets
useful in the Borrower's business.
"Reinvestment Prepayment Date": with respect to any Reinvestment
Event, the earlier of (a) the date occurring six months after such Reinvestment
Event and (b) the date on which the Borrower shall have determined not to
acquire assets useful in the Borrower's business with all or any portion of the
relevant Reinvestment Deferred Amount.
"Related Fund": with respect to any Lender, any fund that (a) invests
in commercial loans and (b) is managed or advised by the same investment advisor
as such Lender, by such Lender, an affiliate of such Lender or such investment
advisor.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of Section 4241
of ERISA.
"Reportable Event": any of the events set forth in Section 4043(c) of
ERISA, other than those events as to which the thirty day notice period is
waived under PBGC Reg. ss. 4043.
"Required Lenders": at any time, the holders of more than 50% of (a)
until the Closing Date, the Commitments and (b) thereafter, the sum of (i) the
aggregate unpaid principal amount of the Term Loans then outstanding and (ii)
the Total Revolving Credit Commitments then in effect or, if the Revolving
Credit Commitments have been terminated, the Total Revolving Extensions of
Credit then outstanding.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its Property or to which such Person or
any of its Property is subject.
19
"Responsible Officer": as to any Person, the chief executive officer,
chief operating officer, president or chief financial officer of such Person,
but in any event, with respect to financial matters, the chief financial officer
of such Person. Unless otherwise qualified, all references to a "Responsible
Officer" shall refer to a Responsible Officer of the Borrower.
"Restricted Payments": as defined in Section 7.6.
"Restrictive Covenant Agreements": (i) the Restrictive Covenant
Agreement (Chronic Business - Sellers), entered into as of June 13, 2002, by and
among Gentiva Health Services, Inc., a Delaware corporation, and the other
Sellers and Seller Affiliates identified therein, and Accredo Health,
Incorporated, a Delaware corporation, and the other Protected Parties identified
therein, and (ii) the Restrictive Covenant Agreement (Acute Business - Sellers),
entered into as of June 13, 2002, by and among Gentiva Health Services, Inc., a
Delaware corporation, and the other Sellers and Seller Affiliates identified
therein, and Accredo Health, Incorporated, a Delaware corporation, and the other
Protected Parties identified therein
"Revolving Credit Commitment": as to any Lender, the obligation of
such Lender, if any, to make Revolving Credit Loans and participate in Swing
Line Loans and Letters of Credit, in an aggregate principal and/or face amount
not to exceed the amount set forth under the heading "Revolving Credit
Commitment" opposite such Lender's name on Schedule 1 to the Lender Addendum
delivered by such Lender, or, as the case may be, in the Assignment and
Acceptance pursuant to which such Lender became a party hereto, as the same may
be changed from time to time pursuant to the terms hereof. The original
aggregate amount of the Revolving Credit Commitments is $75,000,000.
"Revolving Credit Commitment Period": the period from and including
the Closing Date to the Revolving Credit Termination Date.
"Revolving Credit Facility": as defined in the definition of
"Facility" in this Section 1.1.
"Revolving Credit Lender": each Lender that has a Revolving Credit
Commitment or holds Revolving Extensions of Credit.
"Revolving Credit Loans": as defined in Section 2.4.
"Revolving Credit Note": as defined in Section 2.8(e).
"Revolving Credit Percentage": as to any Revolving Credit Lender at
any time, the percentage which such Lender's Revolving Credit Commitment then
constitutes of the Total Revolving Credit Commitments (or, at any time after the
Revolving Credit Commitments shall have expired or terminated, the percentage
which the aggregate amount of such Lender's Revolving Extensions of Credit then
outstanding constitutes of the amount of the Total Revolving Extensions of
Credit then outstanding).
20
"Revolving Credit Termination Date": the six-year anniversary of the
Closing Date or, if earlier, the date on which the Revolving Credit Commitments
are terminated in full pursuant to Sections 2.10 or 8 hereof.
"Revolving Extensions of Credit": as to any Revolving Credit Lender
at any time, an amount equal to the sum of (a) the aggregate principal amount of
all Revolving Credit Loans then outstanding to such Lender, (b) such Lender's
Revolving Credit Percentage of the L/C Obligations then outstanding and (c) such
Lender's Revolving Credit Percentage of the aggregate principal amount of Swing
Line Loans then outstanding.
"SEC": the Securities and Exchange Commission (or successors thereto
or an analogous Governmental Authority).
"Secured Parties": as defined in the Guarantee and Collateral
Agreement.
"Security Documents": the collective reference to the Guarantee and
Collateral Agreement, any Mortgages, any intellectual property security
agreements or control agreements required to be delivered pursuant to the
Guarantee and Collateral Agreement or any other Loan Document and all other
security documents hereafter delivered to the Administrative Agent granting a
Lien on any Property of any Person to secure the Obligations.
"Single Employer Plan": any Plan that is not a Multiemployer Plan.
"Solvent": with respect to any Person, as of any date of
determination, (a) the amount of the "present fair saleable value" of the assets
of such Person will, as of such date, exceed the amount of all "liabilities of
such Person, contingent or otherwise", as of such date, as such quoted terms are
determined in accordance with applicable federal and state laws governing
determinations of the insolvency of debtors, (b) the present fair saleable value
of the assets of such Person will, as of such date, be greater than the amount
that will be required to pay the liability of such Person on its debts as such
debts become absolute and matured, (c) such Person will not have, as of such
date, an unreasonably small amount of capital with which to conduct its
business, (d) such Person will be able to pay its debts as they mature in the
ordinary course of business and (e) such Person is not insolvent within the
meaning of any applicable Requirements of Law. For purposes of this definition,
(i) "debt" means liability on a "claim", and (ii) "claim" means any (x) right to
payment, whether or not such a right is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed,
legal, equitable, secured or unsecured or (y) right to an equitable remedy for
breach of performance if such breach gives rise to a right to payment, whether
or not such right to an equitable remedy is reduced to judgment, fixed,
contingent, matured or unmatured, disputed, undisputed, secured or unsecured.
"Specified Fiscal Quarter": each of the first three full fiscal
quarters commencing after the Closing Date.
"Specified Hedge Agreement": any Hedge Agreement entered into by the
Borrower or any Guarantor and any Qualified Counterparty providing for
protections against fluctuations of interest rates.
21
"Subordinated Intercompany Note": as defined in Section 7.2(b).
"Subsidiary": as to any Person, a corporation, partnership, limited
liability company or other entity of which shares of stock or other ownership
interests having ordinary voting power (other than stock or such other ownership
interests having such power only by reason of the happening of a contingency) to
elect a majority of the board of directors or other managers of such
corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly through one
or more intermediaries, or both, by such Person. Unless otherwise qualified, all
references to a "Subsidiary" or to "Subsidiaries" in this Agreement shall refer
to a Subsidiary or Subsidiaries of the Borrower.
"Swing Line Commitment": the obligation of the Swing Line Lender to
make Swing Line Loans pursuant to Section 2.6 in an aggregate principal amount
at any one time outstanding not to exceed $10,000,000.
"Swing Line Lender": ▇▇▇▇▇▇ Commercial Paper Inc., in its capacity as
the lender of Swing Line Loans.
"Swing Line Loans": as defined in Section 2.6(a).
"Swing Line Note": as defined in Section 2.8(e).
"Swing Line Participation Amount": as defined in Section 2.7(c).
"Syndication Date": the date on which the Arranger completed the
syndication of the Facilities and the entities selected in such syndication
process become parties to this Agreement.
"Synthetic Lease Obligations": all monetary obligations of a Person
under (a) a so-called synthetic, off-balance sheet or tax retention lease, or
(b) an agreement for the use or possession of property creating obligations
which do not appear on the balance sheet of such Person but which, upon the
insolvency or bankruptcy of such Person, would be characterized as the
Indebtedness of such Person (without regard to accounting treatment).
"Term Loan": as defined in Section 2.1.
"Term Loan Commitment": as to any Lender, the obligation of such
Lender, if any, to make a Term Loan to the Borrower hereunder in a principal
amount not to exceed the amount set forth under the heading "Term Loan
Commitment" opposite such Lender's name on Schedule 1 to the Lender Addendum
delivered by such Lender, or, as the case may be, in the Assignment and
Acceptance pursuant to which such Lender became a party hereto, as the same may
be changed from time to time pursuant to the terms hereof. The original
aggregate amount of the Term Loan Commitments is $370,000,000.
"Term Loan Facility": as defined in the definition of "Facility" in
this Section 1.1.
22
"Term Loan Lender": each Lender that has a Term Loan Commitment or is
the holder of a Term Loan.
"Term Loan Percentage": as to any Term Loan Lender at any time, the
percentage which such Lender's Term Loan Commitment then constitutes of the
aggregate Term Loan Commitments (or, at any time after the Closing Date, the
percentage which the aggregate principal amount of such Lender's Term Loans then
outstanding constitutes of the aggregate principal amount of the Term Loans then
outstanding).
"Term Note": as defined in Section 2.8(e).
"Total Revolving Credit Commitments": at any time, the aggregate
amount of the Revolving Credit Commitments then in effect.
"Total Revolving Extensions of Credit": at any time, the aggregate
amount of the Revolving Extensions of Credit of the Revolving Credit Lenders
outstanding at such time.
"Transferee": as defined in Section 10.14.
"Type": as to any Loan, its nature as a Base Rate Loan or a
Eurodollar Loan.
"UCC": the Uniform Commercial Code, as in effect from time to time in
any jurisdiction.
"Wholly Owned Guarantor": any Guarantor that is a Wholly Owned
Subsidiary of the Borrower.
"Wholly Owned Subsidiary": as to any Person, any other Person all of
the Capital Stock of which (other than directors' qualifying shares required by
law) is owned by such Person directly and/or through other Wholly Owned
Subsidiaries.
1.2 Other Definitional Provisions.
(a) Unless otherwise specified therein, all terms defined in this
Agreement shall have the defined meanings when used in the other Loan
Documents or any certificate or other document made or delivered
pursuant hereto or thereto.
(b) As used herein and in the other Loan Documents, and any
certificate or other document made or delivered pursuant hereto or
thereto, accounting terms relating to the Borrower and its
Subsidiaries not defined in Section 1.1 and accounting terms partly
defined in Section 1.1, to the extent not defined, shall have the
respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this
Agreement, and Section, Schedule and Exhibit references are to this
Agreement unless otherwise specified.
23
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
(e) All calculations of financial ratios set forth in Section 7.1
and the calculation of the Consolidated Leverage Ratio for purposes of
determining the Applicable Margin shall be calculated to the same
number of decimal places as the relevant ratios are expressed in and
shall be rounded upward if the number in the decimal place immediately
following the last calculated decimal place is five or greater. For
example, if the relevant ratio is to be calculated to the hundredth
decimal place and the calculation of the ratio is 5.126, the ratio
will be rounded up to 5.13.
(f) The expressions "payment in full," "paid in full" and any
other similar terms or phrases when used herein with respect to the
Obligations shall mean the payment in full, in immediately available
funds, of all of the Obligations.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Term Loan Commitments. Subject to the terms and conditions
hereof, the Term Loan Lenders severally agree to make term loans (each, a "Term
Loan") to the Borrower on the Closing Date in an amount for each Term Loan
Lender not to exceed the amount of the Term Loan Commitment of such Lender. The
Term Loans may from time to time be Eurodollar Loans or Base Rate Loans, as
determined by the Borrower and notified to the Administrative Agent in
accordance with Sections 2.2 and 2.13.
2.2 Procedure for Term Loan Borrowing. The Borrower shall deliver to
the Administrative Agent a Borrowing Notice (which Borrowing Notice must be
received by the Administrative Agent prior to 10:00 A.M., New York City time,
one Business Day prior to the anticipated Closing Date) requesting that the Term
Loan Lenders make the Term Loans on the Closing Date and specifying the amount
to be borrowed. The Term Loans made on the Closing Date shall initially be Base
Rate Loans, and no Term Loan may be converted into or continued as a Eurodollar
Loan with an Interest Period in excess of one month prior to the Syndication
Date. Upon receipt of such Borrowing Notice the Administrative Agent shall
promptly notify each Term Loan Lender thereof. Not later than 12:00 noon, New
York City time, on the Closing Date each Term Loan Lender shall make available
to the Administrative Agent at the Funding Office an amount in immediately
available funds equal to the Term Loan or Term Loans to be made by such Lender.
The Administrative Agent shall make available to the Borrower the aggregate of
the amounts made available to the Administrative Agent by the Term Loan Lenders,
in like funds as received by the Administrative Agent.
2.3 Repayment of Term Loans.
(a) The Term Loan of each Term Loan Lender shall mature in 28
consecutive quarterly installments, commencing on June 30, 2006, each of which
shall be in an amount equal to such Lender's Term Loan Percentage multiplied by
the amount set forth below opposite such installment:
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Installment Principal Amount
----------- ----------------
June 30, 2006 $925,000
September 30, 2006 $925,000
December 31, 2006 $925,000
March 31, 2007 $925,000
June 30, 2007 $925,000
September 30, 2007 $925,000
December 31, 2007 $925,000
March 31, 2008 $925,000
June 30, 2008 $925,000
September 30, 2008 $925,000
December 31, 2008 $925,000
March 31, 2009 $925,000
June 30, 2009 $925,000
September 30, 2009 $925,000
December 31, 2009 $925,000
March 31, 2010 $925,000
June 30, 2010 $925,000
September 30, 2010 $925,000
December 31, 2010 $925,000
March 31, 2011 $925,000
June 30, 2011 $925,000
September 30, 2011 $925,000
December 31, 2011 $925,000
March 31, 2012 $925,000
June 30, 2012 $925,000
September 30, 2012 $925,000
December 31, 2012 $925,000
March 31, 2013 $345,025,000 (or the remainder)
(b) Notwithstanding the foregoing, if the aggregate principal amount
of Term Loans made on the Closing Date is less than the aggregate amount of Term
Loan Commitments, the amount of each principal installment set forth in
paragraph (a) above shall be proportionally reduced to reflect such lesser
amount so borrowed.
2.4 Revolving Credit Commitments.
(a) Subject to the terms and conditions hereof, the Revolving Credit
Lenders severally agree to make revolving credit loans ("Revolving Credit
Loans") to the Borrower from time to time during the Revolving Credit Commitment
Period in an aggregate principal amount at any one time outstanding for each
Revolving Credit Lender which, when added to such Lender's Revolving Credit
Percentage of the sum of (i) the L/C Obligations then outstanding and (ii) the
aggregate principal amount of the Swing Line Loans then outstanding, does not
exceed the amount of such Lender's Revolving Credit Commitment. During the
Revolving Credit Commitment Period the Borrower may use the Revolving Credit
Commitments by borrowing, prepaying the Revolving Credit Loans in whole or in
25
part, and reborrowing, all in accordance with the terms and conditions hereof.
The Revolving Credit Loans may from time to time be Eurodollar Loans or Base
Rate Loans, as determined by the Borrower and notified to the Administrative
Agent in accordance with Sections 2.5 and 2.13, provided that no Revolving
Credit Loan shall be made as a Eurodollar Loan after the day that is one month
prior to the Revolving Credit Termination Date.
(b) The Borrower shall repay all outstanding Revolving Credit Loans
on the Revolving Credit Termination Date.
2.5 Procedure for Revolving Credit Borrowing. The Borrower may borrow
under the Revolving Credit Commitments on any Business Day during the Revolving
Credit Commitment Period, provided that the Borrower shall deliver to the
Administrative Agent a Borrowing Notice (which Borrowing Notice must be received
by the Administrative Agent prior to 12:00 noon, New York City time, (a) three
Business Days prior to the requested Borrowing Date, in the case of Eurodollar
Loans, or (b) one Business Day prior to the requested Borrowing Date, in the
case of Base Rate Loans). Any Revolving Credit Loans made on the Closing Date
shall initially be Base Rate Loans, and no Revolving Credit Loan may be made as,
converted into or continued as a Eurodollar Loan prior to the Syndication Date.
Each borrowing of Revolving Credit Loans under the Revolving Credit Commitments
shall be in an amount equal to (x) in the case of Base Rate Loans, $1,000,000 or
a whole multiple thereof (or, if the then aggregate Available Revolving Credit
Commitments are less than $1,000,000, such lesser amount) and (y) in the case of
Eurodollar Loans, $3,000,000 or a whole multiple of $1,000,000 in excess
thereof; provided, that the Swing Line Lender may request, on behalf of the
Borrower, borrowings of Base Rate Loans under the Revolving Credit Commitments
in other amounts pursuant to Section 2.7. Upon receipt of any such Borrowing
Notice from the Borrower, the Administrative Agent shall promptly notify each
Revolving Credit Lender thereof. Each Revolving Credit Lender will make its
Revolving Credit Percentage of the amount of each borrowing of Revolving Credit
Loans available to the Administrative Agent for the account of the Borrower at
the Funding Office prior to 12:00 noon, New York City time, on the Borrowing
Date requested by the Borrower in funds immediately available to the
Administrative Agent. Such borrowing will then be made available to the Borrower
by the Administrative Agent in like funds as received by the Administrative
Agent.
2.6 Swing Line Commitment.
(a) Subject to the terms and conditions hereof, the Swing Line Lender
agrees that, during the Revolving Credit Commitment Period, it will make
available to the Borrower in the form of swing line loans ("Swing Line Loans") a
portion of the credit otherwise available to the Borrower under the Revolving
Credit Commitments; provided that (i) the aggregate principal amount of Swing
Line Loans outstanding at any time shall not exceed the Swing Line Commitment
then in effect (notwithstanding that the Swing Line Loans outstanding at any
time, when aggregated with the Swing Line Lender's other outstanding Revolving
Credit Loans hereunder, may exceed the Swing Line Commitment then in effect or
the Swing Line Lender's Revolving Credit Commitment then in effect) and (ii) the
Borrower shall not request, and the Swing Line Lender shall not make, any Swing
Line Loan if, after giving effect to the making of such Swing Line Loan, the
aggregate amount of the Available Revolving Credit Commitments would be less
than zero. During the Revolving Credit Commitment Period, the Borrower may use
the Swing Line Commitment by borrowing, repaying and reborrowing, all in
accordance with the terms and conditions hereof. Swing Line Loans shall be Base
Rate Loans only.
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(b) The Borrower shall repay all outstanding Swing Line Loans on the
Revolving Credit Termination Date.
2.7 Procedure for Swing Line Borrowing; Refunding of Swing Line
Loans.
(a) The Borrower may borrow under the Swing Line Commitment on any
Business Day during the Revolving Credit Commitment Period, provided, the
Borrower shall give the Swing Line Lender written notice (which written notice
must be received by the Swing Line Lender not later than 1:00 P.M., New York
City time, on the proposed Borrowing Date), specifying (i) the amount to be
borrowed and (ii) the requested Borrowing Date. Each borrowing under the Swing
Line Commitment shall be in an amount equal to $500,000 or a whole multiple of
$100,000 in excess thereof. Not later than 3:00 P.M., New York City time, on the
Borrowing Date specified in the borrowing notice in respect of any Swing Line
Loan, the Swing Line Lender shall make available to the Administrative Agent at
the Funding Office an amount in immediately available funds equal to the amount
of such Swing Line Loan. The Administrative Agent shall make the proceeds of
such Swing Line Loan available to the Borrower on such Borrowing Date in like
funds as received by the Administrative Agent.
(b) The Swing Line Lender, at any time and from time to time in its
sole and absolute discretion may, on behalf of the Borrower (which hereby
irrevocably directs the Swing Line Lender to act on its behalf), on one Business
Day's notice given by the Swing Line Lender no later than 12:00 noon, New York
City time, request each Revolving Credit Lender to make, and each Revolving
Credit Lender hereby agrees to make, a Revolving Credit Loan (which shall
initially be a Base Rate Loan), in an amount equal to such Revolving Credit
Lender's Revolving Credit Percentage of the aggregate amount of the Swing Line
Loans (the "Refunded Swing Line Loans") outstanding on the date of such notice,
to repay the outstanding Swing Line Loans. Each Revolving Credit Lender shall
make the amount of such Revolving Credit Loan available to the Administrative
Agent at the Funding Office in immediately available funds, not later than 10:00
A.M., New York City time, one Business Day after the date of such notice. The
proceeds of such Revolving Credit Loans shall be made immediately available by
the Administrative Agent to the Swing Line Lender for application by the Swing
Line Lender to the repayment of the Refunded Swing Line Loans. The Borrower
irrevocably authorizes the Swing Line Lender to charge the Borrower's accounts
with the Administrative Agent (up to the amount available in each such account)
in order to immediately pay the amount of such Refunded Swing Line Loans to the
extent amounts received from the Revolving Credit Lenders are not sufficient to
repay in full such Refunded Swing Line Loans.
27
(c) If prior to the time a Revolving Credit Loan would have otherwise
been made pursuant to Section 2.7(b), one of the events described in Section
8(f) shall exist and be continuing with respect to the Borrower, or if for any
other reason, as determined by the Swing Line Lender in its sole discretion,
Revolving Credit Loans may not be made as contemplated by Section 2.7(b), each
Revolving Credit Lender shall, on the date such Revolving Credit Loan was to
have been made pursuant to the notice referred to in Section 2.7(b) (the
"Refunding Date"), purchase for cash an undivided participating interest in the
then outstanding Swing Line Loans by paying to the Swing Line Lender an amount
(the "Swing Line Participation Amount") equal to (i) such Revolving Credit
Lender's Revolving Credit Percentage times (ii) the sum of the aggregate
principal amount of Swing Line Loans then outstanding which were to have been
repaid with such Revolving Credit Loans.
(d) Whenever, at any time after the Swing Line Lender has received
from any Revolving Credit Lender such Lender's Swing Line Participation Amount,
the Swing Line Lender receives any payment on account of the Swing Line Loans,
the Swing Line Lender will distribute to such Lender its Swing Line
Participation Amount (appropriately adjusted, in the case of interest payments,
to reflect the period of time during which such Lender's participating interest
was outstanding and funded and, in the case of principal and interest payments,
to reflect such Lender's pro rata portion of such payment if such payment is not
sufficient to pay the principal of and interest on all Swing Line Loans then
due); provided, however, that in the event that such payment received by the
Swing Line Lender is required to be returned, such Revolving Credit Lender will
return to the Swing Line Lender any portion thereof previously distributed to it
by the Swing Line Lender.
(e) Each Revolving Credit Lender's obligation to make the Loans
referred to in Section 2.7(b) and to purchase participating interests pursuant
to Section 2.7(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 which such Revolving Credit
Lender or the Borrower may have against the Swing Line Lender, the Borrower or
any other Person for any reason whatsoever; (ii) the occurrence or continuance
of a Default or an Event of Default or the failure to satisfy any of the other
conditions specified in Section 5; (iii) any adverse change in the condition
(financial or otherwise) of the Borrower; (iv) any breach of this Agreement or
any other Loan Document by the Borrower, any other Loan Party or any other
Revolving Credit Lender; or (v) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing.
2.8 Repayment of Loans; Evidence of Debt.
(a) The Borrower hereby unconditionally promises to pay to the
Administrative Agent for the account of the appropriate Revolving Credit Lender
or the Swing Line Lender and to the Administrative Agent for the account of the
appropriate Term Loan Lender, as the case may be, (i) the then unpaid principal
amount of each Revolving Credit Loan of such Revolving Credit Lender on the
Revolving Credit Termination Date, (ii) the then unpaid principal amount of each
Swing Line Loan of such Swing Line Lender on the Revolving Credit Termination
Date and (iii) the principal amount of each Term Loan of such Term Loan Lender
28
in installments according to the amortization schedule set forth in Section 2.3
(or on any earlier date on which the Loans become due and payable pursuant to
Section 8). The Borrower hereby further agrees to pay interest on the unpaid
principal amount of the Loans from time to time outstanding from the date hereof
until payment in full thereof at the rates per annum, and on the dates, set
forth in Section 2.15.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing indebtedness of the Borrower to such Lender
resulting from each Loan of such Lender from time to time, including the amounts
of principal and interest payable and paid to such Lender from time to time
under this Agreement.
(c) The Administrative Agent, on behalf of the Borrower, shall
maintain the Register pursuant to Section 10.6(d), and a subaccount therein for
each Lender, in which shall be recorded (i) the amount of each Loan made
hereunder and any Note evidencing such Loan, the Type of such Loan and each
Interest Period applicable thereto, (ii) the amount of any principal or interest
due and payable or to become due and payable from the Borrower to each Lender
hereunder and (iii) both the amount of any sum received by the Administrative
Agent hereunder from the Borrower and each Lender's share thereof.
(d) The entries made in the Register and the accounts of each Lender
maintained pursuant to Section 2.8(b) shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations of the Borrower therein recorded; provided, however, that the
failure of any Lender or the Administrative Agent to maintain the Register or
any such account, or any error therein, shall not in any manner affect the
obligation of the Borrower to repay (with applicable interest) the Loans made to
the Borrower by such Lender in accordance with the terms of this Agreement.
(e) The Borrower agrees that, upon request to the Administrative
Agent by any Lender, the Borrower will promptly execute and deliver to such
Lender a promissory note of the Borrower evidencing any Term Loans, Revolving
Credit Loans or Swing Line Loans, as the case may be, of such Lender,
substantially in the forms of Exhibit F-1, F-2 or F-3, respectively (a "Term
Note", "Revolving Credit Note" or "Swing Line Note", respectively), with
appropriate insertions as to date and principal amount; provided, that delivery
of Notes shall not be a condition precedent to the occurrence of the Closing
Date or the making of the Loans on the Closing Date and the obligations of the
Borrower in respect of each Loan shall be enforceable in accordance with the
provisions of the Loan Documents whether or not evidenced by any Note.
2.9 Commitment Fees, etc.
(a) The Borrower agrees to pay to the Administrative Agent for the
account of each Revolving Credit Lender a commitment fee for the period from and
including the date hereof to the last day of the Revolving Credit Commitment
Period, computed at the Commitment Fee Rate on the average daily amount of the
Available Revolving Credit Commitment of such Lender during the period for which
payment is made, payable quarterly in arrears on the last day of each March,
June, September and December and on the Revolving Credit Termination Date,
commencing on the first of such dates to occur after the date hereof.
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(b) The Borrower agrees to pay to the Arranger the fees in the
amounts and on the dates previously agreed to in writing by the Borrower and the
Arranger.
(c) The Borrower agrees to pay to the Administrative Agent the fees
in the amounts and on the dates from time to time agreed to in writing by the
Borrower and the Administrative Agent.
2.10 Termination or Reduction of Revolving Credit Commitments. The
Borrower shall have the right, upon not less than three Business Days' notice to
the Administrative Agent, to terminate the Revolving Credit Commitments or, from
time to time, to reduce the aggregate amount of the Revolving Credit
Commitments; provided that no such termination or reduction of Revolving Credit
Commitments shall be permitted if, after giving effect thereto and to any
prepayments of the Revolving Credit Loans and Swing Line Loans made on the
effective date thereof, the Total Revolving Extensions of Credit would exceed
the Total Revolving Credit Commitments. Any such reduction shall be in an amount
equal to $1,000,000, or a whole multiple thereof, and shall reduce permanently
the Revolving Credit Commitments then in effect.
2.11 Optional Prepayments. The Borrower may at any time and from time
to time prepay the Loans, in whole or in part, without premium or penalty
(except as otherwise provided herein), upon irrevocable notice delivered to the
Administrative Agent at least three Business Days prior thereto in the case of
Eurodollar Loans and at least one Business Day prior thereto in the case of Base
Rate Loans, which notice shall specify the date and amount of such prepayment,
whether such prepayment is of Term Loans or Revolving Credit Loans, and whether
such prepayment is of Eurodollar Loans or Base Rate Loans; provided, that (i) if
a Eurodollar Loan is prepaid on any day other than the last day of the Interest
Period applicable thereto, the Borrower shall also pay any amounts owing
pursuant to Section 2.21 and (ii) same day notice is required for the prepayment
of Swing Line Loans. Upon receipt of any such notice the Administrative Agent
shall promptly notify each relevant Lender thereof. If any such notice is given,
the amount specified in such notice shall be due and payable on the date
specified therein, together with (except in the case of Revolving Credit Loans
that are Base Rate Loans and Swing Line Loans) accrued interest to such date on
the amount prepaid. Partial prepayments of Term Loans and Revolving Credit Loans
shall be in an aggregate principal amount of $1,000,000 or a whole multiple
thereof. Partial prepayments of Swing Line Loans shall be in an aggregate
principal amount of $100,000 or a whole multiple thereof.
2.12 Mandatory Prepayments and Commitment Reductions.
(a) If any Capital Stock shall be issued by the Borrower, then, on
the date of such issuance, the Term Loans shall be prepaid by an amount equal to
the Capital Stock Percentage of the amount of the Net Cash Proceeds of such
issuance, as set forth in Section 2.12(e). If any Indebtedness shall be incurred
by the Borrower or any of its Subsidiaries (excluding any Indebtedness incurred
in accordance with Section 7.2), then on the date of such incurrence, the Term
Loans shall be prepaid by an amount equal to the amount of the Net Cash Proceeds
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of such incurrence, as set forth in Section 2.12(e). The provisions of this
Section do not constitute a consent to the issuance of any equity securities by
any entity whose equity securities are pledged pursuant to the Guarantee and
Collateral Agreement, or a consent to the incurrence of any Indebtedness by the
Borrower or any of its Subsidiaries.
(b) If on any date the Borrower or any of its Subsidiaries shall
receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a
Reinvestment Notice shall be delivered in respect thereof, on the date of
receipt by the Borrower of such Net Cash Proceeds, the Term Loans shall be
prepaid by an amount equal to the amount of such Net Cash Proceeds, as set forth
in Section 2.12(e); provided, that, notwithstanding the foregoing, on each
Reinvestment Prepayment Date the Term Loans shall be prepaid by an amount equal
to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment
Event, as set forth in Section 2.12(e). The provisions of this Section do not
constitute a consent to the consummation of any Disposition not permitted by
Section 7.5.
(c) If, for the six month period ending December 31, 2006 or any
fiscal year of the Borrower commencing with the fiscal year ending December 30,
2007, there shall be Excess Cash Flow, then, on the relevant Excess Cash Flow
Application Date, the Term Loans shall be prepaid by an amount equal to the ECF
Percentage of such Excess Cash Flow, as set forth in Section 2.12(e). Each such
prepayment and commitment reduction shall be made on a date (an "Excess Cash
Flow Application Date") no later than five days after the earlier of (i) the
date on which the financial statements of the Borrower referred to in Section
6.1(a), for the fiscal year with respect to which such prepayment is made, are
required to be delivered to the Lenders and (ii) the date such financial
statements are actually delivered.
(d) Notwithstanding the foregoing, if an Event of Default exists and
is continuing, any mandatory prepayment required by Sections 2.12(a), (b) and
(c) shall be applied to the Term Loans and any outstanding Revolving Credit
Loans, pro rata and, after all Revolving Credit Loans have been repaid, to the
Term Loans and to cash collateralize outstanding Letters of Credit (in a manner
reasonably acceptable to the Administrative Agent and the Issuing Lender), pro
rata.
(e) Amounts to be applied in connection with prepayments and
Commitment reductions made pursuant to this Section 2.12 shall be applied to the
prepayment of the Loans in accordance with Section 2.18. Notwithstanding the
foregoing, prior to the required prepayment date, such proceeds may be used to
temporarily repay Revolving Credit Loans.
2.13 Conversion and Continuation Options.
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(a) The Borrower may elect from time to time to convert Eurodollar
Loans to Base Rate Loans by giving the Administrative Agent at least two
Business Days' prior irrevocable notice of such election, provided that any such
conversion of Eurodollar Loans may be made only on the last day of an Interest
Period with respect thereto. The Borrower may elect from time to time to convert
Base Rate Loans to Eurodollar Loans by giving the Administrative Agent at least
three Business Days' prior irrevocable notice of such election (which notice
shall specify the length of the initial Interest Period therefor), provided that
no Base Rate Loan under a particular Facility may be converted into a Eurodollar
Loan (i) when any Event of Default shall exist and be continuing and the
Administrative Agent has, or the Majority Facility Lenders in respect of such
Facility have, determined in its or their sole discretion not to permit such
conversions or (ii) after the date that is one month prior to the final
scheduled termination or maturity date of such Facility. Upon receipt of any
such notice the Administrative Agent shall promptly notify each relevant Lender
thereof.
(b) The Borrower may elect to continue any Eurodollar Loan as such
upon the expiration of the then current Interest Period with respect thereto by
giving irrevocable notice to the Administrative Agent, in accordance with the
applicable provisions of the term "Interest Period" set forth in Section 1.1, of
the length of the next Interest Period to be applicable to such Loans, provided
that no Eurodollar Loan under a particular Facility may be continued as such (i)
when any Event of Default shall exist and be continuing and the Administrative
Agent has, or the Majority Facility Lenders in respect of such Facility have,
determined in its or their sole discretion not to permit such continuations or
(ii) after the date that is one month prior to the final scheduled termination
or maturity date of such Facility, and provided, further, that if the Borrower
shall fail to give any required notice as described above in this paragraph or
if such continuation is not permitted pursuant to the preceding proviso, such
Loans shall be converted automatically to Base Rate Loans on the last day of
such then expiring Interest Period. Upon receipt of any such notice the
Administrative Agent shall promptly notify each relevant Lender thereof.
2.14 Minimum Amounts and Maximum Number of Eurodollar Tranches.
Notwithstanding anything to the contrary in this Agreement, all borrowings,
conversions, continuations and optional prepayments of Eurodollar Loans and all
selections of Interest Periods shall be in such amounts and be made pursuant to
such elections so that, (a) after giving effect thereto, the aggregate principal
amount of the Eurodollar Loans comprising each Eurodollar Tranche shall be equal
to $3,000,000 or a whole multiple of $1,000,000 in excess thereof and (b) no
more than ten Eurodollar Tranches shall be outstanding at any one time.
2.15 Interest Rates and Payment Dates.
(a) Each Eurodollar Loan shall bear interest for each day during each
Interest Period with respect thereto at a rate per annum equal to the Eurodollar
Rate determined for such day plus the Applicable Margin in effect for such day.
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(b) Each Base Rate Loan shall bear interest for each day on which it
is outstanding at a rate per annum equal to the Base Rate in effect for such day
plus the Applicable Margin in effect for such day.
(c) (i) If all or a portion of the principal amount of any Loan or
Reimbursement Obligation shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), all such overdue amounts shall bear
interest at a rate per annum that is equal to (x) in the case of the Loans, the
rate that would otherwise be applicable thereto pursuant to the foregoing
provisions of this Section plus 2.0% or (y) in the case of Reimbursement
Obligations, the rate applicable to Base Rate Loans under the Revolving Credit
Facility plus 2.0%, and (ii) if all or a portion of any interest payable on any
Loan or Reimbursement Obligation or any commitment fee or other amount payable
hereunder shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), such overdue amount shall bear interest at a rate
per annum equal to the rate then applicable to Base Rate Loans under the
relevant Facility plus 2.0% (or, in the case of any such other amounts that do
not relate to a particular Facility, the rate then applicable to Base Rate Loans
under the Revolving Credit Facility plus 2.0%), in each case, with respect to
clauses (i) and (ii) above, from the date of such non-payment until such amount
is paid in full (after as well as before judgment).
(d) Interest shall be payable in arrears on each Interest Payment
Date, provided that interest accruing pursuant to paragraph (c) of this Section
shall be payable from time to time on demand.
2.16 Computation of Interest and Fees.
(a) Interest, fees, commissions payable pursuant hereto shall be
calculated on the basis of a 360-day year for the actual days elapsed, except
that, with respect to Base Rate Loans on which interest is calculated on the
basis of the Prime Rate, the interest thereon shall be calculated on the basis
of a 365- (or 366-, as the case may be) day year for the actual days elapsed.
The Administrative Agent shall as soon as practicable notify the Borrower and
the relevant Lenders of each determination of a Eurodollar Rate. Any change in
the interest rate on a Loan resulting from a change in the Base Rate or the
Eurocurrency Reserve Requirements shall become effective as of the opening of
business on the day on which such change becomes effective. The Administrative
Agent shall as soon as practicable notify the Borrower and the relevant Lenders
of the effective date and the amount of each such change in interest rate.
(b) Each determination of an interest rate by the Administrative
Agent pursuant to any provision of this Agreement shall be conclusive and
binding on the Borrower and the Lenders in the absence of manifest error. The
Administrative Agent shall, at the request of the Borrower, deliver to the
Borrower a statement showing the quotations used by the Administrative Agent in
determining any interest rate pursuant to Section 2.15(a).
2.17 Inability to Determine Interest Rate. If prior to the first day
of any Interest Period:
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(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 market, adequate and reasonable means do
not exist for ascertaining the Eurodollar Rate for such Interest Period, or
(b) the Administrative Agent shall have received notice from the
Majority Facility Lenders in respect of the relevant Facility that the
Eurodollar Rate determined or to be determined for such Interest Period will not
adequately and fairly reflect the cost to such Lenders (as conclusively
certified by such Lenders) of making or maintaining their affected Loans during
such Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to the
Borrower and the relevant Lenders as soon as practicable thereafter. If such
notice is given (x) any Eurodollar Loans under the relevant Facility requested
to be made on the first day of such Interest Period shall be made as Base Rate
Loans, (y) any Loans under the relevant Facility that were to have been
converted on the first day of such Interest Period to Eurodollar Loans shall be
continued as Base Rate Loans and (z) any outstanding Eurodollar Loans under the
relevant Facility shall be converted, on the last day of the then current
Interest Period with respect thereto, to Base Rate Loans. Until such notice has
been withdrawn by the Administrative Agent, no further Eurodollar Loans under
the relevant Facility shall be made or continued as such, nor shall the Borrower
have the right to convert Loans under the relevant Facility to Eurodollar Loans.
2.18 Pro Rata Treatment and Payments.
(a) Each borrowing by the Borrower from the Lenders hereunder, each
payment by the Borrower on account of any commitment fee or Letter of Credit
fee, and any reduction of the Commitments of the Lenders, shall be made pro rata
according to the Term Loan Percentages or Revolving Credit Percentages, as the
case may be, of the relevant Lenders. Each payment (other than prepayments) in
respect of principal or interest in respect of the Term Loans and each payment
in respect of fees or expenses payable hereunder shall be applied to the amounts
of such obligations owing to the Lenders pro rata according to the respective
amounts then due and owing to the Lenders.
(b) Each payment (including each prepayment) of the Term Loans
outstanding under the Term Loan Facility shall be allocated among the Term Loan
Lenders holding such Term Loans pro rata based on the principal amount of such
Term Loans held by such Term Loan Lenders, and each prepayment shall be applied
to the installments of such Term Loans first in direct order of maturity for
eight installments and, thereafter, pro rata based on the remaining outstanding
principal amount of such installments. Amounts prepaid on account of the Term
Loans may not be reborrowed.
(c) Each payment (including each prepayment) by the Borrower on
account of principal of and interest on the Revolving Credit Loans shall be made
pro rata according to the respective outstanding principal amounts of the
Revolving Credit Loans then held by the Revolving Credit Lenders. Each payment
in respect of Reimbursement Obligations in respect of any Letter of Credit shall
be made to the Issuing Lender that issued such Letters of Credit.
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(d) The application of any payment of Loans under any Facility
(including optional and mandatory prepayments) shall be made, first, to Base
Rate Loans under such Facility and, second, to Eurodollar Loans under such
Facility. Each payment of the Loans (except in the case of Swing Line Loans and
Revolving Credit Loans that are Base Rate Loans) shall be accompanied by accrued
interest to the date of such payment on the amount paid.
(e) All payments (including prepayments) to be made by the Borrower
hereunder, whether on account of principal, interest, fees or otherwise, shall
be made without setoff or counterclaim and shall be made prior to 12:00 noon,
New York City time, on the due date thereof to the Administrative Agent, for the
account of the relevant Lenders, at the Payment Office, in Dollars and in
immediately available funds. Any payment made by the Borrower after 12:00 noon,
New York City time, on any Business Day shall be deemed to have been on the next
following Business Day. The Administrative Agent shall distribute such payments
to the Lenders promptly upon receipt in like funds as received. If any payment
hereunder (other than payments on the Eurodollar Loans) becomes due and payable
on a day other than a Business Day, such payment shall be extended to the next
succeeding Business Day. If any payment on a Eurodollar Loan becomes due and
payable on a day other than a Business Day, the maturity thereof shall be
extended to the next succeeding Business Day unless the result of such extension
would be to extend such payment into another calendar month, in which event such
payment shall be made on the immediately preceding Business Day. In the case of
any extension of any payment of principal pursuant to the preceding two
sentences, interest thereon shall be payable at the then applicable rate during
such extension.
(f) Unless the Administrative Agent shall have been notified in
writing by any Lender prior to a borrowing that such Lender will not make the
amount that would constitute its share of such borrowing available to the
Administrative Agent, the Administrative Agent may assume that such Lender is
making such amount available to the Administrative Agent, and the Administrative
Agent may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. If such amount is not made available to the Administrative
Agent by the required time on the Borrowing Date therefor, such Lender shall pay
to the Administrative Agent, on demand, such amount with interest thereon at a
rate equal to the daily average Federal Funds Effective Rate for the period
until such Lender makes such amount immediately available to the Administrative
Agent. A certificate of the Administrative Agent submitted to any Lender with
respect to any amounts owing under this paragraph shall be conclusive in the
absence of manifest error. If such Lender's share of such borrowing is not made
available to the Administrative Agent by such Lender within three Business Days
after such Borrowing Date, the Administrative Agent shall also be entitled to
recover such amount with interest thereon at the rate per annum applicable to
Base Rate Loans under the relevant Facility, on demand, from the Borrower.
35
(g) Unless the Administrative Agent shall have been notified in
writing by the Borrower prior to the date of any payment due to be made by the
Borrower hereunder that the Borrower will not make such payment to the
Administrative Agent, the Administrative Agent may assume that the Borrower is
making such payment, and the Administrative Agent may, but shall not be required
to, in reliance upon such assumption, make available to the Lenders their
respective pro rata shares of a corresponding amount. If such payment is not
made to the Administrative Agent by the Borrower within three Business Days
after such due date, the Administrative Agent shall be entitled to recover, on
demand, from each Lender to which any amount which was made available pursuant
to the preceding sentence, such amount with interest thereon at the rate per
annum equal to the daily average Federal Funds Effective Rate. Nothing herein
shall be deemed to limit the rights of the Administrative Agent or any Lender
against the Borrower.
2.19 Requirements of Law.
(a) If the adoption of or any change in any Requirement of Law or in
the interpretation or application thereof or compliance by any Lender with any
request or directive (whether or not having the force of law) from any central
bank or other Governmental Authority made subsequent to the date hereof:
(i) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by, deposits
or other liabilities in or for the account of, advances, loans or other
extensions of credit by, or any other acquisition of funds by, any office of
such Lender that is not otherwise included in the determination of the
Eurodollar Rate hereunder; or
(ii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or issuing or participating in
Letters of Credit, or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, the Borrower shall promptly pay such Lender,
upon its demand, any additional amounts necessary to compensate such Lender on
an after-tax basis for such increased cost or reduced amount receivable. If any
Lender becomes entitled to claim any additional amounts pursuant to this
Section, it shall promptly notify the Borrower (with a copy to the
Administrative Agent) of the event by reason of which it has become so entitled.
(b) If any Lender shall have determined that the adoption of or any
change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the effect of reducing
the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder or under or in respect of any Letter of
Credit to a level below that which such Lender or such corporation could have
36
achieved but for such adoption, change or compliance (taking into consideration
such Lender's or such corporation's policies with respect to capital adequacy)
by an amount deemed by such Lender to be material, then from time to time, after
submission by such Lender to the Borrower (with a copy to the Administrative
Agent) of a written request therefor, the Borrower shall pay to such Lender such
additional amount or amounts as will compensate such Lender or such corporation
for such reduction on an after-tax basis.
(c) A certificate as to any additional amounts payable pursuant to
this Section submitted by any Lender to the Borrower (with a copy to the
Administrative Agent) shall be conclusive in the absence of manifest error. The
obligations of the Borrower pursuant to this Section shall survive the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.
2.20 Taxes.
(a) All payments made by the Borrower under this Agreement or any
other Loan Documents shall be made free and clear of, and without deduction or
withholding for or on account of, any present or future income, stamp or other
taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now
or hereafter imposed, levied, collected, withheld or assessed by any
Governmental Authority, excluding net income or net profits taxes (however
denominated), including branch profits taxes, franchise taxes and any similar
taxes (imposed in lieu of net income taxes) or United States backup withholding
tax imposed on the Arranger, the Administrative Agent or any Lender as a result
of a present or former connection between the Arranger, the Administrative Agent
or such Lender and the jurisdiction of the Governmental Authority imposing such
tax or any political subdivision or taxing authority thereof or therein (other
than any such connection arising solely from the Arranger's, the Administrative
Agent's or such Lender's having executed, delivered or performed its obligations
or received a payment under, or enforced, this Agreement or any other Loan
Document). If any such non-excluded taxes, levies, imposts, duties, charges,
fees, deductions or withholdings ("Non-Excluded Taxes") or any Other Taxes are
required to be withheld from any amounts payable to the Arranger, the
Administrative Agent or any Lender hereunder, the amounts so payable to the
Arranger, the Administrative Agent or such Lender shall be increased to the
extent necessary to yield to the Arranger, the Administrative Agent or such
Lender (after payment of all Non-Excluded Taxes and Other Taxes) interest or any
such other amounts payable hereunder at the rates or in the amounts specified in
this Agreement; provided, however, that the Borrower or any Guarantor shall not
be required to increase any such amounts payable to the Arranger, the
Administrative Agent or any Lender with respect to any Non-Excluded Taxes (i)
that are attributable to the Arranger's, the Administrative Agent's or such
Lender's failure to comply with the requirements of paragraph (d) through (f) of
this Section or (ii) in the case of any Non-U.S. Lender, that are United States
withholding taxes imposed on amounts payable to the Arranger, the Administrative
Agent or such Lender at the time the Arranger, the Administrative Agent or such
Lender becomes a party to this Agreement (or, in the case of a Lender,
designates a new lending office), except to the extent that the Arranger's, the
Administrative Agent's or such Lender's assignor (if any) was entitled, at the
time of assignment (or such Lender at the time of designation), to receive
additional amounts from the Borrower with respect to such Non-Excluded Taxes
pursuant to this paragraph (a). The Borrower or the applicable Guarantor shall
make any required withholding and pay the full amount withheld to the relevant
tax authority or other Governmental Authority in accordance with applicable
Requirements of Law.
37
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) Whenever any Non-Excluded Taxes or Other Taxes are payable by the
Borrower, as promptly as practicable thereafter the Borrower shall send to the
Administrative Agent for its account or the account of the Arranger or relevant
Lender, as the case may be, a certified copy of an original official receipt, if
any, received by the Borrower or other documentary evidence reasonably
satisfactory to the Administrative Agent showing payment thereof. If the
Borrower fails to pay any Non-Excluded Taxes or Other Taxes when due to the
appropriate taxing authority or fails to remit to the Administrative Agent the
required receipts or other required documentary evidence, the Borrower shall
indemnify the Arranger, the Administrative Agent and the Lenders for any
incremental taxes, interest or penalties that may become payable by the
Arranger, the Administrative Agent or any Lender as a result of any such
failure. The agreements in this Section shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable hereunder.
(d) Each Arranger, Administrative Agent or Lender (or Transferee)
that is not a "U.S. person" as defined in Section 7701(a)(30) of the Code (a
"Non-U.S. Lender") shall deliver to the Borrower and the Administrative Agent
(or, in the case of a Participant, to the Lender from which the related
participation shall have been purchased) two copies of either U.S. Internal
Revenue Service Form W-8BEN or Form W-8ECI, or, in the case of a Non-U.S. Lender
claiming exemption from U.S. federal withholding tax under Section 871(h) or
881(c) of the Code with respect to payments of "portfolio interest" a statement
substantially in the form of Exhibit G to the effect that such Lender is
eligible for a complete exemption from withholding of U.S. taxes under Section
871(h) or 881(c) of the Code and a Form W-8BEN, and/or two duly completed copies
of U.S. Internal Revenue Service Form W-81MY (together with the forms listed
above in this Section 2.20(d), as may be required) or any subsequent versions
thereof or successors thereto properly completed and duly executed by such
Non-U.S. Lender claiming complete exemption from, or a reduced rate of, U.S.
federal withholding tax on all payments by the Borrower under this Agreement and
the other Loan Documents. Such forms shall be delivered by each Non-U.S. Lender
on or before the date it becomes a party to this Agreement (and in the case of
any Participant, on or before the date such Participant purchases the related
participation). In addition, each Non-U.S. Lender shall deliver such forms
promptly upon the obsolescence or invalidity of any form previously delivered by
such Non-U.S. Lender. Each Non-U.S. Lender shall promptly notify the Borrower at
any time it determines that 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).
Notwithstanding any other provision of this paragraph, a Non-U.S. Lender shall
not be required to deliver any form pursuant to this paragraph that such
Non-U.S. Lender is not legally able to deliver.
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(e) Each Lender that is not a Non-U.S. Lender and has not otherwise
established to the reasonable satisfaction of the Borrower and the
Administrative Agent that it is an exempt recipient (as defined in Section
6049(b)(4) of the Code and the regulations issued thereunder) shall deliver to
the Borrower and the Administrative Agent on or before the date it becomes a
party to this Agreement (and, in the case of any Participant, on or before the
date such Participant purchases the related participation), and at such other
times as may be necessary in the determination of the Borrower or the
Administrative Agent (each in the reasonable exercise of its discretion), two
original copies of Form W-9 (or any successor forms) properly completed and duly
executed by such Person.
(f) A Lender that is entitled to an exemption from or reduction of
non-U.S. 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 or
reasonably requested by the Borrower, such properly completed and executed
documentation prescribed by applicable law as will permit such payments to be
made without withholding or at a reduced rate, provided that such Lender is
legally entitled to complete, execute and deliver such documentation and in such
Lender's reasonable judgment such completion, execution or submission would not
materially prejudice the legal position of such Lender.
(g) If the Arranger, the Administrative Agent or any Lender
determines in its sole discretion that it has received a refund in cash of any
Non-Excluded Taxes or Other Taxes or a tax credit with respect to any
Non-Excluded Taxes or other Taxes from the jurisdiction imposing such taxes as
to which it has been indemnified or with respect to which it has been paid
additional amounts pursuant to this Section 2.20 or Section 10.5(c), it shall
pay over such refund to the Borrower, net of any out-of-pocket expenses of such
Arranger, Administrative Agent or Lender, as the case may be. Nothing in this
Section 2.20(g) shall oblige any Lender, the Arranger or the Administrative
Agent to pursue any claim for refund or disclose to the Borrower or any other
person any information regarding its tax affairs or tax computations or
interfere with the right of any Lender, the Arranger or the Administrative Agent
to arrange its tax affairs in whatever manner it deems fit.
2.21 Indemnity. The Borrower agrees to indemnify each Lender for, and
to hold each Lender harmless from, any loss or expense that such Lender may
sustain or incur as a consequence of (a) default by the Borrower in making a
borrowing of, conversion into or continuation of Eurodollar Loans after the
Borrower has given a notice requesting the same in accordance with the
provisions of this Agreement, (b) default by the Borrower in making any
prepayment after the Borrower has given a notice thereof in accordance with the
provisions of this Agreement or (c) the making of a prepayment or conversion of
Eurodollar Loans on a day that is not the last day of an Interest Period with
respect thereto. Such indemnification may include an amount equal to the excess,
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if any, of (i) the amount of interest that would have accrued on the amount so
prepaid, or not so borrowed, converted or continued, for the period from the
date of such prepayment or of such failure to borrow, convert or continue to the
last day of such Interest Period (or, in the case of a failure to borrow,
convert or continue, the Interest Period that would have commenced on the date
of such failure) in each case at the applicable rate of interest for such Loans
provided for herein (excluding, however, the Applicable Margin included therein,
if any) over (ii) the amount of interest (as reasonably determined by such
Lender) that would have accrued to such Lender on such amount by placing such
amount on deposit for a comparable period with leading banks in the interbank
Eurodollar market. A certificate as to any amounts payable pursuant to this
Section submitted to the Borrower by any Lender shall be conclusive in the
absence of manifest error. This covenant shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable hereunder.
2.22 Illegality. Notwithstanding any other provision herein, if the
adoption of or any change in any Requirement of Law or in the interpretation or
application thereof shall make it unlawful for any Lender to make or maintain
Eurodollar Loans as contemplated by this Agreement, (a) the commitment of such
Lender hereunder to make Eurodollar Loans, continue Eurodollar Loans as such and
convert Base Rate Loans to Eurodollar Loans shall forthwith be canceled and (b)
such Lender's Loans then outstanding as Eurodollar Loans, if any, shall be
converted automatically to Base Rate Loans on the respective last days of the
then current Interest Periods with respect to such Loans or within such earlier
period as required by law. If any such conversion of a Eurodollar Loan occurs on
a day which is not the last day of the then current Interest Period with respect
thereto, the Borrower shall pay to such Lender such amounts, if any, as may be
required pursuant to Section 2.21.
2.23 Change of Lending Office. Each Lender agrees that, upon the
occurrence of any event giving rise to the operation of Section 2.19, 2.20(a) or
2.22 with respect to such Lender, it will, if requested by the Borrower, use
reasonable efforts (subject to overall policy considerations of such Lender) to
designate another lending office for any Loans affected by such event with the
object of avoiding the consequences of such event; provided, that such
designation is made on terms that, in the reasonable judgment of such Lender,
cause such Lender and its lending office(s) to suffer no economic, legal or
regulatory disadvantage, and provided, further, that nothing in this Section
shall affect or postpone any of the obligations of any Borrower or the rights of
any Lender pursuant to Section 2.19, 2.20(a) or 2.22.
2.24 Replacement of Lenders under Certain Circumstances. The Borrower
shall be permitted to replace any Lender that (a) requests reimbursement for
amounts owing pursuant to Section 2.19 or 2.20 or gives a notice of illegality
pursuant to Section 2.22 or (b) defaults in its obligation to make Loans
hereunder, with a replacement financial institution; provided that (i) such
replacement does not conflict with any Requirement of Law, (ii) no Event of
Default shall exist and be continuing at the time of such replacement, (iii)
prior to any such replacement, such Lender shall have taken no action under
Section 2.23 so as to eliminate the continued need for payment of amounts owing
pursuant to Section 2.19 or 2.20 or to eliminate the illegality referred to in
such notice of illegality given pursuant to Section 2.22, (iv) the replacement
financial institution shall purchase, at par, all Loans and other amounts owing
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to such replaced Lender on or prior to the date of replacement, (v) the Borrower
shall be liable to such replaced Lender under Section 2.21 (as though Section
2.21 were applicable) if any Eurodollar Loan owing to such replaced Lender shall
be purchased other than on the last day of the Interest Period relating thereto,
(vi) the replacement financial institution, if not already a Lender, shall be
reasonably satisfactory to the Administrative Agent, (vii) the replaced Lender
shall be obligated to make such replacement in accordance with the provisions of
Section 10.6 (provided that the Borrower shall be obligated to pay the
registration and processing fee referred to therein), (viii) the Borrower shall
pay all additional amounts (if any) required pursuant to Section 2.19 or 2.20,
as the case may be, in respect of any period prior to the date on which such
replacement shall be consummated, and (ix) any such replacement shall not be
deemed to be a waiver of any rights that the Borrower, the Administrative Agent
or any other Lender shall have against the replaced Lender.
2.25 New Revolving Credit Commitments.
(a) The Borrower may, by written notice to the Administrative Agent,
elect to request prior to the Revolving Credit Termination Date, an increase to
the existing Revolving Credit Commitments (any such increase, the "New Revolving
Credit Commitments"), by an amount not in excess of $25,000,000 (or such lesser
amount which shall be approved by the Administrative Agent). Each such notice
shall specify (A) the date (each, an "Increased Amount Date") on which the
Borrower proposes that the New Revolving Credit Commitments shall be effective,
which shall be a date not less than ten (10) Business Days after the date on
which such notice is delivered to the Administrative Agent and (B) the identity
of each Lender or other Person that is an Assignee (each, a "New Revolving
Credit Lender") to whom the Borrower proposes any portion of such New Revolving
Credit Commitments be allocated and the amounts of such allocations; provided
that any Lender approached to provide all or a portion of the New Revolving
Credit Commitments may elect or decline, in its sole discretion, to provide a
New Revolving Credit Commitment. Such New Revolving Credit Commitments shall
become effective, as of such Increased Amount Date; provided that (1) no Default
or Event of Default shall exist on such Increased Amount Date before or after
giving effect to such New Revolving Credit Commitments; (2) the Borrower and its
Subsidiaries shall be in pro forma compliance with each of the covenants set
forth in Section 7.1 as of the last day of the most recently ended fiscal
quarter after giving effect to such New Revolving Credit Commitments; (3) the
New Revolving Credit Commitments shall be effected pursuant to one or more
Assignment and Acceptance Agreements executed and delivered by the Borrower and
the Administrative Agent, and each of which shall be recorded in the Register
and shall be subject to the requirements set forth in Section 2.20(d) through
(f); (4) the Borrower shall make any payments required pursuant to Section 2.21
in connection with the New Revolving Credit Commitments; and (5) the Borrower
shall deliver or cause to be delivered any legal opinions or other documents
reasonably requested by the Administrative Agent in connection with any such
transaction (including, without limitation, confirmation that the obligations of
the Credit Parties with respect to such New Revolving Credit Commitments (and
any Loans or extensions of credit thereunder) are secured by the Collateral and
the priority of the Administrative Agent's Lien in such Collateral has not been
affected by the New Revolving Credit Commitments.
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(b) On any Increased Amount Date on which New Revolving Credit
Commitments are effected, subject to the satisfaction of the foregoing terms and
conditions, (a) each of the Revolving Credit Lenders shall assign to each of the
New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall
purchase from each of the Revolving Credit Lenders, at the principal amount
thereof (together with accrued interest), such interests in the Revolving Credit
Loans outstanding on such Increased Amount Date as shall be necessary in order
that, after giving effect to all such assignments and purchases, such Revolving
Credit Loans will be held by existing Revolving Credit Lenders and New Revolving
Credit Lenders ratably in accordance with their Revolving Credit Commitments
after giving effect to the addition of such New Revolving Credit Commitments to
the Revolving Credit Commitments, (b) each New Revolving Credit Commitment shall
be deemed for all purposes a Revolving Credit Commitment and each Loan made
thereunder (a "New Revolving Credit Loan") shall be deemed, for all purposes, a
Revolving Credit Loan and (c) each New Revolving Credit Lender shall become a
Lender with respect to the New Revolving Credit Commitment and all matters
relating thereto.
(c) The Administrative Agent shall notify Lenders promptly upon
receipt of the Borrower's notice of each Increased Amount Date and in respect
thereof (y) the New Revolving Credit Commitments and the New Revolving Credit
Lenders, and (z) in the case of each notice to any Revolving Credit Lender, the
respective interests in such Revolving Credit Lender's Revolving Credit Loans,
in each case subject to the assignments contemplated by this Section.
(d) The terms and provisions of the New Revolving Credit Loans shall
be identical to the Revolving Credit Loans. Each Assignment and Acceptance
Agreement may, without the consent of any other Lenders, effect such amendments
to this Agreement and the other Loan Documents as may be necessary or
appropriate, in the opinion of the Administrative Agent, to effect the provision
of this Section 2.25.
SECTION 3. LETTERS OF CREDIT
3.1 L/C Commitment.
(a) Subject to the terms and conditions hereof, each Issuing Lender,
in reliance on the agreements of the other Revolving Credit Lenders set forth in
Section 3.4(a), agrees to issue letters of credit (the letters of credit issued
on and after the Closing Date pursuant to this Section 3, the "Letters of
Credit") for the account of the Borrower on any Business Day during the
Revolving Credit Commitment Period in such form as may be approved from time to
time by such Issuing Lender; provided, that no Issuing Lender shall have any
obligation to issue any Letter of Credit if, after giving effect to such
issuance, (i) the L/C Obligations would exceed the L/C Commitment or (ii) the
aggregate amount of the Available Revolving Credit Commitments would be less
than zero. Each Letter of Credit shall (i) be denominated in Dollars and (ii)
expire no later than the earlier of (x) the first anniversary of its date of
issuance and (y) the date which is five Business Days prior to the Revolving
Credit Termination Date; provided that any Letter of Credit with a one-year term
may provide for the renewal thereof for additional one-year periods (which shall
in no event extend beyond the date referred to in clause (y) above).
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(b) No Issuing Lender shall at any time be obligated to issue any
Letter of Credit hereunder if such issuance would conflict with, or cause such
Issuing Lender or any L/C Participant to exceed any limits imposed by, any
applicable Requirement of Law.
3.2 Procedure for Issuance of Letters of Credit. The Borrower may
from time to time request that an Issuing Lender issue a Letter of Credit by
delivering to such Issuing Lender, with a copy to the Administrative Agent, at
their addresses for notices specified herein an Application therefor, completed
to the satisfaction of such Issuing Lender, and such other certificates,
documents and other papers and information as such Issuing Lender may request.
Upon receipt of any Application, an Issuing Lender will process such Application
and the certificates, documents and other papers and information delivered to it
in connection therewith in accordance with its customary procedures and shall
promptly issue the Letter of Credit requested thereby by issuing the original of
such Letter of Credit to the beneficiary thereof or as otherwise may be agreed
to by such Issuing Lender and the Borrower (but in no event shall any Issuing
Lender be required to issue any Letter of Credit earlier than three Business
Days after its receipt of the Application therefor and all such other
certificates, documents and other papers and information relating thereto).
Promptly after issuance by an Issuing Lender of a Letter of Credit, such Issuing
Lender shall furnish a copy of such Letter of Credit to the Borrower and the
Administrative Agent. Each Issuing Lender shall promptly give notice to the
Administrative Agent of the issuance of each Letter of Credit issued by such
Issuing Lender (including the amount thereof).
3.3 Fees and Other Charges.
(a) The Borrower will pay a fee on the aggregate face amount of all
outstanding Letters of Credit at a per annum rate equal to the Applicable Margin
then in effect with respect to Eurodollar Loans under the Revolving Credit
Facility, shared ratably among the Revolving Credit Lenders in accordance with
their respective Revolving Credit Percentages and payable quarterly in arrears
on each L/C Fee Payment Date after the issuance date of such Letter of Credit.
In addition, the Borrower shall pay to the relevant Issuing Lender for its own
account a fronting fee on the aggregate drawable amount of all outstanding
Letters of Credit issued by it of a percentage per annum to be agreed by the
Borrower and the relevant Issuing Lender, payable quarterly in arrears on each
L/C Fee Payment Date after the issuance of date of such Letter of Credit.
(b) In addition to the foregoing fees, the Borrower shall pay or
reimburse each Issuing Lender for such normal and customary costs and expenses
as are incurred or charged by such Issuing Lender in issuing, negotiating,
effecting payment under, amending or otherwise administering any Letter of
Credit.
3.4 L/C Participations.
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(a) Each Issuing Lender irrevocably agrees to grant and hereby grants
to each L/C Participant, and, to induce each Issuing Lender to issue Letters of
Credit hereunder, each L/C Participant irrevocably agrees to accept and purchase
and hereby accepts and purchases from each Issuing Lender, on the terms and
conditions hereinafter stated, for such L/C Participant's own account and risk,
an undivided interest equal to such L/C Participant's Revolving Credit
Percentage in each Issuing Lender's obligations and rights under each Letter of
Credit issued by such Issuing Lender hereunder and the amount of each draft paid
by such Issuing Lender thereunder. Each L/C Participant unconditionally and
irrevocably agrees with each Issuing Lender that, if a draft is paid under any
Letter of Credit issued by such Issuing Lender for which such Issuing Lender is
not reimbursed in full by the Borrower in accordance with the terms of this
Agreement, such L/C Participant shall pay to such Issuing Lender, regardless of
the occurrence or continuance of a Default or Event of Default or the failure to
satisfy any of the other conditions specified in Section 5, upon demand at the
Administrative Agent's address for notices specified herein (and thereafter, the
Administrative Agent shall promptly pay to the Issuing Lender) an amount equal
to such L/C Participant's Revolving Credit Percentage of the amount of such
draft, or any part thereof, that is not so reimbursed.
(b) If any amount required to be paid by any L/C Participant to an
Issuing Lender pursuant to Section 3.4(a) in respect of any unreimbursed portion
of any payment made by such Issuing Lender under any Letter of Credit is paid to
such Issuing Lender within three Business Days after the date such payment is
due, the Issuing Lender shall so notify the Administrative Agent, who shall
promptly notify the L/C Participants and each such L/C Participant shall pay to
the Administrative Agent, for the account of the Issuing Lender on demand (and
thereafter the Administrative Agent shall promptly pay to the Issuing Lender) an
amount equal to the product of (i) such amount, times (ii) the daily average
Federal Funds Effective Rate during the period from and including the date such
payment is required to the date on which such payment is immediately available
to such Issuing Lender, times (iii) a fraction the numerator of which is the
number of days that elapse during such period and the denominator of which is
360. If any such amount required to be paid by any L/C Participant pursuant to
Section 3.4(a) is not made available to the Administrative Agent, for the
account of such Issuing Lender by such L/C Participant within three Business
Days after the date such payment is due, the Administrative Agent, on behalf of
such Issuing Lender shall be entitled to recover from such L/C Participant, on
demand, such amount with interest thereon calculated from such due date at the
rate per annum applicable to Base Rate Loans under the Revolving Credit
Facility. A certificate of the Administrative Agent on behalf of such Issuing
Lender submitted to any L/C Participant with respect to any such amounts owing
under this Section shall be conclusive in the absence of manifest error.
(c) Whenever, at any time after an Issuing Lender has made payment
under any Letter of Credit and has received from the Administrative Agent any
L/C Participant's pro rata share of such payment in accordance with Section
3.4(a), such Issuing Lender receives any payment related to such Letter of
Credit (whether directly from the Borrower or otherwise, including proceeds of
collateral applied thereto by such Issuing Lender), or any payment of interest
on account thereof, such Issuing Lender will distribute to the Administrative
Agent for the account of such L/C Participant (and thereafter, the
Administrative Agent will promptly distribute to such L/C Participant) its pro
rata share thereof; provided, however, that in the event that any such payment
received by such Issuing Lender shall be required to be returned by such Issuing
Lender, such L/C Participant shall return to the Administrative Agent for the
account of such Issuing Lender the portion thereof previously distributed by
such Issuing Lender to it.
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3.5 Reimbursement Obligation of the Borrower. The Borrower agrees to
reimburse each Issuing Lender, on each date on which such Issuing Lender
notifies the Borrower of the date and amount of a draft presented under any
Letter of Credit and paid by such Issuing Lender, for the amount of (a) such
draft so paid and (b) any taxes, fees, charges or other costs or expenses
incurred by such Issuing Lender in connection with such payment (the amounts
described in the foregoing clauses (a) and (b) in respect of any drawing,
collectively, the "Payment Amount"). Each such payment shall be made to such
Issuing Lender at its address for notices specified herein in lawful money of
the United States of America and in immediately available funds. Interest shall
be payable on each Payment Amount from the date of the applicable drawing until
payment in full at the rate set forth in (i) until the second Business Day
following the date of the applicable drawing, Section 2.15(b) and (ii)
thereafter, Section 2.15(c). Each drawing under any Letter of Credit shall
(unless an event of the type described in clause (i) or (ii) of Section 8(f)
shall exist and be continuing with respect to the Borrower, in which case the
procedures specified in Section 3.4 for funding by L/C Participants shall apply)
constitute a request by the Borrower to the Administrative Agent for a borrowing
pursuant to Section 2.5 of Base Rate Loans (or, at the option of the
Administrative Agent and the Swing Line Lender in their sole discretion, a
borrowing pursuant to Section 2.7 of Swing Line Loans) in the amount of such
drawing. The Borrowing Date with respect to such borrowing shall be the first
date on which a borrowing of Revolving Credit Loans (or, if applicable, Swing
Line Loans) could be made, pursuant to Section 2.5 (or, if applicable, Section
2.7), if the Administrative Agent had received a notice of such borrowing at the
time the Administrative Agent receives notice from the relevant Issuing Lender
of such drawing under such Letter of Credit.
3.6 Obligations Absolute. The Borrower's obligations under this
Section 3 shall be absolute and unconditional under any and all circumstances
and irrespective of any setoff, counterclaim or defense to payment that the
Borrower may have or has had against any Issuing Lender, any beneficiary of a
Letter of Credit or any other Person. The Borrower also agrees with each Issuing
Lender that such Issuing Lender shall not be responsible for, and the Borrower's
Reimbursement Obligations under Section 3.5 shall not be affected by, among
other things, the validity or genuineness of documents or of any endorsements
thereon, even though such documents shall in fact prove to be invalid,
fraudulent or forged, or any dispute between or among the Borrower and any
beneficiary of any Letter of Credit or any other party to which such Letter of
Credit may be transferred or any claims whatsoever of the Borrower against any
beneficiary of such Letter of Credit or any such transferee. No Issuing Lender
shall be liable for any error, omission, interruption or delay in transmission,
dispatch or delivery of any message or advice, however transmitted, in
connection with any Letter of Credit, except for errors or omissions found by a
final and nonappealable decision of a court of competent jurisdiction to have
resulted from the gross negligence or willful misconduct of such Issuing Lender.
The Borrower agrees that any action taken or omitted by an Issuing Lender under
or in connection with any Letter of Credit issued by it or the related drafts or
documents, if done in the absence of gross negligence or willful misconduct and
in accordance with the standards or care specified in the UCC of the State of
New York, shall be binding on the Borrower and shall not result in any liability
of such Issuing Lender to the Borrower.
45
3.7 Letter of Credit Payments. If any draft shall be presented for
payment under any Letter of Credit, the relevant Issuing Lender shall promptly
notify the Administrative Agent and the Borrower of the date and amount thereof.
The responsibility of the relevant Issuing Lender to the Borrower in connection
with any draft presented for payment under any Letter of Credit, in addition to
any payment obligation expressly provided for in such Letter of Credit issued by
such Issuing Lender, shall be limited to determining that the documents
(including each draft) delivered under such Letter of Credit in connection with
such presentment appear on their face to be in conformity with such Letter of
Credit.
3.8 Applications. To the extent that any provision of any Application
related to any Letter of Credit is inconsistent with the provisions of this
Section 3, the provisions of this Section 3 shall apply.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Arranger, the Administrative Agent and the Lenders to
enter into this Agreement and to make the Loans and issue or participate in the
Letters of Credit, the Borrower hereby represents and warrants to the Arranger,
the Administrative Agent and each Lender that:
4.1 Financial Condition.
(a) The unaudited pro forma consolidated balance sheet of the
Borrower and its consolidated Subsidiaries as at October 2, 2005 (including the
notes thereto) (the "Pro Forma Balance Sheet"), has been prepared giving effect
(as if such events had occurred on such date) to (i) the consummation of the
Acquisition, (ii) the Loans and any extensions of credit to be made on the
Closing Date and the use of proceeds thereof and (iii) the payment of fees and
expenses in connection with the foregoing. The Pro Forma Balance Sheet has been
prepared based on the best information available to the Borrower as of the date
of delivery thereof, and presents fairly on a pro forma basis the estimated
financial position of Borrower and its consolidated Subsidiaries as at October
2, 2005, assuming that the events specified in the preceding sentence had
actually occurred at such date.
(b) The audited consolidated balance sheets of the Borrower and its
consolidated Subsidiaries as at January 2, 2005, December 28, 2003 and December
29, 2002, and the related consolidated statements of income and of cash flows
for the fiscal years ended on such dates, reported on by and accompanied by an
unqualified report from PricewaterhouseCoopers LLP, present fairly the
consolidated financial condition of the Borrower and its consolidated
Subsidiaries as at such dates, and the consolidated results of its operations
and its consolidated cash flows for the respective fiscal years then ended. The
audited consolidated balance sheets of Healthfield and its consolidated
Subsidiaries as at December 31, 2004 and December 31, 2003, and the related
46
consolidated statements of income and of cash flows for the fiscal years ended
on such dates, reported on by and accompanied by an unqualified report from KPMG
LLP, present fairly the consolidated financial condition of Healthfield and its
consolidated Subsidiaries as at such dates, and the consolidated results of its
operations and its consolidated cash flows for the respective fiscal years then
ended. The audited consolidated balance sheets of Capital Health Management
Group, Inc. ("CHMG") and its consolidated Subsidiaries as at December 31, 2004
and December 31, 2003 and the related consolidated statements of income and of
cash flows for the fiscal years ended on such dates, reported on by and
accompanied by an unqualified report from ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Company, present
fairly the consolidated financial condition of CHMG and its consolidated
Subsidiaries as at such dates, and the consolidated results of its operations
and its consolidated cash flows for the respective fiscal years then ended. The
unaudited consolidated balance sheet of the Borrower and its consolidated
Subsidiaries as at October 2, 2005, and the related unaudited consolidated
statements of income and cash flows for the nine-month period ended on such
date, present fairly the consolidated financial condition of the Borrower and
its consolidated Subsidiaries as at such date, and the consolidated results of
its operations and its consolidated cash flows for the nine-month period then
ended (subject to normal year-end audit adjustments). The unaudited consolidated
balance sheet of the Borrower and its consolidated Subsidiaries (for the
avoidance of doubt, as of the date of such financial statements) as at January
1, 2006, and the related unaudited consolidated statements of income and cash
flows for the twelve-month period ended on such date, present fairly in all
material respects the consolidated financial condition of the Borrower and its
consolidated Subsidiaries as at such date, and the consolidated results of its
operations and its consolidated cash flows for the twelve-month period then
ended based on the best information available (subject to normal year-end audit
adjustments). The unaudited consolidated financial data for the nine-month
period ended September 30. 2005 provided to the Administrative Agent prior to
the Closing Date, presents fairly the consolidated financial condition of
Healthfield and its consolidated Subsidiaries as at such date, and the
consolidated results of its operations and its consolidated cash flows for the
nine-month period then ended (subject to normal year-end audit adjustments). All
such financial statements, including the related schedules and notes thereto,
have been prepared in accordance with GAAP applied consistently throughout the
periods involved (except as approved by the aforementioned firms of accountants
and disclosed therein). The Borrower and its Subsidiaries do not have any
material Guarantee Obligations, contingent liabilities and liabilities for
taxes, or any long-term leases or unusual forward or long-term commitments,
including, without limitation, any interest rate or foreign currency swap or
exchange transaction or other obligation in respect of derivatives, that are not
reflected in the most recent financial statements referred to in this paragraph.
During the period from January 1, 2005 to and including the date hereof there
has been no Disposition by the Borrower or any of its Subsidiaries or
Healthfield and its consolidated Subsidiaries of any material part of its
business or Property.
4.2 No Change. Since January 2, 2005 there has been no development or
event that has had or could reasonably be expected to have a Material Adverse
Effect.
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4.3 Corporate Existence; Compliance with Law. Each of the Borrower
and its Subsidiaries (a) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, (b) has the
corporate power and authority, and the legal right, to own and operate its
Property, to lease the Property it operates as lessee and to conduct the
business in which it is currently engaged, (c) is duly qualified as a foreign
corporation and in good standing under the laws of each jurisdiction where its
ownership, lease or operation of Property or the conduct of its business
requires such qualification and (d) is in compliance with all Requirements of
Law except to the extent that the failure to comply therewith could not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.
4.4 Corporate Power; Authorization; Enforceable Obligations. Each
Loan Party has the corporate power and authority, and the legal right, to make,
deliver and perform the Loan Documents and Acquisition Documentation to which it
is a party and, in the case of the Borrower, to borrow hereunder. Each Loan
Party has taken all necessary corporate or other action to authorize the
execution, delivery and performance of the Loan Documents and Acquisition
Documentation to which it is a party and, in the case of the Borrower, to
authorize the borrowings on the terms and conditions of this Agreement. No
consent or authorization of, filing with, notice to or other act by or in
respect of, any Governmental Authority or any other Person is required in
connection with the Acquisition, the borrowings hereunder or the execution,
delivery, performance, validity or enforceability of this Agreement or any of
the other Loan Documents or the Acquisition Documentation except (i) consents,
authorizations, filings and notices described in Schedule 4.4, which consents,
authorizations, filings and notices have been obtained or made and are in full
force and effect and (ii) the filings referred to in Section 4.19. Each Loan
Document and each item of Acquisition Documentation has been duly executed and
delivered on behalf of each Loan Party that is a party thereto. This Agreement
constitutes, and each other Loan Document upon execution will constitute, a
legal, valid and binding obligation of each Loan Party that is a party thereto,
enforceable against each such Loan Party in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
4.5 No Legal Bar. The execution, delivery and performance of this
Agreement and the other Loan Documents, the Acquisition Documentation, the
issuance of Letters of Credit, the borrowings hereunder and the use of the
proceeds thereof will not violate any Requirement of Law or any material
Contractual Obligation of the Borrower or any of its Subsidiaries and will not
result in, or require, the creation or imposition of any Lien on any of their
respective properties or revenues pursuant to any Requirement of Law or any such
Contractual Obligation (other than the Liens created by the Security Documents).
No Requirement of Law or Contractual Obligation applicable to the Borrower or
any of its Subsidiaries could reasonably be expected to have a Material Adverse
Effect.
4.6 No Material Litigation. No litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is pending or,
to the knowledge of the Borrower, threatened by or against the Borrower or any
of its Subsidiaries or against any of their respective properties or operations
(a) with respect to any of the Loan Documents, the Acquisition Documentation or
any of the transactions contemplated hereby or thereby, or (b) that could
reasonably be expected to have a Material Adverse Effect.
48
4.7 No Default. Neither the Borrower nor any of its Subsidiaries is
in default under or with respect to any of its Contractual Obligations in any
respect that could reasonably be expected to have a Material Adverse Effect. No
Default or Event of Default exists and is continuing.
4.8 Ownership of Property; Liens. Each of the Borrower and each of
its Subsidiaries is the sole owner of, legally and beneficially, and has good
marketable and insurable title in fee simple to, or a valid leasehold interest
in, all its real property, and good title to, or a valid lease of, all its other
Property, and none of such Property is subject to any claims, liabilities,
obligations, charges or restrictions of any kind, nature or description or to
any Lien except for Permitted Liens. None of the Pledged Stock is subject to any
Lien except for Permitted Liens.
4.9 Intellectual Property. Each of the Borrower and each of its
Subsidiaries owns, or is licensed to use, all Intellectual Property necessary
for the conduct of its business as currently conducted. No material claim has
been asserted and is pending by any Person challenging or questioning the use of
any material Intellectual Property or the validity or effectiveness of any
material Intellectual Property, nor does the Borrower know of any valid basis
for any such claim. To the best of their knowledge, the use of Intellectual
Property by the Borrower and its Subsidiaries does not infringe on the rights of
any Person in any material respect.
4.10 Taxes. Each of the Borrower and each of its Subsidiaries has
filed or caused to be filed all Federal, state and other material tax returns
that are required to be filed and has paid all taxes shown to be due and payable
on said returns or on any assessments made against it or any of its Property and
all other taxes, fees or other charges imposed on it or any of its Property by
any Governmental Authority (other than any amount the validity of which is
currently being contested in good faith by appropriate proceedings and with
respect to which reserves in conformity with GAAP have been provided on the
books of the Borrower or its Subsidiaries, as the case may be); and no tax Lien
has been filed, and, to the knowledge of the Borrower, no claim is being
asserted, with respect to any such tax, fee or other charge.
4.11 Federal Regulations. No part of the proceeds of any Loans will
be used for "purchasing" or "carrying" any "margin stock" within the respective
meanings of each of the quoted terms under Regulation U as now and from time to
time hereafter in effect or for any purpose that violates the provisions of the
Regulations of the Board. If requested by any Lender or the Administrative
Agent, the Borrower will furnish to the Administrative Agent and each Lender a
statement to the foregoing effect in conformity with the requirements of FR Form
G-3 or FR Form U-1 referred to in Regulation U.
4.12 Labor Matters. There are no strikes, stoppages or slowdowns or
other labor disputes against the Borrower or any of its Subsidiaries pending or,
to the knowledge of the Borrower, threatened that (individually or in the
aggregate) could reasonably be expected to have a Material Adverse Effect. Hours
worked by and payment made to employees of the Borrower and its Subsidiaries
49
have not been in violation of the Fair Labor Standards Act or any other
applicable Requirement of Law dealing with such matters that (individually or in
the aggregate) could reasonably be expected to have a Material Adverse Effect.
All payments due from the Borrower or any of its Subsidiaries on account of
employee health and welfare insurance that (individually or in the aggregate)
could reasonably be expected to have a Material Adverse Effect if not paid have
been paid or accrued as a liability on the books of the Borrower or the relevant
Subsidiary.
4.13 ERISA. Neither a Reportable Event nor an "accumulated funding
deficiency" (within the meaning of Section 412 of the Code or Section 302 of
ERISA) has occurred during the five-year period prior to the date on which this
representation is made or deemed made with respect to any Plan maintained by the
Borrower or its Subsidiaries, and each Plan maintained by the Borrower or its
Subsidiaries has complied in all material respects with the applicable
provisions of ERISA and the Code. No termination of a Single Employer Plan has
occurred that could reasonably be expected to result in a material liability of
the Borrower or its Subsidiaries, and no Lien in favor of the PBGC or a Plan has
arisen, during such five-year period. The present value of all accrued benefits
under each Single Employer Plan (based on those assumptions used to fund such
Plans) did not, as of the last annual valuation date prior to the date on which
this representation is made or deemed made, exceed the value of the assets of
such Plan allocable to such accrued benefits by a material amount and which
could reasonably be expected to result in a material liability to the Borrower
or its Subsidiaries. Neither the Borrower nor any Commonly Controlled Entity has
had a complete or partial withdrawal from any Multiemployer Plan that has
resulted or could reasonably be expected to result in a material liability under
ERISA to the Borrower or its Subsidiaries, and neither the Borrower nor any
Subsidiary would become subject to any material liability under ERISA if the
Borrower or any Commonly Controlled Entity were to withdraw completely from all
Multiemployer Plans as of the valuation date most closely preceding the date on
which this representation is made or deemed made. No such Multiemployer Plan is
in Reorganization or Insolvent.
4.14 Investment Company Act; Other Regulations. No Loan Party is an
"investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended. No Loan
Party is subject to regulation under any Requirement of Law (other than
Regulation X of the Board) which limits its ability to incur Indebtedness.
4.15 Subsidiaries.
(a) The Subsidiaries listed on Schedule 4.15 constitute all the
Subsidiaries of the Borrower as of the Closing Date. Schedule 4.15
sets forth as of the Closing Date and after giving effect to the
Acquisition, the exact legal name (as reflected on the certificate of
incorporation (or formation) and jurisdiction of incorporation (or
formation) of each Subsidiary of the Borrower and, as to each such
Subsidiary, the percentage and number of each class of Capital Stock
owned by each Loan Party and its Subsidiaries.
(b) There are no outstanding subscriptions, options, warrants,
calls, rights or other agreements or commitments (other than stock
options granted to employees or directors and directors' qualifying
shares) of any nature relating to any Capital Stock of the Borrower or
any Subsidiary, except as disclosed on Schedule 4.15.
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4.16 Use of Proceeds. The proceeds of the Term Loans shall be used to
finance a portion of the Acquisition and the Refinancing and to pay related fees
and expenses. The proceeds of the Revolving Credit Loans and the Swing Line
Loans, and the Letters of Credit, shall be used for general corporate purposes.
4.17 Environmental Matters. Other than exceptions to any of the
following that could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect:
(a) The Borrower and its Subsidiaries: (i) are, and within the
period of all applicable statutes of limitation have been, in
compliance with all applicable Environmental Laws; (ii) hold all
Environmental Permits (each of which is in full force and effect)
required for any of their current or intended operations or for any
property owned, leased, or otherwise operated by any of them; (iii)
are, and within the period of all applicable statutes of limitation
have been, in compliance with all of their Environmental Permits; and
(iv) reasonably believe that: each of their Environmental Permits will
be timely renewed and complied with, without material expense; any
additional Environmental Permits that may be required of any of them
will be timely obtained and complied with, without material expense;
and compliance with any Environmental Law that is or is expected to
become applicable to any of them will be timely attained and
maintained, without material expense.
(b) Materials of Environmental Concern are not present at, on,
under, in, or about any real property now or formerly owned, leased or
operated by the Borrower or any of its Subsidiaries, or at any other
location (including, without limitation, any location to which
Materials of Environmental Concern have been sent for re-use or
recycling or for treatment, storage, or disposal) which could
reasonably be expected to (i) give rise to liability of the Borrower
or any of its Subsidiaries under any applicable Environmental Law or
otherwise result in material costs to the Borrower or any of its
Subsidiaries, or (ii) interfere with the Borrower's or any of its
Subsidiaries' continued operations, or (iii) impair the fair saleable
value of any real property owned or leased by the Borrower or any of
its Subsidiaries.
(c) There is no judicial, administrative, or arbitral proceeding
(including any notice of violation or alleged violation) under or
relating to any Environmental Law to which the Borrower or any of its
Subsidiaries is, or to the knowledge of the Borrower or any of its
Subsidiaries will be, named as a party that is pending or, to the
knowledge of the Borrower or any of its Subsidiaries, threatened.
(d) Neither the Borrower nor any of its Subsidiaries has received
any written request for information, or been notified that it is a
potentially responsible party under or relating to the federal
Comprehensive Environmental Response, Compensation, and Liability Act
or any similar Environmental Law, or with respect to any Materials of
Environmental Concern.
51
(e) Neither the Borrower nor any of its Subsidiaries has entered
into or agreed to any consent decree, order, or settlement or other
agreement, or is subject to any judgment, decree, or order or other
agreement, in any judicial, administrative, arbitral, or other forum
for dispute resolution, relating to compliance with or liability under
any Environmental Law.
(f) Neither the Borrower nor any of its Subsidiaries has assumed
or retained, by contract or operation of law, any liabilities of any
kind, fixed or contingent, known or unknown, under any Environmental
Law or with respect to any Material of Environmental Concern.
4.18 Accuracy of Information, etc. No statement or information
contained in this Agreement, any other Loan Document, the Confidential
Information Memorandum or any other document, certificate or statement furnished
to the Administrative Agent, the Arranger or the Lenders or any of them, by or
on behalf of any Loan Party for use in connection with the transactions
contemplated by this Agreement or the other Loan Documents, contained as of the
date such statement, information, document or certificate was so furnished (or,
in the case of the Confidential Information Memorandum, as of the date of this
Agreement), any untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements contained herein or
therein not misleading. The projections and pro forma financial information
contained in the materials referenced above are based upon good faith estimates
and assumptions believed by management of the Borrower to be reasonable at the
time made, it being recognized by the Lenders that such financial information as
it relates to future events is not to be viewed as fact and that actual results
during the period or periods covered by such financial information may differ
from the projected results set forth therein by a material amount. As of the
Closing Date, the representations and warranties contained in the Acquisition
Documentation are true and correct in all material respects. There is no fact
known to any Loan Party that could reasonably be expected to have a Material
Adverse Effect that has not been expressly disclosed herein, in the other Loan
Documents, in the Confidential Information Memorandum or in any other documents,
certificates and statements furnished to the Arranger, the Administrative Agent
and the Lenders for use in connection with the transactions contemplated hereby
and by the other Loan Documents.
4.19 Security Documents.
(a) The Guarantee and Collateral Agreement is effective to create
in favor of the Administrative Agent, for the benefit of the Secured
Parties, a legal, valid, binding and enforceable security interest in
the Collateral described therein and proceeds and products thereof. In
the case of the Pledged Stock described in the Guarantee and
Collateral Agreement, when any stock certificates representing such
Pledged Stock are delivered to the Administrative Agent, and in the
case of the other Collateral described in the Guarantee and Collateral
Agreement, when financing statements in appropriate form are filed in
the offices specified on Schedule 4.19(a)-1 (which financing
statements may be filed by the Administrative Agent) at any time and
such other filings as are specified on Schedule 3 to the Guarantee and
Collateral Agreement have been completed (all of which filings may be
filed by the Administrative Agent) at any time, the Guarantee and
Collateral Agreement shall constitute a fully perfected Lien on, and
52
security interest in, all right, title and interest of the Loan
Parties in such Collateral and the proceeds and products thereof, as
security for the Obligations (as defined in the Guarantee and
Collateral Agreement), in each case prior and superior in right to any
other Person (except, Permitted Liens) and subject to the Permitted
Perfection Exception. Schedule 4.19(a)-2 lists each UCC Financing
Statement that (i) names any Loan Party as debtor and (ii) will remain
on file after the Closing Date. Schedule 4.19(a)-3 lists each UCC
Financing Statement that (i) names any Loan Party as debtor and (ii)
will be terminated on or prior to the Closing Date; and on or prior to
the Closing Date, the Borrower will have delivered to the
Administrative Agent, or caused to be filed, duly completed UCC
termination statements in respect of each such UCC Financing
Statement.
(b) Each of the Mortgages when delivered will be effective to
create in favor of the Administrative Agent, for the benefit of the
Secured Parties, an enforceable Lien on the Mortgaged Properties
described therein and, when filed in the recording office designated
by the Borrower, shall constitute a fully perfected Lien on, and
security interest in, all right, title and interest of the Loan
Parties in the Mortgaged Properties described therein, as security for
the Obligations (as defined in the relevant Mortgage), in each case
prior and superior in right to any other Person (other than Persons
holding Permitted Liens).
4.20 Solvency. The Borrower is, and the Loan Parties on a
consolidated basis are, and after giving effect to the Acquisition and the
incurrence of all Indebtedness and obligations being incurred in connection
herewith and therewith will be, Solvent.
4.21 Regulation H. No Mortgage encumbers improved real property which
is located in an area that has been identified by the Secretary of Housing and
Urban Development as an area having special flood hazards and in which flood
insurance has been made available under the National Flood Insurance Act of 1968
(except any Mortgaged Properties as to which such flood insurance as required by
Regulation H has been obtained and is in full force and effect as required by
this Agreement).
4.22 Insurance. Each of the Borrower and its Subsidiaries is insured,
in accordance with Section 5.3 of the Guarantee and Collateral Agreement, by
insurers of recognized financial responsibility against such losses and risks
and in such amounts as are prudent and customary in the businesses in which it
is engaged, and none of the Borrower or any of its Subsidiaries (i) has received
notice from any insurer or agent of such insurer that substantial capital
improvements or other material expenditures will have to be made in order to
continue such insurance or (ii) has any reason to believe that it will not be
able to renew its existing insurance coverage as and when such coverage expires
or to obtain similar coverage from similar insurers at a cost that could not
reasonably be expected to have a Material Adverse Effect.
4.23 Acquisition Documentation. The Acquisition Documentation listed
on Schedule 4.23 attached hereto constitute all of the material agreements,
instruments and undertakings to which the Borrower or any of its Subsidiaries is
bound or by which such Person or any of its property or assets is bound or
affected relating to, or arising out of, the Acquisition (including, without
53
limitation, any agreements, instruments or undertakings assumed pursuant to the
Acquisition Agreement). None of such material agreements, instruments or
undertakings have been amended, supplemented or otherwise modified, and all such
material agreements, instruments and undertakings are in full force and effect.
No party to any Acquisition Documentation is currently in default thereunder and
no party thereto, or any other Person, has the right to terminate any
Acquisition Documentation.
4.24 Real Estate. As of the Closing Date, Schedule 4.24 sets forth a
true, complete and correct list of all real property (i) owned by any Loan Party
or its Subsidiaries in fee simple or (ii) leased by any Loan Party or its
Subsidiaries.
4.25 Compliance with Health Care Laws.
(a) Except as set forth on Schedule 4.25(a), each of Borrower,
its Subsidiaries, and their respective officers, directors, employees,
agents and contractors (exercising their respective duties on behalf
of the Borrower or any of its Subsidiaries) is, and at all times has
been, in material compliance with all relevant federal and state laws
regulating health services or payment, including, but not limited to,
the federal Anti-Kickback Statute (42 U.S.C. ss. 1320a-7b(b)), the
▇▇▇▇▇ Law (42 U.S.C. ss. 1395nn), the Anti-Inducement Law (42 U.S.C.
ss. 1320a-7a(a)(5)), the civil False Claims Act (31 U.S.C. ss. 3729 et
seq.), the administrative False Claims Law (42 U.S.C. ss.
1320a-7b(a)), the exclusion laws (42 U.S.C. ss. 1320a-7), the civil
monetary penalty laws (42 U.S.C. ss. 1320a-7a), the administrative
simplification provisions of the Health Insurance Portability and
Accountability Act of 1996 (42 U.S.C. ▇▇.▇▇. 1320d-1320d-8), Medicare
(Title XVIII of the Social Security Act), Medicaid (Title XIX of the
Social Security Act), and any other state or federal law, regulation,
guidance document, manual provision, program memorandum, opinion
letter, or other issuance which regulates kickbacks, patient or
program charges, recordkeeping, referrals, the hiring of employees or
acquisition of services or supplies from those who have been excluded
from government health care programs, quality, safety, privacy,
security, licensure, accreditation, or any other aspect of providing
health care ("Health Care Laws").
(b) Except as set forth on Schedule 4.25(b), each of the Borrower
and its Subsidiaries has (i) all licenses, consents, certificates,
permits, authorizations, approvals, franchises, registrations,
certificates of need, accreditations, and other rights from, and has
made all declarations and filings with, all applicable Governmental
Authorities and accrediting organizations (each, a "Health Care
Permit") material to its business, and (ii) not received notice and
has no knowledge that any Governmental Authority or accreditation
organization is considering limiting, suspending, terminating, or
revoking any such Health Care Permit which limitation, suspension,
termination or revocation could reasonably be expected to have a
Material Adverse Effect. All such Health Care Permits are valid and in
full force and effect, except as could not reasonably be expected to
have a Material Adverse Effect, and the Borrower and each of its
Subsidiaries is in material compliance with the terms and conditions
of all such Health Care Permits and with the rules and regulations of
the Governmental Authorities and accrediting organizations having
jurisdiction with respect to such Health Care Permits.
54
(c) To the extent it participates in a particular Program, each
of the Borrower and its Subsidiaries meets all of the requirements of
participation and payment of Medicare, Medicaid, any other state or
federal government health care programs, and any other public or
private third party payor programs (collectively, "Programs") and is a
party to valid participation agreements for payment by such Programs,
except as could not reasonably be expected to have a Material Adverse
Effect. There is no investigation, audit, claim review, or other
action pending or, to the knowledge of the Borrower, threatened which
could result in a revocation, suspension, termination, probation,
material restriction, material limitation, or non-renewal of any
Program participation agreement or result in the Borrower's or any of
its Subsidiaries' exclusion from any Program, except as could not
reasonably be expected to have a Material Adverse Effect. Schedule
4.25(c) sets forth an accurate, complete and current list of (i) all
Medicaid and other state and federal government health care program
participation agreements, or, in the case of Medicare, each provider
number, and (ii) the top twenty-five (25) payors, by revenue, in each
case, of the Borrower and its Subsidiaries, on a consolidated basis,
as of the Closing Date.
(d) Except as set forth on Schedule 4.25(d), none of the
Borrower, any of its Subsidiaries, or their respective officers,
directors and, to the Borrower's or any Subsidiary's knowledge,
employees, agents and contractors has been or is currently excluded
from participation in government health care programs pursuant to 42
U.S.C. ss. 1320a-7.
(e) Except as set forth on Schedule 4.25(e), as of the Closing
Date, none of the Borrower or any of its Subsidiaries (i) is a party
to a corporate integrity agreement, (ii) has any reporting obligations
pursuant to a settlement agreement, plan of correction, or other
remedial measure entered into with any Governmental Authority, or
(iii) has been served with or received any search warrant, subpoena,
civil investigative demand or contact letter from any Governmental
Agency related to its business operations. The Borrower and each of
its Subsidiaries, as applicable, has complied in all material respects
with the terms and conditions of any corporate integrity agreements,
settlement agreements, plans of correction, other remedial measures,
search warrants, subpoenas, civil investigative demands, or contract
letters set forth on Schedule 4.25(e).
4.26 Patriot Act. To the extent applicable, each Loan Party is in
compliance, in all material respects, with the (i) Trading with the Enemy Act,
as amended, and each of the foreign assets control regulations of the Untied
States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) and any
other enabling legislation or executive order relating thereto, and (ii) Uniting
and Strengthening America by Providing Appropriate Tools Required to Intercept
and Obstruct Terrorism (USA Patriot Act of 2001). No part of the proceeds of the
Loans will be used, directly or indirectly, for any payments to any governmental
official or employee, political party, official of a political party, candidate
for political office, or anyone else acting in an official capacity, in order to
obtain, retain or direct business or obtain any improper advantage, in violation
of the United States Foreign Corrupt Practices Act of 1977, as amended.
55
4.27 Inactive Subsidiary. QHR Southwest Business Trust does not own
any assets, conduct any material business or other operations or have any
material liabilities.
SECTION 5. CONDITIONS PRECEDENT
5.1 Conditions to Initial Extension of Credit. The agreement of each
Lender to make the initial extension of credit requested to be made by it
hereunder is subject to the satisfaction, prior to or concurrently with the
making of such extension of credit on the Closing Date, of the following
conditions precedent:
(a) Loan Documents. The Administrative Agent shall have received
(i) this Agreement, executed and delivered by a duly authorized
officer of the Borrower, (ii) the Guarantee and Collateral Agreement,
executed and delivered by a duly authorized officer of the Borrower
and each Guarantor and (iii) a Lender Addendum executed and delivered
by each Lender and accepted by the Borrower.
(b) Acquisition, etc. (i) The Acquisition shall have been
consummated for an aggregate purchase price not exceeding
$454,000,000, excluding transaction costs and subject to post-closing
adjustments, in accordance with the terms of the Acquisition Agreement
and no material provision thereof shall have been waived, amended,
supplemented or otherwise modified without the consent of the
Arranger, (ii) the Borrower shall have issued not more than
$55,500,000 in value of its common stock to the shareholders of
Healthfield (valued in accordance with the Acquisition Agreement) on
terms reasonably acceptable to the Arranger and (iii) the capital
structure of each Loan Party after the Acquisition shall be as
described in Schedule 4.15.
(c) Pro Forma Balance Sheet; Financial Statements. The
Administrative Agent shall have received (i) the Pro Forma Balance
Sheet, (ii) audited consolidated financial statements of the Borrower
and its consolidated Subsidiaries and Healthfield and its consolidated
Subsidiaries described in Section 4.1(b) and (iii) unaudited interim
consolidated financial statements of the Borrower and its consolidated
Subsidiaries and Healthfield and its consolidated Subsidiaries for
each fiscal month and quarterly period ended subsequent to the date of
the latest applicable financial statements delivered pursuant to
clause (ii) of this paragraph as to which such financial statements
are available; and such financial statements shall not, in the
reasonable judgment of the Administrative Agent, reflect any material
adverse change in the consolidated financial condition of the Borrower
and its consolidated Subsidiaries or Healthfield and its consolidated
Subsidiaries, as reflected in the financial statements or projections
contained in the Confidential Information Memorandum.
(d) Approvals. All governmental and third party approvals
(including landlords' and other consents) necessary in connection with
the Acquisition, the continuing operations of the Borrower and its
Subsidiaries and the transactions contemplated hereby shall have been
obtained and be in full force and effect, and all applicable waiting
periods shall have expired without any action being taken or
threatened by any competent authority which would restrain, prevent or
otherwise impose adverse conditions on the Acquisition or the
financing contemplated hereby.
56
(e) Related Agreements. The Administrative Agent shall have
received (in a form reasonably satisfactory to the Administrative
Agent), true and correct copies, certified as to authenticity by the
Borrower, of (i) the Acquisition Documentation and (ii) such other
documents or instruments as may be reasonably requested by the
Administrative Agent, including, without limitation, a copy of any
debt instrument, security agreement or other material contract to
which the Loan Parties are a party.
(f) Termination of Existing Credit Facilities and Existing
Mezzanine Debt. The Administrative Agent shall have received evidence
satisfactory to the Administrative Agent that the Existing Credit
Facilities and the Existing Mezzanine Debt shall be simultaneously
terminated, all amounts thereunder shall be simultaneously paid in
full and arrangements satisfactory to the Administrative Agent shall
have been made for the termination of Liens and security interests
granted in connection therewith.
(g) Fees. The Lenders, the Arranger and the Administrative Agent
shall have received all fees required to be paid, and all expenses for
which invoices have been presented (including reasonable fees,
disbursements and other charges of counsel to the Administrative
Agent), on or before the Closing Date. All such amounts will be paid
with proceeds of Loans made on the Closing Date and will be reflected
in the funding instructions given by the Borrower to the
Administrative Agent on or before the Closing Date.
(h) Business Plan. The Lenders shall have received a satisfactory
business plan for fiscal years 2005-2012 and a satisfactory written
analysis of the business and prospects of the Borrower and its
Subsidiaries for the period from the Closing Date through December 31,
2012.
(i) Solvency Analysis. The Lenders shall have received a Solvency
Certificate substantially in the form attached hereto as Exhibit J.
(j) Lien Searches. The Administrative Agent shall have received
the results of a recent lien and litigation search in each
jurisdiction or office as reasonably determined by the Administrative
Agent, and such search shall reveal no Liens on any of the assets of
the Loan Party, except for Permitted Liens or Liens set forth on
Schedule 4.19(a)-3.
(k) Closing Certificate. The Administrative Agent shall have
received a certificate of each Loan Party, dated the Closing Date,
substantially in the form of Exhibit C, with appropriate insertions
and attachments.
(l) Other Certifications. The Administrative Agent shall have
received the following:
(i) a copy of the charter of each Loan Party and each amendment
thereto, certified (as of a date reasonably near the date of the
initial extension of credit) as being a true and correct copy thereof
by the Secretary of State or other applicable Governmental Authority
of the jurisdiction in which each such Loan Party is organized;
57
(ii) a copy of a certificate of the Secretary of State or other
applicable Governmental Authority of the jurisdiction in which each
Loan Party is organized, dated reasonably near the date of the initial
extension of credit, listing the charter of such Loan Party and each
amendment thereto on file in such office and certifying that (A) such
amendments are the only amendments to such Loan Party's charter on
file in such office, (B) such Loan Party has paid all franchise taxes
to the date of such certificate and (C) such Loan Party is duly
organized and in good standing under the laws of such jurisdiction;
and
(iii) an electronic confirmation from the Secretary of State or
other applicable Governmental Authority of each jurisdiction in which
each such Loan Party is organized certifying that such Loan Party is
duly organized and in good standing under the laws of such
jurisdiction on the date of the initial extension of credit, prepared
by, or on behalf of, a filing service acceptable to the Administrative
Agent.
(m) Legal Opinions. The Administrative Agent shall have received
the following executed legal opinions:
(i) the legal opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel to
the Borrower and its Subsidiaries, substantially in the form of
Exhibit E-1;
(ii) the legal opinion of ▇▇▇▇▇▇▇▇▇ Traurig LLP, special counsel
to the Borrower and its Subsidiaries, substantially in the form of
Exhibit E-2;
(iii) the legal opinion of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP delivered in
connection with the Acquisition Agreement, accompanied by a reliance
letter in favor of the Administrative Agent and the Lenders,
substantially in the form of Exhibit E-3;
(iv) the legal opinion of Farmer, Price, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇,
LLP, Alabama local counsel, substantially in the form of Exhibit E-4;
and
(v) the legal opinion of Parker, Poe, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP,
North Carolina local counsel, substantially in the form of Exhibit
E-5.
Each such legal opinion shall cover such other matters incident to the
transactions contemplated by this Agreement as the Administrative
Agent may reasonably require.
(n) Pledged Stock; Stock Powers; Acknowledgment and Consent;
Pledged Notes. The Administrative Agent shall have received (i) the
certificates representing the shares of Capital Stock pledged pursuant
to the Guarantee and Collateral Agreement, together with an undated
stock power for each such certificate executed in blank by a duly
authorized officer of the pledgor thereof, (ii) an Acknowledgment and
Consent, substantially in the form of Annex II to the Guarantee and
Collateral Agreement, duly executed by any issuer of Capital Stock
pledged pursuant to the Guarantee and Collateral Agreement that is not
itself a party to the Guarantee and Collateral Agreement and (iii)
each promissory note pledged pursuant to the Guarantee and Collateral
Agreement endorsed (without recourse) in blank (or accompanied by an
executed transfer form in blank satisfactory to the Administrative
Agent) by the pledgor thereof.
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(o) Filings, Registrations and Recordings. Subject to the
Permitted Perfection Exception, each document (including, without
limitation, any UCC financing statement) required by the Security
Documents or under law or reasonably requested by the Administrative
Agent to be filed, registered or recorded in order to create in favor
of the Administrative Agent, for the benefit of the Secured Parties, a
perfected Lien on the Collateral described therein, prior and superior
in right to any other Person (other than with respect to Permitted
Liens), shall have been filed, registered or recorded or shall have
been delivered to the Administrative Agent in proper form for filing,
registration or recordation.
(p) Insurance. The Administrative Agent shall have received
insurance certificates satisfying the requirements of Section 5.3 of
the Guarantee and Collateral Agreement.
(q) Real Estate. The Administrative Agent shall have received
mortgages on the properties owned by Wiregrass Hospice Care, Inc. and
located in Coffee county, Alabama, and Houston county, Alabama,
together with such title insurance, surveys and related matters as the
Administrative Agent shall have reasonably requested.
(r) Miscellaneous. The Administrative Agent shall have received
such other documents, agreements, certificates and information as it
shall reasonably request.
Each Lender, by delivering its signature page to this Agreement or a
Lender Addendum and funding a Loan on the Closing Date, shall be deemed to have
acknowledged receipt of, and consented to and approved, each Loan Document and
each other document required to be approved by the Administrative Agent,
Required Lenders or Lenders, as applicable on the Closing Date.
5.2 Conditions to Each Extension of Credit. The agreement of each
Lender to make any extension of credit requested to be made by it hereunder on
any date (including, without limitation, its initial extension of credit) is
subject to the satisfaction of the following conditions precedent:
(a) Representations and Warranties. Each of the representations
and warranties made by any Loan Party in or pursuant to the Loan
Documents shall be true and correct on and as of such date as if made
on and as of such date, except for representations and warranties
expressly stated to relate to a specific earlier date, in which case
such representations and warranties shall be true and correct as of
such earlier date.
(b) No Default. No Default or Event of Default shall exist and be
continuing on such date or after giving effect to the extensions of
credit requested to be made on such date.
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Each borrowing by and issuance of a Letter of Credit on behalf of the
Borrower hereunder shall constitute a representation and warranty by the
Borrower as of the date of such extension of credit that the conditions
contained in this Section 5.2 have been satisfied.
SECTION 6. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments remain in
effect, any Letter of Credit remains outstanding or any Loan or other amount is
owing to any Lender, the Administrative Agent or the Arranger hereunder, the
Borrower shall and shall cause each of its Subsidiaries to:
6.1 Financial Statements. Furnish to the Administrative Agent and
each Lender:
(a) as soon as available, but in any event within 90 days after
the end of each fiscal year of the Borrower, a copy of the audited
consolidated balance sheet of the Borrower and its consolidated
Subsidiaries as at the end of such year and the related audited
consolidated statements of income and of cash flows for such year,
setting forth in each case in comparative form the figures as of the
end of and for the previous year, reported on without a "going
concern" or like qualification or exception, or qualification arising
out of the scope of the audit, by PricewaterhouseCoopers LLP or other
independent certified public accountants of nationally recognized
standing;
(b) as soon as available, but in any event not later than 45 days
after the end of each of the first three quarterly periods of each
fiscal year of the Borrower, (i) the unaudited consolidated balance
sheet of the Borrower and its consolidated Subsidiaries as at the end
of such quarter and the related unaudited consolidated statements of
income and of cash flows for such quarter and the portion of the
fiscal year through the end of such quarter, setting forth in each
case in comparative form the figures as of the end of and for the
corresponding period in the previous year, certified by a Responsible
Officer as being fairly stated in all material respects (subject to
normal year-end audit adjustments) and (ii) a narrative discussion and
analysis of the financial condition and results of operations of the
Borrower and its Subsidiaries for such fiscal quarter and for the
period from the beginning of the then current fiscal year to the end
of such fiscal quarter, as compared to the comparable periods of the
previous year; and
(c) as soon as available, but in any event not later than 45 days
after the end of each month occurring during each fiscal year of the
Borrower (other than the third, sixth, ninth and twelfth such month),
the unaudited consolidated balance sheet of the Borrower and its
Subsidiaries as at the end of such month and the related unaudited
consolidated statements of income and of cash flows for such month and
the portion of the fiscal year through the end of such month, setting
forth in each case in comparative form the figures as of the end of
and for the corresponding period in the previous year, certified by a
Responsible Officer as being fairly stated in all material respects
(subject to normal year-end audit adjustments);
60
all such financial statements to be complete and correct in all material
respects and to be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein).
6.2 Certificates; Other Information. Furnish to the Administrative
Agent and each Lender, or, in the case of clause (i), to the relevant Lender:
(a) concurrently with the delivery of the financial statements
required by Section 6.1(a), a statement of the independent certified
public accountants reporting on such financial statements to the
effect that in making the examination necessary therefor no knowledge
was obtained of any Default or Event of Default, except as specified
in such statement (it being understood that such certificate shall be
limited to the items that independent certified public accountants are
permitted to cover in such statements pursuant to their professional
standards and customs of the profession);
(b) concurrently with the delivery of any financial statements
pursuant to Section 6.1, (i) a certificate of a Responsible Officer
stating that, to the best of such Responsible Officer's knowledge,
each Loan Party during such period has observed or performed all of
its covenants and other agreements contained in this Agreement and the
other Loan Documents to which it is a party to be observed, performed
or satisfied by it, and that such Responsible Officer has obtained no
knowledge of any Default or Event of Default except as specified in
such certificate and (ii) in the case of quarterly or annual financial
statements, (x) a Compliance Certificate containing all information
and calculations necessary for determining compliance by the Borrower
and its Subsidiaries with the provisions of this Agreement referred to
therein as of the last day of the fiscal quarter or fiscal year of the
Borrower, as the case may be, (y) to the extent not previously
disclosed to the Administrative Agent, in writing, a listing of any
jurisdiction outside of the United States where any Loan Party keeps a
material amount of inventory or equipment and of any registered
Intellectual Property acquired by any Loan Party since the date of the
most recent list delivered pursuant to this clause (y) (or, in the
case of the first such list so delivered, since the Closing Date) and
(z) any UCC financing statements or other filings or actions specified
in such Compliance Certificate as being required to be delivered or
taken therewith;
(c) as soon as available, and in any event no later than 60 days
after the end of each fiscal year of the Borrower, a detailed
consolidated budget for the current fiscal year (including a projected
consolidated balance sheet of the Borrower and its Subsidiaries as of
the end of the current fiscal year, and the related consolidated
statements of projected cash flow, projected changes in financial
position and projected income), and, as soon as available, material
revisions, if any, of such budget and projections with respect to such
fiscal year (collectively, the "Projections"), which Projections shall
in each case be accompanied by a certificate of a Responsible Officer
stating that such Projections are based on reasonable estimates,
information and assumptions and that such Responsible Officer has no
reason to believe that such Projections are incorrect or misleading in
any material respect;
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(d) no later than five Business Days or such lesser period of
time as the Administrative Agent may agree prior to the effectiveness
thereof, copies of substantially final drafts of any proposed
amendment, supplement, waiver or other modification with respect to
the Acquisition Agreement or the governing documents of the Borrower;
(e) within five days after the same are sent, copies of all
financial statements and reports that the Borrower or any of its
Subsidiaries sends to the holders of any class of its debt securities
or public equity securities and, within five days after the same are
filed, copies of all financial statements and reports that the
Borrower or any of its Subsidiaries may make to, or file with, the
SEC;
(f) as soon as possible and in any event within 15 days of
obtaining knowledge thereof: any notice that any Governmental
Authority may deny any application for an Environmental Permit sought
by, or revoke or refuse to renew any material Environmental Permit or
any other material Permit held by the Borrower or condition approval
of any such material Permit on terms and conditions that are
materially burdensome to the Borrower or any of its Subsidiaries, or
to the operation of any of its businesses (both before and after
giving effect to the Acquisition) or any property owned, leased or
otherwise operated by such Person;
(g) substantially concurrently with the delivery by the Borrower
of its audited financial statements for each fiscal year, a report of
its insurance broker with respect to insurance required to be
maintained pursuant to the provisions of Section 6.5(b); and
(h) promptly, such additional financial and other information as
any Lender may from time to time reasonably request.
6.3 Payment of Obligations. Pay, discharge or otherwise satisfy at or
before maturity or before they become delinquent, as the case may be, all its
material obligations of whatever nature, except where the amount or validity
thereof is currently being contested in good faith by appropriate proceedings
and reserves in conformity with GAAP with respect thereto have been provided on
the books of the Borrower or its Subsidiaries, as the case may be.
6.4 Conduct of Business and Maintenance of Existence, etc.
(a) (i) Preserve, renew and keep in full force and effect its
corporate or other existence and (ii) take all reasonable action to
maintain all rights, privileges, franchises, Permits and licenses
necessary or desirable in the normal conduct of its business, except,
in each case, as otherwise permitted by Section 7.4 and except, in the
case of clause (ii) above, to the extent that failure to do so could
not reasonably be expected to have a Material Adverse Effect; and
(b) to the extent not in conflict with this Agreement or the
other Loan Documents, comply with all Contractual Obligations and
Requirements of Law, except to the extent that failure to comply
therewith could not, in the aggregate, reasonably be expected to have
a Material Adverse Effect.
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6.5 Maintenance of Property; Insurance.
(a) Keep all Property and systems useful and necessary in its
business in good working order and condition, ordinary wear and tear
excepted; and
(b) maintain with financially sound and reputable insurance
companies insurance on all its Property meeting the requirements of
Section 5.3 of the Guarantee and Collateral Agreement and in at least
such amounts and against at least such risks (but including in any
event public liability and product liability) as are usually insured
against in the same general area by companies engaged in the same or a
similar business.
6.6 Inspection of Property; Books and Records; Discussions.
(a) Keep proper books of records and account in which full, true
and correct entries in conformity with GAAP and all Requirements of
Law shall be made of all dealings and transactions in relation to its
business and activities; and
(b) Permit representatives of any Lender to visit and inspect any
of its properties and examine and, at the Borrower's expense, make
abstracts from any of its books and records at any reasonable time and
upon reasonable notice and as often as may reasonably be desired and
to discuss the business, operations, properties and financial and
other condition of the Borrower and its Subsidiaries with officers and
employees of the Borrower and its Subsidiaries and with their
respective independent certified public accountants.
6.7 Notices. Promptly give notice to the Administrative Agent and
each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (x) default or event of default (or alleged default)
under any Contractual Obligation of the Borrower or any of its
Subsidiaries or (y) litigation, investigation or proceeding which may
exist at any time between the Borrower or any of its Subsidiaries and
any Governmental Authority, that in either case, if not cured or if
adversely determined, as the case may be, could reasonably be expected
to have a Material Adverse Effect;
(c) any litigation or proceeding affecting the Borrower or any of
its Subsidiaries in which the amount involved is $5,000,000 or more
and not covered by insurance or in which injunctive or similar relief
is sought;
(d) the following events, as soon as possible and in any event
within 30 days after the Borrower knows or has reason to know thereof:
(x) the occurrence of any Reportable Event with respect to any Plan, a
failure by the Borrower or its Subsidiaries to make any required
contribution to a Plan, the creation of any Lien in favor of the PBGC
or a Plan or any withdrawal from, or the termination, Reorganization
or Insolvency of, any Multiemployer Plan or (y) the institution of
63
proceedings or the taking of any other action by the PBGC or the
Borrower or any Commonly Controlled Entity or any Multiemployer Plan
with respect to the withdrawal from, or the termination,
Reorganization or Insolvency of, any Plan that would individually or
in the aggregate reasonably be expected to create a liability of the
Borrower or its Subsidiaries in excess of $5,000,000;
(e) the occurrence of any Health Care Reportable Event; and
(f) any development or event that has had or could reasonably be
expected to have a Material Adverse Effect.
Each notice pursuant to this Section 6.7 shall be accompanied by a statement of
a Responsible Officer setting forth details of the occurrence referred to
therein and stating what action the Borrower or the relevant Subsidiary proposes
to take with respect thereto.
6.8 Environmental Laws.
(a) Comply in all material respects with, and ensure compliance
in all material respects by all tenants and subtenants, if any, with,
all applicable Environmental Laws and Environmental Permits, and
obtain, maintain and comply in all material respects with and
maintain, and ensure that all tenants and subtenants obtain, maintain
and comply in all material respects with and maintain, any and all
material licenses, approvals, notifications, registrations or permits
required by applicable Environmental Laws.
(b) Conduct and complete all material investigations, studies,
sampling and testing, and all material remedial, removal and other
actions required under Environmental Laws and promptly comply in all
material respects with all lawful orders and directives of all
Governmental Authorities regarding Environmental Laws.
6.9 Additional Collateral, etc.
(a) With respect to any Property acquired after the Closing Date
by the Borrower or any of its Subsidiaries (other than (x) any
Property described in paragraphs (b), (c) or (d) of this Section, (y)
any Property subject to a Lien expressly permitted by Section 7.3(g)
and (z) Property acquired by an Excluded Foreign Subsidiary or
Approved Captive Insurance Subsidiary) as to which the Administrative
Agent, for the benefit of the Secured Parties, does not have a
perfected Lien, promptly (i) execute and deliver to the Administrative
Agent such amendments to the Guarantee and Collateral Agreement or
such other documents as the Administrative Agent deems necessary or
advisable to grant to the Administrative Agent, for the benefit of the
Secured Parties, a security interest in such Property and (ii) take
all actions necessary or advisable to grant to the Administrative
Agent, for the benefit of the Secured Parties, a perfected first
priority security interest in such Property, including without
limitation, the filing of UCC financing statements in such
jurisdictions as may be required by the Guarantee and Collateral
Agreement or by law or as may be requested by the Administrative
Agent.
64
(b) With respect to any fee interest (or leasehold interest, to
the extent such leasehold is created under a triple net ground lease
or similar transaction) in any real property having a value (together
with improvements thereof) of at least $2,000,000 acquired after the
Closing Date by the Borrower or any of its Subsidiaries (other than
any such real property owned by an Excluded Foreign Subsidiary or
subject to a Lien expressly permitted by Section 7.3(g)), promptly (i)
execute and deliver a first priority Mortgage in favor of the
Administrative Agent, for the benefit of the Secured Parties, covering
such real property, (ii) if requested by the Administrative Agent,
provide the Lenders with (x) title and extended coverage insurance
reasonably acceptable to the Administrative Agent, covering such real
property and improvements in an amount at least equal to the purchase
price of such real property and improvements (or such other amount as
shall be reasonably specified by the Administrative Agent) as well as
a current ALTA or comparable survey thereof reasonably acceptable to
the Administrative Agent, together with a surveyor's certification in
favor of the Administrative Agent, the Secured Parties and their
respective successors and assigns and (y) any consents or estoppels
reasonably deemed necessary or advisable by the Administrative Agent
in connection with such Mortgage, each of the foregoing in form and
substance reasonably satisfactory to the Administrative Agent and
(iii) if requested by the Administrative Agent, deliver to the
Administrative Agent legal opinions relating to the matters described
above, which opinions shall be in form and substance, and from
counsel, reasonably satisfactory to the Administrative Agent.
(c) With respect to any new Subsidiary (other than an Excluded
Foreign Subsidiary or an Approved Captive Insurance Subsidiary)
created or acquired after the Closing Date (which, for the purposes of
this paragraph, shall include any existing Subsidiary that ceases to
be an Excluded Foreign Subsidiary or Approved Captive Insurance
Subsidiary, as applicable), by the Borrower or any of its
Subsidiaries, promptly (i) execute and deliver to the Administrative
Agent such amendments to the Guarantee and Collateral Agreement as the
Administrative Agent deems necessary or advisable to grant to the
Administrative Agent, for the benefit of the Secured Parties, a
perfected first priority security interest in the Capital Stock of
such new Subsidiary that is owned by the Borrower or any of its
Subsidiaries, (ii) deliver to the Administrative Agent the
certificates representing such Capital Stock, together with undated
stock powers, in blank, executed and delivered by a duly authorized
officer of the Borrower or such Subsidiary, as the case may be, (iii)
cause such new Subsidiary (A) to become a party to the Guarantee and
Collateral Agreement and (B) to take such actions necessary or
advisable to grant to the Administrative Agent for the benefit of the
Secured Parties a perfected first priority security interest in the
Collateral described in the Guarantee and Collateral Agreement with
respect to such new Subsidiary, including, without limitation, the
recording of instruments in the United States Patent and Trademark
Office and the United States Copyright Offices, the execution and
delivery by all necessary persons of control agreements, and the
filing of UCC financing statements in such jurisdictions as may be
required by the Guarantee and Collateral Agreement or by law or as may
be requested by the Administrative Agent, and (iv) if requested by the
Administrative Agent, deliver to the Administrative Agent legal
opinions relating to the matters described above, which opinions shall
be in form and substance, and from counsel, reasonably satisfactory to
the Administrative Agent.
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(d) With respect to any new Excluded Foreign Subsidiary created
or acquired after the Closing Date by the Borrower or any of its
Subsidiaries (other than any Excluded Foreign Subsidiaries), promptly
(i) execute and deliver to the Administrative Agent such amendments to
the Guarantee and Collateral Agreement or such other documents as the
Administrative Agent deems necessary or advisable in order to grant to
the Administrative Agent, for the benefit of the Secured Parties, a
perfected first priority security interest in the Capital Stock of
such new Subsidiary that is owned by the Borrower or any of its
Subsidiaries (other than any Excluded Foreign Subsidiaries), (provided
that notwithstanding anything to the contrary in any Loan Document, in
no event shall (x) Capital Stock representing more than 65% of the
total combined voting power of all outstanding Capital Stock of any
such new Excluded Foreign Subsidiary be required to be so pledged or
(y) any asset of an Excluded Foreign Subsidiary be so pledged), (ii)
deliver to the Administrative Agent the certificates representing such
Capital Stock, together with undated stock powers, in blank, executed
and delivered by a duly authorized officer of the Borrower or such
Subsidiary, as the case may be, and take such other action as may be
necessary or, in the opinion of the Administrative Agent, desirable to
perfect the Lien of the Administrative Agent thereon, and (iii) if
requested by the Administrative Agent, deliver to the Administrative
Agent legal opinions relating to the matters described above, which
opinions shall be in form and substance, and from counsel, reasonably
satisfactory to the Administrative Agent.
(e) Notwithstanding anything to the contrary in this Section 6.9,
paragraphs (a), (b), (c) and (d) of this Section 6.9 shall not apply
to any Property, new Subsidiary or new Excluded Foreign Subsidiary
created or acquired after the Closing Date, as applicable, as to which
the Administrative Agent has determined in its sole discretion that
the collateral value thereof is insufficient to justify the
difficulty, time and/or expense of obtaining a perfected security
interest therein.
(f) With respect to any captive insurance subsidiary to be formed
after the Closing Date, if no Default or Event of Default shall exist
and be continuing, the Borrower may request in writing to the
Administrative Agent that such subsidiary be designated an Approved
Captive Insurance Subsidiary. Such request shall set forth the
jurisdiction of organization of such subsidiary, descriptions of any
insurance, reinsurance, insurance fronting arrangements, material
contracts and investments proposed to be entered into by such
subsidiary and include all other such documents, instruments,
agreements and certificates as the Administrative Agent may reasonably
request. Upon receipt of such notice, the Administrative Agent may
designate such subsidiary as an Approved Captive Insurance Subsidiary.
6.10 Use of Proceeds. Use the proceeds of the Loans only for the
purposes specified in Section 4.16.
6.11 ERISA Documents. The Borrower will cause to be delivered to the
Administrative Agent, promptly upon the Administrative Agent's request, any or
all of the following: (i) a copy of each Plan maintained by the Borrower or its
Subsidiaries and, if applicable, related trust agreements or other funding
instruments and all amendments thereto, and written descriptions thereof that
have been distributed to employees or former employees of the Borrower or any of
66
its Subsidiaries; (ii) the most recent determination letter issued by the
Internal Revenue Service with respect to each Plan maintained by the Borrower or
its Subsidiaries; (iii) for the three most recent plan years preceding the
Administrative Agent's request, Annual Reports on Form 5500 Series required to
be filed with any governmental agency for each Plan maintained by the Borrower
or its Subsidiaries; (iv) a listing of all Multiemployer Plans, with the
aggregate amount of the most recent annual contributions required to be made by
the Borrower to each such Plan and copies of the collective bargaining
agreements requiring such contributions; (v) any information that has been
provided to the Borrower or any Commonly Controlled Entity by a Multiemployer
Plan regarding withdrawal liability under any Multiemployer Plan; and (vi)
documents reflecting any agreements between the PBGC and the Borrower or any
Commonly Controlled Entity with respect to any Plan maintained by the Borrower
or its Subsidiaries.
6.12 Further Assurances.
(a) From time to time execute and deliver, or cause to be
executed and delivered, such additional instruments, certificates or
documents, and take all such actions, as the Administrative Agent may
reasonably request for the purposes of implementing or effectuating
the provisions of this Agreement and the other Loan Documents, or of
more fully perfecting or renewing the rights of the Administrative
Agent and the Secured Parties with respect to the Collateral (or with
respect to any additions thereto or replacements or proceeds or
products thereof or with respect to any other property or assets
hereafter acquired by the Borrower or any Subsidiary which may be
deemed to be part of the Collateral) pursuant hereto or thereto. Upon
the exercise by the Administrative Agent or any Lender of any power,
right, privilege or remedy pursuant to this Agreement or the other
Loan Documents which requires any consent, approval, recording,
qualification or authorization of any Governmental Authority, the
Borrower will execute and deliver, or will cause the execution and
delivery of, all applications, certifications, instruments and other
documents and papers that the Administrative Agent or such Lender may
be required to obtain from the Borrower or any of its Subsidiaries for
such governmental consent, approval, recording, qualification or
authorization.
(b) Preserve and protect the Lien status of each respective
Mortgage and, if any Lien (other than unrecorded Liens permitted under
Section 7.3 that arise by operation of law and other Liens permitted
under Section 7.3(f)) is asserted against a Mortgaged Property,
promptly and at its expense, give the Administrative Agent a detailed
written notice of such Lien and pay the underlying claim in full or
take such other action so as to cause it to be released or bonded over
in a manner satisfactory to the Administrative Agent.
6.13 Compliance with Health Care Laws.
(a) Comply in all material respects with all applicable Health
Care Laws.
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(b) Obtain, maintain and preserve, and take all necessary action
to timely renew, all Health Care Permits which are material to its
business.
(c) (i) Remain in material compliance with all requirements of
participation and payment of any Programs in which it participates,
and (ii) maintain valid participation agreements for payment by any
Program that it bills and participates in.
(d) Comply with all of the terms and conditions of each
settlement agreement and corporate integrity agreement entered into
with any Governmental Authority.
(e) Maintain on its behalf a corporate health care regulatory
compliance program ("CCP") which complies in all material respects
with all applicable Health Care Laws and which, during the term of
this Agreements, shall be modified from time to time, as necessary, to
ensure continuing compliance with all applicable Health Care Laws.
6.14 Inactive Subsidiary. Ensure that QHR Southwest Business Trust
does not acquire any assets, conduct any material business or other operations
or incur any material liabilities.
6.15 Post Closing. Comply with all of the obligations set forth on
Schedule 6.15.
SECTION 7. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments remain in
effect, any Letter of Credit remains outstanding or any Loan or other amount is
owing to any Lender, the Administrative Agent or the Arranger hereunder, the
Borrower shall not, and shall not permit any of its Subsidiaries to, directly or
indirectly:
7.1 Financial Condition Covenants.
(a) Consolidated Leverage Ratio. Permit the Consolidated Leverage
Ratio as at the last day of any period of four consecutive fiscal
quarters of the Borrower ending with the last day of any fiscal
quarter set forth below to exceed the ratio set forth below opposite
the last day of such fiscal quarter:
Consolidated
Fiscal Quarter Leverage Ratio
-------------- --------------
FQ2 2006 4.75 : 1.00
FQ3 2006 4.75 : 1.00
FQ4 2006 4.50 : 1.00
FQ1 2007 4.00 : 1.00
FQ2 2007 4.00 : 1.00
FQ3 2007 3.75 : 1.00
FQ4 2007 3.50 : 1.00
FQ1 2008 3.25 : 1.00
FQ2 2008 3.25 : 1.00
FQ3 2008 3.25 : 1.00
FQ4 2008 and thereafter 2.75 : 1.00
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(b) Consolidated Interest Coverage Ratio. Permit the Consolidated
Interest Coverage Ratio for any period of four consecutive fiscal
quarters of the Borrower ending with the last day of any fiscal
quarter set forth below to be less than the ratio set forth below
opposite such fiscal quarter:
Consolidated
Fiscal Quarter Leverage Ratio
-------------- --------------
FQ2 2006 2.50 : 1.00
FQ3 2006 2.50 : 1.00
FQ4 2006 3.00 : 1.00
FQ1 2007 3.00 : 1.00
FQ2 2007 3.00 : 1.00
FQ3 2007 3.00 : 1.00
FQ4 2007 and thereafter 3.50 : 1.00
7.2 Limitation on Indebtedness. Create, incur, assume or suffer to
exist any Indebtedness, except:
(a) Indebtedness of any Loan Party pursuant to any Loan Document;
(b) Indebtedness of the Borrower to any Subsidiary, of any Wholly
Owned Guarantor to the Borrower or any other Subsidiary or of any
Approved Captive Insurance Subsidiary to the Borrower or any Wholly
Owned Guarantor, provided that such Indebtedness is either (i)
evidenced by, and subject to the terms and conditions of, a
subordinated intercompany note substantially in the form of Exhibit K
(the "Subordinated Intercompany Note"), and subject to the first
priority security interest of the Administrative Agent or (ii)
Indebtedness of the Borrower or any Wholly Owned Guarantor to the
Approved Captive Insurance Subsidiary;
(c) Indebtedness (including, without limitation, Capital Lease
Obligations) secured by Liens permitted by Section 7.3(g) in an
aggregate principal amount not to exceed $15,000,000 at any one time
outstanding;
(d) Indebtedness (other than the Indebtedness referred to in
Section 7.2(f)) outstanding on the date hereof and listed on Schedule
7.2(d) and any refinancings, refundings, renewals or extensions
thereof (without any increase in the principal amount thereof or any
shortening of the maturity of any principal amount thereof);
69
(e) Guarantee Obligations made in the ordinary course of business
by the Borrower or any of its Subsidiaries of obligations of the
Borrower or any Guarantor;
(f) Indebtedness of the Borrower or any Subsidiary not in excess
of $10,000,000 in the aggregate assumed in connection with any
Permitted Acquisition under Section 7.8(h); provided that such
Indebtedness was not incurred (i) to provide all or a portion of the
funds utilized to consummate the transaction or series of related
transactions constituting such Permitted Acquisition or (ii) otherwise
in connection with, or in contemplation of, such Permitted
Acquisition);
(g) unsecured subordinated Indebtedness of the Borrower and the
unsecured guarantee by any Guarantor hereunder of the Borrower's
obligations thereunder; provided that (i) no part of the principal
part of such Indebtedness shall have a maturity date earlier than one
year after the final maturity of the Loans hereunder, (ii) after
giving effect to the incurrence of any such Indebtedness, on a pro
forma basis, as if such incurrence of Indebtedness, the application of
the proceeds thereof and the consummation of any transaction to be
completed with such proceeds had occurred on the first day of the
twelve month period ending on the last day of the Borrower's then most
recently completed fiscal quarter for which financial statements are
available, the Borrower and its Subsidiaries would have been in
compliance with all the financial covenants set forth in Section 7.1
and the Borrower shall have delivered to the Administrative Agent a
certificate of a Responsible Officer of the Borrower to such effect
setting forth in reasonable detail the computations necessary to
determine such compliance, (iii) at the time of the incurrence of such
Indebtedness and after giving effect thereto, no Default or Event of
Default shall exist and be continuing, (iv) such Indebtedness is
subordinated to the Indebtedness created under the Loan Documents on
subordination terms that are no less favorable to the Lenders than
those customary for high yield senior subordinated securities as
reasonably determined by the Administrative Agent, and (v) the
documentation governing such Indebtedness contains terms that are no
more restrictive than the terms applicable to the Indebtedness
hereunder and are otherwise reasonably acceptable to the
Administrative Agent; and
(h) additional Indebtedness of the Borrower or any of its
Subsidiaries in an aggregate principal amount (for the Borrower and
all Subsidiaries) not to exceed $20,000,000 at any one time
outstanding.
7.3 Limitation on Liens. Create, incur, assume or suffer to exist any
Lien upon any of its Property, whether now owned or hereafter acquired, except
for:
(a) Liens for taxes not yet due or which are being contested in
good faith by appropriate proceedings; provided that adequate reserves
with respect thereto are maintained on the books of the Borrower or
its Subsidiaries, as the case may be, in conformity with GAAP;
70
(b) carriers', warehousemen's, mechanics', landlords',
materialmen's, repairmen's or other like Liens arising in the ordinary
course of business which are not overdue for a period of more than 30
days or that are being contested in good faith by appropriate
proceedings; provided that adequate reserves with respect thereto are
maintained on the books of the applicable Loan Party, in conformity
with GAAP;
(c) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation;
(d) deposits by or on behalf of the Borrower or any of its
Subsidiaries to secure the performance of bids, trade contracts (other
than for borrowed money), leases, statutory obligations, surety and
appeal bonds, performance bonds and other obligations of a like nature
incurred in the ordinary course of business, so long as the aggregate
amount of deposits at any one time securing appeal bonds does not
exceed $15,000,000;
(e) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business that, in the
aggregate, are not substantial in amount and which do not in any case
materially detract from the value of the Property subject thereto or
materially interfere with the ordinary conduct of the business of the
Borrower or any of its Subsidiaries;
(f) Liens in existence on the date hereof listed on Schedule
7.3(f), securing Indebtedness permitted by Section 7.2(d); provided
that no such Lien is spread to cover any additional Property after the
Closing Date and that the amount of Indebtedness secured thereby is
not increased;
(g) Liens securing Indebtedness of the Borrower or any of its
Subsidiaries incurred pursuant to Section 7.2(c) to finance the
acquisition of fixed or capital assets; provided that (i) such Liens
shall be created within 60 days after the acquisition of such fixed or
capital assets, (ii) such Liens do not at any time encumber any
Property other than the Property financed by such Indebtedness, (iii)
the amount of Indebtedness secured thereby is not increased and (iv)
the amount of Indebtedness initially secured thereby is not less than
80%, nor more than 100%, of the purchase price of such fixed or
capital asset;
(h) Liens created pursuant to the Security Documents;
(i) any interest or title of a lessor or sublessor under any
lease or sublease entered into by the Borrower or any of its
Subsidiaries in the ordinary course of its business and covering only
the assets or real property so leased or subleased;
(j) Liens on the property or assets of a Person which becomes a
Subsidiary of the Borrower after the date hereof securing Indebtedness
permitted by Section 7.2(f); provided that (i) such Liens existed at
the time such Person became a Subsidiary of the Borrower and were not
created in anticipation thereof, (ii) any such Lien is not expanded to
cover any property or assets of such Person after the time such Person
becomes a Subsidiary of the Borrower (other than after acquired title
in or on such property or proceeds of the existing collateral in
accordance with the instrument creating such Lien), and (iii) the
amount of Indebtedness secured thereby is not increased; and
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(k) Liens not otherwise permitted by this Section 7.3 so long as
neither (i) the aggregate outstanding principal amount of the
obligations secured thereby nor (ii) the aggregate fair market value
(determined, in the case of each such Lien, as of the date such Lien
is incurred) of the assets subject thereto exceeds (as to the Borrower
and all Subsidiaries) $20,000,000 at any one time.
7.4 Limitation on Fundamental Changes. Enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or Dispose of all or substantially all
of its Property or business, except that:
(a) any Solvent Subsidiary of the Borrower may be merged or
consolidated with or into the Borrower (provided that the Borrower
shall be the continuing or surviving corporation) or with or into any
Wholly Owned Guarantor (provided that (i) such Guarantor shall be the
continuing or surviving corporation or (ii) simultaneously with such
transaction, the continuing or surviving corporation shall become a
Guarantor and the Borrower shall comply with Section 6.9 in connection
therewith); and
(b) any Subsidiary of the Borrower may Dispose of any or all of
its assets (upon voluntary liquidation or otherwise) to the Borrower
or any Guarantor.
7.5 Limitation on Disposition of Property. Dispose of any of its
Property (including, without limitation, receivables and leasehold interests),
whether now owned or hereafter acquired, or, in the case of any Subsidiary of
the Borrower, issue or sell any shares of such Subsidiary's Capital Stock to any
Person (provided that nothing in this Section 7.5 shall restrict the sale by the
Borrower of its Capital Stock, whether by primary issuance or the sale of
treasury stock), except:
(a) the Disposition of obsolete or worn out Property in the
ordinary course of business;
(b) the sale of inventory in the ordinary course of business;
(c) Dispositions permitted by Section 7.4(b);
(d) the sale or issuance of any Subsidiary's Capital Stock to the
Borrower or any Guarantor;
(e) the Disposition of other assets having a fair market value
not to exceed $5,000,000 in the aggregate for any fiscal year of the
Borrower;
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(f) the Disposition of the Drug Distribution Business or the
Acute Business (as each term is used in the applicable Restrictive
Covenant Agreement) as contemplated by the terms of the applicable
Restrictive Covenant Agreement; and
(g) any Recovery Event, provided, that the requirements of
Section 2.12(b) are complied with in connection therewith.
7.6 Limitation on Restricted Payments. Declare or pay any dividend
on, or make any payment on account of, or set apart assets for a sinking or
other analogous fund for, the purchase, redemption, defeasance, retirement or
other acquisition of, any Capital Stock of the Borrower or any of its
Subsidiaries, whether now or hereafter outstanding, or make any other
distribution in respect thereof, either directly or indirectly, whether in cash
or property or in obligations of the Borrower or any of its Subsidiaries, or
enter into any derivatives or other transaction with any financial institution,
commodities or stock exchange or clearinghouse (a "Derivatives Counterparty")
obligating the Borrower or any Subsidiary to make payments to such Derivatives
Counterparty as a result of any change in market value of any such Capital Stock
(collectively, "Restricted Payments"), except that:
(a) any Subsidiary may make Restricted Payments to the Borrower
or any Guarantor;
(b) the Borrower may make Restricted Payments in the form of
common stock of the Borrower;
(c) the Borrower may repurchase its Capital Stock in connection
with the administration of its equity-based compensation plans from
time to time in effect, including (i) in connection with the cashless
exercise of stock options, (ii) the repurchase of restricted stock
from employees, directors and other recipients under such plans at
nominal values and (iii) the repurchase of Capital Stock from
employees, directors and other such recipients to satisfy federal,
state or local tax withholding obligations of such employees,
directors and other recipients with respect to income deemed earned as
the result of options, stock grants or other awards made under such
plans; provided, that the aggregate amount of cash expended for
purposes described in clauses (i) through (ii) above shall not exceed
$1,000,000 in any fiscal year or $2,500,000 while this Agreement is in
effect;
(d) the Borrower may purchase the Borrower's common stock or
common stock options from present or former officers, directors or
employees of the Borrower or any Subsidiary upon the death, disability
or termination of employment of such officer, director or employee;
provided, that the aggregate amount of payments under this paragraph
subsequent to the date hereof (net of any proceeds received by the
Borrower subsequent to the date hereof in connection with resales of
any common stock or common stock options so purchased) shall not
exceed $2,000,000;
(e) the Borrower may purchase the Borrower's common stock
pursuant to a stock repurchase plan approved by its board of
directors; provided, that the aggregate amount of payments under this
paragraph shall not exceed $5,000,000 per fiscal year; provided,
73
further, that if the Consolidated Leverage Ratio as of the date of
such purchase and after giving effect thereto is less than 2.50 to
1.00 (calculated using Consolidated EBITDA as of the most recently
ended fiscal quarter for which financial statements are available),
the Borrower may make additional purchases pursuant to this Section
7.6(e) with the then applicable Available Amount; and
(f) in addition to Restricted Payments otherwise expressly
permitted by this Section 7.6, Restricted Payments by the Borrower or
any of its Subsidiaries in an aggregate amount not to exceed
$15,000,000 during the term of this Agreement; provided, that at the
time such Restricted Payment is made (i) no Default or Event of
Default shall exist and be continuing and (ii) after giving pro forma
effect to such Restricted Payment, the Borrower shall be in compliance
with each of the financial covenants set forth in Section 7.1;
provided, further, that if the Consolidated Leverage Ratio as of the
date of such Restricted Payment and after giving effect thereto is
less than 2.50 to 1.00 (calculated using Consolidated EBITDA as of the
most recently ended fiscal quarter for which financial statements are
available), the Borrower may make additional Restricted Payments
pursuant to this Section 7.6(f) with the then applicable Available
Amount.
7.7 Limitation on Capital Expenditures. Make or commit to make any
Capital Expenditure, except (a) Capital Expenditures of the Borrower and its
Subsidiaries in the ordinary course of business not exceeding $25,000,000;
provided, that (i) up to fifty percent (50%) of any such amount referred to
above, if not so expended in the fiscal year for which it is permitted, may be
carried over for expenditure in the next succeeding fiscal year and (ii) Capital
Expenditures made pursuant to this clause (a) during any fiscal year shall be
deemed made, first, in respect of amounts permitted for such fiscal year as
provided above and second, in respect of amounts carried over from the prior
fiscal year pursuant to subclause (i) above; provided, further, that if the
Consolidated Leverage Ratio as of the date of such Capital Expenditure and after
giving effect thereto is less than 2.50 to 1.00 (calculated using Consolidated
EBITDA as of the most recently ended fiscal quarter for which financial
statements are available), the Borrower may make additional Capital Expenditures
pursuant to this Section 7.7 with the then applicable Available Amount and (b)
Capital Expenditures made with the proceeds of any Reinvestment Deferred Amount.
7.8 Limitation on Investments. Make any advance, loan, extension of
credit (by way of guaranty or otherwise) or capital contribution to, or purchase
any Capital Stock, bonds, notes, debentures or other debt securities of, or any
assets constituting an ongoing business from, or make any other investment in,
any other Person (all of the foregoing, "Investments"), except:
(a) extensions of trade credit in the ordinary course of
business;
(b) investments in Cash Equivalents;
(c) Investments arising in connection with the incurrence of
Indebtedness permitted by Section 7.2(b) and (e), provided that any
such Investment by a Credit Party in an Approved Captive Insurance
Subsidiary shall be subject to the limitations set forth in Sections
7.8(i);
74
(d) loans and advances to employees of the Borrower or any
Subsidiaries of the Borrower in the ordinary course of business
(including, without limitation, for travel, entertainment and
relocation expenses) in an aggregate amount for the Borrower and
Subsidiaries of the Borrower not to exceed $2,000,000 at any one time
outstanding;
(e) the Acquisition;
(f) Investments in assets useful in the Borrower's or the
applicable Subsidiary's business made by the Borrower or any of its
Subsidiaries with the proceeds of any Reinvestment Deferred Amount;
(g) Investments (other than those relating to the incurrence of
Indebtedness permitted by Section 7.8(c)) by the Borrower or any of
its Subsidiaries in the Borrower or any Person that, prior to such
Investment, is a Guarantor;
(h) in addition to Investments otherwise expressly permitted by
this Section, Investments by the Borrower or any of its Subsidiaries
constituting acquisitions of Persons or ongoing businesses ("Permitted
Acquisitions"); provided that:
(i) immediately prior to and after giving affect to any such
Permitted Acquisition, no Default or Event of Default shall exist and
be continuing and the Borrower shall have certified same to the
Administrative Agent in writing;
(ii) if such Permitted Acquisition is structured as a stock
acquisition, then either (A) the Person so acquired becomes a Wholly
Owned Subsidiary of the Borrower or (B) such Person is merged with and
into either the Borrower or a Wholly Owned Subsidiary of the Borrower
(with the Borrower or such Wholly Owned Subsidiary being the surviving
corporation in such merger);
(iii) all of the provisions of Section 6.9 have been or will be
complied with in respect of such Permitted Acquisition;
(iv) the only consideration paid in connection with such
Permitted Acquisition shall consist of cash or Capital Stock (other
than Disqualified Stock) of the Borrower;
(v) after giving pro forma effect to the proposed Permitted
Acquisition, the Borrower shall be in compliance with the financial
covenants set forth in Section 7.1;
(vi) the aggregate amount of all such Permitted Acquisitions does
not exceed $200,000,000 in the aggregate for the term of this
Agreement; provided, that if the Consolidated Leverage Ratio as of the
date of consummation of such Permitted Acquisition and after giving
effect thereto is less than 2.50 to 1.00 (calculated using
Consolidated EBITDA as of the most recently ended fiscal quarter for
which financial statements are available), such aggregate amount may
be increased by the then applicable Available Amount; and
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(vii) the aggregate amount of Revolving Credit Commitments less
the Revolving Extensions of Credit (in each case, as of the date on
which such Permitted Acquisition is consummated and after giving
effect thereto) shall be greater than $20,000,000;
(i) Investments in Approved Captive Insurance Subsidiaries made
in the ordinary course of business in an aggregate amount not in
excess of the reserves as shall be required by GAAP and as shall have
been approved by the Borrower's Board of Directors after taking into
account any advice of the Borrower's actuarial consultants and
auditors; provided that (i) no Default or Event of Default shall exist
and be continuing, (ii) the Borrower shall have provided to the
Administrative Agent a certificate demonstrating that, after giving
effect to such Investment, the Company would have been compliance with
the financial covenants set forth in Section 7.1 for the most recently
ended fiscal quarter for which financial statements are available and
(iii) pro forma for such Investment, the aggregate amount of Revolving
Credit Commitments less the Revolving Extensions of Credit shall be
greater than $20,000,000;
(j) Investments by any Approved Captive Insurance Subsidiary in
cash and Cash Equivalents or such other Investments permitted pursuant
to the Medicare Provider Reimbursement Manual Section 2162.2 (or any
analogous regulation which replaces said section); and
(k) in addition to Investments otherwise expressly permitted by
this Section, Investments by the Borrower or any of its Subsidiaries
in an aggregate amount (valued at cost) not to exceed $10,000,000
during the term of this Agreement; provided, that if the Consolidated
Leverage Ratio as of the date of such Investment and after giving
effect thereto is less than 2.50 to 1.00 (calculated using
Consolidated EBITDA as of the most recently ended fiscal quarter for
which financial statements are available), the Borrower may make
additional Investments pursuant to this Section 7.8(i) with the then
applicable Available Amount.
7.9 Limitation on Optional Payments and Modifications of Debt
Instruments, Certificates of Incorporation, By-laws, etc.
(a) Make or offer to make any optional or voluntary payment,
prepayment, repurchase or redemption of, or otherwise voluntarily or optionally
defease, any Permitted Subordinated Indebtedness or segregate funds for any such
payment, prepayment, repurchase, redemption or defeasance, or enter into any
derivative or other transaction with any Derivatives Counterparty obligating the
Borrower or any Subsidiary to make payments to such Derivatives Counterparty as
a result of any change in market value of any Permitted Subordinated
Indebtedness, amend, modify or otherwise change, or consent or agree to any
amendment, modification, waiver or other change to, any of the terms of any
Permitted Subordinated Indebtedness (other than any such amendment,
modification, waiver or other change which (i) would extend the maturity or
76
reduce the amount of any payment of principal thereof, reduce the rate or extend
the date for payment of interest thereon or relax any covenant or other
restriction applicable to the Borrower or any of its Subsidiaries or add
subsidiary guarantors thereto (so long as such subsidiary guarantors are
Guarantors), and (ii) does not involve the payment of a consent fee, (b)
designate any Indebtedness (other than the Obligations) as "Designated Senior
Indebtedness" for the purposes of any Permitted Subordinated Indebtedness or (c)
amend its certificate of incorporation, by-laws or other like governing
documents in any manner materially adverse to the Lenders.
7.10 Limitation on Transactions with Affiliates. Enter into any
transaction, including, without limitation, any purchase, sale, lease or
exchange of Property, the rendering of any service or the payment of any
management, advisory or similar fees, with any Affiliate (other than the
Borrower or any Guarantor) unless such transaction is (a) not otherwise
prohibited under this Agreement, (b) in the ordinary course of business of the
Borrower or such Subsidiary, as the case may be, and (c) upon fair and
reasonable terms no less favorable to the Borrower or such Subsidiary, as the
case may be, than it would obtain in a comparable arm's length transaction with
a Person that is not an Affiliate.
7.11 Limitation on Sales and Leasebacks. Enter into any arrangement
with any Person providing for the leasing by the Borrower or any of its
Subsidiaries of real or personal property which has been or is to be sold or
transferred by the Borrower or such Subsidiary to such Person or to any other
Person to whom funds have been or are to be advanced by such Person on the
security of such property or rental obligations of the Borrower or such
Subsidiary.
7.12 Limitation on Changes in Fiscal Periods. Permit the fiscal year
of the Borrower to end on a day other than the Sunday nearest December 31 or
change the Borrower's method of determining fiscal quarters.
7.13 Limitation on Negative Pledge Clauses. Enter into or suffer to
exist or become effective any agreement that prohibits or limits the ability of
the Borrower or any of its Subsidiaries to create, incur, assume or suffer to
exist any Lien upon any of its Property or revenues, whether now owned or
hereafter acquired, to secure the Obligations or, in the case of any guarantor,
its obligations under the Guarantee and Collateral Agreement, other than (a)
this Agreement and the other Loan Documents and (b) any agreements governing any
purchase money Liens or Capital Lease Obligations otherwise permitted hereby (in
which case, any prohibition or limitation shall only be effective against the
assets financed thereby).
7.14 Limitation on Restrictions on Subsidiary Distributions. Enter
into or suffer to exist or become effective any consensual encumbrance or
restriction on the ability of any Subsidiary to (a) make Restricted Payments in
respect of any Capital Stock of such Subsidiary held by, or pay or subordinate
any Indebtedness owed to the Borrower or any other Subsidiary, (b) make
Investments in the Borrower or any other Subsidiary or (c) transfer any of its
assets to the Borrower or any other Subsidiary, except for such encumbrances or
restrictions existing under or by reason of (i) any restrictions existing under
the Loan Documents and (ii) any restrictions with respect to a Subsidiary
imposed pursuant to an agreement that has been entered into in connection with
the Disposition of all or substantially all of the Capital Stock or assets of
such Subsidiary.
77
7.15 Limitation on Lines of Business. Enter into any business, either
directly or through any Subsidiary, except for those businesses in which the
Borrower and its Subsidiaries are engaged on the date of this Agreement (after
giving effect to the Acquisition) or that are reasonably related to the
provision of healthcare services.
7.16 Limitation on Amendments to Acquisition Documentation.
(a) Amend, supplement or otherwise modify (whether pursuant to a
waiver granted by or to such Person or otherwise) or fail to enforce
strictly the terms and conditions of the indemnities and licenses
furnished to the Borrower or any of its Subsidiaries pursuant to the
Acquisition Documentation such that after giving effect thereto such
indemnities or licenses shall be materially less favorable to the
interests of the Loan Parties or the Lenders with respect thereto; or
(b) otherwise amend, supplement or otherwise modify or fail to
enforce the terms and conditions of the Acquisition Documentation
except to the extent that any such amendment, supplement or
modification or failure to enforce could not reasonably be expected to
have a Material Adverse Effect.
7.17 Limitation on Hedge Agreements. Enter into any Hedge Agreement
other than Hedge Agreements entered into in the ordinary course of business, and
not for speculative purposes, to protect against changes in interest rates ,
commodity prices or foreign exchange rates.
SECTION 8. EVENTS OF DEFAULT
If any of the following events shall exist and be continuing:
(a) The Borrower shall fail to pay any principal of any Loan or
Reimbursement Obligation when due in accordance with the terms hereof;
or the Borrower shall fail to pay any interest on any Loan or
Reimbursement Obligation, or any Loan Party shall fail to pay any
other amount payable hereunder or under any other Loan Document,
within five days after any such interest or other amount becomes due
in accordance with the terms hereof or thereof; or
(b) Any representation or warranty made or deemed made by any
Loan Party herein or in any other Loan Document or that is contained
in any certificate, document or financial or other statement furnished
by it at any time under or in connection with this Agreement or any
such other Loan Document shall prove to have been inaccurate in any
material respect on or as of the date made or deemed made or
furnished; or
(c) (i) Any Loan Party shall default in the observance or
performance of any agreement contained in clause (i) or (ii) of
Section 6.4(a) (with respect to the Borrower only), Section 6.7(a) or
Section 7, or in Section 5 of the Guarantee and Collateral Agreement
or (ii) an "Event of Default" under and as defined in any Mortgage
shall exist and be continuing; or
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(d) Any Loan Party shall default in the observance or performance
of any other agreement contained in this Agreement or any other Loan
Document (other than as provided in paragraphs (a) through (c) of this
Section), and such default shall continue unremedied for a period of
30 days; or
(e) The Borrower or any of its Subsidiaries shall (i) default in
making any payment of any principal of any Indebtedness (including,
without limitation, any Guarantee Obligation, but excluding the Loans
and Reimbursement Obligations) on the scheduled or original due date
with respect thereto; or (ii) default in making any payment of any
interest on any such Indebtedness beyond the period of grace, if any,
provided in the instrument or agreement under which such Indebtedness
was created; or (iii) default in the observance or performance of any
other agreement or condition relating to any such Indebtedness or
contained in any instrument or agreement evidencing, securing or
relating thereto, or any other event shall occur or condition exist,
the effect of which default or other event or condition is to cause,
or to permit the holder or beneficiary of such Indebtedness (or a
trustee or agent on behalf of such holder or beneficiary) to cause,
with the giving of notice if required, such Indebtedness to become due
prior to its stated maturity or to become subject to a mandatory offer
to purchase by the obligor thereunder or (in the case of any such
Indebtedness constituting a Guarantee Obligation) to become payable;
provided, that a default, event or condition described in clause (i),
(ii) or (iii) of this paragraph (e) shall not at any time constitute
an Event of Default unless, at such time, one or more defaults, events
or conditions of the type described in clauses (i), (ii) and (iii) of
this paragraph (e) shall exist and be continuing with respect to
Indebtedness the outstanding principal amount of which exceeds in the
aggregate $10,000,000; or
(f) (i) The Borrower or any of its Subsidiaries shall commence
any case, proceeding or other action (A) under any existing or future
law of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an
order for relief entered with respect to it, or seeking to adjudicate
it a bankrupt or insolvent, or seeking reorganization, arrangement,
adjustment, winding-up, liquidation, dissolution, composition or other
relief with respect to it or its debts, or (B) seeking appointment of
a receiver, trustee, custodian, conservator or other similar official
for it or for all or any substantial part of its assets, or the
Borrower or any of its Subsidiaries shall make a general assignment
for the benefit of its creditors; or (ii) there shall be commenced
against the Borrower or any of its Subsidiaries any case, proceeding
or other action of a nature referred to in clause (i) above that (A)
results in the entry of an order for relief or any such adjudication
or appointment or (B) remains undismissed, undischarged or unbonded
for a period of 60 days; or (iii) there shall be commenced against the
Borrower or any of its Subsidiaries any case, proceeding or other
action seeking issuance of a warrant of attachment, execution,
distraint or similar process against all or any substantial part of
its assets that results in the entry of an order for any such relief
that shall not have been vacated, discharged, or stayed or bonded
pending appeal within 60 days from the entry thereof; or (iv) the
Borrower or any of its Subsidiaries shall take any action in
furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (i), (ii), or
(iii) above; or (v) the Borrower or any of its Subsidiaries shall
generally not, or shall be unable to, or shall admit in writing its
inability to, pay its debts as they become due; or
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(g) (i) Any Person shall engage in any "prohibited transaction"
(as defined in Section 406 of ERISA or Section 4975 of the Code)
involving any Plan, (ii) any "accumulated funding deficiency" (as
defined in Section 302 of ERISA), whether or not waived, shall exist
with respect to any Plan, or any Lien in favor of the PBGC or a Plan
shall arise on the assets of the Borrower or any Commonly Controlled
Entity, (iii) a Reportable Event shall occur with respect to, or
proceedings shall commence to have a trustee appointed, or a trustee
shall be appointed, to administer or to terminate, any Single Employer
Plan, which Reportable Event or commencement of proceedings or
appointment of a trustee is, in the reasonable opinion of the Required
Lenders, likely to result in the termination of such Plan for purposes
of Title IV of ERISA, (iv) any Single Employer Plan shall terminate
for purposes of Title IV of ERISA, (v) the Borrower shall, or in the
reasonable opinion of the Required Lenders shall be likely to, incur
any liability in connection with a withdrawal from, or the Insolvency
or Reorganization of, a Multiemployer Plan or (vi) the Borrower, or
any of its Subsidiaries shall be required to make during any fiscal
year of the Borrower contributions to any defined benefit pension plan
subject to Title IV of ERISA (including any Multiemployer Plan) that,
in the aggregate could reasonably be expected to have a Material
Adverse Effect or (vii) any other similar event or condition shall
occur or exist with respect to a Plan; and in each case in clauses (i)
through (vii) above, such event or condition, together with any other
events or conditions in this Section 8(g), if any, could reasonably be
expected to have a Material Adverse Effect; or
(h) One or more final judgments or decrees shall be entered
against the Borrower or any of its Subsidiaries involving for the
Borrower and its Subsidiaries taken as a whole a liability (not paid
or fully covered by insurance as to which the relevant insurance
company has acknowledged coverage) of $10,000,000 or more, and all
such judgments or decrees shall not have been vacated, discharged,
stayed or bonded pending appeal within 30 days from the entry thereof;
or
(i) Any of the Security Documents shall cease, for any reason
(other than by reason of the express release thereof pursuant to
Section 10.15), to be in full force and effect, or any Loan Party or
any Affiliate of any Loan Party shall so assert, or any Lien created
by any of the Security Documents shall cease to be enforceable and of
the same effect and priority purported to be created thereby; or
(j) The guarantee contained in Section 2 of the Guarantee and
Collateral Agreement shall cease, for any reason (other than by reason
of the express release thereof pursuant to Section 10.15), to be in
full force and effect or any Loan Party or any Affiliate of any Loan
Party shall so assert; or
(k) Any Change of Control shall occur; or
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(l) There shall occur (i) any liability of the Borrower or any of
its Subsidiaries under any Health Care Laws that could reasonably be
expected to have a Material Adverse Effect or (ii) any charge to the
Borrower's financial statements as a result of any overpayment of
claims asserted by the Office of the Inspector General of the United
States Department of Health and Human Services, a Medicare fiscal
intermediary, any state's Medicaid program or any private third party
payor, in each case, if after giving effect to such charge, the
Borrower would not have been in compliance with Section 7.1 for the
most recent fiscal quarter for which financial statements are
available;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) above with respect to the Borrower,
automatically the Commitments shall immediately terminate and the Loans
hereunder (with accrued interest thereon) and all other amounts owing under this
Agreement and the other Loan Documents (including, without limitation, all
amounts of L/C Obligations, whether or not the beneficiaries of the then
outstanding Letters of Credit shall have presented the documents required
thereunder) shall immediately become due and payable, and (B) if such event is
any other Event of Default, either or both of the following actions may be
taken: (i) with the consent of the Majority Revolving Credit Facility Lenders,
the Administrative Agent may, or upon the request of the Majority Revolving
Credit Facility Lenders, the Administrative Agent shall, by notice to the
Borrower declare the Revolving Credit Commitments to be terminated forthwith,
whereupon the Revolving Credit Commitments shall immediately terminate; and (ii)
with the consent of the Required Lenders, the Administrative Agent may, or upon
the request of the Required Lenders, the Administrative Agent shall, by notice
to the Borrower, declare the Loans hereunder (with accrued interest thereon) and
all other amounts owing under this Agreement and the other Loan Documents
(including, without limitation, all amounts of L/C Obligations, whether or not
the beneficiaries of the then outstanding Letters of Credit shall have presented
the documents required thereunder) to be due and payable forthwith, whereupon
the same shall immediately become due and payable. In the case of all Letters of
Credit with respect to which presentment for honor shall not have occurred at
the time of an acceleration pursuant to this paragraph, the Borrower shall at
such time deposit in a cash collateral account opened by the Administrative
Agent an amount in immediately available funds equal to the aggregate then
undrawn and unexpired amount of such Letters of Credit (and the Borrower hereby
grants to the Administrative Agent, for the ratable benefit of the Secured
Parties, a continuing security interest in all amounts at any time on deposit in
such cash collateral account to secure the undrawn and unexpired amount of such
Letters of Credit and all other Obligations). If at any time the Administrative
Agent determines that any funds held in such cash collateral account are subject
to any right or claim of any Person other than the Administrative Agent and the
Secured Parties or that the total amount of such funds is less than the
aggregate undrawn and unexpired amount of outstanding Letters of Credit, the
Borrower shall, forthwith upon demand by the Administrative Agent, pay to the
Administrative Agent, as additional funds to be deposited and held in such cash
collateral account, an amount equal to the excess of (a) such aggregate undrawn
and unexpired amount over (b) the total amount of funds, if any, then held in
such cash collateral account that the Administrative Agent determines to be free
and clear of any such right and claim. Amounts held in such cash collateral
account shall be applied by the Administrative Agent to the payment of drafts
drawn under such Letters of Credit, and the unused portion thereof after all
such Letters of Credit shall have expired or been fully drawn upon, if any,
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shall be applied to repay other obligations of the Borrower hereunder and under
the other Loan Documents. After all such Letters of Credit shall have expired or
been fully drawn upon, all Reimbursement Obligations shall have been satisfied
and all other obligations of the Borrower hereunder and under the other Loan
Documents shall have been paid in full, the balance, if any, in such cash
collateral account shall be returned to the Borrower (or such other Person as
may be lawfully entitled thereto).
SECTION 9. THE ADMINISTRATIVE AGENT; THE ARRANGER
9.1 Appointment. Each Lender hereby irrevocably designates and
appoints the Administrative Agent as the agent of such Lender under this
Agreement and the other Loan Documents, and each Lender irrevocably authorizes
the Administrative Agent, in such capacity, to take such action on its behalf
under the provisions of this Agreement and the other Loan Documents and to
exercise such powers and perform such duties as are expressly delegated to the
Administrative Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement, the
Administrative Agent shall have no duties or responsibilities, except those
expressly set forth herein, or any fiduciary relationship with any Lender, and
no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the Administrative Agent.
9.2 Delegation of Duties. The Administrative Agent may execute any of
its duties under this Agreement and the other Loan Documents by or through
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent shall
not be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care.
9.3 Exculpatory Provisions. Neither the Arranger, the Administrative
Agent nor any of its officers, directors, employees, agents, attorneys-in-fact
or affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or any
other Loan Document (except to the extent that any of the foregoing are found by
a final and nonappealable decision of a court of competent jurisdiction to have
resulted solely and proximately from its or such Person's own gross negligence
or willful misconduct) or (ii) responsible in any manner to any of the Lenders
for any recitals, statements, representations or warranties made by any Loan
Party or any officer thereof contained in this Agreement or any other Loan
Document or in any certificate, report, statement or other document referred to
or provided for in, or received by the Arranger, the Administrative Agent under
or in connection with, this Agreement or any other Loan Document or for the
value, validity, effectiveness, genuineness, enforceability or sufficiency of
this Agreement or any other Loan Document or for any failure of any Loan Party
to perform its obligations hereunder or thereunder. The Administrative Agent
shall not be under any obligation to any Lender to ascertain or to inquire as to
the observance or performance of any of the agreements contained in, or
conditions of, this Agreement or any other Loan Document, or to inspect the
properties, books or records of any Loan Party.
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9.4 Reliance by the Administrative Agent. The Administrative Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
instrument, writing, resolution, notice, consent, certificate, affidavit,
letter, telecopy, telex or teletype message, statement, order or other document
or conversation believed by it to be genuine and correct and to have been
signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including, without limitation, counsel to the Loan
Parties), independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent may deem and treat the payee of
any Note as the owner thereof for all purposes unless such Note shall have been
transferred in accordance with Section 10.6 and all actions required by such
Section in connection with such transfer shall have been taken. The
Administrative Agent shall be fully justified in failing or refusing to take any
action under this Agreement or any other Loan Document unless it shall first
receive such advice or concurrence of the Required Lenders (or, if so specified
by this Agreement, all Lenders or any other instructing group of Lenders
specified by this Agreement) as it deems appropriate or it shall first be
indemnified to its satisfaction by the Lenders against any and all liability and
expense that may be incurred by it by reason of taking or continuing to take any
such action. The Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement and the other Loan
Documents in accordance with a request of the Required Lenders (or, if so
specified by this Agreement, all Lenders or any other instructing group of
Lenders specified by this Agreement), and such request and any action taken or
failure to act pursuant thereto shall be binding upon all the Lenders and all
future holders of the Loans.
9.5 Notice of Default. The Administrative Agent shall not be deemed
to have knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Administrative Agent shall have received notice from a
Lender or the Borrower referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a "notice of default". In the
event that the Administrative Agent shall receive such a notice, the
Administrative Agent shall give notice thereof to the Lenders. The
Administrative Agent shall take such action with respect to such Default or
Event of Default as shall be reasonably directed by the Required Lenders (or, if
so specified by this Agreement, all Lenders or any other instructing group of
Lenders specified by this Agreement); provided that unless and until the
Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it shall
deem advisable in the best interests of the Lenders.
9.6 Non-Reliance on the Arranger, the Administrative Agent and Other
Lenders. Each Lender expressly acknowledges that neither the Arranger, the
Administrative Agent nor any of their respective officers, directors, employees,
agents, attorneys and other advisors, partners, attorneys-in-fact or affiliates
have made any representations or warranties to it and that no act by the
Administrative Agent hereafter taken, including any review of the affairs of a
Loan Party or any affiliate of a Loan Party, shall be deemed to constitute any
representation or warranty by the Arranger or the Administrative Agent to any
Lender. Each Lender represents to the Administrative Agent and the Arranger that
it has, independently and without reliance upon the Arranger, the Administrative
Agent or any other Lender, and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, operations, property, financial and other condition and
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creditworthiness of the Loan Parties and their affiliates and made its own
decision to make its Loans (and in the case of any Issuing Lender, to issue its
Letters of Credit) hereunder and enter into this Agreement. Each Lender also
represents that it will, independently and without reliance upon the Arranger,
the Administrative Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigation as
it deems necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the Loan Parties and their
affiliates. Except for notices, reports and other documents expressly required
to be furnished to the Lenders by the Administrative Agent hereunder, neither
the Arranger nor the Administrative Agent shall have any duty or responsibility
to provide any Lender with any credit or other information concerning the
business, operations, property, condition (financial or otherwise), prospects or
creditworthiness of any Loan Party or any affiliate of a Loan Party that may
come into the possession of the Arranger or the Administrative Agent or any of
its officers, directors, employees, agents, attorneys and other advisors,
partners, attorneys-in-fact or affiliates.
9.7 Indemnification. The Lenders agree to indemnify the Arranger and
the Administrative Agent in its capacity as such (to the extent not reimbursed
by the Borrower and without limiting the obligation of the Borrower to do so),
ratably according to their respective Aggregate Exposure Percentages in effect
on the date on which indemnification is sought under this Section (or, if
indemnification is sought after the date upon which the Commitments shall have
terminated and the Loans shall have been paid in full, ratably in accordance
with such Aggregate Exposure Percentages immediately prior to such date), for,
and to save the Arranger and the Administrative Agent harmless from and against,
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind whatsoever that
may at any time (including, without limitation, at any time following the
payment of the Loans) be imposed on, incurred by or asserted against the
Arranger or the Administrative Agent in any way relating to or arising out of,
the Commitments, this Agreement, any of the other Loan Documents, the
Acquisition Documentation, or any documents contemplated by or referred to
herein or therein or the transactions contemplated hereby or thereby or any
action taken or omitted by the Arranger or the Administrative Agent under or in
connection with any of the foregoing; provided that no Lender shall be liable
for the payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
that are found by a final and nonappealable decision of a court of competent
jurisdiction to have resulted solely and proximately from the Arranger's or the
Administrative Agent's gross negligence or willful misconduct. The agreements in
this Section shall survive the payment of the Loans and all other amounts
payable hereunder.
9.8 Arranger and Administrative Agent in their Individual Capacities.
The Arranger and the Administrative Agent and its affiliates may make loans to,
accept deposits from and generally engage in any kind of business with any Loan
Party as though the Arranger or the Administrative Agent were not an Arranger or
an Administrative Agent. With respect to its Loans made or renewed by it and
with respect to any Letter of Credit issued or participated in by it, the
Arranger and the Administrative Agent shall have the same rights and powers
under this Agreement and the other Loan Documents as any Lender and may exercise
the same as though it were not an Arranger or an Administrative Agent, and the
terms "Lender" and "Lenders" shall include the Arranger and the Administrative
Agent in their individual capacities.
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9.9 Successor Administrative Agent. The Administrative Agent may
resign as Administrative Agent upon 10 days' notice to the Lenders and the
Borrower. If the Administrative Agent shall resign as Administrative Agent under
this Agreement and the other Loan Documents, then the Required Lenders shall
appoint from among the Lenders a successor agent for the Lenders, which
successor agent shall (unless an Event of Default under Section 8(a) or Section
8(f) with respect to the Borrower shall exist and be continuing) be subject to
approval by the Borrower (which approval shall not be unreasonably withheld or
delayed), whereupon such successor agent shall succeed to the rights, powers and
duties of the Administrative Agent, and the term "Administrative Agent" shall
mean such successor agent effective upon such appointment and approval, and the
former Administrative Agent's rights, powers and duties as Administrative Agent
shall be terminated, without any other or further act or deed on the part of
such former Administrative Agent or any of the parties to this Agreement or any
holders of the Loans or issuers of Letters of Credit. If no successor agent has
accepted appointment as Administrative Agent by the date that is 10 days
following a retiring Administrative Agent's notice of resignation, the retiring
Administrative Agent's resignation shall nevertheless thereupon become
effective, and the Lenders shall assume and perform all of the duties of the
Administrative Agent hereunder until such time, if any, as the Required Lenders
appoint a successor agent as provided for above. After any retiring
Administrative Agent's resignation as Administrative Agent, the provisions of
this Section 9 shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was Administrative Agent under this Agreement and the
other Loan Documents.
9.10 Authorization to Release Liens and Guarantees. The
Administrative Agent is hereby irrevocably authorized by each of the Lenders to
effect any release of Liens or guarantee obligations contemplated by Section
10.15.
9.11 The Arranger. The Arranger, in its capacity as such, shall have
no duties or responsibilities, and shall incur no liability, under this
Agreement and the other Loan Documents.
9.12 Withholding Tax.
(a) To the extent required by any applicable law, the
Administrative Agent may withhold from any interest payment to any
Lender an amount equivalent to any applicable withholding tax. If the
forms or other documentation required by Section 2.20(d) through (f)
are not delivered to the Administrative Agent, then the Administrative
Agent may withhold from any interest payment to any Lender not
providing such forms or other documentation, a maximum amount of the
applicable withholding tax.
(b) If the Internal Revenue Service or any authority of the
United States or other jurisdiction asserts a claim that the
Administrative Agent did not properly withhold tax from amounts paid
to or for the account of any Lender (because the appropriate form was
not delivered, was not properly executed, or because such Lender
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failed to notify the Administrative Agent of a change in circumstances
which rendered the exemption from, or reduction of, withholding tax
ineffective, or for any other reason), such Lender shall indemnify the
Administrative Agent fully for all amounts paid, directly or
indirectly, by the Administrative Agent as tax or otherwise, including
penalties and interest, together with all expenses incurred, including
legal expenses, allocated staff costs and any out of pocket expenses.
(c) If any Lender sells, assigns, grants a participation in, or
otherwise transfers its rights under this Agreement, the purchaser,
assignee, participant or transferee, as applicable, shall comply and
be bound by the terms of Sections 2.20(e) and 9.12; provided that with
respect to any Participant, as set forth in Section 10.6(b), such
Participant shall only be required to comply with the requirements of
Sections 2.20(e) and 9.12 if such Participant seeks to obtain the
benefits of Section 2.20.
SECTION 10. MISCELLANEOUS
10.1 Amendments and Waivers. Neither this Agreement or any other Loan
Document, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this Section 10.1. The
Required Lenders and each Loan Party party to the relevant Loan Document may, or
(with the written consent of the Required Lenders) the Administrative Agent and
each Loan Party party to the relevant Loan Document may, from time to time, (a)
enter into written amendments, supplements or modifications hereto and to the
other Loan Documents (including amendments and restatements hereof or thereof)
for the purpose of adding any provisions to this Agreement or the other Loan
Documents or changing in any manner the rights of the Lenders or of the Loan
Parties hereunder or thereunder or (b) waive, on such terms and conditions as
may be specified in the instrument of waiver, any of the requirements of this
Agreement or the other Loan Documents or any Default or Event of Default and its
consequences; provided, however, that no such waiver and no such amendment,
supplement or modification shall:
(i) forgive or reduce the principal amount or extend the final
scheduled date of maturity of any Loan or Reimbursement Obligation,
extend the scheduled date of or reduce the amount of any amortization
payment in respect of any Term Loan, reduce the stated rate of any
interest or fee payable hereunder or extend the scheduled date of any
payment thereof, or increase the amount or extend the expiration date
of any Commitment of any Lender, in each case without the consent of
each Lender directly affected thereby;
(ii) amend, modify or waive any provision of this Section or
reduce any percentage specified in the definition of Required Lenders,
consent to the assignment or transfer by the Borrower of any of its
rights and obligations under this Agreement and the other Loan
Documents, release all or substantially all of the Collateral or
release all or substantially all of the Guarantors from their
guarantee obligations under the Guarantee and Collateral Agreement, in
each case without the consent of all Lenders;
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(iii) amend, modify or waive any condition precedent to any
extension of credit under the Revolving Credit Facility set forth in
Section 5.2 (including, without limitation, the waiver of an existing
Default or Event of Default required to be waived in order for such
extension of credit to be made) without the consent of the Majority
Revolving Credit Facility Lenders;
(iv) reduce the percentage specified in the definition of
Majority Facility Lenders with respect to any Facility without the
consent of all Lenders under such Facility;
(v) amend, modify or waive any provision of Section 9 or any
other provision affecting the rights, duties and obligations of the
Arranger or the Administrative Agent without the consent of the
Arranger or the Administrative Agent directly affected thereby;
(vi) amend, modify or waive any provision of Section 2.6 or 2.7
without the consent of the Swing Line Lender;
(vii) amend, modify or waive the pro rata provisions of Section
2.18 without the consent of each Lender directly affected thereby;
(viii) amend, modify or waive any provision of Section 3 without
the consent of each Issuing Lender; or
(ix) impose restrictions on assignments and participations that
are more restrictive than, or additional to, those set forth in
Section 10.6 without the consent of each Lender directly affected
thereby.
Any such waiver and any such amendment, supplement or modification shall apply
equally to each of the Lenders and shall be binding upon the Loan Parties, the
Lenders, the Arranger, the Administrative Agent and all future holders of the
Loans. In the case of any waiver, the Loan Parties, the Lenders, the Arranger
and the Administrative Agent shall be restored to their former position and
rights hereunder and under the other Loan Documents, and any Default or Event of
Default waived shall be deemed to be cured and not continuing; but no such
waiver shall extend to any subsequent or other Default or Event of Default, or
impair any right consequent thereon. Any such waiver, amendment, supplement or
modification shall be effected by a written instrument signed by the parties
required to consent pursuant to the foregoing provisions of this Section;
provided, that delivery of an executed signature page of any such instrument by
facsimile transmission shall be effective as delivery of a manually executed
counterpart thereof.
Notwithstanding the foregoing, this Agreement and any other Loan
Document may be amended (or amended and restated) with the written consent of
the Required Lenders, the Administrative Agent and each Loan Party party to each
relevant Loan Document (x) to add one or more additional credit facilities to
this Agreement and to permit the extensions of credit from time to time
outstanding thereunder and the accrued interest and fees in respect thereof
(collectively, the "Additional Extensions of Credit") to share ratably in the
benefits of this Agreement and the other Loan Documents with the Term Loans and
Revolving Extensions of Credit and the accrued interest and fees in respect
thereof and (y) to include appropriately the Lenders holding such credit
facilities in any determination of the Required Lenders and Majority Revolving
Facility Lenders.
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10.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered, or three Business Days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
received, addressed (a) in the case of the Borrower, the Arranger and the
Administrative Agent, as follows and (b) in the case of the Lenders, as set
forth in an administrative questionnaire delivered to the Administrative Agent
or on Schedule I to the Lender Addendum to which such Lender is a party or, in
the case of a Lender which becomes a party to this Agreement pursuant to an
Assignment and Acceptance, in such Assignment and Acceptance or (c) in the case
of any party, to such other address as such party may hereafter notify to the
other parties hereto:
The Borrower: Gentiva Health Services, Inc.
▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Senior Vice
President and Chief Financial Officer
with a copy to
Gentiva Health Services, Inc.
▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
General Counsel
and with a copy to
Weil, Gotshal & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
The Administrative Agent:
▇▇▇▇▇▇ Commercial Paper Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
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with a copy to:
▇▇▇▇▇▇ Commercial Paper Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Issuing Lender: As notified by such Issuing Lender to
the Administrative Agent and the
Borrower
provided that any notice, request or demand to or upon the Arranger, the
Administrative Agent, the Issuing Lender or any Lender shall not be effective
until received.
10.3 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Administrative Agent or any Lender, any
right, remedy, power or privilege hereunder or under the other Loan Documents
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative and
not exclusive of any rights, remedies, powers and privileges provided by law.
10.4 Survival of Representations and Warranties. All representations
and warranties made herein, in the other Loan Documents and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this Agreement and the making of the
Loans and other extensions of credit hereunder.
10.5 Payment of Expenses. The Borrower agrees (a) to pay or reimburse
the Arranger and the Administrative Agent for all their reasonable out-of-pocket
costs and expenses incurred in connection with the syndication of the Facilities
(other than fees payable to syndicate members) and the development, preparation
and execution of, and any amendment, supplement or modification to, this
Agreement and the other Loan Documents and any other documents prepared in
connection herewith or therewith, and the consummation and administration of the
transactions contemplated hereby and thereby, including, without limitation, the
reasonable fees and disbursements and other charges of counsel to the
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Administrative Agent and the charges of Intralinks, (b) to pay or reimburse each
Lender, the Arranger and the Administrative Agent for all their costs and
expenses incurred in connection with the enforcement or preservation of any
rights under this Agreement, the other Loan Documents and any other documents
prepared in connection herewith or therewith, including, without limitation, the
fees and disbursements of counsel (including the allocated fees and
disbursements and other charges of in-house counsel) to each Lender and of
counsel to the Administrative Agent, (c) to pay, indemnify, or reimburse each
Lender, the Arranger and the Administrative Agent for, and hold each Lender, the
Arranger and the Administrative Agent harmless from, any and all recording and
filing fees and any and all liabilities with respect to, or resulting from any
delay in paying, stamp, excise and other taxes, if any, which may be payable or
determined to be payable in connection with the execution and delivery of, or
consummation or administration of any of the transactions contemplated by, or
any amendment, supplement or modification of, or any waiver or consent under or
in respect of, this Agreement, the other Loan Documents and any such other
documents, and (d) to pay, indemnify or reimburse each Lender, the Arranger, the
Administrative Agent, their respective affiliates, and their respective
officers, directors, trustees, employees, affiliates, shareholders, attorneys
and other advisors, agents and controlling persons (each, an "Indemnitee") for,
and hold each Indemnitee harmless from and against any and all other
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever with respect
to the execution, delivery, enforcement, performance and administration of this
Agreement, the other Loan Documents and any such other documents, including,
without limitation, any of the foregoing relating to the use of proceeds of the
Loans or the violation of, noncompliance with or liability under, any
Environmental Law applicable to the operations of the Borrower any of its
Subsidiaries or any of the Properties or the use by unauthorized persons of
information or other materials sent through electronic, telecommunications or
other information transmission systems that are intercepted by such persons and
the fees and disbursements and other charges of legal counsel in connection with
claims, actions or proceedings by any Indemnitee against the Borrower hereunder
(all the foregoing in this clause (d), collectively, the "Indemnified
Liabilities"), provided, that the Borrower shall have no obligation hereunder to
any Indemnitee with respect to Indemnified Liabilities to the extent such
Indemnified Liabilities are found by a final and nonappealable decision of a
court of competent jurisdiction to have resulted solely and proximately from the
gross negligence or willful misconduct of such Indemnitee. No Indemnitee shall
be liable for any damages arising from the use by unauthorized persons of
information or other materials sent through electronic, telecommunications or
other information transmission systems that are intercepted by such persons or
for any special, indirect, consequential or punitive damages in connection with
the Facilities. Without limiting the foregoing, and to the extent permitted by
applicable law, the Borrower agrees not to assert and to cause its Subsidiaries
not to assert, and hereby waives and agrees to cause its Subsidiaries so to
waive, all rights for contribution or any other rights of recovery with respect
to all claims, demands, penalties, fines, liabilities, settlements, damages,
costs and expenses of whatever kind or nature, under or related to Environmental
Laws, that any of them might have by statute or otherwise against any
Indemnitee. All amounts due under this Section shall be payable not later than
30 days after written demand therefor. Statements payable by the Borrower
pursuant to this Section shall be submitted to the address of the Borrower set
forth in Section 10.2, or to such other Person or address as may be hereafter
designated by the Borrower in a notice to the Administrative Agent. The
agreements in this Section shall survive repayment of the Loans and all other
amounts payable hereunder.
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10.6 Successors and Assigns; Participations and Assignments.
(a) This Agreement shall be binding upon and inure to the benefit
of the Borrower, the Lenders, the Arranger, the Administrative Agent,
all future holders of the Loans and their respective successors and
assigns, except that the Borrower may not assign or transfer any of
its rights or obligations under this Agreement without the prior
written consent of the Arranger, the Administrative Agent and each
Lender.
(b) Any Lender may, without the consent of the Borrower or any
other Person, in accordance with applicable law, at any time sell to
one or more banks, financial institutions or other entities (each, a
"Participant") participating interests in any Loan owing to such
Lender, any Commitment of such Lender or any other interest of such
Lender hereunder and under the other Loan Documents. In the event of
any such sale by a Lender of a participating interest to a
Participant, such Lender's obligations under this Agreement to the
other parties to this Agreement shall remain unchanged, such Lender
shall remain solely responsible for the performance thereof, such
Lender shall remain the holder of any such Loan for all purposes under
this Agreement and the other Loan Documents, and the Borrower and the
Administrative Agent 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. In no event shall
any Participant under any such participation have any right to approve
any amendment or waiver of any provision of any Loan Document, or any
consent to any departure by any Loan Party therefrom, except to the
extent that such amendment, waiver or consent would require the
consent of all Lenders pursuant to Section 10.1. The Borrower agrees
that if amounts outstanding under this Agreement and the Loans are due
or unpaid, or shall have been declared or shall have become due and
payable upon the occurrence of an Event of Default, each Participant
shall, to the maximum extent permitted by applicable law, be deemed to
have the right of set-off in respect of its participating interest in
amounts owing under this Agreement to the same extent as if the amount
of its participating interest were owing directly to it as a Lender
under this Agreement, provided that, in purchasing such participating
interest, such Participant shall be deemed to have agreed to share
with the Lenders the proceeds thereof as provided in Section 10.7(a)
as fully as if such Participant were a Lender hereunder. The Borrower
also agrees that each Participant shall be entitled to the benefits of
Sections 2.19, 2.20 and 2.21 with respect to its participation in the
Commitments and the Loans outstanding from time to time as if such
Participant were a Lender; provided that, in the case of Section 2.20,
such Participant shall have complied with the requirements of said
Section and Section 9.12, and provided, further, that no Participant
shall be entitled to receive any greater amount pursuant to any such
Section than the transferor Lender would have been entitled to receive
in respect of the amount of the participation transferred by such
transferor Lender to such Participant had no such transfer occurred.
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(c) Any Lender (an "Assignor") may, in accordance with applicable
law and upon written notice to the Administrative Agent, at any time
and from time to time assign to any Lender or any affiliate, Related
Fund or Control Investment Affiliate thereof or, with the consent of
the Borrower and the Administrative Agent and, in the case of any
assignment of Revolving Credit Commitments, the written consent of the
Issuing Lenders and the Swing Line Lender (which, in each case, shall
not be unreasonably withheld or delayed) (provided (x) that no such
consent need be obtained by the Administrative Agent or its
affiliates, (y) the consent of neither the Administrative Agent nor
the Borrower need be obtained with respect to any assignment of funded
Term Loans and (z) no such consent need be obtained for the assignment
by a Lender to its affiliates), to an additional bank, financial
institution or other entity (an "Assignee") all or any part of its
rights and obligations under this Agreement pursuant to an Assignment
and Acceptance, substantially in the form of Exhibit D (an "Assignment
and Acceptance"), executed by such Assignee and such Assignor (and,
where the consent of the Borrower, the Administrative Agent, the
Issuing Lenders or the Swing Line Lender is required pursuant to the
foregoing provisions, by the Borrower and such other Persons) and
delivered to the Administrative Agent for its acceptance and recording
in the Register; provided that no such assignment to an Assignee
(other than any Lender or any affiliate thereof) shall be in an
aggregate principal amount of less than $1,000,000 (with respect to
Term Loans and $5,000,000 with respect to the Revolving Credit
Facility (other than, in each case, in the case of an assignment of
all of a Lender's interests under this Agreement), unless otherwise
agreed by the Borrower and the Administrative Agent. Any such
assignment need not be ratable as among the Facilities. Upon such
execution, delivery, acceptance and recording, from and after the
effective date determined pursuant to such Assignment and Acceptance,
(x) the Assignee thereunder shall be a party hereto and, to the extent
provided in such Assignment and Acceptance, have the rights and
obligations of a Lender hereunder with Commitments and/or Loans as set
forth therein, and (y) the Assignor thereunder shall, to the extent
provided in such Assignment and Acceptance, be released from its
obligations under this Agreement (and, in the case of an Assignment
and Acceptance covering all of an Assignor's rights and obligations
under this Agreement, such Assignor shall cease to be a party hereto,
except as to Sections 2.19, 2.20, 2.21, 9.12 and 10.5 in respect of
the period prior to such effective date). Notwithstanding any
provision of this Section, the consent of the Borrower shall not be
required for any assignment that occurs at any time when any Event of
Default shall exist and be continuing. For purposes of the minimum
assignment amounts set forth in this paragraph, multiple assignments
by two or more Related Funds shall be aggregated.
(d) The Administrative Agent shall, on behalf of the Borrower,
maintain at its address referred to in Section 10.2 a copy of each
Assignment and Acceptance delivered to it and a register (the
"Register") for the recordation of the names and addresses of the
Lenders and the Commitment of, and principal amount of the Loans owing
to, each Lender from time to time. The entries in the Register shall
be conclusive, in the absence of manifest error, and the Borrower, the
Administrative Agent and the Lenders shall treat each Person whose
name is recorded in the Register as the owner of the Loans and any
Notes evidencing such Loans recorded therein for all purposes of this
Agreement. Any assignment of any Loan, whether or not evidenced by a
92
Note, shall be effective only upon appropriate entries with respect
thereto being made in the Register (and each Note shall expressly so
provide). Any assignment or transfer of all or part of a Loan
evidenced by a Note shall be registered on the Register only upon
surrender for registration of assignment or transfer of the Note
evidencing such Loan, accompanied by a duly executed Assignment and
Acceptance; thereupon one or more new Notes in the same aggregate
principal amount shall be issued to the designated Assignee, and the
old Notes shall be returned by the Administrative Agent to the
Borrower marked "canceled". The Register shall be available for
inspection by the Borrower or any Lender (with respect to any entry
relating to such Lender's Loans) at any reasonable time and from time
to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by
an Assignor and an Assignee (and, in any case where the consent of any
other Person is required by Section 10.6(c), by each such other
Person) together with payment to the Administrative Agent of a
registration and processing fee of $3,500 (if required by the
Administrative Agent and, in any case, treating multiple, simultaneous
assignments by or to two or more Related Funds as a single assignment)
(except that no such registration and processing fee shall be payable
in the case of an Assignee which is already a Lender or is an
affiliate or Related Fund of a Lender or a Person under common
management with a Lender), the Administrative Agent shall (i) promptly
accept such Assignment and Acceptance and (ii) on the effective date
determined pursuant thereto record the information contained therein
in the Register and give notice of such acceptance and recordation to
the Borrower. On or prior to such effective date, the Borrower, at its
own expense, upon request, shall execute and deliver to the
Administrative Agent (in exchange for the Revolving Credit Note and/or
applicable Term Notes, as the case may be, of the assigning Lender) a
new Revolving Credit Note and/or applicable Term Notes, as the case
may be, to the order of such Assignee in an amount equal to the
Revolving Credit Commitment and/or applicable Term Loans, as the case
may be, assumed or acquired by it pursuant to such Assignment and
Acceptance and, if the Assignor has retained a Revolving Credit
Commitment and/or Term Loans, as the case may be, upon request, a new
Revolving Credit Note and/or Term Notes, as the case may be, to the
order of the Assignor in an amount equal to the Revolving Credit
Commitment and/or applicable Term Loans, as the case may be, retained
by it hereunder. Such new Note or Notes shall be dated the Closing
Date and shall otherwise be in the form of the Note or Notes replaced
thereby.
(f) For the avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this Section concerning assignments
of Loans and Notes relate only to absolute assignments and that such
provisions do not prohibit assignments creating security interests in
Loans and Notes, including, without limitation, any pledge or
assignment by a Lender of any Loan or Note to any Federal Reserve Bank
in accordance with applicable law.
(g) Notwithstanding anything to the contrary contained herein,
any Lender (a "Granting Lender") may grant to a special purpose
funding vehicle (an "SPC"), identified as such in writing from time to
time by the Granting Lender to the Administrative Agent and the
Borrower, the option to provide to the Borrower all or any part of any
Loan that such Granting Lender would otherwise be obligated to make to
the Borrower pursuant to this Agreement; provided that (i) nothing
93
herein shall constitute a commitment by any SPC to make any Loan and
(ii) if an SPC elects not to exercise such option or otherwise fails
to provide all or any part of such Loan, the Granting Lender shall be
obligated to make such Loan pursuant to the terms hereof. The making
of a Loan by an SPC hereunder shall utilize the Commitment of the
Granting Lender to the same extent, and as if, such Loan were made by
such Granting Lender. Each party hereto hereby agrees that no SPC
shall be liable for any indemnity or similar payment obligation under
this Agreement (all liability for which shall remain with the Granting
Lender). In furtherance of the foregoing, each party hereto hereby
agrees (which agreement shall survive the termination of this
Agreement) that, prior to the date that is one year and one day after
the payment in full of all outstanding commercial paper or other
indebtedness of any SPC, it will not institute against, or join any
other person in instituting against, such SPC any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings
under the laws of the United States or any state thereof. In addition,
notwithstanding anything to the contrary in this Section 10.6(g), any
SPC may (A) with notice to, but without the prior written consent of,
the Borrower and the Administrative Agent and without paying any
processing fee therefor, assign all or a portion of its interests in
any Loans to the Granting Lender, or with the prior written consent of
the Borrower and the Administrative Agent (which consent shall not be
unreasonably withheld) to any financial institutions providing
liquidity and/or credit support to or for the account of such SPC to
support the funding or maintenance of Loans, and (B) disclose on a
confidential basis any non-public information relating to its Loans to
any rating agency, commercial paper dealer or provider of any surety,
guarantee or credit or liquidity enhancement to such SPC; provided
that non-public information with respect to the Borrower may be
disclosed only with the Borrower's consent which will not be
unreasonably withheld. This Section 10.6 may not be amended without
the written consent of any SPC with Loans outstanding at the time of
such proposed amendment.
10.7 Adjustments; Set-off.
(a) Except to the extent that this Agreement provides for
payments to be allocated to a particular Lender or to the Lenders
under a particular Facility, if any Lender (a "Benefitted Lender")
shall at any time receive any payment of all or part of the
Obligations owing to it, or receive any collateral in respect thereof
(whether voluntarily or involuntarily, by set-off, pursuant to events
or proceedings of the nature referred to in Section 8(f), or
otherwise), in a greater proportion than any such payment to or
collateral received by any other Lender, if any, in respect of such
other Lender's Obligations, such Benefitted Lender shall purchase for
cash from the other Lenders a participating interest in such portion
of each such other Lender's Obligations, or shall provide such other
Lenders with the benefits of any such collateral, as shall be
necessary to cause such Benefitted Lender to share the excess payment
or benefits of such collateral ratably with each of the Lenders;
provided, however, that if all or any portion of such excess payment
or benefits is thereafter recovered from such Benefitted Lender, such
purchase shall be rescinded, and the purchase price and benefits
returned, to the extent of such recovery, but without interest.
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(b) In addition to any rights and remedies of the Lenders
provided by law, each Lender shall have the right, without prior
notice to the Borrower, any such notice being expressly waived by the
Borrower to the extent permitted by applicable law, upon any amount
becoming due and payable by the Borrower hereunder (whether at the
stated maturity, by acceleration or otherwise), to set-off and
appropriate and apply against such amount any and all deposits
(general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any
currency, in each case whether direct or indirect, absolute or
contingent, matured or unmatured, at any time held or owing by such
Lender or any branch or agency thereof to or for the credit or the
account of the Borrower. Each Lender agrees to notify promptly the
Borrower and the Administrative Agent after any such set-off and
application made by such Lender, provided that the failure to give
such notice shall not affect the validity of such setoff and
application.
10.8 Counterparts. This Agreement may be executed by one or more of
the parties to this Agreement in any number of separate counterparts, and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument. Delivery of an executed signature page of this Agreement or of a
Lender Addendum by facsimile transmission shall be effective as delivery of a
manually executed counterpart hereof. A set of the copies of this Agreement
signed by all the parties shall be lodged with the Borrower and the
Administrative Agent.
10.9 Severability. Any provision of this Agreement that is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10.10 Integration. This Agreement and the other Loan Documents
represent the entire agreement of the Borrower, the Administrative Agent, the
Arranger and the Lenders with respect to the subject matter hereof and thereof,
and there are no promises, undertakings, representations or warranties by the
Arranger, the Administrative Agent or any Lender relative to the subject matter
hereof not expressly set forth or referred to herein or in the other Loan
Documents.
10.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
10.12 Submission To Jurisdiction; Waivers. The Borrower hereby
irrevocably and unconditionally:
(a) submits for itself and its Property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to
which it is a party, or for recognition and enforcement of any
judgment in respect thereof, to the non-exclusive general jurisdiction
of the courts of the State of New York located in the County of New
York, the courts of the United States of America for the Southern
District of New York, and appellate courts from any thereof;
95
(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have
to the venue of any such action or proceeding in any such court or
that such action or proceeding was brought in an inconvenient court
and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to the Borrower at its address set forth in Section 10.2 or
at such other address of which the Administrative Agent shall have
been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit
the right to ▇▇▇ in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or
proceeding referred to in this Section any special, exemplary,
punitive or consequential damages.
10.13 Acknowledgments. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution
and delivery of this Agreement and the other Loan Documents;
(b) neither the Arranger, the Administrative Agent nor any Lender
has any fiduciary relationship with or duty to the Borrower arising
out of or in connection with this Agreement or any of the other Loan
Documents, and the relationship between the Arranger, the
Administrative Agent and the Lenders, on one hand, and the Borrower,
on the other hand, in connection herewith or therewith is solely that
of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Arranger, the Administrative Agent and
the Lenders or among the Borrower and the Lenders.
10.14 Confidentiality. Each of the Arranger, the Administrative Agent
and the Lenders agrees to keep confidential all non-public information provided
to it by any Loan Party pursuant to this Agreement that is designated by such
Loan Party as confidential; provided that nothing herein shall prevent the
Arranger, the Administrative Agent or any Lender from disclosing any such
information (a) to the Arranger, the Administrative Agent, any other Lender or
any affiliate of any thereof, (b) to any Participant or Assignee (each, a
"Transferee") or prospective Transferee that agrees to comply with the
provisions of this Section or substantially equivalent provisions, (c) to any of
its employees, directors, trustees, agents, attorneys, accountants and other
96
professional advisors, (d) to any financial institution that is a direct or
indirect contractual counterparty in swap agreements or such contractual
counterparty's professional advisor (so long as such contractual counterparty or
professional advisor to such contractual counterparty agrees to be bound by the
provisions of this Section), (e) upon the request or demand of any Governmental
Authority having jurisdiction over it, (f) in response to any order of any court
or other Governmental Authority or as may otherwise be required pursuant to any
Requirement of Law, (g) if requested or required to do so in connection with any
litigation or similar proceeding, (h) that has been publicly disclosed other
than in breach of this Section, (i) to the National Association of Insurance
Commissioners, the NASD or any similar organization or any nationally recognized
rating agency that requires access to information about a Lender's investment
portfolio in connection with ratings issued with respect to such Lender or (j)
in connection with the exercise of any remedy hereunder or under any other Loan
Document. Notwithstanding anything to the contrary in the foregoing sentence or
any other express or implied agreement, arrangement or understanding, the
parties hereto hereby agree that, from the commencement of discussions with
respect to the financing provided hereunder, any party hereto (and each of its
employees, representatives, or agents) is permitted to disclose to any and all
persons, without limitation of any kind, the tax structure and tax aspects of
the transactions contemplated hereby, and all materials of any kind (including
opinions or other tax analyses) related to such tax structure and tax aspects.
10.15 Release of Collateral and Guarantee Obligations.
(a) Notwithstanding anything to the contrary contained herein or
in any other Loan Document, upon request of the Borrower in connection
with any Disposition of Property permitted by the Loan Documents, the
Administrative Agent shall (without notice to, or vote or consent of,
any Lender, or any affiliate of any Lender that is a party to any
Specified Hedge Agreement) take such actions as shall be required to
release its security interest in any Collateral being Disposed of in
such Disposition, and to release any guarantee obligations under any
Loan Document of any Person being Disposed of in such Disposition, to
the extent necessary to permit consummation of such Disposition in
accordance with the Loan Documents; provided that the Borrower shall
have delivered to the Administrative Agent, at least ten Business Days
prior to the date of the proposed release (or such shorter period
agreed to by the Administrative Agent), a written request for release
identifying the relevant Collateral being Disposed of in such
Disposition and the terms of such Disposition in reasonable detail,
including the date thereof, the price thereof and any expenses in
connection therewith, together with a certification by the Borrower
stating that such transaction is in compliance with this Agreement and
the other Loan Documents and that the proceeds of such Disposition
will be applied in accordance with this Agreement and the other Loan
Documents.
(b) Notwithstanding anything to the contrary contained herein or
any other Loan Document, when all Obligations (other than obligations
in respect of any Specified Hedge Agreement) have been paid in full,
all Commitments have terminated or expired and no Letter of Credit
shall be outstanding, upon request of the Borrower, the Administrative
Agent shall (without notice to, or vote or consent of, any Lender, or
any affiliate of any Lender that is a party to any Specified Hedge
Agreement) take such actions as shall be required to release its
security interest in all Collateral, and to release all guarantee
97
obligations provided for in any Loan Document, whether or not on the
date of such release there may be outstanding Obligations in respect
of Specified Hedge Agreements. Any such release of guarantee
obligations shall be deemed subject to the provision that such
guarantee obligations shall be reinstated if after such release any
portion of any payment in respect of the Obligations guaranteed
thereby shall be rescinded or must otherwise be restored or returned
upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of the Borrower or any Guarantor, or upon or as a
result of the appointment of a receiver, intervenor or conservator of,
or trustee or similar officer for, the Borrower or any Guarantor or
any substantial part of its property, or otherwise, all as though such
payment had not been made.
10.16 Accounting Changes. In the event that any "Accounting Change"
(as defined below) shall occur and such change results in a change in the method
of calculation of financial covenants, standards or terms in this Agreement,
then the Borrower and the Administrative Agent agree to enter into negotiations
in order to amend such provisions of this Agreement so as to equitably reflect
such Accounting Change with the desired result that the criteria for evaluating
the Borrower's financial condition shall be the same after such Accounting
Change as if such Accounting Change had not been made. Until such time as such
an amendment shall have been executed and delivered by the Borrower, the
Administrative Agent and the Required Lenders, all financial covenants,
standards and terms in this Agreement shall continue to be calculated or
construed as if such Accounting Change had not occurred. "Accounting Change"
refers to any change in accounting principles required by the promulgation of
any rule, regulation, pronouncement or opinion by the Financial Accounting
Standards Board of the American Institute of Certified Public Accountants or, if
applicable, the SEC.
10.17 Delivery of Lender Addenda. Each initial Lender shall become a
party to this Agreement by delivering to the Administrative Agent a Lender
Addendum duly executed by such Lender, the Borrower and the Administrative
Agent.
10.18 WAIVERS OF JURY TRIAL. THE BORROWER, THE ARRANGER, THE
ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
GENTIVA HEALTH SERVICES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Executive Officer
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▇▇▇▇▇▇ BROTHERS INC.,
as Arranger
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Authorized Signatory
▇▇▇▇▇▇ COMMERCIAL PAPER INC.,
as Administrative Agent
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Authorized Signatory
100
ANNEX A
PRICING GRID FOR REVOLVING CREDIT LOANS AND SWING LINE LOANS
===================================== ============================= ==============================
Consolidated Leverage Ratio Applicable Margin Applicable Margin for Base
for Eurodollar Loans Rate Loans
------------------------------------- ----------------------------- ------------------------------
(greater than) 3.5:1.0 2.25% 1.25%
------------------------------------- ----------------------------- ------------------------------
(less than) 3.5:1.0 and
(greater than) 3.0:1.0 2.00% 1.00%
------------------------------------- ----------------------------- ------------------------------
(less than) 3.0:1.0 and
(greater than) 2.5:1.0 1.75% 0.75%
------------------------------------- ----------------------------- ------------------------------
(less than) 2.5:1.0 1.50% 0.50%
===================================== ============================= ==============================
PRICING GRID FOR TERM LOANS
===================================== ============================= ==============================
Consolidated Leverage Ratio Applicable Margin Applicable Margin for Base
for Eurodollar Loans Rate Loans
------------------------------------- ----------------------------- ------------------------------
(greater than) 3.5:1.0 2.25% 1.25%
------------------------------------- ----------------------------- ------------------------------
(less than) 3.5:1.0 and
(greater than) 3.0:1.0 2.00% 1.00%
------------------------------------- ----------------------------- ------------------------------
(less than) 3.0:1.0 1.75% 0.75%
===================================== ============================= ==============================
Changes in the Applicable Margin with respect to Term Loans, Revolving Credit
Loans or Swing Line Loans resulting from changes in the Consolidated Leverage
Ratio shall become effective on the date (the "Adjustment Date") on which
financial statements are delivered to the Lenders pursuant to Section 6.1 (but
in any event not later than the 45th day after the end of each of the first
three quarterly periods of each fiscal year or the 90th day after the end of
each fiscal year, as the case may be) and shall remain in effect until the next
change to be effected pursuant to this paragraph. If any financial statements
referred to above are not delivered within the time periods specified above,
then, until such financial statements are delivered, the Consolidated Leverage
Ratio as at the end of the fiscal period that would have been covered thereby
shall for the purposes of this definition be deemed to be greater than 3.5:1.0.
In addition, at all times while an Event of Default has occurred and is
continuing, the Consolidated Leverage Ratio shall for the purposes of these
Pricing Grids be deemed to be greater than 3.5:1.0.
SCHEDULE 4.4
CONSENTS, AUTHORIZATIONS, FILINGS AND NOTICES
SCHEDULE 4.15
SUBSIDIARIES; COMMITMENTS RELATED TO CAPITAL STOCK
SCHEDULE 4.19(a)-1
UCC FILING JURISDICTIONS
Loan Party Filing Office
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[Borrower to list name of each Loan Party which is a party to any
Security Document and each filing office in which a UCC financing statement must
be filed in respect of such Loan Party and its collateral]
SCHEDULE 4.19(a)-2
UCC FINANCING STATEMENTS TO REMAIN ON FILE
SCHEDULE 4.19(a)-3
UCC FINANCING STATEMENTS TO BE TERMINATED
SCHEDULE 4.23
ACQUISITION DOCUMENTATION
SCHEDULE 4.24
OWNED AND LEASED PROPERTY
SCHEDULE 4.25(a)
COMPLIANCE WITH HEALTHCARE LAWS
SCHEDULE 4.25(b)
HEALTH CARE PERMITS
SCHEDULE 4.25(c)
PROGRAM PARTICIPATION AGREEMENTS
SCHEDULE 4.25(d)
EXCLUDED ENTITIES
SCHEDULE 4.25(e)
CORPORATE INTEGRITY AGREEMENTS, SETTLEMENT AGREEMENTS
PLANS OF CORRECTION, ETC.
SCHEDULE 7.2(d)
EXISTING INDEBTEDNESS
SCHEDULE 7.3(f)
EXISTING LIENS