EXHIBIT 4.2
Execution Copy
[Revolver CUSIP________
Term Loan A CUSIP_____
Term Loan B CUSIP____]
================================================================================
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
among
RADIATION THERAPY SERVICES, INC.,
THE LENDERS NAMED HEREIN,
BANK OF AMERICA, N.A.,
as Administrative Agent
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Documentation Agent
$135,000,000 Senior Credit Facility
Co-Lead Arrangers and Book Managers for the
Term Loan A Facility and the Revolving Credit
Facility
BANC OF AMERICA SECURITIES LLC
and
WACHOVIA SECURITIES, INC.
CO-LEAD ARRANGERS FOR THE TERM B FACILITY
BANC OF AMERICA SECURITIES LLC
AND
WACHOVIA CAPITAL MARKETS, LLC
SOLE BOOK MANAGER FOR THE TERM B FACILITY
WACHOVIA CAPITAL MARKETS, LLC
Dated as of March 31, 2004
================================================================================
ARTICLE I
Assignment and Allocations; DEFINITIONS
1.1 Amendment and Restatement, Allocations................................ 2
1.2 Defined Terms......................................................... 3
1.3 Accounting Terms...................................................... 31
1.4 Other Terms; Construction............................................. 32
1.5 Accounting for Derivatives............................................ 32
ARTICLE II
AMOUNT AND TERMS OF THE TERM LOAN A AND TERM LOAN B
2.1 Term Loan A........................................................... 32
2.2 Term Loan B........................................................... 33
2.3 Prepayments........................................................... 34
2.4 Notes................................................................. 38
ARTICLE III
AMOUNT AND TERMS OF THE REVOLVING LOANS
3.1 Revolving Credit Commitments.......................................... 39
3.2 Borrowings............................................................ 39
3.3 Disbursements; Funding Reliance; Domicile of Loans.................... 40
3.4 Notes................................................................. 40
3.5 Termination and Reduction of Revolving Credit Commitments............. 41
3.6 Mandatory Payments and Prepayments.................................... 41
3.7 Voluntary Prepayments................................................. 43
3.8 Swing Line............................................................ 44
ARTICLE IV
LETTERS OF CREDIT
4.1 Issuance.............................................................. 45
4.2 Notices............................................................... 46
4.3 Participations........................................................ 46
4.4 Reimbursement......................................................... 47
4.5 Payment by Revolving Loans............................................ 47
4.6 Payment to Lenders.................................................... 48
4.7 Obligations Absolute.................................................. 48
4.8 Cash Collateral Account............................................... 50
4.9 Effectiveness......................................................... 50
ARTICLE V
INTEREST, FEES, USE OF PROCEEDS
5.1 Interest.............................................................. 51
5.2 Fees.................................................................. 52
5.3 Interest Periods...................................................... 53
5.4 Conversions and Continuations......................................... 54
5.5 Method of Payments; Computations...................................... 55
5.6 Recovery of Payments.................................................. 56
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5.7 Use of Proceeds....................................................... 56
5.8 Pro Rata Treatment.................................................... 56
5.9 Increased Costs; Change in Circumstances; Illegality; etc............. 57
5.10 Taxes................................................................. 59
5.11 Compensation.......................................................... 61
5.12 Deficiency Advances; Failure to Purchase Participations............... 61
5.13 Intraday Funding...................................................... 62
ARTICLE VI
SECURITY
6.1 Security.............................................................. 63
6.2 Further Assurances.................................................... 64
6.3 Information Regarding Collateral...................................... 64
ARTICLE VII
CONDITIONS OF BORROWING
7.1 Conditions to Effectiveness........................................... 65
7.2 Conditions of All Borrowings.......................................... 68
ARTICLE VIII
REPRESENTATIONS AND WARRANTIES
8.1 Corporate Organization and Power...................................... 69
8.2 Authorization; Enforceability......................................... 69
8.3 No Violation.......................................................... 69
8.4 Governmental and Third-Party Authorization; Permits................... 70
8.5 Litigation............................................................ 71
8.6 Taxes................................................................. 71
8.7 Subsidiaries.......................................................... 72
8.8 Full Disclosure....................................................... 72
8.9 Margin Stock ......................................................... 72
8.10 No Material Adverse Change............................................ 72
8.11 Financial Matters..................................................... 72
8.12 Ownership of Properties............................................... 74
8.13 Employee Benefit Plans................................................ 74
8.14 Environmental Matters................................................. 75
8.15 Compliance With Laws.................................................. 76
8.16 Regulated Industries.................................................. 76
8.17 Insurance ............................................................ 76
8.18 Material Contracts.................................................... 77
8.19 Security Documents.................................................... 77
8.20 Labor Relations....................................................... 77
8.21 Intentionally Deleted................................................. 78
8.22 Service Agreements.................................................... 78
8.23 Reimbursement......................................................... 78
8.24 Fraud and Abuse....................................................... 78
8.25 Maintenance of Mortgaged Property..................................... 79
8.26 Assets of Borrower.................................................... 79
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ARTICLE IX
AFFIRMATIVE COVENANTS
9.1 Financial Statements.................................................. 79
9.2 Other Business and Financial Information.............................. 80
9.3 Corporate Existence; Franchises; Maintenance of Properties............ 83
9.4 Compliance with Laws.................................................. 83
9.5 Payment of Obligations................................................ 83
9.6 Insurance............................................................. 84
9.7 Maintenance of Books and Records; Inspection.......................... 84
9.8 Managed Practices..................................................... 84
9.9 Permitted Acquisitions................................................ 84
9.10 Creation or Acquisition of Subsidiaries............................... 86
9.11 Additional Security................................................... 87
9.12 Designated Excluded Subsidiaries...................................... 88
9.13 Employee Benefit Plans................................................ 88
9.14 Further Assurances.................................................... 89
9.15 Related Hedge Agreements.............................................. 89
9.16 Shareholder's Agreement............................................... 89
9.17 Notice of Reportable Transaction...................................... 89
ARTICLE X
FINANCIAL COVENANTS
10.1 Leverage Ratio........................................................ 90
10.2 Fixed Charge Coverage Ratio........................................... 90
10.3 Interest Coverage Ratio............................................... 90
10.4 Consolidated Net Worth................................................ 90
ARTICLE XI
NEGATIVE COVENANTS
11.1 Merger; Consolidation................................................. 91
11.2 Indebtedness.......................................................... 91
11.3 Liens................................................................. 92
11.4 Disposition of Assets................................................. 93
11.5 Investments........................................................... 95
11.6 Restricted Payments................................................... 96
11.7 Transactions with Affiliates.......................................... 97
11.8 Lines of Business..................................................... 97
11.9 Revenue............................................................... 97
11.10 Capital Expenditures.................................................. 98
11.11 Certain Amendments.................................................... 98
11.12 Limitation on Certain Restrictions.................................... 98
11.13 No Other Negative Pledges............................................. 98
11.14 Fiscal Year........................................................... 98
11.15 Accounting Changes.................................................... 98
11.16 Restriction on Contingent Obligations................................. 99
11.17 Hazardous Substances.................................................. 99
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11.18 Pledge of Partnerships and Joint Ventures that are not Subsidiaries... 100
11.19 Foreign Subsidiaries.................................................. 100
11.20 Compliance with ERISA, the Code and Foreign Benefit Laws.............. 100
11.21 Subordinated Indebtedness............................................. 101
11.22 Status of Borrower.................................................... 101
11.23 Shareholders' Agreement............................................... 101
ARTICLE XII
EVENTS OF DEFAULT
12.1 Events of Default..................................................... 101
12.2 Remedies: Termination of Term Loan A Commitments, Term Loan Be
Commitments and Revolving Credit Commitments, Acceleration, etc....... 104
12.3 Remedies: Set-Off. ................................................... 105
12.4 Application of Funds.................................................. 105
ARTICLE XIII
THE ADMINISTRATIVE AGENT
13.1 Appointment and Authorization of Administrative Agent................. 106
13.2 Delegation of Duties.................................................. 107
13.3 Liability of Administrative Agent..................................... 107
13.4 Reliance by Administrative Agent...................................... 107
13.5 Notice of Default..................................................... 108
13.6 Credit Decision; Disclosure of Information by Administrative Agent.... 108
13.7 Indemnification of Administrative Agent............................... 109
13.8 Administrative Agent in Its Individual Capacity....................... 109
13.9 Successor Administrative Agent........................................ 109
13.10 Administrative Agent May File Proofs of Claim......................... 110
13.11 ▇▇▇▇▇▇▇▇▇▇ and Guaranty Matters....................................... 111
13.12 Other Agents; Lead Managers........................................... 111
ARTICLE XIV
MISCELLANEOUS
14.1 Fees and Expenses..................................................... 112
14.2 Indemnification; Limitation of Liability.............................. 112
14.3 GOVERNING LAW; WAIVER OF JURY TRIAL................................... 113
14.4 Arbitration; Preservation and Limitation of Remedies.................. 114
14.5 Notices............................................................... 115
14.6 Amendments, Waivers, etc.............................................. 116
14.7 Successors and Assigns................................................ 117
14.8 No Waiver............................................................. 120
14.9 Survival.............................................................. 121
14.10 Severability.......................................................... 121
14.11 Construction.......................................................... 121
14.12 Confidentiality....................................................... 121
14.13 Counterparts.......................................................... 121
14.14 Disclosure of Information............................................. 122
14.15 Entire Agreement...................................................... 122
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14.16 USA PATRIOT Act Notice................................................ 122
EXHIBITS
Exhibit A- 1 Form of Term Loan A Note
Exhibit A-2 Form of Revolving Note
Exhibit A-3 Form of Swing Line Note
Exhibit A-4 Form of Term Loan B Note
Exhibit ▇-▇ Form of Notice of Borrowing
Exhibit B-2 Form of Notice of Conversion/Continuation
Exhibit B-3 Form of Letter of Credit Notice
Exhibit C Form of Compliance Certificate
Exhibit D Form of Assignment and Assumption
Exhibit E Form of Intercompany Note
Exhibit F Form of Reaffirmation of Subsidiary Guaranty
Exhibit G Form of Opinion of Borrower's Counsel
Exhibit H Form of Designation of Excluded Subsidiary Certificate
Exhibit I Participation Rights Agreement
SCHEDULES
Schedule 6.3 Information Regarding Collateral
Schedule 7.1 Mortgages
Schedule 8.4 Consents and Approvals
Schedule 8.5 Litigation
Schedule 8.6 Taxes
Schedule 8.7 Subsidiaries
Schedule 8.11 Financial Matters
Schedule 8.12 Ownership of Properties
Schedule 8.14(a) Environmental Matters
Schedule 8.14(b) Further Environmental Matters
Schedule 8.17 Insurance
Schedule 8.18 Material Contracts
Schedule 8.19(b) Real Property Filing Jurisdictions
Schedule 11.2 Indebtedness
Schedule 11.3 Liens
Schedule 11.5 Investments
Schedule 11.7 Transactions with Affiliates
Schedule 11.16 Contingent Obligations
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THIRD AMENDED AND RESTATED
CREDIT AGREEMENT
THIS THIRD AMENDED AND RESTATED CREDIT AGREEMENT, dated as of the 31st
day of March, 2004 (this "Agreement"), is made among RADIATION THERAPY SERVICES,
INC., a Florida corporation with its principal offices in Fort ▇▇▇▇▇, Florida
(the "Borrower"), the banks and financial institutions listed on the signature
pages hereto or that become parties hereto after the date hereof (collectively,
the "Lenders"), BANK OF AMERICA, N.A. ("Bank of America"), as administrative
agent for the Lenders (in such capacity, the "Administrative Agent") and
WACHOVIA BANK, NATIONAL ASSOCIATION ("Wachovia"), as documentation agent for the
Lenders (in such capacity, the "Documentation Agent").
RECITALS
A. The Borrower, the Lenders party thereto and ▇▇▇▇▇▇▇▇, as
successor in interest to First Union National Bank, as administrative agent,
were parties to that certain Credit Agreement, dated as of October 28, 1998, as
amended and restated by that certain First Amended and Restated Credit
Agreement, dated as of October 27, 1999 (collectively, the "Original Credit
Agreement").
B. The Borrower, the Lenders party thereto, and Bank of America,
were parties to that certain Second Amended and Restated Credit Agreement dated
as of April 15, 2002, which, among other things, amended and restated the
Original Credit Agreement and provided for the reallocation of certain
commitments, the conversion of certain outstandings to a term loan and a
corresponding decrease in the revolving credit commitments (as amended to but
not including the date hereof, the "Second Amended Credit Agreement").
C. In connection with entering into the Second Amended Credit
Agreement, Bank of America was appointed successor administrative agent to
Wachovia pursuant to a certain agency resignation and appointment letter and
related agency succession documents.
D. The Borrower has requested that the Second Amended Credit
Agreement be further amended and restated in order to, among other things, add a
term loan B facility, and to make certain other amendments to the Second Amended
Credit Agreement (the "Restatement").
E. The Borrower, the Lenders, and the Administrative Agent have
agreed to and desire to amend and restate the Second Amended Credit Agreement on
the terms and conditions set forth in this Agreement to accomplish such
amendments.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual provisions, covenants
and agreements herein contained, the parties hereto hereby agree as follows:
ARTICLE I
ASSIGNMENT AND ALLOCATIONS; DEFINITIONS
1.1 Amendment and Restatement, Allocations. In order to facilitate the
Restatement and otherwise to effectuate the desires of the Borrower, the
Administrative Agent and the Lenders:
(a) The Borrower, each Subsidiary Guarantor, the Administrative
Agent and the Lenders hereby agree that upon the effectiveness of this
Agreement, the terms and provisions of the Second Amended Credit Agreement which
in any manner govern or evidence the Obligations, the rights and interests of
the Administrative Agent and the Lenders and any terms, conditions or matters
related to any thereof, shall be and hereby are amended and restated in their
entirety by the terms, conditions and provisions of this Agreement, and the
terms and provisions of the Second Amended Credit Agreement, except as otherwise
expressly provided herein, shall be superseded by this Agreement.
(b) Notwithstanding this amendment and restatement of the Second
Amended Credit Agreement, including anything in this SECTION 1.1, and of any
related "Credit Documents" (as such term is defined in the Second Amended Credit
Agreement and referred to herein, individually or collectively, as the "Prior
Credit Documents"), (i) all of the indebtedness, liabilities and obligations
owing by any Person under the Second Amended Credit Agreement and other Prior
Credit Documents shall continue as Obligations hereunder, and (ii) each of this
Agreement and the Notes and any other Credit Document (as defined herein) that
is amended and restated in connection with this Agreement is given as a
substitution of, and not as a payment of, the indebtedness, liabilities and
obligations of the Borrower and the Subsidiary Guarantors under the Second
Amended Credit Agreement or any Prior Credit Document and neither the execution
and delivery of such documents nor the consummation of any other transaction
contemplated hereunder is intended to constitute a novation of the Second
Amended Credit Agreement or of any of the other Prior Credit Documents or any
obligations thereunder. Upon the effectiveness of this Agreement, all Loans
owing by the Borrower, and outstanding under the Second Amended Credit Agreement
shall continue as Loans hereunder and shall constitute advances hereunder, and
all Letters of Credit outstanding under the Second Amended Credit Agreement and
any of the Prior Credit Documents shall continue as Letters of Credit hereunder.
Base Rate Loans under the Second Amended Credit Agreement shall accrue interest
at the Base Rate hereunder and the parties hereto agree that the Interest
Periods for all LIBOR Loans outstanding under the Second Amended Credit
Agreement on the Effective Date shall remain in effect without renewal,
interruption or extension as LIBOR Loans under this Agreement and accrue
interest at the LIBOR Rate hereunder; provided that on and after the Effective
Date the Applicable Margin Percentage applicable to any Loan or Letter of Credit
hereunder shall be as set forth in the definition of Applicable Margin
Percentage below, without regard to any margin applicable thereto under the
Second Amended Credit Agreement prior to the Effective Date.
(c) The parties hereto acknowledge that as of the Effective Date,
the Term Loan A Commitment, Revolving Credit Commitment and Applicable
Commitment Percentage for each of the Revolving Lenders and Term Loan A Lenders
are as follows:
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TERM LOAN A FACILITY
TERM LOAN A APPLICABLE
TERM LOAN A OUTSTANDINGS AS OF COMMITMENT
TERM LOAN A LENDER COMMITMENT EFFECTIVE DATE PERCENTAGE
Bank of America, N.A. $ 7,894,737.00 $ 7,105,250.00 31.58%
Wachovia Bank, National Association $ 7,894,737.00 $ 7,105,250.00 31.58%
Fifth Third Bank, Florida $ 5,263,158.00 $ 4,736,875.00 21.05%
SunTrust Bank $ 3,947,368.00 $ 3,552,625.00 15.79%
Term Loan A Facility Total $ 25,000,000.00
REVOLVING LOAN FACILITY
APPLICABLE
REVOLVING CREDIT COMMITMENT
REVOLVING LENDER COMMITMENT PERCENTAGE
Bank of America, N.A. $ 22,105,263.00 31.58%
Wachovia Bank, National Association $ 22,105,263.00 31.58%
Fifth Third Bank, Florida $ 14,736,842.00 21.05%
SunTrust Bank $ 11,052,632.00 15.79%
Revolving Credit Facility Total $ 70,000,000.00
TOTAL FACILITIES $ 95,000,000.00
================
(d) The parties hereto agree that as of the Effective Date, the
Term Loan B Lenders shall become parties hereto, shall provide the Term Loan B
to the Borrower on the terms and conditions set forth herein, shall have such
applicable Commitment Percentages with respect to the Term Loan B as shall be
set forth on the Register of the Administrative Agent as provided in SECTION
14.7(c), and the Term Loan B Facility shall be secured by the Collateral on a
pari passu basis with the Revolving Credit Facility and the Term Loan A
Facility.
1.2 Defined Terms. For purposes of this Agreement, in addition to
the terms defined elsewhere herein, the following terms shall have the meanings
set forth below (such meanings to be equally applicable to the singular and
plural forms thereof):
"Account Designation Letter" shall mean a letter from the Borrower to
the Administrative Agent, ▇▇▇▇ completed and signed by an Authorized Officer and
in form and substance satisfactory to the Administrative Agent, listing any one
or more accounts to which the Borrower may from time to time request the
Administrative Agent to forward the proceeds of any Loans made hereunder.
"Acquired EBITDA" shall mean with respect to each Person which is the
subject of a Permitted Acquisition, (a) the aggregate of (i) Consolidated Net
Income of such Person plus (ii) the sum of interest expense, taxes,
depreciation, amortization, and other non-cash expenses or charges of the going
business or assets so acquired (as approved by the Required Lenders) for the
immediately preceding four fiscal quarters (including adjustments made by the
Borrower and satisfactory to the Required Lenders), or (b) at the request of the
Borrower, EBITDA for such
3
Person for some other period as may be acceptable to the Required Lenders in
their sole discretion.
"Acquisition" shall mean any transaction or series of related
transactions, consummated on or after the date hereof, by which the Borrower
directly, or indirectly through one or more Subsidiaries, (i) acquires any going
business, all or substantially all of the assets or a certificate of need, of
any Person, whether through purchase of assets, merger or otherwise, or (ii)
acquires securities or other ownership interests of any Person having at least a
majority of combined voting power of the then outstanding securities or other
ownership interests of such Person.
"Acquisition Amount" shall mean, with respect to any Acquisition, the
sum (without duplication) of (i) the amount of cash paid by the Borrower and its
Subsidiaries in connection with such Acquisition, (ii) the Fair Market Value of
all Capital Stock of the Borrower issued or given in connection with such
Acquisition, (iii) the amount (determined by using the face amount or the amount
payable at maturity, whichever is greater) of all Indebtedness incurred, assumed
or acquired by the Borrower and its Subsidiaries in connection with such
Acquisition, (iv) all additional purchase price amounts in connection with such
Acquisition in the form of earnouts and other contingent obligations that should
be recorded as a liability on the balance sheet of the Borrower and its
Subsidiaries or expensed, in either event in accordance with GAAP, Regulation
S-X under the Securities Act of 1933, as amended, or any other rule or
regulation of the Securities and Exchange Commission, (v) all amounts paid in
respect of covenants not to compete, consulting agreements and other affiliated
contracts in connection with such Acquisition (taking into account the
reasonably anticipated present value of any contingent consideration with
respect thereto), (vi) the amount of all transaction fees and expenses
(including, without limitation, legal, accounting and finders' fees and
expenses) incurred by the Borrower and its Subsidiaries in connection with such
Acquisition and (vii) the aggregate fair market value of all other consideration
given by the Borrower and its Subsidiaries in connection with such Acquisition.
"Adjusted Base Rate" shall mean, at any time with respect to any Base
Rate Loan, a rate per annum equal to the Base Rate as in effect at such time
plus the Applicable Margin Percentage for Base Rate Loans as in effect at such
time.
"Adjusted LIBOR Rate" shall mean, at any time with respect to any LIBOR
Loan, a rate per annum equal to the LIBOR Rate as in effect at such time plus
the Applicable Margin Percentage for LIBOR Loans as in effect at such time.
"Adjusted Leverage Ratio" shall mean, as of the last day of any fiscal
quarter, the ratio of (i) Consolidated Funded Debt as of such date to (ii)
Annualized Consolidated Cash Flow for the period ending on such day minus the
aggregate amount of Restricted Payments other than Allowable Tax Distributions
made or declared during such period.
"Administrative Agent" shall mean Bank of America, in its capacity as
Administrative Agent appointed under ARTICLE XIII, and its successors and
permitted assigns in such capacity.
"Administrative Questionnaire" shall mean an Administrative
Questionnaire in a form supplied by the Administrative Agent.
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"Affiliate" shall mean, as to any Person, each other Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified. "Control"
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of a Person, whether through the
ability to exercise voting power, by contract or otherwise. "Controlling" and
"Controlled" have meanings correlative thereto. A Person shall be deemed to be
Controlled by another Person if such other Person possesses, directly or
indirectly, power to vote 10% or more of the securities having ordinary voting
power for the election of directors or managing general partners.
"Agent-Related Persons" means the Administrative Agent (including any
successor administrative agent), together with its Affiliates (including, in the
case of Bank of America in its capacity as the Administrative Agent, BAS), and
the officers, directors, employees and attorneys-in-fact of such Persons and
Affiliates.
"Agreement" shall mean this Third Amended and Restated Credit
Agreement, as amended, modified or supplemented from time to time.
"Allowable Tax Distributions" means distributions to the shareholders
of the Borrower in respect of the shareholders' federal, state and local income
tax liability (including quarterly tax estimates) arising as a result of the
Borrower's operations and the shareholders' interest in the Borrower, made not
more frequently than monthly and not in excess, in the aggregate in any fiscal
quarter, the sum of 40% of Consolidated Net Income for such fiscal quarter PLUS,
if positive, or LESS, if negative, the amount by which 40% of Consolidated Net
Income for all fiscal quarters then ended of such fiscal year exceeds the
aggregate amount of Allowable Tax Distributions made during such preceding
fiscal quarters of such fiscal year; provided, however, that notwithstanding the
foregoing, if the Borrower is not a "partnership" within the meaning of the Code
as of the last day of a fiscal year, then Allowable Tax Distributions
attributable to the operations of the Borrower during such calendar year shall
be equal to zero.
"Amendment No. 2" means that certain Amendment Agreement No. 2 to the
Second Amended Credit Agreement, dated as of December 31, 2003, by and among the
Borrower, the Administrative Agent, Wachovia Bank, National Association, as
document agent, and the Lenders party thereto from time to time.
"Annualized Consolidated Cash Flow" shall mean, as of the last day of
any fiscal quarter, the Consolidated Cash Flow for the period for the four
immediately preceding fiscal quarters; provided, however, that the amount of
Acquired EBITDA used to calculate Consolidated Cash Flow shall be calculated for
the period as determined pursuant to the definition of Acquired EBITDA.
"Applicable Commitment Percentage" means, for each Lender at any time,
a fraction, (i) with respect to the Revolving Credit Facility, the Letters of
Credit and the Swing Line the numerator of which shall be such Lender's
Revolving Credit Commitment and the denominator of which shall be the Total
Revolving Credit Commitment, (ii) with respect to the Term Loan A Facility, the
numerator of which shall be such Lender's Term Loan A Commitment and the
denominator shall be the Total Term Loan A Commitment, and (iii) for the Term
Loan B Facility, the numerator of which shall be such Lender's Term Loan B
Commitment and the denominator shall be the Total Term Loan B Commitment, which
Applicable Commitment
5
Percentage for each Lender shall be maintained on the Register of the
Administrative Agent; provided that the Applicable Commitment Percentage of each
Lender shall be increased or decreased to reflect any assignments to or by such
Lender effected in accordance with SECTION 14.7.
"Applicable Margin Percentage" shall mean, at any time from and after
the Effective Date, (a) with respect to Segments of the Term Loan B that are
Base Rate Loans, 2.25%, (b) with respect to Segments of the Term Loan B that are
LIBOR Loans, 3.75%, and (c) with respect to Revolving Loans and Segments of the
Term Loan A and the commitment fee payable pursuant to SECTION 5.2(a), the
applicable percentage set forth below, each (i) to be added to the Base Rate
pursuant to SECTION 5.1 for purposes of determining the Adjusted Base Rate, and
(ii) to be added to the LIBOR Rate pursuant to SECTION 5.1 for purposes of
determining the Adjusted LIBOR Rate:
APPLICABLE MARGIN APPLICABLE MARGIN
PERCENTAGE PERCENTAGE
LEVERAGE RATIO FOR BASE RATE LOANS FOR LIBOR LOANS
-------------------------- ------------------- -----------------
Less than 1.00 to 1.00 0.25% 1.75%
Greater than or equal to 0.50% 2.00%
1.00 to 1.00, but less
than 1.50 to 1.00
Greater than or equal 0.75% 2.25%
to 1.50 to 1.00, but
less than 2.00 to 1
Greater than or equal to 1.00% 2.50%
2.00 to 1.00 but less
than 2.50 to 1.00
Greater than or equal to 1.375% 2.875%
2.50 to 1.00 but less
than 2.75 to 1.00
Greater than or equal to 1.75% 3.25%
2.75 to 1.00
On each Adjustment Date (as hereinafter defined), the Applicable Margin
Percentage for all Revolving Loans and Term Loan A and the commitment fee
payable pursuant to SECTION 5.2(a) shall be adjusted effective as of such date
(based upon the calculation of the Leverage Ratio as of the last day of the
fiscal period to which such Adjustment Date relates) in accordance with the
above matrix; provided, however, that, notwithstanding the foregoing or anything
else herein to the contrary, if at any time the Borrower shall have failed to
deliver the financial statements and a Compliance Certificate as required by
SECTION 9.1 (a) or SECTION 9.1(b), as the case may be, and SECTION 9.2(a), then
at the election of the Required Revolving Lenders and the Required Term Loan A
Lenders, at all times from and including the date on which such statements and
Compliance Certificate are required to have been delivered to the date on which
the same shall have been delivered each Applicable Margin Percentage shall be
determined in accordance with the above matrix as if the Leverage Ratio were
greater than 2.75:1.00 (notwithstanding the actual Leverage Ratio); provided,
further, however, that notwithstanding
6
the foregoing or anything else to the contrary herein, until the Adjustment Date
relating to the Borrower's September 30, 2004 Compliance Certificate, the
Applicable Margin Percentage shall be determined in accordance with the above
matrix as if the Leverage Ratio were greater than 2.75 to 1.00 (notwithstanding
the actual Leverage Ratio). For purposes of this definition, "Adjustment Date"
shall mean with respect to any fiscal period of the Borrower beginning with the
fiscal quarter ending September 30, 2004, the tenth (10th) day (or, if such day
is not a Business Day, on the next succeeding Business Day) after delivery by
the Borrower in accordance with SECTION 9.1(a), SECTION 9.1(b) OR SECTION
9.9(b), as the case may be, of (i) financial statements as of the end of and for
such fiscal period, (ii) a duly completed Compliance Certificate with respect to
such fiscal period, and (iii) any pro forma Compliance Certificate of the
Borrower and its Subsidiaries giving effect to a Permitted Acquisition in
accordance with SECTION 9.9.
"Approved Fund" shall mean any Fund that is administered or managed by
(a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of
any entity that administers or manages a Lender.
"Asset Disposition" shall mean any sale, assignment, transfer or other
disposition by the Borrower or any of its Subsidiaries to any other Person
(other than to the Borrower or to a Wholly Owned Subsidiary), whether in one
transaction or a series of related transactions, of any of its assets, business
units or other properties (including any interests in property, whether tangible
or intangible, and including Capital Stock of Subsidiaries), but excluding the
sale or other disposition of assets permitted under clauses (i) through (iv) of
SECTION 11.4.
"Assignee" shall have the meaning given to such term in EXHIBIT D.
"Assignment and Assumption" shall mean an Assignment and Assumption
entered into by a Lender and Eligible Assignee (with the consent of any party
whose consent is required by SECTION 14.7), and accepted by the Administrative
Agent and the Borrower, in substantially the form of EXHIBIT D or any other form
approved by the Administrative Agent, and shall include, in the case of the
initial assignment of portions of the Term Loan B by Wachovia Bank, National
Association as one of the initial Term Loan B Lenders, one or more master
assignments and assumption agreement to effect assignments to multiple assignees
substantially on the terms of the form of Assignment and Assumption set for on
EXHIBIT D.
"Attributable Indebtedness" shall mean, on any date, (a) in respect of
any capital lease of any Person, the capitalized amount thereof that would
appear on a balance sheet of such Person prepared as of such date in accordance
with GAAP, and (b) in respect of any Synthetic Lease Obligation, the capitalized
amount of the remaining lease payments under the relevant lease that would
appear on a balance sheet of such Person prepared as of such date in accordance
with GAAP if such lease were accounted for as a capital lease.
"Authorized Officer" shall mean, with respect to any action specified
herein, the president, vice president, or with respect to any financial matter,
the chief financial officer of the Borrower or any other Financial Officer, or
any officer of the Borrower duly authorized by resolution of the board of
directors of the Borrower to take such action on its behalf, and whose signature
and incumbency shall have been certified to the Administrative Agent by the
secretary or an assistant secretary of the Borrower.
7
"Bankruptcy Code" shall mean 11 U.S.C, Sections 101 et seq., as
amended from time to time, and any successor statute.
"BAS" means Banc of America Securities LLC and its successors.
"Base Rate" shall mean for any day a fluctuating rate per annum equal
to the higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of
interest in effect for such day as publicly announced from time to time by Bank
of America as its "prime rate." Such rate is a rate set by Bank of America based
upon various factors including Bank of America's costs and desired return,
general economic conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above, or below such announced
rate. Any change in such rate announced by Bank of America shall take effect at
the opening of business on the day specified in the public announcement of such
change.
"Base Rate Loan" shall mean, at any time, any Loan (including a
Segment) that bears interest at such time at the Adjusted Base Rate.
"Base Rate Segment" means a Segment bearing interest at the Base Rate.
"Borrower Margin Stock" shall mean shares of Capital Stock of the
Borrower that are held by the Borrower or any of its Subsidiaries and that
constitute Margin Stock.
"Borrowing" shall mean (i) the borrowing under the Term Loan A
Facility, (ii) the incurrence by the Borrower (including as a result of
conversions and continuations of outstanding Revolving Loans pursuant to SECTION
5.4) on a single date of a group of Revolving Loans of a single Type and, in the
case of LIBOR Loans, as to which a single Interest Period is in effect, and
(iii) the borrowing under the Term Loan B Facility.
"Borrowing Date" shall mean, with respect to any Borrowing, the date
upon which such Borrowing is made.
"Business Day" shall mean (i) any day other than a Saturday or Sunday,
a legal holiday or a day on which commercial banks in Charlotte, North Carolina
are required by law to be closed and (ii) in respect of any determination
relevant to a LIBOR Loan, any such day that is also a day on which tradings are
conducted in the London interbank Eurodollar market.
"Capital Expenditures" shall mean, for any period, the aggregate amount
(whether paid in cash or accrued as a liability) that would, in accordance with
GAAP, be included on the consolidated statement of cash flows of the Borrower
and its Subsidiaries for such period as additions to equipment, fixed assets,
real property or improvements or other capital assets (including, without
limitation, capital lease obligations); provided, however, that Capital
Expenditures shall not include any such expenditures (i) for replacements and
substitutions for capital assets, to the extent made with the proceeds of
insurance, or with proceeds from permitted disposition of the asset replaced or
substituted, or (ii) made in connection with Permitted Acquisitions.
"Capital Stock" shall mean (i) with respect to any Person that is a
corporation, any and all shares, interests or equivalents in capital stock
(whether voting or nonvoting, and whether
8
common or preferred) of such corporation, and (ii) with respect to any Person
that is not a corporation, any and all partnership, membership, limited
liability company or other equity interests of such Person; and in each case,
any and all warrants, rights or options to purchase any of the foregoing.
"Cash Collateral Account" shall have the meaning given to such term in
SECTION 4.8.
"Cash Equivalents" shall mean (i) securities issued or unconditionally
guaranteed by the United States of America or any agency or instrumentality
thereof backed by the full faith and credit of the United States of America and
maturing within 90 days from the date of acquisition, (ii) commercial paper
issued by any Person organized under the laws of the United States of America,
maturing within 90 days from the date of acquisition and at the time of
acquisition having a rating of at least A-l or the equivalent thereof by
Standard & Poor's Ratings Services or at least P-l or the equivalent thereof by
▇▇▇▇▇'▇ Investors Service, inc., (iii) time deposits and certificates of deposit
maturing within 90 days from the date of issuance and issued by a bank or trust
company organized under the laws of the United States of America or any state
thereof that has combined capital and surplus of at least $500,000,000 and that
has (or is a subsidiary of a bank holding company that has) a long-term,
unsecured debt rating of at least A or the equivalent thereof by Standard &
Poor's Ratings Services or at least A2 or the equivalent thereof by ▇▇▇▇▇'▇
Investors Service, Inc., (iv) repurchase obligations with a term not exceeding
seven (7) days with respect to underlying securities of the types described in
clause (i) above entered into with any bank or trust company meeting the
qualifications specified in clause (iii) above, and (v) money market funds at
least 95% of the assets of which are continuously invested in securities of the
type described in clause (i) above.
"Casualty Event" shall mean, with respect to any property (including
any interest in property) of the Borrower or any of its Subsidiaries, any loss
of, damage to, or condemnation or other taking of, such property for which the
Borrower or such Subsidiary receives insurance proceeds, proceeds of a
condemnation award or other compensation.
"Code" shall mean the Internal Revenue Code of 1986.
"Collateral" shall mean all the assets, property and interests in
property that shall from time to time be pledged or be purported to be pledged
as direct or indirect security for the Obligations pursuant to any one or more
of the Security Documents.
"Compliance Certificate" shall mean a fully completed and duly executed
certificate in the form of EXHIBIT C, together with a Covenant Compliance
Worksheet, which Compliance Certificate shall include calculations with respect
to the revenue generated by all Excluded Subsidiaries.
"Confirmation and Amendment of Credit Documents" shall mean the
document executed by the Borrower and its Subsidiaries as of the Effective Date
amending and confirming their obligations under the Credit Documents executed in
conjunction with the Second Amended Credit Agreement and confirming that such
Credit Documents shall continue to be Credit Documents under this Agreement.
9
"Consolidated Cash Flow" shall mean for any period, the aggregate of
(i) Consolidated Net Income of the Borrower and its Subsidiaries (including
Excluded Subsidiaries) for such period, determined on a consolidated basis in
accordance with GAAP, plus (ii) the sum of Consolidated Interest Expense,
taxes, depreciation, amortization, and other non-cash expenses or charges (as
approved by each of the Required Lenders) for such period plus (iii) the
Acquired EBITDA, provided, that the calculations of EBITDA and Acquired EBITDA
are supported by information satisfactory to the Administrative Agent, all as
determined in accordance with GAAP plus (iv) the write-off of any deferred
financing costs as a result of the execution and effectiveness of Amendment No,
2 and this Agreement, but in the case of (ii) and (iv), only to the extent
deducted in determining net income for the applicable period.
"Consolidated Fixed Charges" shall mean, for any period, the aggregate
(without duplication) of the following, all determined on a consolidated basis
for the Borrower and its Subsidiaries (including Excluded Subsidiaries) in
accordance with GAAP for such period: (a) Consolidated Interest Expense for such
period, (b) the aggregate (without duplication) of all scheduled payments of
principal on Consolidated Funded Debt required to have been made by the Borrower
and its Subsidiaries during such period (whether or not such payments are
actually made), but excluding up to $1,000,000 of "earnout" payments in the
first quarter of fiscal year 2003 in respect of the North Carolina Asset
Purchase Agreement, (c) Restricted Payments in excess of Allowable Tax
Distributions; and (d) rental and operating lease expense.
"Consolidated Funded Debt" shall mean, as of any date of determination,
any and all funded Indebtedness, in accordance with GAAP, which shall include
with respect to the Borrower and its Subsidiaries (including Excluded
Subsidiaries), all items of Indebtedness for money borrowed, matured
reimbursement obligations in respect of bonds, letters of credit and
acceptances, obligations to pay the deferred purchase price of property or
services (including without limitation seller notes, contingent or otherwise),
obligations to make "earnout" payments with respect to any Permitted
Acquisition, obligations secured by a Lien on property, Attributable
Indebtedness with respect to capital lease obligations and Synthetic Lease
Obligations, conditional sale obligations, obligations under Hedge Agreements
and similar arrangements, obligations to redeem, defease or otherwise make
payments in respect of Capital Stock, all guarantees, endorsements and other
similar Contingent Obligations in respect of others, and all other Indebtedness
secured by any Lien on any property or asset regardless of whether the
Indebtedness secured thereby shall have been assumed by such property owner or
is nonrecourse to such property owner.
"Consolidated Interest Expense" shall mean, for any period, the sum
(without duplication) of (i) total interest expense of the Borrower and its
Subsidiaries (including Excluded Subsidiaries) for such period in respect of
Consolidated Funded Debt of the Borrower and its Subsidiaries (including,
without limitation, all such interest expense accrued or capitalized during such
period, whether or not actually paid during such period), determined on a
consolidated basis in accordance with GAAP, (ii) all net amounts payable under
or in respect of Hedge Agreements, to the extent paid or accrued by the Borrower
and its Subsidiaries (including Excluded Subsidiaries) during such period, and
(iii) all commitment fees and other ongoing fees in respect of Consolidated
Funded Debt paid, accrued or capitalized by the Borrower and its Subsidiaries
(including Excluded Subsidiaries) during such period.
10
"Consolidated Net Changes in Working Capital" means, for any period for
the Borrower and its Subsidiaries (including Excluded Subsidiaries), an amount
(positive or negative) equal to the sum of (a) the net amount of decreases (or
minus the amount of increases) in accounts receivable, inventory and prepaid
expenses and (b) the amount of increases (or minus the amount of decreases) in
accounts payable (including accrued interest expense), in each case on a
consolidated basis determined in accordance with GAAP and as set forth in the
audited annual financial statements of the Borrower delivered to the
Administrative Agent pursuant to SECTION 9.1(b).
"Consolidated Net Income" shall mean, for any period, net income (or
loss) for any Person for such period, determined in accordance with GAAP.
"Consolidated Net Worth" shall mean, as of any date of determination
the net worth of the Borrower and its Subsidiaries (including Excluded
Subsidiaries) as of such date, determined on a consolidated basis in accordance
with GAAP, but excluding any Disqualified Capital Stock.
"Contingent Obligation" shall mean, with respect to any Person, any
direct or indirect liability of such Person with respect to any Indebtedness,
liability or other obligation (the "primary obligation") of another Person (the
"primary obligor"), whether or not contingent, (a) to purchase, repurchase or
otherwise acquire such primary obligation or any property constituting direct or
indirect security therefor, (b) to advance or provide funds (i) for the payment
or discharge of any such primary obligation or (ii) to maintain working capital
or equity capital of the primary obligor or otherwise to maintain the net worth
or solvency or any balance sheet item, level of income or financial condition of
the primary obligor, (c) 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 in respect thereof to make payment of such
primary obligation or (d) otherwise to assure or hold harmless the owner of any
such primary obligation against loss or failure or inability to perform in
respect thereof; provided, however, that, with respect to the Borrower and its
Subsidiaries, the term Contingent Obligation shall not include endorsements for
collection or deposit in the ordinary course of business.
"Covenant Compliance Worksheet" shall mean a fully completed worksheet
in the form of Attachment A to EXHIBIT C.
"Convert," "Conversion," and "Converted" shall refer to a conversion
pursuant to SECTION 5.4 of one Type of Loan into another Type of Loan.
"Credit Documents" shall mean this Agreement, the Notes, the
Confirmation and Amendment of Credit Documents, the Letters of Credit, the Fee
Letter, the Subsidiary Guaranty, the Security Documents, the Intercompany Notes,
any Related Hedge Agreement and all other agreements, instruments, documents and
certificates now or hereafter executed and delivered to the Administrative Agent
or any Lender by or on behalf of the Borrower or any of its Subsidiaries with
respect to this Agreement and the transactions contemplated hereby, in each case
as amended, modified, supplemented or restated from time to time.
"Credit Exposure" shall mean, for each Lender, the amount equal at all
times (a) other than following the occurrence and during the continuance of an
Event of Default, to the sum of its Revolving Credit Commitment, the amount of
the Term Loan A Outstandings and the amount
11
of the Term Loan B Outstandings, each times its Applicable Commitment Percentage
with respect to the Revolving Credit Facility, the Term Loan A Facility and the
Term Loan B Facility, and (b) following the occurrence and during the
continuance of an Event of Default, to the sum of (i) the amount of such
Lender's Applicable Commitment Percentage of the Term Loan A Outstandings plus
(ii) the amount of such Lender's Applicable Commitment Percentage of Revolving
Credit Outstandings plus (iii) the amount of such Lender's Applicable Commitment
Percentage of the outstanding Letters of Credit and Swing Line Outstandings plus
(iv) the amount of such Lender's Applicable Commitment Percentage of the Term
Loan B Outstandings; provided that, for the purpose of this definition only, (A)
if any Lender shall have failed to fund its Applicable Commitment Percentage of
the Term Loan A, the Term Loan B or any Borrowing, then the Term Loan A
Commitment, the Term Loan B Commitment or Revolving Credit Commitment, as
applicable, of such Lender shall be deemed reduced by the amount it so failed to
fund for so long as such failure shall continue and such Lender's Credit
Exposure attributable to such failure shall be deemed held by any Lender making
more than its Applicable Commitment Percentage of the Term Loan A, the Term Loan
B or such Borrowing to the extent it covers such failure, (B) if any Revolving
Lender shall have failed to pay to the Issuing Lender upon demand its Applicable
Commitment Percentage of any drawing under any Letter of Credit resulting in an
outstanding Reimbursement Obligation (whether by funding its Participation
therein or otherwise), such Lender's Credit Exposure attributable to all Letter
of Credit Outstandings shall be deemed to be held by the Issuing Lender until
such Lender shall pay such deficiency amount to the Issuing Lender together with
interest thereon as provided in SECTION 5.13, and (C) if any Revolving Lender
shall have failed to pay to Bank of America on demand its Applicable Commitment
Percentage of any Swing Line Loan (whether by funding its Participation therein
or otherwise), such Lender's Credit Exposure attributable to all Swing Line
Outstandings shall be deemed to be held by Bank of America until such Lender
shall pay such deficiency amount to Bank of America together with interest
thereon as provided in SECTION 5.13.
"Debt Issuance" shall mean the issuance or sale by the Borrower or any
of its Subsidiaries of any debt securities, whether in a public offering of such
securities or otherwise.
"Default" shall mean any event or condition that, with the passage of
time or giving of notice, or both, would constitute an Event of Default.
"Disqualified Capital Stock" shall mean, with respect to any Person,
any Capital Stock of such Person that, by its terms (or by the terms of any
security into which it is convertible or for which it is exchangeable), or upon
the happening of any event or otherwise, (i) matures or is mandatorily
redeemable or subject to any mandatory repurchase requirement, pursuant to a
sinking fund obligation or otherwise, (ii) is redeemable or subject to any
mandatory repurchase requirement at the sole option of the holder thereof, or
(iii) is convertible into or exchangeable for (whether at the option of the
issuer or the holder thereof) (a) debt securities or (b) any Capital Stock
referred to in (i) or (ii) above, in each case under (i), (ii) or (iii) above at
any time on or prior to the first anniversary of the Term Loan B Maturity Date;
provided, however, that only the portion of Capital Stock that so matures or is
mandatorily redeemable, is so redeemable at the option of the holder thereof, or
is so convertible or exchangeable on or prior to such date shall be deemed to be
Disqualified Capital Stock.
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"Dividend Payment" shall mean that certain dividend payment to be made
to the shareholders of the Borrower with the proceeds of the Term Loan B
Facility, which dividend payment shall not exceed $40,000,000 in the aggregate.
"Dollars" or "$" shall mean dollars of the United States of America.
"EBITDA" shall mean, for any period, the aggregate of (i) net income
(or loss) of a Person for such period, determined in accordance with GAAP, plus
(ii) the sum of interest expense, taxes, depreciation and amortization of such
Person for such Period, determined in accordance with GAAP, plus (iii) the
write-off of any deferred financing costs as a result of the execution and
effectiveness of Amendment No. 2 and this Agreement, but, in the case of both
(ii) and (iii), only to the extent deducted in determining net income for the
applicable period.
"Effective Date" shall mean March 31, 2004.
"Employee Benefit Plan" shall mean (i) any employee benefit plan,
including any Pension Plan, within the meaning of Section 3(3) of ERISA which
(A) is maintained for employees of the Borrower or any of its ERISA Affiliates,
or any Subsidiary (including any Excluded Subsidiary) or is assumed by the
Borrower or any of its ERISA Affiliates, or any Subsidiary (including any
Excluded Subsidiary) in connection with any Acquisition or (B) has at any time
been maintained for the employees of the Borrower, any current or former ERISA
Affiliate, or any Subsidiary (including any Excluded Subsidiary) and (ii) any
plan, arrangement, understanding or scheme maintained by the Borrower or any
Subsidiary (including any Excluded Subsidiary) that provides retirement,
deferred compensation, employee or retiree medical or life insurance, severance
benefits or any other benefit covering any employee or former employee and which
is administered under any Foreign Benefit Law or regulated by any Governmental
Authority other than the United States of America.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended from time to time, and any successor statute, and all rules and
regulations from time to time promulgated thereunder.
"ERISA Affiliate" shall mean any Person (including any trade or
business, whether or not incorporated) that would be deemed to be under "common
control" with, or a member of the same "controlled group" as, the Borrower or
any of its Subsidiaries, within the meaning of Sections 414(b), (c), (m) or (o)
of the Internal Revenue Code or Section 4001 of ERISA.
"Eligible Assignee" shall mean (a) a Lender; (b) an Affiliate of a
Lender; (c) an Approved Fund; and (d) any other Person (other than a natural
person) approved by (i) the Administrative Agent, (ii) the Issuing Lender, and
(iii) unless an Event of Default has occurred and is continuing, the Borrower
(each such approval not to be unreasonably withheld of delayed); provided that
notwithstanding the foregoing, "Eligible Assignee" shall not include the
Borrower or any of the Borrower's Affiliates or Subsidiaries.
"Environmental Claims" shall mean any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, claims, liens,
accusations, allegations, notices of noncompliance or violation, investigations
(other than internal reports prepared by any Person in the ordinary course of
its business and not in response to any third party action or request of any
13
kind) or proceedings relating in any way to any actual or alleged violation of
or liability under any Environmental Law or relating to any permit issued, or
any approval given, under any Environmental Law (collectively, "Claims"),
including, without limitation, (i) any and all Claims by Governmental
Authorities for enforcement, cleanup, removal, response, remedial or other
actions or damages pursuant to any applicable Environmental Law and (ii) any and
all Claims by any third party seeking damages, contribution, indemnification,
cost recovery, compensation or injunctive relief resulting from Hazardous
Substances or arising from alleged injury or threat of injury to human health or
the environment.
"Environmental Laws" shall mean any and all federal, state and local
laws, statutes, ordinances, rules, regulations, permits, licenses, approvals,
rules of common law and orders of courts or Governmental Authorities, relating
to the protection of human health or occupational safety or the environment, now
or hereafter in effect and in each case as amended from time to time, including,
without limitation, requirements pertaining to the manufacture, processing,
distribution, use, treatment, storage, disposal, transportation, handling,
reporting, licensing, permitting, investigation or remediation of Hazardous
Substances.
"Equity Issuance" shall mean the issuance, sale or other disposition by
the Borrower or any of its Subsidiaries of its Capital Stock (including, without
limitation, pursuant to an initial registered public offering of Capital Stock
of the Borrower), any rights, warrants or options to purchase or acquire any
shares of its Capital Stock or any other security or instrument representing,
convertible into or exchangeable for an equity interest in the Borrower or any
of its Subsidiaries; provided, however, that the term Equity Issuance shall not
include (i) the issuance or sale of Capital Stock by any of the Subsidiaries of
the Borrower to the Borrower or any other Subsidiary, provided that such Capital
Stock is pledged to the Administrative Agent pursuant to the Security Agreement,
(ii) any Capital Stock of the Borrower issued or sold in connection with any
Permitted Acquisition and constituting all or a portion of the Acquisition
Amount for such Permitted Acquisition, or (iii) any Capital Stock of the
Borrower issued or sold pursuant to SECTION 11.5(vii) herein.
"Event of Default" shall have the meaning given to such term in SECTION
12.1.
"Excess Cash Flow" means, with respect to the Borrower and its
Subsidiaries (including Excluded Subsidiaries) for any fiscal year, the
difference of (i) Consolidated Cash Flow for such period (but excluding therein
any amounts representing Acquired EBITDA) minus (ii) the sum of (A) the
Consolidated Net Changes in Working Capital for such period; plus (B) Capital
Expenditures paid in cash during such period; plus (C) expenditures for
Permitted Acquisitions paid in cash during such period; plus (D) taxes or
Allowable Tax Distributions paid in cash during such period; plus (E)
Consolidated Interest Expense paid in cash during such period; plus (F) the
aggregate amount of any optional prepayments of the Term Loan A and the Term
Loan B paid in cash during such period; plus (G) the aggregate amount of any
scheduled prepayments of principal of the Term Loan A and the Term Loan B paid
in cash during such period.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time, and any successor statute, and all rules and
regulations from time to time promulgated thereunder.
14
"Excluded Subsidiary" shall mean any Subsidiary of the Borrower or one
of its Subsidiaries existing as of the Effective Date or thereafter created or
acquired in connection with a transaction permitted under SECTION 11.5(vii)
which is not a Subsidiary Guarantor and which is designated by an Authorized
Officer of the Borrower as an Excluded Subsidiary in a certificate delivered to
the Administrative Agent in the form attached hereto as EXHIBIT J and which
Subsidiary (i) shall have no Indebtedness other than Permitted Excluded
Subsidiary Loans, and (ii) shall not guaranty or otherwise directly or
indirectly provide credit support for any Indebtedness of the Borrower or any
Subsidiary Guarantor.
"Fair Market Value" shall mean with respect to any Capital Stock of the
Borrower given in connection with an Acquisition, the value given to such
Capital Stock for purposes of such Acquisition by the parties thereto, as
determined in good faith pursuant to the relevant acquisition agreement or
otherwise in connection with such Acquisition.
"FASB 133" shall mean Statement of Financial Accounting Standards No.
133.
"Federal Funds Rate" shall mean, for any day, the rate per annum equal
to the weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds brokers on
such day, as published by the Federal Reserve Bank on the Business Day next
succeeding such day; provided that (a) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day,
and (b) if no such rate is so published on such next succeeding Business Day,
the Federal Funds Rate for such day shall be the average rate charged to Bank of
America on such day on such transactions as determined by the Administrative
Agent.
"Federal Reserve Board" shall mean the Board of Governors of the
Federal Reserve System or any successor thereto.
"Fee Letter" shall mean, collectively, the letter from Bank of America
to the Borrower, dated December 13, 2001 and the letter from Bank of America to
the Borrower dated March 15, 2004, relating to certain fees payable by the
Borrower in respect of the transaction contemplated by this Agreement, as
amended, modified or supplemented from time to time.
"Financial Condition Certificate" shall mean a fully completed and duly
executed certificate, substantially in the form OF EXHIBIT H, together with the
attachments thereto.
"Financial Officer" shall mean, with respect to the Borrower, the chief
financial officer, vice president - finance, principal accounting officer or
treasurer of the Borrower.
"Fixed Charge Coverage Ratio" shall mean, as of the last day of any
fiscal quarter, the ratio of (i) Consolidated Cash Flow for the four immediately
preceding fiscal quarters plus rental and operating lease expense for such
period minus the sum of (x) cash income taxes paid by the Borrower and its
Subsidiaries, (including Excluded Subsidiaries), if any, during such period (y)
Allowable Tax Distribution paid during such period, and (z) Shareholder Life
Insurance Payments during such period to (ii) Consolidated Fixed Charges for the
four immediately preceding fiscal quarters.
15
"Foreign Benefit Law" shall mean any applicable statute, law,
ordinance, code, rule, regulation, order or decree of any foreign nation or any
province, state, territory, protectorate or other political subdivision thereof
regulating, relating to, or imposing liability or standards of conduct
concerning, any Employee Benefit Plan.
"Foreign Lender" shall have the meaning given such term in SECTION
5.10.
"Fund" shall mean any Person (other than a natural person) that is (or
will be) engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary course of
business.
"GAAP" shall mean generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board and the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or such other
principles as may be approved by a significant segment of the accounting
profession, that are applicable to the circumstances as of the date of
determination, consistently applied.
"Governmental Authority" shall mean any nation or government, any state
or other political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, administrative tribunal, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government, and any
corporation or other entity owned or controlled, through stock or capital
ownership or otherwise, by any of the foregoing.
"Grantor" shall have the meaning given such term in SECTION 6.3.
"HCFA" shall mean the United States Health Care Financing
Administration and any successor agency.
"Hazardous Substances" shall mean any substances or materials (i) that
are or become defined as hazardous wastes, hazardous substances, pollutants,
contaminants or toxic substances under any applicable Environmental Law, (ii)
that are defined by any applicable Environmental Law as toxic, explosive,
corrosive, ignitable, infectious, radioactive or mutagenic, (iii) the presence
of which require investigation or response under any applicable Environmental
Law, (iv) that consist of underground or aboveground storage tanks, whether
empty, filled or partially filled with any substance, or (v) that contain,
without limitation, asbestos, polychlorinated biphenyls, urea formaldehyde foam
insulation, petroleum hydrocarbons, petroleum derived substances or wastes,
crude oil, nuclear fuel, natural gas or, synthetic gas.
"Hedge Agreement" shall mean (a) any and all rate swap transactions,
basis swaps, credit derivative transactions, forward rate transactions,
commodity swaps, commodity options, forward commodity contracts, equity or
equity index swaps or options, bond or bond price or bond index swaps or options
or forward bond or forward bond price or forward bond index transactions,
interest rate options, forward foreign exchange transactions, cap transactions,
floor transactions, collar transactions, currency swap transactions,
cross-currency rate swap transactions, currency options, spot contracts, or any
other similar transactions or any combination of any of the foregoing (including
any options to enter into any of the foregoing),
16
whether or not any such transaction is governed by or subject to any master
agreement and all other "derivative instruments" as defined in FASB 133 and
which are subject to the reporting requirements of FASB 133, and (b) any and all
transactions of any kind, and the related confirmations, which are subject to
the terms and conditions of, or governed by, any form of master agreement
published by the International Swaps and Derivatives Association, Inc., any
International Foreign Exchange Master Agreement, or any other master agreement
(any such master agreement, together with any related schedules, a "Master
Agreement"), including any such obligations or liabilities under any Master
Agreement.
"Hedge Termination Value" shall mean, in respect of any one or more
Hedge Agreements, after taking into account the effect of any legally
enforceable netting agreement relating to such Hedge Agreements, (a) for any
date on or after the date such Hedge Agreements have been closed out and
termination value(s) determined in accordance therewith, such termination
value(s), and (b) for any date prior to the date referenced in clause (a) the
amount(s) determined as the mark-to-market value(s) for such Hedge Agreements,
as determined based upon one or more mid-market or other readily available
quotations provided by any recognized dealer in such Hedge Agreements (which may
include any Lender).
"Indebtedness" shall mean, as to any Person at a particular time, all
of the following, whether or not included as indebtedness or liabilities in
accordance with GAAP:
(a) all obligations of such Person for borrowed money and
all obligations of such Person evidenced by bonds, debentures, notes,
loan agreements or other similar instruments;
(b) all direct or contingent obligations of such Person
arising under letters of credit (including standby and commercial),
bankers' acceptances, bank guaranties, surety bonds and similar
instruments;
(c) net obligations under any Hedge Agreement in an
amount equal to the Hedge Termination Value thereof;
(d) all obligations of such Person to pay the deferred
purchase price of property or services (other than trade accounts
payable in the ordinary course of business);
(e) indebtedness (excluding prepaid interest thereon)
secured by a Lien on property owned or being purchased by such Person
(including indebtedness arising under conditional sales or other title
retention agreements), whether or not such indebtedness shall have been
assumed by such Person or is limited in recourse;
(f) all Disqualified Capital Stock issued by such Person,
with the amount of Indebtedness represented by such Disqualified
Capital Stock being equal to the greater of its voluntary or
involuntary liquidation preference and its maximum fixed repurchase
price, but excluding accrued dividends, if any (for purposes hereof,
the "maximum fixed repurchase price" of any Disqualified Capital Stock
that does not have a fixed repurchase price shall be calculated in
accordance with the terms of such Disqualified Capital Stock as if such
Disqualified Capital Stock were purchased on any date on which
Indebtedness
17
shall be required to be determined pursuant to this Agreement, and if
such price is based upon, or measured by, the fair market value of such
Disqualified Capital Stock, such fair market value shall be determined
reasonably and in good faith by the board of directors or other
governing body of the issuer of such Disqualified Capital Stock;
(g) capital leases and Synthetic Lease Obligations; and
(h) all Contingent Obligations of such Person.
For all purposes hereof, the Indebtedness of any Person shall include
the Indebtedness of any partnership or joint venture (other than a joint venture
that is itself a corporation or limited liability company) in which such Person
is a general partner or a joint venturer, unless such Indebtedness is expressly
made non-recourse to such Person (subject only to customary exceptions
acceptable to the Required Lenders). The amount of any capital lease or
Synthetic Lease Obligation as of any date shall be deemed to be the amount of
Attributable Indebtedness in respect thereof as of such date.
"Indemnified Liabilities" shall have the meaning given such term in
SECTION 14.2.
"Indemnified Party" shall have the meaning given such term in SECTION
14.2.
"Intercompany Notes" shall mean, collectively, the intercompany notes
made by the Subsidiaries, in substantially the form OF EXHIBIT E, as amended,
modified or supplemented from time to time.
"Interest Coverage Ratio" shall mean, as of any date of determination,
the ratio of (a) Consolidated Cash Flow for the period of the four prior fiscal
quarter periods ending on such date, to (b) Consolidated Interest Expense for
such period.
"Interest Period" shall have the meaning given to such term in SECTION
5.3.
"Internal Revenue Code" shall mean the Internal Revenue Code of 1936,
as amended from time to time, and any successor statute, and all rules and
regulations from time to time promulgated thereunder.
"Issuing Lender" shall mean Bank of America in its capacity as issuer
of the Letters of Credit, and its successors in such capacity.
"LIBOR Loan" shall mean, at any time, any Loan (including a Segment)
that bears interest at such time at the Adjusted LIBOR Rate.
"LIBOR Segment" means a Segment bearing interest or to bear interest at
the Adjusted LIBOR Rate.
"LIBOR Rate" means for any Interest Period with respect to any LIBOR
Loan, a rate per annum determined by the Administrative Agent pursuant to the
following formula:
18
LIBOR Rate = LIBOR Base Rate
____________________________________
1.00 - LIBOR Reserve Percentage
Where,
"LIBOR Base Rate" means, for such Interest Period:
(a) the rate per annum equal to the rate determined by
the Administrative Agent to be the offered rate that appears on the
page of the Tolerate screen (or any successor thereto) that displays an
average British Bankers Association Interest Settlement Rate for
deposits in Dollars (for delivery on the first day of such Interest
Period) with a term equivalent to such Interest Period, determined as
of approximately 11:00 a.m. (London time) two Business Days prior to
the first day of such Interest Period, or
(b) if the rate referenced in the preceding subsection
(a) does not appear on such page or service or such page or service
shall cease to be available, the rate per annum equal to the rate
determined by the Administrative Agent to be the offered rate on such
other page or other service that displays an average British Bankers
Association Interest Settlement Rate for deposits in Dollars (for
delivery on the first day of such Interest Period) with a term
equivalent to such Interest Period, determined as of approximately
11:00 a.m. (London time) two Business Days prior to the first day of
such Interest Period, or
(c) if the rates referenced in the preceding subsections
(a) and (b) are not available, the rate per annum determined by the
Administrative Agent as the rate of interest at which deposits in
Dollars for delivery on the first day of such Interest Period in same
day funds in the approximate amount of the LIBOR Loan being made,
continued or converted by Bank of America and with a term equivalent to
such Interest Period would be offered by Bank of America's London
Branch to major banks in the London interbank eurodollar market at
their request at approximately 4:00 p.m. (London time) two Business
Days prior to the first day of such Interest Period.
"LIBOR Reserve Percentage" means, for any day during any Interest
Period, the reserve percentage (expressed as a decimal, carried out to five
decimal places) in effect on such day, whether or not applicable to any Lender,
under regulations issued from time to time by the FRB for determining the
maximum reserve requirement (including any emergency, supplemental or other
marginal reserve requirement) with respect to Eurocurrency funding (currently
referred to as "Eurocurrency liabilities"). The LIBOR Rate for each outstanding
LIBOR Loan shall be adjusted automatically as of the effective date of any
change in the LIBOR Reserve Percentage.
"Lender" shall mean each financial institution signatory hereto and
each other Person that becomes a "Lender" hereunder pursuant to SECTION 14.7,
and their respective successors and permitted assigns.
"Lending Office" shall mean, with respect to any Lender, the office of
such Lender designated as its "Lending Office" on its signature page hereto or
in an Assignment and Assumption, or such other office as may be otherwise
designated in writing from time to time by such Lender to the Borrower and the
Administrative Agent. A Lender may designate separate
19
Lending Offices as provided in the foregoing sentence for the purposes of making
or maintaining different Types of Loans, and, with respect to LIBOR Loans, such
office may be a domestic or foreign branch or Affiliate of such Lender.
"Letter of Credit Exposure" shall mean, with respect to any Revolving
Lender at any time, such Revolving Lender's ratable share (based on the
proportion that its Revolving Credit Commitment bears to the Total Revolving
Credit Commitments at such time) of the sum of (i) the aggregate Stated Amount
of all Letters of Credit outstanding at such time and (ii) the aggregate amount
of all Reimbursement Obligations outstanding at such time.
"Letter of Credit Notice" shall have the meaning given to such term in
SECTION 4,2,
"Letter of Credit Sub limit" shall mean $2,000,000.00
"Letters of Credit" shall have the meaning given to such term in
SECTION 4.1.
"Leverage Ratio" shall mean, as of the last day of any fiscal quarter,
the ratio of (i) Consolidated Funded Debt as of such date (excluding up to
$2,000,000 of the outstanding amount of the unsecured Indebtedness represented
by the Shareholder Notes described on Schedule 11.2) to (ii) Annualized
Consolidated Cash Flow for the period ending on such day.
"Lien" shall mean any mortgage, pledge, hypothecation, assignment,
security interest, lien (statutory or otherwise), preference, priority, charge
or other encumbrance of any nature, whether voluntary or involuntary, including,
without limitation, the interest of any vendor or lessor under any conditional
sale agreement, title retention agreement, capital lease or any other lease or
arrangement having substantially the same effect as any of the foregoing.
"Licenses" shall mean any and all licenses (including provisional
licenses), certificates of need, accreditations, permits, franchises, rights to
conduct business, approvals (by a Governmental Authority or otherwise),
consents, qualifications, operating authority and any other authorizations.
"Limitation" shall mean a revocation, suspension, termination,
impairment, probation, limitation, non-renewal, forfeiture, declaration of
ineligibility, loss of status as a participating provider in a Third Party Payor
Arrangement, and the loss of any other rights.
"Loans" shall mean the Term Loan A, the Term Loan B, a Revolving Loan
or a Swing Line Loan, including any Segment.
"Managed Practice" shall mean any radiation therapy professional
association, professional corporation, partnership or similar Person that,
pursuant to a Service Agreement, provides radiation therapy services at a
center, clinic or other facility operated by the Borrower or any of its
Subsidiaries, or at a hospital or hospital department with which the Borrower or
any of its Subsidiaries has a Service Agreement.
"Margin Stock" shall have the meaning given to such term in Regulation
U.
20
"Material Adverse Change" shall mean a material adverse change in the
condition (financial or otherwise), operations, prospects, business, properties
or assets of the Borrower and its Subsidiaries, taken as a whole.
"Material Adverse Effect" shall mean a material adverse effect upon (i)
the condition (financial or otherwise), operations, prospects, business,
properties or assets of the Borrower and its Subsidiaries, taken as a whole,
(ii) the ability of the Borrower or any Subsidiary to perform its obligations
under this Agreement or any of the other Credit Documents to which it is a party
or (iii) the legality, validity or enforceability of this Agreement or any of
the other Credit Documents or the rights and remedies of the Administrative
Agent and the Lenders ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇▇.
"Material Contract" shall have the meaning given to such term in
SECTION 8.18.
"Maturity Date" shall mean, with respect to the Term Loan A Facility
and the Revolving Credit Facility, April 15, 2007.
"Medicaid Certification" shall mean with respect to any health care
facility, certification by HCFA or another Governmental Authority, or any Person
under contract with HCFA that such health care facility is in compliance with
all conditions of participation set forth in the Medicaid Regulations, except
where the failure to so comply would not have a Material Adverse Effect.
"Medicaid Provider Agreement" shall mean an agreement entered into
between any Person administering the Medicaid program and a health care facility
under which the health care facility agrees to provide services for Medicaid
patients in accordance with the terms of the agreement and Medicaid Regulations.
"Medicaid Regulations" shall mean collectively, (i) all federal
statutes (whether set forth in Title XIX of the Social Security Act, 42 USC
Sections 1396 et seq. or elsewhere) affecting the medical assistance program
established ▇▇▇ Title XIX of the Social Security Act, and any statutes
succeeding thereto; (ii) all applicable provisions of all federal rules,
regulations, manuals and orders of all Governmental Authorities promulgated
pursuant to or in connection with the statutes described in clause (i) above and
all federal administrative, reimbursement and other guidelines of all
Governmental Authorities having the force of law promulgated pursuant to or in
connection with the statutes described in clause (i) above; (iii) all state
statutes and plans for medical assistance enacted in connection with the
statutes and provisions described in clauses (i) and (ii) above; and (iv) all
applicable provisions of all rules, regulations, manuals and orders of all
Governmental Authorities promulgated pursuant to or in connection with the
statutes described in clause (iii) above and all state administrative,
reimbursement and other guidelines of all Governmental Authorities having the
force of law promulgated pursuant to or in connection with the statutes
described in clause (iii) above, in each case as may be amended, supplemented or
otherwise modified from time to time.
"Medicare Certification" shall mean, with respect to any health care
facility, certification by HCFA or any other Governmental Authority, or any
Person under contract with HCFA, that such health care facility is in compliance
with all the conditions of participation set forth in the
21
Medicare Regulations, except where the failure to so comply would not have a
Material Adverse Effect.
"Medicare Provider Agreement" shall mean an agreement entered into
between any Person administering the Medicare program and a health care facility
under which the health care facility agrees to provide services for Medicare
patients in accordance with the terms of the agreement and Medicare Regulations.
"Medicare Regulations" shall mean, collectively, all federal statutes
(whether set forth in Title XVIII of the Social Security Act, 42 USC Sections
1396 et seq., or elsewhere) affecting the health insurance program for the aged
and disabled established by Title XVIII of the Social Security Act and any
statutes succeeding thereto; together with all applicable provisions of all
rules, regulations, manuals and orders and administrative, reimbursement and
other guidelines having the force of law of all Governmental Authorities
(including without limitation, Health and Human Services ("HHS"), HCFA, the
Office of the Inspector General for HHS, or any Person succeeding to the
functions of any of the foregoing) promulgated pursuant to or in connection with
any of the foregoing having the force of law, in each case as may be amended,
supplemented or otherwise modified from time to time.
"Mortgages" shall mean, collectively, (i) those mortgages, deeds of
trust, leasehold mortgages, leasehold deeds of trust, deeds to secure debt,
leasehold deeds to secure debt and comparable real estate Lien documents listed
on SCHEDULE 7.1, including all amendments thereto to show, among other things,
Bank of America, as Administrative Agent, (ii) the mortgage modifications
executed and delivered pursuant to Section 7.1(a)(vii) and (iii) those mortgages
executed and delivered after the Effective Date in accordance with SECTION 9.10,
as any such mortgage may be amended, modified or supplemented from time to time.
"Mortgaged Property" shall mean, collectively, the real property,
improvements, fixtures and other items of real and personal property related
thereto and the products and proceeds thereof owned by the Borrower and its
Subsidiaries at the Effective Date or acquired thereafter and referenced in the
Mortgages, including any of such property owned or acquired by any Subsidiary
that is or is required to become a Guarantor after the Effective Date pursuant
to SECTION 9.10.
"Mortgaged Property Support Documents" shall mean, for each Mortgaged
Property, (i) the Title Policy pertaining thereto, (ii) such surveys, flood
hazard certifications and environmental assessments thereof as the
Administrative Agent may require prepared by recognized experts in their
respective fields selected by the Borrower and reasonably satisfactory to the
Administrative Agent, (iii) as to the Mortgaged Properties located in a flood
hazard area, such flood hazard insurance as the Administrative Agent may
require, (iv) appraisals conducted by nationally recognized appraisal experts
selected by the Administrative Agent in its reasonable discretion and reasonably
acceptable to the Borrower, (v) with respect to facilities leased or subleased
from third parties, such lessor's estoppel, waiver and consent certificates as
the Administrative Agent may reasonably require and the Borrower can deliver
using its best efforts and subordination, nondisturbance and attornment
agreements as the Administrative Agent may reasonably require, (vi) such owner's
or ▇▇▇▇▇▇'s affidavits as the Administrative Agent may reasonably require, (vii)
such opinions of local counsel with respect to the Mortgages, as applicable, as
the Administrative Agent may reasonably require, and (viii) such other
22
documentation as the Administrative Agent may reasonably require, in each case
as shall be in form and substance reasonably acceptable to the Administrative
Agent.
"Multiemployer Plan" means a "multiemployer plan" as defined in Section
4001(a)(3) of ERISA to which the Borrower or any ERISA Affiliate is making, or
is accruing an obligation to make, contributions or has made, or been obligated
to make, contributions within the preceding six (6) fiscal years.
"Net Cash Proceeds" shall mean in the case of any Equity Issuance, Debt
Issuance or Asset Disposition, the aggregate cash payments received by the
Borrower and its Subsidiaries less reasonable and customary fees and expenses
(including, without limitation, underwriting discounts and commissions and
out-of-pocket and reasonable attorneys' and accountants' fees) incurred by the
Borrower and its Subsidiaries in connection therewith.
"Notes" shall mean Term Loan A Notes, the Revolving Notes, the Swing
Line Notes and the Term Loan B Notes of the Borrower in substantially the form
of EXHIBITS A-1, A-2, A-3 AND A-4, respectively, together with any amendments,
modifications and supplements thereto, substitutions therefor and restatements
thereof.
"Notice of Borrowing" shall have the meaning given to such term in
SECTION 3.2(b).
"Notice of Conversion/Continuation" shall have the meaning given to
such term in SECTION 5.4(b).
"Obligations" shall mean all principal of and interest (including, to
the greatest extent permitted by law, post-petition interest) on the Loans, all
Reimbursement Obligations and all fees, expenses, indemnities and other
obligations owing, due or payable at any time by the Borrower to the
Administrative Agent, any Lender, the Issuing Lender or any other Person
entitled thereto, under this Agreement or any of the other Credit Documents.
"Original Closing Date" shall mean October 28, 1998.
"Participant" shall have the meaning given to such term in SECTION
14,7(d).
"Participation" means, (i) with respect to any Revolving Lender (other
than the Issuing Lender) and a Letter of Credit, the extension of credit
represented by the participation of such ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ in the liability of
the Issuing Lender in respect of a Letter of Credit issued by the Issuing Lender
in accordance with the terms hereof and the rights of the Issuing Lender in
respect of Reimbursement Obligations, and (ii) with respect to any Revolving
Lender (other than Bank of America) and a Swing Line Loan, the extension of
credit represented by the participation of such Lender hereunder in the rights
of Bank of America in respect of a Swing Line Loan made by Bank of America in
accordance with the terms hereof.
"PBGC" means the Pension Benefit Guaranty Corporation and any successor
thereto.
"Pension Plan" means any employee pension benefit plan within the
meaning of Section 3(2) of ERISA, other than a Multiemployer Plan, which is
subject to the provisions of Title IV of ERISA or Section 412 of the Code and
which (i) is maintained for employees of the Borrower or
23
any of its ERISA Affiliates or is assumed by the Borrower or any of its ERISA
Affiliates in connection with any Acquisition or (ii) has at any time been
maintained for the employees of the Borrower or any current or former ERISA
Affiliate.
"Permitted Acquisition" shall mean (a) any Acquisition with respect to
which all of the following conditions are satisfied: (i) each business acquired
shall be within the permitted lines of business described in SECTION 11.8, (ii)
any Capital Stock given as consideration in connection therewith shall be
Capital Stock of the Borrower, (iii) in the case of an Acquisition, involving
the acquisition of control of Capital Stock of any Person, immediately after
giving effect to such Acquisition such Person (or the surviving Person, if the
Acquisition is effected through a merger or consolidation) shall be the Borrower
or a Wholly Owned Subsidiary, (iv) the board of directors or other managing
authority (and, to the extent required, the shareholders or other stakeholders)
of each business or Person acquired shall consent to the transaction, and (v)
all of the conditions and requirements of SECTIONS 9.9 and 9.10 applicable to
such Acquisition are satisfied; or (b) any other Acquisition to which the
Required Lenders (or the Administrative Agent on their behalf shall have given
their prior written consent (which consent shall not be unreasonably withheld
and may be given subject to such additional terms and conditions as the Required
Lenders may reasonably establish) and with respect to which all of the
conditions and requirements set forth in this definition and in SECTION 9.9 and
in or pursuant to any such consent, have been satisfied or waived by the
Required Lenders (or the Administrative Agent on their behalf).
"Permitted Excluded Subsidiary Loan" shall mean a loan from the
Borrower to any Excluded Subsidiary, not to exceed $500,000 per Excluded
Subsidiary, and not to exceed $3,000,000 principal outstanding for all Excluded
Subsidiaries, (A) which is secured by the Excluded Subsidiary granting to the
Borrower a Lien on its tangible and intangible assets, including, if the
Borrower elects, real property, and which Lien (i) constitutes a first priority
perfected security interest on such assets, and (ii) has been pledged to the
Administrative Agent for the benefit of the Lenders, and (B) for which
documentation evidencing (i) and (ii) above shall have been delivered to the
Administrative Agent in form and substance acceptable to the Administrative
Agent in its reasonable discretion; provided, however, that a Permitted Excluded
Subsidiary Loan may be made to an Excluded Subsidiary only if such Excluded
Subsidiary has demonstrated to the satisfaction of the Administrative Agent that
EBITDA for such Excluded Subsidiary for the immediately preceding fiscal quarter
is greater than $1.00.
"Permitted Liens" shall have the meaning given to such term in SECTION
11.3.
"Person" shall mean any natural person, corporation, association, joint
venture, partnership, limited liability company, company, association, trust,
governmental authority or other entity.
"Pledged Interests" shall mean the Subsidiary Securities required to be
pledged as Collateral pursuant to ARTICLE VI or the terms of any Security
Agreement.
"Principal Office" means the principal office of Bank of America,
presently located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇-▇▇-▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Agency Services, or such other
office and address as the Administrative Agent may from time to time designate.
24
"Prior Credit Documents" shall have the meaning given such term in
SECTION 1.1(b).
"Prior Notes" shall mean, collectively, the promissory notes issued
prior to the Effective Date under the Second Amended Credit Agreement evidencing
the revolving credit facility thereunder.
"Pro Forma Balance Sheet" shall have the meaning given to such term in
SECTION 8.11(b).
"Pro Rata Percentage" shall mean, as of any date of determination, (i)
with respect to the Term Loan A Facility, a fraction (expressed as a percentage
carried out the ninth decimal place), the numerator of which shall be the Term
Loan A Outstandings and the denominator of which shall be the sum of the Term
Loan A Outstandings and the Term Loan B Outstandings, and (ii) with respect to
the Term Loan B Facility, a fraction (expressed as a percentage carried out the
ninth decimal place), the numerator of which shall be the Term Loan B
Outstandings and the denominator of which shall be the sum of the Term Loan A
Outstandings and the Term Loan B Outstandings.
"Projections" shall have the meaning given to such term in SECTION
8.11(c).
"Physician Notes" shall have the meaning given such term in
SECTION 11.5.
"Qualified IPO" means an initial public offering of the equity
interests of the Borrower resulting in net proceeds to the Borrower in an
aggregate amount equal to or greater than $45,000,000.
"Related Hedge Agreement" shall mean, any Hedge Agreement between the
Borrower and any Lender or any Affiliate of any Lender with respect to the
obligations of the Borrower in respect of the Loans.
"Related Parties" shall mean, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"Register" shall have the meaning given to such term in SECTION
14.7(c).
"Regulations D, U and X" shall mean Regulations D, U and X,
respectively, of the Federal Reserve Board, and any successor regulations.
"Reimbursement Approvals" shall mean, with respect to all Third Party
Payor Arrangements, any and all certifications, provider numbers, provider
agreements, participation agreements, accreditations and any other similar
agreements with or approvals by Governmental Authorities or other Persons.
"Reimbursement Obligation" shall have the meaning given to such term in
SECTION 4.4.
"Required Lenders", as at any date, shall mean (i) if there shall be
three (3) or fewer Lenders, at least two (2) of all Lenders on such date, and
(ii) if there shall be more than three (3)
25
Lenders, the Lenders on such date having Credit Exposures greater than 50% of
the aggregate Credit Exposures of all the Lenders on such date
"Required Revolving Lenders", as at any date, shall mean (i) if there
shall be three (3) or fewer Revolving Lenders, at least two (2) of all Revolving
Lenders on such date, and (ii) if there shall be more than three (3) Revolving
Lenders, the Revolving Lenders on such date having Credit Exposures with respect
to the Revolving Credit Facility greater than 50% of the aggregate Credit
Exposures with respect to the Revolving Credit Facility of all the Revolving
Lenders on such date.
"Required Term Loan A Lenders", as at any date, shall mean (i) if there
shall be three (3) or fewer Term Loan A Lenders, at least two (2) of all Term
Loan A Lenders on such date, and (ii) if there shall be more than three (3) Term
Loan A Lenders, the Term Loan A Lenders on such date having Credit Exposures
with respect to the Term Loan A Credit Facility greater than 50% of the
aggregate Credit Exposures with respect to the Term Loan A Credit Facility of
all the Term Loan A Lenders on such date.
"Required Term Loan B Lenders", as at any date, shall mean (i) if there
shall be three (3) or fewer Term Loan B Lenders, at least two (2) of all Term
Loan B Lenders on such date, and (ii) if there shall be more than three (3) Term
Loan B Lenders, the Term Loan B Lenders on such date having Credit Exposures
with respect to the Term Loan B Credit Facility greater than 50% of the
aggregate Credit Exposures with respect to the Term Loan B Credit Facility of
all the Term Loan B Lenders on such date.
"Requirement of Law" shall mean, with respect to any Person, the
charter, articles or certificate of organization or incorporation and bylaws or
other organizational or government documents of such Person and any statute,
law, treaty, rule, regulation, order, decree, writ, injunction or determination
of any arbitrator or 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 or otherwise pertaining to any or
all of the transactions contemplated by this Agreement and the other Credit
Documents.
"Reserve Requirement" shall mean, with respect to any Interest Period,
the reserve percentage (expressed as a decimal) in effect from time to time
during such Interest Period, as provided by the Federal Reserve Board, applied
for determining the maximum reserve requirements (including, without limitation,
basic, supplemental, marginal and emergency reserves) applicable to Bank of
America under Regulation D with respect to "Eurocurrency liabilities" within the
meaning of Regulation D, or under any similar or successor regulation with
respect to Eurocurrency liabilities or Eurocurrency funding.
"Restricted Payment" means (a) any dividend or other distribution,
direct or indirect, on account of any shares of any class of stock or other
equity interest of the Borrower or any Subsidiary Securities of its
Subsidiaries (other than those payable or distributable solely to the Borrower
or a Subsidiary of the Borrower) now or hereafter outstanding, except a
dividend payable solely in shares of a class of stock or other equity interests
to the holders of that class; (b) any redemption, conversion, exchange,
retirement or similar payment, purchase or other acquisition for value, direct
or indirect, or any shares of any class of stock or other equity interest of
the Borrower or any Subsidiary Securities of its Subsidiaries (other than those
payable or
26
distributable solely to the Borrower) now or hereafter outstanding; and (c) any
payment made to retire, or to obtain the surrender of, any outstanding warrants,
options or other rights to acquire shares of any class of stock or other equity
interest of the Borrower or any Subsidiary Securities of its Subsidiaries now or
hereafter outstanding.
"Revolving Credit Commitment" means, with respect to each Revolving
Lender, the obligation of such Lender to make Revolving Loans to the Borrower up
to an aggregate principal amount at any one time outstanding equal to such
▇▇▇▇▇▇'s Applicable Commitment Percentage of the Total Revolving Credit
Commitment.
"Revolving Credit Facility" means the facility described in SECTION 3.1
hereof providing for Revolving Loans to the Borrower by the Revolving Lenders in
the aggregate principal amount of the Total Revolving Credit Commitment.
"Revolving Credit Outstandings" means, as of any date of determination,
the aggregate principal amount of all Revolving Loans then outstanding.
"Revolving Lender" means each lender that has a Revolving Credit
Commitment or, following termination of the Revolving Credit Commitments, has
Revolving Credit Outstandings.
"Revolving Loan" means any Borrowing under the Revolving Credit
Facility in accordance with SECTION 3.2.
"Revolving Notes" means, collectively, the promissory notes of the
Borrower evidencing Revolving Loans executed and delivered to the Lenders as
provided in SECTION 3.4 substantially in the form of EXHIBIT A-2, with
appropriate insertions as to amounts, dates and names of Lenders.
"Second Amended Credit Agreement" shall have the meaning assigned to
such term in the Recitals to this Agreement.
"Security Agreement" shall mean the Amended and Restated Pledge and
Security Agreement made by the Borrower and the Subsidiary Guarantors in favor
of the Administrative Agent simultaneously with the Second Amended Credit
Agreement, as amended, modified or supplemented from time to time, and including
any joinders thereto executed pursuant to SECTION 9.10.
"Security Documents" shall mean the Security Agreement, the Mortgages
and all other pledge or security agreements, mortgages, deeds of trust,
assignments or other similar agreements or instruments executed and delivered by
the Borrower or any of its Subsidiaries pursuant to SECTION 9.10 or SECTION 9.11
or otherwise in connection with the transactions contemplated hereby, in each
case as amended, modified or supplemented from time to time.
"Segment" means a portion of the Term Loan A (or all thereof) or the
Term Loan B (or all thereof) with respect to which a particular interest rate is
(or is proposed to be) applicable.
27
"Service Agreement" shall mean any agreement or arrangement between the
Borrower or any of its Subsidiaries and one or more Managed Practices, hospitals
or hospital departments pursuant to which the Borrower or such Subsidiary agrees
to provide or arrange for comprehensive management, administrative and other
non-medical support services to such Managed Practice or Practices in exchange
for payment to the Borrower or such Subsidiary of a service, management or
similar fee.
"Shareholders' Agreement" shall mean that certain Shareholders'
Agreement dated as of October 4, 2000, by and among Radiation Therapy Services,
Inc., ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, M.D., ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, M.D., ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, M.D.,
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, M.D., ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, M.D. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, M.D., as
amended to the Effective Date.
"Shareholder Life Insurance Payment" shall mean the repurchase of
Capital Stock of the Borrower with the proceeds of life insurance policies
insuring the life of key personnel and employees pursuant to the terms of the
Shareholder Agreement.
"Stated Amount" shall mean, with respect to any Letter of Credit at any
time, the aggregate amount available to be drawn thereunder at such time
(regardless of whether any conditions for drawing could then be met).
"Subordinated Indebtedness" shall have the meaning given to such term
in SECTION 11.2.
"Subsidiary" shall mean, with respect to any Person, any corporation or
other Person of which more than fifty percent (50%) of the outstanding Capital
Stock having ordinary voting power to elect a majority of the board of
directors, board of managers or other governing body of such Person, is at the
time, directly or indirectly, owned or controlled by such Person and one or more
of its other Subsidiaries or a combination thereof (irrespective of whether, at
the time, securities of any other class or classes of any such corporation or
other Person shall or might have voting power by reason of the happening of any
contingency). When used without reference to a parent entity, the term
"Subsidiary" shall be deemed to refer to a Subsidiary of the Borrower, except
that unless otherwise indicated, the term "Subsidiary" shall not include any
Excluded Subsidiary.
"Subsidiary Guarantor" shall mean any Subsidiary of the Borrower that
is a guarantor under the Subsidiary Guaranty and has granted to the
Administrative Agent a Lien upon and security interest in its personal property
assets pursuant to the Security Agreement; provided that no Excluded Subsidiary
shall be a Subsidiary Guarantor.
"Subsidiary Guaranty" shall mean a Subsidiary Guaranty made by the
Subsidiary Guarantors in favor of the Administrative Agent and the Lenders, as
amended, restated, reaffirmed or supplemented from time to time, including
pursuant to that certain Reaffirmation of Subsidiary Guaranty in substantially
the form of EXHIBIT F, as amended, modified or supplemented from time to time,
and including any joinder thereto executed pursuant to SECTION 9.10.
"Subsidiary Securities" shall mean the Capital Stock of any Subsidiary,
whether or not constituting a "security" under Article 8 of the Uniform
Commercial Code as in effect in any jurisdiction.
28
"Swing Line" shall mean the revolving line of credit established by
Bank of America in favor of the Borrower pursuant to SECTION 3.8.
"Swing Line Loans" means loans made by Bank of America to the Borrower
pursuant to SECTION 3.8.
"Swing Line Note" means the promissory note of the Borrower evidencing
the Swing Line executed and delivered to Bank of America as provided in SECTION
3.4(d) substantially in the form of EXHIBIT A-3.
"Swing Line Outstandings" means, as of any date of determination, the
aggregate principal amount of all Swing Line Loans then outstanding.
"Swing Line Sublimit" means $2,000,000,00
"Synthetic Lease Obligation" shall mean the monetary obligation 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 that 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).
"Target" shall have the meaning given to such term in SECTION
9.9(b)(i).
"Term Loan A" shall mean the loan made pursuant to the Term Loan A
Facility in accordance with SECTION 2.1.
"Term Loan A Commitment" means, with respect to each Term Loan A
Lender, the obligation of such Lender to make the Term Loan A to the Borrower in
a principal amount equal to such Lender's Applicable Commitment Percentage of
the Total Term Loan A Commitment as set forth in SECTION 1.1(c).
"Term Loan A Facility" means the facility described in SECTION 2.1
providing for a Term Loan A to the Borrower by the Term Loan A Lenders in the
original principal amount of $25,000,000, $22,500,000 of which is outstanding as
of the Effective Date.
"Term Loan A Lenders" means each Lender that has a Term Loan A
Commitment or, following termination of the Term Loan A Commitments, has Term
Loan A Outstandings.
"Term Loan A Outstandings" means, as of any date of determination, the
aggregate principal amount of the Term Loan A then outstanding and all interest
accrued thereon.
"Term Loan A Notes" means, collectively, the promissory notes of the
Borrower evidencing the Term Loan A executed and delivered to the Term Loan A
Lenders as provided in SECTION 2.4 substantially in the form OF EXHIBIT A-1,
with appropriate insertions as to amounts, dates and names of Term Loan A
Lenders.
"Term Loan B" means the loan made pursuant to the Term Loan B Facility
in accordance with SECTION 2.2.
29
"Term Loan B Commitment" means, with respect to each Term Loan B
Lender, the obligation of such Lender to make the Term Loan B to the Borrower in
a principal amount equal to such Lender's Applicable Commitment Percentage of
the Total Term Loan B Commitment as set forth in SECTION 1.1(d).
"Term Loan B Facility" means the facility described in SECTION 2.2
providing for an advance of the Term Loan B to the Borrower by the Term Loan B
Lenders in the original principal amount of $40,000,000.
"Term Loan B Lender" means each Lender that has a Term Loan B
Commitment or, following termination of the Term Loan B Commitments, has Term
Loan B Outstandings.
"Term Loan B Maturity Date" means, with respect to the Term Loan B
Facility, March 31,2009.
"Term Loan B Note" means a promissory note made by the Borrower in
favor of a Term Loan B Lender evidencing the portion of the Term Loan B made by
such Term Loan B Lender, substantially in the form of EXHIBIT A-4.
"Term Loan B Outstandings" means, as of any date of determination, the
aggregate principal amount of the Term Loan B then outstanding and all interest
accrued thereon.
"Term Loan B Termination Date" means the Term Loan B Maturity Date or
such earlier date of termination of the Term Loan B Commitments pursuant to
SECTION 12.2.
"Termination Date" shall mean the Maturity Date or such earlier date of
termination of the Revolving Credit Commitments and Term Loan A Commitments
pursuant to SECTION 3.5 or SECTION 12.2.
"Termination Event" shall mean: (i) a "Reportable Event" described in
Section 4043 of ERISA and the regulations issued thereunder (unless the notice
requirement has been waived by applicable regulation); or (ii) the withdrawal of
the Borrower or any ERISA Affiliate from a Pension Plan during a plan year in
which it was a "substantial employer" as defined in Section 4001(a)(2) of ERISA
or was deemed such under Section 4062(e) of ERISA; or (iii) the termination of a
Pension Plan, the filing of a notice of intent to terminate a Pension Plan or
the treatment of a Pension Plan amendment as a termination under Section 4041 of
ERISA; or (iv) the institution of proceedings to terminate a Pension Plan by the
PBGC; or (v) any other event or condition which would constitute grounds under
Section 4042(a) of ERISA for the termination of, or the appointment of a trustee
to administer, any Pension Plan; or (vi) the partial or complete withdrawal of
the Borrower or any ERISA Affiliate from a Multiemployer Plan; or (vii) the
imposition of a Lien pursuant to Section 412 of the Code or Section 302 of
ERISA; or (viii) any event or condition which results in the reorganization or
insolvency of a Multiemployer Plan under Section 4241 or Section 4245 of ERISA,
respectively; or (ix) any event or condition which results in the termination of
a Multiemployer Plan under Section 4041A of ERISA or the institution by the PBGC
of proceedings to terminate a Multiemployer Plan under Section 4042 of ERISA; or
(x) any event or condition with respect to any Employee Benefit Plan which is
regulated by any Foreign Benefit Law that results in the termination of such
Employee Benefit
30
Plan or the revocation of such Employee Benefit Plan's authority to operate
under the applicable Foreign Benefit Law.
"Third Party Payor Arrangements" shall mean any and all arrangements
with Medicare, Medicaid, CHAMPUS and any other Governmental Authority or
quasi-public agency, Blue Cross, Blue Shield, any managed care plans and
organizations including, without limitation, health maintenance organizations
and preferred provider organizations, private commercial insurance companies and
any similar third party arrangements, plans or programs for payment or
reimbursement in connection with health care services, products or supplies.
"Title Policy" shall mean, with respect to the Mortgaged Property, the
mortgagee title insurance policy (together with such endorsements as the
Administrative Agent may reasonably require) issued to the Administrative Agent
in respect of such Mortgaged Property by an insurer selected by the Borrower and
reasonably acceptable to the Administrative Agent, insuring the Lien of the
Administrative Agent on the Mortgaged Property to be duly perfected and of first
priority, subject only to exceptions as shall be acceptable to the
Administrative Agent.
"Total Revolving Credit Commitment" means a principal amount equal to
$70,000,000, as reduced or increased from time to time in accordance with
SECTION 3.5 OR 3.6.
"Total Term Loan A Commitment" means an original principal amount equal
to $25,000,000.
"Total Term Loan B Commitment" means an original principal amount equal
to $40,000,000.
"Type" shall mean any type of Loan (i.e., a Base Rate Loan or a LIBOR
Loan).
"Unutilized Commitment" shall mean, with respect to any Revolving
Lender at any time, such Revolving Lender's Revolving Credit Commitment at such
time less the sum of (i) the aggregate principal amount of all Revolving Credit
Outstandings made by such Revolving Lender at such time and (ii) such Revolving
▇▇▇▇▇▇'s Letter of Credit Exposure at such time plus (iii) such Revolving
Lender's ratable share (based on its Applicable Commitment Percentage of the
Total Revolving Credit Commitment) of Swing Line Outstandings constituting its
Participation therein.
"Wholly Owned" shall mean, with respect to any Subsidiary of any
Person, that 100% of the outstanding Capital Stock of such Subsidiary is owned,
directly or indirectly, by such Person.
1.3 Accounting Terms. Except as specifically provided otherwise in
this Agreement, all accounting terms used herein that are not specifically
defined shall have the meanings customarily given them in accordance with GAAP.
Notwithstanding anything to the contrary in this Agreement, for purposes of
calculation of the financial covenants set forth in ARTICLE X or utilized in
determining the amount of Allowable Tax Distributions, all accounting
determinations and computations hereunder shall be made in accordance with GAAP
as in effect as of the date of this Agreement applied on a basis consistent with
the application used in preparing the most recent financial statements of the
Borrower referred to in SECTION 8.11(a) (including the use of the equity method
of accounting for investments in joint ventures and partnerships not
31
constituting Subsidiaries). If at any time any change in GAAP would affect the
computation of any financial ratio or requirement set forth in any Credit
Document, and either the Borrower or the Required Lenders shall so request, the
Administrative Agent, the Lenders and the Borrower shall negotiate in good faith
to amend such ratio or requirement to preserve the original intent thereof in
light of such change in GAAP (subject to the approval of the Required Lenders);
provided that, until so amended, (i) such ratio or requirement shall continue to
be computed in accordance with GAAP prior to such change therein and (ii) the
Borrower shall provide to the Administrative Agent and the Lenders financial
statements and other documents required under this Agreement or as reasonably
requested hereunder setting forth a reconciliation between calculations of such
ratio or requirement made before and after giving effect to such change in GAAP.
1.4 Other Terms; Construction. Unless otherwise specified or
unless the context otherwise requires, all references herein to sections,
annexes, schedules and exhibits are references to sections, annexes, schedules
and exhibits in and to this Agreement, and all terms defined in this Agreement
shall have the defined meanings when used in any other Credit Document or any
certificate or other document made or delivered pursuant hereto. All references
herein to the Lenders or any of them shall be deemed to include the Issuing
Lender unless specifically provided otherwise or unless the context otherwise
requires.
1.5 Accounting for Derivatives. In making any computation or
determining any amount pursuant to ARTICLE 10 by reference to any item appearing
on the balance sheet or other financial statement of the Borrower and its
Subsidiaries, all adjustments to such computation or amount resulting from the
application of FASB 133 shall be disregarded.
ARTICLE II
AMOUNT AND TERMS OF THE TERM LOAN A AND TERM LOAN B
2.1 Term Loan A.
(a) Funding. The Borrower hereby acknowledges that the
Term Loan A has been advanced and is outstanding in the principal
amount of $22,500,000 as of the Effective Date (after giving effect to
the required payment made on the Effective Date). The principal amount
of each Segment of the Term Loan A outstanding hereunder from time to
time shall bear interest and the Term Loan A shall be repayable as
herein provided. No amount of the Term Loan A repaid or prepaid by the
Borrower may be reborrowed hereunder, and no subsequent advances of
Term Loan A amounts shall be made by any Lender after the initial such
advance.
(b) Payment of Principal. The principal amount of the
Term Loan A shall be repaid in thirteen (13) consecutive quarterly
installments on the dates and in the amounts set forth below:
32
DATE AMOUNT
---- ------
June 30, 2004 $1,250,000.00
September 30, 2004 $1,250,000.00
December 31, 2004 $1,250,000.00
March 31, 2005 $1,250,000.00
June 30, 2005 $1,250,000.00
September 30, 2005 $1,250,000.00
December 31, 2005 $1,250.000.00
March 31, 2006 $1,250,000.00
June 30, 2006 $1,250,000.00
September 30, 2006 $1,250,000.00
December 31, 2006 $1,250,000.00
March 31, 2007 $1,250,000.00
Maturity Date All remaining
principal outstanding
provided, however, that the entire amount of Term Loan A Outstandings
shall be due and payable in full on the Termination Date.
2.2 Term Loan B.
(a) Funding. Subject to the terms and conditions of this
Agreement, each Term Loan B Lender severally agrees to make an advance
of its Term Loan B Commitment to the Borrower on the Effective Date,
and from the Effective Date to the Term Loan B Maturity Date, Convert
and Continue Segments from time to time in accordance with the terms
hereof. The principal amount of each Segment of the Term Loan B
outstanding hereunder from time to time shall bear interest and the
Term Loan B shall be repayable as herein provided. No amount of the
Term Loan B repaid or prepaid by the Borrower may be reborrowed
hereunder, and no subsequent advance under the Term Loan B Facility
shall be allowed after the initial advance of the Term Loan B on the
Effective Date. Segments of the Term Loan B may be Base Rate Segments
or LIBOR Segments at the Borrower's election, as provided herein.
(b) Borrowing. Not later than 11:00 A.M. Charlotte time,
on the Effective Date, each Term Loan B Lender shall, pursuant to the
terms and subject to the conditions of this Agreement, make the amount
of its Term Loan B Commitment available by wire transfer to the
Administrative Agent. Such wire transfer shall be directed to the
Administrative Agent at the Administrative Agent's office and shall be
in the form of same day funds in Dollars. The amount so received by the
Administrative Agent shall, subject to the terms and conditions of this
Agreement, including without limitation the satisfaction of all
applicable conditions in SECTION 7.1, be made available to the Borrower
by delivery of the proceeds thereof as shall be directed by the
Authorized Officer of the Borrower and reasonably acceptable to the
Administrative Agent. The initial Borrowing of the Term Loan B may be a
LIBOR Segment, a Base Rate Segment, or both; provided that (i)
notwithstanding anything to the contrary in SECTION 5.4 or otherwise,
any LIBOR Segment to be a portion of the initial Borrowing of the Term
Loan B, and each Conversion to or Continuation of a LIBOR Segment made
during the period of fourteen days after the Closing Date, may only be
for a period beginning on the date such LIBOR Segment is initially
advanced, or on the date any Segment is Continued as or Converted
33
into a LIBOR Segment, and ending on the date that is one week
thereafter, and (ii) if the Borrower desires that any portion of the
initial Borrowing of the Term Loan B is advanced as a LIBOR Segment,
the Administrative Agent shall make such Borrowing as a LIBOR Segment
only if, not later than three Business Days prior to the date that is
then anticipated to be the Effective Date, the Administrative Agent has
received from the Borrower a Notice of Borrowing with respect thereto,
together with the Borrower's written acknowledgement in form and
substance satisfactory to the Administrative Agent that the provisions
of SECTION 5.11 hereof shall apply to any failure by the Borrower to
borrow on the date set forth in such Notice of Borrowing any or all of
the amounts specified in such Notice of Borrowing.
(c) Payment of Principal. The principal amount of the
Term Loan B shall be repaid in twenty (20) consecutive quarterly
installments on the dates and in the amounts set forth below;
DATE AMOUNT
------------------------- -------------
June 30, 2004 $ 500,000.00
September 30, 2004 $ 500,000.00
December 31, 2004 $ 500,000.00
March 31, 2005 5 500,000.00
June 30, 2005 $ 500,000.00
September 30, 2005 $ 500,000.00
December 31, 2005 $ 500,000.00
March 31, 2006 $ 500,000.00
June 30, 2006 5 500,000.00
September 30, 2006 $ 500,000.00
December 31, 2006 $ 500,000.00
March 31, 2007 $ 500,000.00
June 30, 2007 $4,000,000.00
September 30, 2007 $4,000,000.00
December 31, 2007 $4,000,000.00
March 31, 2008 $4,000,000.00
June 30, 2008 $4,500,000.00
September 30, 2008 $4,500,000.00
December 31, 2008 $4,500,000.00
Term Loan B Maturity Date All remaining
principal outstanding
2.3 Prepayments.
(a) Voluntary Prepayments. The Borrower may prepay the
Term Loan A and the Term Loan B, but only on a pro rata basis based
upon the Pro Rata Percentages, in whole or in part from time to time on
any Business Day, without penalty or premium, upon at least three (3)
Business Days' telephonic notice from an Authorized Officer (effective
upon receipt) to the Administrative Agent prior to 10:30 A.M., which
notice shall be irrevocable. The Authorized Officer shall provide the
Administrative Agent
34
written confirmation of each such telephonic notice but failure to
provide such confirmation shall not affect the validity of such
telephonic notice. Any prepayment, whether of a Base Rate Segment or a
LIBOR Segment, shall be made at a prepayment price equal to (i) the
amount of principal to be prepaid, plus (ii) all accrued and unpaid
interest on the amount so prepaid, to the date of prepayment, plus any
amounts due pursuant to SECTION 3.6(d). All prepayments under this
SECTION 2.3(a) shall be made in the minimum principal amount of
$500,000, or, if greater, an integral multiple of $100,000 in excess
thereof (or in the entire remaining principal balance of the Term Loan
A and Term Loan B, as applicable), and all such prepayments of
principal shall be applied to installments of principal in inverse
order of their maturities.
All payments of the Term Loan A and the Term Loan B shall be
applied first to pay all Base Rate Segments before any LIBOR Segment is
paid. The provisions of SECTION 3.6(e) shall apply to each payment or
prepayment of a LIBOR Loan made pursuant to this SECTION 2.3(a) on a
day other than the last day of the Interest Period applicable thereto.
(b) Mandatory Prepayments. In addition to the required
payments of principal of the Term Loan A and the Term Loan B set forth
in SECTIONS 2.1 (b) and 2.2(c), respectively and any optional payments
of principal of the Term Loan A and the Term Loan B effected under
SECTION 2.3(a) above, the Borrower shall make the following required
prepayments of the Term Loan A and Term Loan B, on a pro rata basis in
accordance with their respective Pro Rata Percentages times the amount
required to be prepaid, as provided below, each such payment to be made
to the Administrative Agent for the benefit of the Lenders within the
time period and in the amounts specified below:
(i) The Borrower will prepay the Term Loan A
Facility and the Term Loan B Facility in an amount equal to
100% of the Net Cash Proceeds from any Asset Disposition (less
any taxes to the extent such taxes are paid) at the times and
in the amounts described in the following sentence, and will
deliver to the Administrative Agent, concurrently with such
prepayment, a certificate, signed by a Financial Officer in
form and substance reasonably satisfactory to the
Administrative Agent and setting forth the calculation of such
Net Cash Proceeds. With respect to any Segment maturing during
the ninety-day period following such Asset Disposition, the
prepayment shall be payable upon maturity of such Segment and
shall be in the principal amount of such Segment; provided,
however, that in the event that at the end of such ninety day
period the aggregate amount of such prepayment (the "Prepaid
Amount") is less than 100% of the Net Cash Proceeds from such
Asset Disposition (the "Required Amount"), the difference
between the Required Amount and the Prepaid Amount shall be
immediately due and payable; provided, further, however, that
at the election of the Administrative Agent or the Required
Term Loan A Lenders and the Required Term Loan B Lenders, upon
the occurrence of a Default or Event of Default which has not
been cured within the applicable cure period, the entire
prepayment amount shall be immediately due and payable without
regard to the preceding provisions. Notwithstanding the
foregoing, if the aggregate of all Asset
35
Dispositions made during any calendar year do not exceed
$500,000, no prepayment shall be required with respect to such
Asset Disposition.
(ii) The Borrower will prepay the Term Loan A
Facility and the Term Loan B Facility in an amount equal to
100% of the Net Cash Proceeds from any Equity Issuance (other
than a Qualified IPO) and 100% of the Net Cash Proceeds from
any Debt Issuance described in SECTION 11.2(v) at the times
and in the amounts described in the following sentence and
will deliver to the Administrative Agent, concurrently with
such prepayment, a certificate, signed by a Financial Officer
in form and substance reasonably satisfactory to the
Administrative Agent and setting forth the calculation of such
Net Cash Proceeds. With respect to any Segment maturing during
the ninety-day period following such Equity Issuance or Debt
Issuance, the prepayment shall be payable upon maturity of
such Segment and shall be in the principal amount of such
Segment; provided, however, that in the event that at the end
of such ninety day period the aggregate amount of such
prepayment (the "Prepaid Amount") is less than 100% of the Net
Cash Proceeds from such Equity Issuance or Debt Issuance (the
"Required Amount"), the difference between the Required Amount
and the Prepaid Amount shall be immediately due and payable;
provided, further, however, that at the election of the
Administrative Agent or the Required Term Loan A Lenders and
the Required Term Loan B Lenders, upon the occurrence of a
Default or Event of Default which has not been cured within
the applicable cure period, the entire prepayment amount shall
be immediately due and payable without regard to the preceding
provisions. Notwithstanding the foregoing, if the aggregate of
all Equity Issuances made during any calendar year do not
exceed $500,000, no prepayment shall be required with respect
to such Equity Issuances.
(iii) Not later than one hundred eighty (180) days
(or such longer period as the Required Term Loan A Lenders and
the Required Term Loan B Lenders may determine) after its
receipt of any proceeds of insurance, condemnation award or
other compensation in respect of any Casualty Event (and in
any event upon its determination not to repair or replace any
property subject to such Casualty Event), the Borrower will
prepay the Term Loan A Facility and the Term Loan B Facility
in an amount equal to 100% of the Net Cash Proceeds from such
Casualty Event (less any amounts theretofore applied to the
repair or replacement of property subject to such Casualty
Event) and will deliver to the Administrative Agent,
concurrently with such prepayment, a certificate signed by a
Financial Officer, in form and substance reasonably
satisfactory to the Administrative Agent, setting forth the
calculation of such Net Cash Proceeds; provided, however, (i)
nothing in this paragraph shall be deemed to limit or
otherwise affect any right of the Administrative Agent herein
or in any of the other Credit Documents to receive and hold
such proceeds as loss payee and to disburse the same to the
Borrower upon the terms hereof or thereof, or any obligation
of the Borrower and each of its Subsidiaries herein or in any
of the other Credit Documents to remit any such proceeds to
the Administrative Agent upon its receipt thereof, and (ii)
any and all such proceeds received or held by the
Administrative Agent or the Borrower or any of its
Subsidiaries during the
36
continuance of an Event of Default (regardless of any proposed
or actual use thereof for repair or replacement) shall be
applied to prepay the Term Loan A Facility and the Term Loan B
Facility.
(iv) The Borrower will prepay the Term Loan A
Facility and the Term Loan B Facility in an amount equal to
50% of the Net Cash Proceeds from any Qualified IPO at the
times and in the amounts described in the following sentence
and will deliver to the Administrative Agent, concurrently
with such prepayment, a certificate, signed by a Financial
Officer in form and substance reasonably satisfactory to the
Administrative Agent and setting forth the calculation of such
Net Cash Proceeds. With respect to any Segment maturing during
the ninety-day period following such Qualified IPO, the
prepayment shall be payable upon maturity of such Segment and
shall be in the principal amount of such Segment; provided,
however, that in the event that at the end of such ninety day
period the aggregate amount of such prepayment (the "Prepaid
Amount") is less than 50% of the Net Cash Proceeds from such
Qualified IPO (the "Required Amount"), the difference between
the Required Amount and the Prepaid Amount shall be
immediately due and payable; provided, further, however, that
at the election of the Administrative Agent or the Required
Term Loan A Lenders and the Required Term Loan B Lenders, upon
the occurrence of a Default or Event of Default which has not
been cured within the applicable cure period, the entire
prepayment amount shall be immediately due and payable without
regard to the preceding provisions.
(v) Each year the Borrower shall prepay the
outstanding principal amount of the Term Loan A Facility and
the Term Loan B Facility in an amount equal to 75% of Excess
Cash Flow for the preceding fiscal year, at the times and in
the amounts described in the following sentence and will
deliver to the Administrative Agent, concurrently with the
delivery of its Compliance Certificate with respect to such
preceding fiscal year, a certificate, signed by a Financial
Officer in form and substance reasonably satisfactory to the
Administrative Agent, setting forth the calculation of such
Excess Cash Flow. With respect to any Segment maturing during
the ninety-day period following date of delivery of the
calculation of Excess Cash Flow, the prepayment shall be
payable upon maturity of such Segment and shall be in the
principal amount of such Segment; provided, however, that in
the event that at the end of such ninety day period the
aggregate amount of such prepayment (the "Prepaid Amount") is
less than 75% of Excess Cash Flow (the "Required Amount"), the
difference between the Required Amount and the Prepaid Amount
shall be immediately due and payable; provided, further,
however, that at the election of the Administrative Agent or
the Required Term Loan A Lenders and the Required Term Loan B
Lenders, upon the occurrence of a Default or Event of Default
which has not been cured within the applicable cure period,
the entire prepayment amount shall be immediately due and
payable without regard to the preceding provisions; provided,
further, however, that in the event that the Compliance
Certificate referred to in the preceding sentence shall
reflect a Leverage Ratio of less than
37
2.00 to 1.00 for such preceding fiscal year, no prepayment
from Excess Cash Flow shall be required under this section.
The Administrative Agent shall give each Lender, within one (1)
Business Day, telefacsimile notice of each notice of prepayment received by it
and described in CLAUSES (i), (ii), (iii), (iv) AND (v) of this SECTION 2.3(b).
All mandatory prepayments made pursuant to this SECTION 2.3(b) shall be applied
to installments of principal in inverse order of their maturities (as adjusted
to give effect to any prior payments or prepayments of principal). Without
limiting the foregoing, in the event that at any time a mandatory prepayment of
the Term Loan A Facility and the Term Loan B Facility would otherwise be
required under this SECTION 2.3 but each of the Term Loan A and the Term Loan B
shall be or has been fully paid prior to the application of all funds otherwise
required to be so utilized, such amount not utilized to prepay the Term Loan A
Facility and the Term Loan B Facility shall be applied to the prepayment of
Revolving Loans and the reduction of the Total Revolving Credit Commitment as
provided in SECTION 3.6.
All payments of the Term Loan A and the Term Loan B shall be applied
first to pay all Base Rate Segments before any LIBOR Segment is paid. The
provisions of SECTION 3.6(e) shall apply to each payment or prepayment of a
LIBOR Loan made pursuant to this SECTION 2.3(b) on a day other than the last day
of the Interest Period applicable thereto.
2.4 Notes. (a) The amount of the Term Loan A made by each Lender
shall be evidenced by a Term Loan A Note appropriately completed in
substantially the form of EXHIBIT A-1.
(b) Each Term Loan A Note issued to a Term Loan A Lender shall (i)
be executed by the Borrower, (ii) be payable to the order of such Lender, (iii)
be dated as of the Effective Date (or, in the case of a Term Loan A Note issued
after the Effective Date, dated the effective date of the applicable Assignment
and Assumption), (iv) be in a stated principal amount equal to the Term Loan A
Outstanding allocable to such Lender, (v) bear interest in accordance with the
provisions of SECTION 5.1, as the same may be applicable from time to time to
the Term Loan A made by such Lender, and (vi) be entitled to all of the benefits
of this Agreement and the other Credit Documents and subject to the provisions
hereof and thereof. The Term Loan A Notes shall be issued in substitution of and
replacement of the term loan notes issued in connection with the Second Amended
Credit Agreement.
(c) The amount of the Term Loan B made by each Lender shall be
evidenced by a Term Loan B Note appropriately completed in substantially the
form of EXHIBIT A-4.
(d) Each Term Loan B Note issued to a Term Loan B Lender shall (i)
be executed by the Borrower, (ii) be payable to the order of such Term Loan B
Lender, (iii) be dated as of the Effective Date (or, in the case of a Term Loan
B Note issued after the Effective Date, dated the effective date of the
applicable Assignment and Assumption), (iv) be in a stated principal amount
equal to the Term Loan B Outstanding allocable to such Lender, (v) bear interest
in accordance with the provisions of SECTION 5.1, as the same may be applicable
from time to time to the Term Loan B made by such Term Loan B Lender, and (vi)
be entitled to all of the benefits of this Agreement and the other Credit
Documents and subject to the provisions hereof and thereof.
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(e) Each Lender will record on its internal records the amount and
Type of each Loan made by it and each payment received by it in respect thereof
and will, in the event of any transfer of any of its Notes, either endorse on
the reverse side thereof or on a schedule attached thereto (or any continuation
thereof) the outstanding principal amount and Type of the Loans evidenced
thereby as of the date of transfer or provide such information on a schedule to
the Assignment and Assumption relating to such transfer; provided, however, that
the failure of any Lender to make any such recordation or provide any such
information, or any error therein, shall not affect the Borrower's obligations
under this Agreement or the Notes.
ARTICLE III
AMOUNT AND TERMS OF THE REVOLVING LOANS
3.1 Revolving Credit Commitments. Each Revolving Lender severally
agrees, subject to and on the terms and conditions of this Agreement, to make
Revolving Loans to the Borrower, from time to time on any Business Day during
the period from and including the Effective Date to but not including the
Termination Date, in an aggregate principal amount at any time outstanding not
greater than the excess, if any, of its Revolving Credit Commitment at such time
over its Letter of Credit Exposure at such time, provided that no Borrowing of
Revolving Loans shall be made if, immediately after giving effect thereto, the
sum of (x) the aggregate principal amount of Revolving Credit Outstandings at
such time, (y) the Swing Line Outstandings at such time, and (z) the aggregate
Letter of Credit Exposure of all Revolving Lenders at such time would exceed the
aggregate Revolving Credit Commitments of all Lenders at such time. Subject to
and on the terms and conditions of this Agreement, the Borrower may borrow,
repay and reborrow Revolving Loans.
3.2 Borrowings. (a) The Revolving Loans shall, at the option of
the Borrower and subject to the terms and conditions of this Agreement, be
either Base Rate Loans or LIBOR Loans, provided that all Revolving Loans
comprising the same Borrowing shall, unless otherwise specifically provided
herein, be of the same Type.
(b) In order to make a Borrowing (other than Borrowings involving
continuations or Conversions of outstanding Revolving Loans which shall be made
pursuant to SECTION 5.4), an Authorized Officer will give the Administrative
Agent telephonic notice not later than 11:00 a.m., Charlotte time, three (3)
Business Days prior to each Borrowing to be comprised of LIBOR Loans and on the
Business Day of each Borrowing to be comprised of Base Rate Loans, which notice
shall be irrevocable. The Authorized Officer shall provide the Administrative
Agent written confirmation of each such telephonic notice but failure to provide
such confirmation shall not affect the validity of such telephonic notice;
provided, however, that requests for the Borrowing of any Revolving Loans to be
made on the Effective Date may, at the discretion of the Administrative Agent,
be given later than the times specified hereinabove. Each such written notice
(each, a "Notice of Borrowing") shall be given in the form of EXHIBIT B-1 and
each Notice of Borrowing shall specify (1) the aggregate principal amount and
initial Type of the Revolving Loans to be made pursuant to such Borrowing, (2)
in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be
applicable thereto, and (3) the requested date of such Borrowing (the "Borrowing
Date"), which shall be a Business Day. Upon its receipt of a
39
Notice of Borrowing, the Administrative Agent will promptly notify each
Revolving Lender of the proposed Borrowing. Notwithstanding anything to the
contrary contained herein:
(i) the aggregate principal amount of each Borrowing
comprised of Base Rate Loans other than a Borrowing (x) solely to repay
a then outstanding Swing Line Loan in accordance with SECTION 3.8(d),
which may be in the amount of such Swing Line Loan or (y) solely to
satisfy any Reimbursement Obligation under SECTION 4.4, which may be in
the amount of such Reimbursement Obligation, shall not be less than
$500,000 or, if greater, an integral multiple of $100,000 in excess
thereof (or, if less, in the amount of the aggregate Unutilized
Commitments), and the aggregate principal amount of each Borrowing
comprised of LIBOR Loans shall not be less than $1,000,000 or, if
greater, an integral multiple of $100,000 in excess thereof;
(ii) if the Borrower shall have failed to designate the
Type of Revolving Loans comprising a Borrowing, the Borrower shall be
deemed to have requested a Borrowing comprised of Base Rate Loans; and
(iii) if the Borrower shall have failed to select the
duration of the Interest Period to be applicable to any Borrowing of
LIBOR Loans, then the Borrower shall be deemed to have selected an
Interest Period with a duration of one month.
(c) Not later than 1:00 p.m., Charlotte time, on the requested
Borrowing Date, each Revolving Lender will make available to the Administrative
Agent at its office referred to in SECTION 14.5 (or at such other location as
the Administrative Agent may designate) an amount, in Dollars and in immediately
available funds equal to the amount of the Revolving Loan to be made by such
Revolving Lender. To the extent the Revolving Lenders have made such amounts
available to the Administrative Agent as provided hereinabove, the
Administrative Agent will make the aggregate of such amounts available to the
Borrower in accordance with SECTION 3,3(a) and in like funds as received by the
Administrative Agent.
3.3 Disbursements; Funding Reliance; Domicile of Loans. (a) The
Borrower hereby authorizes the Administrative Agent to disburse the proceeds of
each Borrowing in accordance with the terms of any written instructions from any
of the Authorized Officers, provided that the Administrative Agent shall not be
obligated under any circumstances to forward amounts to any account not listed
in an Account Designation Letter. The Borrower may at any time deliver to the
Administrative Agent an Account Designation Letter listing any additional
accounts or deleting any accounts listed in a previous Account Designation
Letter.
(b) Each Revolving Lender may, at its option, make and maintain
any Revolving Loan at, to or for the account of any of its Lending Offices,
provided that any exercise of such option shall not affect the obligation of the
Borrower to repay such Loan to or for the account of such Revolving Lender in
accordance with the terms of this Agreement.
3.4 Notes. (a) The Revolving Loans made by each Revolving Lender
shall be evidenced by a Revolving Note appropriately completed in substantially
the form of EXHIBIT A-2. Revolving Notes shall be issued in substitution of and
replacement for the Prior Notes.
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(b) Each Revolving Note issued to a Lender shall (i) be executed
by the Borrower, (ii) be payable to the order of such Revolving Lender, (iii) be
dated as of the Effective Date (or, in the case of a Revolving Note issued after
the Effective Date, dated the effective date of the applicable Assignment and
Assumption), (iv) be in a stated principal amount equal to such Revolving
Lender's Revolving Credit Commitment, (v) bear interest in accordance with the
provisions of SECTION 5.1, as the same may be applicable from time to time to
the Revolving Loans made by such Revolving Lender, and (vi) be entitled to all
of the benefits of this Agreement and the other Credit Documents and subject to
the provisions hereof and thereof.
(c) Each Revolving Lender will record on its internal records the
amount and Type of each Revolving Loan made by it and each payment received by
it in respect thereof and will, in the event of any transfer of any of its
Revolving Notes, either endorse on the reverse side thereof or on a schedule
attached thereto (or any continuation thereof) the outstanding principal amount
and Type of the Revolving Loans evidenced thereby as of the date of transfer or
provide such information on a schedule to the Assignment and Assumption relating
to such transfer; provided, however, that the failure of any Revolving Lender to
make any such recordation or provide any such information, or any error therein,
shall not affect the Borrower's obligations under this Agreement or the
Revolving Notes.
(d) The Swing Line Outstandings shall be evidenced by a separate
Swing Line Note in the form of EXHIBIT A-3 payable to the order of the Bank of
America in the amount of the Swing Line, which Swing Line Note shall be dated
the Effective Date and shall be duly completed, executed and delivered by the
Borrower. The Swing Line Note shall be issued in substitution of and replacement
for the Swing Line Note issued under the Second Amended Credit Agreement.
3.5 Termination and Reduction of Revolving Credit Commitments. (a)
The Revolving Credit Commitments shall be automatically and permanently
terminated on the Termination Date.
(b) At any time and from time to time after the date hereof, upon
not less than five (5) Business Days' prior written notice to the Administrative
Agent, the Borrower may terminate in whole or reduce in part the aggregate
Unutilized Commitments, provided that any such partial reduction shall be in an
aggregate amount of not less than $1,000,000 or, if greater, an integral
multiple thereof. The amount of any termination or reduction made under this
subsection (b) may not thereafter be reinstated.
(c) Each reduction of the Revolving Credit Commitments pursuant to
this SECTION 3.5 shall be applied ratably among the Revolving Lenders according
to their respective Revolving Credit Commitments.
3.6 Mandatory Payments and Prepayments. (a) Except to the extent
due or paid sooner pursuant to the provisions of this Agreement, the aggregate
outstanding principal of the Revolving Loans and the Swing Line Loans shall be
due and payable in full on the Maturity Date.
(b) In the event that, at any time, the sum of (x) the Revolving
Credit Outstandings, (y) the aggregate principal amount of all Swing Line
Outstandings at such time, and (z) the
41
aggregate Letter of Credit Exposure of all Revolving Lenders at such time shall
exceed the aggregate Revolving Credit Commitments of all Revolving Lenders at
such time (after giving effect to any concurrent termination or reduction
thereof), the Borrower will immediately prepay the outstanding principal amount
of the Revolving Loans and Swing Line Loans in the amount of such excess;
provided that, to the extent such excess amount is greater than the aggregate
principal amount of Revolving Loans and Swing Line Loans outstanding immediately
prior to the application of such prepayment, the amount so prepaid shall be
retained by the Administrative Agent and held in the Cash Collateral Account as
cover for Letter of Credit Exposure, as more particularly described in SECTION
4.8, and thereupon such cash shall be deemed to reduce the aggregate Letter of
Credit Exposure by an equivalent amount.
(c) In the event each of the Term Loan A and the Term Loan B has
been fully repaid, the Borrower will prepay the outstanding principal amount of
the Revolving Credit Loans and the Swing Line Loans in the amounts and under the
provisions set forth in SECTION 2.3(b) except that references therein to the
Required Term Loan A Lenders or the Required Term Loan B Lenders shall be deemed
to mean the Required Revolving Lenders.
(d) Each prepayment of the Revolving Loans and the Swing Line
Loans made pursuant to subsection (c) above shall be applied (i) first, to
reduce the outstanding principal amount of the Revolving Loans and the Swing
Line Loans, and (ii) second, to the extent of any excess remaining after
application as provided in clause (i) above, to pay any outstanding
Reimbursement Obligations, and thereafter to cash collateralize Letter of Credit
Exposure pursuant to SECTION 4.8, and shall be applied first to prepay all Base
Rate Loans before any LIBOR Loans are prepaid. Each payment or prepayment
pursuant to the provisions of this Section shall be applied ratably among the
Lenders holding the Revolving Loans being prepaid, in proportion to the
principal amount held by each.
(e) Each payment or prepayment of a LIBOR Loan (including any
LIBOR Segment) made pursuant to the provisions of this SECTION 3.6 on a day
other than the last day of the Interest Period applicable thereto shall be made
together with all amounts required under SECTION 5.11 to be paid as a
consequence thereof; provided, however, at the request of the Borrower, any
amount of any such prepayment of a LIBOR Loan shall be deposited in a separate
Prepayment Account (as defined below), provided, further, that the deposit of
the amount of such prepayment in a Prepayment Account does not excuse, diminish
or discharge the Borrower's obligations to pay in full at the end of the
applicable Interest Period or at any other time interest is payable with respect
to such LIBOR Loan to be prepaid, all interest payable. The Administrative Agent
shall apply any cash deposited in the Prepayment Account to prepay LIBOR Loans
on the last day of the applicable Interest Period (or, at the direction of the
Borrower, on any earlier date) until all outstanding Revolving Loans have been
prepaid or until all the allocable cash on deposit in the Prepayment Account has
been exhausted. For purposes of this Agreement, the term "Prepayment Account"
shall mean an account established by the Borrower with the Administrative Agent
and over which the Administrative Agent shall have exclusive dominion and
control, including the exclusive right of withdrawal for application in
accordance with this paragraph. The Administrative Agent will, at the request of
the Borrower, invest amounts on deposit in the Prepayment Account in Cash
Equivalents that mature prior to the last day of the applicable Interest Period
of the LIBOR Loans to be prepaid; provided, however, that (i) the Administrative
Agent shall not be required to make any investment that, in its sole judgment,
42
would require or cause the Administrative Agent to be in or would result in any
violation of any law, statute, rule or regulation, (ii) such Cash Equivalents
shall be subjected to a first priority perfected security interest in favor of
the Administrative Agent perfected by control or possession, as applicable under
the Uniform Commercial Code and (iii) if an Event of Default shall have occurred
and be continuing, the selection of such investments shall be in the sole
discretion of the Administrative Agent. The Borrower shall indemnify the
Administrative Agent for any losses relating to the investments so that the
amount available to prepay LIBOR Loans on the last day of the applicable
Interest Periods is not less than the amount that would have been available had
no investments been made pursuant thereto. Other than any interest or profits
earned on such investments, the Prepayment Accounts shall not bear interest.
Interest or profits, if any, on the investments in any Prepayment Account shall
accumulate in such Prepayment Account. If the maturity of the Loans has been
accelerated pursuant to SECTION 12.2, the Administrative Agent may, in its sole
discretion, apply all amounts on deposit in the Prepayment Account to satisfy
any of the Obligations. The Borrower hereby pledges and assigns to the
Administrative Agent, for its benefit and the benefit of the Lenders, each
Prepayment Account established hereunder to secure the Obligations. To the
extent the prepayment would or does reduce the outstanding principal amount of
the Revolving Loans and the Swing Line Loans, such reduction shall be effective
on the date the amount of the prepayment is deposited in the Prepayment Account.
3.7 Voluntary Prepayments. (a) Upon certain events, from time to
time, the Borrower shall have the right to prepay the Revolving Loans and the
Swing Line Loans, in whole or in part, without premium or penalty (except as
provided in clause (iii) below), upon at least three (3) Business Days'
telephonic notice from an Authorized Officer (effective upon receipt) to the
Administrative Agent prior to 10:30 A.M., which notice shall be irrevocable. The
Authorized Officer shall provide the Administrative Agent written confirmation
of each such telephonic notice but failure to provide such confirmation shall
not affect the validity of such telephonic notice, provided that (i) each
partial prepayment shall be in an aggregate principal amount of not less than
$500,000, or if greater, an integral multiple of $100,000 in excess thereof,
(ii) no partial prepayment of LIBOR Loans made pursuant to any single Borrowing
shall reduce the aggregate outstanding principal amount of the remaining LIBOR
Loans under such Borrowing to less than $1,000,000 or to any greater amount not
an integral multiple of $1,000,000 in excess thereof, and (iii) unless made
together with all amounts required under SECTION 5.11 to be paid as a
consequence of such prepayment, a prepayment of a LIBOR Loan may be made only on
the last day of the Interest Period applicable thereto. Each such notice shall
specify the proposed date of such prepayment and the aggregate principal amount
and Type of the Loans to be prepaid (and, in the case of LIBOR Loans, the
Interest Period of the Borrowing pursuant to which made), and shall be
irrevocable and shall bind the Borrower to make such prepayment on the terms
specified therein. Revolving Loans or Swing Line Loans prepaid pursuant to this
subsection (a) may be reborrowed, subject to the terms and conditions of this
Agreement.
(b) Each prepayment of the Revolving Loans or Swing Line Loans
made pursuant to subsection (a) above shall be applied ratably among the Lenders
holding the Revolving Loans being prepaid and Bank of America, as Lender of the
Swing Line, in proportion to the principal amount held by each.
43
3.8 Swing Line. (a) Notwithstanding any other provision of this
Agreement to the contrary, in order to administer the Revolving Loans in an
efficient manner and to minimize the transfer of funds between the
Administrative Agent and the Revolving Lenders, Bank of America shall make
available Swing Line Loans to the Borrower prior to the Maturity Date. Bank of
America shall not be obligated to make any Swing Line Loan pursuant hereto (i)
if to the actual knowledge of Bank of America the Borrower is not in compliance
with all the conditions to the making of Revolving Loans set forth in this
Agreement, (ii) if after giving effect to such Swing Line Loan, the Swing Line
Outstandings exceed the Swing Line Sublimit, or (iii) if after giving effect to
such Swing Line Loan, the sum of the Swing Line Outstandings, Revolving Credit
Outstandings at such time and the aggregate Letter of Credit Exposure of all
Revolving Lenders at such time would exceed the aggregate Revolving Credit
Commitments of all Revolving Lenders at such time. The Borrower may, subject to
the conditions set forth in the preceding sentence, borrow, repay and reborrow
under this SECTION 3.8. Unless notified to the contrary by Bank of America,
borrowings under the Swing Line shall be made in the minimum amount of $100,000,
or if greater, an integral multiple of $100,000 in excess thereof, upon written
request by telefacsimile transmission, effective upon receipt, by an Authorized
Officer of the Borrower made to Bank of America not later than 12:30 P.M. on the
Business Day of the requested borrowing. Each such Borrowing Notice shall
specify the amount of the borrowing and the date of borrowing, and shall be in
the form of EXHIBIT B-1(b), with appropriate insertions. Unless notified to the
contrary by Bank of America, each repayment of a Swing Line Loan shall be in an
amount which is an integral multiple of $100,000 or the aggregate amount of all
Swing Line Outstandings.
(b) The interest payable on Swing Line Loans is solely for the
account of Bank of America. Swing Line Loans shall bear interest solely at the
Adjusted Base Rate, or to the extent provided in SECTION 5.1 (b), the Default
Rate. All accrued and unpaid interest on Swing Line Loans shall be payable on
the dates and in the manner provided in SECTION 5.1 (c) with respect to interest
on Base Rate Loans. The principal amount of each Swing Line Loan is payable in
full on demand or such other earlier date as provided for herein.
(c) Upon the making of a Swing Line Loan, each Revolving Lender
shall be deemed to have purchased from Bank of America a Participation therein
in an amount equal to the percentage of that ▇▇▇▇▇▇'s Revolving Credit
Commitment of such Swing Line Loan. Upon demand made by Bank of America, each
Lender shall, according to the percentage of its Applicable Commitment
Percentage of such Swing Line Loan, promptly provide to Bank of America its
purchase price therefor in an amount equal to its Participation therein. Any
advance made by a Revolving Lender pursuant to demand of Bank of America of the
purchase price of its Participation shall when made be deemed to be the funding
by each Revolving Lender of the purchase price of its Participation in such
Swing Line Loan. The obligation of each Revolving Lender to so provide its
purchase price to Bank of America shall be absolute and unconditional and shall
not be affected by the occurrence of an Event of Default or any other occurrence
or event. Simultaneously with the making of each such payment by a Revolving
Lender to Bank of America to fund such Revolving Lender's purchase price of a
Participation in such Swing Line Loan, such Revolving Lender shall,
automatically and without any further action on the part of Bank of America or
such Revolving Lender, acquire a Participation in an amount equal to such
payment (excluding the portion thereof constituting interest accrued prior to
the date the
44
Revolving Lender made its payment) in the related rights of Bank of America with
respect to obligations of the Borrower as to such Swing Line Loan.
(d) The Borrower, at its option and subject to the terms hereof,
may request a Borrowing pursuant to SECTION 3.2 in an amount sufficient to repay
Swing Line Outstandings on any date, and the Administrative Agent shall provide
from the proceeds of such Borrowing to Bank of America the amount necessary to
repay such Swing Line Outstandings (which Bank of America shall then apply to
such repayment) and credit any balance of the Borrowing in immediately available
funds in the manner directed by the Borrower pursuant to SECTION 3.2(b). The
proceeds of such Borrowings shall be paid to Bank of America for application to
the Swing Line Outstandings and the Revolving Lenders shall then be deemed to
have made Revolving Loans in the amount of such Borrowings. The Swing Line shall
continue in effect until the Termination Date, at which time all Swing Line
Outstandings and accrued interest thereon shall be due and payable in full. In
the event any Revolving Lender has funded the purchase price of its
Participation in any Swing Line Loan as provided above, then at the time payment
(in fully collected, immediately available funds) of any principal amount of, or
interest on, such Swing Line Loan, in whole or in part, is received by Bank of
America or the Administrative Agent, Bank of America or the Administrative Agent
(as applicable) shall promptly pay to such Revolving Lender an appropriate pro
rata amount of such payment from the Borrower.
ARTICLE IV
LETTERS OF CREDIT
4.1 Issuance. Subject to and upon the terms and conditions herein
set forth, so long as no Default or Event of Default has occurred and is
continuing, the Issuing Lender will, in reliance on the agreements of the other
Lenders set forth in this ARTICLE IV at any time and from time to time on and
after the Effective Date and prior to the earlier of (i) the seventh day prior
to the Maturity Date and (ii) the Termination Date, and upon request by the
Borrower in accordance with the provisions of SECTION 4.2, issue for the account
of the Borrower one or more irrevocable standby letters of credit denominated in
Dollars and in a form customarily used or otherwise approved by the Issuing
Lender (together with all amendments, modifications and supplements thereto,
substitutions therefor and renewals and restatements thereof, collectively, the
"Letters of Credit"). The Stated Amount of each Letter of Credit shall not be
less than $100,000 unless otherwise agreed to by the Issuing Lender.
Notwithstanding the foregoing:
(a) No Letter of Credit shall be issued the Stated Amount upon
issuance of which (i) when added to the aggregate Letter of Credit Exposure of
the Lenders at such time, would exceed the Letter of Credit Sublimit or (ii)
when added to the sum of (y) the aggregate Letter of Credit Exposure of all
Lenders at such time and (z) the aggregate principal amount of all Revolving
Credit Outstandings and Swing Line Outstandings, would exceed the Total
Revolving Credit Commitment at such time;
(b) No Letter of Credit shall be issued that by its terms expires
later than the seventh day prior to the Maturity Date or, in any event, more
than one (1) year after its date of issuance; provided, however, that a Letter
of Credit may, if requested by the Borrower, provide by its terms, and on terms
acceptable to the Issuing Lender, for renewal for successive periods of one year
or less (but not beyond the seventh day prior to the Maturity Date), unless and
until the
45
Issuing Lender shall have delivered a notice of nonrenewal to the beneficiary of
such Letter of Credit; and
(c) The Issuing Lender shall be under no obligation to issue any
Letter of Credit if, at the time of such proposed issuance, (i) any order,
judgment or decree of any Governmental Authority or arbitrator shall purport by
its terms to enjoin or restrain the Issuing Lender from issuing such Letter of
Credit, or any Requirement of Law applicable to the Issuing Lender or any
request or directive (whether or not having the force of law) from any
Governmental Authority with jurisdiction over the Issuing Lender shall prohibit,
or request that the Issuing Lender refrain from, the issuance of letters of
credit generally or such Letter of Credit in particular or shall impose upon the
Issuing Lender with respect to such Letter of Credit any restriction or reserve
or capital requirement (for which the Issuing Lender is not otherwise
compensated) not in effect on the Effective Date, or any unreimbursed loss, cost
or expense that was not applicable, in effect or known to the Issuing Lender as
of the Effective Date and that the Issuing Lender in good ▇▇▇▇▇ ▇▇▇▇▇ material
to it, or (ii) the Issuing Lender shall have actual knowledge, or shall have
received notice from any Lender prior to the issuance of such Letter of Credit
that one or more of the conditions specified in SECTIONS 7.1 (if applicable) or
7.2 are not then satisfied (or have not been waived in writing as required
herein) or that the issuance of such Letter of Credit would violate the
provisions of subsection (a) above, or (iii) the issuance of such Letter of
Credit would violate the policies of the Issuing Lender.
4.2 Notices. Whenever the Borrower desires the issuance of a
Letter of Credit, the Borrower will give the Issuing Lender written notice with
a copy to the Administrative Agent not later than 11:00 a.m., Charlotte time,
three (3) Business Days (or such shorter period as is acceptable to the Issuing
Lender in any given case) prior to the requested date of issuance thereof. Each
such notice (each, a "Letter of Credit Notice") shall be irrevocable, shall be
given in the form OF EXHIBIT B-3 and shall specify (i) the requested date of
issuance, which shall be a Business Day, (ii) the requested Stated Amount and
expiry date of the Letter of Credit, and (iii) the name and address of the
requested beneficiary or beneficiaries of the Letter of Credit. The Borrower
will also complete any application procedures and documents required by the
Issuing Lender in connection with the issuance of any Letter of Credit. Upon its
issuance of any Letter of Credit, the Issuing Lender will promptly notify the
Administrative Agent of such issuance, and the Administrative Agent will give
prompt notice thereof to each Revolving Lender.
4.3 Participations. Immediately upon the issuance of any Letter of
Credit, each Lender shall be deemed to have purchased from the Issuing Lender a
Participation therein in an amount equal such Revolving Lender's Applicable
Commitment Percentage of the Total Revolving Credit Commitment in such Letter of
Credit, each drawing made thereunder and the obligations of the Borrower under
this Agreement with respect thereto and any Collateral or other security
therefor or guaranty pertaining thereto; provided, however, that the fee
relating to Letters of Credit described in SECTION 5.2(c) shall be payable
directly to the Issuing Lender as provided therein, and the Revolving Lenders
shall have no right to receive any portion thereof. Upon any change in the
Revolving Credit Commitments of any of the Revolving Lenders pursuant to SECTION
14.7(a), with respect to all outstanding Letters of Credit and Reimbursement
Obligations there shall be an automatic adjustment to the Participations
pursuant to this SECTION 4.3 to reflect the new pro rata shares of the assigning
Lender and the Assignee.
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4.4 Reimbursement. The Borrower hereby agrees to reimburse the
Issuing Lender by making payment to the Administrative Agent, for the account of
the Issuing Lender, in immediately available funds, for any payment made by the
Issuing Lender under any Letter of Credit (each such amount so paid until
reimbursed, together with interest thereon payable as provided hereinbelow, a
"Reimbursement Obligation") immediately after, and in any event within one (1)
Business Day after its receipt of notice of, such payment (provided that any
such Reimbursement Obligation shall be deemed timely satisfied (but nevertheless
subject to the payment of interest thereon as provided hereinbelow) if satisfied
pursuant to a Borrowing of Revolving Loans or a Swing Line Loan made on or prior
to the next Business Day following the date of the Borrower's receipt of notice
of such payment), together with interest on the amount so paid by the Issuing
Lender, to the extent not reimbursed prior to 1:00 p.m., Charlotte time, on the
date of such payment or disbursement, for the period from the date of the
respective payment to the date the Reimbursement Obligation created thereby is
satisfied, at the Adjusted Base Rate applicable to Loans as in effect from time
to time during such period such interest also to be payable on demand. The
Issuing Lender will provide the Administrative Agent and the Borrower with
prompt notice of any payment or disbursement made under any Letter of Credit,
although the failure to give, or any delay in giving, any such notice shall not
release, diminish or otherwise affect the Borrower's obligations under this
Section or any other provision of this Agreement. The Administrative Agent will
promptly pay to the Issuing Lender any such amounts received by it under this
Section.
4.5 Payment by Revolving Loans. In the event that the Issuing
Lender makes any payment under any Letter of Credit and the Borrower shall not
have timely satisfied in full its Reimbursement Obligation to the Issuing Lender
pursuant to SECTION 4.4, and to the extent that any amounts then held in the
Cash Collateral Account established pursuant to SECTION 4.8 shall be
insufficient to satisfy such Reimbursement Obligation in full, the Issuing
Lender will promptly notify the Administrative Agent, and the Administrative
Agent will promptly notify each Lender of such failure. If the Administrative
Agent gives such notice prior to 11:00 a.m., Charlotte time, on any Business
Day, each Revolving Lender will make available to the Administrative Agent, for
the account of the Issuing Lender, its pro rata share (based on its Applicable
Commitment Percentage of the Total Revolving Credit Commitment) of the amount of
such payment on such Business Day in immediately available funds. If the
Administrative Agent gives such notice after 11:00 a.m., Charlotte time, on any
Business Day, each such Revolving Lender shall make its pro rata share of such
amount available to the Administrative Agent on the next succeeding Business
Day. If and to the extent any Revolving Lender shall not have so made its pro
rata share of the amount of such payment available to the Administrative Agent,
such Revolving ▇▇▇▇▇▇ agrees to pay to the Administrative Agent, for the account
of the Issuing Lender, forthwith on demand such amount, together with interest
thereon at the Federal Funds Rate for each day from such date until the date
such amount is paid to the Administrative Agent. The failure of any Revolving
Lender to make available to the Administrative Agent its pro rata share of any
payment under any Letter of Credit shall not relieve any other Revolving Lender
of its obligation hereunder to make available to the Administrative Agent its
pro rata share of any payment under any Letter of Credit on the date required,
as specified above, but no Lender shall be responsible for the failure of any
other Lender to make available to the Administrative Agent such other Revolving
Lender's pro rata share of any such payment. Each such payment by a Revolving
Lender under this Section of its pro rata share of an amount paid by the Issuing
Lender shall constitute (x) if the conditions to making and obtaining Revolving
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Loans shall then be satisfied, a Revolving Loan by such Revolving Lender (the
Borrower being deemed to have given a timely Notice of Borrowing therefor) and
shall be treated as such for all purposes of this Agreement; provided that for
purposes of determining the aggregate Unutilized Commitments immediately prior
to giving effect to the application of the proceeds of such Revolving Loans, the
Reimbursement Obligation being satisfied thereby shall be deemed not to be
outstanding at such time, and (y) in all other circumstances, the funding by
each Revolving Lender of the purchase price of its Participation in such
Reimbursement Obligation. The obligation of each Revolving Lender to so provide
its purchase price to the Issuing Lender shall be absolute and unconditional and
shall not be affected by the occurrence of an Event of Default or any other
occurrence or event. Simultaneously with the making of each such payment by a
Lender to the Issuing Lender to fund such Revolving Lender's purchase price of a
Participation in such Letter of Credit, such Revolving Lender shall,
automatically and without any further action on the part of the Issuing Lender
or such Revolving Lender, acquire a Participation in an amount equal to such
payment (excluding the portion thereof constituting interest accrued prior to
the date the Revolving Lender made its payment) in the related rights of the
Issuing Lender with respect to obligations of the Borrower as to such
Reimbursement Obligation.
4.6 Payment to Lenders. Whenever the Issuing Lender receives a
payment in respect of a Reimbursement Obligation as to which the Administrative
Agent has received, for the account of the Issuing Lender, any payments from the
Revolving Lenders pursuant to SECTION 4.5, the Issuing Lender will promptly pay
to the Administrative Agent, and the Administrative Agent will promptly pay to
each Revolving Lender that has paid its pro rata share thereof, in immediately
available funds, an amount equal to such Revolving Lender's ratable share (based
on the proportionate amount funded by such Revolving Lender to the aggregate
amount funded by all Lenders) of such Reimbursement Obligation.
4.7 Obligations Absolute. The Reimbursement Obligations of the
Borrower, and the obligations of the Lenders under SECTION 4.5 to make payments
to the Administrative Agent, for the account of the Issuing Lender, with respect
to Letters of Credit shall be irrevocable, shall remain in effect until the
Issuing Lender shall have no further obligations to make any payments or
disbursements under any circumstances with respect to any Letter of Credit, and
except to the extent resulting from any gross negligence or willful misconduct
on the part of the Issuing Lender, shall be absolute and unconditional, shall
not be subject to counterclaim, setoff or other defense or any other
qualification or exception whatsoever and shall be made in accordance with the
terms and conditions of this Agreement under all circumstances, including
without limitation, any of the following circumstances:
(a) Any lack of validity or enforceability of this Agreement, any
of the other Credit Documents or any documents or instruments relating to any
Letter of Credit;
(b) Any change in the time, manner or place of payment of, or in
any other term of all or any of the Obligations in respect of any Letter of
Credit or any other amendment, modification or waiver of or any consent to
departure from any Letter of Credit or any documents or instruments relating
thereto in each case whether or not the Borrower has notice or knowledge
thereof;
(c) The existence of any claim, setoff, defense or other right
that the Borrower may have at any time against a beneficiary named in a Letter
of Credit, any transferee of any Letter of
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Credit (or any Person for whom any such transferee may be acting), the
Administrative Agent, the Issuing Lender, any Revolving Lender or other Person,
whether in connection with this Agreement, any Letter of Credit, the
transactions contemplated hereby or any unrelated transactions (including any
underlying transaction between the Borrower and the beneficiary named in any
such Letter of Credit);
(d) Any draft, certificate or any other document presented under
the Letter of Credit proving to be forged, fraudulent, invalid or insufficient
in any respect or any statement therein being untrue or inaccurate in any
respect (provided that such draft, certificate or other document appears on its
face to comply with the terms of such Letter of Credit), any errors, omissions,
interruptions or delays in transmission or delivery of any messages, by mail,
telecopier or otherwise, or any errors in translation or in interpretation of
technical terms;
(e) Any defense based upon the failure of any drawing under a
Letter of Credit to conform to the terms of the Letter of Credit (provided that
any draft, certificate or other document presented pursuant to such Letter of
Credit appears on its face to comply with the terms thereof), any nonapplication
or misapplication by the beneficiary or any transferee of the proceeds of such
drawing or any other act or omission of such beneficiary or transferee in
connection with such Letter of Credit;
(f) The exchange, release, surrender or impairment of any
Collateral or other security for the Obligations;
(g) The occurrence of any Default or Event of Default; or
(h) Any other circumstance or event whatsoever, including, without
limitation, any other circumstance that might otherwise constitute a defense
available to, or a discharge of, the Borrower or a guarantor. Any action taken
or omitted to be taken by the Issuing Lender under or in connection with any
Letter of Credit, if taken or omitted in the absence of gross negligence or
willful misconduct, shall be binding upon the Borrower and each Revolving Lender
and shall not create or result in any liability of the Issuing Lender to the
Borrower or any Revolving Lender. It is expressly understood and agreed that for
purposes of determining whether a wrongful payment under a Letter of Credit
resulted from the Issuing ▇▇▇▇▇▇'s gross negligence or willful misconduct, (i)
the Issuing ▇▇▇▇▇▇'s acceptance of documents that appear on their face to comply
with the terms of such Letter of Credit, without responsibility for further
investigation, regardless of any notice or information to the contrary, (ii) the
Issuing ▇▇▇▇▇▇'s exclusive reliance on the documents presented to it under such
Letter of Credit as to any and all matters set forth therein, including the
amount of any draft presented under such Letter of Credit, whether or not the
amount due to the beneficiary thereunder equals the amount of such draft and
whether or not any document presented pursuant to such Letter of Credit proves
to be insufficient in any respect (so long, as such document appears on its face
to comply with the terns of such Letter of Credit) and whether or not any other
statement or any other document presented pursuant to such Letter of Credit
proves to be forged or invalid or any statement therein proves to be inaccurate
or untrue in any respect whatsoever, and (iii) any noncompliance in any
immaterial respect of the documents presented under such Letter of Credit with
the terms thereof shall, in each case, be deemed not to constitute gross
negligence or willful misconduct of the Issuing Lender.
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4.8 Cash Collateral Account. At any time and from time to time,
(i) after the occurrence and during the continuance of an Event of Default, the
Administrative Agent, at the direction or with the consent of the Required
Revolving Lenders, may require the Borrower to deliver to the Administrative
Agent such additional amount of cash as is equal to the aggregate Stated Amount
of all Letters of Credit at any time outstanding (whether or not any beneficiary
under any Letter of Credit shall have drawn or be entitled at such time to draw
thereunder) and (ii) in the event of a prepayment under SECTION 3.6(b), or to
the extent any amount of a required prepayment under SECTION 3.6(c), 3.6(d) or
3.6(e) remains after prepayment of all outstanding Revolving Loans and
Reimbursement Obligations, the Administrative Agent will retain such amount as
may then be required to be retained, such amounts in each case under clauses (i)
and (ii) above to be held by the Administrative Agent in a cash collateral
account (the "Cash Collateral Account"). The Borrower hereby grants to the
Administrative Agent, for the benefit of the Issuing Lender and the Revolving
Lenders, a Lien upon and security interest in the Cash Collateral Account and
all amounts held therein from time to time as security for Letter of Credit
Exposure, and for application to the Borrower's Reimbursement Obligations as and
when the same shall arise. The Administrative Agent shall have exclusive
dominion and control, including the exclusive right of withdrawal, over such
account. Other than any interest on the investment of such amounts in Cash
Equivalents, which investments shall be made at the direction of the Borrower
(unless a Default or Event of Default shall have occurred and be continuing, in
which case the determination as to investments shall be made at the option and
in the discretion of the Administrative Agent), amounts in the Cash Collateral
Account shall not bear interest. Interest and profits, if any, on such
investments shall accumulate in such account. In the event of a drawing, and
subsequent payment by the Issuing Lender, under any Letter of Credit at any time
during which any amounts are held in the Cash Collateral Account, the
Administrative Agent will deliver to the Issuing Lender an amount equal to the
Reimbursement Obligation created as a result of such payment (or, if the amounts
so held are less than such Reimbursement Obligation, all of such amounts) to
reimburse the Issuing Lender therefor. Any amounts remaining in the Cash
Collateral Account after the expiration of all Letters of Credit and
reimbursement in full of the Issuing Lender for all of its Obligations
thereunder shall be held by the Administrative Agent, for the benefit of the
Borrower, to be applied against the Obligations in such order and manner as the
Administrative Agent may direct. If the Borrower is required to provide cash
collateral pursuant to SECTION 3.6(b), such amount (to the extent not applied as
aforesaid) shall be returned to the Borrower on demand, provided that after
giving effect to such return (i) the sum of (y) the aggregate principal amount
of all Revolving Credit Outstandings at such time and (z) the aggregate Letter
of Credit Exposure of all Revolving Lenders at such time would not exceed the
Total Revolving Credit Commitment at such time and (ii) no Default or Event of
Default shall have occurred and be continuing at such time. If the Borrower is
required to provide cash collateral as a result of an Event of Default, such
amount (to the extent not applied, as aforesaid) shall be returned to the
Borrower within three (3) Business Days after all Events of Default have been
cured or waived.
4.9 Effectiveness. Notwithstanding any termination of the
Revolving Credit Commitments or repayment of the Loans or both, the obligations
of the Borrower under this Article shall remain in full force and effect until
the Issuing Lender and the Revolving Lenders shall have no further obligations
to make any payments or disbursements under any circumstances with respect to
any Letter of Credit.
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ARTICLE V
INTEREST, FEES, USE OF PROCEEDS
5.1 Interest. (a) The Borrower will pay interest in respect of the
unpaid principal amount of each Segment of the Term Loan A and the Term Loan B,
each Swing Line Loan and each Revolving Loan, commencing on the first date of
such Segment, Swing Line Loan or Revolving Loan until such Segment, Swing Line
Loan or Revolving Loan, as the case may be, shall be repaid, (i) at the Adjusted
Base Rate, as in effect from time to time during such periods as such Segment of
the Term Loan A, Term Loan B Swing Line Loan or Revolving Loan is a Base Rate
Loan, and (ii) at the Adjusted LIBOR Rate, as in effect from time to time during
such periods as such Segment of the Term Loan A or Term Loan B or Revolving Loan
is a LIBOR Loan.
(b) Upon the occurrence and during the continuance of an Event of
Default as the result of failure by the Borrower to pay any principal of or
interest on any Term Loan A, any Term Loan B, any Revolving Loan, any Swing Line
Loan, any fees or other amount hereunder when due (whether at maturity, pursuant
to acceleration or otherwise), and (at the election of the Required Lenders)
upon the occurrence and during the continuance of any other Event of Default,
all outstanding principal amounts of the Term Loan A, Term Loan B, Revolving
Loans and Swing Line Loans and, to the greatest extent permitted by law, all
interest accrued on the Term Loan A, Term Loan B, Revolving Loans and Swing Line
Loans and all other accrued and outstanding fees and other amounts hereunder,
shall bear interest at a rate per annum equal to the interest rate applicable
from time to time thereafter to such Term Loan A, Term Loan B, Revolving Loans
or Swing Line Loans (whether the Adjusted Base Rate or the Adjusted LIBOR Rate)
plus 2% (or, in the case of fees and other amounts, at the Adjusted Base Rate
plus 2%), and, in each case, such default interest shall be payable on demand.
To the greatest extent permitted by law, interest shall continue to accrue after
the filing by or against the Borrower of any petition seeking any relief in
bankruptcy or under any law pertaining to insolvency or debtor relief.
(c) Accrued (and theretofore unpaid) interest shall be payable as
follows:
(i) in respect of each Base Rate Loan (including any Base
Rate Loan or Segment thereof paid or prepaid pursuant to the provisions
of SECTIONS 2.1, 2.2, 2.3 AND 3.6, except as provided hereinbelow), in
arrears on the last Business Day of each calendar quarter, beginning
with the first such day to occur after the Effective Date; provided,
that in the event the Loans are repaid or prepaid in full and the
Revolving Credit Commitments have been terminated, then accrued
interest in respect of all Base Rate Loans shall be payable together
with such repayment or prepayment on the date thereof;
(ii) in respect of each LIBOR Loan (including any LIBOR
Loan or Segment thereof paid or prepaid pursuant to the provisions of
SECTIONS 2.1, 2.2, 2.3 AND 3.6, except as provided hereinbelow), in
arrears (y) on the last Business Day of the Interest Period applicable
thereto (subject to the provisions of clause (iv) in SECTION 5.3) and
(z) in addition, in the case of a LIBOR Loan with an Interest Period
having a duration of six months, on the date three months after the
first day of such Interest Period; provided, that in the event all
LIBOR Loans made pursuant to a single Borrowing are repaid or prepaid
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in full, then accrued interest in respect of such LIBOR Loans shall be
payable together with such repayment or prepayment on the date thereof;
and
(iii) in respect of the Term Loan A, Term Loan B, the
Revolving Loans or the Swing Line Loan, at maturity (whether pursuant
to acceleration or otherwise) and, after maturity, on demand.
(d) Nothing contained in this Agreement or in any other Credit
Document shall be deemed to establish or require the payment of interest to any
Lender at a rate in excess of the maximum rate permitted by applicable law. If
the amount of interest payable for the account of any Lender on any interest
payment date would exceed the maximum amount permitted by applicable law to be
charged by such Lender, the amount of interest payable for its account on such,
interest payment date shall be automatically reduced to such maximum permissible
amount. In the event of any such reduction affecting any Lender, if from time to
time thereafter the amount of interest payable for the account of such Lender on
any interest payment date would be less than the maximum amount permitted by
applicable law to be charged by such Lender, then the amount of interest
payable for its account on such subsequent interest payment date shall be
automatically increased to such maximum permissible amount, provided that at no
time shall the aggregate amount by which interest paid for the account of any
Lender has been increased pursuant to this sentence exceed the aggregate amount
by which interest paid for its account has theretofore been reduced pursuant to
the previous sentence.
(e) The Administrative Agent shall promptly notify the Borrower
and the Lenders upon determining the interest rate for each Borrowing of LIBOR
Loans after its receipt of the relevant Notice of Borrowing or Notice of
Conversion/Continuation, and upon each change in the Base Rate; provided,
however, that the failure of the Administrative Agent to provide the Borrower or
the Lenders with any such notice shall neither affect any obligations of the
Borrower or the Lenders hereunder nor result in any liability on the part of the
Administrative Agent to the Borrower or any Lender. Each such determination
(including each determination of the Reserve Requirement) shall, absent manifest
error, be conclusive and binding on all parties hereto.
5.2 Fees. The Borrower agrees to pay:
(a) To the Administrative Agent, for the account of each Revolving
Lender, a commitment fee for each calendar quarter (or portion thereof) for the
period from the date of this Agreement to the Termination Date, at a per annum
rate of 0.375%, if the Leverage Ratio is less than or equal to 2.0 to 1.0, at
a per annum rate of 0.50% if the Leverage Ratio is greater than 2.0 to 1.0 on
such Lender's ratable share (based on the proportion that its Revolving Credit
Commitment bears to the Total Revolving Credit Commitment) of the average daily
aggregate Unutilized Commitments (provided, however, that for purposes of the
calculation of the fee payable under this SECTION 5.2(a) only, Swing Line
Outstandings shall constitute part of the Unutilized Commitments and provided
further, however, that notwithstanding the foregoing or anything else to the
contrary herein, until the Adjustment Date relating to the Borrower's September
30, 2004 Compliance Certificate, the fees payable under this SECTION 5.2(a)
shall be calculated as if the Leverage Ratio were greater than 2.0 to 1.0
notwithstanding the actual Leverage Ratio), such fees to be payable in arrears
(i) on the last Business Day of each calendar quarter, beginning with the
Effective Date, and (ii) on the Termination Date;
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(b) To the Administrative Agent, for the account of each Revolving
Lender, a letter of credit fee for each calendar quarter (or portion thereof) in
respect of all Letters of Credit outstanding during such quarter, at a per annum
rate equal to the Applicable Margin Percentage in effect from time to time
during such quarter for Loans that are maintained as LIBOR Loans, on such
Lender's ratable share (based on the proportion that its Revolving Credit
Commitment bears to the Total Revolving Credit Commitment) of the daily average
aggregate Stated Amount of such Letters of Credit, payable in arrears (i) on the
last Business Day of each calendar quarter, beginning with the first such day to
occur after the Effective Date, and (ii) on the later of the Termination Date
and the date of termination of the last outstanding Letter of Credit;
(c) To the Issuing Lender, with respect to each Letter of Credit a
facing fee for each calendar quarter (or portion thereof) in respect of all
Letters of Credit outstanding during such quarter, at a per annum rate of 0.25%
on the daily average aggregate Stated Amount of such Letters of Credit payable
in arrears (i) on the last Business Day of each calendar quarter, beginning with
the first such day to occur after the Effective Date, and (ii) on the later of
the Termination Date and the date of termination of the last outstanding Letter
of Credit;
(d) To the Issuing Lender, for its own account, such commissions,
insurance fees, transfer fees and other fees and charges incurred in connection
with the issuance and administration of each Letter of Credit as are customarily
charged from time to time by the Issuing Lender for the performance of such
services in connection with similar letters of credit, or as may be otherwise
agreed to by the Issuing Lender, but without duplication of amounts payable
under subsection (c) above; and
(e) To the Administrative Agent, for its own account, the annual
administrative fee described in the Fee Letter, on the terms, in the amount and
at the times set forth therein.
5.3 Interest Periods. Concurrently with the giving of a Notice of
Borrowing or Notice of Conversion/Continuation in respect of any Borrowing
comprised of Base Rate Loans to be converted into, or LIBOR Loans to be
continued as, LIBOR Loans, the Borrower shall have the right to elect, pursuant
to such notice, the interest period (each, an "Interest Period") to be
applicable to such LIBOR Loans, which Interest Period shall, at the option of
the Borrower, be a one, two, three or six-month period; provided, however, that:
(i) with respect to Revolving Loans, all LIBOR Loans
comprising a single Borrowing shall at all times have the same Interest
Period;
(ii) the initial Interest Period for any LIBOR Loan shall
commence on the date of the Borrowing of such LIBOR Loan (including the
date of any continuation of, or conversion into, such LIBOR Loan), and
each successive Interest Period applicable to such LIBOR Loan shall
commence on the day on which the next preceding Interest Period
applicable thereto expires;
(iii) LIBOR Loans may not be outstanding under more than
eight (8) separate Interest Periods at any one time (for which purpose
Interest Periods shall be deemed to be separate even if they are
coterminous);
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(iv) if any Interest Period otherwise would expire on a
day that is not a Business Day, such Merest Period shall expire on the
next succeeding Business Day unless such next succeeding Business Day
falls in another calendar month, in which case such Interest Period
shall expire on the next preceding Business Day;
(v) no Interest Period may be selected that would end
after a scheduled date for repayment of principal of the Loans
occurring on or after the first day of such Interest Period unless,
immediately after giving effect to such selection, the aggregate
principal amount of Loans subject to such repayment that are Base Rate
Loans or that have Interest Periods expiring on or before such
principal repayment date equals or exceeds the principal amount
required to be paid on such principal repayment date;
(vi) the Borrower may not select any Interest Period that
begins prior to the third Business Day after the Effective Date or that
expires after the Maturity Date; and
(vii) if any Interest Period begins on a day for which
there is no numerically corresponding day in the calendar month during
which such Interest Period would otherwise expire, such Interest Period
shall expire on the last Business Day of such calendar month.
5.4 Conversions and Continuations. (a) The Borrower shall have the
right, on any Business Day occurring on or after the Effective Date, to elect
(i) to convert all or a portion of the outstanding principal amount of any Base
Rate Loans into LIBOR Loans, or to convert all or any portion of LIBOR Loans the
Interest Periods for which end on the same day into Base Rate Loans, or (ii)
upon the expiration of any Interest Period, to continue all or a portion of the
outstanding principal amount of any LIBOR Loans the Interest Periods for which
end on the same day for an additional Interest Period, provided that (x) any
such conversion of LIBOR Loans into Base Rate Loans shall involve an aggregate
principal amount of not less than $500,000 or, if greater, an integral multiple
of $100,000 in excess thereof; any such conversion of Base Rate Loans into, or
continuation of, LIBOR Loans shall involve an aggregate principal amount of not
less than $1,000,000 or, if greater, an integral multiple of $1,000,000 in
excess thereof; and no partial conversion of LIBOR Loans made pursuant to a
single Borrowing shall reduce the outstanding principal amount of such LIBOR
Loans to less than $1,000,000 or to any greater amount not an integral multiple
of $ 1,000,000 in excess thereof, (y) except as otherwise provided in SECTION
5.9(d), LIBOR Loans may be converted into Base Rate Loans only on the last day
of the Interest Period applicable thereto (and, in any event, if a LIBOR Loan is
converted into a Base Rate Loan on any day other than the last day of the
Interest Period applicable thereto, the Borrower will pay, upon such conversion,
all amounts required under SECTION 5.10 to be paid as a consequence thereof),
and (z) no conversion of Base Rate Loans into LIBOR Loans or continuation of
LIBOR Loans shall be permitted during the continuance of a Default or Event of
Default.
(b) The Borrower shall make each such election by giving the
Administrative Agent written notice not later than 11:00 a.m., Charlotte time,
three (3) Business Days prior to the intended effective date of any conversion
of Base Rate Loans into, or continuation of LIBOR Loans and on the same Business
Day for any conversion of LIBOR Loans into Base Rate Loans. Each such notice
(each, a "Notice of Conversion/Continuation") shall be irrevocable, shall be
given in the form of EXHIBIT B-2 and shall specify (w) the Term Loan A Segment,
the Term
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Loan B Segment or Revolving Loans subject to such election, (x) the date of such
conversion or continuation (which shall be a Business Day), (y) in the case of a
conversion into, or a continuation of, LIBOR Loans, the Interest Period to be
applicable thereto, and (z) the aggregate amount and Type of the Loans being
converted or continued. Upon the receipt of a Notice of Conversion/Continuation,
the Administrative Agent will promptly notify each Lender of the proposed
conversion or continuation. In the event that the Borrower shall fail to deliver
a Notice of Conversion/Continuation as provided herein with respect to any
outstanding LIBOR Loans, such LIBOR Loans shall automatically be converted to
Base Rate Loans upon the expiration of the then current Interest Period
applicable thereto (unless repaid pursuant to the terms hereof). In the event
the Borrower shall have failed to select in a Notice of Conversion/Continuation
the duration of the Interest Period to be applicable to any conversion into, or
continuation of, LIBOR Loans, then the Borrower shall be deemed to have selected
an Interest Period with a duration of one month.
5.5 Method of Payments; Computations. (a) All payments by the
Borrower hereunder shall be made without setoff, counterclaim, recoupment or
other defense in Dollars and in immediately available funds to the
Administrative Agent for the account of the Lenders or other parties entitled to
such payment (except as otherwise expressly provided herein as to payments
required to be made directly to the Issuing Lender, the Administrative Agent or
the Lenders) at its office referred to in SECTION 14.5, prior to 12:00 noon,
Charlotte time, on the date payment is due. Any payment made as required
hereinabove, but after 12:00 noon, Charlotte time, shall be deemed to have been
made on the next succeeding Business Day. If any payment falls due on a day that
is not a Business Day, then such due date shall be extended to the next
succeeding Business Day 1 except that in the case of LIBOR Loans to which the
applicable provisions of clause (iv) in SECTION 5.3 are applicable, such due
date shall be the next preceding Business Day) and such extension of time shall
then be included in the computation of payment of interest, fees or other
applicable amounts.
(b) The Administrative Agent will distribute to the Lenders like
amounts relating to payments made to the Administrative Agent for the account of
the Lenders as follows: (i) if the payment is received by 12:00 noon, Charlotte
time, in immediately available funds, the Administrative Agent will make
available to each relevant Lender on the same date, by wire transfer of
immediately available funds, such ▇▇▇▇▇▇'s ratable share of such payment (based
on the percentage that the amount of the relevant payment owing to such Lender
bears to the total amount of such payment owing to all of the relevant Lenders),
and (ii) if such payment is received after 12:00 noon, Charlotte time, or in
other than immediately available funds, the Administrative Agent will make
available to each such Lender its ratable share of such payment by wire transfer
of immediately available funds on the next succeeding Business Day (or in the
case of uncollected funds as soon as practicable after collected). If the
Administrative Agent shall not have made a required distribution to the
appropriate Lenders as required hereinabove after receiving a payment for the
account of such Lenders, the Administrative Agent will pay to each such Lender,
on demand, its ratable share of such payment with interest thereon at the
Federal Funds Rate for each day from the date such amount was required to be
disbursed by the Administrative Agent until the date repaid to such Lender. The
Administrative Agent will distribute to the Issuing Lender like amounts relating
to payments made to the Administrative Agent for the account of the Issuing
Lender in the same manner, and subject to the same terms and conditions, as set
forth hereinabove with respect to distributions of amounts to the Lenders.
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(c) All computations of interest and fees hereunder (including
computations of the Reserve Requirement) shall be made on the basis of a year
consisting of 360 days and the actual number of days (including the first day,
but excluding the last day) elapsed, except that calculation of the prime rate
referred to in the definition of "Base Rate" herein shall be made on the basis
of a year of 365/366 days and the actual number of days (including the first
day, but excluding the last day) elapsed.
5.6 Recovery of Payments. (a) The Borrower agrees that to the
extent the Borrower makes a payment or payments to or for the account of the
Administrative Agent, any Lender or the Issuing Lender, which payment or
payments or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside or required to be repaid to a trustee,
receiver or any other party under any bankruptcy, insolvency or similar state or
federal law, common law or equitable cause, or the recipient of any such payment
elects to repay the same in good faith settlement of any pending or threatened
avoidance claim, then, to the extent of such payment or repayment, the
Obligation intended to be satisfied shall be revived and continued in full force
and effect as if such payment had not been received.
(b) If any amounts distributed by the Administrative Agent to any
Lender are subsequently returned or repaid by the Administrative Agent to the
Borrower or its representative or successor in interest whether by court order
or by settlement approved by the Lender in question such Lender will, promptly
upon receipt of notice thereof from the Administrative Agent, pay the
Administrative Agent such amount. If any such amounts are recovered by the
Administrative Agent from the Borrower or its representative or successor in
interest, the Administrative Agent will redistribute such amounts to the Lenders
on the same basis as such amounts were originally distributed.
5.7 Use of Proceeds. The proceeds of the Term Loan A and the
Revolving Loans shall be used for working capital and general corporate purposes
and in accordance with the terms and provisions of this Agreement (including to
finance Permitted Acquisitions in accordance with the terms and provisions of
this Agreement, including, without limitation, the provisions set forth in
SECTION 11.5). The proceeds of the Term Loan B shall be used (i) first, to pay
or reimburse reasonable transaction fees and expenses in connection with the
closing of the transaction contemplated hereby, and (ii) thereafter, for the
Dividend Payment.
5.8 Pro Rata Treatment. (a) All fundings, continuations and
conversions of Loans shall be made by the Lenders pro rata on the basis of their
respective Term Loan A Commitment, Term Loan B Commitment and Revolving Credit
Commitments (in the case of the initial funding of Loans pursuant to SECTIONS
2.1, 2.2, 3.2 AND 7.1) or on the basis of their respective outstanding Loans (in
the case of continuations and conversions of Loans pursuant to SECTION 5.4, and
additionally in all cases in the event the Term Loan A Commitments, Term Loan B
Commitments and Revolving Credit Commitments have expired or have been
terminated), as the case may be from time to time. All payments on account of
principal of or interest on any Loans, fees or any other Obligations owing to or
for the account of any one or more Lenders shall be apportioned ratably among
such Lenders in proportion to the amounts of such principal, interest, fees or
other Obligations owed to them respectively.
(b) Each ▇▇▇▇▇▇ agrees that if it shall receive any amount
hereunder (whether by voluntary payment, realization upon security, exercise of
the right of setoff or banker's lien,
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counterclaim or cross action, or otherwise, other than pursuant to SECTION 14.7)
applicable to the payment of any of the Obligations (other than any Hedge
Agreement) that exceeds its ratable share (according to the proportion of (i)
the amount of such Obligations (other than any Hedge Agreement) due and payable
to such Lender at such time to (ii) the aggregate amount of such Obligations
(other than any Hedge Agreement) due and payable to all Lenders at such time) of
payments on account of such Obligations (other than any Hedge Agreement) then or
therewith obtained by all the Lenders to which such payments are required to
have been made, such Lender shall forthwith purchase from the other Lenders such
participations in such Obligations (other than any Hedge Agreement) as shall be
necessary to cause such purchasing Lender to share the excess payment or other
recovery ratably with each of them; provided, however, that if all or any
portion of such excess payment is thereafter recovered from such purchasing
Lender, such purchase from each such other Lender shall be rescinded and each
such other Lender shall repay to the purchasing Lender the purchase price to the
extent of such recovery, together with an amount equal to such other Lender's
ratable share (according to the proportion of (i) the amount of such other
Lender's required repayment to (ii) the total amount so recovered from the
purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered. The Borrower
agrees that any Lender so purchasing a participation from another Lender
pursuant to the provisions of this subsection may, to the fullest extent
permitted by law, exercise any and all rights of payment (including, without
limitation, setoff, banker's lien or counterclaim) with respect to such
participation as fully as if such participant were a direct creditor of the
Borrower in the amount of such participation. If under any applicable
bankruptcy, insolvency or similar law, any Lender receives a secured claim in
lieu of a setoff to which this subsection applies, such Lender shall, to the
extent practicable exercise its rights in respect of such secured claim in a
manner consistent with the rights of the Lenders entitled under this subsection
to share in the benefits of any recovery on such secured claim.
5.9 Increased Costs; Change in Circumstances; Illegality: etc. (a)
If, at any time after the date hereof and from time to time, the introduction of
or any change in any applicable law, rule or regulation or in the interpretation
or administration thereof by any Governmental Authority charged with the
interpretation or administration thereof, or compliance by any Lender with any
guideline or request from any such Governmental Authority (whether or not having
the force of law), shall (i) subject such Lender to any tax or other charge, or
change the basis of taxation of payments to such Lender, in respect of any of
its LIBOR Loans or any other amounts payable hereunder or its obligation to
make, fund or maintain any LIBOR Loans (other than any change in the rate or
basis of tae on the overall net income of such Lender or its applicable Lending
Office), (ii) impose, modify or deem applicable any reserve, special deposit or
similar requirement (but excluding any reserves to the extent actually included
within the Reserve Requirement in the calculation of the LIBOR Rate) against
assets of, deposits with or for the account of, or credit extended by, such
Lender or its applicable Lending Office, or (iii) impose on such Lender or its
applicable Lending Office any other condition, and the result of any of the
foregoing shall be to increase the cost to such Lender of making or maintaining
any LIBOR Loans or issuing or participating in Letters of Credit or to reduce
the amount of any sum received or receivable by such ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (including
in respect of Letters of Credit), the Borrower will, promptly upon demand
therefor by such Lender, pay to such Lender such additional amounts as-shall
compensate such Lender for such increase in costs or reduction in return.
57
(b) If, at any time after the date hereof and from time to time,
any Lender shall have reasonably determined that the introduction of or any
change in any applicable law, rule or regulation regarding capital adequacy or
in the interpretation or administration thereof by any Governmental Authority
charged with the interpretation or administration thereof, or compliance by such
Lender with any guideline or request from any such Governmental Authority
(whether or not having the force of law) relating thereto, has or would have the
effect as a consequence of such ▇▇▇▇▇▇'s Term Loan A Commitment, Term Loan B
Commitment, Revolving Credit Commitment, Loans or issuance of or Participations
in Letters of Credit hereunder, of reducing the rate of return on the capital of
such Lender or any Person controlling such Lender to a level below that which
such Lender or controlling Person could have achieved but for such introduction,
change or compliance (taking into account such Lender's or controlling Person's
policies with respect to capital adequacy), the Borrower will, promptly upon
demand therefor by such Lender therefor pay to such Lender such additional
amounts as will compensate such Lender or controlling Person for such reduction
in return.
(c) If, on or prior to the: first day of any Interest Period, (y)
the Administrative Agent shall have reasonably determined that adequate and
reasonable means does not exist for ascertaining the applicable LIBOR Rate for
such Interest Period or (z) the Administrative Agent shall have received written
notice from the Required Lenders of their reasonable determination that the rate
of interest referred to in the definition of "LIBOR Rate" upon the basis of
which the Adjusted LIBOR Rate for LIBOR Loans for such Interest Period is to be
determined will not adequately and fairly reflect the cost to such Lenders of
making or maintaining LIBOR Loans during such Interest Period, the
Administrative Agent will forthwith so notify the Borrower and the Lenders. Upon
such notice (i) all then outstanding LIBOR Loans shall automatically, on the
expiration date of the respective Interest Periods applicable thereto (unless
then repaid in full), be converted into Base Rate Loans, (ii) the obligation of
the Lenders to, make, to convert Base Rate Loans into, or to continue. LIBOR
Loans shall be suspended (including pursuant to the Borrowing to which such
Interest Period applies), and (iii) any Notice of Borrowing or Notice of
Conversion/Continuation given at any time thereafter with respect to LIBOR Loans
shall be deemed to be a request for Base Rate Loans, in each case until the
circumstances giving rise to such suspension no longer exist (and the Required
Lenders, if malting such determination, shall have so notified the
Administrative Agent), and the Administrative Agent shall promptly notify the
Borrower and the Lenders of the same.
(d) Notwithstanding any other provision in this Agreement, if, at
any time after the date hereof and from time to time, any Lender shall have
determined in good faith that the introduction of or any change in any
applicable law, rule or regulation or in the interpretation or administration
thereof by any Governmental Authority charged with the interpretation or
administration thereof, or compliance with any guideline or request from any
such Governmental Authority (whether or not having the force of law), has or
would have the effect of making it unlawful for such Lender to make or to
continue to make or maintain LIBOR Loans, such Lender will forthwith so notify
the Administrative Agent and the Borrower. Upon such notice, (i) each of such
▇▇▇▇▇▇'s then outstanding LIBOR Loans shall automatically, on the expiration
date of the respective Interest Period applicable thereto (or, to the extent any
such LIBOR Loan may not lawfully be maintained as a LIBOR Loan until such
expiration date, upon such notice), be converted into a Base Rate Loan, (ii) the
obligation of such Lender to make, to convert Base Rate Loans into, or to
continue, LIBOR Loans shall be suspended (including pursuant to any
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Borrowing for which the Administrative Agent has received a Notice of Borrowing
but for which the Borrowing Date has not arrived), and (iii) any Notice of
Borrowing or Notice of Conversion/Continuation given at any time thereafter with
respect to LIBOR Loans shall, as to such Lender, be deemed to be a request for a
Base Rate Loan, in each case until the circumstances giving rise to such
suspension no longer exist and shall promptly notify the Administrative Agent of
the same, and the Administrative Agent shall in turn notify the Borrower.
(e) Determinations by the Administrative Agent or any Lender for
purposes of this SECTION 5.9 of any increased costs, reduction in return, market
contingencies, illegality or any other matter shall, absent manifest error, be
conclusive, provided that such determinations are made in good faith. No failure
by the Administrative Agent or any Lender at any time to demand payment of any
amounts payable under, this SECTION 5.9 shall constitute a waiver of its right
to demand payment of any additional amounts arising at any subsequent time.
Nothing in this SECTION 5.9 shall require or be construed to require the
Borrower to pay any interest, fees, costs or other amounts in excess of that
permitted by applicable law.
5.10 Taxes, (a) Any and all payments by the Borrower hereunder or
under any Note shall be made, in accordance with the terms hereof and thereof,
free and clear of and without deduction for any and all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, other than net income and franchise taxes imposed on the
Administrative Agent or any Lender by the United States or by the jurisdiction
under the laws of which the Administrative Agent or such Lender or the Borrower
or Subsidiary Guarantor, as the case may be, is organized or does business or in
which its principal office or (in the case of a Lender) its applicable Lending
Office is located, or any political subdivision or taxing authority thereof (all
such nonexcluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities being hereinafter referred to as "Taxes"). If the Borrower shall be
required by law to deduct any Taxes from or in respect of any sum payable
hereunder or under any Note to the Administrative Agent or any Lender, (i) the
sum payable shall be increased as may be necessary so that after making all
required' deductions (including deductions applicable to additional sums payable
under this Section), the Administrative Agent or such Lender, as the case may
be, receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower will make such deductions, (iii) the
Borrower will pay the full amount deducted to the relevant taxation authority or
other authority in accordance with applicable law and (iv) the Borrower will
deliver to the Administrative Agent or such Lender, as the case may be, evidence
of such payment.
(b) The Borrower will indemnify the Administrative Agent and each
Lender for the full amount of Taxes (including, without limitation, any Taxes
imposed by any jurisdiction on amounts payable under this Section) paid by the
Administrative Agent or such Lender, as the case may be, and any liability
(including penalties, interest and expenses) arising therefrom or with respect
thereto, whether or not such Taxes were correctly or legally asserted. This
indemnification shall be made within 30 days from the date the Administrative
Agent or such Lender, as the case may be, makes written demand therefor.
(c) Each of the Administrative Agent and the Lenders agrees that
if it subsequently recovers, or receives a permanent net tax benefit with
respect to, any amount of Taxes (i) previously paid by it and as to which it has
been indemnified by or on behalf of the Borrower or
59
(ii) previously deducted by the Borrower (including, without limitation, any
Taxes deducted from any additional sums payable under clause (i) of subsection
(a) above), the Administrative Agent or such Lender, as the case may be, shall
reimburse the Borrower to the extent of the amount of any such recovery or
permanent net tax benefit (but only to the extent of indemnity payments made, or
additional amounts paid, by or on behalf of the Borrower under this Section with
respect to the Taxes giving rise to such recovery or tax benefit); provided,
however, that the Borrower, upon the request of the Administrative Agent or such
▇▇▇▇▇▇, agrees to repay to the Administrative Agent or such Lender, as the case
may be, the amount paid over to the Borrower (together with any penalties,
interest or other charges), in the event the Administrative Agent or such Lender
is required to repay such amount to the relevant taxing authority or other
Governmental Authority. The determination by the Administrative Agent or any
Lender of the amount of any such, recovery or permanent net tax benefit shall,
in the absence of manifest error, be conclusive and binding.
(d) Each Lender that is not a "United States person" within the
meaning of Section 7701(a)(30) of the Code (a "Foreign Lender") shall deliver to
the Administrative Agent, prior to receipt of any payment subject to withholding
under the Code (or upon accepting an assignment of an interest herein), two duly
signed completed copies of either IRS Form W-8BEN or any successor thereto
(relating to such Person and entitling it to an exemption from, or reduction of,
withholding tax on all payments to be made to such Person by the Borrower
pursuant to this Agreement) or IRS Form W-8ECI or any successor thereto
(relating to all payments to be made to such Person by the Borrower pursuant to
this Agreement) or such other evidence satisfactory to the Borrower and the
Administrative Agent that such Person is entitled to an exemption from, or
reduction of, U.S. withholding tax. Thereafter and from time to time, each such
Person shall (i) promptly submit to the Administrative Agent such additional
duly completed and signed copies of one of such forms (or such successor forms
as shall be adopted from time to time by the relevant United States taxing
authorities) as may then be available under then current United States laws and
regulations to avoid, or such evidence as is satisfactory to the Borrower and
the Administrative Agent of any available exemption from or reduction of, United
States withholding taxes in respect of all payments to be made to such Person by
the Borrower pursuant to this Agreement, (ii) promptly notify the Administrative
Agent of any change in circumstances which would modify or render invalid any
claimed exemption or reduction, and (iii) take such steps as shall not be
materially disadvantageous to it, in the reasonable judgment of such Lender, and
as may be reasonably necessary (including the re-designation of its Lending
Office) to avoid any requirement of applicable Laws that the Borrower make any
deduction or withholding for taxes from amounts payable to such Person. If such
Person fails to deliver the above forms or other documentation, then the
Administrative Agent may withhold from any interest payment to such Person an
amount equivalent to the applicable withholding tax imposed by Sections 1441 and
1442 of the Code, without reduction.
(e) Upon the request of the Administrative Agent, each Lender that
is a "United States person" within the meaning of Section 7701(a)(30) of the
Code shall deliver to the Administrative Agent two duly signed completed copies
of IRS Form W-9. If such Lender fails to deliver such forms, then the
Administrative Agent may withhold from any interest payment to such Lender an
amount equivalent to the applicable back-up withholding tax imposed by the Code,
without reduction.
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If any Governmental Authority asserts that the Administrative Agent did
not properly withhold or backup withhold, as the case may be, any tax or other
amount from payments made to or for the account of any Lender, such Lender shall
indemnify the Administrative Agent therefor, including all penalties and
interest, any taxes imposed by any jurisdiction on the amounts payable to the
Administrative Agent under this SECTION 5.10, and costs and expenses (including
Attorney Costs) of the Administrative Agent. The obligation of the Lenders under
this Section shall survive the termination of the Aggregate Commitments,
repayment of all Obligations and the resignation of the Administrative Agent.
5.11 Compensation. Upon demand of any Lender (with a copy to the
Administrative Agent) from time to time, the Borrower shall promptly compensate
such Lender for and hold such Lender harmless from any loss, cost or expense
incurred by it as a result of:
(a) any continuation, conversion, payment, assignment, termination
or prepayment of any Loan other than a Base Rate Loan on a day other than the
last day of the Interest Period for such Loan (whether voluntary, mandatory,
automatic, by reason of acceleration, or otherwise); or
(b) any failure by the Borrower (for a reason other than the
failure of such Lender to make a Loan) to prepay, borrow, continue or convert
any Loan other than a Base Rate Loan on the date or in the amount notified by
the Borrower;
including any loss of anticipated profits and any loss or expense arising from
the liquidation or reemployment of funds obtained by it to maintain such Loan or
from fees payable to terminate the deposits from which such funds were obtained.
The Borrower shall also pay any customary administrative fees charged by such
Lender in connection with the foregoing.
For purposes of calculating amounts payable by the Borrower to the Lenders under
this SECTION 5.11, each Lender shall be deemed to have funded each LIBOR Loan
made by it at the LIBOR Rate for such Loan by a matching deposit or other
borrowing in the London interbank eurodollar market for a comparable amount and
for a comparable period, whether or not such LIBOR Loan was in fact so funded.
5.12 Deficiency Advances; Failure to Purchase Participations, No
Lender shall be responsible for any default of any other Lender in respect of
such other Lender's obligation to make its portion of the Term Loan A, Term Loan
B or any Revolving Loan hereunder or to fund its purchase of any Participation
hereunder nor shall the Revolving Credit Commitment, Term Loan A Commitment,
Term Loan B Commitment or Letter of Credit Exposure of any Lender hereunder be
increased as a result of such default of any other Lender. Without limiting the
generality of the foregoing or the provisions of SECTION 5.13, in the event any
Lender shall fail to advance funds to the Borrower as herein provided, the
Administrative Agent may in its discretion, but shall not be obligated to,
advance under the applicable Note in its favor as a Lender all or any portion of
such amount or amounts (each, a "deficiency advance") and shall thereafter be
entitled to payments of principal of and interest on such deficiency advance in
the same manner and at the same interest rate or rates to which such other
Lender would have been entitled had it made such advance under its Note;
provided that, (i) such defaulting Lender shall not be entitled to receive
payments of principal, interest or fees with respect to such deficiency advance
until such deficiency advance (together with interest thereon as provided in
clause (ii)) shall be paid by such Lender and (ii) upon payment to the
Administrative Agent from such other
61
Lender of the entire outstanding amount of each such deficiency advance,
together with accrued and unpaid interest thereon, from the most recent date or
dates interest was paid to the Administrative Agent by a Borrower on each Loan
comprising the deficiency advance at the Federal Funds Rate, then such payment
shall be credited against the applicable Note of the Administrative Agent in
full payment of such deficiency advance and such Borrower shall be deemed to
have borrowed the amount of such deficiency advance from such other Lender as of
the most recent date or dates, as the case may be, upon which any payments of
interest were made by the Borrower thereon. In the event any Lender shall fail
to fund its purchase of a Participation after notice from the Issuing Lender or
Bank of America as the Swing Line lender, as applicable, such Lender shall pay
to the Issuing Lender or Bank of America as the Swing Line lender, as
applicable, such amount on demand, together with interest at the Federal Funds
Rate on the amount so due from the date of such notice to the date such purchase
price is received by the Issuing Lender or Bank of America as the Swing Line
lender, as applicable.
5.13 Intraday Funding, (a) Unless the Borrower or any Revolving
Lender has notified the Administrative Agent prior to the date any payment is
required to be made by it to the Administrative Agent hereunder, that the
Borrower or such Revolving Lender, as the case may be, will not make such
payment, the Administrative Agent may assume that the Borrower or such Revolving
Lender, as the case may be, has timely made such payment and may (hut shall not
be so required to), in reliance thereon, make available a corresponding amount
to the Person entitled thereto. If and to the extent that such payment was not
in fact made to the Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, each
Revolving Lender shall forthwith on demand repay to the Administrative
Agent the portion of such assumed payment that was made available to
such Revolving Lender in immediately available funds, together with
interest thereon in respect of each day from and including the date
such amount was made available by the Administrative Agent to such
Revolving Lender to the date such amount is repaid to the
Administrative Agent in immediately available funds, at the Federal
Funds Rate from time to time in effect; and
(ii) if any Revolving Lender failed to make such payment,
such Revolving Lender shall forthwith on demand pay to the
Administrative Agent the amount thereof in immediately available funds,
together with interest thereon for the period from the date such amount
was made available by the Administrative Agent to the Borrower to the
date such amount is recovered by the Administrative Agent (the
"Compensation Period") at a rate per annum equal to the Federal Funds
Rate from time to time in effect. If such Revolving Lender does not pay
such amount forthwith upon the Administrative Agent's demand therefor,
the Administrative Agent may make a demand therefor upon the Borrower,
and the Borrower shall pay such amount to the Administrative Agent,
together with interest thereon for the Compensation Period at a rate
per annum equal to the rate of interest applicable to the applicable
Borrowing. Until the Administrative Agent shall recover such
corresponding amount together with interest thereon, such corresponding
amount shall constitute a deficiency advance within the meaning of
SECTION 5.12. Nothing herein shall be deemed to relieve any Revolving
Lender from its obligation to fulfill its commitments hereunder or to
prejudice any rights which the Administrative
62
Agent or the Borrower may have against any Revolving Lender as a result
of any default by such Revolving Lender hereunder.
A notice of the Administrative Agent to the Borrower or any Revolving
Lender with respect to any amount owing under this SUBSECTION (a) shall be
conclusive, absent manifest error.
(b) Unless the Administrative Agent has received, prior to 1:00
p.m., Charlotte time, on the relevant Borrowing Date, written notice from a
Revolving Lender that such Revolving Lender will not make available to the
Administrative Agent such Revolving Lender's ratable portion of the relevant
Borrowing, the Administrative Agent may assume that such Revolving Lender has
made such portion available to the Administrative Agent in immediately available
funds on such Borrowing Date in accordance with the applicable provisions of
SECTION 3.2, and the Administrative Agent may, in reliance upon such assumption,
but shall not be obligated to, make a corresponding amount available to the
Borrower on such Borrowing Date. If and, to the extent that such Revolving
Lender shall not have made such portion available to the Administrative Agent
and the Administrative Agent shall have made such corresponding amount available
to the Borrower, such Lender, on the one hand, and the Borrower, on the other,
severally agree to pay to the Administrative Agent forthwith on demand such
corresponding amount, together with interest thereon for each day from the date
such amount is made available to the Borrower until the date such amount is
repaid to the Administrative Agent, (i) in the case of such Revolving Lender, at
the Federal Funds Rate, and (ii) in the case of the Borrower, at the rate of
interest applicable at such time to the Type of Revolving Loans comprising such
Borrowing, as determined under the provisions of SECTION 5.1. If such "Revolving
Lender shall repay to the Administrative Agent such corresponding amount such
amount shall constitute such Lender's Revolving Loan as part of such Borrowing
for purposes of this Agreement. The failure of any Revolving Lender to make any
Revolving Loan required to be made by it as part of any Borrowing shall not
relieve any other Revolving Lender of its obligation, if any, hereunder to make
its Revolving Loan as part of such Borrowing, but no Revolving Lender shall be
responsible for the failure of any other Revolving Lender to make the Revolving
Loan to be made by such other Revolving Lender as part of any Borrowing.
ARTICLE VI
SECURITY
6.1 Security. As security for the full and timely payment and
performance of all Obligations, the Borrower shall, and shall cause all its
Subsidiaries to, on or before the Effective Date, do or cause to be done all
things necessary in the opinion of the Administrative Agent and its counsel to
grant to the Administrative Agent or continue, in the case of a Lien in
existence on the Effective Date, for the benefit of the Administrative Agent and
the Lenders a duly perfected first priority security interest in all Collateral
subject to no prior Lien or other encumbrance or restriction transfer. Without
limiting the foregoing, the Borrower, on behalf of itself and each Subsidiary
having rights in any Subsidiary Securities, acknowledges that the Borrower and
each such Subsidiary (other than Excluded Subsidiaries) has delivered to the
Administrative Agent, (A) a Security Agreement which pledged to the
Administrative Agent for the benefit of the Administrative Agent and the
Lenders, all of the Subsidiary Securities of each Subsidiary, (B) if such
Subsidiary Securities were in the form of certificated securities, such
certificated securities, together with undated stock powers or other appropriate
transfer documents endorsed in blank
63
pertaining thereto, (C) if such Subsidiary Securities did not constitute
securities and the Subsidiary has not elected to have such interests treated as
securities under Article 8 of the Uniform Commercial Code, a control agreement
from the registrar of such Subsidiary Securities and (D) Uniform Commercial Code
financing statements reflecting the Lien in favor of the Administrative Agent on
such Subsidiary Securities, each in form and substance acceptable to the
Administrative Agent, and shall take such further action and deliver or cause to
be delivered such further documents as required by the Security Documents or
otherwise as the Administrative Agent may request to effect the transactions
contemplated by this ARTICLE VI. The Borrower shall, and shall cause each
Subsidiary, to pledge to the Administrative Agent for the benefit of the
Administrative Agent and the Lenders (and as appropriate to reaffirm its prior
pledge of) all of the Pledged Interests of any Subsidiary acquired or created
after the Effective Date and to deliver to the Administrative Agent all of the
documents and instruments in connection therewith as are required pursuant to
the terms of SECTION 9,10 and of the Security Documents.
6.2 Further Assurances. At the request of the Administrative
Agent, the Borrower will or will cause all its Subsidiaries, as the case may be,
to execute, by its duly authorized officers, alone or with the Administrative
Agent, any certificate, instrument, financing statement, control agreement,
statement or document, or to procure any such certificate, instrument, statement
or document, or to take such other action (and pay all connected costs) which
the Administrative Agent reasonably deems necessary from time to time to create,
continue or preserve the liens and security interests in Collateral (and the
perfection and priority thereof) of the Administrative Agent contemplated hereby
and by the other Credit Documents and specifically including all Collateral
acquired by the Borrower or its Subsidiaries after the Effective Date. The
Administrative Agent is hereby irrevocably authorized to execute and file or
cause to be filed, without the signature of the Borrower or any Subsidiary
appearing thereon, all Uniform Commercial Code financing statements reflecting
the Borrower or any Subsidiary as "debtor" and the Administrative Agent as
"secured party", and continuations thereof and amendments thereto, as the
Administrative Agent reasonably deems necessary or advisable to give effect to
the transactions contemplated hereby and by the other Credit Documents. The Lien
granted by the Security Agreement shall include all such amounts advanced by the
Administrative Agent in its reasonable discretion to protect the Collateral.
6.3 Information Regarding Collateral. The Borrower represents,
warrants and covenants that (i) the chief executive office of the Borrower and
each other Person providing Collateral pursuant to a Security Document (each, a
"Grantor") at the Effective Date is located at the address or addresses
specified on SCHEDULE 6.3, and (ii) SCHEDULE 6.3 contains a true and
complete list of (a) the exact legal name, jurisdiction of formation, and
address of each Grantor and of each other Person that has effected any merger or
consolidation with a Grantor or contributed or transferred to a Grantor any
property constituting Collateral at any time since January 1, 1999 (excluding
Persons making sales in the ordinary course of their businesses to a Grantor of
property constituting inventory in the hands of such seller), (b) the exact
legal name, jurisdiction of formation, and each location of the chief executive
office of each Grantor at any time since January 1, 1999, (c) each location in
which goods constituting Collateral are located or have been located since
January 1, 1999 (together with the name of each owner of the property located at
such address if not the applicable Grantor, and a summary description of the
relationship between the applicable Grantor and such Person), and (d) each trade
name,
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trademark or other trade style used by any Grantor since January 1, 1999 and the
purposes for which it was used. Borrower shall not change, and shall not permit
any other Grantor to change, its name, jurisdiction of formation (whether by
reincorporation, merger or otherwise), the location of its chief executive
office or any location specified in clause (c) of the immediately preceding
sentence, or use or permit any other Grantor to use, any additional trade name,
trademark or other trade style, except upon giving not less than thirty (30)
days' prior written notice to the Administrative Agent and taking or causing to
be taken all such action at Borrower's or such other Grantor's expense as may be
reasonably requested by the Administrative Agent to perfect or maintain the
perfection of the Lien of the Administrative Agent in Collateral.
ARTICLE VII
CONDITIONS OF BORROWING
7.1 Conditions to Effectiveness. This Agreement shall become
effective as of the Effective Date upon the execution and delivery of a
counterpart signature page hereof by each of the parties hereto and receipt by
the Administrative Agent and the Borrower of each such executed signature page,
and satisfaction or effective waiver of each of the conditions precedent set
forth below. The obligation of each Lender to continue the Revolving Loans and
the Term Loan A and of each Term Loan B Lender to make the Term Loan B, as
applicable, at or after the Effective Date in accordance with the terms herein,
the obligation of the Issuing Lender to issue Letters of Credit hereunder and
the obligation of Bank of America to make any Swing Line Loan, is subject to the
satisfaction of the following conditions precedent:
(a) The Administrative Agent shall have received the following,
each dated as of the Effective Date and, except for the Notes and any
certificates or instruments required to be delivered under the Security
Agreement, in sufficient copies for each Lender:
(i) executed counterparts of this Agreement, sufficient
in number for distribution to the Administrative Agent and each of the
Lenders;
(ii) a Term Loan A Note for each Term Loan A Lender, dated
as of the Effective Date, in the amount of such Term Loan A Lender's
pro rata share of the Term Loan A Outstandings as of the Effective
Date, each duly completed in accordance with the relevant provisions of
SECTION 2.4 and executed by the Borrower;
(iii) a Revolving Note for each Lender, dated as of the
Effective Date, in the amount of such ▇▇▇▇▇▇'s Revolving Credit
Commitment, each duly completed in accordance with the relevant
provisions of SECTION 3.4 and executed by the Borrower;
(iv) the Swing Line Note for Bank of America, dated as of
the Effective Date, in the amount of the Swing Line, duly completed in
accordance with the relevant provisions of SECTION 3.4(d) and executed
by the Borrower;
(v) a Term Loan B Note for each Term Loan B Lender, dated
as of the Effective Date, in the amount of such Lender's Term Loan B
Commitment, each duly
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completed in accordance with the relevant provisions of SECTION 2.4 and
executed by the Borrower;
(vi) a reaffirmation of the Subsidiary Guaranty, duly
completed and executed by each Subsidiary Guarantor of the Borrower;
(vii) amendments or modifications to the existing
Mortgages, in form and substance reasonably satisfactory to the
Administrative Agent, dated as of the Effective Date and duly executed
by the Borrower, a Subsidiary Guarantor and the trustee thereunder, as
applicable, together in each case with the Mortgaged Property Support
Documents and any additional title policy endorsements required by the
Administrative Agent in its reasonable discretion;
(viii) the favorable opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇,
LLP, counsel to the Borrower and the Guarantors, in substantially the
form of EXHIBIT G, addressed to the Administrative Agent and the
Lenders and addressing such matters as the Administrative Agent or any
Lender may reasonably request;
(ix) such amendments to existing UCC financing statements
or initial UCC financing statements as the Administrative Agent may
deem necessary to create and/or maintain its perfected security
interest in the Collateral;
(x) all fees and expenses (including fees and expenses of
counsel) of the Administrative Agent and the Lenders required hereunder
or under any other Credit Document to be paid on or prior to the date
hereof, including but not limited to all fees due and payable to Bank
of America, N.A., as Administrative Agent, pursuant to the letter
agreement dated as of March 15, 2004, relating to the Restatement, and
all fees due and payable to Wachovia Capital Markets, LLC, as co-lead
arranger for the Term Loan B Facility, pursuant to the letter agreement
dated as March 6, 2004;
(xi) the Draft 2003 Audit, the Two-Month Stub, the Pro
Forma Balance Sheet and the Projections, all as defined and described
in SECTIONS 8.11 (a), (b) and (c), all of which shall be in form and
substance satisfactory to the Administrative Agent;
(xii) evidence in form and substance reasonably
satisfactory to the Administrative Agent that all of the requirements
of SECTION 9.6 and those provisions of the Security Agreement and the
Mortgages relating to the maintenance of insurance have been satisfied,
including receipt of certificates of insurance evidencing the insurance
coverages described on SCHEDULE 8.17 and all other or additional
coverages required under the Security Agreement and naming the
Administrative Agent as loss payee or additional insured, as its
interests may appear;
(xiii) a certificate, in substantially the form of EXHIBIT H
hereto, designating any and all Excluded Subsidiaries;
(xiv) payment of the scheduled March 31, 2004 principal
payment of $1,250,000, due with respect to the Term Loan A;
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(xv) an initial Notice of Borrowing with respect to the
Term Loan B; and
(xvi) such other documents, certificates, opinions and
instruments in connection with the transactions contemplated hereby as
it shall have reasonably requested.
(b) The Administrative Agent shall have received a certificate,
signed by the president, the Chief Executive Officer or the Chief Financial
Officer, in form and substance satisfactory to the Administrative Agent,
certifying that (i) all representations and warranties of the Borrower contained
in this Agreement and the other Credit Documents are true and correct as of the
Effective Date, both immediately before and after giving effect to the
consummation of the transactions contemplated hereby, the making of the Loans
hereunder and the, application of the proceeds thereof, (ii) no Default or Event
of Default has occurred and is continuing, both immediately before and after
giving effect to the consummation of the transactions contemplated hereby, the
making of the Loans hereunder and the application of the proceeds thereof, (iii)
both immediately before and after giving effect to the consummation of the
transactions contemplated hereby, the making of the Loans hereunder and the
application of the proceeds thereof, no Material Adverse Change has occurred
since December 31, 2000, and there exists no event, condition or state of facts
that could reasonably be expected to result in a Material Adverse Change, and
(iv) all conditions to the continual extensions of credit hereunder set forth in
this SECTION 7.1 and in SECTION 7.2 have been satisfied as required hereunder.
(c) The Administrative Agent shall have received a certificate of
the secretary or an assistant secretary of each of the Borrower and its
Subsidiaries (including all Excluded Subsidiaries), in form and substance
satisfactory the Administrative Agent, certifying (i) that attached thereto is a
true and complete copy of the articles or certificate of incorporation or
articles or certificate of organization and all amendments thereto of the
Borrower or such Subsidiary, as the case may be certified as of a recent date by
the Secretary of State (or comparable Governmental Authority) of its
jurisdiction of organization, and that the same has not been amended since the
date of such certification, (ii) that attached thereto is a true and complete
copy of the bylaws, operating agreement, partnership agreement or other
comparable document of the Borrower or such Subsidiary, as the case may be, as
then in effect and as in effect at all times from the date on which the
resolutions referred to in clause (iii) below were adopted to and including the
date of such certificate, and (iii) that attached thereto is a true and complete
copy of resolutions adopted by the board of directors, managers, general
partners or other comparable governing body of the Borrower or such Subsidiary,
as the case may be, authorizing the execution, delivery and performance of this
Agreement and the other Credit Documents to which it is a party, and as to the
incumbency and genuineness of the signature of each officer of the Borrower or
such Subsidiary, as the case may be, executing this Agreement or any of such
other Credit Documents, and attaching all such copies of the documents described
above,
(d) The Administrative Agent shall have received (i) a certificate
as of a recent date of the good standing of each of the Borrower and its
Subsidiaries (including al! Excluded Subsidiaries) under the laws of its
jurisdiction of organization, from the Secretary of State (or comparable
Governmental Authority) of such jurisdiction, (ii) a certificate as of a recent
date of the qualification of each of the Borrower and its Subsidiaries
(including all Excluded
67
Subsidiaries) to conduct business as a foreign corporation in each jurisdiction
where it is so qualified as of the Effective Date, from the Secretary of State
(or comparable Governmental Authority) of such jurisdiction, and (iii) to the
extent generally provided, a tax clearance, tax good standing or similar
certificate or letter as to each of the Borrower and its Subsidiaries, from the
Department of Revenue (or comparable Governmental Authority) in each applicable
jurisdiction under (i) and (ii) above.
(e) All legal matters, documentation, and corporate or other
proceedings incident to the transactions contemplated hereby shall be
satisfactory in form and substance to the Administrative Agent; all approvals,
permits and consents of any Governmental Authorities or other Persons required
in connection with the execution and delivery of this Agreement and the other
Credit Documents and the consummation of the transactions contemplated hereby
and thereby shall have been obtained, without the imposition of conditions that
are not acceptable to the Administrative Agent, and all related filings, if any,
shall have been made, and all such approvals, permits, consents and filings
shall be in full force and effect and the Administrative Agent shall have
received such copies thereof as it shall have requested; all applicable waiting
periods shall have expired without any adverse action being taken by any
Governmental Authority having jurisdiction; and no action, proceeding,
investigation, regulation or legislation shall have been instituted, threatened
or proposed before, and no order, injunction or decree shall have been entered
by, any court or other Governmental Authority, in each case to enjoin, restrain
or prohibit, to obtain substantial damages in respect of, or that is otherwise
related to or arises out of, this Agreement, any of the other Credit Documents
or the consummation of the transactions contemplated hereby or thereby, or that,
in the opinion of the Administrative Agent could reasonably be expected to have
a Material Adverse Effect.
(f) Since December 31, 2000, both immediately before and after
giving effect to the consummation of the transactions contemplated by this
Agreement, there shall not have occurred any Material Adverse Change or any
event, condition or state of facts that could reasonably be expected to result
in a Material Adverse Change.
7.2 Conditions of All Borrowings. The obligation of each Lender to
make or continue any Loans hereunder, fund the Term Loan B and make subsequent
Revolving Loans, the obligation of Bank of America to make any Swing Line Loan
and the obligation of the Issuing Lender to issue any Letters of Credit
hereunder, is subject to the satisfaction of the following conditions precedent
on the relevant Borrowing Date or date of issuance:
(a) The Administrative Agent shall have received a Notice of
Borrowing in accordance with SECTION 3.2(b), or (together with Bank of America)
SECTION 3.8(a), or (together with the Issuing Lender) a Letter of Credit Notice
in accordance with SECTION 4.2, as applicable;
(b) Each of the representations and warranties (taking into
account any materiality standards set forth therein) contained in ARTICLE VIII
and in the other Credit Documents shall be true and correct on and as of such
Borrowing Date (including the Effective Date, in the case of the funding of the
Term Loan A and any Borrowing made hereunder), date of such Swing Line Loan or
date of issuance with the same effect as if made on and as of such date, both
immediately before and after giving effect to the Loans or Swing Line Loans to
be made or Letter of Credit to be issued on such date (except to the extent any
such representation or
68
warranty is expressly stated to have been made as of a specific date, in which
case such representation or warranty shall be true and correct in all material
respects as of such date);
(c) No Default or Event of Default shall have occurred and be
continuing on such date, both immediately before and after giving effect to the
Loans or Swing Line Loans to be made or Letter of Credit to be issued on such
date;
Each giving of a Notice of Borrowing or a Letter of Credit Notice, and
the consummation of each Borrowing, advance of a Swing Line Loan or issuance of
a Letter of Credit, shall be deemed to constitute a representation by the
Borrower that the statements contained in subsections (b) and (c) above are
true, both as of the date of such notice or request and as of the relevant
Borrowing Date or date of issuance.
ARTICLE VIII
REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into this
Agreement and to induce the Lenders to extend the credit contemplated hereby,
the Borrower represents and warrants to the Administrative Agent and the Lenders
as follows:
8.1 Corporate Organization and Power. Each of the Borrower and its
Subsidiaries (including all Excluded Subsidiaries) (i) is a corporation, limited
liability company or limited partnership duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation or
organization, (ii) has the full corporate, limited liability company or limited
partnership power and authority to execute, deliver and perform the Credit
Documents to which it is or will be a party, to own and hold its property and to
engage in its business as presently conducted and (iii) is duly qualified to do
business as a foreign corporation, limited liability company or limited
partnership and is in good standing in each jurisdiction where the nature of its
business or the ownership of its properties requires it to be so qualified,
except where the failure to be so qualified would not, individually or in the
aggregate be reasonably likely to have a Material Adverse Effect.
8.2 Authorization: Enforceability. Each of the Borrower and its
Subsidiaries (including all Excluded Subsidiaries) has taken, or on the
Effective Date will have taken all necessary corporate action to execute,
deliver and perform each of the Credit Documents to which it is or will be a
party, and has or on the Effective Date (or any later date of execution and
delivery) will have validly executed and delivered each of the Credit Documents
to which it is or will be a party. This Agreement constitutes, and each of the
other Credit Documents upon execution and delivery will constitute the legal,
valid and binding obligation of each of the Borrower and its Subsidiaries
(including all Excluded Subsidiaries) that is a party hereto or thereto,
enforceable against it in accordance with its terms, except as enforceability
may be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditors' rights generally, by general equitable
principles or by principles of good faith and fair dealing.
8.3 No Violation. The execution, delivery and performance by each
of the Borrower and its Subsidiaries (including all Excluded Subsidiaries) of
this Agreement and each of the other
69
Credit Documents to which it is or will be a party, and compliance by it with
the terms hereof and thereof, do not and will not (i) violate any provision of
its articles or certificate of incorporation or bylaws or contravene any other
Requirement of Law applicable to it, (ii) conflict with, result in a breach of
or constitute (with notice, lapse of time or both) a default under any
indenture, agreement or other instrument to which it is a party, by which it or
any of its properties is bound or to which it is subject, or (iii) result in a
Limitation on any Licenses applicable to the business, operations or properties
of the Borrower or any of its Subsidiaries (including all Excluded Subsidiaries)
or adversely affect the ability of the Borrower or any of its Subsidiaries
(including all Excluded Subsidiaries) to participate in any Third Party Payor
Arrangement, or (iv) except for the Liens granted in favor of the Administrative
Agent pursuant to the Security Documents, result in or require the creation or
imposition of any Lien upon any of its properties or assets. No Subsidiary is a
party to any agreement or instrument or otherwise subject to any restriction or
encumbrance that restricts or limits its ability to make dividend payments or
other distributions in respect of its Capital Stock, to repay Indebtedness owed
to the Borrower or any other Subsidiary (including all Excluded Subsidiaries),
to make loans or advances to the Borrower or any other Subsidiary (including all
Excluded Subsidiaries), or to transfer any of its assets or properties to the
Borrower or any other Subsidiary, in each case other than such restrictions or
encumbrances existing under or by reason of the Credit Documents or applicable
Requirements of Law.
8.4 Governmental and Third-Party Authorization; Permits. (a) No
consent, approval, authorization or other action by, notice to, or registration
or filing with, any Governmental Authority or other Person is or will be
required as a condition to or otherwise in connection with the due execution,
delivery and performance by each of the Borrower and its Subsidiaries (including
all Excluded Subsidiaries) of this Agreement or any of the other Credit
Documents to which it is or will be a party or the legality, validity or
enforceability hereof or thereof, other than (i) filings of Uniform Commercial
Code financing statements and other instruments and actions necessary to perfect
the Liens created by the Security Documents, (ii) consents, authorizations and
filings that have been (or on or prior to the Effective Date will have been)
made or obtained and that are (or on the Effective Date will be) in full force
and effect, which consents, authorizations and filings are listed on SCHEDULE
8.4, and (iii) consents and filings the failure to obtain or make which would
not, individually or in the aggregate, have a Material Adverse Effect.
(b) Each of the Borrower and its Subsidiaries (including all
Excluded Subsidiaries) and each Managed Practice (i) has, and is in good
standing with respect to, all approvals, permits and other Licenses and (to the
extent applicable) all Reimbursement Approvals necessary to conduct its business
as presently conducted and to own or lease and operate its properties, (ii) has
obtained and maintains accreditation from all generally recognized accrediting
agencies for the Borrower and its Subsidiaries to the extent prudent and
customary in the industry in which the Borrower, any of its Subsidiaries or any
Managed Practice is engaged or to the extent required for rehabilitation
entities or skilled nursing facilities, and (iii) if required, has obtained and
maintains Medicaid Certification and Medicare Certification, (iv) if required,
has entered into and maintains in good standing its Medicare Provider Agreement
and its Medicaid Provider Agreement, except, in each case referred to in clauses
(i) through (iv), for those instances the failure to obtain or enter into which
would not be reasonably likely, individually or in the aggregate, to have a
Material Adverse Effect. There is no pending or, to the knowledge of the
70
Borrower, threatened Limitation of any such approval, permit or other License or
Reimbursement Approval of the Borrower or any Subsidiary (including all Excluded
Subsidiaries) or any Managed Practice, except for such Limitations as would not
be reasonably likely, individually or in the aggregate, to have a Material
Adverse Effect.
(c) Each professional employee, officer and director of the
Borrower, the Borrower's Subsidiaries (including all Excluded Subsidiaries), and
any Managed Practices providing professional services to patients of the
Borrower or any such Subsidiary is duly Licensed (where License is required) by
each state or state agency or commission, or any other Governmental Authority
having jurisdiction over the provisions of such services by such employee,
officer or director, in which the Borrower or its Subsidiaries (including all
Excluded Subsidiaries) is located, required to enable such employee, officer or
director to provide the professional services necessary to enable the Borrower
or such Subsidiary to operate as currently operated and as presently
contemplated to be operated and in connection with each such employee related to
the duties performed by such employee. All such required Licenses are in full
force and effect on the date hereof and have not been revoked or suspended or
otherwise limited except where such limitation would not be reasonably expected
to result in a Material Adverse Effect. Each physician retained or otherwise
engaged as an independent contractor by the Borrower or its Subsidiaries
(including all Excluded Subsidiaries) possesses a valid narcotics number issued
by the United States Drug Enforcement Administration and a valid state narcotics
registration.
8.5 Litigation. Except as set forth on SCHEDULE 8.5, there are no
actions, investigations, suits or proceedings pending or, to the knowledge of
the Borrower, threatened, at law, in equity or in arbitration, before any
court, other Governmental Authority or other Person, (i) against or, to the
Borrower's knowledge, affecting the Borrower, any of its Subsidiaries (including
all Excluded Subsidiaries) any Managed Practice or any of their respective
properties that would, if adversely determined, be reasonably likely to have a
Material Adverse Effect, or (ii) with respect to this Agreement or any of the
other Credit Documents.
8.6 Taxes. Except as set forth on SCHEDULE 8.6, each of the
Borrower and its Subsidiaries (including all Excluded Subsidiaries) has timely
filed all federal, state and local tax returns and reports required to be filed
by it and has paid all taxes, assessments, fees and all other charges levied
upon it or upon its properties that are shown thereon as due and payable, other
than those that are being contested in good faith and by proper proceedings and
for which adequate reserves have been established in accordance with GAAP.
Except as set forth on SCHEDULE 8.6, such returns accurately reflect in all
material respects all liability for taxes of the Borrower and its Subsidiaries
(including all Excluded Subsidiaries) for the periods covered thereby. Except as
set forth on SCHEDULE 8.6, as of the Effective Date, there is no ongoing_audit
or examination or, to the knowledge of the Borrower, other investigation by any
Governmental Authority of the tax liability of the Borrower or any of its
Subsidiaries (including all Excluded Subsidiaries). Except as set forth on
SCHEDULE 8.6, there is no unresolved claim by any Governmental Authority
concerning the tax liability of the Borrower or any of its Subsidiaries for any
period for which tax returns have been or were required to have been filed,
other than claims for which adequate reserves have been established in
accordance with GAAP. Except as set forth on SCHEDULE 8.6, neither the Borrower
nor any of its Subsidiaries (including all Excluded Subsidiaries) has waived or
extended or has been requested to waive or extend the statute of limitations
relating to the payment of any taxes.
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8.7 Subsidiaries. SCHEDULE 8.7 sets forth a list, as of the
Effective Date, of all of the Subsidiaries (including all Excluded Subsidiaries)
of the Borrower and, as to each such Subsidiary, the percentage ownership
(direct and indirect) of the Borrower in each class of its Capital Stock and
each direct owner thereof. Except for the shares of Capital Stock expressly
indicated on SCHEDULE 8.7, there are no shares of Capital Stock, warrants,
rights, options or other equity securities, or other Capital Stock of any
Subsidiary of the Borrower (including all Excluded Subsidiaries) outstanding or
reserved for any purpose. All outstanding shares of Capital Stock of each
Subsidiary (including all Excluded Subsidiaries) of the Borrower are duly and
validly issued, fully paid and nonassessable. The Borrower and, as applicable,
any Subsidiary, is the sole legal, record and beneficial owner of, and has good
and valid title to, all such Capital Stock, free and clear of all Liens other
than the Liens created pursuant to the Security Agreement. As of the Effective
Date, neither the Borrower nor any Subsidiary (including ail Excluded
Subsidiaries) is engaged in any joint venture, partnership or similar
arrangement with any other Person except, as set forth on SCHEDULE 8.7.
8.8 Full Disclosure. All factual information heretofore or
contemporaneously furnished to the Administrative Agent or any Lender in writing
by or on behalf of the Borrower or any of its Subsidiaries (including all
Excluded Subsidiaries) in connection with this Agreement and the transactions
contemplated hereby and related to this Agreement or another Credit Document is,
and all other such factual information hereafter furnished to the Administrative
Agent or any Lender in writing by or on behalf of the Borrower or any of its
Subsidiaries (including all Excluded Subsidiaries) will be, true and accurate in
all material respects on the date as of which such information is dated or
certified (or, if such information has been amended or supplemented, on the date
as of which any such amendment or supplement is dated or certified) and not made
incomplete by omitting to state a material fact necessary to make the statements
contained therein, in light of the circumstances under which such information
was provided, not misleading.
8.9 Margin Stock. The proceeds of the Borrowings made hereunder
will be used by the Borrower only for the purposes expressly authorized herein.
None of such proceeds will be used, directly or indirectly, for the purpose of
purchasing or carrying any Margin Stock or for the purpose of reducing or
retiring any Indebtedness which was originally incurred to purchase or carry
Margin Stock or for any other purpose which violates or which would be
inconsistent with Regulation U (12 CFR Part 221) or Regulation X (12 CFR Part
224) of the FRB. Neither the Borrower nor any agent acting on its behalf has
taken or will take any action which might cause this Agreement or any of the
other Credit Documents or instruments delivered pursuant hereto to violate any
regulation of the Board or to violate the Securities Exchange Act of 1934, as
amended, or the Securities Act of 1933, as amended, or any state securities
laws, in each case as in effect on the date hereof.
8.10 No Material Adverse Change. There has been no Material Adverse
Change since December 31, 2000, and there exists no event, condition or state of
facts that could reasonably be expected to result in a Material Adverse Change.
8.11 Financial Matters. (a) The Borrower has heretofore furnished
to the Administrative Agent copies of (i) the audited consolidated balance
sheets of the Borrower and its Subsidiaries (including any Excluded
Subsidiaries) as of December 31, 2000, 2001 and 2002, and the related statements
of income, cash flows and stockholders' equity for the fiscal years
72
then ended, together with the opinion of ▇▇▇▇▇ & Young LLP thereon, (ii) the
draft audited consolidated balance sheet of the Borrower and its Subsidiaries
(including any Excluded Subsidiaries) as of December 31, 2003, and the related
statements of income, cash flows and stockholders' equity for the twelve month
period then ended (the "Draft 2003 Audit") and (iii) the company-prepared
consolidated balance sheets of the Borrower and its Subsidiaries (including
Excluded Subsidiaries) for the two-month period ended February 29, 2004 (the
"Two-Month Stub"). Such financial statements have been prepared in accordance
with GAAP and present fairly the financial condition of the Borrower and its
Subsidiaries (including any Excluded Subsidiaries) on a consolidated basis as of
the respective dates thereof and the consolidated results of operations of the
Borrower and its Subsidiaries for the respective periods then ended. Except as
fully reflected in the most recent financial statements referred to above and
the notes thereto or as disclosed on SCHEDULE 8,11, there are no material
liabilities or obligations of the Borrower or any of its Subsidiaries of any
nature whatsoever (whether absolute, contingent or otherwise and whether or not
due).
(b) The unaudited pro forma balance sheet of the Borrower as of
February 29, 2004, a copy of which has heretofore been delivered to the
Administrative Agent, gives pro forma effect to the funding of the Term Loan B
and the consummation of the Dividend Payment, and the payment of transaction
fees and expenses related to the foregoing, all as if such events had occurred
on such date (the "Pro Forma Balance Sheet"). The Pro Forma Balance Sheet has
been prepared in accordance with GAAP (subject to the absence of footnotes
required by GAAP and subject to normal year-end adjustments) and. subject to
stated assumptions made in good faith and having a reasonable basis set forth
therein, presents fairly the financial condition of the Borrower on an unaudited
pro forma basis as of the date set forth therein after giving effect to the
consummation of the transactions described above.
(c) The Borrower has prepared, and has heretofore furnished to the
Administrative Agent a copy of, annual projected balance sheets and statements
of income and cash flows of the Borrower for the three-year period beginning
with the year ended December 31, 2002, giving effect to the consummation of the
transactions contemplated by this Agreement, the initial extensions of credit
hereunder, and the payment of transaction fees and expenses related to the
foregoing (the "Projections"). In the opinion of management of the Borrower, the
assumptions used in the preparation of the Projections were fair, complete and
reasonable when made and continue to be fair, complete and reasonable as of the
date hereof. The Projections have been prepared in good faith by the executive
and financial personnel of the Borrower, are complete and represent a reasonable
estimate of the future performance and financial condition of the Borrower,
subject to the uncertainties and approximations inherent in any projections.
(d) Each of the Borrower and its Subsidiaries (including any
Excluded Subsidiaries), after giving effect to the consummation of the
transactions contemplated hereby and taking into account rights of contribution,
(i) has capital sufficient to carry on its businesses as conducted and as
proposed to be conducted, (ii) has assets with a fair saleable value, determined
on a going concern basis, (y) not less than the amount required to pay the
probable liability on its existing debts as they become absolute and matured and
(z) greater than the total amount of its liabilities (including identified
contingent liabilities, valued at the amount that can reasonably be expected to
become absolute and matured), and (iii) does not intend to, and does not believe
that it will incur debts or liabilities beyond its ability to pay such debts and
liabilities as they mature.
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8.12 Ownership of Properties. Except as set forth on SCHEDULE 8.12,
each of the Borrower and its Subsidiaries (including all Excluded Subsidiaries)
(i) has good and marketable title to all real property owned by it (including
the Mortgaged Property), (ii) holds interests as lessee under valid leases in
full force and effect with respect to all material leased real and personal
property used in connection with its business, (iii) possesses or has rights to
use licenses, patents, copyrights, trademarks, service marks, trade names and
other assets sufficient to enable it to continue to conduct its business
substantially as heretofore conducted and without any material conflict with the
rights of others, and (iv) has good title to all of its other properties and
assets reflected in the most recent financial statements referred to in SECTION
8.11 (a) (except as sold or otherwise disposed of since the date thereof in the
ordinary course of business), in each case under (i), (ii), (iii) and (iv) above
free and clear of all Liens other than Permitted Liens. SCHEDULE 8.12 lists, as
of the Effective Date, all real property interests of the Borrower and its
Subsidiaries, indicating in each case the identity of the owner, the address of
the property, the nature of use of the premises, and whether such interest is a
leasehold or fee ownership interest.
8.13 Employee Benefit Plans.
(a) The Borrower and each ERISA Affiliate is in
compliance with all applicable provisions of ERISA and the regulations
and published interpretations thereunder and in compliance with all
Foreign Benefit Laws with respect to all Employee Benefit Plans except
for any required amendments for which the remedial amendment period as
defined in Section 401 (b) of the Code has not yet expired. Each
Employee Benefit Plan that is intended to be qualified under Section
401 (a) of the Code has been determined or the Borrower or its
Subsidiaries is in the process of obtaining a determination by the
Internal Revenue Service to be so qualified, each trust related to such
plan has been determined to be exempt under Section 501 (a) of the
Code, and each Employee Benefit Plan subject to any Foreign Benefit Law
has received the required approvals by any Governmental Authority
regulating such Employee Benefit Plan. No material liability has been
incurred by the Borrower or any ERISA Affiliate which remains
unsatisfied for any taxes or penalties with respect to any Employee
Benefit Plan or any Multiemployer Plan;
(b) Neither the Borrower nor any ERISA Affiliate has (i)
engaged in a nonexempt prohibited transaction described in Section 4975
of the Code or Section 406 of ERISA affecting any of the Employee
Benefit Plans or the trusts created thereunder which could subject any
such Employee Benefit Plan or trust to a material tax or penalty on
prohibited transactions imposed under Internal Revenue Code Section
4975 or ERISA, (ii) incurred any accumulated funding deficiency with
respect to any Employee Benefit Plan, whether or not waived, or any
other liability to the PBGC which remains outstanding other than the
payment of premiums and there are no premium payments which are due and
unpaid, (iii) failed to make a required contribution or payment to a
Multiemployer Plan, (iv) failed to make a required installment or other
required payment under Section 412 of the Code, Section 302 of ERISA or
the terms of such Employee Benefit Plan, or (v) failed to make a
required contribution or payment, or otherwise failed to operate in
compliance with any Foreign Benefit Law regulating any Employee Benefit
Plan;
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(c) No Termination Event has occurred or is reasonably
expected to occur with respect to any Pension Plan or Multiemployer
Plan, and neither the Borrower nor any ERISA Affiliate has incurred any
unpaid withdrawal liability with respect to any Multiemployer Plan;
(d) The present value of all vested accrued benefits
under each Employee Benefit Plan which is subject to Title IV of ERISA,
or the funding of which is regulated by any Foreign Benefit Law did
not, as of the most recent valuation date for each such plan, exceed
the then current value of the assets of such Employee Benefit Plan
allocable to such benefits;
(e) To the best of the Borrower's knowledge, each
Employee Benefit Plan which is subject to Title IV of ERISA or the
funding of which is regulated by any Foreign Benefit Law, maintained by
the Borrower or any ERISA Affiliate, has been administered in
accordance with its terms in all material respects and is in compliance
in all material respects with all applicable requirements of ERISA,
applicable Foreign Benefit Law and other applicable laws, regulations
and rules;
(f) The consummation of the Loans and the issuance of the
Letters of Credit provided for herein will not involve any prohibited
transaction under ERISA which is not subject to a statutory or
administrative exemption; and
(g) No material proceeding, claim, lawsuit and/or
investigation exists or, to the best knowledge of the Borrower after
due inquiry, is threatened concerning or involving any Employee Benefit
Plan.
8.14 Environmental Matters, (a) Except as set forth on SCHEDULE
8.14(a), no Hazardous Substances are, or have been generated, used, located,
released, treated, disposed of or stored by the Borrower or any of its
Subsidiaries (including all Excluded Subsidiaries) or, to the knowledge of the
Borrower, by any other Person (including any predecessor in interest), in, on or
under any portion of any real property leased or owned by the Borrower or any of
its Subsidiaries (including all Excluded Subsidiaries), except in material
compliance with all applicable Environmental Laws, and no portion of any such
real property or, to the knowledge of the Borrower, any other real property at
any time leased, owned or operated by the Borrower or any of its Subsidiaries,
requires remedial action under any Environmental Law; and, to the knowledge of
the Borrower, no portion of any real property, leased or owned, by the Borrower
or any of its Subsidiaries (including all Excluded Subsidiaries) has been or is
presently the subject of remedial action.
(b) Except as set forth on SCHEDULE 8.14(b), no portion of any
real property leased or owned by the Borrower or any of its Subsidiaries
(including all Excluded Subsidiaries) has been used by the Borrower or any of
its Subsidiaries (including any Excluded Subsidiary) or, to the knowledge of the
Borrower, by any other Person, as or for a mine, a landfill, a dump or other
disposal facility, a gasoline service station, or (other than for petroleum
substances stored in the ordinary course of business) a petroleum products
storage facility; to the knowledge of the Borrower, no portion of such real
property or any other real property at any time leased, owned or operated by the
Borrower or any of its Subsidiaries (including any Excluded Subsidiary) has,
75
pursuant to any Environmental Law, been placed on the "National Priorities List"
or "CERCLIS List" (or any similar federal, state or local list) of sites subject
to possible environmental problems; and, to the knowledge of the Borrower, there
are not and have never been any underground storage tanks situated on any real
property, leased or owned, by the Borrower or any of its Subsidiaries.
(c) All activities and operations of the Borrower and its
Subsidiaries (including all Excluded Subsidiaries) are in compliance with the
requirements of all applicable Environmental Laws, except to the extent the
failure so to comply, individually or in the aggregate, would not be reasonably
likely to have a Material Adverse Effect. Each of the Borrower and its
Subsidiaries (including all Excluded Subsidiaries) has obtained all licenses and
permits under Environmental Laws necessary to its respective operations: all
such licenses and permits are being maintained in good standing and each of the
Borrower and its Subsidiaries (including all Excluded Subsidiaries) is in
compliance with all terms and conditions of such licenses and permits, except
for such failure to obtain or maintain a license or permit or such noncompliance
that would not be reasonably likely, individually or in the aggregate, to have a
Material Adverse Effect. Neither the Borrower nor any of its Subsidiaries
(including any Excluded Subsidiary) is involved in any suit, action or
proceeding, or has received any notice or complaint from any Governmental
Authority or other Person, with respect to any actual or alleged Environmental
Claims that, if adversely determined, would be reasonably likely, individually
or in the aggregate, to have a Material Adverse Effect: and, to the knowledge of
the Borrower, there are no threatened actions, suits, proceedings or
investigations with respect to any such Environmental Claims, nor any basis
therefor.
8.15 Compliance With Laws. Each of the Borrower and its
Subsidiaries (including all Excluded Subsidiaries) has timely filed all material
reports, documents and other materials required to be filed by it under all
applicable Requirements of Law with any Governmental Authority, has retained all
material records and documents required to be retained by it under all
applicable Requirements of Law, and is otherwise in compliance with all
applicable Requirements of Law in respect of the conduct of its business and the
ownership and operation of its properties (including, without limitation, all
applicable Medicare Regulations and Medicaid Regulations), except for such
Requirements of Law the failure to comply with which, individually or in the
aggregate, would not be reasonably likely to have a Material Adverse Effect.
8.16 Regulated Industries. Neither the Borrower nor any of its
Subsidiaries (including any Excluded Subsidiary) is (i) an "investment company,"
a company "controlled" by an "investment company," or an "investment advisor,"
within the meaning of the Investment Company Act of 1940, as amended, or (ii) a
"holding company," a "subsidiary company" of a "holding company," or an
"affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company," within the meaning of the Public Utility Holding Company Act of 1935,
as amended.
8.17 Insurance. SCHEDULE 8.17 sets forth a true and complete
summary of all insurance policies or arrangements carried or maintained by the
Borrower and its Subsidiaries (including all Excluded Subsidiaries) as of the
Effective Date, indicating in each case the insurer, policy number, expiration,
amount and type of coverage and deductibles. The assets, properties and business
of the Borrower arid its Subsidiaries (including ail Excluded Subsidiaries) are
insured
76
against such hazards and liabilities, under such coverages and in such amounts,
as are customarily maintained by prudent companies similarly situated and under
policies issued by insurers of recognized responsibility.
8.18 Material Contracts. SCHEDULE 8.18 lists, as of the Effective
Date, each "material contract" (within the meaning of Item 601(b)(10) of
Regulation S-K under the Exchange Act) to which the Borrower or any of its
Subsidiaries (including any Excluded Subsidiary) is a party, by which any of
them or their respective properties is bound or to which any of them is subject
(collectively, "Material Contracts"), and also indicates the parties, subject
matter and term thereof. As of the Effective Date, (i) each Material Contract is
in full force and effect and is enforceable by the Borrower or the Subsidiary
that is a party thereto in accordance with its terms, and (ii) neither the
Borrower nor any of its Subsidiaries (including any Excluded Subsidiary) (nor,
to the knowledge of the Borrower, any other party thereto) is in breach of or
default under any Material Contract in any material respect or has given notice
of termination or cancellation of any Material Contract.
8.19 Security Documents. (a) The provisions of each of the Security
Documents (whether executed and delivered prior to or on the Effective Date or
thereafter) are and will be effective to create in favor of the Administrative
Agent, for its benefit and the benefit of the Lenders, a valid and enforceable
security interest in and Lien upon all right, title and interest of each of the
Borrower and its Subsidiaries (including, to the extent applicable, each
Excluded Subsidiary) that is a party thereto in and to the Collateral purported
to be pledged by it thereunder and described therein, and upon (i) the filing of
appropriately completed Uniform Commercial Code financing statements and
continuations thereof in the jurisdictions specified therein, (ii) if
applicable, the filing of appropriately completed short-form assignments in the
U.S. Patent and Trademark Office and the U.S. Copyright Office, and (iii) the
possession by the Administrative Agent of any certificates evidencing the
securities pledged thereby, such security interest and Lien shall constitute a
fully perfected and first priority security interest in and Lien upon such
right, title and interest of the Borrower or such Subsidiary, as applicable, in
and to such Collateral, to the extent that such security interest and Lien can
be perfected by such filings, actions and possession, subject only to Permitted
Liens.
(b) Each Mortgage is effective to create in favor of the
Administrative Agent, for its benefit and the benefit of the Lenders, a legal,
valid and enforceable Lien on all of the right, title and interest of Borrower
and its Subsidiaries, as applicable, in and to the Mortgaged Property subject to
each Mortgage and the proceeds thereof, and when each Mortgage is filed in the
applicable filing office specified on SCHEDULE 8.19(b), the Mortgages shall
constitute a fully perfected Lien on, and security interest in, all right, title
and interests of Borrower and its Subsidiaries, as applicable, in all real
property owned by the Borrower and its Subsidiaries, the buildings and
improvements located on such real property and all proceeds thereof, in each
case prior and superior in right to any other Person, subject only to Permitted
Liens.
8.20 Labor Relations. As of the Effective Date, and following the
Effective Date to the extent that such would result in a Material Adverse
Effect, neither the Borrower nor any of its Subsidiaries is engaged in any
unfair labor practice within the meaning of the National Labor Relations Act of
1947, as amended. There is (i) no unfair labor practice complaint before the
National Labor Relations Board, or grievance or arbitration proceeding arising
out of or under any collective bargaining agreement, pending or, to the
knowledge of the Borrower, threatened,
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against the Borrower or any of its Subsidiaries, (ii) no strike, lock-out,
slowdown, stoppage, walkout or other labor dispute pending or, to the knowledge
of the Borrower, threatened, against the Borrower or any of its Subsidiaries,
and (iii) to the knowledge of the Borrower, no petition for certification or
union election or union organizing activities taking place with respect to the
Borrower or any of its Subsidiaries.
8.21 Intentionally Deleted.
8.22 Service Agreements. No Service Agreement to which the Borrower
or any of its Subsidiaries (including all Excluded Subsidiaries) is a party, nor
any of the transactions contemplated thereunder, violates any applicable
Requirement of Law (i) relating to the eligibility of a Managed Practice to
enter into or participate in any Third Party Payor Arrangement or otherwise
applicable to such Managed Practice as a result of such participation, (ii)
relating to any License or Reimbursement Approval of a Managed Practice required
in connection with any Third Party Payor Arrangement in which it participates,
or (iii) relating to the practice of medicine or the sharing of fees in
connection therewith, except in each case under (i), (ii) and (iii) above for
such violations as would not, individually or in the aggregate, be reasonably
likely to have a Material Adverse Effect.
8.23 Reimbursement. The accounts receivable of the Borrower and
each Subsidiary (including any Excluded Subsidiary) have been properly adjusted
in all material respects to reflect the reimbursement policies under all
applicable Requirements of Law (including, without limitation, all applicable
Medicare Regulations and Medicaid Regulations) and other Third Party Payor
Arrangements to which the Borrower or such Subsidiary or any Managed Practice is
subject, and do not exceed in any material respect amounts the Borrower, such
Subsidiary or Managed Practice is entitled to receive under any capitation
arrangement, fee schedule, discount formula, cost-based reimbursement or other
adjustment or limitation to usual charges. All ▇▇▇▇▇▇▇▇ by the Borrower, each
Subsidiary (including any Excluded Subsidiary) and each Managed Practice
pursuant to Third Party Payor Arrangements have been made in compliance with all
applicable Requirements of Law, except where the failure to comply would not,
individually or in the aggregate, be reasonably likely to have a Material
Adverse Effect; and there has been no intentional or material overbilling or
overcollection pursuant to any Third Party Payor Arrangements, other than as
created by routine adjustments and disallowances made in the ordinary course of
business by the payors with respect to such ▇▇▇▇▇▇▇▇.
8.24 Fraud and Abuse. None of the Borrower, any Subsidiary
(including any Excluded Subsidiary), any Managed Practice, or any physician
shareholder or employee of any Managed Practice, has engaged in any activities
that are prohibited under 42 U.S.C. Sections. 1320a-7b, or the regulations
promulgated thereunder, or related Requirements of Law, or that are prohibited
by rules of professional conduct, including, without limitation, the following:
(i) knowingly and willfully making or causing to be made a false statement or
misrepresentation of a material fact in any application for any benefit or
payment; (ii) knowingly and willfully making or causing to be made any false
statement or misrepresentation of a material fact for use in determining rights
to any benefit or payment; (iii) failure to disclose knowledge by a claimant of
the occurrence of any event affecting the initial or continued right to any
benefit or payment on its own behalf or on behalf of another with intent to
secure such benefit or payment fraudulently; and (iv) knowingly and willfully
soliciting or receiving any remuneration (including any kickback, bribe or
rebate), directly or indirectly, overtly or covertly, in cash or in land or
offering to pay or
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receive such remuneration (y) in return for referring an individual to a Person
for the furnishing or arranging for the furnishing of any item or service for
which payment may be made in whole or in part by Medicare, Medicaid or any other
government or private third party payor, or (z) in return for purchasing,
leasing, or ordering or arranging for or recommending purchasing, leasing or
ordering any good facility, service, or item for which payment may be made in
whole or in part by Medicare, Medicaid or any other government or private third
party payor.
8.25 Maintenance of Mortgaged Property. As of the Effective Date,
there has been no material change in the market conditions applicable to or
physical aspect of any Mortgaged Property that would threaten the Administrative
Agent's real estate Collateral protection, ordinary wear and tear excepted.
8.26 Assets of Borrower. The Borrower (a) does not own,
beneficially or of record, any assets other than (i) equity interests in its
Subsidiaries and Excluded Subsidiaries and Physician Notes, and (ii) such other
assets as are de minimis with respect to the consolidating balance sheet of the
Borrower on a stand-alone basis, and (b) does not conduct business, operations
or generate any revenue except (i) such revenue received as distributions on
Capital Stock of its Subsidiaries and Excluded Subsidiaries and (ii) such other
revenue as is de minimis with respect to the consolidating income statement of
the Borrower on a stand-alone basis.
ARTICLE IX
AFFIRMATIVE COVENANTS
The Borrower covenants and agrees that, until the termination of the
Revolving Credit Commitments, the termination or expiration of all Letters of
Credit and the payment in full of all principal and interest with respect to the
Loans and all Reimbursement Obligations together with all other amounts then due
and owing hereunder:
9.1 Financial Statements. The Borrower will deliver to the
Administrative Agent:
(a) As soon as available and in any event within forty-five (45)
days after the end of each of the first three fiscal quarters of each fiscal
year, beginning with the fiscal quarter ending March 31, 2004, unaudited
consolidated balance sheets of the Borrower and its Subsidiaries (including all
Excluded Subsidiaries) as of the end of such fiscal quarter and unaudited
consolidated statements of income, retained earnings, and cash flows for the
Borrower and its Subsidiaries (including all Excluded Subsidiaries) for the
fiscal quarter then ended and for that portion of the fiscal year then ended, in
each case setting forth comparative consolidated figures as of the end of and
for the corresponding period in the preceding fiscal year together with
comparative budgeted figures for such fiscal year to date, all in reasonable
detail and prepared in accordance with GAAP (subject to the absence of notes
required by GAAP and subject to the absence of normal year-end adjustments)
applied on a basis consistent with that of the preceding quarter or containing
disclosure of the effect on the financial condition or results of operations of
any change in the application of accounting principles and practices during such
quarter; and
(b) (i) As soon as available and in any event within one hundred
(100) days after the end of each fiscal year, beginning with the fiscal year
ending December 31, 2003, an auditor's draft of a consolidated balance sheet of
the Borrower and its Subsidiaries (including all Excluded
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Subsidiaries) as of the end of such fiscal year and consolidated statements of
income, retained earnings and cash flows for the Borrower and its Subsidiaries
(including all Excluded Subsidiaries) for the fiscal year then ended, including
the notes thereto, in each case setting forth comparative figures as of the end
of and for the preceding fiscal year together with unaudited comparative
budgeted figures for the fiscal year then ended, all in reasonable detail; (ii)
as soon as available and in any event within one hundred thirty-five (135) days
after the end of each fiscal year (by May 15), beginning with the fiscal year
ended December 31, 2003, an audited consolidated balance sheet of the Borrower
and its Subsidiaries (including all Excluded Subsidiaries) as of the end of such
fiscal year and audited consolidated statements of income, retained earnings and
cash flows for the Borrower and its Subsidiaries for the fiscal year then ended,
including the notes thereto, in each case setting forth comparative figures as
of the end of and for the preceding fiscal year together with unaudited
comparative budgeted figures for the fiscal year then ended, together with an
accounting of any changes from the auditor's draft delivered pursuant to SECTION
9.1(b)(i) above, all in reasonable detail and certified by the independent
certified public accounting firm regularly retained by the Borrower or another
independent certified public accounting firm of recognized national standing
reasonably acceptable to the Required Lenders, together with (y) a report
thereon by such accountants that is not qualified as to going concern or scope
of audit and to the effect that such financial statements present fairly the
consolidated financial condition and results of operations of the Borrower and
its Subsidiaries (including all Excluded Subsidiaries) as of the dates and for
the periods indicated in accordance with GAAP applied on a basis consistent with
that of the preceding year or containing disclosure of the effect on the
financial condition or results of operations of any change in the application of
accounting principles and practices during such year, and (z) a report by such
accountants to the effect that, based on and in connection with their
examination of the financial statements of the Borrower and its Subsidiaries
(including all Excluded Subsidiaries), they obtained no knowledge of the
occurrence or existence of any Default or Event of Default relating to
accounting or financial reporting matters, or a statement specifying the nature
and period of existence of any such Default or Event of Default disclosed by
their audit; provided, however, that such accountants shall not be liable by
reason of the failure to obtain knowledge of any Default or Event of Default
that would not be disclosed or revealed in the course of their audit
examination, and (iii) as soon as available and in any event within one hundred
(100) days after the end of each fiscal year, beginning with the fiscal year
ending December 31, 2003, an unaudited consolidating balance sheet of the
Borrower and its Subsidiaries (including all Excluded Subsidiaries) as of the
end of such fiscal year and unaudited consolidating statements of income, cash
flows and stockholders' equity for the Borrower and its Subsidiaries (including
all Excluded Subsidiaries) for the fiscal year then ended, all in reasonable
detail.
Notwithstanding anything in this subsection (b) to the contrary, in the
event that the Borrower delivers its audited financial statements to the
Administrative Agent within ninety (90) days after the end of any fiscal year,
it shall not be required to deliver any draft financial statements with respect
to such fiscal year as otherwise required by this subsection (b).
9.2 Other Business and Financial Information. The Borrower will
deliver to each Lender:
(a) Concurrently with each delivery of the financial statements
described in SECTION 9.1 (except, for the auditor's draft financial statements
provided for in subsection (b) thereof) a
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Compliance Certificate with respect to the period covered by the financial
statements then being delivered, executed by a Financial Officer, setting forth
all Allowable Tax Distributions made during the immediately preceding fiscal
quarter, together with (i) Covenant Compliance Worksheet reflecting the
computation of the financial covenants set forth in ARTICLE X and ARTICLE XI as
of the last day of the period covered by such financial statements, (ii) an
accounts receivable aging schedule for the consolidated company and individual
locations, and (iii) Securities and Exchange Commission reports and filings,
management letters from auditors and other operating and financial information
reasonably requested by the Administrative Agent;
(b) Concurrently with the delivery of the financial statements
described in SECTION 9.1(b), in the aggregate and by individual location or
other grouping acceptable to the Borrower and the Required Lenders, (i)
unaudited income information (including revenues and Consolidated EBITDA) for
such fiscal year then ended, (ii) a schedule of actual maintenance Capital
Expenditures (including repairs and maintenance) for such fiscal year then
ended, and (iii) the maintenance Capital Expenditure budget for the fiscal year
following the fiscal year then ended;
(c) Within twenty-five (25) days of the end of each calendar
month, a certificate executed by a Financial Officer reflecting (i) the
Allowable Tax Distributions made during the immediately preceding calendar
month, (ii) any distributions permitted under SECTION 11.6(a)(ii) made during
the immediately preceding calendar month, and (iii) the estimated Consolidated
Net Income for the current fiscal quarter.
(d) Promptly upon receipt thereof, copies of any "management
letter" submitted to the Borrower or any of its Subsidiaries by its certified
public accountants in connection with each annual, interim or special audit, and
promptly upon completion thereof, any response reports from the Borrower or any
such Subsidiary in respect thereof;
(e) Concurrently with the sending, filing or receipt thereof,
copies of (i) all financial statements, reports, notices and proxy statements of
the Borrower or any of its Subsidiaries that the Borrower shall send or make
available generally to its shareholders, (ii) all regular, periodic and special
reports, registration statements and prospectuses (other than on Form S-8) that
the Borrower or any of its Subsidiaries (including any Excluded Subsidiaries)
shall render to or file with the Securities and Exchange Commission, the
National Association of Securities Dealers, Inc. or any national securities
exchange, and (iii) all press releases and other statements made available
generally by the Borrower or any of its Subsidiaries to the public concerning
material developments in the business of the Borrower or any of its
Subsidiaries;
(f) Promptly upon (and in any, event within five (5) Business Days
after) any Authorized Officer obtaining knowledge thereof, written notice of any
of the following:
(i) the occurrence of any Default or Event of Default,
together with a written statement of a Authorized Officer of the
Borrower specifying the nature of such Default or Event of Default, the
period of existence thereof and the action that the Borrower has taken
and proposes to take with respect thereto;
(ii) the institution or threatened institution of any
action, suit, investigation or proceeding against or affecting the
Borrower, any of its Subsidiaries (including all
81
Excluded Subsidiaries) or any Managed Practice, including any such
investigation or proceeding by any Governmental Authority (other than
routine periodic inquiries, investigations or reviews), that would, if
adversely determined, be reasonably likely, individually or in the
aggregate, to have a Material Adverse Effect, and any material
development in any litigation or other proceeding previously reported
pursuant to SECTION 8.5 or this SUBSECTION 9.2(f);
(iii) the receipt by the Borrower or any of its
Subsidiaries (including all Excluded Subsidiaries) from any
Governmental Authority or other Person of (y) any notice asserting any
failure by the Borrower, any of its Subsidiaries or any Managed
Practice to be in compliance with applicable Requirements of Law or
that threatens the taking of any action against such Person or sets
forth circumstances that, if taken or adversely determined, would be
reasonably likely to have a Material Adverse Effect, or (z) any notice
of any actual or threatened Limitation with respect to any License or
Reimbursement Approval of the Borrower, any of its Subsidiaries or any
Managed Practice, where such action would be reasonably likely to have
a Material Adverse Effect;
(iv) the occurrence of any ERISA Event, together with (x)
a written statement of a Authorized Officer of the Borrower specifying
the details of such ERISA Event and the action that the Borrower has
taken and proposes to take with respect thereto, (y) a copy of any
notice with respect to such ERISA Event that may be required to be
filed with the PBGC and (z) a copy of any notice delivered by the PBGC
to the Borrower or such ERISA Affiliate with respect to such ERISA
Event;
(v) the occurrence of any material default under, or any
proposed or threatened termination or cancellation of, any Material
Contract or other material contract or agreement to which the Borrower,
any of its Subsidiaries (including all Excluded Subsidiaries) or any
Managed Practice is a party, the termination or cancellation of which
would be reasonably likely to have a Material Adverse Effect;
(vi) the occurrence of any of the following: (x) the
assertion of any Environmental Claim against or affecting the Borrower,
any of its Subsidiaries (including all Excluded Subsidiaries) or any of
their respective real property leased or owned; (y) the receipt by the
Borrower or any of its Subsidiaries (including any Excluded Subsidiary)
of notice of any alleged violation of or noncompliance with any
Environmental Laws; or (z) the taking of any remedial action by the
Borrower, any of its Subsidiaries or any other Person in response to
the actual or alleged generation storage, release, disposal or
discharge of any Hazardous Substances on, to, upon or from any real
property leased or owned by the Borrower or any of its Subsidiaries;
but in each case under clauses (x), (y) and (z) above, only to the
extent the same would be reasonably likely to have a Material Adverse
Effect;
(vii) any other matter or event that has, or would be
reasonably likely to have, a Material Adverse Effect, together with a
written statement of a Authorized Officer of the Borrower setting forth
the nature and period of existence thereof and the action that the
Borrower has taken and proposes to take with respect thereto;
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(g) Contemporaneously with delivery of the Financial Statements
required under SECTION 9.1(b), beginning with the fiscal year ended December
31, 2003, consolidated projections for the Borrower and its Subsidiaries
(including all Excluded Subsidiaries) for the succeeding three (3) fiscal years
(prepared on a quarterly basis), together with a certificate of a Financial
Officer of the Borrower to the effect that such projections have been prepared
in good faith and are reasonable estimates of the financial position and results
of operations of the Borrower and its Subsidiaries for the period covered
thereby; and, as soon as available from time to time thereafter, any
modifications or revisions to or restatements of such projections; and
(h) As promptly as reasonably possible, such other information
about the business, condition (financial or otherwise), operations or properties
of the Borrower or any of its Subsidiaries (including all Excluded Subsidiaries)
(including any Plan and any information required to be filed under ERISA) as the
Administrative Agent or any Lender may from time to time reasonably request.
9.3 Corporate Existence; Franchises; Maintenance of Properties.
The Borrower will, and will cause each of its Subsidiaries (including all
Excluded Subsidiaries) to, (i) maintain and preserve in full force and effect
its corporate existence, except as expressly permitted otherwise by SECTION
11.1, (ii) obtain, maintain and preserve in full force and effect all other
rights, franchises, licenses, permits, certifications, approvals, authorizations
and other Licenses, and all Reimbursement Approvals, required by Governmental
Authorities and necessary to the ownership, occupation or use of its properties
or the conduct of its business, except to the extent the failure to do so would
not be reasonably likely to have a Material Adverse Effect, and (iii) keep all
material properties in good working order and condition (normal wear and tear
excepted) and from time to time make all necessary repairs to and renewals and
replacements of such properties, except to the extent that any of such
properties are obsolete or are being replaced; provided that it is acknowledged
that Radiation Therapy Payroll Services, Inc. is currently inactive.
9.4 Compliance with Laws. The Borrower will, and will cause each
of its Subsidiaries (including all Excluded Subsidiaries) to, comply in all
respects with all Requirements of Law applicable in respect of the conduct of
its business and the ownership and operation of its properties (including,
without limitation, all applicable Medicare Regulations and Medicaid
Regulations), except to the extent the failure so to comply would not be
reasonably likely to have a Material Adverse Effect.
9.5 Payment of Obligations. The Borrower will, and will cause each
of its Subsidiaries (including all Excluded Subsidiaries) to, (i) pay all
liabilities and obligations as and when due (subject to any applicable
subordination provisions), except to the extent failure to do so would not be
reasonably likely to have a Material Adverse Effect, and (ii) pay and discharge
all taxes, assessments and governmental charges or levies imposed upon it, upon
its income or profits or upon any of its properties, prior to the date on which
penalties would attach thereto, and all lawful claims that, if unpaid, might
become a Lien upon any of the properties of the Borrower or any of its
Subsidiaries; provided, however, that neither the Borrower nor any of its
Subsidiaries shall be required to pay any such tax, assessment, charge, levy or
claim that is being contested in good faith and by proper proceedings and as to
which the Borrower or such Subsidiary is maintaining adequate reserves with
respect thereto in accordance with GAAP.
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9.6 Insurance. The Borrower will, and will cause each of its
Subsidiaries (including all Excluded Subsidiaries) to, maintain with financially
sound and reputable insurance companies insurance with respect to its assets,
properties and business, against such hazards and liabilities, of such types and
in such amounts, as is customarily maintained by companies in the same or
similar businesses similarly situated, and maintain such other or additional
insurance on such terms and subject to such conditions as may be required under
any Security Document.
9.7 Maintenance of Books and Records; Inspection. The Borrower
will, and will cause each of its Subsidiaries (including all Excluded
Subsidiaries) to, (i) maintain adequate books, accounts and records, in which
full, true and correct entries shall be made of all financial transactions in
relation to its business and properties, and prepare all financial statements
required under this Agreement, in each case in accordance with GAAP and in
compliance with the requirements of any Governmental Authority having
jurisdiction over it, and (ii) permit employees or agents of the Administrative
Agent or any Lender to inspect its properties and examine or audit its books,
records, working papers and accounts and make copies and memoranda of them, and
to discuss its affairs, finances and accounts with its officers and employees
and, upon notice to the Borrower, the independent public accountants of the
Borrower and its Subsidiaries (including all Excluded Subsidiaries) (and by this
provision the Borrower authorizes such accountants to discuss the finances and
affairs of the Borrower and its Subsidiaries (including all Excluded
Subsidiaries)), all at such times and from time to time, upon reasonable notice
and during business hours, as may be reasonably requested.
9.8 Managed Practices. The Borrower will cause each Managed
Practice to (i) comply in all respects with all Requirements of Law applicable
in respect of the conduct of its business and the ownership and operation of its
properties (including, without limitation, all applicable Medicare Regulations
and Medicaid Regulations), and (ii) obtain, maintain and preserve in full force
and effect all other rights, franchises, permits, certifications, approvals,
authorizations and other Licenses (including with respect to physician
employees), and all Reimbursement Approvals, required by Governmental
Authorities and necessary to the ownership, occupation or use of its properties
or the conduct of its business, except in each case under (i) and (ii) above to
the extent the failure to do so would not be reasonably likely to have a
Material Adverse Effect.
9.9 Permitted Acquisitions. (a) Subject to the provisions of
subsection (b) below and the requirements contained in the definition of
Permitted Acquisition and subject to the other terms and conditions of this
Agreement, the Borrower may from time to time on or after the Effective Date
effect Permitted Acquisitions, provided that, with respect to each Permitted
Acquisition:
(i) no Default or Event of Default shall have occurred
and be continuing at the time of the consummation of such Permitted
Acquisition or would exist immediately after giving effect thereto; and
(ii) the Required Lenders shall have given their consent
to such acquisition which consent shall (A) not be unreasonably
withheld and (B) be given within ten (10) Business Days from the
Administrative Agent's receipt of the information, in form and
substance satisfactory to the Administrative Agent in its reasonable
discretion, referred to in clauses (b) and (c) of this SECTION 9.9;
provided that no such consent will be required if
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the Acquisition Amount with respect to such acquisition (regardless of
the form of consideration) (y) shall not exceed $6,000,000, and (z)
together with the aggregate of the Acquisition Amounts (regardless of
the form of consideration) for all other Permitted Acquisitions
consummated during the same fiscal year, shall not exceed $20,000,000
(including any "earnout" payments made such fiscal year with respect to
any Permitted Acquisition, irrespective of when such Permitted
Acquisition was consummated).
(b) Not less than ten (10) Business Days prior to the consummation
of any Permitted Acquisition with respect to which the Required Lenders' consent
is required under SECTION 9.9(a)(ii), the Borrower shall have delivered to the
Administrative Agent the following:
(i) a reasonably detailed description of the material
terms of such Permitted Acquisition (including, without limitation the
Acquisition Amount and the method and structure of payment) and of each
Person or business that is the subject of such Permitted Acquisition
(each, a "Target");
(ii) historical financial statements of the Target (or, if
there are two or more Targets that are the subject of such Permitted
Acquisition and that are part of the same consolidated group,
consolidated historical financial statements for all such Targets for
the two (2) most recent fiscal years available and, if available, for
any interim periods since the most recent fiscal year-end;
(iii) consolidated projected income statements of the
Borrower and its Subsidiaries (giving effect to such Permitted
Acquisition and the consolidation with the Borrower of each relevant
Target) for the two-year period following the consummation of such
Permitted Acquisition, in reasonable detail, together with any
appropriate statement of assumptions and pro forma adjustments; and
(iv) a certificate, in form and substance reasonably
satisfactory to the Administrative Agent, executed by a Financial
Officer setting forth the Acquisition Amount and further to the effect
that, to the best of such individual's knowledge (x) the consummation
of such Permitted Acquisition will not result in a violation of any
provision of this Section and after giving effect to such Permitted
Acquisition and any Borrowings made in connection therewith, the
Borrower will be in compliance with the financial covenants contained
in ARTICLE X such compliance determined with regard to calculations
made on a pro forma basis in accordance with GAAP as if each Target had
been consolidated with the Borrower for those periods applicable to
such covenants (such calculations to be attached to the certificate),
(y) the Borrower believes in good faith that it will continue to comply
with such financial covenants for a period of one year following the
date of the consummation of such Permitted Acquisition, and (z) after
giving effect to such Permitted Acquisition and any Borrowings in
connection therewith, the Borrower believes in good faith that it will
have sufficient availability under the Revolving Credit Commitments to
meet its ongoing working capital requirements, together with a
Compliance Certificate giving effect to the Permitted Acquisition on a
pro-forma basis.
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(c) Prior to the consummation of any Permitted Acquisition with
respect to which the Required Lenders' consent is not required under SECTION
9.9(a)(ii), the Borrower shall have delivered to the Administrative Agent and
each Lender the following:
(i) a reasonably detailed description of the material
terms of such Permitted Acquisition (including, without limitation the
Acquisition Amount and the method and structure of payment) and of the
Target; and
(ii) a certificate, in form and substance reasonably
satisfactory to the Administrative Agent, executed by a Financial
Officer setting forth the Acquisition Amount and further to the effect
that, to the best of such individual's knowledge, (x) the consummation
of such Permitted Acquisition will not result in a violation of any
provision of this Section and after giving effect to such Permitted
Acquisition and any Borrowings made in connection therewith, the
Borrower will be in compliance with the financial covenants contained
in ARTICLE X, such compliance determined with regard to calculations
made on a pro forma basis in accordance with GAAP as if each Target had
been consolidated with the Borrower for those periods applicable to
such covenants (such calculations to be attached to the certificate),
(y) the Borrower believes in good faith that it will continue to comply
with such financial covenants for a period of one year following the
date of the consummation of such Permitted Acquisition, and (z) after
giving effect to such Permitted Acquisition and any Borrowings in
connection therewith, the Borrower believes in good faith that it will
have sufficient availability under the Revolving Credit Commitments to
meet its ongoing working capital requirements.
(d) As soon as reasonably practicable after the consummation of
any Permitted Acquisition, the Borrower will deliver to the Administrative Agent
and each Lender a copy of the fully executed acquisition agreement (including
schedules and exhibits thereto) and other material documents and closing papers
delivered in connection therewith and any other documentation reasonably
requested by the Administrative Agent or the Lenders.
(e) The consummation of each Permitted Acquisition shall be deemed
to be a representation and warranty by the Borrower that (except as shall have
been approved in writing by the Required Lenders) all conditions thereto set
forth in this Section and in the description furnished under clause (i) of
subsection (b) or (c) above, as applicable, have been satisfied, that the same
is permitted in accordance with the terms of this Agreement and that the matters
certified to by the Financial Officer in the certificate referred to in clause
(iv) of subsection (b) or (c) above, as applicable, are, to the best of such
individual's knowledge, true and correct in all material respects as of the date
such certificate is given, which representation and warranty shall be deemed to
be a representation and warranty as of the date thereof for all purposes
hereunder, including, without limitation, for purposes of SECTIONS 7.2 and 12.1.
9.10 Creation or Acquisition of Subsidiaries. Subject to the
provisions of SECTION 11.5, the Borrower may from time to time create or acquire
new Subsidiaries (including Excluded Subsidiaries) in connection with Permitted
Acquisitions or otherwise, and the Subsidiaries of the Borrower may create or
acquire new Subsidiaries, provided that:
(a) Concurrently with (and in any event within ten (10) Business
Days thereafter) the creation or direct or indirect acquisition by the Borrower
thereof, each such new Subsidiary that
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is not designated as an Excluded Subsidiary will execute and deliver to the
Administrative Agent (i) a joinder to the Subsidiary Guaranty, pursuant to which
such new Subsidiary shall become a party thereto and shall guarantee the payment
in full of the Obligations of the Borrower under this Agreement and the other
Credit Documents, (ii) a joinder to the Security Agreement, pursuant to which
such new Subsidiary shall become a party thereto and shall, grant to the
Administrative Agent a first priority Lien upon and security interest in its
accounts receivable, inventory, equipment, general intangibles and other
personal property as Collateral for its obligations under the Subsidiary
Guaranty, subject only to Permitted Liens and (iii) a Mortgage with respect to
any real property owned by such Subsidiary (or a landlord lien waiver with
respect to any real property leased by such Subsidiary), together with all
Mortgaged Property Support Documents; provided, however, that in the event any
real property owned by such Subsidiary has an appraised or book value of
$750,000 or less, Mortgage shall only be required upon the request of the
Administrative Agent or the Required Lenders;
(b) Concurrently with (and in any event within ten (10) Business
Days thereafter) the creation or acquisition of any new Subsidiary (including
any Excluded Subsidiary) all or a portion of the Capital Stock of which is
directly owned by the Borrower, the Borrower will execute and deliver to the
Administrative Agent an amendment or supplement to the Security Agreement
pursuant to which all of the Capital Stock of such new Subsidiary owned by the
Borrower shall be pledged to the Administrative Agent, together with the
certificates evidencing such Capital Stock and undated stock powers duly
executed in blank; and concurrently with (and in any event within ten (10)
Business Days thereafter) the creation or acquisition of any new Subsidiary all
or a portion of the Capital Stock of which is directly owned by another
Subsidiary (the "Parent Subsidiary"), the Parent Subsidiary will execute and
deliver to the Administrative Agent an appropriate joinder, amendment or
supplement to the Security Agreement pursuant to which all of the Capital Stock
of such new Subsidiary owned by such Parent Subsidiary shall be pledged to the
Administrative Agent, together with the certificates evidencing such Capital
Stock and undated stock powers duly executed in blank; and
(c) As promptly as reasonably possible, the Borrower and its
Subsidiaries (including all Excluded Subsidiaries) will deliver any such other
documents, certificates and opinions, and opinions of local counsel in the
jurisdiction of organization of each such new Subsidiary (including an Excluded
Subsidiary), in form and substance reasonably satisfactory to the Administrative
Agent, as the Administrative Agent may reasonably request in connection
therewith and will take such other action as the Administrative Agent may
reasonably request to create in favor of the Administrative Agent a perfected
security interest in the Collateral being pledged pursuant to the documents
described above.
9.11 Additional Security, The Borrower will, and will cause each of
its Subsidiaries to grant to the Administrative Agent from time to time security
interests, mortgages and other Liens in and upon such assets and properties of
the Borrower or such Subsidiary as are not covered by the Security Documents
executed and delivered before or on the Effective Date or pursuant to SECTION
9.10 (including, without limitation, Liens on assets acquired by the Borrower or
a Subsidiary in connection with any Permitted Acquisition) provided, however,
that in the event any real property owned by the Borrower or such Subsidiary has
an appraised or book value of $750,000 or less, Mortgage shall only be required
upon the request of the Administrative Agent or the Required Lenders;. Such
security interests, mortgages and Liens shall be granted pursuant
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to documentation in form and substance reasonably satisfactory to the
Administrative Agent and shall constitute valid and perfected security interests
and Liens subject to no Liens other than Permitted Liens. Without limitation of
the foregoing, in connection with the grant of any mortgage or deed of trust
with respect to any interest in real property, the Borrower will, and will cause
each applicable Subsidiary to, at the Borrower's expense, prepare, obtain and
deliver to the Administrative Agent all Mortgaged Property Support Documents.
9.12 Designated Excluded Subsidiaries. So long as no Event of
Default shall have occurred and be continuing, Borrower may from time to time
redesignate any Excluded Subsidiary as a non-Excluded Subsidiary and upon such
redesignation shall comply with the provisions of SECTION 9.10 within the time
periods provided for therein with respect to the execution and delivery of a
Subsidiary Guaranty and Security Agreement. If an Event of Default has occurred
and is continuing, the Administrative Agent may so redesignate any or all of the
Excluded Subsidiaries and shall give notice to the Borrower of any such
selection in accordance with SECTION 14.5, and thereafter, such redesignated
Subsidiaries shall comply with the requirements of SECTION 9.10.
9.13 Employee Benefit Plans.
(a) With reasonable promptness, and in any event within
thirty (30) days thereof, give notice to the Administrative Agent of
(a) the establishment of any new Pension Plan (which notice shall
include a copy of such plan), (b) the commencement of contributions to
any Employee Benefit Plan to which the Borrower or any of its ERISA
Affiliates was not previously contributing, (c) any material increase
in the benefits of any existing Employee Benefit Plan, (d) each funding
waiver request filed with respect to any Pension Plan and all
communications received or sent by the Borrower or any ERISA Affiliate
with respect to such request and (e) the failure of the Borrower or any
ERISA Affiliate to make a required installment or payment under Section
302 of ERISA or Section 412 of the Code (in the case of Employee
Benefit Plans regulated by the Code or ERISA) or under any Foreign
Benefit Law (in the case of Employee Benefit Plans regulated by any
Foreign Benefit Law) by the due date;
(b) Promptly and in any event within fifteen (15) days of
becoming aware of the occurrence or forthcoming occurrence of any (a)
Termination Event or (b) nonexempt "prohibited transaction," as such
term is defined in Section 406 of ERISA or Section 4975 of the Code, in
connection with any Employee Benefit Plan or any trust created
thereunder, deliver to the Administrative Agent a notice specifying the
nature thereof, what action the Borrower or any ERISA Affiliate has
taken, is taking or proposes to take with respect thereto and, when
known, any action taken or threatened by the Internal Revenue Service,
the Department of Labor or the PBGC with respect thereto; and
(c) With reasonable promptness but in any event within
fifteen (15) days for purposes of clauses (i), (ii) and (iii), deliver
to the Administrative Agent copies of (i) any unfavorable determination
letter from the Internal Revenue Service regarding the qualification of
an Employee Benefit Plan under Section 401(a) of the Code, (ii) all
notices received by the Borrower or any ERISA Affiliate of the PBGC's
or any Governmental Authority's intent to terminate any Pension Plan or
to have a trustee
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appointed to administer any Pension Plan, (iii) each Schedule B
(Actuarial Information) to the annual report (Form 5500 Series) filed
by the Borrower or any ERISA Affiliate with the Internal Revenue
Service with respect to each Employee Benefit Plan and (iv) all notices
received by the Borrower or any ERISA Affiliate from a Multiemployer
Plan sponsor concerning the imposition or amount of withdrawal
liability pursuant to Section 4202 of ERISA. The Borrower will notify
the Administrative Agent in writing within five (5) Business Days of
the Borrower or any ERISA Affiliate obtaining knowledge or reason to
know that the Borrower or any ERISA Affiliate has filed or intends to
file a notice of intent to terminate any Pension Plan under a distress
termination within the meaning of Section 4041(c) of ERISA.
9.14 Further Assurances. The Borrower will, and will cause each of
its Subsidiaries (including all Excluded Subsidiaries) to, make, execute,
endorse, acknowledge and deliver any amendments, modifications or supplements
hereto and restatements hereof and any other agreements, instruments or
documents, and take any and all such other actions, as may from time to time be
reasonably requested by the Administrative Agent or the Required Lenders to
perfect and maintain the validity and priority of the Liens granted pursuant to
the Security Documents and to effect, confirm or further assure or protect and
preserve the interests, rights and remedies of the Administrative Agent and the
Lenders under this Agreement and the other Credit Documents.
9.15 Related Hedge Agreements. In the event that the Leverage Ratio
reflected in the Borrower's September 30, 2004 Compliance Certificate is greater
than 2.00 to 1.00, the Borrower shall, within ten Business Days after delivery
to the Administrative Agent of such Compliance Certificate, enter into and
maintain until the Maturity Date, Related Hedge Agreements reasonably acceptable
to the Administrative Agent, in an aggregate notional amount of not less than
the amount that is 50% of the Term Loan A Outstandings and the Term Loan B
Outstandings at any time, hedging interest rate fluctuation risk in respect of
the Loans.
9.16 Shareholder's Agreement. The Borrower will perform a valuation
of its Capital Stock on an annual basis and determine if additional life
insurance coverage is required to satisfy its liability to repurchase its stock
with the proceeds of the life insurance maintained pursuant to the terms of the
Shareholder Agreement. The Administrative Agent will be provide with written
evidence that such valuation has been performed, and if necessary, additional
insurance has been obtained.
9.17 Notice of Reportable Transaction. Within a reasonable time
prior to the treatment thereof, deliver notice to the Administrative Agent of
any intention to treat the Loans as a "reportable transaction" (within the
meaning of Treasury Regulation Section 1.6011-4).
ARTICLE X
FINANCIAL COVENANTS
The Borrower covenants and agrees that, until the termination of the
Revolving Credit Commitments, the termination or expiration of all Letters of
Credit and the payment in full of all principal and interest with respect to the
Loans and all Reimbursement Obligations together with all other amounts then due
and owing hereunder:
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10.1 Leverage Ratio. The Borrower will not permit the Leverage
Ratio as of the last day of any fiscal quarter ending during the applicable
period set forth below, for the four consecutive fiscal quarter period ending on
such date, to be greater than that ratio set forth opposite each such period:
Leverage Ratio
Period Must Not Be Greater Than
------ ------------------------
Effective Date through and including 3.250 to 1.00
March 31, 2005
April 1, 2005 through and including 3.000 to 1.00
September 30, 2005
October 1, 2005 through and including June 2.875 to 1.00
30, 2006
July 1, 2006 through and including 2.750 to 1.00
September 30, 2006
October 1, 2006 and thereafter 2.500 to 1.00
10.2 Fixed Charge Coverage Ratio. The Borrower shall not permit the
Fixed Charge Coverage Ratio, as determined for and at the end of each period of
four consecutive fiscal quarters to be less than 1.50 to 1.00.
10.3 Interest Coverage Ratio. The Borrower shall not permit the
Interest Coverage Ratio, as determined for and at the end of each period of four
consecutive fiscal quarters to be less than 3.75 to 1.00.
10.4 Consolidated Net Worth. The Borrower will not permit
Consolidated Net Worth as of the last day of any fiscal quarter to be less than
85% of the Consolidated Net Worth as of September 30,2003, plus 100% of
Consolidated Net Income (if positive) of the Borrower and its Subsidiaries for
each fiscal quarter after September 30, 2003, plus 100% of all Equity Issuances
or other capital investments less any Allowable Tax Distributions, less any
other distributions or payments permitted in accordance with SECTION 11.6.
ARTICLE XI
NEGATIVE COVENANTS
The Borrower covenants and agrees that, until the termination of the
Revolving Credit Commitments, the termination or expiration of all Letters of
Credit and the payment in full of all principal and interest with respect to
the Loans and all Reimbursement Obligations together with all other amounts
then due and owing hereunder:
11.1 Merger; Consolidation. The Borrower will not, and will not
permit or cause any of its Subsidiaries (including any Excluded Subsidiary) to,
liquidate, wind up or dissolve, or
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enter into any consolidation, merger or other combination, or agree to do any of
the foregoing; provided, however, that, subject to the limitations of SECTION
11.22:
(i) the Borrower may merge, consolidate or combine with
another Person so long as (x) the Borrower is the surviving entity, (y)
unless such other Person is a Wholly Owned Subsidiary immediately prior
to giving effect thereto, such merger or consolidation shall constitute
a Permitted Acquisition and the applicable conditions and requirements
of SECTIONS 9.9 and 9.10 shall be satisfied, and (z) immediately after
giving effect thereto, no Default or Event of Default would exist; and
(ii) any Subsidiary (including any Excluded Subsidiary)
may merge, consolidate (including dissolution, as long as the assets of
the dissolved Subsidiary are transferred to the Borrower or a Wholly
Owned Subsidiary that is a Subsidiary Guarantor prior to or
concurrently with such dissolution) or combine with another Person so
long as (x) the surviving entity is the Borrower or a Wholly Owned
Subsidiary that is a Subsidiary Guarantor, (y) unless such other Person
is a Wholly Owned Subsidiary immediately prior to giving effect thereto
such merger or consolidation shall constitute a Permitted Acquisition
and the applicable conditions and requirements of SECTIONS 9.9 and 9.10
shall be satisfied; and (z) immediately after giving effect thereto, no
Default or Event of Default would exist,
11.2 Indebtedness. The Borrower will not, and will not
permit or cause any of its Subsidiaries (including any Excluded Subsidiary) to
create, incur, assume or suffer to exist any Indebtedness other than:
(i) Indebtedness incurred under this Agreement, the Notes
and the Subsidiary Guaranty;
(ii) Indebtedness existing on the Effective Date and
described in SCHEDULE 11.2;
(iii) accrued expenses (including salaries, accrued
vacation and other compensation), current trade or other accounts
payable and other current liabilities arising in the ordinary course of
business and not incurred through the borrowing of money, provided that
the same shall be paid when due except (i) to the extent being
contested in good faith and by appropriate proceedings and (ii) as
provided elsewhere in this Agreement;
(iv) loans and advances by the Borrower or any Subsidiary
to any other Subsidiary; provided that any such loan or advance is by
an Intercompany Note, pledged to the Administrative Agent pursuant to
the Security Agreement;
(v) (A) purchase money Indebtedness of the Borrower and
its Subsidiaries (including any Excluded Subsidiary) incurred solely to
finance the payment of all or part of the purchase price of any
equipment, real property or other fixed assets, (B) Indebtedness in
respect of capital lease obligations, (C) Indebtedness of the Borrower
owed to a Person owning Capital Stock (or a relative thereof) of the
Borrower, as more particularly set forth on SCHEDULE 11.2 or incurred
hereafter in accordance with this
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SECTION 11.2(v)(C), that is expressly subordinated and made junior in
right and time of payment to the Obligations and that is evidenced by
one or more written agreements or instruments having terms, conditions
and provisions (including, without limitation, provisions relating to
principal amount, maturity, covenants, defaults, interest, and
subordination) satisfactory in form and substance to the Required
Lenders in their sole discretion, (D) purchase money Indebtedness of the
Borrower and its Subsidiaries (including any Excluded Subsidiary)
incurred solely to finance the purchase price of a Permitted Acquisition
that is expressly subordinated and made junior in right and time of
payment to the Obligations and that is evidenced by one or more written
agreements or instruments having terms, conditions and provisions
(including, without limitation, provisions relating to principal amount,
maturity, covenants, defaults, interest, and subordination) satisfactory
in form and substance to the Required Lenders in their sole discretion,
and (E) unsecured Indebtedness of the Borrower that is evidenced by one
or more written agreements or instruments having terms, conditions and
provisions (including, without limitation, provisions relating to
principal amount, maturity, covenants, defaults and interest)
satisfactory in form and substance to the Required Lenders in their sole
discretion in each case referred to in clauses (A) through (E) above any
renewals, refinancings or replacements thereof (subject to the
limitations on the principal amount thereof set forth in this clause
(v)) (collectively, the "Subordinated Indebtedness"); provided that all
such Indebtedness referred to in this clause (v) (whether or not listed
on SCHEDULE 11.2) shall not exceed an aggregate principal amount of
$20,000,000 outstanding at any time;
(vi) Contingent Obligations permitted as set forth in
SECTION 11.16;
(vii) Indebtedness arising from any Hedge Agreement; and
(viii) Indebtedness with respect to Permitted Excluded
Subsidiary Loans.
11.3 Liens. The Borrower will not, and will not permit or cause any
of its Subsidiaries (including any Excluded Subsidiary) to, directly or
indirectly, make, create, incur, assume or suffer to exist, any Lien upon or
with respect to any part of Borrower's, any Subsidiaries' or any Excluded
Subsidiaries' property or assets. Whether now owned or hereafter acquired, or
file or permit the filing of, or permit to remain in effect, any financing
statement or other similar notice of any Lien with respect to any such property,
asset, income or profits under the Uniform Commercial Code of any state or under
any similar recording or notice statute, or agree to do any of the foregoing,
other than the following (collectively, "Permitted Liens"):
(i) Liens created under the Security Documents;
(ii) Liens imposed by law, such as Liens of carriers,
warehousemen, mechanics, materialmen and landlords, and other similar
Liens incurred in the ordinary course of business for sums not
constituting borrowed money that are not overdue for a period of more
than thirty (30) days or that are being contested in good faith by
appropriate proceedings and for which adequate reserves have been
established in accordance with GAAP (if so required);
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(iii) Liens (other than any Lien imposed by ▇▇▇▇▇, the
creation or incurrence of which would result in an Event of Default
under SECTION 12.1(j)) incurred in the ordinary course of business in
connection with worker's compensation, unemployment insurance or other
forms of governmental insurance or benefits, or to secure the
performance of letters of credit, bids, tenders, statutory obligations,
surety and appeal bonds, leases, government contracts and other similar
obligations (other than obligations for borrowed money) entered into in
the ordinary course of business;
(iv) Liens for taxes, assessments or other governmental
charges or statutory obligations that are not delinquent or remain
payable without any penalty or that are being contested in good faith
by appropriate proceedings and for which adequate reserves have been
established in accordance with GAAP (if so required);
(v) Liens securing the Indebtedness permitted under
clauses (vi)(A) and (vi)(B) of SECTION 11.2, provided that with respect
to any such purchase money Indebtedness, any such Lien (a) shall attach
to such property concurrently with or within ten (10) days after the
acquisition thereof by the Borrower or such Subsidiary, (b) shall not
exceed the lesser of (y) the fair market value of such property or (z)
the cost thereof to the Borrower or such Subsidiary and (c) shall not
encumber any other property of the Borrower or any of its Subsidiaries;
(vi) any attachment or judgment Lien not constituting an
Event of Default under SECTION 12.1 (h) that is being contested in good
faith by appropriate proceedings and for which adequate reserves have
been established in accordance with GAAP (if so required);
(vii) Liens arising from the filing, for notice purposes
only, of financing statements in respect of true leases;
(viii) with respect to any real property owned by the
Borrower or any of its Subsidiaries, all easements, rights of way,
licenses and similar encumbrances on title that do not materially
impair the use of such property for its intended purposes and those
exceptions disclosed on the Title Policy delivered by the Borrower and
accepted by the Administrative Agent under SECTION 7.1(a)(vi);
(ix) Liens securing the Indebtedness permitted under
clause (v)(A) of SECTION 11.2;
(x) Liens set forth on SCHEDULE 11.3; and
(xi) Liens in favor of the Borrower securing any Permitted
Excluded Subsidiary Loan.
11.4 Disposition of Assets. The Borrower will not, and will not
permit or cause any of its Subsidiaries (including any Excluded Subsidiary) to,
sell, assign, lease, convey, transfer or otherwise dispose of (whether in one or
a series of transactions) all or any portion of its assets, business or
properties (including, without limitation, any Capital Stock of any Subsidiary),
or enter into any arrangement with any Person providing for the lease by the
Borrower or any
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Subsidiary as lessee of any asset that has been sold or transferred by the
Borrower or such Subsidiary to such Person, or agree to do any of the foregoing,
except for:
(i) sales of inventory in the ordinary course of
business;
(ii) the sale or exchange of used or obsolete equipment to
the extent (y) the proceeds of such sale are applied towards, or such
equipment is exchanged for, replacement equipment or (z) such equipment
is no longer necessary for the operations of the Borrower or its
applicable Subsidiary in the ordinary course of business; provided,
however, that no such equipment referred to in this clause (z) may be
sold if its fair market value exceeds $250,000 unless approved by the
Required Lenders;
(iii) the sale or other disposition by the Borrower and its
Subsidiaries of any Borrower Margin Stock to the extent the fair market
value thereof exceeds 25% of the fair market value of the assets of the
Borrower and its Subsidiaries (including Borrower Margin Stock),
provided that fair value is received in exchange therefor;
(iv) the sale, lease or other disposition of assets by a
Subsidiary of the Borrower to a Subsidiary Guarantor if, immediately
after giving effect thereto, no Default or Event of Default would
exist;
(v) the sale or disposition of assets outside the
ordinary course of business for fair value and for cash, provided that
(w) the Net Cash Proceeds from such sales or dispositions, when
aggregated with the Net Cash Proceeds from all other sales and
dispositions not otherwise specifically permitted under this Section
that are consummated during the same fiscal year do not exceed $400,000
in the aggregate, (x) such Net Cash Proceeds are delivered to the
Administrative Agent promptly after receipt thereof for application in
prepayment of the Loans in accordance with the provisions of SECTIONS
2.1(e) AND 3.6, (y) in no event shall the Borrower or any of its
Subsidiaries sell or otherwise dispose of any of the Capital Stock of
any Subsidiary, and (z) immediately after giving effect thereto no
Default or Event of Default would exist;
(vi) any other sale or disposition approved at the sole
discretion of the Required Lenders such approval to be given within
three Business Days from receipt of information satisfactory to the
Administrative Agent and the other Lender in their reasonable
discretion; and
(vii) to the disposition of (a) certain assets owned by
Maryland Radiation Therapy Management Services, Inc. to Atlantic Cancer
Center Management, LLC ("Peninsula LLC") upon its creation and (b)
49.9% of its equity interest in the Peninsula LLC to Peninsula Health
Ventures, Inc., each such disposition to be in accordance with the
terms of that certain Participation Rights Agreement dated as of
October 1, 2002 between Maryland Radiation Therapy Management Services,
Inc., the Borrower, and Peninsula Health Ventures., Inc., attached
hereto as Exhibit I, any management agreement or service agreement
executed in connection therewith, and the organizational documents of
the Peninsula LLC.
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11.5 Investments. The Borrower will not, and will not permit or
cause any of its Subsidiaries (including any Excluded Subsidiary) to, directly
or indirectly, purchase, own, invest in or otherwise acquire any Capital Stock,
evidence of Indebtedness or other obligation or security or any interest
whatsoever in any other Person, or make or permit to exist any loans, advances
or extensions of credit to, or any investment in cash or by delivery of property
in, any other Person, or purchase or otherwise acquire (whether in one or a
series of related transactions) any portion of the assets, business or
properties of another Person (including pursuant to an Acquisition), or create
or acquire any Subsidiary, or become a partner or joint venturer in any
partnership or joint venture (collectively, "Investments"), or make a commitment
or otherwise agree to do any of the foregoing, other than, subject, with respect
to the Borrower, the limitations of Section 11.22:
(i) Cash Equivalents;
(ii) Investments consisting of accounts receivable created
and prepaid expenses incurred, in the ordinary course of business;
(iii) Investments consisting of loans and advances to
employees for reasonable travel, relocation and business expenses in
the ordinary course of business;
(iv) without duplication, Investments consisting of
intercompany Indebtedness permitted under clause (iv) of SECTION 11.2;
(v) Investments existing on the Effective Date in
Subsidiaries and described in SCHEDULE 11.5;
(vi) Investments by Borrower under the Related Hedge
Agreements;
(vii) Investments consisting of the making of capital
contributions by the Borrower or any Subsidiary in (y) any other
Subsidiary that is (or immediately after giving effect to such
Investment will be) a Subsidiary Guarantor, and (z) in any Excluded
Subsidiary, provided that (I) the Borrower complies with any applicable
provisions of SECTION 9.10, (II) the aggregate amount of all such
Investments (including Permitted Excluded Subsidiary Loans) made during
any fiscal year shall not exceed $5,000,000 for each such Investment,
and $15,000,000 in the aggregate per fiscal year (and in any case, not
more than four (4) in each fiscal year); and (III) for each such
Investment, the Borrower shall have delivered to the Administrative
Agent the information required under clauses (i), (iii) and (iv) of
SECTION 9.9(b) (as if such clauses are applicable to the Investments
permitted under this clause (vii)); Investments consisting of
Indebtedness in the form of notes issued by certain physicians,
officers and other key personnel employed by Borrower or any Subsidiary
Guarantor and made payable to the Borrower in order to finance the
purchase of Capital Stock of the Borrower by any such physicians,
officers and other key personnel (hereinafter "Physician Notes") which
are existing as of the Effective Date and are described on SCHEDULE
11.5 or are entered into after the Effective Date on terms and
conditions satisfactory to the Administrative Agent, provided that the
aggregate outstanding principal amount of all such Physician Notes
shall not exceed $5,000,000;
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(viii) Permitted Acquisitions;
(ix) Investments in any partnership or joint venture which
is not a Subsidiary or an Excluded Subsidiary, but which is reflected
on the Borrower's financial statements in accordance with the equity
method of accounting, such Investments not to exceed $2,000,000 in the
aggregate per fiscal year; and
(x) Other Investments not otherwise described in clauses
(i)-(ix) above, the aggregate amount of such Investments which shall
not exceed $1,000,000.
11.6 Restricted Payments. (a) The Borrower will not, and will not
permit or cause any of its Subsidiaries (including any Excluded Subsidiary) to,
directly or indirectly, declare or make any Restricted Payment or enter into any
agreement to do any of the foregoing, except that:
(i) the Borrower may declare and make Allowable Tax
Distributions;
(ii) if and to the extent that after giving effect
thereto, (i) the Adjusted Leverage Ratio calculated for the period of
four consecutive fiscal quarters most recently ended on or immediately
prior to the date of each such distribution is less than or equal to
2.00 to 1.00 and the Compliance Certificate for the fiscal year ending
December 31, 2005, has been delivered, and (ii) no Event of Default,
including any default under SECTION 10 hereunder shall have occurred
and be continuing, the Borrower may declare and make cash distributions
to its shareholders;
(iii) the Borrower may make other distributions payable
solely in its common stock;
(iv) the Borrower may purchase for value (A) any shares of
its Capital Stock that have been issued to certain physicians, officers
and other key personnel in accordance with SECTION 11.5(vii); provided,
however, in both cases that the Borrower shall have submitted to the
Administrative Agent a copy of all material documents containing the
terms and conditions of such purchase of Capital Stock of the Borrower
prior to such purchase, and the Administrative Agent shall have
approved such terms and conditions;
(v) the Borrower shall make any Shareholder Life
Insurance Payment;
(vi) each Wholly Owned Subsidiary of the Borrower may
declare and make dividend payments or other distributions to the
Borrower or another Wholly Owned Subsidiary of the Borrower, to the
extent not prohibited under applicable Requirements of Law;
(vii) so long as no Event of Default has occurred or is
continuing, each Excluded Subsidiary may declare and make dividend
payments or other distributions, to the extent not prohibited under
applicable Requirements of Law; and
(viii) the Borrower may declare and make the Dividend
Payment.
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(b) Without the consent of the Required Lenders, the Borrower will
not, and will not permit or cause any of its Subsidiaries (including any
Excluded Subsidiary) to make (or give any notice in respect of) any voluntary or
optional payment or prepayment of principal on any Subordinated Indebtedness, or
directly or indirectly make any redemption (including pursuant to any change of
control provision), retirement, defeasance or other acquisition for value of any
Subordinated Indebtedness, or make any deposit or otherwise set aside funds for
any of the foregoing purposes; except that, for so long as no Default or Event
of Default has occurred and is continuing, the Borrower may make interest
payments with respect to the Subordinated Indebtedness in accordance with the
applicable provisions of the Subordinated Indebtedness.
11.7 Transactions with Affiliates. The Borrower will not, and will
not permit or cause any of its Subsidiaries (including any Excluded Subsidiary)
to, enter into any transaction (including, without limitation, any purchase,
sale, lease or exchange of property or the rendering of any service) with any
officer, director, stockholder or other Affiliate of the Borrower or any
Subsidiary, except in the ordinary course of its business and upon fair and
reasonable terms that are no less favorable to it than would obtain in a
comparable arm's length transaction with a Person other than an Affiliate of the
Borrower or such Subsidiary; provided, however, that nothing contained in this
Section shall prohibit:
(i) transactions described on SCHEDULE 11.7 or otherwise
expressly permitted under this Agreement;
(ii) transactions involving the purchase of Borrower's
Capital Stock by certain physicians in accordance with SECTION
11.5(viii); and
(iii) the payment by the Borrower of reasonable and
customary fees to members of its board of directors.
11.8 Lines of Business. The Borrower will not, and will not permit
or cause any of its Subsidiaries (including any Excluded Subsidiary) to, engage
in any business other than the business of providing radiation oncology services
and services relating to the needs of cancer patients or other ancillary
business services to other physician practices, so long as such ancillary
business services represent no more than five percent (5%) of the revenue of the
Borrower and its Subsidiaries on a consolidated basis (including physician
management services, equipment leasing to medical practitioners and billing
services); provided that the primary business of the Borrower and its
Subsidiaries on a consolidated basis is radiation oncology services.
Notwithstanding the foregoing, Financial Services of Southwest Florida, Inc. may
engage in the business of administrative services for the Borrower and its
Subsidiaries and Radiation Therapy School for Radiation Therapy Technology, Inc.
may operate a radiation therapy school for the Borrower and its Subsidiaries,
provided that the primary focus of the Borrower and its Subsidiaries continues
to be providing radiation oncology services.
11.9 Revenue. The Borrower shall not permit the percentage of the
total revenue of the Borrower, its Subsidiaries and its Excluded Subsidiaries
for any fiscal quarter that is derived from the Excluded Subsidiaries to exceed
15%.
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11.10 Capital Expenditures. The Borrower will not permit the Capital
Expenditures of the Borrower and its Subsidiaries to be greater than $15,000,000
in the aggregate per fiscal year, excluding any Capital Expenditure for any
Permitted Acquisition during such fiscal year.
11.11 Certain Amendments. The Borrower will not, and will not permit
or cause any of its Subsidiaries (including any Excluded Subsidiary) to, (i)
amend, modify or waive, or permit the amendment, modification or waiver of, any
provision of any agreement or instrument evidencing or governing any
Subordinated Indebtedness, the effect of which would be to (a) increase the
principal amount due thereunder, (b) shorten or accelerate the time of payment
of any amount due thereunder, (c) increase the applicable interest rate or
amount of any fees or costs due thereunder, (d) amend any of the subordination
provisions thereunder (including any of the definitions relating thereto), (e)
make any covenant therein more restrictive or add any new covenant; or (f)
otherwise materially and adversely affect the Lenders, or breach or otherwise
violate any of the subordination provisions applicable thereto, including,
without limitation, restrictions against payment of principal and interest
thereon, or (ii) amend, modify or change any provision of its articles or
certificate of incorporation or bylaws, or the terms of any class or series of
its Capital Stock, other than in a manner that could not reasonably be expected
to adversely affect the Lenders.
11.12 Limitation on Certain Restrictions. The Borrower will not, and
will not permit or cause any of its Subsidiaries (including any Excluded
Subsidiary) to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any restriction or encumbrance on (i) the ability of
the Borrower and its Subsidiaries (including any Excluded Subsidiary) to perform
and comply with their respective obligations under the Credit Documents or (ii)
the ability of any Subsidiary of the Borrower (including any Excluded
Subsidiary) to make any dividend payments or other distributions in respect of
its Capital Stock, to repay Indebtedness owed to the Borrower or any other
Subsidiary, to make loans or advances to the Borrower or any other Subsidiary,
or to transfer any of its assets or properties to the Borrower or any other
Subsidiary, in each case other than such restrictions or encumbrances existing
under or by reason of the Credit Documents or applicable Requirements of Law.
11.13 No Other Negative Pledges. The Borrower will not, and will not
permit or cause any of its Subsidiaries (including any Excluded Subsidiary) to,
directly or indirectly, enter into or suffer to exist any agreement or
restriction that prohibits or conditions the creation, incurrence or assumption
of any Lien upon or with respect to any part of its property or assets, whether
now owned or hereafter acquired, or agree to do any of the foregoing, other than
as set forth in (i) this Agreement and the Security Documents, (ii) any
agreement or instrument creating a Permitted Lien (but only to the extent such
agreement or restriction applies to the assets subject to such Permitted Lien),
and (iii) operating leases of real or personal property entered into by the
Borrower or any of its Subsidiaries as lessee in the ordinary course of
business.
11.14 Fiscal Year. The Borrower will not, and will not permit or
cause any of its Subsidiaries (including any Excluded Subsidiary) to, change the
ending date of its fiscal year to a date other than December 31.
11.15 Accounting Changes. The Borrower will not, and will not permit
or cause any of its Subsidiaries (including any Excluded Subsidiary) to make or
permit any material change in its accounting policies or reporting practices,
except as may be required by GAAP.
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11.16 Restriction on Contingent Obligations. The Borrower will not,
and will not permit or cause any of its Subsidiaries (including any Excluded
Subsidiary) to, incur Contingent Obligations, other than (i) the endorsement of
negotiable instruments in the ordinary course of business, (ii) Contingent
Obligations incurred as a result of the Subsidiary Guaranty, (iii) guarantees of
Indebtedness permitted under SECTION 11.2, (iv) guarantees of other Indebtedness
in an aggregate amount not to exceed $1,000,000 at any time, which shall include
any Contingent Obligation incurred on behalf of any Excluded Subsidiary, and (v)
Contingent Obligations consisting of the Shareholder Life Insurance Payments,
(vi) the Contingent Obligation described in Footnote 13 of the December 31, 2002
audited financial statements, and (vii) the Contingent Obligation to purchase
certain property incurred in connection with the Acquisition of Universal Health
Systems, Inc. and Universal Treatment Centers, Inc., as evidenced by that
certain Amended and Restated Acquisition Agreement, dated as of September 30,
2003, provided, however, that such Contingent Obligation shall not exceed
$825,000, each such Contingent Obligation which is described on SCHEDULE 11.16
attached hereto.
11.17 Hazardous Substances. The Borrower will not, and will not
permit any of its Subsidiaries (including any Excluded Subsidiary) to, permit
any Hazardous Substances, the removal of which is required or the maintenance of
which is restricted, prohibited or penalized by any Governmental Authority, to
be brought on or handled by the Borrower or any of its Subsidiaries (including
any Excluded Subsidiary) or any of their agents, Affiliates, employees,
contractors or invitees, on any real property owned or leased by the Borrower or
any of its Subsidiaries, except in compliance with all applicable Environmental
Laws; and if any such material is brought or handled in violation of any
applicable Environmental Law, it shall be immediately removed, with proper
disposal, and all required environmental cleanup procedures shall be diligently
undertaken pursuant to all Environmental Laws, and the obligations hereunder
with respect to any such materials brought on or handled while the Borrower or
any of its Subsidiaries owned or leased any such real property shall survive any
foreclosure of the Mortgages and other deeds of trust or mortgages. THE BORROWER
HEREBY ACKNOWLEDGES THAT FOR SO LONG AS THE LENDERS HAVE NOT FORECLOSED AND
TAKEN TITLE TO, AND POSSESSION AND CONTROL OF THE MORTGAGED PROPERTY, AND TAKEN
OVER CONTROL OF WASTE HANDLING PRACTICES, ALL HAZARDOUS WASTE HANDLING PRACTICES
AND ENVIRONMENTAL PRACTICES AND PROCEDURES ARE THE SOLE RESPONSIBILITY OF THE
BORROWER AND ITS SUBSIDIARIES (INCLUDING ANY EXCLUDED SUBSIDIARY) AND THE
BORROWER HAS FULL DECISION-MAKING POWER WITH RESPECT THERETO. THE BORROWER
FURTHER ACKNOWLEDGES THAT NEITHER THE ADMINISTRATIVE AGENT NOR ANY LENDER IS AN
ENVIRONMENTAL CONSULTANT, ENGINEER, INVESTIGATOR OR INSPECTOR OF ANY TYPE
WHATSOEVER. NO ACT (OR DECISION NOT TO ACT) OF THE ADMINISTRATIVE AGENT OR ANY
LENDER RELATED TO THIS AGREEMENT OR ANY CREDIT DOCUMENT SHALL GIVE RISE TO ANY
OBLIGATION OR LIABILITY ON THE PART OF THE ADMINISTRATIVE AGENT OR ANY LENDER
WITH RESPECT TO ENVIRONMENTAL MATTERS UNLESS SUCH ACTION IS AFTER THE LENDERS
HAVE FORECLOSED ON AND TAKEN POSSESSION AND CONTROL OF THE SUBJECT PROPERTY AND
SUCH ACTION PROXIMATELY RESULTS IN SUCH CONTAMINATION. IN NO EVENT SHALL ANY
INFORMATION OBTAINED FROM THE ADMINISTRATIVE AGENT OR ANY
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LENDER OR THEIR RESPECTIVE AGENTS PURSUANT TO THIS AGREEMENT OR ANY CREDIT
DOCUMENT CONCERNING THE ENVIRONMENTAL CONDITION OF THE MORTGAGED PROPERTY BE
CONSIDERED BY THE BORROWER OR ANY OF ITS SUBSIDIARIES (OR ANY OTHER RECIPIENT OF
SUCH INFORMATION) AS CONSTITUTING LEGAL OR ENVIRONMENTAL CONSULTING,
ENGINEERING, INVESTIGATING OR INSPECTING ADVICE, AND NEITHER THE BORROWER NOR
ANY OF ITS SUBSIDIARIES (NOR ANY OTHER RECIPIENT OF SUCH INFORMATION) SHALL RELY
ON SAID INFORMATION. THE RESPONSIBILITY FOR COMPLIANCE WITH VARIOUS FEDERAL,
STATE AND LOCAL ENVIRONMENTAL, HEALTH OR SAFETY LAWS AND REGULATIONS RESTS
SOLELY WITH THE BORROWER AND ITS SUBSIDIARIES FOR SO LONG AS THE LENDERS HAVE
NOT FORECLOSED AND TAKEN TITLE TO, AND POSSESSION AND CONTROL OF THE MORTGAGED
PROPERTY, AND TAKEN OVER CONTROL OF WASTE HANDLING PRACTICES.
11.18 Pledge of Partnerships and Joint Ventures that are not
Subsidiaries. Borrower shall not, and shall not permit any Subsidiary (including
any Excluded Subsidiary) to, pledge any of its right, title or ownership
interest in (i) any partnership or joint venture that does not constitute a
Subsidiary, which ownership interest is permitted pursuant to SECTION 11.5(x)
hereunder other than the Liens in favor of the Administrative Agent conferred
under the Security Documents or (ii) any Excluded Subsidiary, other than the
Liens in favor of the Administrative Agent conferred under the Security
Documents.
11.19 Foreign Subsidiaries. Borrower shall not, and shall not permit
any Subsidiary (including any Excluded Subsidiary) to, create or maintain an
interest in any foreign Subsidiary.
11.20 Compliance with ERISA, the Code and Foreign Benefit Laws. With
respect to any Pension Plan, Employee Benefit Plan or Multiemployer Plan, the
Borrower shall not permit any Subsidiary (including Excluded Subsidiary) to:
(a) permit the occurrence of any Termination Event which
would result in a liability on the part of the Borrower or any ERISA
Affiliate to the PBGC or to any Governmental Authority; or
(b) permit the present value of all benefit liabilities
under all Pension Plans to exceed the current value of the assets of
such Pension Plans allocable to such benefit liabilities; or
(c) permit any accumulated funding deficiency (as defined
in Section 302 of ERISA and Section 412 of the Code) with respect to
any Pension Plan, whether or not waived; or
(d) fail to make any contribution or payment to any
Multiemployer Plan which the Borrower or any ERISA Affiliate may be
required to make under any agreement relating to such Multiemployer
Plan, or any law pertaining thereto; or
(e) engage, or permit any Borrower or any ERISA Affiliate
to engage, in any prohibited transaction under Section 406 of ERISA or
Sections 4975 of the Code for
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which a civil penalty pursuant to Section 502(i) of ERISA or a tax
pursuant to Section 4975 of the Code may be imposed; or
(f) permit the establishment of any Employee Benefit Plan
providing post-retirement welfare benefits or establish or amend any
Employee Benefit Plan which establishment or amendment could result in
liability to the Borrower or any ERISA Affiliate or increase the
obligation of the Borrower or any ERISA Affiliate to a Multiemployer
Plan; or
(g) fail, or permit the Borrower or any ERISA Affiliate
to fail, to establish, maintain and operate each Employee Benefit Plan
in compliance in all material respects with the provisions of ERISA,
the Code, all applicable Foreign Benefit Laws and all other applicable
laws and the regulations and interpretations thereof.
11.21 Subordinated Indebtedness. Amended, modify or change in any
manner any term or condition of any Subordinated Indebtedness (including without
limitation any of the documents evidencing such Subordinated Indebtedness) so
that the terms and conditions thereof are less favorable to the Administrative
Agent and the Lenders than the terms thereof as of the Effective Date.
11.22 Status of Borrower. The Borrower shall not at any time operate
any of its lines of business other than through its Subsidiaries and Excluded
Subsidiaries, or own any assets other than (i) equity interests in Subsidiaries
and Excluded Subsidiaries and Physician Notes, (ii) cash and cash equivalents
and investments permitted under Section 11.5, and (iii) such other property as
is consistent with its sole function as a holding company.
11.23 Shareholders' Agreement. The Borrower will not modify, amend,
terminate or replace the Shareholders' Agreement without the prior written
consent of the Required Lenders.
ARTICLE XII
EVENTS OF DEFAULT
12.1 Events of Default. The occurrence of any one or more of the
following events shall constitute an "Event of Default":
(a) The Borrower shall fail to pay any principal of or interest on
any Loan, any Reimbursement Obligation, any fee or any other Obligation when
due;
(b) The Borrower shall fail to observe, perform or comply with any
condition, covenant or agreement contained in any of SECTIONS 5.7, 9.1, 9,2,
9.3(i), 9.8, 9.9, 9.10 or in ARTICLE X or ARTICLE XI;
(c) The Borrower or any of its Subsidiaries (including any
Excluded Subsidiary) shall fail to observe, perform or comply with any
condition, covenant or agreement contained in this Agreement or any of the other
Credit Documents other than those enumerated in subsections (a) and (b) above,
and such failure (i) is deemed by the terms of the relevant Credit Document to
constitute an Event of Default or (ii) shall continue unremedied for any grace
period specifically
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applicable thereto or, if no such grace period is applicable, for a period of
thirty (30) days after the earlier of (y) the date on which a Authorized Officer
of the Borrower acquires knowledge thereof and (z) the date on which written
notice thereof is delivered by the Administrative Agent or any Lender to the
Borrower;
(d) Any representation or warranty made or deemed made by or on
behalf of the Borrower or any of its Subsidiaries (or any Excluded Subsidiary)
in this Agreement, any of the other Credit Documents or in any certificate,
instrument, report or other document furnished in connection herewith or
therewith or in connection with the transactions contemplated hereby or thereby
shall prove to have been false or misleading in any material respect as of the
time made, deemed made or furnished;
(e) The Borrower or any of its Subsidiaries (including any
Excluded Subsidiary) shall (i) fail to pay when due (whether by scheduled
maturity, acceleration or otherwise and after giving effect to any applicable
grace period) any principal of or interest on any Indebtedness (other than the
Indebtedness incurred pursuant to this Agreement) having an aggregate principal
amount or Hedge Termination Value of at least $250,000 (or nonpayment default
under any Indebtedness having a principal amount or Hedge Termination Value in
excess of $100,000 individually or all such Indebtedness having an aggregate
principal amount or Hedge Termination Value in excess of $250,000 in aggregate),
or (ii) fail to observe, perform or comply with any condition, covenant or
agreement contained in any agreement or instrument evidencing or relating to any
such Indebtedness referred to in clause (i) immediately above, or any other
event shall occur or condition exist in respect thereof, and the effect of such
failure, event or condition is to cause, or permit the holder or holders of such
Indebtedness (or a trustee or agent on its or their behalf) to cause (with the
giving of notice, lapse of time, or both), such Indebtedness to become due, or
to be terminated, prepaid, redeemed, purchased or defeased prior to its stated
maturity;
(f) The Borrower or any of its Subsidiaries (including any
Excluded Subsidiary) shall (i) file a voluntary petition or commence a voluntary
case seeking liquidation, winding-up, reorganization, dissolution, arrangement,
readjustment of debts or any other relief under the Bankruptcy Code or under any
other applicable bankruptcy, insolvency or similar law now or hereafter in
effect, (ii) consent to the institution of, or fail to controvert in a timely
and appropriate manner, any petition or case of the type described in subsection
(g) below, (iii) apply for or consent to the appointment of or taking possession
by a custodian, trustee, receiver or similar official for or of itself or all or
a substantial part of its properties or assets, (iv) fail generally, or admit in
writing its inability, to pay its debts generally as they become due, (v) make a
general assignment for the benefit of creditors or (vi) take any corporate
action to authorize or approve any of the foregoing;
(g) Any involuntary petition or case shall be filed or commenced
against the Borrower or any of its Subsidiaries (including any Excluded
Subsidiary) seeking liquidation, winding-up, reorganization, dissolution,
arrangement, readjustment of debts, the appointment of a custodian, trustee,
receiver or similar official for it or all or a substantial part of its
properties or any other relief under the Bankruptcy Code or under any other
applicable bankruptcy, insolvency or similar law now or hereafter in effect, and
such petition or case shall continue undismissed and unstayed for a period of
sixty (60) days; or an order, judgment or decree approving or ordering any of
the foregoing shall be entered in any such proceeding;
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(h) Any one or more money judgments, writs or warrants of
attachment, executions or similar processes involving an aggregate amount
(exclusive of amounts fully bonded or covered by insurance as to which the
surety or insurer, as the case may be, has acknowledged its liability in
writing) in excess of $100,000 shall be entered or filed against the Borrower or
any of its Subsidiaries(including any Excluded Subsidiary) or any of their
respective properties and the same shall not be dismissed, stayed or discharged
for a period of thirty (30) days or in any event later than five days prior to
the date of any proposed sale thereunder;
(i) Any Security Document to which the Borrower or any of its
Subsidiaries is now or hereafter a party shall for any reason cease to be in
full force and effect or cease to be effective to give the Administrative Agent
a valid and perfected security interest in and Lien upon the Collateral
purported to be covered thereby, subject to no Liens other than Permitted Liens
or unpermitted Liens securing Indebtedness in an aggregate amount not exceeding
$100,000, in each case unless any such cessation occurs in accordance with the
terms thereof or is due to any act or failure to act on the part of the
Administrative Agent or any Lender; or the Borrower or any such Subsidiary shall
assert any of the foregoing; or any Subsidiary of the Borrower or any Person
acting on behalf of any such Subsidiary shall deny or disaffirm such
Subsidiary's obligations under the Subsidiary Guaranty;
(j) Any ERISA Event or any other event or condition shall occur or
exist with respect to any Plan or Multiemployer Plan and, as a result thereof,
together with all other ERISA Events and other events or conditions then
existing, the Borrower and its ERISA Affiliates have incurred or would be
reasonably likely to incur liability to any one or more Plans or Multiemployer
Plans or to the PBGC (or to any combination thereof in excess of $100,000;
(k) There shall occur a Limitation with respect to any one or more
Licenses or Reimbursement Approvals of the Borrower, or any Managed Practice, or
any other action shall be taken by any Governmental Authority or other Person in
response to any alleged failure by the Borrower, such Subsidiary or such Managed
Practice to be in compliance with applicable Requirements of Law, and such
Limitation or other action, individually or in the aggregate, has or would be
reasonably likely to have a Material Adverse Effect; or there shall occur any
introduction of or change in any Requirement of Law (or in the interpretation or
administration thereof by any Governmental Authority) governing or affecting the
Borrower and such introduction or change, individually or in the aggregate, has
or would be reasonably likely to have a Material Adverse Effect;
(l) Any one or more Environmental Claims shall have been asserted
against the Borrower or any of its Subsidiaries (including any Excluded
Subsidiary) (or a reasonable basis shall exist therefor); the Borrower and its
Subsidiaries (including any Excluded Subsidiary) have incurred or would be
reasonably likely to incur liability as a result thereof; and such liability,
individually or in the aggregate, has or would be reasonably likely to have a
Material Adverse Effect;
(m) The Borrower or any of its Subsidiaries (including any
Excluded Subsidiary) shall be in breach of or default under the terms of any one
or more agreements for the lease of real property upon which Collateral having
an aggregate fair market value in excess of $50,000 is maintained, and the
effect of such breach or default is to terminate, or permit the other party or
parries thereto to terminate, such lease or leases; or any agreement or contract
to which the
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Borrower or any of its Subsidiaries (including any Excluded Subsidiary) is a
party shall be terminated or shall, for any other reason, fail to be in full
force and effect and enforceable in accordance with its terms, and such event or
condition, together with all other such events or conditions, if any, has or
would be reasonably likely to have a Material Adverse Effect;
(n) There shall occur (i) any uninsured damage to, or loss, theft
or destruction of, any Collateral or other properties of the Borrower and its
Subsidiaries (including any Excluded Subsidiary) that has or would be reasonably
likely to have a Material Adverse Effect or (ii) any labor dispute, act of God
or other casualty that has or would be reasonably likely to have a Material
Adverse Effect;
(o) Any of the following shall occur: (i) prior to the occurrence
of a Qualified IPO, any Person or group of Persons acting in concert as a
partnership or other group, other than ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇, ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ or
▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ or a group comprised solely of such Persons (the
"Qualified Group") shall, as a result of a tender or exchange offer, open market
purchases, privately negotiated purchases or otherwise, have become, after the
date hereof, the "beneficial owner" (within the meaning of such term under Rule
13d-3 under the Exchange Act) of securities of the Borrower representing 20% or
more of the combined voting power of the then outstanding securities of the
Borrower ordinarily (and apart from rights accruing under special circumstances)
having the right to vote in the election of directors; (ii) after the occurrence
of a Qualified IPO, the Qualified Group shall own securities of the Borrower
representing less than 40% of the combined voting power of the then outstanding
securities of the Borrower ordinarily (and a part from rights accruing under
special circumstances) having the right to vote in the election of directors; or
(iii) the Board of Directors of the Borrower shall cease to consist of a
majority (or such lesser percentage as may be required by federal securities
laws or NASDAQ rules and regulations) of the individuals who constituted the
Board of Directors as of the date hereof or who shall have become a member
thereof subsequent to the date hereof after having been nominated, or otherwise
approved in writing, by at least a majority of individuals who constituted the
Board of Directors of the Borrower as of the date hereof (or those replacements
approved as herein required); or
(p) The Borrower or any of its Subsidiaries (including any
Excluded Subsidiary) shall fail to be eligible for any reason (other than
voluntary withdrawal where participation is not otherwise a Requirement of Law)
to participate in Medicaid or Medicare programs or to accept assignments or
rights to reimbursement under Medicaid Regulations or Medicare Regulations
(other than voluntary withdrawal where participation is not otherwise a
Requirement of Law).
12.2 Remedies: Termination of Term Loan A Commitments, Term Loan B
Commitments and Revolving Credit Commitments, Acceleration, etc. Upon and at any
time after the occurrence and during the continuance of any Event of Default
(unless waived in writing by the Required Lenders), the Administrative Agent
shall at the direction, or may with the consent, of the Required Lenders, take
any or all of the following actions at the same or different times:
(a) Declare the Term Loan A Facility, the Term Loan B Facility and
the Revolving Credit Commitments, the Swing Line and the Issuing Lender's
obligation to issue Letters of Credit, to be terminated, whereupon the same
shall terminate (provided that, upon the occurrence
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of an Event of Default pursuant to SECTION 12.1(f) or SECTION 12.1(g), the
Revolving Credit Commitments, the Swing Line and the Issuing Lender's obligation
to issue Letters of Credit shall automatically be terminated);
(b) Declare all or any part of the outstanding principal amount of
the Loans and the Swing Line Outstandings to be immediately due and payable,
whereupon the principal amount so declared to be immediately due and payable,
together with all interest accrued thereon and all other amounts payable under
this Agreement, the Notes and the other Credit Documents (other than any Hedge
Agreement), shall become immediately due and payable without presentment,
demand, protest, notice of intent to accelerate or other notice or legal process
of any kind, all of which are hereby knowingly and expressly waived by the
Borrower (provided that, upon the occurrence of an Event of Default pursuant to
SECTION 12.1(f) or SECTION 12.1(g), all of the outstanding principal amount of
the Loans and all other amounts described in this subsection (b) shall
automatically become immediately due and payable without presentment, demand,
protest, notice of intent to accelerate or other notice or legal process of any
kind, all of which are hereby knowingly and expressly waived by the Borrower);
(c) Direct the Borrower to deposit (and the Borrower hereby
agrees, forthwith upon receipt of notice of such direction from the
Administrative Agent, to deposit) with the Administrative Agent from time to
time such additional amount of cash as is equal to the aggregate Stated Amount
of all Letters of Credit then outstanding (whether or not any beneficiary under
any Letter of Credit shall have drawn or be entitled at such time to draw
thereunder), such amount to be held by the Administrative Agent in the Cash
Collateral Account as security for the Letter of Credit Exposure as described in
SECTION 4.8; and
(d) Exercise all rights and remedies available to it under this
Agreement, the other Credit Documents and applicable law.
12.3 Remedies: Set-Off. In addition to all other rights and
remedies available under the Credit Documents or applicable law or otherwise,
upon and at any time after the occurrence and during the continuance of any
Event of Default, each Lender may, and each is hereby authorized by the
Borrower, at any such time and from time to time, to the fullest extent
permitted by applicable law, without presentment, demand, protest or other
notice of any kind, all of which are hereby knowingly and expressly waived by
the Borrower, to set off and to apply any and all deposits (general or special,
time or demand, provisional or final) and any other property at any time held
(including at any branches or agencies, wherever located), and any other
indebtedness at any time owing, by such Lender to or for the credit or the
account of the Borrower against any or all of the Obligations to such Lender now
or hereafter existing, whether or not such Obligations may be contingent or
unmatured, the Borrower hereby granting to each Lender a continuing security
interest in and, Lien upon all such deposits and other property as security for
such Obligations. Each Lender agrees promptly to notify the Borrower and the
Administrative Agent after any such set-off and application; provided, however,
that the failure to give such notice shall not affect the validity of such
set-off and application.
12.4 Application of Funds. After the exercise of remedies provided
for in SECTION 12.2 (of after the Loans have automatically become due and
payable) any amounts received on account of the Obligations shall be applied by
the Administrative Agent in the following order:
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First, to payment of that portion of the Obligations constituting fees,
indemnities, expenses and other amounts (including attorneys fees amounts
payable under ARTICLE V) payable to the Administrative Agent in its capacity as
such;
Second, to payment of that portion of the Obligations constituting
fees, indemnities and other amounts (other than principal and interest) payable
to the Lenders (including attorneys fees amounts payable under ARTICLE V),
ratably among them in proportion to the amounts described in this clause Second
payable to them;
Third, to payment of that portion of the Obligations constituting
accrued and unpaid interest on the Loans or with respect to Letters of Credit or
with respect to Related Hedge Agreements, ratably among the Lenders in
proportion to the respective amounts described in this clause Third payable to
them;
Fourth, to payment of that portion of the Obligations constituting
unpaid principal of the Loans or with respect to Letters of Credit or
termination payments with respect to Related Hedge Agreements, ratably among the
Lenders in proportion to the respective amounts described in this clause Fourth
held by them;
Fifth, to the Administrative Agent for the account of the Issuing Bank,
to cash collateralize the Letters of Credit as described above; and
Last, the balance, if any, after all of the Obligations have been
indefeasibly paid in full, to the Borrower or as otherwise required by Law.
Subject to ARTICLE IV, amounts used to cash collateralize the aggregate undrawn
amount of Letters of Credit pursuant to clause Fifth above shall be applied to
satisfy drawings under such Letters of Credit as they occur. If any amount
remains on deposit as cash collateral after all Letters of Credit have either
been fully drawn or expired, such remaining amount shall be applied to the other
Obligations, if any, in the order set forth above.
ARTICLE XIII
THE ADMINISTRATIVE AGENT
13.1 Appointment and Authorization of Administrative Agent. Each
Lender hereby irrevocably appoints, designates and authorizes the Administrative
Agent to take such action on its behalf under the provisions of this Agreement
and each other Credit Document and to exercise such powers and perform such
duties as are expressly delegated to it by the terms of this Agreement or any
other Credit Document, together with such powers as are reasonably incidental
thereto. Notwithstanding any provision to the contrary contained elsewhere
herein or in any other Credit Document, the Administrative Agent shall not have
any duties or responsibilities, except those expressly set forth herein, nor
shall the Administrative Agent have or be deemed to have any fiduciary
relationship with any Lender or participant, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or any other Credit Document or otherwise exist against the
Administrative Agent. Without limiting the generality of the foregoing sentence,
the use of the terms "administrative agent" or "Administrative Agent" herein and
in the other Credit Documents with reference to the
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Administrative Agent is not intended to connote any fiduciary or other implied
(or express) obligations arising under agency doctrine of any applicable law.
Instead, such term is used merely as a matter of market custom, and is intended
to create or reflect only an administrative relationship between independent
contracting parties.
The Issuing Lender shall act on behalf of the Lenders with respect to
any Letter of Credit issued by it and the documents associated therewith, and
the Issuing Lender shall have all of the benefits and immunities (i) provided to
the Administrative Agent in this ARTICLE XIII with respect to any acts taken or
omissions suffered by the Issuing Lender in connection with Letters of Credit
issued by it or proposed to be issued by it and the applications and agreements
for Letters of Credit pertaining to the Letters of Credit as fully as if the
term "Agent" or "Administrative Agent" as used in this ARTICLE XIII and in the
definition of "Agent-Related Person" included the Issuing Lender with respect to
such acts or omissions, and (ii) as additionally provided herein with respect to
the Issuing Lender.
13.2 Delegation, of Duties. The Administrative Agent may execute
any of its duties under the Agreement or any other Credit Document by or through
agents, employees or attorneys-in-fact and shall be entitled to advice of
counsel and other consultants or experts concerning all matters pertaining to
such duties. The Administrative Agent shall not be responsible for the
negligence or misconduct of any agent or attorney-in-fact that it selects in the
absence of gross negligence or willful misconduct.
13.3 Liability of Administrative Agent. No Agent-Related Person
shall (a) be liable for any action taken or omitted to be taken by any of them
under or in connection with this Agreement or any other Credit Document or the
transactions contemplated hereby (except for its own gross negligence or willful
misconduct in connection with its duties expressly set forth herein), or (b) be
responsible in any manner to any Lender or participant for any recital,
statement, representation or warranty made by the Borrower, its Subsidiaries or
any officer thereof, contained herein or in any other Credit Document, or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Administrative Agent under or in connection with, this
Agreement or any other Credit Document, or the validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other Credit
Document, or for any failure of the Borrower or any other party to any Credit
Document to perform its obligations hereunder or thereunder. No Agent-Related
Person shall be under any obligation to any Lender or participant to ascertain
or to inquire as to the observance or performance of any of the agreements
contained in, or conditions of, this Agreement or any other Credit Document, or
to inspect the properties, books or records of the Borrower or any Affiliate
thereof.
13.4 Reliance by Administrative Agent. (a) The Administrative Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
writing, communication, signature, resolution, representation, notice, consent,
certificate, affidavit, letter, telegram, facsimile, telex or telephonic
message, statement or other document or conversation believed by it to be
genuine and correct and to have been signed, sent or made by the proper Person,
and upon advice and statements of legal counsel, independent accountants, and
other experts selected by the Administrative Agent. The Administrative Agent
shall be fully justified in failing or refusing to take any action under any
Credit Document unless it shall first receive such advice or concurrence of the
Required Lenders as it deems appropriate and, if it so requests, it shall first
be
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indemnified to its satisfaction by the Lenders against any and all liability and
expense which may be incurred by it by reason of taking or continuing to take
any such action. The Administrative Agent shall in all cases be fully protected
in acting, or in refraining from acting, under this Agreement or any other
Credit Document in accordance with a request or consent of the Required Lenders
or all the Lenders, if required hereunder, and such request and any action taken
or failure to act pursuant thereto shall be binding upon all the Lenders and
participants. Where this Agreement or any other Credit Document expressly
permits or prohibits an action unless the Required Lenders otherwise determine,
the Administrative Agent shall, and in all other instances, the Administrative
Agent may, but shall not be required to, initiate any solicitation for the
consent or a vote of the Lenders thereon.
(b) For purposes of determining compliance with the conditions
specified in SECTION 7.1, each Lender that has signed this Agreement shall be
deemed to have consented to, approved or accepted or to be satisfied with, each
document or other matter required thereunder to be consented to or approved by
or acceptable or satisfactory to a Lender unless the Administrative Agent shall
have received notice from such Lender prior to the Effective Date specifying its
objection thereto.
13.5 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, except with respect to the defaults in the payment of principal,
interest and fees required to be paid to the Administrative Agent for the
account of the Lenders, unless the Administrative Agent shall have received
written 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." The Administrative Agent will notify the Lenders of its
receipt of any such notice. The Administrative Agent shall take such action with
respect to such Default or Event of Default as may be directed by the Required
Lenders in accordance with ARTICLE XII; provided, however, that unless and until
the Administrative Agent has received any such direction, 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 or in the best interest of the Lenders.
13.6 Credit Decision; Disclosure of Information by Administrative
Agent. Each Lender acknowledges that no Agent-Related Person has made any
representation or warranty to it, and that no act by the Administrative Agent
hereinafter taken, including any consent to and acceptance of any assignment or
review of the affairs of any Affiliate thereof, shall be deemed to constitute
any representation or warranty by any Agent-Related Person to any Lender as to
any matter, including whether any Agent-Related Persons have disclosed material
information in their possession. Each Lender represents to the Administrative
Agent that it has, independently and without reliance upon any Agent-Related
Person and based on such documents and information as it has deemed appropriate,
made its own appraisal of and investigation into the business, prospects,
operations, property, financial and other condition and creditworthiness of any
person and its respective subsidiaries, and all applicable bank or other
regulatory laws relating to the transactions contemplated hereby, and made its
own decision to enter into this Agreement and to extend credit to the Borrower
and any other Person hereunder. Each Lender also represents that it will,
independently and without reliance upon any Agent-Related Person and based on
such documents and information as it shall deem appropriate at the time,
continue
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to make its own credit analysis, appraisals and decisions in taking or not
taking action under this Agreement and the other Credit Documents, and to make
such investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and
creditworthiness of the Borrower. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the
Administrative Agent herein, the Administrative Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, prospects, operations, property, financial and other
condition or creditworthiness of any other Person which may come into the
possession of any Agent-Related Person.
13.7 Indemnification of Administrative Agent. Whether or not the
transactions contemplated hereby are consummated, the Lenders shall indemnify
upon demand each Agent- Related Person (to the extent not reimbursed by or on
behalf of any Person and without limiting the obligation of any Person to do
so), pro rata, and hold harmless each Agent-Related Person from and against any
and all Indemnified Liabilities incurred by it; provided, however, that no
Lender shall be liable for the payment to any Agent-Related Person of any
portion of such Indemnified Liabilities resulting from such Person's gross
negligence or willful misconduct; provided, further, however, that no action
taken in accordance with the directions of the Required Lenders shall be deemed
to constitute gross negligence or willful misconduct for purposes of this
SECTION 13.7. Without limitation of the foregoing, each Lender shall reimburse
the Administrative Agent upon demand for its ratable share of any costs or
out-of-pocket expenses (including the reasonable fees and expenses of counsel
for the Administrative Agent and including the cost of internal counsel)
incurred by the Administrative Agent in connection with the preparation,
execution, delivery, administration, modification, amendment or enforcement
(whether through negotiations, legal proceedings or otherwise) of, or legal
advice in respect of rights or responsibilities under, this Agreement, any other
Credit Document, or any document contemplated by or referred to herein, to the
extent that the Administrative Agent is not reimbursed for such expenses by or
on behalf of the Borrower. The undertaking in this SECTION 13.7 shall continue
in effect notwithstanding the Termination Date or the Term Loan B Termination
Date and the resignation or replacement of the Administrative Agent.
13.8 Administrative Agent in Its Individual Capacity. Bank of
America and its Affiliates may make loans to, issue letters of credit for the
account of, accept deposits from, acquire equity interests in and generally
engage in any kind of banking, trust, financial advisory, underwriting or other
business with the Borrower as though Bank of America were not the Administrative
Agent or the Issuing Lender hereunder and without notice to or consent of the
Lenders. The Lenders acknowledge that, pursuant to such activities, Bank of
America or its Affiliates may receive information regarding the Borrower or its
Affiliates (including information that may be subject to confidentiality
obligations in favor of the Borrower or such Affiliate) and acknowledge that the
Administrative Agent shall be under no obligation to provide such information to
them. With respect to its Loans, Bank of America shall have the same rights and
powers under this Agreement as any other Lender and may exercise such rights and
powers as though it were not the Administrative Agent or the Issuing Lender, and
the terms "Lender" and "Lenders" include Bank of America in its individual
capacity.
13.9 Successor Administrative Agent. The Administrative Agent may
resign as Administrative Agent upon 30 days' notice to the Lenders; provided
that any such resignation by
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Bank of America shall also constitute its resignation as Issuing Lender and
Swing Line Lender. If the Administrative Agent resigns under this Agreement, the
Required ▇▇▇▇▇▇▇ shall appoint from among the Lenders a successor administrative
agent for the Lenders which successor administrative agent shall be consented to
by the Borrower at all times other than during the existence of an Event of
Default (which consent of the Borrower shall not be unreasonably withheld or
delayed). If no successor administrative agent is appointed prior to the
effective date of the resignation of the Administrative Agent, the
Administrative Agent may appoint, after consulting with the Lenders and the
Borrower, a successor administrative agent from among the Lenders. Upon the
acceptance of its appointment as successor administrative agent hereunder, such
successor administrative agent shall succeed to all the rights, power and duties
of the retiring Administrative Agent, Issuing Lender and Swing Line Lender and
the respective terms "Administrative Agent", Issuing Lender" and "Swing Line
Lender" shall mean such successor administrative agent Letter of Credit issuer
and Swing Line Lender, and the retiring Administrative Agent's appointment,
powers and duties as Administrative Agent shall be terminated and the retiring
▇▇▇▇▇▇▇ ▇▇▇▇▇▇'s and Swing ▇▇▇▇ ▇▇▇▇▇▇'s rights, powers and duties as such shall
be terminated, without any other or further act or deed on the part of such
retiring Issuing Lender or Swing Line Lender or any other Lender, other than the
obligation of the successor Issuing Lender to issue letters of credit in
substitution for the Letters of Credit, if any, outstanding at the time of such
succession or to make other arrangements satisfactory to the retiring Issuing
Lender to effectively assume the obligations of the retiring Issuing Lender with
respect to such Letters of Credit. After any retiring Administrative Agent's
resignation hereunder as Administrative Agent, the provisions of this ARTICLE
XIII and SECTIONS 14.2 and 14.9 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. If no successor administrative agent has accepted appointment as
Administrative Agent by the date which is 30 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 perform all of the duties of the Administrative Agent hereunder
until such time, if any, as the Required ▇▇▇▇▇▇▇ appoint a successor
administrative agent as provided for above.
13.10 Administrative Agent May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to any the Borrower or any Guarantor, the Administrative
Agent (irrespective of whether the principal of any Loan or Reimbursement
Obligation shall then be due and payable as herein expressed or by declaration
or otherwise and irrespective of whether the Administrative Agent shall have
made any demand on the Borrower) shall be entitled and empowered, by
intervention in such proceeding or otherwise
(a) to file and prove a claim for the whole amount of the
principal and interest owing and unpaid in respect of the Loans,
Reimbursement Obligations and all other Obligations that are owing and
unpaid and to file such other documents as may be necessary or
advisable in order to have the claims of the Lenders and the
Administrative Agent (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Lenders and
the Administrative Agent and their respective agents and counsel and
all other amounts due the Lenders and the Administrative Agent under
SECTIONS 4.1, 5.2 and 14.1) allowed in such judicial proceeding; and
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(b) to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender to make such payments to the Administrative Agent and, in the event
that the Administrative Agent shall consent to the making of such payments
directly to the Lenders, to pay to the Administrative Agent any amount due for
the reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under SECTIONS 5.2 and 14.1.
Nothing contained herein shall be deemed to authorize the Administrative Agent
to authorize or consent to or accept or adopt on behalf of any Lender any plan
of reorganization, arrangement, adjustment or composition affecting the
Obligations or the rights of any Lender or to authorize the Administrative Agent
to vote in respect of the claim of any Lender in any such proceeding.
13.11 Collateral and Guaranty Matters. The Lenders irrevocably
authorize the Administrative Agent, at its option and in its discretion,
(i) to release any Lien on any property granted to or
held by the Administrative Agent under any Credit Document (i) upon
termination of the Commitments and payment in full of all Obligations
(other than contingent indemnification obligations) and the expiration
or termination of all Letters of Credit, (ii) that is sold or to be
sold as part of or in connection with any sale permitted hereunder or
under any other Credit Document, or (iii) subject to SECTION 14.6, if
approved, authorized or ratified in writing by the Required Lenders;
(ii) to subordinate any Lien on any property granted to or
held by the Administrative Agent under any Credit Document to
the holder of any Lien on such property that is permitted by
SECTION 11.3(ix)); and
(a) to release any Guarantor from its obligations under
the Guaranty if such Person ceases to be a Subsidiary as a result of a
transaction permitted hereunder.
Upon request by the Administrative Agent at any time, the Required Lenders will
confirm in writing the Administrative Agent's authority to release or
subordinate its interest in particular types or items of property, or to release
any Guarantor from its obligations under the Guaranty pursuant to this SECTION
13.11.
13.12 Other Agents; Lead Managers. None of the Lenders identified
on the facing page or signature pages of this Agreement as a "syndication
agent," "documentation agent," "co-agent", "lead arranger" or "book manager",
if any, shall have any right, power, obligation, liability, responsibility or
duty under this Agreement other than those applicable to all Lenders as such.
Without limiting the foregoing, none of the Lenders so identified shall have or
be deemed to have any fiduciary relationship with any Lender. Each Lender
acknowledges that it has not relied, and will not rely, on any of the Lenders so
identified in deciding to enter into this Agreement or in taking or not taking
action hereunder.
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ARTICLE XIV
MISCELLANEOUS
14.1 Fees and Expenses. The Borrower agrees (i) whether or not the
transactions contemplated by this Agreement shall be consummated, to pay upon
demand all reasonable out-of-pocket costs and expenses of the Administrative
Agent (including, without limitation, the reasonable fees and expenses of
counsel to the Administrative Agent) in connection with (y) the Administrative
Agent's due diligence investigation in connection with, and the preparation,
negotiation, execution, delivery and syndication of, this Agreement and the
other Credit Documents, and any amendment, modification or waiver hereof or
thereof or consent with respect hereto or thereto, and (z) the creation,
perfection and maintenance of the perfection of the Administrative Agent's Liens
upon the Collateral, including, without limitation, Lien search, filing and
recording fees, title insurance and appraisal charges and fees and taxes
relating thereto, (ii) to pay upon demand all reasonable out-of-pocket costs and
expenses of the Administrative Agent and each Lender (including, without
limitation, reasonable attorneys' fees and expenses and the cost of independent
public accountants and other outside experts retained by the Administrative
Agent or any Lender) in connection with (y) any refinancing or restructuring of
the credit arrangement provided under this Agreement, whether in the nature of a
"work-out," in any insolvency or bankruptcy proceeding or otherwise and whether
or not consummated, and (z) the enforcement, attempted enforcement or
preservation of any rights or remedies under this Agreement or any of the other
Credit Documents, whether in any action, suit or proceeding (including any
bankruptcy or insolvency proceeding) or otherwise, and (iii) to pay and hold the
Administrative Agent and each Lender harmless from and against all liability for
any intangibles, documentary, stamp or other similar taxes, fees and excises, if
any, including any interest and penalties and any finder's or brokerage fees,
commissions and expenses (other than any fees, commissions or expenses of
finders or brokers engaged by the Administrative Agent or any Lender), that may
be payable in connection with the transactions contemplated by this Agreement
and the other Credit Documents. All amounts due under this SECTION 14.1 shall be
payable within ten (10) Business Days after demand therefor. The agreements in
this Section shall survive the termination of the Commitments and the repayment
of all other Obligations.
14.2 Indemnification; Limitation of Liability. Whether or not the
transactions contemplated herein are consummated, the Borrower shall indemnify
and hold harmless each Agent-Related Person and each Lender and each of their
Affiliates and their respective officers, directors, employees, agents, and
attorneys-in-fact (each, an "Indemnified Party") from and against any and all
claims, damages, losses, liabilities, costs, and expenses (including, without
limitation, reasonable attorneys' fees) of any kind or nature that may be
incurred by or asserted or awarded against any Indemnified Party, in any way
arising out of or in connection with or by reason of (including, without
limitation, in connection with any investigation, litigation, or proceeding or
preparation of defense in connection therewith) the Credit Documents, any of the
transactions contemplated herein or the actual or proposed use of the proceeds
of the Loans or any actual or alleged presence or release of Hazardous
Substances on or from any property currently or formerly owned or operated by
the Borrower or any Subsidiary (including any Excluded Subsidiary), or any
Environmental Claim related in any way to the Borrower or any Subsidiary
(including any Excluded Subsidiary) (all of the foregoing, collectively, the
"Indemnified Liabilities"), except to the extent such claim, damage, loss,
liability, cost, or
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expense is found in a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from such Indemnified Party's gross negligence or
willful misconduct. In the case of an investigation, litigation or other
proceeding to which the indemnity in this SECTION 14.2 applies, such indemnity
shall be effective whether or not such investigation, litigation or proceeding
is brought by the Borrower, its directors, shareholders or creditors or an
Indemnified Party or any other Person or any Indemnified Party is otherwise a
party thereto. The Borrower agrees that no Indemnified Party shall be liable for
any damages arising from the use by others of any information or other materials
obtained through IntraLinks or other similar information transmission systems in
connection with this Agreement, nor shall any Indemnified Party have any
liability for any indirect or consequential damages relating to this Agreement
or any other Credit Document or arising out of its activities in connection
herewith or therewith (whether before or after the Effective Date). All amounts
due under this SECTION 14.2 shall be payable within ten Business Days after
demand therefor. The agreements in this Section shall survive the resignation of
the Administrative Agent, the replacement of any Lender, the termination of the
Commitments and the repayment, satisfaction or discharge of all the other
Obligations.
14.3 GOVERNING LAW; WAIVER OF JURY TRIAL.
(a) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS (OTHER THAN
THOSE SECURITY INSTRUMENTS WHICH EXPRESSLY PROVIDE THAT THEY SHALL BE GOVERNED
BY THE LAWS OF ANOTHER JURISDICTION) SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF FLORIDA APPLICABLE TO CONTRACTS
EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
(b) THE BORROWER HEREBY EXPRESSLY AND IRREVOCABLY AGREES AND
CONSENTS THAT ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREIN MAY BE INSTITUTED IN ANY
STATE OR FEDERAL COURT SITTING IN THE COUNTY OF ▇▇▇, STATE OF FLORIDA, UNITED
STATES OF AMERICA AND, BY THE EXECUTION AND DELIVERY OF THIS AGREEMENT, THE
BORROWER EXPRESSLY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF VENUE IN, OR TO THE EXERCISE OF JURISDICTION OVER IT AND ITS PROPERTY
BY, ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING, AND THE BORROWER
HEREBY IRREVOCABLY SUBMITS GENERALLY AND UNCONDITIONALLY TO THE JURISDICTION OF
ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING.
(c) THE BORROWER AGREES THAT SERVICE OF PROCESS MAY BE MADE BY
PERSONAL SERVICE OF A COPY OF THE SUMMONS AND COMPLAINT OR OTHER LEGAL PROCESS
IN ANY SUCH SUIT, ACTION OR PROCEEDING, OR BY REGISTERED OR CERTIFIED MAIL
(POSTAGE PREPAID) TO THE ADDRESS OF THE BORROWER PROVIDED IN SECTION 14.5, OR BY
ANY OTHER METHOD OF SERVICE PROVIDED FOR UNDER THE APPLICABLE LAWS IN EFFECT IN
THE STATE OF FLORIDA.
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(d) NOTHING CONTAINED IN SUBSECTIONS (b) OR (c) HEREOF SHALL
PRECLUDE THE ADMINISTRATIVE AGENT OR ANY LENDER FROM BRINGING ANY SUIT, ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO ANY CREDIT DOCUMENT IN THE COURTS OF
ANY JURISDICTION WHERE THE BORROWER OR ANY OF THE BORROWER'S PROPERTY OR ASSETS
MAY BE FOUND OR LOCATED. TO THE EXTENT PERMITTED BY THE APPLICABLE LAWS OF ANY
SUCH JURISDICTION, THE BORROWER HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION
OF ANY SUCH COURT AND EXPRESSLY WAIVES, IN RESPECT OF ANY SUCH SUIT, ACTION OR
PROCEEDING, OBJECTION TO THE EXERCISE OF JURISDICTION OVER IT AND ITS PROPERTY
BY ANY SUCH OTHER COURT OR COURTS WHICH NOW OR HEREAFTER MAY BE AVAILABLE UNDER
APPLICABLE LAW.
(e) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS OR
REMEDIES UNDER OR RELATED TO ANY CREDIT DOCUMENT OR ANY AMENDMENT, INSTRUMENT,
DOCUMENT OR AGREEMENT DELIVERED OR THAT MAY IN THE FUTURE BE DELIVERED IN
CONNECTION THEREWITH, OR IN ANY WAY CONNECTED WITH OR INCIDENTAL TO THE DEALINGS
OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY CREDIT DOCUMENT,
WHETHER NOW EXISTING OR HEREAFTER ARISING, THE BORROWER, THE ADMINISTRATIVE
AGENT AND THE LENDERS HEREBY AGREE, TO THE EXTENT PERMITTED BY APPLICABLE LAW,
THAT ANY SUCH ACTION, SUIT OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT
BEFORE A JURY AND HEREBY IRREVOCABLY WAIVE, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT SUCH PERSON MAY HAVE TO TRIAL BY JURY IN ANY SUCH
ACTION, SUIT OR PROCEEDING. ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE
CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
(f) THE BORROWER HEREBY EXPRESSLY WAIVES ANY OBJECTION IT MAY HAVE
THAT ANY COURT TO WHOSE JURISDICTION IT HAS SUBMITTED PURSUANT TO THE TERMS
HEREOF IS AN INCONVENIENT FORUM.
14.4 Arbitration; Preservation and Limitation of Remedies, (a) Upon
demand of any party hereto, whether made before or after institution of any
judicial proceeding, any dispute, claim or controversy arising out of, connected
with or relating to this Agreement or any other Credit Document ("Disputes")
between or among the Borrower, its Subsidiaries, the Administrative Agent and
the Lenders, or any of them, shall be resolved by binding arbitration as
provided herein. Institution of a judicial proceeding by a party does not waive
the right of that party to demand arbitration hereunder. Disputes may include,
without limitation, tort claims, counterclaims, claims brought as class actions,
claims arising from documents executed in the future, disputes as to whether a
matter is subject to arbitration or claims arising out of or connected with the
transactions contemplated by this Agreement and the other Credit Documents.
Arbitration shall be conducted under and governed by the Commercial Financial
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Disputes Arbitration Rules (the "Arbitration Rules") of the American Arbitration
Association (the "AAA"), as in effect from time to time, and the Federal
Arbitration Act, Title 9 of the U.S. Code, as amended. All arbitration hearings
shall be conducted in the city in which the principal office of the
Administrative Agent is located. A hearing shall begin within ninety (90) days
of demand for arbitration and all hearings shall be concluded within 120 days of
demand for arbitration. These time limitations may not be extended unless a
party shows cause for extension and then for no more than a total of sixty (60)
days. The expedited procedures set forth in Rule 51 et seq. of the Arbitration
Rules shall be applicable to claims of less than $1,000,000. All applicable
statutes of limitation shall apply to any Dispute. A judgment upon the award may
be entered in any court having jurisdiction. The panel from which all
arbitrators are selected shall be comprised of licensed attorneys selected from
the Commercial Financial Dispute Arbitration Panel of the AAA. The single
arbitrator selected for expedited procedure shall be a retired judge from the
highest court of general jurisdiction, state or federal, of the state where the
hearing will be conducted. Notwithstanding the foregoing, this arbitration
provision does not apply to Disputes under or related to any Hedge Agreement
that is a Credit Document. The parties do not waive applicable federal or state
substantive law except as provided herein.
(b) Notwithstanding the preceding binding arbitration provisions,
the parties hereto agree to preserve, without diminution, certain remedies that
any party hereto may employ or exercise freely, either alone, in conjunction
with or during a Dispute. Any party hereto shall have the right to proceed in
any court of proper jurisdiction or by self-help to exercise or prosecute the
following remedies, as applicable: (i) all rights to foreclose against any
Collateral by exercising a power of sale granted pursuant to any of the Credit
Documents or under applicable law or by judicial foreclosure and sale, including
a proceeding to confirm the sale; (ii) all rights of self-help, including
peaceful occupation of real property and collection of rents, set-off, and
peaceful possession of personal property; (iii) obtaining provisional or
ancillary remedies, including injunctive relief, sequestration, garnishment,
attachment, appointment of a receiver and filing an involuntary bankruptcy
proceeding; and (iv) when applicable, a judgment by confession of judgment. Any
claim or controversy with regard to any party's entitlement to such remedies is
a Dispute, Preservation of these remedies does not limit the power of an
arbitrator to grant similar remedies that may be requested by a party in a
Dispute. The parties hereto agree that no party shall have a remedy of punitive
or exemplary damages against any other party in any Dispute, and each party
hereby waives any right or claim to punitive or exemplary damages that it has
now or that may arise in the future in connection with any Dispute, whether such
Dispute is resolved by arbitration or judicially. The parties acknowledge that
by agreeing to binding arbitration they have irrevocably waived any right they
may have to a jury trial with regard to a Dispute.
14.5 Notices. ▇▇ notices and other communications provided for
hereunder shall be in writing (including telegraphic, telex, facsimile
transmission or cable communication) and mailed, telegraphed, telexed,
telecopied, cabled or delivered to the party to be notified at the following
addresses:
(a) if to the Borrower, to Radiation Therapy Services, Inc., ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇;
(b) if to the Administrative Agent, to Bank of America, N.A., ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇-231-08-30, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Telecopy No.
(▇▇▇) ▇▇▇-▇▇▇▇; and
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(c) if to any Lender, to it at the address set forth on its
signature page hereto (or if to any Lender not a party hereto as of the date
hereof, at the address set forth in its Assignment and Assumption);
or in each case, to such other address as any party may designate for itself by
like notice to all other parties hereto. All such notices and communications
shall be deemed to have been given (i) if mailed as provided above by any method
other than overnight delivery service, on the third Business Day after deposit
in the mails, (ii) if mailed by overnight delivery service, telegraphed,
telexed, telecopied or cabled, the Business Day following delivery for overnight
delivery, delivered to the telegraph company, confirmed by telex answerback,
transmitted by telecopier or delivered to the cable company, respectively, or
(iii) if delivered by hand, upon delivery.
14.6 Amendments, Waivers, etc. No amendment, modification, waiver
or discharge or termination of, or consent to any departure by the Borrower
from, any provision of this Agreement or any other Credit Document (other than
any Hedge Agreement), shall be effective unless in a writing signed by the
Required Lenders (or by the Administrative Agent at the direction or with the
consent of the Required Lenders), and then the same shall be effective only in
the specific instance and for the specific purpose for which given; provided,
that that no such amendment, modification, waiver, discharge, termination or
consent shall:
(a) unless agreed to by all of the Lenders, (i) except as may be
otherwise specifically provided in this Agreement or in any other Credit
Document, release all or substantially all of the Collateral or release any
Subsidiary Guarantor from its obligations under the Subsidiary Guaranty, or (ii)
change any provision of SECTION 5.8 or this SECTION 14.6; and
(b) unless agreed to by those Lenders holding at least 66 2/3% of
the sum of the Revolving Credit Commitment, the Term Loan A Outstandings and the
Term Loan B Outstandings, increase any Revolving Credit Commitment, Term Loan A
Commitment, or Term Loan B Commitment of any Lender; and
(c) unless agreed to by all of the Revolving Lenders, (i) increase
or extend any Revolving Credit Commitment of any Lender (it being understood
that a waiver of any Event of Default, if agreed to by the requisite Lenders
hereunder, shall not constitute such an increase), (ii) reduce or forgive the
principal amount of any Revolving Loan, reduce the rate of or forgive any
interest thereon, or reduce any fees or other Obligations (other than fees
payable to the Administrative Agent for its own account and other than any Hedge
Agreement), (iii) change the percentage of the aggregate Revolving Credit
Commitments of all Revolving Lenders or of the aggregate unpaid principal amount
of the Revolving Loans, or the number or percentage of Revolving Lenders, that
shall be required for the Revolving Lenders or any of them to take or approve,
or direct the Administrative Agent to take, any action hereunder (including as
set forth in the definition of "Required Revolving Lenders"), or (iv) extend the
Maturity Date or time for any scheduled payment hereunder with respect to the
Revolving Credit Facility; and
(d) unless agreed to by all of the Term Loan A Lenders, (i)
increase or extend any Term Loan A Commitment of any Term Loan A Lender (it
being understood that a waiver of any Event of Default, if agreed to by the
requisite Lenders hereunder, shall not constitute such an increase), (ii) reduce
or forgive the principal amount of the Term Loan A, reduce the rate of or
forgive any interest thereon, or reduce any fees or other Obligations (other
than fees payable to
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the Administrative Agent for its own account and other than any Hedge
Agreement), (iii) change the percentage of the aggregate Term Loan A Commitments
of all Term Loan A Lenders or of the aggregate unpaid principal amount of the
Term Loan A, or the number or percentage of Term Loan A Lenders, that shall be
required for the Term Loan A Lenders or any of them to take or approve, or
direct the Administrative Agent to take, any action hereunder (including as set
forth in the definition of "Required Term Loan A Lenders"), (iv) extend the
Maturity Date or time for any scheduled payment hereunder with respect to the
Term Loan A Facility or (v) waive or extend, reduce or postpone any mandatory
prepayment in respect of the Term Loan A; and
(e) unless agreed to by all of the Term Loan B Lenders, (i)
increase or extend any Term Loan B Commitment of any Term Loan B Lender (it
being understood that a waiver of any Event of Default, if agreed to by the
requisite Lenders hereunder, shall not constitute such an increase), (ii) reduce
or forgive the principal amount of the Term Loan B, reduce the rate of or
forgive any interest thereon, or reduce any fees or other Obligations (other
than fees payable to the Administrative Agent for its own account and other than
any Hedge Agreement), (iii) change the percentage of the aggregate Term Loan B
Commitments of all Term Loan B Lenders or of the aggregate unpaid principal
amount of the Term Loan B, or the number or percentage of Term Loan B Lenders,
that shall be required for the Term Loan B Lenders or any of them to take or
approve, or direct the Administrative Agent to take, any action hereunder
(including as set forth in the definition of "Required Term Loan B Lenders"),
(iv) extend the Term Loan B Maturity Date or time for any scheduled payment
hereunder with respect to the Term Loan B Facility or (v) waive, extend, reduce
or postpone any mandatory prepayment in respect of the Term Loan B; and
(f) Unless agreed to by the Required Revolving Lenders and the
Swing Line Lender and the Issuing Bank, the effect of enabling the Borrower to
satisfy any condition to a Borrowing contained in SECTION 7.2 hereof which, but
for such amendment, waiver or consent would not otherwise be satisfied, or shall
be effective to require the Revolving Lenders, the Swing Line Lender or the
Issuing Bank to make any additional Revolving Loans or Swing Line Loan, or to
issue any additional or renew any existing Letter of Credit; and
(g) unless agreed to by the Issuing Lender or the Administrative
Agent in addition to the Lenders required as provided hereinabove to take such
action, affect the respective rights or obligations of the Issuing Lender or the
Administrative Agent, as applicable, hereunder or under any of the other Credit
Documents (other than any Hedge Agreement); and
(h) impose any greater restriction on the ability of any Lender to
assign any of its rights or obligations hereunder without the written consent of
▇▇▇▇▇▇▇ having more, in the aggregate, than 50% of the Credit Exposures then in
effect within each of the following classes of commitments, Loans and other
Obligations: (i) the class consisting of the Revolving Credit Commitment and the
Term Loan A Commitment combined on an aggregate basis, and (ii) the class
consisting of the Term Loan B Commitment. For purposes of this clause, the
aggregate amount of each Lender's risk participation and funded participation in
Letter of Credit Exposure and Swing Line Loans shall be deemed to be held by
such Lender;
and provided further that any Hedge Agreement to which any Lender is a party may
be amended or modified, and any rights thereunder waived, in a writing signed by
the parties thereto.
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14.7 Successors and Assigns. (a) The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that the Borrower may
not assign or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of each Lender and no Lender may assign or
otherwise transfer any of its rights or obligations hereunder except (i) to an
Eligible Assignee in accordance with the provisions of paragraph (b) of this
SECTION 14.7, (ii) by way of participation in accordance with the provisions of
paragraph (d) of this SECTION 14.7 or (iii) by way of pledge or assignment of a
security interest subject to the restrictions of paragraph (f) of this SECTION
14.7 (and any other attempted assignment or transfer by any party hereto shall
be null and void). Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby, Participants to the extent
provided in paragraph (d) of this SECTION 14.7 and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent and
the Lenders) any legal or equitable right, remedy or claim under or by reason of
this Agreement.
(b) Any Lender may at any time assign to one or more Eligible
Assignees all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Term Loan A Commitment and Term Loan A and
Revolving Credit Commitments and Revolving Loans and Term Loan B Commitment and
Term Loan B at the time owing to it); provided that (i) except in the case of an
assignment of the entire remaining amount of the assigning Lender's Term Loan A
Commitment and Term Loan A and Revolving Credit Commitments and Revolving Loans
and Term Loan B Commitment and Term Loan B at the time owing to it or in the
case of an assignment to a Lender or an Affiliate of a Lender or an Approved
Fund with respect to a Lender, the aggregate amount of the Term Loan A
Commitment and Revolving Credit Commitments and Term Loan B Commitments (which
for this purpose includes Loans outstanding thereunder) or, if the applicable
Term Loan A Commitment or Revolving Credit Commitment or Term Loan B Facility is
not then in effect, the principal outstanding balance of the Loans of the
assigning Lender subject to each such assignment (determined as of the date the
Assignment and Assumption with respect to such assignment is delivered to the
Administrative Agent or, if "Trade Date" is specified in the Assignment and
Assumption, as of the Trade Date) shall not be less than $5,000,000, in the case
of any assignment in respect of the Revolving Credit Facility, or $1,000,000, in
the case of any assignment in respect of the Term Loan A Facility or Term Loan B
Facility, unless each of the Administrative Agent and, so long as no Event of
Default has occurred and is continuing, the Borrower otherwise consent (each
such consent not to be unreasonably withheld or delayed); (ii) each partial
assignment shall be made as an assignment of a proportionate part of all the
assigning Lender's rights and obligations under this Agreement with respect to
the Loans or the Term Loan A Commitment or Revolving Credit Commitments or Term
Loan B Commitments assigned, except that this clause (ii) shall not prohibit any
Lender from assigning all or a portion of its rights and obligations among
separate tranches on a non-pro rata basis; (iii) any assignment of a Revolving
Credit Commitment must be approved by the Administrative Agent and the Issuing
Lender unless the proposed assignee is itself a Lender with a Revolving Credit
Commitment (whether or not the proposed assignee would otherwise qualify as an
Eligible Assignee); and (iv) the parties to each assignment shall execute and
deliver to the Administrative Agent an Assignment and Assumption, together with
a processing and recordation fee of 53,500.00, and the Eligible Assignee, if it
shall not be a Lender, shall deliver to the Administrative Agent an
Administrative Questionnaire, Subject to acceptance and recording thereof by the
Administrative Agent
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pursuant to paragraph (c) of this SECTION 14.7, from and after the effective
date specified in each Assignment and Assumption, the Eligible Assignee
thereunder shall be a party to this Agreement and, to the extent of the interest
assigned by such Assignment and Assumption, have the rights and obligations of a
Lender under this Agreement, and the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Assumption, be released
from its obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto) but shall continue
to be entitled to the benefits of SECTIONS 5.9, 5.10 AND 14.2 with respect to
facts and circumstances occurring prior to the effective date of such
assignment. Any assignment or transfer by a Lender of rights or obligations
under this Agreement that does not comply with this paragraph shall be treated
for purposes of this Agreement as a sale by such Lender of a participation in
such rights and obligations in accordance with paragraph (d) of this SECTION
14.7.
(c) The Administrative Agent, acting solely for this purpose as an
agent of the Borrower, shall maintain at one of its offices in North Carolina a
copy of each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Term Loan A
Commitment, the Term Loan B Commitment and Revolving Credit Commitments of, and
principal amounts of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall be
conclusive, and the Borrower, the Administrative Agent and the Lenders may treat
each Person whose name is recorded in the Register pursuant to the terms hereof
as a Lender hereunder for all purposes of this Agreement, notwithstanding notice
to the contrary. The Register shall be available for inspection by the Borrower
and any Lender, at any reasonable time and from time to time upon reasonable
prior notice.
(d) Any Lender may at any time, without the consent of, or notice
to, the Borrower or the Administrative Agent, sell participations to any Person
(other than a natural person or the Borrower or any of the Borrower's Affiliates
or Subsidiaries) (each, a "Participant") in all or a portion of such Lender's
rights and/or obligations under this Agreement (including all or a portion of
its Term Loan A Commitment, Revolving Credit Commitments, Term Loan B
Commitments and/or the Loans owing to it); provided that (i) such Lender's
obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations and (iii) the Borrower, the Administrative Agent and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement. Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision
of this Agreement; provided that such agreement or instrument may provide that
such Lender will not, without the consent of the Participant, agree to any
amendment, modification or waiver described in SECTION 14.6 that affects such
Participant. Subject to paragraph (e) of this SECTION 14.7, the Borrower agrees
that each Participant shall be entitled to the benefits of SECTIONS 5.9, 5.10
AND 14.2 to the same extent as if it were a Lender and had acquired its interest
by assignment pursuant to paragraph (b) of this Section. To the extent permitted
by law, each Participant also shall be entitled to the benefits of SECTION 12.3
as though it were a Lender, provided such Participant agrees to be subject to
SECTION 12.3 as though it were a Lender.
119
(e) A Participant shall not be entitled to receive any greater
payment under SECTIONS 5.9 AND 5.10 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the
Borrower's prior written consent. A Participant that would be a Foreign Lender
if it were a Lender shall not be entitled to the benefits of SECTION 5.10 unless
the Borrower is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrower, to comply with SECTION
5.10(d) as though it were a Lender.
(f) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to secure
obligations of such Lender, including without limitation any pledge or
assignment to secure obligations to a Federal Reserve Bank; provided that no
such pledge or assignment shall release such Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a party
hereto.
(g) Upon its receipt of a duly completed Assignment and Assumption
executed by an assigning Lender and an Eligible Assignee and, if required,
counterexecuted by the Borrower, together with the Note or Notes subject to such
assignment and the processing fee referred to in subsection (a) above, the
Administrative Agent will (i) accept such Assignment and Assumption, (ii) on the
effective date thereof, record the information contained therein in the Register
and (ii) give notice thereof to the Borrower and the Lenders. Within five (5)
Business Days after its receipt of such notice, the Borrower, at its own
expense, will execute and deliver to the Administrative Agent, in exchange for
the surrendered Note or Notes, a new Note or Notes to the order of the Eligible
Assignee (and, if the assigning Lender has retained any portion of its rights
and obligations hereunder, to the order of the assigning Lender), prepared in
accordance with the provisions of SECTION 2.2 AND 3.4 as necessary to reflect,
after giving effect to the assignment, the Commitments of the Assignee and (to
the extent of any retained interests) the assigning Lender, dated the date of
the replaced Note and Notes and otherwise in substantially the form of EXHIBITS
A-1 AND A-2. The Administrative Agent will return canceled Notes to the
Borrower.
(h) Any Lender or Participant may, in connection with any
assignment or participation or proposed assignment or participation pursuant to
this Section, disclose to the Eligible Assignee or Participant or proposed
Eligible Assignee or Participant any information relating to the Borrower and
its Subsidiaries furnished to it by or on behalf of any other party hereto,
provided that such Eligible Assignee or Participant or proposed Eligible
Assignee or Participant agrees in writing to keep such information confidential
to the same extent required of the Lenders under SECTION 14.12.
14.8 No Waiver. The rights and remedies of the Administrative Agent
and the Lenders expressly set forth in this Agreement and the other Credit
Documents are cumulative and in addition to, and not exclusive of, all other
rights and remedies available at law, in equity or otherwise. No failure or
delay on the part of the Administrative Agent or any Lender in exercising any
right, power or privilege shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right, power or privilege preclude other
or further exercise thereof or the exercise of any other right, power or
privilege or be construed to be a waiver of any Default or Event of Default. No
course of dealing between any of the Borrower and the Administrative Agent or
the Lenders or their agents or employees shall be effective to amend, modify or
discharge any provision of this Agreement or any other Credit Document or to
constitute a waiver of any Default or Event of Default. No notice to or demand
upon the Borrower in any
120
case shall entitle the Borrower to any other or further notice or demand in
similar or other circumstances or constitute a waiver of the right of the
Administrative Agent or any Lender to exercise any right or remedy or take any
other or further action in any circumstances without notice or demand.
14.9 Survival. All representations, warranties and agreements made
by or on behalf of the Borrower or any of its Subsidiaries in this Agreement and
in the other Credit Documents shall survive the execution and delivery hereof or
thereof, the making and repayment of the Loans and the issuance and repayment of
the Letters of Credit. In addition, notwithstanding anything herein or under
applicable law to the contrary, the provisions of this Agreement and the other
Credit Documents relating to indemnification or payment of fees, costs and
expenses, including, without limitation, the provisions of SECTIONS 5.9(a),
5.9(b), 5.10, 5.11, 13.7, 14.1 and 14.2, shall survive the payment in full of
all Loans and Letters of Credit, the termination of the Term Loan A Commitment,
Revolving Credit Commitments and all Letters of Credit and any termination of
this Agreement or any of the other Credit Documents.
14.10 Severability. To the extent any provision of this Agreement is
prohibited by or invalid under the applicable law of any jurisdiction such
provision shall be ineffective only to the extent of such prohibition or
invalidity and only in such jurisdiction, without prohibiting or invalidating
such provision in any other jurisdiction or the remaining provisions of this
Agreement in any jurisdiction.
14.11 Construction. The headings of the various articles, sections
and subsections of this Agreement have been inserted for convenience only and
shall not in any way affect the meaning or construction of any of the provisions
hereof. Except as otherwise expressly provided herein and in the other Credit
Documents, in the event of any inconsistency or conflict between any provision
of this Agreement and any provision of any of the other Credit Documents, the
provision of this Agreement shall control.
14.12 Confidentiality. Each Lender agrees to keep confidential,
pursuant to its customary procedures for handling confidential information of a
similar nature and in accordance with safe and sound banking practices, all
nonpublic information provided to it by or on behalf of the Borrower or any of
its Subsidiaries in connection with this Agreement or any other Credit Document;
provided, however, that any Lender may disclose such information (i) to its
directors, employees and agents and to its auditors, counsel and other
professional advisors or to an Affiliate and its directors, (ii) at the demand
or request of any bank regulatory authority, court or other Governmental
Authority having or asserting jurisdiction over such Lender, as may be required
pursuant to subpoena or other legal process, or otherwise in order to comply
with any applicable Requirement of Law, (iii) in connection with any proceeding
to enforce its rights hereunder or under any other Credit Document or any other
litigation or proceeding related hereto or to which it is a party, (iv) to the
Administrative Agent or any other Lender and (v) to the extent the same has
become publicly available other than as a result of a breach of this Agreement.
14.13 Counterparts. This Agreement may be executed in any number of
counterparts and by different parties hereto on separate counterparts, each of
which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument.
121
14.14 Disclosure of Information. The Borrower agrees and consents to
the Administrative Agent's disclosure of information relating to this
transaction to Gold Sheets and other similar bank trade publications. Such
information will consist of deal terms and other information customarily found
in such publications.
14.15 Entire Agreement. THIS AGREEMENT AND THE OTHER DOCUMENTS AND
INSTRUMENTS EXECUTED AND DELIVERED IN CONNECTION HEREWITH (a) EMBODY THE ENTIRE
AGREEMENT AND UNDERSTANDING BETWEEN THE PARTIES HERETO AND THERETO RELATING TO
THE SUBJECT MATTER HEREOF AND THEREOF, (b) SUPERSEDE ANY AND ALL PRIOR
AGREEMENTS AND UNDERSTANDINGS OF SUCH PERSONS, ORAL OR WRITTEN, RELATING TO THE
SUBJECT MATTER HEREOF AND THEREOF, INCLUDING, WITHOUT LIMITATION, THE SECOND
AMENDED CREDIT AGREEMENT AND THE COMMITMENT LETTER FROM BANK OF AMERICA TO THE
BORROWER DATED DECEMBER 13, 2001, AND (c) MAY NOT BE AMENDED, SUPPLEMENTED,
CONTRADICTED OR OTHERWISE MODIFIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
14.16 USA PATRIOT Act Notice. Each Lender and the Administrative
Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower
that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L.
107-56 (signed into law October 26, 2001)) (the "Act"), it is required to
obtain, verify and record information that identifies the Borrower, which
information includes the name and address of the Borrower and other information
that will allow such Lender or the Administrative Agent, as applicable, to
identify the Borrower in accordance with the Act.
(Signatures to follow)
122
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by, their duly authorized officers as of the date first above written.
RADIATION THERAPY SERVICES, INC.
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: CFO and Executive Vice President
BANK OF AMERICA, N.A., as Administrative
Agent
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
BANK OF AMERICA, N.A., as Lender, as
Swingline Lender and as Issuing Bank
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President
Instructions for wire transfers to the
Administrative Agent:
Bank of America, N.A.
ABA Routing No. ▇▇▇-▇▇▇-▇▇▇
New York, New York
Account Number: ▇▇▇-▇▇▇-▇▇▇-▇▇▇▇
Account Name: Radiation Therapy Services, Inc.
Attention: Corporate Credit Services
Address for notices as a Lender:
Bank of America, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇
Telephone: ▇▇▇.▇▇▇.▇▇▇▇
Telecopy: 954.765.2133
Lending Office:
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇: ▇▇▇-231-08-30
Chicago, Illinois 60604
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Agency Management
Telephone: ▇▇▇.▇▇▇.▇▇▇▇
Telecopy: 877.206.8412
(signatures continued)
S-2
WACHOVIA BANK NATIONAL ASSOCIATION, as a Lender
By: /s/ ▇▇▇▇▇ Santa ▇▇▇▇
---------------------------
Name: ▇▇▇▇▇ Santa ▇▇▇▇
Title: Director
Address for notices as a Lender:
Wachovia Bank, National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ Santa ▇▇▇▇
Telephone: ▇▇▇.▇▇▇.▇▇▇▇
Telecopy: 704.383.7611
Leading Office:
Wachovia Bank, National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Healthcare, NC-0760
Telephone: ▇▇▇.▇▇▇.▇▇▇▇
Telecopy: 704.383.7611
(signatures continued)
FIFTH THIRD BANK, A MICHIGAN BANKING
CORPORATION, as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
Address for notices:
Fifth Third Bank, a Michigan Banking
corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
MD: 1MOC2B
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇▇.▇▇▇.▇▇▇▇
Telecopy: 513.358.0221
Lending Office:
Fifth Third Bank, a Michigan Banking
corporation
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
MD:B21811
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
S-1
SUNTRUST BANK
By: /s/ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇
-------------------------------
Name ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇
Title: SVP
Address for notices:
SunTrust Bank
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-3454
Attention: ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇
Telephone: ▇▇▇.▇▇▇.▇▇▇▇
Telecopy: 239.277.2576
Lending Office:
SunTrust Bank
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-3454
Attention: ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇
Telephone: ▇▇▇.▇▇▇.▇▇▇▇
Telecopy: 239.277.2576
S-1
CAROLINA FIRST BANK
By: /s/ ▇▇▇▇▇ ▇. Short
----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
Address for notices:
Carolina First Bank
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇.▇▇▇.▇▇▇▇
Telecopy: 865.255.8991
Lending Office:
Carolina First Bank
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Telephone: ▇▇▇.▇▇▇.▇▇▇▇
Telecopy: 865.255.8920
NATIONAL CITY BANK OF KENTUCKY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇
Title: Senior Vice President
Address for notices:
National City Bank of Kentucky
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇.▇▇▇.▇▇▇▇
Telecopy: 502.581.4424
Lending Office:
National City Bank of Kentucky
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇▇.▇▇▇.▇▇▇▇
Telecopy: 502.581.6794
THE INTERNATIONAL BANK OF
MIAMI, N.A.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Address for notices:
The International Bank of Miami, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇-▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇▇.▇▇▇.▇▇▇▇
Telecopy: 305.569.0544
Lending Office:
The International Bank of Miami, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇-▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇▇.▇▇▇.▇▇▇▇
Telecopy: 305.569.0544
METROPOLITAN LIFE INSURANCE COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: DIRECTOR
Address for notices:
MetLife
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
P.O. Box 1902
Morristown, NJ 07962
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇.▇▇▇.▇▇▇▇
Telecopy: 212.631.3950
Lending Office:
MetLife
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
P.O. Box 1902
Morristown, NJ 07962
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇▇.▇▇▇.▇▇▇▇
Telecopy: 973.355.4780
SOCIETE GENERALE
By: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Address for notices:
Societe Generale
▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
#▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇.▇▇▇.▇▇▇▇
Telecopy: 415.929.9922
Lending Office:
Societe Generale
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇▇.▇▇▇.▇▇▇▇
Telecopy: 212.278.7490
GENERAL ELECTRIC CAPITAL
CORPORATION
By: /s/ ▇▇▇ ▇. ▇▇▇
----------------------------------------
Name: ▇▇▇ ▇. ▇▇▇
Title: Duly Authorized Signatory
Address for notices:
GECC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-3671
Attention: ▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇.▇▇▇.▇▇▇▇
Telecopy: 312.441.7755
Lending Office:
GECC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-3671
Attention: ▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇.▇▇▇.▇▇▇▇
Telecopy: 312.441.7755
REGIONS BANK
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Address for notices:
Regions Bank
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇, Vice President
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Lending Office:
Regions Bank
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇▇.▇▇▇.▇▇▇▇
Telecopy: 205.326.7746
EXHIBIT A-1
FORM OF TERM LOAN A NOTE
Promissory Note
(Term Loan A)
$_________________________ _____,___________
_________,_______
FOR VALUE RECEIVED, RADIATION THERAPY SERVICES, INC., a Florida
corporation having its principal place of business located in Fort ▇▇▇▇▇,
Florida (the "Borrower"), hereby promises to pay to the order
of____________________________________________ (the "Lender"), in its individual
capacity, at the office of BANK OF AMERICA, N.A., as administrative agent for
the Lenders (the "Administrative Agent"), located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇-▇▇▇-▇▇-▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (or at such other place or places
as the Administrative Agent may designate in writing) at the times set forth in
the Third Amended and Restated Credit Agreement dated as of March 31, 2004 among
the Borrower, the financial institutions party thereto (collectively, the
"Lenders"), the Administrative Agent and Wachovia Bank, National Association, as
Documentation Agent (as amended, restated, modified or amended and restated from
time to time, the "Agreement" -- all capitalized terms not otherwise defined
herein shall have the respective meanings set forth in the Agreement), in lawful
money of the United States of America, in immediately available funds, the
principal amount of _________________________________ DOLLARS
($__________________) as required pursuant to the terms of the Agreement, and to
pay interest from the date hereof on the unpaid principal amount hereof, in like
money, at said office, on the dates and at the rates provided in ARTICLE V of
the Agreement. All or any portion of the principal amount of Loans may be
prepaid or required to be prepaid as provided in the Agreement.
If payment of all sums due hereunder is accelerated under the terms of
the Agreement or under the terms of the other Credit Documents executed in
connection with the Agreement, the then remaining principal amount hereof and
accrued but unpaid interest thereon evidenced by this Term Loan A Note shall
become immediately due and payable, without presentation, demand, protest or
notice of any kind, all of which are hereby waived by the Borrower.
In the event this Term Loan A Note is not paid when due at any stated
or accelerated maturity, the Borrower agrees to pay, in addition to the
principal and interest due hereunder, all costs of collection, including
reasonable attorneys' fees, and interest thereon at the rates set forth above.
Interest hereunder shall be computed as provided in the Agreement.
This Term Loan A Note is one of the Term Loan A Notes referred to in
the Agreement and is issued pursuant to and entitled to the benefits and
security of the Agreement to which
A-1-1
reference is hereby made for a more complete statement of the terms and
conditions upon which the Term Loan A evidenced hereby was made and is to be
repaid. [The Term Loan A Note is issued in replacement of a Term Loan Note
issued to the Lender pursuant to the Second Amended Credit Agreement, as defined
in the Credit Agreement, and does not effect any refinancing or extinguishment
of the indebtedness and obligations of such note, and is not a novation but is a
replacement of such note.] This Term Loan A Note is subject to certain
restrictions on transfer or assignment as provided in the Agreement.
This Term Loan A Note shall be governed by and construed in accordance
with the laws of the State of Florida.
All Persons bound on this obligation, whether primarily or secondarily
liable as principals, sureties, guarantors, endorsers or otherwise, hereby waive
to the full extent permitted by law all defenses based on suretyship or
impairment of collateral and the benefits of all provisions of law for stay or
delay of execution or sale of property or other satisfaction of judgment against
any of them on account of liability hereon until judgment be obtained and
execution issued against any other of them and returned unsatisfied or until it
can be shown that the maker or any other party hereto had no property available
for the satisfaction of the debt evidenced by this instrument, or until any
other proceedings can be had against any of them, also their right, if any, to
require the holder hereof to hold as security for this Term Loan A Note any
collateral deposited by any of said Persons as security. Protest, notice of
protest, notice of dishonor, diligence or any other formality are hereby waived
by all parties bound hereon.
[SIGNATURE PAGE FOLLOWS.]
A-1-2
IN WITNESS WHEREOF, the Borrower has caused this Term Loan A Note to
be made, executed and delivered by its duly authorized representative as of the
date and year first above written, all pursuant to authority duly granted.
RADIATION THERAPY SERVICES, INC.
WITNESS:
_________________________________ By:______________________________________
Name: ___________________________________
_________________________________ Title: __________________________________
A-1-3
ACKNOWLEDGEMENT OF EXECUTION ON BEHALF OF
RADIATION THERAPY SERVICES, INC.
STATE OF NORTH CAROLINA
COUNTY OF MECKLENBURG
Before me, the undersigned, a Notary Public in and for said County and
State on this ___ day of March, 2004, personally appeared ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
known to be the Chief Financial Officer of Radiation Therapy Services, Inc. (the
"Borrower"), who, being by me duly sworn, says he works at ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, and that by authority duly given by, and
as the act of, the Borrower, the foregoing Term Loan A Note dated as of
March ___, 2004 was signed by him as said _____ on behalf of the Borrower.
Witness my hand and official seal this______day of March, 2004.
_____________________________________
Notary Public
(SEAL)
My commission expires: ____________________
A-1-4
AFFIDAVIT OF ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
The undersigned, being first duly sworn, deposes and says that:
1. He is a Principal of Bane of America Securities, LLC, and
works at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
2. The Term Loan A Note of Radiation Therapy Services, Inc. dated
March _____, 2004 was executed before him and delivered to him on behalf of the
Administrative Agent in Charlotte, North Carolina on March __, 2004.
This the_______day of March, 2004.
_________________________________________
▇. ▇▇▇▇▇ ▇▇▇▇▇▇
Acknowledgement of Execution
STATE OF NORTH CAROLINA
COUNTY OF MECKLENBURG
Before me, the undersigned, a Notary Public in and for said County and
State on this __ day of March, 2004 A.D., personally appeared ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
who before me affixed his signature to the above Affidavit.
Witness my hand and official seal this______day of March, 2004.
________________________________________
Notary Public
(SEAL)
My Commission Expires:_____________
A-1-5
EXHIBIT A-2
Form of Revolving Note
Promissory Note
(Revolving Loan)
$_________________ _______,________________
_________,______
FOR VALUE RECEIVED, RADIATION THERAPY SERVICES, INC., a Florida
corporation having its principal place of business located in Fort ▇▇▇▇▇,
Florida (the "Borrower"), hereby promises to pay to the order of
_______________________________________________________________ (the "Lender"),
in its individual capacity, at the office of BANK OF AMERICA, N.A., as
administrative agent for the Lenders (the "Administrative Agent"), located at
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇-▇▇▇-▇▇-▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (or at
such other place or places as the Administrative Agent may designate in writing)
at the times set forth in the Third Amended and Restated Credit Agreement dated
as of March 31, 2004 among the Borrower, the financial institutions party
thereto (collectively, the "Lenders"), the Administrative Agent and Wachovia
Bank, National Association, as Documentation Agent (as amended, restated,
modified or amended and restated from time to time, the "Agreement" -- all
capitalized terms not otherwise defined herein shall have the respective
meanings set forth in the Agreement), in lawful money of the United States of
America, in immediately available funds, the principal amount of
_______________________________________________ DOLLARS ($________________) or,
if less than such principal amount, the aggregate unpaid principal amount of all
Revolving Loans made by the Lender to the Borrower pursuant to the Agreement, on
the Termination Date or such earlier date as may be required pursuant to the
terms of the Agreement, and to pay interest from the date hereof on the unpaid
principal amount hereof, in like money, at said office, on the dates and at the
rates provided in ARTICLE V of the Agreement. All or any portion of the
principal amount of Loans may be prepaid or required to be prepaid as provided
in the Agreement.
If payment of all sums due hereunder is accelerated under the terms of
the Agreement or under the terms of the other Credit Documents executed in
connection with the Agreement, the then remaining principal amount and accrued
but unpaid interest thereon evidenced by this Revolving Note shall become
immediately due and payable, without presentation, demand, protest or notice of
any kind, all of which are hereby waived by the Borrower.
In the event this Revolving Note is not paid when due at any stated or
accelerated maturity, the Borrower agrees to pay, in addition to the principal
and interest, all costs of collection, including reasonable attorneys' fees, and
interest due hereunder thereon at the rates set forth above.
A-2-1
Interest hereunder shall be computed as provided in the Agreement.
This Revolving Note is one of the Revolving Notes referred to in the
Agreement and is issued pursuant to and entitled to the benefits and security of
the Agreement to which reference is hereby made for a more complete statement of
the terms and conditions upon which the Revolving Loans evidenced hereby were or
are made and are to be repaid. [The Revolving Note is issued in replacement of a
Revolving Note issued to the Lender pursuant to the Second Amended Credit
Agreement, as defined in the Credit Agreement, and does not effect any
refinancing or extinguishment of the indebtedness and obligations of such note,
and is not a novation but is a replacement of such note.] This Revolving Note is
subject to certain restrictions on transfer or assignment as provided in the
Agreement.
This Revolving Note shall be governed by and construed in accordance
with the laws of the State of Florida.
All Persons bound on this obligation, whether primarily or secondarily
liable as principals, sureties, guarantors, endorsers or otherwise, hereby waive
to the full extent permitted by law all defenses based on suretyship or
impairment of collateral and the benefits of ail provisions of law for stay or
delay of execution or sale of property or other satisfaction of judgment against
any of them on account of liability hereon until judgment be obtained and
execution issued against any other of them and returned unsatisfied or until it
can be shown that the maker or any other party hereto had no property available
for the satisfaction of the debt evidenced by this instrument, or until any
other proceedings can be had against any of them, also their right, if any, to
require the holder hereof to hold as security for this Revolving Note any
collateral deposited by any of said Persons as security. Protest, notice of
protest, notice of dishonor, diligence or any other formality are hereby waived
by all parties bound hereon.
[SIGNATURE PAGE FOLLOWS.]
A-2-2
IN WITNESS WHEREOF, the Borrower has caused this Revolving Note to be
made, executed and delivered by its duly authorized representative as of the
date and year first above written, all pursuant to authority duly granted.
RADIATION THERAPY SERVICES, INC.
WITNESS:
_________________________________ By:______________________________________
Name:____________________________________
_________________________________ Title:___________________________________
A-2-3
ACKNOWLEDGEMENT OF EXECUTION ON BEHALF OF
RADIATION THERAPY SERVICES, INC.
STATE OF NORTH CAROLINA
COUNTY OF MECKLENBURG
Before me, the undersigned, a Notary Public in and for said County and
State on this ______day of March, 2004, personally appeared ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
known to be the Chief Financial Officer of Radiation Therapy Services, Inc. (the
"Borrower"), who, being by me duly sworn, says he works at ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, and that by authority duly given by, and
as the act of, the Borrower, the foregoing Revolving Note dated as of
March_____, 2004 was signed by him as said__________________________________on
behalf of the Borrower,
Witness my hand and official seal this_______day of March, 2004.
_____________________________________
Notary Public
(SEAL)
My commission expires: __________________
A-2-4
AFFIDAVIT OF ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
The undersigned, being first duly sworn, deposes and says that:
1. He is a Principal of Bane of America Securities, LLC, and
works at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
2. The Revolving Note of Radiation Therapy Services, Inc. dated
March ____, 2004 was executed before him and delivered to him on behalf of the
Administrative Agent in Charlotte, North Carolina on March____, 2004,
This the_______day of March, 2004.
_____________________________________
▇. ▇▇▇▇▇ ▇▇▇▇▇▇
Acknowledgement of Execution
STATE OF NORTH CAROLINA
COUNTY OF MECKLENBURG
Before me, the undersigned, a Notary Public in and for said County and
State on this ______day of March, 2004 A.D., personally appeared ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
who before me affixed his signature to the above Affidavit.
Witness my hand and official seal this______ day of March, 2004.
_____________________________________
Notary Public
(SEAL)
My Commission Expires:_________________
A-2-5
EXHIBIT A-3
Form of Swing Line Note
Promissory Note
(Swing Line Loan)
$_________________ ________,_________
_____________,____
FOR VALUE RECEIVED,____________________________________________, a
_____ corporation having its principal place of business located
in__________,__________(the "Borrower"), hereby promises to pay to the order of
BANK OF AMERICA, N.A. ("Bank of America"), in its individual capacity, at Bank
of America's offices located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇-▇▇▇-▇▇-▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (or at such other place or places as Bank of
America may designate) at the times set forth in the Third Amended and Restated
Credit Agreement dated as of March 31, 2004 among the Borrower, the financial
institutions party thereto (collectively, the "Lenders"), Bank of America, N.A.,
as Administrative Agent for the Lenders (the "Administrative Agent") and
Wachovia Bank, National Association, as Documentation Agent (as amended,
supplemented or otherwise modified from time to time, the "Agreement" -- all
capitalized terms not otherwise defined herein shall have the respective
meanings set forth in the Agreement), in lawful money of the United States of
America, in immediately available funds, the principal amount of
_______________________________________________ DOLLARS ($____________________)
or if less than such principal amount, the aggregate unpaid principal amount of
all Swing Line Loans made by Bank of America to the Borrower pursuant to the
Agreement, on the Termination Date or such earlier date as may be required
pursuant to the terms of the Agreement, and to pay interest from the date hereof
on the unpaid principal amount hereof, in like money, at said office, on the
dates and at the rates provided in ARTICLE V of the Agreement. All or any
portion of the principal amount of Swing Line Loans may be prepaid as provided
in the Agreement.
If payment of all sums due hereunder is accelerated under the terms of
the Agreement or under the terms of the other Credit Documents executed in
connection with the Agreement, the then remaining principal amount and accrued
but unpaid interest shall bear interest which shall be payable on demand at the
Default Rate until such principal and interest have been paid in full. Further,
in the event of such acceleration, this Note, and all other indebtedness of the
Borrower to the Lender shall become immediately due and payable, without
presentation, demand, protest or notice of any kind, all of which are hereby
waived by the Borrower,
In the event this Note is not paid when due at any stated or
accelerated maturity, the Borrower agrees to pay, in addition to the principal
and interest, all costs of collection, including reasonable attorneys' fees, and
interest thereon at the rates set forth above.
A-3-1
Interest hereunder shall be computed on the basis of a 360 day year for
the actual number of days in the interest period.
This Note is the Swing Line Note referred to in the Agreement and is
issued pursuant to and entitled to the benefits and security of the Agreement to
which reference is hereby made for a more complete statement of the terms and
conditions upon which the Swing Line Loans evidenced hereby were or are made and
are to be repaid. [The Swing Line Note is issued in replacement of a Swing Line
Note issued to the Lender pursuant to the Second Amended Credit Agreement, as
defined in the Credit Agreement, and does not effect any refinancing or
extinguishment of the indebtedness and obligations of such note, and is not a
novation but is a replacement of such note.] This Note is subject to certain
restrictions on transfer or assignment as provided in the Agreement.
This Note shall be governed by and construed in accordance with the
laws of the State of Florida.
All Persons bound on this obligation, whether primarily or secondarily
liable as principals, sureties, guarantors, endorsers or otherwise, hereby waive
to the full extent permitted by law all defenses based on suretyship or
impairment of collateral and the benefits of all provisions of law for stay or
delay of execution or sale of property or other satisfaction of judgment against
any of them on account of liability hereon until judgment be obtained and
execution issued against any other of them and returned unsatisfied or until it
can be shown that the maker or any other party hereto had no property available
for the satisfaction of the debt evidenced by this instrument, or until any
other proceedings can be had against any of them, also their right, if any, to
require the holder hereof to hold as security for this Note any collateral
deposited by any of said Persons as security. Protest, notice of protest, notice
of dishonor, diligence or any other formality are hereby waived by all parties
bound hereon.
[SIGNATURE PAGE FOLLOWS.]
A-3-2
IN WITNESS WHEREOF, the Borrower has caused this Note to be made,
executed and delivered by its duly authorized representative as of the date and
year first above written, all pursuant to authority duly granted.
RADIATION THERAPY SERVICES, INC.
WITNESS:
_________________________________ By: _____________________________________
Name: ___________________________________
Title: __________________________________
A-3-3
ACKNOWLEDGEMENT OF EXECUTION ON BEHALF OF
RADIATION THERAPY SERVICES, INC.
STATE OF NORTH CAROLINA
COUNTY OF MECKLENBURG
Before me, the undersigned, a Notary Public in and for said County and
State on this _____day of March, 2004, personally appeared ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
known to be the Chief Financial Officer of Radiation Therapy Services, Inc. (the
"Borrower"), who, being by me duly sworn, says he works at ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, and that by authority duly given by, and
as the act of, the Borrower, the foregoing Swing Line Note dated as of March
_____, 2004 was signed by him as said _______________________________ on behalf
of the Borrower.
Witness my hand and official seal this______ day of March, 2004.
_________________________________________
Notary Public
(SEAL)
My commission expires: ________________
A-3-4
AFFIDAVIT OF ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
The undersigned, being first duly sworn, deposes and says that:
1. He is a Principal of Banc of America Securities, LLC, and
works at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
2. The Swing Line Note of Radiation Therapy Services, Inc. dated
March_______________, 2004 was executed before him and delivered to him on
behalf of the Administrative Agent in Charlotte, North Carolina on March ___,
2004.
This the_______day of March, 2004.
__________________________________
▇. ▇▇▇▇▇ ▇▇▇▇▇▇
Acknowledgement of Execution
STATE OF NORTH CAROLINA
COUNTY OF MECKLENBURG
Before me, the undersigned, a Notary Public in and for said County and
State on this ______ day of March, 2004 A.D., personally appeared ▇. ▇▇▇▇▇
▇▇▇▇▇▇ who before me affixed his signature to the above Affidavit.
Witness my hand and official seal this _____ day of March, 2004.
___________________________________
Notary Public
(SEAL)
My Commission Expires: _______________________
A-3-5
EXHIBIT A-4
FORM OF TERM LOAN B NOTE
Promissory Note
(Term Loan B)
$ _______________ ________,___________
________ ____,______
FOR VALUE RECEIVED, RADIATION THERAPY SERVICES, INC., a Florida
corporation having its principal place of business located in Fort ▇▇▇▇▇,
Florida (the "Borrower"), hereby promises to pay to the order
of_________________________________ (the "Lender"), in its individual
capacity, at the office of BANK OF AMERICA, N.A., as administrative agent for
the Lenders (the "Administrative Agent"), located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇-▇▇▇-▇▇-▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (or at such other place or places
as the Administrative Agent may designate in writing) at the times set forth in
the Third Amended and Restated Credit Agreement dated as of March 31, 2004 among
the Borrower, the financial institutions party thereto (collectively, the
"Lenders"), the Administrative Agent and Wachovia Bank, National Association, as
Documentation Agent (as amended, restated, modified or amended and restated from
time to time, the "Agreement" -- all capitalized terms not otherwise defined
herein shall have the respective meanings set forth in the Agreement), in lawful
money of the United States of America, in immediately available funds, the
principal amount of ___________________________DOLLARS ($_________________) as
required pursuant to the terms of the Agreement, and to pay interest from the
date hereof on the unpaid principal amount hereof, in like money, at said
office, on the dates and at the rates provided in ARTICLE V of the Agreement.
All or any portion of the principal amount of Loans may be prepaid or required
to be prepaid as provided in the Agreement.
If payment of all sums due hereunder is accelerated under the terms of
the Agreement or under the terms of the other Credit Documents executed in
connection with the Agreement, the then remaining principal amount hereof and
accrued but unpaid interest thereon evidenced by this Term Loan B Note shall
become immediately due and payable, without presentation, demand, protest or
notice of any kind, all of which are hereby waived by the Borrower.
In the event this Term Loan B Note is not paid when due at any stated
or accelerated maturity, the Borrower agrees to pay, in addition to the
principal and interest due hereunder, all costs of collection, including
reasonable attorneys' fees, and interest thereon at the rates set forth above.
Interest hereunder shall be computed as provided in the Agreement.
This Term Loan B Note is one of the Term Loan B Notes referred to in
the Agreement and is issued pursuant to and entitled to the benefits and
security of the Agreement to which
A-1-1
reference is hereby made for a more complete statement of the terms and
conditions upon which the Term Loan B evidenced hereby was made and is to be
repaid. This Term Loan B Note is subject to certain restrictions on transfer or
assignment as provided in the Agreement.
This Term Loan B Note shall be governed by and construed in accordance
with the laws of the State of Florida.
All Persons bound on this obligation, whether primarily or secondarily
liable as principals, sureties, guarantors, endorsers or otherwise, hereby waive
to the full extent permitted by law all defenses based on suretyship or
impairment of collateral and the benefits of all provisions of law for stay or
delay of execution or sale of property or other satisfaction of judgment against
any of them on account of liability hereon until judgment be obtained and
execution issued against any other of them and returned unsatisfied or until it
can be shown that the maker or any other party hereto had no property available
for the satisfaction of the debt evidenced by this instrument, or until any
other proceedings can be had against any of them, also their right, if any, to
require the holder hereof to hold as security for this Term Loan B Note any
collateral deposited by any of said Persons as security. Protest, notice of
protest, notice of dishonor, diligence or any other formality are hereby waived
by all parties bound hereon.
[SIGNATURE PAGE FOLLOWS.]
A-1-2
IN WITNESS WHEREOF, the Borrower has caused this Term Loan B Note to be
made, executed and delivered by its duly authorized representative as of the
date and year first above written, all pursuant to authority duly granted.
RADIATION THERAPY SERVICES, INC.
WITNESS:
_________________________________ By: _____________________________________
Name: ___________________________________
_________________________________ Title: __________________________________
B-1-1
ACKNOWLEDGEMENT OF EXECUTION ON BEHALF OF
RADIATION THERAPY SERVICES, INC.
STATE OF NORTH CAROLINA
COUNTY OF MECKLENBURG
Before me, the undersigned, a Notary Public in and for said County and
State on this _____day of March, 2004, personally appeared ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
known to be the Chief Financial Officer of Radiation Therapy Services, Inc. (the
"Borrower"), who, being by me duly sworn, says he works at ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, and that by authority duly given by, and
as the act of, the Borrower, the foregoing Term Loan B Note dated as of
March _______, 2004 was signed by him as said ___on behalf of the Borrower.
Witness my hand and official seal this______day of March, 2004.
______________________________________
Notary Public
(SEAL)
My commission expires: ________________
B-1-2
AFFIDAVIT OF ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
The undersigned, being first duly sworn, deposes and says that:
1. He is a Principal of Banc of America Securities, LLC, and
works at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
2. The Term Loan B Note of Radiation Therapy Services, Inc. dated
March______________, 2004 was executed before him and delivered to him on behalf
of the Administrative Agent in Charlotte, North Carolina on March __, 2004.
This the_______day of March, 2004.
____________________________________________
▇. ▇▇▇▇▇ ▇▇▇▇▇▇
Acknowledgement of Execution
STATE OF NORTH CAROLINA
COUNTY OF MECKLENBURG
Before me, the undersigned, a Notary Public in and for said County and
State on this ___ day of March, 2004 A.D., personally appeared ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
who before me affixed his signature to the above Affidavit.
Witness my hand and official seal this______day of March, 2004.
_____________________________________
Notary Public
(SEAL)
My Commission Expires:____________________________
B-1-3