Exhibit 10.1
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Published CUSIP Number: ________________
CREDIT AGREEMENT
Dated as of April 12, 2005
among
POLYMEDICA CORPORATION,
as the Borrower,
BANK OF AMERICA, N.A.,
as Administrative Agent, Swing Line Lender
and
L/C Issuer,
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Syndication Agent,
and
CITIZENS BANK OF MASSACHUSETTS
as Documentation Agent
and
THE OTHER LENDERS PARTY THERETO
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▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ SECURITIES LLC and
WACHOVIA CAPITAL MARKETS, LLC,
as Joint Lead Arrangers
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TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS............................ 1
1.01 Defined Terms................................................... 1
1.02 Other Interpretive Provisions................................... 23
1.03 Accounting Terms................................................ 23
1.04 Rounding........................................................ 24
1.05 Times of Day.................................................... 24
1.06 Letter of Credit Amounts........................................ 24
ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS....................... 24
2.01 The Loans....................................................... 24
2.02 Borrowings, Conversions and Continuations of Loans.............. 25
2.03 Letters of Credit............................................... 26
2.04 Swing Line Loans................................................ 34
2.05 Prepayments..................................................... 37
2.06 Termination or Reduction of Commitments......................... 38
2.07 Repayment of Loans.............................................. 38
2.08 Interest........................................................ 38
2.09 Fees............................................................ 39
2.10 Computation of Interest and Fees................................ 39
2.11 Evidence of Debt................................................ 40
2.12 Payments Generally; Administrative Agent's Clawback............. 40
2.13 Sharing of Payments by Lenders.................................. 42
ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY...................... 43
3.01 Taxes........................................................... 43
3.02 Illegality...................................................... 45
3.03 Inability to Determine Rates.................................... 46
3.04 Increased Costs; Reserves on Eurodollar Rate Loans.............. 46
3.05 Funding Losses.................................................. 48
3.06 Mitigation Obligations; Replacement of Lenders.................. 48
3.07 Survival........................................................ 49
ARTICLE IV CONDITIONS PRECEDENT TO CREDIT EXTENSIONS................... 49
4.01 Conditions of Initial Credit Extension.......................... 49
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TABLE OF CONTENTS
PAGE
4.02 Conditions to all Credit Extensions....................................... 51
ARTICLE V REPRESENTATIONS AND WARRANTIES........................................ 52
5.01 Existence, Qualification and Power........................................ 52
5.02 Authorization; No Contravention........................................... 52
5.03 Governmental Authorization; Other Consents................................ 52
5.04 Binding Effect............................................................ 52
5.05 Financial Statements; No Material Adverse Effect; No Internal Control
Event..................................................................... 53
5.06 Litigation................................................................ 53
5.07 No Default................................................................ 53
5.08 Ownership of Property; Liens.............................................. 54
5.09 Environmental Compliance.................................................. 54
5.10 Insurance................................................................. 54
5.11 Taxes..................................................................... 54
5.12 ERISA Compliance.......................................................... 54
5.13 Subsidiaries; Equity Interests............................................ 55
5.14 Margin Regulations; Investment Company Act; Public Utility Holding
Company Act............................................................... 56
5.15 Disclosure................................................................ 56
5.16 Compliance with Laws...................................................... 56
5.17 Intellectual Property; Licenses, Etc...................................... 57
5.18 Security Documents........................................................ 57
5.19 Material Contracts........................................................ 58
5.20 Fraud and Abuse........................................................... 58
5.21 Licensing and Accreditation............................................... 58
ARTICLE VI AFFIRMATIVE COVENANTS................................................. 58
6.01 Financial Statements...................................................... 59
6.02 Certificates; Other Information........................................... 59
6.03 Notices................................................................... 61
6.04 Payment of Obligations.................................................... 62
6.05 Preservation of Existence, Etc............................................ 62
6.06 Maintenance of Properties................................................. 63
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TABLE OF CONTENTS
PAGE
6.07 Maintenance of Insurance.................................................. 63
6.08 Compliance with Laws...................................................... 63
6.09 Books and Records......................................................... 63
6.10 Inspection Rights......................................................... 63
6.11 Use of Proceeds........................................................... 64
6.12 Additional Subsidiary Guarantors; Investments in Joint Ventures........... 64
6.13 Further Assurances with Respect to Additional Loan Parties and Other
Investments............................................................... 64
6.14 Further Assurances with Respect to Additional Collateral.................. 64
6.15 Performance of Material Contracts, etc.................................... 65
6.16 Environmental............................................................. 65
ARTICLE VII NEGATIVE COVENANTS.................................................... 65
7.01 Liens..................................................................... 65
7.02 Investments............................................................... 67
7.03 Indebtedness.............................................................. 68
7.04 Fundamental Changes....................................................... 69
7.05 Dispositions.............................................................. 70
7.06 Restricted Payments....................................................... 71
7.07 Change in Nature of Business.............................................. 72
7.08 Transactions with Affiliates.............................................. 72
7.09 Burdensome Agreements..................................................... 72
7.10 Amendment, Etc. of Indebtedness, Other Material Contracts and
Constitutive Documents and Payments in respect of Indebtedness............ 72
7.11 Impairment of Security Interests.......................................... 73
7.12 Ownership of Subsidiaries and Other Restrictions Relating to the
Subsidiaries................. ............................................ 73
7.13 Capital Expenditures...................................................... 73
7.14 Use of Proceeds........................................................... 73
7.15 Financial Covenants....................................................... 74
ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES ....................................... 74
8.01 Events of Default......................................................... 74
8.02 Remedies Upon Event of Default............................................ 76
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TABLE OF CONTENTS
PAGE
8.03 Application of Funds.......................................... 77
ARTICLE IX ADMINISTRATIVE AGENT...................................... 78
9.01 Appointment and Authority..................................... 78
9.02 Rights as a Lender............................................ 78
9.03 Exculpatory Provisions........................................ 78
9.04 Reliance by Administrative Agent.............................. 79
9.05 Delegation of Duties.......................................... 79
9.06 Resignation of Administrative Agent........................... 79
9.07 Non-Reliance on Administrative Agent and Other Lenders........ 80
9.08 No Other Duties, Etc.......................................... 81
9.09 Administrative Agent May File Proofs of Claim................. 81
9.10 Collateral and Guaranty Matters............................... 81
ARTICLE X MISCELLANEOUS............................................. 82
10.01 Amendments, Etc............................................... 82
10.02 Notices; Effectiveness; Electronic Communications............. 84
10.03 No Waiver; Cumulative Remedies................................ 85
10.04 Expenses; Indemnity; Damage Waiver............................ 86
10.05 Payments Set Aside............................................ 88
10.06 Successors and Assigns........................................ 88
10.07 Treatment of Certain Information; Confidentiality............. 91
10.08 Right of Setoff............................................... 92
10.09 Interest Rate Limitation...................................... 93
10.10 Counterparts; Integration; Effectiveness...................... 93
10.11 Survival of Representations and Warranties.................... 93
10.12 Severability.................................................. 93
10.13 Replacement of Lenders........................................ 94
10.14 Governing Law; Jurisdiction; Etc.............................. 94
10.15 Waiver of Jury Trial.......................................... 95
10.16 USA Patriot Act Notice........................................ 95
SIGNATURES...................................................................... S-1
iv
SCHEDULES
2.01 Commitments and Applicable Percentages
5.13 Subsidiaries and Other Equity Investments
5.19 Material Contracts
7.02 Existing Investments
10.02 Administrative Agent's Office, Certain Addresses for Notices
EXHIBITS
FORM OF
A Loan Notice
B Swing Line Loan Notice
C Note
D Compliance Certificate
E Assignment and Assumption
F Joinder Agreement
G Subsidiary Guaranty
H Opinion Matters
I Pledge Agreement
v
CREDIT AGREEMENT
This CREDIT AGREEMENT ("Agreement") is entered into as of April 12, 2005,
among POLYMEDICA CORPORATION, a Massachusetts corporation (the "Borrower"), each
lender from time to time party hereto (collectively, the "Lenders" and
individually, a "Lender"), BANK OF AMERICA, N.A., as Administrative Agent, Swing
Line Lender and L/C Issuer, WACHOVIA BANK, NATIONAL ASSOCIATION, as Syndication
Agent, CITIZENS BANK OF MASSACHUSETTS, as Documentation Agent, and BANC OF
AMERICA SECURITIES LLC and WACHOVIA CAPITAL MARKETS, LLC, as Joint Lead
Arrangers.
WITNESSETH:
WHEREAS, the Borrower has requested that the Lenders provide a revolving
credit facility, and the Lenders are willing to do so on the terms and
conditions set forth herein;
NOW THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01 DEFINED TERMS. As used in this Agreement, the following terms shall
have the meanings set forth below:
"Acquisition", by the Borrower or any of its Subsidiaries, means the
purchase or acquisition in a single transaction or a series of transactions by
any such Person, individually or, together with its Affiliates, of (a) any
Equity Interests of another Person (other than an existing Subsidiary of the
Borrower) which are sufficient such that such other Person becomes a direct or
indirect Subsidiary of the Borrower or (b) all or a substantial portion of the
Property, including without limitation, all or a substantial portion of the
Property comprising a division, unit or line of business, of another Person
(other than a Subsidiary of the Borrower) or the acquisition of customer lists
of another Person, whether involving a merger or a consolidation with such other
Person. "Acquire" has a meaning correlative thereto.
"Acquisition Purchase Price" means, with respect to an Acquisition, the
aggregate consideration paid by the Borrower and its Subsidiaries in connection
with such Acquisition, including (a) any cash consideration, (b) any non-cash
consideration, and (c) the amount of any earn-outs.
"Administrative Agent" means Bank of America in its capacity as
administrative agent and collateral agent under any of the Loan Documents, or
any successor administrative agent and collateral agent as provided in Section
9.06.
"Administrative Agent's Office" means the Administrative Agent's address
and, as appropriate, account as set forth on Schedule 10.02, or such other
address or account as the Administrative Agent may from time to time notify to
the Borrower and the Lenders.
"Administrative Questionnaire" means an Administrative Questionnaire in a
form supplied by the Administrative Agent.
"Affiliate" means, with respect to any Person, another Person that
directly or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Agent Parties" has the meaning specified in Section 10.02(c).
"Aggregate Commitments" means the Commitments of all the Lenders.
"Agreement" means this Credit Agreement, as amended, restated, amended and
restated, supplemented or otherwise modified from time to time.
"Applicable Percentage" means with respect to any Lender at any time, the
percentage (carried out to the ninth decimal place) of the Aggregate Commitments
represented by such Lender's Commitment at such time. If the commitment of each
Lender to make Loans and the obligation of the L/C Issuer to make L/C Credit
Extensions have been terminated pursuant to Section 8.02 or if the Aggregate
Commitments have expired, then the Applicable Percentage of each Lender shall be
determined based on the Applicable Percentage of such Lender most recently in
effect, giving effect to any subsequent assignments. The initial Applicable
Percentage of each Lender is set forth opposite the name of such Lender on
Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender
becomes a party hereto, as applicable.
"Applicable Rate" means, from time to time, the following percentages per
annum, based upon the Consolidated Leverage Ratio as set forth in the most
recent Compliance Certificate received by the Administrative Agent pursuant to
Section 6.02(b):
APPLICABLE RATE
REVOLVING LOANS, SWING LINE LOANS AND LETTERS OF CREDIT
Eurodollar
Consolidated Rate Base Rate
Pricing Leverage Loans and Letters of Loans and Swing
Level Ratio Credit Line Loans Commitment Fees
------- ---------------------- -------------------- --------------- ---------------
I > 1.50 to 1.0 1.25% 0 0.20%
II < or = 1.50 to 1.0 but 1.00% 0 0.15%
> 1.00 to 1.0
III < or = 1.0 to 1.0 0.75% 0 0.15%
Any increase or decrease in the Applicable Rate resulting from a change in
the Consolidated Leverage Ratio shall become effective as of the first Business
Day immediately following the date a Compliance Certificate is delivered
pursuant to Section 6.02(b); provided, however, that if a Compliance Certificate
is not delivered when due in accordance with such Section 6.02(b), then, at the
option of the Required Lenders, Pricing Level I will be applicable until the
first Business Day immediately following the date an appropriate Compliance
Certificate is delivered, whereupon the Applicable Rate shall be adjusted based
on the information contained in the Compliance Certificate. The Applicable Rate
in effect during the period from the Closing Date until the initial quarterly
Compliance Certificate is delivered shall be determined based upon Pricing Level
III.
2
"Approved Fund" means 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 an
entity that administers or manages a Lender.
"Assignment and Assumption" means an assignment and assumption entered
into by a Lender and an Eligible Assignee (with the consent of any party whose
consent is required by Section 10.06(b)) and accepted by the Administrative
Agent, in substantially the form of Exhibit E or any other form approved by the
Administrative Agent and reasonably acceptable to the Borrower (such consent not
to be unreasonably withheld or delayed).
"Attributable Indebtedness" means, on any date, (a) in respect of any
Capitalized 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 Off-Balance Sheet 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 Capitalized Lease.
"Audited Financial Statements" means the audited consolidated balance
sheets of the Borrower and its Subsidiaries for the fiscal years ended March 31,
2004, March 31, 2003 and March 31, 2002 and the related consolidated statements
of income or operations, shareholders' equity and cash flows for each fiscal
year of the Borrower and its Subsidiaries, including the notes thereto.
"Availability Period" means the period from and including the Closing Date
to the earliest of (a) the Maturity Date, (b) the date of termination of the
Aggregate Commitments pursuant to Section 2.06, and (c) the date of termination
of the Commitment of each Lender to make Loans and of the obligation of the L/C
Issuer to make L/C Credit Extensions pursuant to Section 8.02.
"Bank of America" means Bank of America, N.A. and its successors.
"Banc of America Securities" means Banc of America Securities LLC and its
successors.
"Base Rate" means 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." The "prime 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" means a Loan that bears interest based on the Base Rate.
"Borrower" has the meaning specified in the preamble hereto.
"Borrower Materials" has the meaning specified in Section 6.02.
"Borrowing" means a borrowing consisting of simultaneous Loans of the same
Type and, in the case of Eurodollar Rate Loans, having the same Interest Period
made by each of the Lenders pursuant to Section 2.01 or a Swing Line Borrowing,
as the context may require.
3
"Business Day" means any day other than a Saturday, Sunday or other day on
which commercial banks are authorized to close under the Laws of, or are in fact
closed in, New York or the state where the Administrative Agent's Office is
located and, if such day relates to any Eurodollar Rate Loan, means any such day
on which dealings in Dollar deposits are conducted by and between banks in the
London interbank eurodollar market.
"Capitalized Lease" means, as applied to any Person, any lease of any
property (whether real, personal or mixed) by that Person as lessee which in
accordance with GAAP, is or should be accounted for, as a capital lease on the
balance sheet of such Person.
"Cash Collateralize" has the meaning specified in Section 2.03(g).
"Change in Law" means the occurrence, after the date of this Agreement, of
any of the following: (a) the adoption or taking effect of any law, rule,
regulation or treaty, (b) any change in any law, rule, regulation or treaty or
in the administration, interpretation or application thereof by any Governmental
Authority or (c) the making or issuance of any request, guideline or directive
(whether or not having the force of law) by any Governmental Authority.
"Change of Control" means, with respect to any Person, an event or series
of events by which:
(a) any "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any
employee benefit plan of such person or its subsidiaries, and any person
or entity acting in its capacity as trustee, agent or other fiduciary or
administrator of any such plan) becomes the "beneficial owner" (as defined
in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934),
except that a person or group shall be deemed to have "beneficial
ownership" of all securities that such person or group has the right to
acquire (such right, an "option right"), whether such right is exercisable
immediately or only after the passage of time), directly or indirectly, of
30% or more of the equity securities of the Borrower entitled to vote for
members of the board of directors or equivalent governing body of the
Borrower on a fully-diluted basis (and taking into account all such
securities that such person or group has the right to acquire pursuant to
any option right); or
(b) during any period of 12 consecutive months, a majority of the
members of the board of directors or other equivalent governing body of
the Borrower cease to be composed of individuals (i) who were members of
that board or equivalent governing body on the first day of such period,
(ii) whose election or nomination to that board or equivalent governing
body was approved or recommended by individuals referred to in clause (i)
above constituting at the time of such election or nomination at least a
majority of that board or equivalent governing body or (iii) whose
election or nomination to that board or other equivalent governing body
was approved or recommended by individuals referred to in clauses (i) and
(ii) above constituting at the time of such election or nomination at
least a majority of that board or equivalent governing body (excluding, in
the case of both clause (ii) and clause (iii), any individual whose
initial nomination for, or assumption of office as, a member of that board
or equivalent governing body occurs as a result of an actual or threatened
solicitation of proxies or consents for the election or removal of one or
more
4
directors by any Person or group other than a solicitation for the
election of one or more directors by or on behalf of the board of
directors).
"Cash Management Bank" means any party to a Cash Management Services
Agreement with the Borrower or any of its Subsidiaries which party was a Lender
or an Affiliate of a Lender under this Agreement at the time it entered into
such Cash Management Services Agreement.
"Cash Management Services Agreement" means any agreement to provide
management services, including treasury, depository, overdraft, credit or debit
card, electronic funds transfer and other cash management services.
"Closing Date" means the first date all the conditions precedent in
Section 4.01 are satisfied or waived in accordance with Section 4.01 (or, in the
case of Section 4.01(b), waived by the Person entitled to receive the applicable
payment).
"CMS" means the Centers for Medicare and Medicaid Services and any
successor thereto.
"Code" means the Internal Revenue Code of 1986.
"Collateral" means all the "Collateral" referred to in the Collateral
Documents and any other assets and property that are or are required under the
terms of the Collateral Documents to be subject to Liens in favor of the
Administrative Agent for the benefit of the Secured Parties.
"Collateral Documents" means, collectively, the Pledge Agreement and any
other pledge agreements or similar instruments delivered to the Administrative
Agent as collateral agent from time to time pursuant to Sections 6.13 and 6.14,
and each other agreement, instrument or document that creates or purports to
create a Lien in favor of the Administrative Agent for the benefit of the
Secured Parties as security for the Obligations.
"Commitment" means, as to each Lender, its obligation to (a) make Loans to
the Borrower pursuant to Section 2.01, (b) purchase participations in L/C
Obligations, and (c) purchase participations in Swing Line Loans, in an
aggregate principal amount at any one time outstanding not to exceed the amount
set forth opposite such Lender's name on Schedule 2.01 or in the Assignment and
Assumption pursuant to which such Lender becomes a party hereto, as applicable,
as such amount may be adjusted from time to time in accordance with this
Agreement.
"Compliance Certificate" means a certificate substantially in the form of
Exhibit D hereto.
"Consolidated Cash Dividends" means, for any period, the aggregate amount
of all dividends paid in cash by the Borrower.
"Consolidated Coverage Ratio" means, as of any date of determination, the
ratio of (a) Consolidated EBITDA for the four consecutive fiscal quarters most
recently ended on or prior to such date, plus non-cash amortization arising from
capitalized charges for direct response advertising for such period minus direct
response advertising expenditures for such period to (b) the sum of (i)
Consolidated Interest Charges for such period and (ii) Consolidated Cash
Dividends for such period.
5
"Consolidated EBITDA" means, for any period, for the Borrower and its
Subsidiaries determined on a consolidated basis, an amount equal to Consolidated
Net Income for such period, plus (a) the following to the extent deducted in
calculating such Consolidated Net Income: (i) Consolidated Interest Charges for
such period; (ii) the provision for Federal, state, local and foreign income,
franchise and other similar taxes for such period; (iii) depreciation and
amortization expense, excluding amortization associated with direct response
advertising; (iv) the one time settlement charge taken in the fiscal quarter
ended September 30, 2004 which was incurred in connection with the Settlement
Agreement, provided that the add-back for such charge pursuant to this clause
(iv) shall not exceed $30 million; (v) non-cash charges in respect of any
stock-based compensation; (vi) other one-time non-cash charges reducing
Consolidated Net Income which do not represent a cash item in such period or any
future period; provided that the add-back for such charges pursuant to such
clause (vi) shall not exceed more than $15 million in any four rolling quarter
fiscal period, and $30 million in the aggregate; and (vii) one-time cash charges
reducing Consolidated Net Income, provided that the add-back for such charges
pursuant to this clause (vii) shall not exceed $5 million in any rolling four
quarter fiscal period, and $25 million in the aggregate; minus (b) the following
to the extent included in calculating such Consolidated Net Income: (i) Federal,
state, local and foreign income tax credits of the Borrower and its Subsidiaries
for such period; (ii) extraordinary gains and (iii) all non-cash items
increasing Consolidated Net Income for such period.
"Consolidated Funded Indebtedness" means, for the Borrower and its
Subsidiaries determined on a consolidated basis, as of any date of
determination, without duplication, the sum of (a) the outstanding principal
amount of all obligations, whether current or long-term, for borrowed money
(including Obligations hereunder) and all obligations evidenced by bonds,
debentures, notes, loan agreements or other similar instruments, (b) all
purchase money Indebtedness (except as provided in clause (d) below), (c) all
direct obligations arising under letters of credit (including standby and
commercial), bankers' acceptances, bank guaranties, surety bonds and similar
instruments, (d) all obligations in respect of the deferred purchase price of
property or services (other than trade accounts payable and accrued expenses in
the ordinary course of business), (e) Attributable Indebtedness in respect of
Capitalized Leases and Off-Balance Sheet Obligations, (f) all Guarantees with
respect to outstanding Indebtedness of the types specified in clauses (a)
through (e) above, and (g) all Indebtedness of the types referred to in clauses
(a) through (f) above of any partnership or joint venture (other than a joint
venture that is itself a corporation or limited liability company) in which the
Borrower or a Subsidiary is a general partner or joint venturer, unless such
Indebtedness is expressly made non-recourse to the Borrower or any such
Subsidiary.
"Consolidated Interest Charges" means, for any period, for the Borrower
and its Subsidiaries determined on a consolidated basis, the sum of all
interest, premium payments, debt discount, fees, charges and related expenses in
connection with Indebtedness (including capitalized interest), in each case to
the extent treated as interest in accordance with GAAP, including the portion of
rent expense with respect to such period under Capitalized Leases that is
treated as interest in accordance with GAAP; provided, however, that, for
purposes of determining the Consolidated Coverage Ratio, Consolidated Interest
Charges shall not include any amortization of deferred transaction costs, debt
issuance expense or original issue discount.
"Consolidated Leverage Ratio" means, as of any date of determination, the
ratio of (a) Consolidated Funded Indebtedness as of such date to (b)
Consolidated EBITDA for the period of the four consecutive fiscal quarters most
recently ended.
6
"Consolidated Net Income" means, for any period, for the Borrower and its
Subsidiaries on a consolidated basis, net income for that period.
"Consolidated Net Worth" means, as of any date of determination, for the
Borrower and its Subsidiaries on a consolidated basis, Shareholders' Equity on
that date.
"Contract Provider" means any Person or any employee, agent or
subcontractor of such Person who provides professional health care services
under or pursuant to any contract with the Borrower or any of its Subsidiaries.
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound, including, without limitation, all Material Contracts.
"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.
"Corporate Integrity Agreement" means that certain Corporate Integrity
Agreement, entered into as of November 3, 2004, between the OIG of HHS and the
Borrower.
"Credit Extension" means each of the following: (a) a Borrowing and (b) an
L/C Credit Extension.
"Debtor Relief Laws" means the Bankruptcy Code of the United States, and
all other liquidation, conservatorship, bankruptcy, general assignment for the
benefit of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States or other
applicable jurisdictions from time to time in effect and affecting the rights of
creditors generally.
"Default" means any event or condition that constitutes an Event of
Default or that, with the giving of any notice, the passage of time, or both,
would be an Event of Default.
"Default Rate" means an interest rate equal to (a) in the case of
Eurodollar Rate Loans, the sum of (i) the Eurodollar Rate for such Loans plus
(ii) the Applicable Rate applicable to such Loans, plus (iii) 2% per annum, (b)
in the case of the Letter of Credit Fees, a rate equal to (i) the Applicable
Rate plus (ii) 2% per annum and (c) in the case of Base Rate Loans and for all
other Obligations, the sum of (i) the Base Rate for Base Rate Loans plus (ii)
the Applicable Rate, if any, applicable to Base Rate Loans plus (iii) 2% per
annum.
"Defaulting Lender" means any Lender that (a) has failed to fund any
portion of a Borrowing or participations in L/C Obligations or participations in
Swing Line Loans required to be funded by it hereunder within one Business Day
of the date required to be funded by it hereunder, (b) has otherwise failed to
pay over to the Administrative Agent or any other Lender any other amount
required to be paid by it hereunder within one Business Day of the date when
due, unless the subject of a good faith dispute, or (c) has been deemed
insolvent or become the subject of a bankruptcy or insolvency proceeding.
7
"Disposition" or "Dispose" means the sale, transfer, license, lease or
other disposition (including any sale and leaseback transaction) of any property
by any Person, including any sale, assignment, transfer or other disposal, with
or without recourse, of any notes issued by any other Person or accounts
receivable or any rights and claims associated therewith or any capital stock
of, or other Equity Interests in, any other Person. For the avoidance of doubt,
the issuance by the Borrower of any of its Equity Interests to any other Person
shall not constitute a Disposition.
"Documentation Agent" means Citizens Bank of Massachusetts in its capacity
as Documentation Agent or any successor documentation agent.
"Dollar" and "$" mean lawful money of the United States.
"Domestic Subsidiary" means a Subsidiary that is organized under the Laws
of a political subdivision of the United States.
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a Lender; (c)
an Approved Fund; and (d) any other Person (other than a natural person)
approved by (i) the Administrative Agent, the L/C Issuer and the Swing Line
Lender, and (ii) unless an Event of Default has occurred and is continuing, the
Borrower (each such approval not to be unreasonably withheld or delayed);
provided that notwithstanding the foregoing, "Eligible Assignee" shall not
include the Borrower or any of the Borrower's Affiliates or Subsidiaries.
"Environmental Laws" means any and all applicable Federal, state, local,
and foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or
governmental restrictions relating to pollution and the protection of the
environment or the release of any materials into the environment, including
those related to hazardous substances or wastes, air emissions and discharges to
waste or public systems.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Borrower, any other Loan Party or any of their
respective Subsidiaries directly or indirectly resulting from or based upon (a)
violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (c)
exposure to any Hazardous Materials, (d) the release or threatened release of
any Hazardous Materials into the environment or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.
"Equity Interests" means, with respect to any Person, all of the shares of
capital stock of (or other ownership or profit interests in) such Person, all of
the warrants, options or other rights for the purchase or acquisition from such
Person of shares of capital stock of (or other ownership or profit interests in)
such Person, all of the securities convertible into or exchangeable for shares
of capital stock of (or other ownership or profit interests in) such Person or
warrants, rights or options for the purchase or acquisition from such Person of
such shares (or such other interests), and all of the other ownership or profit
interests in such Person (including joint venture, partnership, member or trust
interests therein), whether voting or nonvoting, and whether or not such shares,
warrants, options, rights or other interests are outstanding on any date of
determination.
"ERISA" means the Employee Retirement Income Security Act of 1974.
8
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with the Borrower within the meaning of
Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for
purposes of provisions relating to Section 412 of the Code).
"ERISA Event" means (a) a Reportable Event with respect to a Pension Plan;
(b) a withdrawal by the Borrower or any ERISA Affiliate from a Pension Plan
subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation
of operations that is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA
Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is
in reorganization; (d) the filing of a notice of intent to terminate, the
treatment of a Pension Plan amendment as a termination under Sections 4041 or
4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a
Pension Plan or Multiemployer Plan; (e) an event or condition which constitutes
grounds under Section 4042 of ERISA for the termination of, or the appointment
of a trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the
imposition of any liability under Title IV of ERISA, other than for PBGC
premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower
or any ERISA Affiliate.
"Eurodollar Rate" means, for any Interest Period with respect to a
Eurodollar Rate Loan, the rate per annum equal to the British Bankers
Association LIBOR Rate ("BBA LIBOR"), as published by Reuters (or other
commercially available source providing quotations of BBA LIBOR as designated by
the Administrative Agent from time to time) at approximately 11:00 a.m., London
time, two Business Days prior to the commencement of such Interest Period, for
Dollar deposits (for delivery on the first day of such Interest Period) with a
term equivalent to such Interest Period. If such rate is not available at such
time for any reason, then the "Eurodollar Rate" for such Interest Period shall
be the rate per annum determined by the Administrative Agent to be the rate 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 Eurodollar Rate 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 11:00 a.m. (London time) two Business Days prior to the
commencement of such Interest Period.
"Eurodollar Rate Loan" means a Loan that bears interest at a rate based on
the Eurodollar Rate.
"Event of Default" has the meaning specified in Section 8.01.
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender, the L/C Issuer or any other recipient of any payment to be made by or on
account of any obligation of the Borrower hereunder, (a) taxes imposed on or
measured by its overall net income (however denominated), including branch
profits taxes, and franchise taxes imposed on it (in lieu of net income taxes),
by the jurisdiction (or any political subdivision thereof) under the laws of
which such recipient is organized or in which its principal office is located
or, in the case of any Lender, in which its applicable Lending Office is located
or is doing business, (b) any branch profits taxes imposed by the United States
or any similar tax imposed by any other jurisdiction in which the Borrower is
located and (c) in the case of a recipient (other than an assignee pursuant to a
request by the
9
Borrower under Section 10.13), any withholding tax that is imposed on amounts
payable to such recipient at the time such recipient becomes a party hereto (or
designates a new Lending Office) or is attributable to such recipient's failure
or inability (other than as a result of a Change in Law) to comply with Section
3.01(e), except to the extent that such recipient (or its assignor, if any) was
entitled, at the time of designation of a new Lending Office (or assignment), to
receive additional amounts from the Borrower with respect to such withholding
tax pursuant to Section 3.01(a).
"Exclusion Event" means an event or related events resulting in the
exclusion of the Borrower or any of its Subsidiaries from participation in any
Medical Reimbursement Program.
"Existing Letters of Credit" means each of those two certain letters of
credit totaling $754,000 issued by Citizens Bank for the account of the Borrower
as security for its obligations under worker compensation policies which are
outstanding on the Closing Date and expire in 2005 and 2006, respectively.
"Federal Funds Rate" means, 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 (rounded upward,
if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of America on
such day on such transactions as determined by the Administrative Agent.
"Fee Letter" means the collective reference to (i) the fee letter, dated
as of January 26, 2005, among the Borrower, Bank of America and Banc of America
Securities and (ii) the fee letter, dated as of January 26, 2005, among the
Borrower, Wachovia Bank, National Association and Wachovia Capital Markets, LLC.
"Foreign Lender" means any Lender that is organized under the laws of a
jurisdiction other than that in which the Borrower is resident for tax purposes.
For purposes of this definition, the United States, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"Foreign Subsidiary" means a Subsidiary that is not organized under the
Laws of a political subdivision of the United States or a state thereof.
"FRB" means the Board of Governors of the Federal Reserve System of the
United States.
"Fund" means any Person (other than a natural person) that is (or will be)
engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business.
"GAAP" means generally accepted accounting principles in the United States
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
10
accounting profession in the United States, that are applicable to the
circumstances as of the date of determination, consistently applied.
"Governmental Authority" means the government of the United States or any
other nation, or of any political subdivision thereof, whether state or local,
and any agency, authority, instrumentality, regulatory body, court, central bank
or other entity exercising executive, legislative, judicial, taxing, regulatory
or administrative powers or functions of or pertaining to government (including
any supra-national bodies such as the European Union or the European Central
Bank).
"Guarantee" means, as to any Person, (a) any obligation, contingent or
otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation payable or performable by
another Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of such Person, direct or indirect, (i)
to purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or other obligation, (ii) to purchase or lease property,
securities or services for the purpose of assuring the obligee in respect of
such Indebtedness or other obligation of the payment or performance of such
Indebtedness or other obligation, (iii) to maintain working capital, equity
capital or any other financial statement condition or liquidity or level of
income or cash flow of the primary obligor so as to enable the primary obligor
to pay such Indebtedness or other obligation, or (iv) entered into for the
purpose of assuring in any other manner the obligee in respect of such
Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or
(b) any Lien on any assets of such Person securing any Indebtedness or other
obligation of any other Person, whether or not such Indebtedness or other
obligation is assumed by such Person (or any right, contingent or otherwise, of
any holder of such Indebtedness to obtain any such Lien); provided that the term
"Guarantee" shall not include indorsements for collection or deposit in each
case in the ordinary course of business. The amount of any Guarantee shall be
deemed to be (i) in the case of (A) any Guarantee under subsection (a) above and
(B) any Guarantee under subsection (b) above which is not expressly a
non-recourse obligation of such Person, an amount equal to the stated or
determinable amount of the related primary obligation, or portion thereof, in
respect of which such Guarantee is made or, if not stated or determinable, the
maximum reasonably anticipated liability in respect thereof as determined by the
guaranteeing Person in good faith and (ii) in the case of any Guarantee under
subsection (b) above which is expressly non-recourse to the other assets of such
Person, the lesser of (A) the amount as would be determined for such Guarantee
under clause (i) above and (B) the fair market value of the asset subject to
such Lien as determined by the guaranteeing Person in good faith. The term
"Guarantee" as a verb has a corresponding meaning.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos-containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"HHS" means the United States Department of Health and Human Services and
any successor thereto.
"Honor Date" has the meaning specified in Section 2.03(c)(i).
11
"Indebtedness" means, as to any Person at a particular time, without
duplication, 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 of such Person under any Swap Contract;
(d) all obligations of such Person to pay the deferred purchase
price of property or services (other than trade accounts payable and
accrued expenses 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) Capitalized Leases and Off-Balance Sheet Obligations;
(g) all obligations of such Person to purchase, redeem, retire,
defease or otherwise make any payment in respect of any Equity Interests
in such Person or any other Person, valued, in the case of a redeemable
preferred interest, at the greater of its voluntary or involuntary
liquidation preference plus accrued and unpaid dividends; and
(h) all Guarantees of such Person in respect of any of the
foregoing.
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. The amount of any net obligation under any
Swap Contract on any date shall be deemed to be the Swap Termination Value
thereof as of such date. The amount of any Capitalized Lease or Off-Balance
Sheet Obligation as of any date shall be deemed to be the amount of Attributable
Indebtedness in respect thereof as of such date. The amount of any Indebtedness
described under clause (e) above which is expressly non-recourse to the other
assets of such Person shall be the lesser of the outstanding amount thereof and
the fair market value of the asset subject to such Lien as determined by such
Person in good faith.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Indemnitees" has the meaning specified in Section 10.04(b).
"Information" has the meaning specified in Section 10.07.
12
"Interest Payment Date" means, (a) as to any Eurodollar Rate Loan, the
last day of each Interest Period applicable to such Loan and the Maturity Date;
provided, however, that if any Interest Period for a Eurodollar Rate Loan
exceeds three months, the respective dates that fall every three months after
the beginning of such Interest Period shall also be Interest Payment Dates; and
(b) as to any Base Rate Loan (including a Swing Line Loan), the last Business
Day of each March, June, September and December and the Maturity Date.
"Interest Period" means, as to each Eurodollar Rate Loan, the period
commencing on the date such Eurodollar Rate Loan is disbursed or converted to or
continued as a Eurodollar Rate Loan and ending on the date one, two, three or
six months thereafter, as selected by the Borrower in its Loan Notice; provided
that:
(i) any Interest Period that would otherwise end on a day that is
not a Business Day shall be extended to the next succeeding Business Day,
in the case of a Eurodollar Rate Loan, unless such Business Day falls in
another calendar month, in which case such Interest Period shall end on
the immediately preceding Business Day;
(ii) any Interest Period pertaining to a Eurodollar Rate Loan that
begins on the last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar month at the end
of such Interest Period) shall end on the last Business Day of the
calendar month at the end of such Interest Period; and
(iii) no Interest Period shall extend beyond the Maturity Date for
the applicable Loan.
"Internal Control Event" means a material weakness in, or fraud that
involves management or other employees who have a significant role in, the
Borrower's internal controls over financial reporting, in each case as described
in the Securities Laws.
"Investment" means, as to any Person, (a) the purchase or other
acquisition of Equity Interests, evidence of Indebtedness or other securities of
another Person (including, without limitation, any such purchase or acquisition
which constitutes an Acquisition), (b) a loan, advance or capital contribution
to, Guarantee or assumption of Indebtedness of, or purchase or other acquisition
of any other debt or equity participation or interest in, another Person,
including any partnership or joint venture interest in such other Person and any
arrangement pursuant to which the investor Guarantees Indebtedness of such
Person or (c) the purchase or other acquisition (in one transaction or a series
of transactions) of assets of another Person that constitute a business unit or
other Acquisition. For purposes of covenant compliance, the amount of any
Investment shall be the amount actually invested, without adjustment for
subsequent increases or decreases in the value of such Investment.
"IP Rights" has the meaning set forth in Section 5.17.
"ISP" means with respect to any Letter of Credit, the "International
Standby Practices 1998" published by the Institute of International Banking Law
& Practice (or such later version thereof as may be in effect at the time of
issuance).
"IRS" means the United States Internal Revenue Service.
13
"Issuer Documents" means with respect to any Letter of Credit, the Letter
of Credit Application and any other document, agreement and instrument entered
into by the L/C Issuer and the Borrower (or any Subsidiary) or in favor of the
L/C Issuer and relating to any such Letter of Credit.
"Joinder Agreement" means a joinder agreement executed and delivered in
accordance with the provisions of Sections 6.12 and 6.13, substantially in the
form of Exhibit F hereto.
"Joint Lead Arrangers" means Banc of America Securities LLC and Wachovia
Capital Markets, LLC, in their capacities as joint lead arrangers and joint lead
book managers, or any successor joint lead arranger and joint lead book manager.
"Laws" means, collectively, all applicable international, foreign,
Federal, state and local statutes, treaties, rules, guidelines, regulations,
ordinances, codes and administrative or judicial precedents or authorities,
including the interpretation or administration thereof by any Governmental
Authority charged with the enforcement, interpretation or administration
thereof, and all applicable administrative orders, directed duties, requests,
licenses, authorizations and permits of, and agreements with, any Governmental
Authority, in each case whether or not having the force of law, including,
without limitation, all Environmental Laws, and all applicable laws and
regulations governing the development, testing, marketing, manufacturing and
pricing and sale of medical devices and medications (including, without
limitation, under the Federal Food, Drug and Cosmetic Act, the Safe Medical
Devices Act of 1990, the FDA Modernization Act, the Medicare Prescription Drug,
Improvement and Modernization Act of 2003, the Controlled Substances Act and the
Controlled Substances Import and Export Act, and additional laws and regulations
applicable to the Borrower or its Subsidiaries relating to medical devices and
medications promulgated by various governments and governmental agencies, and
laws regulating contractors to governmental entities (including Article VI of
the Social Security Amendments of 1983 regarding Medicare reimbursements)).
"L/C Advance" means, with respect to each Lender, such Lender's funding of
its participation in any L/C Borrowing in accordance with its Applicable
Percentage.
"L/C Borrowing" means an extension of credit resulting from a drawing
under any Letter of Credit which has not been reimbursed by the Borrower on the
Honor Date or refinanced as a Borrowing.
"L/C Credit Extension" means, with respect to any Letter of Credit, the
issuance thereof or extension of the expiry date thereof, or the renewal or
increase of the amount thereof.
"L/C Issuer" means (a) Bank of America in its capacity as issuer of
Letters of Credit hereunder, or any successor issuer of Letters of Credit
hereunder and (b) Citizen Bank in its capacity as issuer of the Existing Letters
of Credit.
"L/C Obligations" means, as at any date of determination, the aggregate
amount available to be drawn under all outstanding Letters of Credit plus the
aggregate of all Unreimbursed Amounts, including all L/C Borrowings. For
purposes of computing the amount available to be drawn under any Letter of
Credit, the amount of such Letter of Credit shall be determined in accordance
with Section 1.06. For purposes of this Agreement, if on any date of
determination a Letter of Credit has
14
expired by its terms but any amount may still be drawn thereunder by reason of
the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to
be "outstanding" in the amount remaining to be drawn.
"Lender" has the meaning specified in the preamble hereto and, as the
context requires, includes each Lender with a commitment to make Loans as
designated in Section 2.01 or in an Assignment and Assumption pursuant to which
such Lender becomes a party hereto; provided that references to "Lenders" shall
include Bank of America in its capacity as the Swing Line Lender; for purposes
of clarification only, to the extent that the Swing Line Lender may have rights
and obligations in addition to those of the other Lenders due to its status as
Swing Line Lender, its status as such will be specifically referenced.
"Lending Office" means, as to any Lender, the office or offices of such
Lender described as such in such Lender's Administrative Questionnaire, or such
other office or offices as to which a Lender may from time to time notify the
Borrower and the Administrative Agent.
"Letter of Credit" means any letter of credit issued hereunder and shall
include the Existing Letters of Credit. A Letter of Credit may be a commercial
letter of credit or a standby letter of credit.
"Letter of Credit Application" means an application and agreement for the
issuance or amendment of a Letter of Credit in the form from time to time in use
by the L/C Issuer.
"Letter of Credit Expiration Date" means the day that is thirty days prior
to the Maturity Date then in effect (or, if such day is not a Business Day, the
immediately preceding Business Day).
"Letter of Credit Fee" has the meaning specified in Section 2.03(i).
"Letter of Credit Sublimit" means an amount equal to the lesser of (a) $10
million and (b) the Aggregate Commitments. The Letter of Credit Sublimit is part
of, and not in addition to, the Aggregate Commitments.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge, or preference,
priority or other security interest or preferential arrangement of any kind or
nature whatsoever (including (a) in the case of securities, a third party's
right to purchase and (b) any conditional sale or other title retention
agreement, any easement, right of way or other encumbrance on title to real
property and any financing lease having substantially the same economic effect
as any of the foregoing).
"Loan" means an extension of credit by a Lender to the Borrower under
Article II in the form of a Loan made pursuant to Section 2.01 or a Swing Line
Loan.
"Loan Documents" means, collectively, (a) for purposes of this Agreement
and the Notes and any amendment, supplement or other modification hereof and
thereof and all other purposes other than for purposes of the Subsidiary
Guaranty, any of the Collateral Documents and Section 8.03 of this Agreement,
(i) this Agreement, (ii) each Note, (iii) each Issuer Document, (iv) each Fee
Letter, (v) the Subsidiary Guaranty and (vi) each Collateral Document and (b)
for purposes of the Subsidiary Guaranty, each Collateral Document and Section
8.03 of this Agreement, (i) each document under
15
clause (a) of this definition, (ii) each Secured Swap Contract and (iii) each
Secured Cash Management Services Agreement.
"Loan Notice" means a notice of (a) a Borrowing, (b) a conversion of Loans
from one Type to the other, or (c) a continuation of Eurodollar Rate Loans,
pursuant to Section 2.02(a), which, in each case, if in writing, shall be
substantially in the form of Exhibit A hereto.
"Loan Party" means, each of the Borrower and each Subsidiary Guarantor,
and "Loan Parties" means any combination of the foregoing.
"Material Adverse Effect" means (a) a material adverse change in, or a
material adverse effect upon, the operations, business, properties, liabilities
(actual or contingent), condition (financial or otherwise) or prospects of the
Borrower or the Borrower and the Subsidiaries taken as a whole; (b) a material
impairment of the ability of any Loan Party to perform its obligations under any
Loan Document to which it is a party; or (c) a material adverse effect upon the
legality, validity, binding effect or enforceability against any Loan Party of
any Loan Document to which it is a party.
"Material Contract" means, with respect to the Borrower and its
Subsidiaries, (a) the Corporate Integrity Agreement, the Settlement Agreement
and the other contracts set forth on Schedule 5.19, (b) each credit agreement,
capital lease or other agreement related to any Indebtedness of Borrower and any
Subsidiary in an amount greater than the Threshold Amount (other than the Loan
Documents), (c) each Swap Contract to which a Loan Party is a party, (d) each
acquisition agreement to which the Borrower or any Subsidiary is a party in
connection with any Acquisition with an Acquisition Purchase Price greater than
the Threshold Amount, (e) any voting or shareholder's agreement related to the
Equity Interest in any Person to which Borrower or any Subsidiary is a party,
(f) any other contract to which any such Person is a party involving aggregate
consideration payable to or by such Person of more than the Threshold Amount in
any year and (g) any other contract to which the Borrower or any Subsidiary is a
party which is material to the business, condition (financial or otherwise),
operations, performance, properties or prospects of the Borrower and its
Subsidiaries, taken as a whole, and which the Borrower has filed with the SEC.
"Maturity Date" means April 11, 2010.
"Medical Reimbursement Programs" means a collective reference to the
Medicare program and any other health care program operated by or financed in
whole or in part by any Governmental Authority.
"Medicare" means that government-sponsored entitlement program under Title
XVIII, P.L. 89-87, of the Social Security Act, which provides for a health
insurance system for eligible elderly and disabled individuals, as set forth at
Section 1395, et seq. of Title 42 of the United States Code, as amended, and any
statutes succeeding thereto.
"Medicare Regulations" means, collectively, all federal statutes (whether
set forth in Title XVIII of the Social Security Act or elsewhere) affecting
Medicare, 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,
CMS, the OIG, HHS, or any Person succeeding to the functions of the foregoing)
promulgated pursuant to or in connection with any of the foregoing having the
force of law.
16
"Multiemployer Plan" means any employee benefit plan of the type described
in Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate
makes or is obligated to make contributions, or during the preceding five plan
years, has made or been obligated to make contributions.
"Note" means a promissory note made by the Borrower in favor of a Lender
evidencing Loans made by such Lender, substantially in the form of Exhibit C
hereto.
"Obligations" means all advances to, and debts, liabilities, obligations,
covenants and duties of, any Loan Party arising under any Loan Document or
otherwise with respect to any Loan or Letter of Credit, whether direct or
indirect (including those acquired by assumption), absolute or contingent, due
or to become due, now existing or hereafter arising and including interest and
fees that accrue after the commencement by or against any Loan Party or any
Affiliate thereof of any proceeding under any Debtor Relief Laws naming such
Person as the debtor in such proceeding, regardless of whether such interest and
fees are allowed claims in such proceeding. Without limiting the generality of
the foregoing, the Obligations of the Borrower under the Loan Documents include
(a) the obligation to pay principal, interest, Letter of Credit commissions,
charges, expenses, fees, attorney fees and disbursements, indemnities and other
amounts payable by the Borrower under any Loan Document and (b) the obligations
of the Borrower to reimburse any amount in respect of any of the foregoing that
any Lender, in its sole discretion, may elect to pay or advance on behalf of the
Borrower.
"Off-Balance Sheet Obligation" means 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).
"OIG" means the Office of Inspector General of HHS or any successor
thereto.
"Organization Documents" means, (a) with respect to any corporation, the
certificate or articles of incorporation and the bylaws (or equivalent or
comparable constitutive documents with respect to any non-U.S. jurisdiction);
(b) with respect to any limited liability company, the certificate or articles
of formation or organization and operating agreement; and (c) with respect to
any partnership, joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of formation or
organization and any agreement, instrument, filing or notice with respect
thereto filed in connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or
organization of such entity.
"Other Taxes" means all present or future stamp or documentary taxes or
any other excise or property taxes, charges or similar levies arising from any
payment made hereunder or under any other Loan Document or from the execution,
delivery or enforcement of, or otherwise with respect to, this Agreement or any
other Loan Document.
"Outstanding Amount" means (a) with respect to Loans and Swing Line Loans
on any date, the aggregate outstanding principal amount thereof after giving
effect to any borrowings and prepayments or repayments of Loans and Swing Line
Loans, as the case may be, occurring on such
17
date; and (b) with respect to any L/C Obligations on any date, the amount of
such L/C Obligations on such date after giving effect to any L/C Credit
Extension occurring on such date and any other changes in the aggregate amount
of the L/C Obligations as of such date, including as a result of any
reimbursements by the Borrower of Unreimbursed Amounts.
"Participant" has the meaning specified in Section 10.06(d).
"PBGC" means the Pension Benefit Guaranty Corporation.
"Pension Plan" means any "employee pension benefit plan" (as such term is
defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by the Borrower or
any ERISA Affiliate or to which the Borrower or any ERISA Affiliate contributes
or has an obligation to contribute, or in the case of a multiple employer or
other plan described in Section 4064(a) of ERISA, has made contributions at any
time during the immediately preceding five plan years.
"Permitted Acquisitions" means any Acquisition by the Borrower or any
other Loan Party which is a wholly-owned Subsidiary of the Borrower; provided
that (a) the Property acquired (or the Property of the Person acquired) in such
Acquisition shall be used or useful in the same or similar line of business as
the Loan Parties on the Closing Date or a business reasonably related or
ancillary thereto, (b) all Property to be acquired in connection with such
Acquisition shall be located in the United States, (c) in the case of an
Acquisition of the Equity Interests of another Person, the board of directors
(or other comparable governing body) of such other Person shall have duly
approved such Acquisition and all of the outstanding Equity Interests of such
Person shall be Acquired, (d) no Default shall exist immediately after giving
effect to such Acquisition on a Pro Forma Basis, (e) the Acquisition shall not
involve an interest in a partnership or have a requirement that any Loan Party
be a general partner, (f) the Loan Parties shall, and shall cause the party that
is the subject of the Acquisition to, execute and deliver such joinder
agreements, pledge agreements and subsidiary guaranty agreements and take such
other actions as may be necessary for compliance with the provisions of Sections
6.12, 6.13 and 6.14 and (g) the Acquisition Purchase Price for each Acquisition
(or series of related Acquisitions) is less than or equal to $125 million and
after giving effect to each Acquisition and all Borrowings related thereto, on
the date of such Acquisition, there shall be at least $50 million of remaining
availability existing under the Aggregate Commitments.
"Permitted Subordinated Indebtedness" means any Indebtedness of the
Borrower in respect of any unsecured, subordinated debt securities or debt
obligations which may be guaranteed on an unsecured, subordinated basis by each
other Loan Party, which shall be on terms reasonably acceptable to the Required
Lenders.
"Person" means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, Governmental Authority
or other entity.
"Plan" means any "employee benefit plan" (as such term is defined in
Section 3(3) of ERISA) established by the Borrower or, with respect to any such
plan that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA
Affiliate.
"Platform" has the meaning specified in Section 6.02.
18
"Pledge Agreement" means the Pledge Agreement executed by the Borrower,
the Subsidiary Guarantors and the Administrative Agent in accordance with the
provisions of this Agreement, which Pledge Agreement shall be substantially in
the form of Exhibit I hereto.
"Property" means any interest in any kind of property or asset, whether
real, personal or mixed, or tangible or intangible, and whether owned or leased.
"Pro Forma Basis" means, for purposes of determining the applicable
pricing level under the definition of "Applicable Rate," and determining
compliance with any financial covenant or test hereunder and determining whether
the conditions precedent to a Permitted Acquisition or the issuance of Permitted
Subordinated Indebtedness have been met, that the subject transaction shall be
deemed to have occurred as of the first day of the four consecutive fiscal
quarters most recently ended for which annual or quarterly financial statements
shall have been delivered in accordance with the provisions hereof (the
"Reference Period"). Further, for purposes of making calculations on a "Pro
Forma Basis" hereunder, (a) any funds to be used by any Person in consummating a
Permitted Acquisition will be assumed to have been used for that purpose as of
the first day of the Reference Period, (b) the income statement items (whether
positive or negative) attributable to the Property or Person acquired or to be
acquired in any Permitted Acquisition will be included in the calculation of
consolidated EBIDTA as of the first day of such Reference Period, (c) any
Indebtedness (including any Permitted Subordinated Indebtedness) to be incurred
by any Person in connection with the consummation of any Permitted Acquisition
or otherwise will be assumed to have been incurred, and any Indebtedness retired
or to be retired on the closing date of such transaction shall be excluded and
deemed retired, in each case, on the first day of the Reference Period, (d) the
gross interest expense, determined in accordance with GAAP, with respect to such
Indebtedness assumed to have been incurred on the first day of the Reference
Period that bears interest at a floating rate shall be calculated at the current
rate under the agreement governing such Indebtedness (including this Agreement
if the Indebtedness is incurred hereunder), and (e) any gross interest expense,
determined in accordance with GAAP, incurred during the Reference Period in
respect of Indebtedness that was or is to be extinguished on the closing date of
such transaction or to be refinanced with proceeds of Indebtedness assumed to
have been incurred as of the first day of the Reference Period will be excluded
from the calculation for which a Pro Forma Basis is being given.
"Public Lender" has the meaning specified in Section 6.02.
"Reference Period" has the meaning specified in the definition of "Pro
Forma Basis".
"Register" has the meaning specified in Section 10.06(c).
"Registered Public Accounting Firm" has the meaning specified in the
Securities Laws and shall be independent of the Borrower as prescribed by the
Securities Laws.
"Related Parties" means, with respect to any Person, such Person's
Affiliates and the partners, directors, officers, employees, agents and advisors
of such Person and of such Person's Affiliates.
"Reportable Event" means any of the events set forth in Section 4043(c) of
ERISA, other than events for which the 30 day notice period has been waived.
19
"Request for Credit Extension" means (a) with respect to a Borrowing,
conversion or continuation of Loans, a Loan Notice, (b) with respect to an L/C
Credit Extension, a Letter of Credit Application, and (c) with respect to a
Swing Line Loan, a Swing Line Loan Notice.
"Required Lenders" means, as of any date of determination, Lenders having
more than 50% of the Aggregate Commitments or, if the commitment of each Lender
to make Loans and the obligation of the L/C Issuer to make L/C Credit Extensions
have been terminated pursuant to Section 8.02 or otherwise, Lenders holding in
the aggregate more than 50% of the Total Outstandings (with the aggregate amount
of each Lender's risk participation and funded participation in L/C Obligations
and Swing Line Loans being deemed "held" by such Lender for purposes of this
definition); provided that the Commitment of, and the portion of the Total
Outstandings held or deemed held by, any Defaulting Lender shall be excluded for
purposes of making a determination of Required Lenders.
"Responsible Officer" means the chief executive officer, president, chief
financial officer, treasurer or assistant treasurer of a Loan Party. Any
document delivered hereunder that is signed by a Responsible Officer of a Loan
Party shall be conclusively presumed to have been authorized by all necessary
corporate, partnership and/or other action on the part of such Loan Party and
such Responsible Officer shall be conclusively presumed to have acted on behalf
of such Loan Party.
"Restricted Payment" means any dividend or other distribution (whether in
cash, securities or other property) with respect to any Equity Interest of the
Borrower or any Subsidiary, or any payment (whether in cash, securities or other
property), including any sinking fund or similar deposit, on account of the
purchase, redemption, retirement, acquisition, cancellation or termination of
any such Equity Interest or on account of any return of capital to the
Borrower's stockholders, partners or other members (or the equivalent Persons
thereof).
"▇▇▇▇▇▇▇▇-▇▇▇▇▇" means the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002.
"SEC" means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
"Secured Cash Management Services Agreement" means any Cash Management
Services Agreement that it entered into by and between any Loan Party and any
Cash Management Bank.
"Secured Party" means the Administrative Agent, each Lender, the L/C
Issuer, each Swap Bank and each Cash Management Bank.
"Secured Swap Contract" means any Swap Contract required or permitted
under this Agreement that is entered into by and between any Loan Party and any
Swap Bank.
"Securities Laws" means the Securities Act of 1933, the Securities
Exchange Act of 1934, ▇▇▇▇▇▇▇▇-▇▇▇▇▇ and the applicable accounting and auditing
principles, rules, standards and practices promulgated, approved or incorporated
by the SEC or the Public Company Accounting Oversight Board, as each of the
foregoing may be amended and in effect on any applicable date hereunder.
"Settlement Agreement" means that certain Settlement Agreement, dated as
of November 3, 2004, between the United States, acting by and on behalf of the
Department of Justice and the OIG of HHS, the Borrower and certain of its
Subsidiaries.
20
"Shareholders' Equity" means, as of any date of determination,
consolidated shareholders' equity of the Borrower and its Subsidiaries as of
that date determined in accordance with GAAP.
"Social Security Act" means the Social Security Act of 1965 as set forth
in Title 42 of the United States Code, as amended, and any successor statute
thereto, as interpreted by the rules and regulations issued thereunder, in each
case as in effect from time to time. References to sections of the Social
Security Act shall be construed to refer to any successor sections.
"▇▇▇▇▇ I and II" means Section 1877 of the Social Security Act as set
forth at Section 1395nn of Title 42 of the United States Code, as amended, and
any successor statute thereto, as interpreted by the rules and regulations
issued thereunder, in each case as in effect from time to time.
"Subsidiary" of a Person means a corporation, partnership, joint venture,
limited liability company or other business entity of which a majority of the
shares of securities or other interests having ordinary voting power for the
election of directors or other governing body (other than securities or
interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, or the management of which is otherwise
controlled, directly, or indirectly through one or more intermediaries, or both,
by such Person. Unless otherwise specified, all references herein to a
"Subsidiary" or to "Subsidiaries" shall refer to a Subsidiary or Subsidiaries of
the Borrower.
"Subsidiary Guarantor" means each Domestic Subsidiary of the Borrower on
the Closing Date and each other Subsidiary of the Borrower that joins a
Subsidiary Guaranty pursuant to Section 6.12, together with their respective
successors and assigns.
"Subsidiary Guaranty" means the Subsidiary Guaranty Agreement, whether
entered into on the Closing Date or thereafter, duly executed by each Subsidiary
Guarantor in favor of the Administrative Agent on behalf of the Lenders,
substantially in the form of Exhibit G hereto.
"Swap Bank" means any Lender or an Affiliate of a Lender in its capacity
as a party to a Swap Contract entered into after the date of this Agreement.
"Swap Contract" means (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), whether or not any such transaction is
governed by or subject to any master agreement, 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.
21
"Swap Termination Value" means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts 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
▇▇▇▇-to-market value(s) for such Swap Contracts, as determined based upon one or
more mid-market or other readily available quotations provided by any recognized
dealer in such Swap Contracts (which may include a Lender or any Affiliate of a
Lender).
"Swing Line" means the revolving credit facility made available by the
Swing Line Lender pursuant to Section 2.04.
"Swing Line Borrowing" means a borrowing of a Swing Line Loan pursuant to
Section 2.04.
"Swing Line Lender" means Bank of America in its capacity as provider of
Swing Line Loans, or any successor swing line lender hereunder.
"Swing Line Loan" has the meaning specified in Section 2.04(a).
"Swing Line Loan Notice" means a notice of a Swing Line Borrowing pursuant
to Section 2.04(b), which, if in writing, shall be substantially in the form of
Exhibit B hereto.
"Swing Line Sublimit" means an amount equal to the lesser of (a) $10
million and (b) the Aggregate Commitments. The Swing Line Sublimit is part of,
and not in addition to, the Aggregate Commitments.
"Syndication Agent" means Wachovia Bank, National Association, in its
capacity as syndication agent or any successor syndication agent.
"Taxes" means all present or future taxes, levies, imposts, duties,
deductions, withholdings, assessments, fees or other charges imposed by any
Governmental Authority, including any interest, additions to tax or penalties
applicable thereto.
"Threshold Amount" means $10 million.
"Total Outstandings" means the aggregate Outstanding Amount of all Loans
and all L/C Obligations.
"Type" means, with respect to a Loan, its character as a Base Rate Loan or
a Eurodollar Rate Loan.
"UCC" means the Uniform Commercial Code as from time to time in effect in
the State of New York, or with respect to Collateral located in a state other
than the State of New York, the Uniform Commercial Code as from time to time in
effect in such jurisdiction.
"Unfunded Pension Liability" means the excess of a Pension Plan's benefit
liabilities under Section 4001(a)(16) of ERISA, over the current value of that
Pension Plan's assets, determined in
22
accordance with the assumptions used for funding the Pension Plan pursuant to
Section 412 of the Code for the applicable plan year.
"United States" and "U.S." mean the United States of America.
"Unreimbursed Amount" has the meaning specified in Section 2.03(c)(i).
1.02 OTHER INTERPRETIVE PROVISIONS. With reference to this Agreement and
each other Loan Document, unless otherwise specified herein or in such other
Loan Document:
(a) The definitions of terms herein shall apply equally to the singular
and plural forms of the terms defined. Whenever the context may require, any
pronoun shall include the corresponding masculine, feminine and neuter forms.
The words "include," "includes" and "including" shall be deemed to be followed
by the phrase "without limitation." The word "will" shall be construed to have
the same meaning and effect as the word "shall." Unless the context requires
otherwise, (i) any definition of or reference to any agreement, instrument or
other document (including any Organization Document) shall be construed as
referring to such agreement, instrument or other document as from time to time
amended, restated, amended and restated, extended, supplemented or otherwise
modified (subject to any restrictions on such amendments, restatements,
amendments and restatements, extensions, supplements or modifications set forth
herein or in any other Loan Document), (ii) any reference herein to any Person
shall be construed to include such Person's successors and permitted assigns,
(iii) the words "herein," "hereof" and "hereunder," and words of similar import
when used in any Loan Document, shall be construed to refer to such Loan
Document in its entirety and not to any particular provision thereof, (iv) all
references in a Loan Document to Articles, Sections, Exhibits and Schedules
shall be construed to refer to Articles and Sections of, and Exhibits and
Schedules to, the Loan Document in which such references appear, (v) any
reference to any Law shall include all statutory and regulatory provisions
consolidating, amending, replacing or interpreting such Law and any reference to
any Law or regulation shall, unless otherwise specified, refer to such law or
regulation as amended, modified or supplemented from time to time, and (vi) the
words "asset" and "property" shall be construed to have the same meaning and
effect and to refer to any and all tangible and intangible assets and
properties, including cash, securities, accounts and contract rights.
(b) In the computation of periods of time from a specified date to a later
specified date, the word "from" means "from and including;" the words "to" and
"until" each mean "to but excluding;" and the word "through" means "to and
including."
(c) Section headings herein and in the other Loan Documents are included
for convenience of reference only and shall not affect the interpretation of
this Agreement or any other Loan Document.
(d) Each reference to "basis points" or "bps" shall be interpreted in
accordance with the convention that 100 bps = 1.0%.
1.03 ACCOUNTING TERMS. (a) Generally. All accounting terms not
specifically or completely defined herein shall be construed in conformity with,
and all financial data (including financial ratios and other financial
calculations) required to be submitted pursuant to this Agreement
23
shall be prepared in conformity with, GAAP applied on a consistent basis, as in
effect from time to time, applied in a manner consistent with that used in
preparing the Audited Financial Statements for the fiscal year ended March 31,
2004, except as otherwise specifically prescribed herein.
(a) Changes in GAAP. If at any time any change in GAAP would affect the
computation of any financial ratio or requirement set forth in any Loan
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.
1.04 ROUNDING. Any financial ratios required to be maintained by the
Borrower pursuant to this Agreement shall be calculated by dividing the
appropriate component by the other component, carrying the result to one place
more than the number of places by which such ratio is expressed herein and
rounding the result up or down to the nearest number (with a rounding-up if
there is no nearest number).
1.05 TIMES OF DAY. Unless otherwise specified, all references herein to
times of day shall be references to Eastern time (daylight or standard, as
applicable).
1.06 LETTER OF CREDIT AMOUNTS. Unless otherwise specified herein, the
amount of a Letter of Credit at any time shall be deemed to be the stated amount
of such Letter of Credit in effect at such time; provided, however, that with
respect to any Letter of Credit that, by its terms or the terms of any Issuer
Document related thereto, provides for one or more automatic increases in the
stated amount thereof, the amount of such Letter of Credit shall be deemed to be
the maximum stated amount of such Letter of Credit after giving effect to all
increases, whether or not such maximum stated amount is in effect at such time.
ARTICLE II
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 THE LOANS. Subject to the terms and conditions set forth herein, each
Lender severally agrees to make loans (each such loan, a "Loan") to the Borrower
from time to time, on any Business Day during the Availability Period, in an
aggregate amount not to exceed at any time outstanding the amount of such
Lender's Commitment; provided, however, that after giving effect to any
Borrowing, (i) the Total Outstandings shall not exceed the Aggregate
Commitments, and (ii) the aggregate Outstanding Amount of the Loans of any
Lender, plus such Lender's Applicable Percentage of the Outstanding Amount of
all L/C Obligations, plus such Lender's Applicable Percentage of the Outstanding
Amount of all Swing Line Loans shall not exceed such Lender's Commitment. Within
the limits of each Lender's Commitment, and subject to the other terms and
conditions hereof, the Borrower may borrow under this Section 2.01, prepay under
Section 2.05, and reborrow under this Section 2.01. Loans may be Base Rate Loans
or Eurodollar Rate Loans, as further provided herein.
24
2.02 BORROWINGS, CONVERSIONS AND CONTINUATIONS OF LOANS.
(a) Each Borrowing, each conversion of Loans from one Type to the other,
and each continuation of Eurodollar Rate Loans shall be made upon the Borrower's
irrevocable notice to the Administrative Agent, which may be given by telephone.
Each such notice must be received by the Administrative Agent not later than (i)
12:30 p.m. three Business Days prior to the requested date of any Borrowing of,
conversion to or continuation of Eurodollar Rate Loans or of any conversion of
Eurodollar Rate Loans to Base Rate Loans, and (ii) 11:00 a.m. on the requested
date of any Borrowing of Base Rate Loans. Each telephonic notice by the Borrower
pursuant to this Section 2.02(a) must be confirmed promptly by delivery to the
Administrative Agent of a written Loan Notice, appropriately completed and
signed by a Responsible Officer of the Borrower. Each Borrowing of, conversion
to or continuation of Eurodollar Rate Loans shall be in a principal amount of $1
million or a whole multiple of $500,000 in excess thereof. Except as provided in
Sections 2.03(c) and 2.04(c), each Borrowing of or conversion to Base Rate Loans
shall be in a principal amount of $500,000 or a whole multiple of $100,000 in
excess thereof. Each Loan Notice (whether telephonic or written) shall specify
(i) whether the Borrower is requesting a Borrowing, a conversion of Loans from
one Type to the other, or a continuation of Eurodollar Rate Loans, (ii) the
requested date of the Borrowing, conversion or continuation, as the case may be
(which shall be a Business Day), (iii) the principal amount of Loans to be
borrowed, converted or continued, (iv) the Type of Loans to be borrowed or to
which existing Loans are to be converted or continued, and (v) if applicable,
the duration of the Interest Period with respect thereto. If the Borrower fails
to specify a Type of Loan in a Loan Notice or if the Borrower fails to give a
timely notice requesting a conversion or continuation, then the applicable Loans
shall be made as, or converted to, Base Rate Loans. Any such automatic
conversion to Base Rate Loans shall be effective as of the last day of the
Interest Period then in effect with respect to the applicable Eurodollar Rate
Loans. If the Borrower requests a Borrowing of, conversion to, or continuation
of Eurodollar Rate Loans in any such Loan Notice, but fails to specify an
Interest Period, it will be deemed to have specified an Interest Period of one
month.
(b) Following receipt of a Loan Notice, the Administrative Agent shall
promptly notify each Lender of the amount of its Applicable Percentage of the
applicable Loans, and if no timely notice of a conversion or continuation is
provided by the Borrower, the Administrative Agent shall notify each Lender of
the details of any automatic conversion to Base Rate Loans described in the
preceding subsection (a). In the case of each Borrowing, each Lender shall make
the amount of its Loan available to the Administrative Agent in immediately
available funds at the Administrative Agent's Office not later than 1:00 p.m. on
the Business Day specified in the applicable Loan Notice. Upon satisfaction of
the applicable conditions set forth in Section 4.02 (and, if such Borrowing is
the initial Credit Extension, Section 4.01), the Administrative Agent shall make
all funds so received available to the Borrower in like funds as received by the
Administrative Agent either by (i) crediting an account of the Borrower on the
books of Bank of America with the amount of such funds or (ii) wire transfer of
such funds, in each case in accordance with instructions provided to (and
reasonably acceptable to) the Administrative Agent by the Borrower; provided,
however, that if, on the date the Loan Notice with respect to such Borrowing is
given by the Borrower, there are L/C Borrowings outstanding, then the proceeds
of such Borrowing shall be applied, first, to the payment in full of any such
L/C Borrowings, and second, to the Borrower as provided above.
25
(c) Except as otherwise provided herein, a Eurodollar Rate Loan may be
continued or converted only on the last day of an Interest Period for such
Eurodollar Rate Loan, unless the Borrower pays the amounts due, if any, under
Section 3.05 in connection therewith. During the existence and continuance of an
Event of Default, no Loans may be requested as, converted to or continued as
Eurodollar Rate Loans without the consent of the Required Lenders.
(d) The Administrative Agent shall promptly notify the Borrower and the
Lenders of the interest rate applicable to any Interest Period for Eurodollar
Rate Loans upon determination of such interest rate. At any time that Base Rate
Loans are outstanding, the Administrative Agent shall notify the Borrower and
the Lenders of any change in Bank of America's prime rate used in determining
the Base Rate promptly following the public announcement of such change.
(e) After giving effect to all Borrowings, all conversions of Loans from
one Type to the other, and all continuations of Loans as the same Type, there
shall not be more than five Interest Periods in effect with respect to Loans.
(f) The failure of any Lender to make any Loan to be made by it as part
of any Borrowing shall not relieve any other Lender of its obligation, if any,
hereunder to make its Loan on the date of such Borrowing, but no Lender shall be
responsible for the failure of any other Lender to make any Loan to be made by
such other Lender on the date of any Borrowing.
2.03 LETTERS OF CREDIT.
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, (A) the
L/C Issuer agrees, in reliance upon the agreements of the other Lenders
set forth in this Section 2.03, (1) from time to time on any Business Day
during the period from the Closing Date until the Letter of Credit
Expiration Date, to issue Letters of Credit for the account of the
Borrower, and to amend or extend Letters of Credit previously issued by
it, in accordance with subsection (b) below, and (2) to honor drafts under
the Letters of Credit; and (B) the Lenders severally agree to participate
in Letters of Credit issued for the account of the Borrower; provided that
after giving effect to any L/C Extension with respect to any Letter of
Credit, (x) the Total Outstandings shall not exceed the Aggregate
Commitments, (y) the aggregate Outstanding Amount of the Loans of any
Lender, plus such Lender's Applicable Percentage of the Outstanding Amount
of all L/C Obligations, plus such Lender's Applicable Percentage of the
Outstanding Amount of all Swing Line Loans shall not exceed such Lender's
Commitment, and (z) the Outstanding Amount of the L/C Obligations shall
not exceed the Letter of Credit Sublimit. Each request by the Borrower for
the issuance or amendment of a Letter of Credit shall be deemed to be a
representation by the Borrower that the L/C Credit Extension so requested
complies with the conditions set forth in the proviso to the preceding
sentence. Within the foregoing limits, and subject to the terms and
conditions hereof, the Borrower's ability to obtain Letters of Credit
shall be fully revolving, and accordingly the Borrower may, during the
foregoing period, obtain Letters of Credit to replace Letters of Credit
that have expired or that have been drawn upon and reimbursed. All
Existing Letters of Credit shall be deemed to have been issued pursuant
hereto, and from and after the Closing Date shall be subject to and
governed by the terms and conditions hereof.
26
(ii) The L/C Issuer shall not issue any Letter of Credit, if:
(A) subject to Section 2.03(b)(iii), the expiry date of such
requested Letter of Credit would occur more than twelve months after the
date of issuance, unless the Required Lenders have approved such expiry
date; or
(B) the expiry date of such requested Letter of Credit would occur
after the Letter of Credit Expiration Date, unless all the Lenders have
approved such expiry date;
(iii) The L/C Issuer shall not be under any obligation to issue any Letter
of Credit if:
(A) any order, judgment or decree of any Governmental Authority or
arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer
from issuing such Letter of Credit, or any Law applicable to the L/C
Issuer or any request or directive (whether or not having the force of
law) from any Governmental Authority with jurisdiction over the L/C Issuer
shall prohibit, or request that the L/C Issuer refrain from, the issuance
of letters of credit generally or such Letter of Credit in particular or
shall impose upon the L/C Issuer with respect to such Letter of Credit any
restriction, reserve or capital requirement (for which the L/C Issuer is
not otherwise compensated hereunder) not in effect on the Closing Date, or
shall impose upon the L/C Issuer any unreimbursed loss, cost or expense
which was not applicable on the Closing Date and which the L/C Issuer in
good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(B) the issuance of such Letter of Credit would violate one or more
policies of the L/C Issuer of general applicability to all borrowers;
(C) except as otherwise agreed by the Administrative Agent and the
L/C Issuer, such Letter of Credit is in an initial stated amount less than
$100,000, in the case of a commercial Letter of Credit, or $100,000, in
the case of a standby Letter of Credit; or
(D) a default of any Lender's obligations to fund under Section
2.03(c) exists or any Lender is at such time a Defaulting Lender
hereunder, unless the L/C Issuer has entered into satisfactory
arrangements with the Borrower to eliminate the L/C Issuer's risk with
respect to such Lender.
(iv) The L/C Issuer shall be under no obligation to amend any Letter of
Credit if (A) the L/C Issuer would have no obligation at such time to issue such
Letter of Credit in its amended form under the terms hereof, or (B) the
beneficiary of such Letter of Credit does not accept the proposed amendment to
such Letter of Credit.
(v) The L/C Issuer shall act on behalf of the Lenders with respect to
any Letters of Credit issued by it and the documents associated therewith, and
the L/C Issuer shall have all of the benefits and immunities (A) provided to the
Administrative Agent in Article IX with respect to any acts taken or omissions
suffered by the L/C Issuer in connection with
27
Letters of Credit issued by it or proposed to be issued by it and Issuer
Documents pertaining to such Letters of Credit as fully as if the term
"Administrative Agent" as used in Article IX included the L/C Issuer with
respect to such acts or omissions, and (B) as additionally provided herein
with respect to the L/C Issuer.
(b) Procedures for Issuance and Amendment of Letters of Credit;
Auto-Extension Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as the case
may be, upon the request of the Borrower delivered to the L/C Issuer (with
a copy to the Administrative Agent) in the form of a Letter of Credit
Application, appropriately completed and signed by a Responsible Officer
of the Borrower. Such Letter of Credit Application must be received by the
L/C Issuer and the Administrative Agent not later than 12:30 p.m. at least
two Business Days (or such later date and time as the L/C Issuer may agree
in a particular instance in its sole discretion) prior to the proposed
issuance date or date of amendment, as the case may be. In the case of a
request for an initial issuance of a Letter of Credit, such Letter of
Credit Application shall specify in form and detail reasonably
satisfactory to the L/C Issuer the following: (A) the proposed issuance
date of the requested Letter of Credit (which shall be a Business Day);
(B) the amount thereof; (C) the expiry date thereof; (D) the name and
address of the beneficiary thereof; (E) the documents to be presented by
such beneficiary in case of any drawing thereunder; (F) the full text of
any certificate to be presented by such beneficiary in case of any drawing
thereunder; and (G) such other matters as the L/C Issuer may reasonably
request. In the case of a request for an amendment of any outstanding
Letter of Credit, such Letter of Credit Application shall specify in form
and detail reasonably satisfactory to the L/C Issuer the following: (A)
the Letter of Credit to be amended; (B) the proposed date of amendment
thereof (which shall be a Business Day); (C) the nature of the proposed
amendment; and (D) such other matters as the L/C Issuer may reasonably
request. Additionally, the Borrower shall furnish to the L/C Issuer and
the Administrative Agent such other documents and information pertaining
to such requested Letter of Credit issuance or amendment, including any
Issuer Documents, as the L/C Issuer or the Administrative Agent may
reasonably require.
(ii) Promptly after receipt of any Letter of Credit Application, the
L/C Issuer will confirm with the Administrative Agent (by telephone or in
writing) that the Administrative Agent has received a copy of such Letter
of Credit Application from the Borrower and, if not, the L/C Issuer will
provide the Administrative Agent with a copy thereof. Unless the L/C
Issuer has received written confirmation from any Lender, the
Administrative Agent or any Loan Party, at least one Business Day prior to
the requested date of issuance or amendment of the applicable Letter of
Credit, that one or more of the applicable conditions contained in Article
IV shall not have been satisfied, then, subject to the terms and
conditions hereof, the L/C Issuer shall, on the requested date, issue a
Letter of Credit for the account of the Borrower or enter into the
applicable amendment, as the case may be, in each case in accordance with
the L/C Issuer's usual and customary business practices. Immediately upon
the issuance of each Letter of Credit, each Lender shall be deemed to, and
hereby irrevocably and unconditionally agrees to, purchase from the L/C
Issuer a risk participation in such Letter of Credit in an amount equal to
the product of such Lender's Applicable Percentage times the amount of
such Letter of Credit.
28
(iii) If the Borrower so requests in any applicable Letter of Credit
Application, the L/C Issuer may, in its sole and absolute discretion,
agree to issue a Letter of Credit that has automatic extension provisions
(each, an "Auto-Extension Letter of Credit"); provided that any such
Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any
such extension at least once in each twelve-month period (commencing with
the date of issuance of such Letter of Credit) by giving prior notice to
the beneficiary thereof not later than a day (the "Non-Extension Notice
Date") in each such twelve-month period to be agreed upon at the time such
Letter of Credit is issued. Unless otherwise directed by the L/C Issuer,
the Borrower shall not be required to make a specific request to the L/C
Issuer for any such extension. Once an Auto-Extension Letter of Credit has
been issued, the Lenders shall be deemed to have authorized (but may not
require) the L/C Issuer to permit the extension of such Letter of Credit
at any time to an expiry date not later than the Letter of Credit
Expiration Date; provided, however, that the L/C Issuer shall not permit
any such extension if (A) the L/C Issuer has determined that it would not
be permitted or would have no obligation at such time to issue such Letter
of Credit in its revised form (as extended) under the terms hereof (by
reason of the provisions clause (ii) or (iii) of Section 2.03(a) or
otherwise), or (B) it has received notice (which may be by telephone or in
writing) on or before the day that is five Business Days before the
Non-Extension Notice Date (1) from the Administrative Agent that the
Required Lenders have elected not to permit such extension or (2) from the
Administrative Agent, any Lender or the Borrower that one or more of the
applicable conditions specified in Section 4.02 is not then satisfied, and
in each such case directing the L/C Issuer not to permit such extension.
(iv) Promptly after its delivery of any Letter of Credit or any
amendment to a Letter of Credit to an advising bank with respect thereto
or to the beneficiary thereof, the L/C Issuer will also deliver to the
Borrower and the Administrative Agent a true and complete copy of such
Letter of Credit or amendment.
(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon receipt from the beneficiary of any Letter of Credit of any
notice of a drawing under such Letter of Credit, the L/C Issuer shall
notify the Borrower and the Administrative Agent thereof and shall state
the date payment shall be made by the L/C Issuer under a Letter of Credit
(each such date, an "Honor Date"). Not later than (A) 11:00 a.m. on the
Honor Date, if the Borrower has received such notice no later than 9:30
a.m. on the Honor Date, (B) 11:00 a.m. on any Business Day after the Honor
Date on which the Borrower has received such notice, if the Borrower
receives such notice no later than 9:30 am on such date, and (C) 11:00
a.m. on the Business Day following the date the Borrower has received such
notice, if the Borrower receives such notice after 9:30 a.m. on the Honor
Date or any subsequent date, the Borrower shall reimburse the L/C Issuer
through the Administrative Agent in an amount equal to the amount of such
drawing. If the Borrower fails to so reimburse the L/C Issuer by such
time, the Administrative Agent shall promptly notify each Lender of the
Honor Date, the amount of the unreimbursed drawing (the "Unreimbursed
Amount"), and the amount of such Lender's Applicable Percentage thereof.
In such event, the Borrower shall be deemed to have requested a Borrowing
of Base Rate Loans to be disbursed on the Honor Date in an amount equal to
the Unreimbursed Amount, without regard to the minimum and multiples
specified in Section 2.02 for the principal
29
amount of Base Rate Loans, but subject to the amount of the unutilized
portion of the Aggregate Commitments and the conditions set forth in
Section 4.02 (other than the delivery of a Loan Notice). Any notice given
by the L/C Issuer or the Administrative Agent pursuant to this Section
2.03(c)(i) may be given by telephone if immediately confirmed in writing;
provided that the lack of such an immediate confirmation shall not affect
the conclusiveness or binding effect of such notice.
(ii) Each Lender shall upon any notice pursuant to Section
2.03(c)(i) make funds available to the Administrative Agent for the
account of the L/C Issuer at the Administrative Agent's Office in an
amount equal to its Applicable Percentage of the Unreimbursed Amount not
later than 1:00 p.m. on the Business Day specified in such notice by the
Administrative Agent, whereupon, subject to the provisions of Section
2.03(c)(iii), each Lender that so makes funds available shall be deemed to
have made a Base Rate Loan to the Borrower in such amount. The
Administrative Agent shall remit the funds so received to the L/C Issuer.
(iii) With respect to any Unreimbursed Amount that is not fully
refinanced by a Borrowing of Base Rate Loans because the conditions set
forth in Section 4.02 cannot be satisfied or for any other reason, the
Borrower shall be deemed to have incurred from the L/C Issuer an L/C
Borrowing in the amount of the Unreimbursed Amount that is not so
refinanced, which L/C Borrowing shall be due and payable on demand
(together with interest) and shall bear interest at the Default Rate. In
such event, each Lender's payment to the Administrative Agent for the
account of the L/C Issuer pursuant to Section 2.03(c)(ii) shall be deemed
payment in respect of its participation in such L/C Borrowing and shall
constitute an L/C Advance from such Lender in satisfaction of its
participation obligation under this Section 2.03.
(iv) Until each Lender funds its Loan or L/C Advance pursuant to
this Section 2.03(c) to reimburse the L/C Issuer for any amount drawn
under any Letter of Credit, interest in respect of such Lender's
Applicable Percentage of such amount shall be solely for the account of
the L/C Issuer.
(v) Each Lender's obligation to make Loans or L/C Advances to
reimburse the L/C Issuer for amounts drawn under Letters of Credit, as
contemplated by this Section 2.03(c), shall be absolute and unconditional
and shall not be affected by any circumstance, including (A) any setoff,
counterclaim, recoupment, defense or other right which such Lender may
have against the L/C Issuer, the Administrative Agent, the Borrower or any
other Person for any reason whatsoever, (B) the occurrence or continuance
of a Default, or (C) any other occurrence, event or condition, whether or
not similar to any of the foregoing; provided, however, that each Lender's
obligation to make Loans pursuant to this Section 2.03(c) is subject to
the conditions set forth in Section 4.02 (other than delivery by the
Borrower of a Loan Notice). No such making of an L/C Advance shall relieve
or otherwise impair the obligation of the Borrower to reimburse the L/C
Issuer for the amount of any payment made by the L/C Issuer under any
Letter of Credit, together with interest as provided herein.
(vi) If any Lender fails to make available to the Administrative
Agent for the account of the L/C Issuer any amount required to be paid by
such Lender pursuant to the foregoing provisions of this Section 2.03(c)
by the time specified in Section 2.03(c)(ii), the
30
L/C Issuer shall be entitled to recover from such Lender (acting through
the Administrative Agent), on demand, such amount with interest thereon
for the period from the date such payment is required to the date on which
such payment is immediately available to the L/C Issuer at a rate per
annum equal to the greater of the Federal Funds Rate and a rate determined
by the L/C Issuer in accordance with banking industry rules on interbank
compensation. A certificate of the L/C Issuer submitted to any Lender
(through the Administrative Agent) with respect to any amounts owing under
this clause (vi) shall be conclusive absent manifest error.
(d) Repayment of Participations.
(i) At any time after the L/C Issuer has made a payment under any
Letter of Credit and has received from any Lender such Lender's L/C
Advance in respect of such payment in accordance with Section 2.03(c), if
the Administrative Agent receives for the account of the L/C Issuer any
payment in respect of the related Unreimbursed Amount or interest thereon
(whether directly from the Borrower or otherwise, including proceeds of
Cash Collateral applied thereto by the Administrative Agent), the
Administrative Agent will distribute to such Lender its Applicable
Percentage thereof (appropriately adjusted, in the case of interest
payments, to reflect the period of time during which such Lender's L/C
Advance was outstanding) in the same funds as those received by the
Administrative Agent.
(ii) If any payment received by the Administrative Agent for the
account of the L/C Issuer pursuant to Section 2.03(c)(i) is required to be
returned under any of the circumstances described in Section 10.05
(including pursuant to any settlement entered into by the L/C Issuer in
its discretion), each Lender shall pay to the Administrative Agent for the
account of the L/C Issuer its Applicable Percentage thereof on demand of
the Administrative Agent, plus interest thereon from the date of such
demand to the date such amount is returned by such Lender, at a rate per
annum equal to the Federal Funds Rate from time to time in effect. The
obligations of the Lenders under this clause shall survive the payment in
full of the Obligations and the termination of this Agreement.
(e) Obligations Absolute. The obligation of the Borrower to reimburse
the L/C Issuer for each drawing under each Letter of Credit and to repay each
L/C Borrowing shall be absolute, unconditional and irrevocable, and shall be
paid strictly in accordance with the terms of this Agreement under all
circumstances, including the following:
(i) any lack of validity or enforceability of such Letter of Credit,
this Agreement or any other Loan Document or any other agreement or
instrument relating thereto;
(ii) the existence of any claim, counterclaim, setoff, defense or
other right that the Borrower may have at any time against any beneficiary
or any transferee of such Letter of Credit (or any Person for whom any
such beneficiary or any such transferee may be acting), the L/C Issuer or
any other Person, whether in connection with this Agreement, the
transactions contemplated hereby or by such Letter of Credit or any
agreement or instrument relating thereto, or any unrelated transaction;
31
(iii) any draft, demand, certificate or other document presented
under such 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; or any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under such
Letter of Credit;
(iv) any payment by the L/C Issuer under such Letter of Credit
against presentation of a draft or certificate that does not strictly
comply with the terms of such Letter of Credit; or any payment made by the
L/C Issuer under such Letter of Credit to any Person purporting to be a
trustee in bankruptcy, debtor-in-possession, assignee for the benefit of
creditors, liquidator, receiver or other representative of or successor to
any beneficiary or any transferee of such Letter of Credit, including any
arising in connection with any proceeding under any Debtor Relief Law; or
(v) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including any other circumstance that
might otherwise constitute a defense available to, or a discharge of, the
Borrower.
The Borrower shall promptly examine a copy of each Letter of Credit and
each amendment thereto that is delivered to it and, in the event of any claim of
noncompliance with the Borrower's instructions or other irregularity, the
Borrower will immediately notify the L/C Issuer. The Borrower shall be
conclusively deemed to have waived any such claim against the L/C Issuer and its
correspondents unless such notice is given as aforesaid.
(f) Role of L/C Issuer. Each Lender and the Borrower agree that, in
paying any drawing under a Letter of Credit, the L/C Issuer shall not have any
responsibility to obtain any document (other than any sight draft, certificates
and documents expressly required by the Letter of Credit) or to ascertain or
inquire as to the validity or accuracy of any such document or the authority of
the Person executing or delivering any such document. None of the L/C Issuer,
the Administrative Agent, any related parties nor any correspondent, participant
or assignee of the L/C Issuer shall be liable to any Lender for (i) any action
taken or omitted in connection herewith at the request or with the approval of
the Lenders or the Required Lenders, as applicable; (ii) any action taken or
omitted in the absence of gross negligence or willful misconduct; or (iii) the
due execution, effectiveness, validity or enforceability of any document or
instrument related to any Letter of Credit or Issuer Document. The Borrower
hereby assumes all risks of the acts or omissions of any beneficiary or
transferee with respect to its use of any Letter of Credit; provided, however,
that this assumption is not intended to, and shall not, preclude the Borrower's
pursuing such rights and remedies as it may have against the beneficiary or
transferee at law or under any other agreement. None of the L/C Issuer, the
Administrative Agent, any of their respective Related Parties nor any
correspondent, participant or assignee of the L/C Issuer, shall be liable or
responsible for any of the matters described in clauses (i) through (v) of
Section 2.03(e); provided, however, that anything in such clauses to the
contrary notwithstanding, the Borrower may have a claim against the L/C Issuer,
and the L/C Issuer may be liable to the Borrower, to the extent, but only to the
extent, of any direct, as opposed to consequential or exemplary, damages
suffered by the Borrower which the Borrower proves were caused by the L/C
Issuer's willful misconduct or gross negligence or the L/C Issuer's willful
failure to pay under any Letter of Credit after the presentation to it by the
beneficiary of a sight draft and certificate(s) strictly complying with the
terms and conditions of a Letter of Credit. In
32
furtherance and not in limitation of the foregoing, the L/C Issuer may accept
documents that appear on their face to be in order, without responsibility for
further investigation, regardless of any notice or information to the contrary,
and the L/C Issuer shall not be responsible for the validity or sufficiency of
any instrument transferring or assigning or purporting to transfer or assign a
Letter of Credit or the rights or benefits thereunder or proceeds thereof, in
whole or in part, which may prove to be invalid or ineffective for any reason.
(g) Cash Collateral. Upon the request of the Administrative Agent, (i)
if the L/C Issuer has honored any full or partial drawing request under any
Letter of Credit and such drawing has resulted in an L/C Borrowing, or (ii) if,
as of the Letter of Credit Expiration Date, any L/C Obligation for any reason
remains outstanding, the Borrower shall, in each case, immediately Cash
Collateralize the then Outstanding Amount of all L/C Obligations. Sections 2.05
and 8.02(c) set forth certain additional requirements to deliver Cash Collateral
hereunder. For purposes of this Section 2.03, Section 2.05 and Section 8.02(c),
"Cash Collateralize" means to pledge and deposit with or deliver to the
Administrative Agent, for the benefit of the L/C Issuer and the Lenders, as
collateral for the L/C Obligations, cash or deposit account balances pursuant to
documentation in form and substance reasonably satisfactory to the
Administrative Agent and the L/C Issuer (which documents are hereby consented to
by the Lenders). Derivatives of such term have corresponding meanings. The
Borrower hereby grants to the Administrative Agent, for the benefit of the L/C
Issuer and the Lenders, a security interest in all such cash, deposit accounts
and all balances therein and all proceeds of the foregoing. Cash Collateral
shall be maintained in blocked, non-interest bearing deposit accounts at Bank of
America. So long as no Default or Event of Default shall have occurred and be
continuing and such Cash Collateral is not then required pursuant to Section
2.05(c), any Cash Collateral shall be released as directed in writing by the
Borrower (A) at such times prior to the Letter of Credit Expiration Date that no
L/C Borrowings are outstanding and (B) at such times after the Letter of Credit
Expiration Date that no L/C Obligations are outstanding.
(h) Applicability of ISP. Unless otherwise expressly agreed by the L/C
Issuer and the Borrower when a Letter of Credit is issued (including any such
agreement applicable to an Existing Letter of Credit), (i) the rules of the ISP
shall apply to each standby Letter of Credit and (ii) the rules of the Uniform
Customs and Practice for Documentary Credits, as most recently published by the
International Chamber of Commerce at the time of issuance, shall apply to each
commercial Letter of Credit.
(i) Letter of Credit Fees. The Borrower shall pay to the Administrative
Agent for the account of each Lender in accordance with its Applicable
Percentage a letter of credit fee (the "Letter of Credit Fee") (i) for each
commercial Letter of Credit equal to .25 of 1% per annum times the daily amount
available to be drawn under such Letter of Credit, and (ii) for each standby
Letter of Credit equal to the Applicable Rate times the daily amount available
to be drawn under such Letter of Credit. For purposes of computing the daily
amount available to be drawn under any Letter of Credit, the amount of such
Letter of Credit shall be determined in accordance with Section 1.06. Such
Letter of Credit Fees shall be (i) computed on a quarterly basis in arrears and
(ii) due and payable on the last Business Day of each March, June, September and
December, commencing with the first such date to occur after the issuance of
such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on
demand. If there is any change in the Applicable Rate during any quarter, the
daily amount available to be drawn under each standby Letter of Credit shall be
computed and multiplied by the Applicable Rate separately for each period during
such quarter that
33
such Applicable Rate was in effect. Notwithstanding anything to the contrary,
contained herein upon the request of the Required Lenders, while any Event of
Default exists, all Letter of Credit Fees shall accrue at the Default Rate.
(j) Fronting Fee and Documentary and Processing Charges Payable to L/C
Issuer. The Borrower shall pay directly to the L/C Issuer for its own account a
fronting fee (i) with respect to each commercial Letter of Credit, at the rate
specified in the Fee Letter of Bank of America, computed on the amount of such
Letter of Credit, and payable upon issuance thereof, (ii) with respect to any
amendment of a commercial Letter of Credit increasing the amount of such Letter
of Credit, at a rate separately agreed between the Borrower and the L/C Issuer,
computed on the amount of such increase, and payable upon effectiveness of such
amendment, and (iii) with respect to each standby Letter of Credit, at the rate
per annum specified in the Fee Letter of Bank of America, computed on the daily
amount available to be drawn under such Letter of Credit and on a quarterly
basis in arrears. Such fronting fee shall be due and payable on the tenth
Business Day after the end of each March, June, September and December in
respect of the most recently-ended quarterly period (or portion thereof, in the
case of the first payment), commencing with the first such date to occur after
the issuance of such Letter of Credit, on the Letter of Credit Expiration Date
and thereafter on demand. For purposes of computing the daily amount available
to be drawn under any Letter of Credit, the amount of such Letter of Credit
shall be determined in accordance with Section 1.06. In addition, the Borrower
shall pay directly to the L/C Issuer for its own account the customary issuance,
presentation, amendment and other processing fees, and other standard costs and
charges, of the L/C Issuer relating to letters of credit as from time to time in
effect. Such customary fees and standard costs and charges are due and payable
within five Business Days of demand and are nonrefundable.
(k) Conflict with Issuer Documents. In the event of any conflict between
the terms hereof and the terms of any Issuer Document, the terms hereof shall
control.
2.04 SWING LINE LOANS.
(a) The Swing Line. Subject to the terms and conditions set forth
herein, the Swing Line Lender agrees, in reliance upon the agreements of the
other Lenders set forth in this Section 2.04, to make loans (each such loan, a
"Swing Line Loan") to the Borrower from time to time on any Business Day during
the Availability Period in an aggregate amount not to exceed at any time
outstanding the amount of the Swing Line Sublimit, notwithstanding the fact that
such Swing Line Loans, when aggregated with the Applicable Percentage of the
Outstanding Amount of Loans and L/C Obligations of the Lender acting as Swing
Line Lender, may exceed the amount of such Lender's Commitment; provided,
however, that after giving effect to any Swing Line Loan, (i) the Total
Outstandings shall not exceed the Aggregate Commitments, and (ii) the aggregate
Outstanding Amount of the Loans of any Lender (other than the Swing Line
Lender), plus such Lender's Applicable Percentage of the Outstanding Amount of
all L/C Obligations, plus such Lender's Applicable Percentage of the Outstanding
Amount of all Swing Line Loans shall not exceed such Lender's Commitment, and
provided, further, that the Borrower shall not use the proceeds of any Swing
Line Loan to refinance any outstanding Swing Line Loan. Within the foregoing
limits, and subject to the other terms and conditions hereof, the Borrower may
borrow under this Section 2.04, prepay under Section 2.05, and reborrow under
this Section 2.04. Each Swing Line Loan shall be a Base Rate Loan. Immediately
upon the making of a Swing Line Loan, each Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the Swing Line Lender a
risk
34
participation in such Swing Line Loan in an amount equal to the product of such
Lender's Applicable Percentage times the amount of such Swing Line Loan.
(b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon
the Borrower's irrevocable notice to the Swing Line Lender and the
Administrative Agent, which may be given by telephone. Each such notice must be
received by the Swing Line Lender and the Administrative Agent not later than
1:00 p.m. on the requested borrowing date, and shall specify (i) the amount to
be borrowed, which shall be a minimum of $250,000 or a whole multiple of
$100,000 in excess thereof, and (ii) the requested borrowing date, which shall
be a Business Day. Each such telephonic notice must be confirmed promptly by
delivery to the Swing Line Lender and the Administrative Agent of a written
Swing Line Loan Notice, appropriately completed and signed by a Responsible
Officer of the Borrower. Promptly after receipt by the Swing Line Lender of any
telephonic Swing Line Loan Notice, the Swing Line Lender will confirm with the
Administrative Agent (by telephone or in writing) that the Administrative Agent
has also received such Swing Line Loan Notice and, if not, the Swing Line Lender
will notify the Administrative Agent (by telephone or in writing) of the
contents thereof. Unless the Swing Line Lender has received notice (by telephone
or in writing) from the Administrative Agent (including at the request of any
Lender) prior to 2:00 p.m. on the date of the proposed Swing Line Borrowing (A)
directing the Swing Line Lender not to make such Swing Line Loan as a result of
the limitations set forth in the first proviso to the first sentence of Section
2.04(a), or (B) that one or more of the applicable conditions specified in
Article IV is not then satisfied, then, subject to the terms and conditions
hereof, the Swing Line Lender will, not later than 3:00 p.m. on the borrowing
date specified in such Swing Line Loan Notice, make the amount of its Swing Line
Loan available to the Borrower at its office by crediting the account of the
Borrower on the books of the Swing Line Lender in immediately available funds.
(c) Refinancing of Swing Line Loans.
(i) The Swing Line Lender at any time in its sole and absolute
discretion may request, on behalf of the Borrower (which hereby
irrevocably authorizes the Swing Line Lender to so request on its behalf),
that each Lender make a Base Rate Loan in an amount equal to such Lender's
Applicable Percentage of the amount of Swing Line Loans then outstanding.
Such request shall be made in writing (which written request shall be
deemed to be a Loan Notice for purposes hereof) and in accordance with the
requirements of Section 2.02, without regard to the minimum and multiples
specified therein for the principal amount of Base Rate Loans, but subject
to the unutilized portion of the Aggregate Commitments and the conditions
set forth in Section 4.02. The Swing Line Lender shall furnish the
Borrower with a copy of the applicable Loan Notice promptly after
delivering such notice to the Administrative Agent. Each Lender shall make
an amount equal to its Applicable Percentage of the amount specified in
such Loan Notice available to the Administrative Agent in immediately
available funds for the account of the Swing Line Lender at the
Administrative Agent's Office not later than 1:00 p.m. on the day
specified in such Loan Notice, whereupon, subject to Section 2.04(c)(ii),
each Lender that so makes funds available shall be deemed to have made a
Base Rate Loan to the Borrower in such amount. The Administrative Agent
shall remit the funds so received to the Swing Line Lender.
(ii) If for any reason any Swing Line Loan cannot be refinanced by
such a Borrowing in accordance with Section 2.04(c)(i), the request for
Base Rate Loans submitted
35
by the Swing Line Lender as set forth herein shall be deemed to be a
request by the Swing Line Lender that each of the Lenders fund its risk
participation in the relevant Swing Line Loan and each Lender's payment to
the Administrative Agent for the account of the Swing Line Lender pursuant
to Section 2.04(c)(i) shall be deemed payment in respect of such
participation.
(iii) If any Lender fails to make available to the Administrative
Agent for the account of the Swing Line Lender any amount required to be
paid by such Lender pursuant to the foregoing provisions of this Section
2.04(c) by the time specified in Section 2.04(c)(i), the Swing Line Lender
shall be entitled to recover from such Lender (acting through the
Administrative Agent), on demand, such amount with interest thereon for
the period from the date such payment is required to the date on which
such payment is immediately available to the Swing Line Lender at a rate
per annum equal to the greater of the Federal Funds Rate and a rate
determined by the Swing Line Lender in accordance with banking industry
rules on interbank compensation. A certificate of the Swing Line Lender
submitted to any Lender (through the Administrative Agent) with respect to
any amounts owing under this clause (iii) shall be conclusive absent
manifest error.
(iv) Each Lender's obligation to make Loans or to purchase and fund
risk participations in Swing Line Loans pursuant to this Section 2.04(c)
shall be absolute and unconditional and shall not be affected by any
circumstance, including (A) any setoff, counterclaim, recoupment, defense
or other right which such Lender may have against the Swing Line Lender,
the Borrower or any other Person for any reason whatsoever, (B) the
occurrence or continuance of a Default, or (C) any other occurrence, event
or condition, whether or not similar to any of the foregoing; provided,
however, that each Lender's obligation to make Loans pursuant to this
Section 2.04(c) is subject to the conditions set forth in Section 4.02
(other than delivery by the Borrower of a Loan Notice). No such funding of
risk participations shall relieve or otherwise impair the obligation of
the Borrower to repay Swing Line Loans, together with interest as provided
herein.
(d) Repayment of Participations.
(i) At any time after any Lender has purchased and funded a risk
participation in a Swing Line Loan, if the Swing Line Lender receives any
payment on account of such Swing Line Loan, the Swing Line Lender will
distribute to such Lender its Applicable Percentage of such payment
(appropriately adjusted, in the case of interest payments, to reflect the
period of time during which such Lender's risk participation was funded)
in the same funds as those received by the Swing Line Lender.
(ii) If any payment received by the Swing Line Lender in respect of
principal or interest on any Swing Line Loan is required to be returned by
the Swing Line Lender under any of the circumstances described in Section
10.05 (including pursuant to any settlement entered into by the Swing Line
Lender in its discretion), each Lender shall pay to the Swing Line Lender
its Applicable Percentage thereof on demand of the Administrative Agent,
plus interest thereon from the date of such demand to the date such amount
is returned, at a rate per annum equal to the Federal Funds Rate. The
Administrative Agent will make such demand upon the request of the Swing
Line Lender. The obligations of the Lenders under
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this clause shall survive the payment in full of the Obligations and the
termination of this Agreement.
(e) Interest for Account of Swing Line Lender. The Swing Line Lender
shall be responsible for invoicing the Borrower for interest on the Swing Line
Loans. Until each Lender funds its Base Rate Loan or risk participation pursuant
to this Section 2.04 to refinance such Lender's Applicable Percentage of any
Swing Line Loan, interest in respect of such Applicable Percentage shall be
solely for the account of the Swing Line Lender.
(f) Payments Directly to Swing Line Lender. The Borrower shall make all
payments of principal and interest in respect of the Swing Line Loans directly
to the Swing Line Lender.
2.05 PREPAYMENTS.
(a) The Borrower may, upon notice to the Administrative Agent, at any
time or from time to time voluntarily prepay Loans in whole or in part without
premium or penalty; provided that (i) such notice must be received by the
Administrative Agent not later than 11:00 a.m. (A) three Business Days prior to
any date of prepayment of Eurodollar Rate Loans and (B) on the date of
prepayment of Base Rate Loans; (ii) any prepayment of Eurodollar Rate Loans
shall be in a principal amount of $1 million or a whole multiple of $500,000 in
excess thereof; and (iii) any prepayment of Base Rate Loans shall be in a
principal amount of $500,000 or a whole multiple of $100,000 in excess thereof
or, in each case, if less, the entire principal amount thereof then outstanding.
Each such notice shall specify the date and amount of such prepayment and the
Type(s) of Loans to be prepaid. The Administrative Agent will promptly notify
each Lender of its receipt of each such notice, and of the amount of such
Lender's Applicable Percentage of such prepayment. If such notice is given by
the Borrower, the Borrower shall irrevocably make such prepayment and the
payment amount specified in such notice shall be due and payable on the date
specified therein. Any prepayment of a Eurodollar Rate Loan shall be accompanied
by all accrued interest on the amount prepaid, together with any additional
amounts required pursuant to Section 3.05. Each such prepayment shall be applied
to the Loans of the Lenders in accordance with their respective Applicable
Percentages.
(b) The Borrower may, upon notice to the Swing Line Lender (with a copy
to the Administrative Agent), at any time or from time to time, voluntarily
prepay Swing Line Loans in whole or in part without premium or penalty; provided
that (i) such notice must be received by the Swing Line Lender and the
Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and
(ii) any such prepayment shall be in a minimum principal amount of $100,000.
Each such notice shall specify the date and amount of such prepayment. If such
notice is given by the Borrower, the Borrower shall make such prepayment and the
payment amount specified in such notice shall be due and payable on the date
specified therein.
(c) If the Administrative Agent notifies the Borrower at any time that
the Total Outstandings at any such time exceed an amount equal to 100% of the
Aggregate Commitments then in effect, then within two Business Days after
receipt of such notice, the Borrower shall prepay Loans and/or Cash
Collateralize the L/C Obligations in an aggregate amount sufficient to reduce
such Outstanding Amount as of such date of payment to an amount not to exceed
100% of the Aggregate Commitments then in effect; provided, however, that
subject to the provisions of Section
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2.03(g)(ii), the Borrower shall not be required to Cash Collateralize the L/C
Obligations pursuant to this Section 2.05(c) unless after the prepayment in full
of the Loans the Total Outstandings exceed the Aggregate Commitments then in
effect.
2.06 TERMINATION OR REDUCTION OF COMMITMENTS. The Borrower may, upon
notice to the Administrative Agent, terminate the Aggregate Commitments, or from
time to time permanently reduce the Aggregate Commitments; provided that (i) any
such notice shall be received by the Administrative Agent not later than 11:00
a.m. five Business Days prior to the date of termination or reduction, (ii) any
such partial reduction shall be in an aggregate amount of $10 million or any
whole multiple of $1 million in excess thereof, (iii) the Borrower shall not
terminate or reduce the Aggregate Commitments if, after giving effect thereto
and to any concurrent prepayments hereunder, the Total Outstandings would exceed
the Aggregate Commitments, and (iv) if, after giving effect to any reduction of
the Aggregate Commitments, the Letter of Credit Sublimit or the Swing Line
Sublimit exceeds the amount of the Aggregate Commitments, such Sublimit shall be
automatically reduced by the amount of any such excess. The Administrative Agent
will promptly notify the Lenders of any such notice of termination or reduction
of the Aggregate Commitments. Any reduction of the Aggregate Commitments shall
be applied to the Commitment of each Lender according to its Applicable
Percentage. All fees under the Loan Documents accrued until the effective date
of any termination or reduction of the Aggregate Commitments shall be paid on
the effective date of such termination or reduction.
2.07 REPAYMENT OF LOANS.
(a) The Borrower shall repay to the Lenders on the Maturity Date the
Outstanding Amount of Loans on such date.
(b) The Borrower shall repay each Swing Line Loan on the earlier to
occur of (i) the date ten Business Days after such Loan is made, if requested by
the Administrative Agent, and (ii) the Maturity Date.
2.08 INTEREST.
(a) Subject to the provisions of subsection (b) below, (i) each
Eurodollar Rate Loan shall bear interest on the outstanding principal amount
thereof for each Interest Period at a rate per annum equal to the Eurodollar
Rate for such Interest Period plus the Applicable Rate; (ii) each Base Rate Loan
shall bear interest on the outstanding principal amount thereof from the
applicable borrowing date at a rate per annum equal to the Base Rate plus the
Applicable Rate; and (iii) each Swing Line Loan shall bear interest on the
outstanding principal amount thereof from the applicable borrowing date at a
rate per annum equal to the Base Rate plus the Applicable Rate.
(b) (i) If any amount of principal of any Loan is not paid when due
(without regard to any applicable grace periods), whether at stated maturity, by
acceleration or otherwise, such amount shall thereafter bear interest at the
Default Rate to the fullest extent permitted by applicable Laws.
(ii) If any amount (other than principal of any Loan) payable by the
Borrower under any Loan Document is not paid when due (without regard to
any applicable grace
38
periods), then upon the request of the Required Lenders, such amount
thereafter shall bear interest at the Default Rate to the fullest extent
permitted by applicable Laws.
(iii) Upon the request of the Required Lenders, while any Event of
Default exists, the Borrower shall pay interest on the principal amount of
all outstanding Obligations hereunder at the Default Rate to the fullest
extent permitted by applicable Laws.
(iv) Accrued and unpaid interest on past due amounts (including
interest on past due interest) shall be due and payable upon demand.
(c) Interest on each Loan shall be due and payable in arrears on each
Interest Payment Date applicable thereto and at such other times as may be
specified herein. Interest hereunder shall be due and payable in accordance with
the terms hereof before and after judgment, and before and after the
commencement of any proceeding under any Debtor Relief Law.
2.09 FEES. In addition to certain fees described in subsections (i) and
(j) of Section 2.03:
(a) Commitment Fee. The Borrower shall pay to the Administrative Agent
for the account of each Lender in accordance with its Applicable Percentage, a
commitment fee equal to the Applicable Rate times the actual daily amount by
which the Aggregate Commitments exceed the sum of (i) the Outstanding Amount of
Loans and (ii) the Outstanding Amount of L/C Obligations; provided that for the
purposes of calculating the Commitment Fee, Swing Line Loans will not be deemed
to be utilized. The commitment fee shall accrue at all times during the
Availability Period, including at any time during which one or more of the
conditions in Article IV is not met, and shall be due and payable quarterly in
arrears on the last Business Day of each March, June, September and December,
commencing with the first such date to occur after the Closing Date, and on the
Maturity Date. The commitment fee shall be calculated quarterly in arrears, and
if there is any change in the Applicable Rate during any quarter, the actual
daily amount shall be computed and multiplied by the Applicable Rate separately
for each period during such quarter that such Applicable Rate was in effect.
Notwithstanding anything to the contrary herein, no commitment fee shall accrue
on any of the Commitments of a Defaulting Lender so long as such Lender shall be
a Defaulting Lender
(b) Other Fees. (i) The Borrower shall pay to the Syndication Agent,
Joint Lead Arrangers and the Administrative Agent for their own respective
accounts fees in the amounts and at the times specified in the Fee Letters. Such
fees shall be fully earned when paid and shall not be refundable for any reason
whatsoever.
(ii) The Borrower shall pay to the Lenders such fees in connection
with the Loan Documents as shall have been separately agreed upon in
writing in the amounts and at the times so specified. Such fees shall be
fully earned when paid and shall not be refundable for any reason
whatsoever.
2.10 COMPUTATION OF INTEREST AND FEES. All computations of interest for
Base Rate Loans when the Base Rate is determined by Bank of America's "prime
rate" shall be made on the basis of a year of 365 or 366 days, as the case may
be, and actual days elapsed. All other computations of fees and interest shall
be made on the basis of a 360-day year and actual days elapsed (which results in
more fees or interest, as applicable, being paid than if computed on the
39
basis of a 365-day year). Interest shall accrue on each Loan for the day on
which the Loan is made, and shall not accrue on a Loan, or any portion thereof,
for the day on which the Loan or such portion is paid; provided that any Loan
that is repaid on the same day on which it is made shall, subject to Section
2.12(a), bear interest for one day. Each determination by the Administrative
Agent of an interest rate or fee hereunder shall be conclusive and binding for
all purposes, absent manifest error.
2.11 EVIDENCE OF DEBT.
(a) The Credit Extensions made by each Lender shall be evidenced by one
or more accounts or records maintained by such Lender and by the Administrative
Agent in the ordinary course of business. The accounts or records maintained by
the Administrative Agent and each Lender shall be conclusive absent manifest
error of the amount of the Credit Extensions made by the Lenders to the Borrower
and the interest and payments thereon. Any failure to so record or any error in
doing so shall not, however, limit or otherwise affect the obligation of the
Borrower hereunder to pay any amount owing with respect to the Obligations. In
the event of any conflict between the accounts and records maintained by any
Lender and the accounts and records of the Administrative Agent in respect of
such matters, the accounts and records of the Administrative Agent shall control
in the absence of manifest error. Upon the request of any Lender made through
the Administrative Agent, the Borrower shall execute and deliver to such Lender
(through the Administrative Agent) a Note, which shall evidence such Lender's
Loans in addition to such accounts or records. Each Lender may attach schedules
to its Note and endorse thereon the date, Type (if applicable), amount and
maturity of its Loans and payments with respect thereto.
(b) In addition to the accounts and records referred to in subsection
(a), each Lender and the Administrative Agent shall maintain in accordance with
its usual practice accounts or records evidencing the purchases and sales by
such Lender of participations in Letters of Credit and Swing Line Loans. In the
event of any conflict between the accounts and records maintained by the
Administrative Agent and the accounts and records of any Lender in respect of
such matters, the accounts and records of the Administrative Agent shall control
in the absence of manifest error.
(c) Entries made in good faith by the Administrative Agent in the
Register pursuant to subsections (a) and (b) above, and by each Lender in its
accounts pursuant to subsections (a) and (b) above, shall be prima facie
evidence of the amount of principal and interest due and payable or to become
due and payable from the Borrower to, in the case of the Register each Lender
and, in the case of such account or accounts, such Lender, under this Agreement
and the other Loan Documents, absent manifest error; provided that the failure
of the Administrative Agent or such Lender to make any entry, or any finding
that an entry is incorrect, in the Register or such account or accounts shall
not limit or otherwise affect the obligations of the Borrower under this
Agreement and the other Loan Documents.
2.12 PAYMENTS GENERALLY; ADMINISTRATIVE AGENT'S CLAWBACK.
(a) General. All payments to be made by the Borrower shall be made
without condition or deduction for any counterclaim, defense, recoupment or
setoff. Except as otherwise expressly provided herein, all payments by the
Borrower hereunder shall be made to the Administrative Agent, for the account of
the respective Lenders to which such payment is owed, at the Administrative
Agent's Office in Dollars and in immediately available funds not later than 2:00
p.m. on the date
40
specified herein. The Administrative Agent will promptly distribute to each
Lender its Applicable Percentage (or other applicable share as provided herein)
of such payment in like funds as received by wire transfer to such Lender's
Lending Office. All payments received by the Administrative Agent after 2:00
p.m. shall be deemed received on the next succeeding Business Day and any
applicable interest or fee shall continue to accrue. If any payment to be made
by the Borrower shall become due on a day other than a Business Day, payment
shall be made on the next following Business Day, and such extension of time
shall be reflected in computing interest or fees, as the case may be; provided,
however, that, if such extension would cause payment of interest on or principal
of Eurodollar Rate Loans to be made in the next succeeding calendar month, such
payment shall be made on the immediately preceding Business Day.
(b) (i) Funding by Lenders; Presumption by Administrative Agent. Unless
the Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing of Eurodollar Rate Loans (or, in the case of any
Borrowing of Base Rate Loans, prior to 12:00 noon on the date of such Borrowing)
that such Lender will not make available to the Administrative Agent such
Lender's share of such Borrowing, the Administrative Agent may assume that such
Lender has made such share available on such date in accordance with Section
2.02 (or, in the case of a Borrowing of Base Rate Loans, that such Lender has
made such share available in accordance with and at the time required by Section
2.02) and may, in reliance upon such assumption, make available to the Borrower
a corresponding amount. In such event, if a Lender has not in fact made its
share of the applicable Borrowing available to the Administrative Agent, then
the applicable Lender and the Borrower severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount in
immediately available funds with interest thereon, for each day from and
including the date such amount is made available to the Borrower to but
excluding the date of payment to the Administrative Agent, at (A) in the case of
a payment to be made by such Lender, the greater of the Federal Funds Rate and a
rate determined by the Administrative Agent in accordance with banking industry
rules on interbank compensation and (B) in the case of a payment to be made by
the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower
and such Lender shall pay such interest to the Administrative Agent for the same
or an overlapping period, the Administrative Agent shall promptly remit to the
Borrower the amount of such interest paid by the Borrower for such period. If
such Lender pays its share of the applicable Borrowing to the Administrative
Agent, then the amount so paid shall constitute such Lender's Loan included in
such Borrowing. Any payment by the Borrower shall be without prejudice to any
claim the Borrower may have against a Lender that shall have failed to make such
payment to the Administrative Agent.
(ii) Payments by Borrower; Presumptions by Administrative Agent.
Unless the Administrative Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders or the L/C Issuer
hereunder that the Borrower will not make such payment, the Administrative
Agent may assume that the Borrower has made such payment on such date in
accordance herewith and may, in reliance upon such assumption, distribute
to the Lenders or the L/C Issuer, as the case may be, the amount due. In
such event, if the Borrower has not in fact made such payment, then each
of the Lenders or the L/C Issuer, as the case may be, severally agrees to
repay to the Administrative Agent forthwith on demand the amount so
distributed to such Lender or the L/C Issuer, in immediately available
funds with interest thereon, for each day from and including the date such
amount is distributed to it to but excluding the date of
41
payment to the Administrative Agent, at the greater of the Federal Funds
Rate and a rate determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation.
A notice of the Administrative Agent to any Lender or the Borrower with
respect to any amount owing under this subsection (b) shall be conclusive,
absent manifest error.
(c) Failure to satisfy Conditions Precedent. If any Lender makes
available to the Administrative Agent funds for any Loan to be made by such
Lender as provided in the foregoing provisions of this Article II, and such
funds are not made available to the Borrower by the Administrative Agent because
the conditions to the applicable Credit Extension set forth in Article IV are
not satisfied or waived in accordance with the terms hereof, the Administrative
Agent shall return such funds (in like funds as received from such Lender) to
such Lender, without interest.
(d) Obligations of Lenders Several. The obligations of the Lenders
hereunder to make Loans, to fund participations in Letters of Credit and Swing
Line Loans and the obligations of the Lenders to make payments pursuant to
Section 10.04(c) are several and not joint. The failure of any Lender to make
any Loan, to fund any such participation or to make any payment under Section
10.04(c) on any date required hereunder shall not relieve any other Lender of
its corresponding obligation to do so on such date, and no Lender shall be
responsible for the failure of any other Lender to so make its Loan, to purchase
its participation or to make its payment under Section 10.04(c).
(e) Funding Source. Nothing herein shall be deemed to obligate any
Lender to obtain the funds for any Loan in any particular place or manner or to
constitute a representation by any Lender that it has obtained or will obtain
the funds for any Loan in any particular place or manner.
2.13 SHARING OF PAYMENTS BY LENDERS. If any Lender shall, by exercising
any right of setoff or counterclaim or otherwise, obtain payment in respect of
any principal of or interest on any of the Loans made by it, or the
participations in L/C Obligations or in Swing Line Loans held by it resulting in
such Lender's receiving payment of a proportion of the aggregate amount of such
Loans or participations and accrued interest thereon greater than its pro rata
share thereof as provided herein, then the Lender receiving such greater
proportion shall (a) notify the Administrative Agent of such fact, and (b)
purchase (for cash at face value) participations in the Loans and
subparticipations in L/C Obligations and Swing Line Loans of the other Lenders,
or make such other adjustments as shall be equitable, so that the benefit of all
such payments shall be shared by the Lenders ratably in accordance with the
aggregate amount of principal of and accrued interest on their respective Loans
and other amounts owing them, provided that:
(i) if any such participations or subparticipations are
purchased and all or any portion of the payment giving rise thereto is
recovered, such participations or subparticipations shall be rescinded and
the purchase price restored to the extent of such recovery, without
interest; and
(ii) the provisions of this Section shall not be construed to apply
to (x) any payment made by the Borrower pursuant to and in accordance with
the express terms of this Agreement or (y) any payment obtained by a
Lender as consideration for the assignment of
42
or sale of a participation in any of its Loans or subparticipations in L/C
Obligations or Swing Line Loans to any assignee or participant, other than
to the Borrower or any Subsidiary thereof (as to which the provisions of
this Section shall apply).
The Borrower consents to the foregoing and agrees, to the extent it may
effectively do so under applicable Law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against the
Borrower rights of setoff and counterclaim with respect to such participation as
fully as if such Lender were a direct creditor of the Borrower in the amount of
such participation.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 TAXES.
(a) Payments Free of Taxes. Any and all payments by or on account of
any obligation of the Borrower hereunder or under any other Loan Document shall
be made free and clear of and without reduction or withholding for any
Indemnified Taxes or Other Taxes, provided that if the Borrower shall be
required by applicable Law to deduct any Indemnified Taxes (including any Other
Taxes) from such payments, then (i) the sum payable shall be increased as
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section) the Administrative
Agent, Lender or L/C Issuer, 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
shall make such deductions and (iii) the Borrower shall timely pay the full
amount deducted to the relevant Governmental Authority in accordance with
applicable Law.
(b) Payment of Other Taxes by the Borrower. Without limiting the
provisions of subsection (a) above, the Borrower shall timely pay any Other
Taxes to the relevant Governmental Authority in accordance with applicable Law.
(c) Indemnification by the Borrower. The Borrower shall indemnify the
Administrative Agent, each Lender and the L/C Issuer, within 10 days after
demand therefor, for the full amount of any Indemnified Taxes or Other Taxes
(including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) paid by the Administrative
Agent, such Lender or the L/C Issuer, as the case may be, and any penalties,
interest and reasonable expenses arising therefrom or with respect thereto,
whether or not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. A certificate as to
the amount of such payment or liability delivered to the Borrower by a Lender or
the L/C Issuer (with a copy to the Administrative Agent), or by the
Administrative Agent on its own behalf or on behalf of a Lender or the L/C
Issuer, shall be conclusive absent manifest error.
(d) Evidence of Payments. As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by the Borrower to a Governmental Authority,
the Borrower shall deliver to the Administrative Agent the original or a
certified copy of a receipt issued by such Governmental Authority evidencing
such payment, a copy of the return reporting such payment or other evidence of
such payment reasonably satisfactory to the Administrative Agent.
43
(e) Status of Lenders. Any Lender or L/C Issuer that is entitled to an
exemption from or reduction of withholding tax under the Law of the jurisdiction
in which the Borrower is resident for tax purposes, or any treaty to which such
jurisdiction is a party, with respect to payments hereunder or under any other
Loan Document shall deliver to the Borrower (with a copy to the Administrative
Agent), at the time or times prescribed by applicable Law or reasonably
requested by the Borrower or the Administrative Agent, such properly completed
and executed documentation prescribed by applicable Law as will permit such
payments to be made without withholding or at a reduced rate of withholding. In
addition, any Lender or L/C Issuer, if requested by the Borrower or the
Administrative Agent, shall deliver such other documentation prescribed by
applicable Law or reasonably requested by the Borrower or the Administrative
Agent as will enable the Borrower or the Administrative Agent to determine
whether or not such Lender or L/C Issuer is subject to backup withholding or
information reporting requirements.
Without limiting the generality of the foregoing, in the event that the
Borrower is a resident for tax purposes in the United States, any Foreign Lender
shall deliver to the Borrower and the Administrative Agent (in such number of
copies as shall be requested by the recipient) on or prior to the date on which
such Foreign Lender becomes a Lender or L/C Issuer under this Agreement, on or
prior to the date on which any such form or certification expires or becomes
obsolete and after the occurrence of any event requiring a change in the most
recent form or certification previously delivered by it (and from time to time
thereafter upon the request of the Borrower or the Administrative Agent, but
only if such Foreign Lender is legally entitled to do so), whichever of the
following is applicable:
(i) duly completed copies of Internal Revenue Service Form W-8BEN
claiming eligibility for benefits of an income tax treaty to which the
United States is a party,
(ii) duly completed copies of Internal Revenue Service Form W-8ECI,
(iii) in the case of a Foreign Lender claiming the benefits of the
exemption for portfolio interest under section 881(c) of the Code, (x) a
certificate to the effect that such Foreign Lender is not (A) a "bank"
within the meaning of section 881(c)(3)(A) of the Code, (B) a "10 percent
shareholder" of the Borrower within the meaning of section 881(c)(3)(B) of
the Code, or (C) a "controlled foreign corporation" described in section
881(c)(3)(C) of the Code and (y) duly completed copies of Internal Revenue
Service Form W-8BEN, or
(iv) any other form prescribed by applicable Law as a basis for
claiming exemption from or a reduction in United States Federal
withholding tax duly completed together with such supplementary
documentation as may be prescribed by applicable Law to permit the
Borrower to determine the withholding or deduction required to be made.
Unless the Borrower and the Administrative Agent have received forms or
other documents satisfactory to them indicating that payments under any Loan
Document to or for a Foreign Lender are not subject to United States withholding
tax or are subject to such tax at a reduced rate by an applicable tax treaty,
the Loan Parties and the Administrative Agent shall withhold amounts required to
be withheld by applicable Law from such payments at the applicable statutory
rate.
44
Any non-Foreign Lender shall deliver to the Borrower and the
Administrative Agent (in such number of copies as shall be requested by the
recipient) on or prior to the date on which such non-Foreign Lender becomes a
Lender or L/C Issuer under this Agreement, on or prior to the date on which any
such form or certification expires or becomes obsolete and after the occurrence
of any event requiring a change in the most recent form or certification
previously delivered by it (and from time to time thereafter upon the request of
the Borrower or the Administrative Agent, but only if such non-Foreign Lender is
legally entitled to do so), duly completed copies of Internal Revenue Service
Form W-9 (or any successor form) certifying that such non-Foreign Lender is
entitled to an exemption from U.S. backup withholding tax.
Each Lender having sold a participation in any of its Obligations shall
collect from such Participant the documents described in this subsection (e) and
provide them to the Administrative Agent.
(f) Treatment of Certain Refunds. If the Administrative Agent, any
Lender or the L/C Issuer determines, in its sole discretion, that it has
received a refund of any Taxes or Other Taxes as to which it has been
indemnified by the Borrower or with respect to which the Borrower has paid
additional amounts pursuant to this Section, it shall pay to the Borrower an
amount equal to such refund (but only to the extent of indemnity payments made,
or additional amounts paid, by the Borrower under this Section with respect to
the Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket
expenses of the Administrative Agent, such Lender or the L/C Issuer, as the case
may be, and without interest (other than any interest paid by the relevant
Governmental Authority with respect to such refund), provided that the Borrower,
upon the request of the Administrative Agent, such Lender or the L/C Issuer,
agrees to repay the amount paid over to the Borrower (plus any penalties,
interest or other charges imposed by the relevant Governmental Authority) to the
Administrative Agent, such Lender or the L/C Issuer in the event the
Administrative Agent, such Lender or the L/C Issuer is required to repay such
refund to such Governmental Authority. This subsection shall not be construed to
require the Administrative Agent, any Lender or the L/C Issuer to make available
its tax returns (or any other information relating to its taxes that it deems
confidential) to the Borrower or any other Person.
3.02 ILLEGALITY. If any Lender determines that any Law has made it
unlawful, or that any Governmental Authority has asserted that it is unlawful,
for any Lender or its applicable Lending Office to make, maintain or fund
Eurodollar Rate Loans, or to determine or charge interest rates based upon the
Eurodollar Rate, or any Governmental Authority has imposed material restrictions
on the authority of such Lender to purchase or sell, or to take deposits of,
Dollars in the London interbank market, then, on notice thereof by such Lender
to the Borrower through the Administrative Agent, any obligation of such Lender
to make or continue Eurodollar Rate Loans or to convert Base Rate Loans to
Eurodollar Rate Loans shall be suspended until such Lender notifies the
Administrative Agent and the Borrower that the circumstances giving rise to such
determination no longer exist. Upon receipt of such notice, the Borrower shall,
upon demand from such Lender (with a copy to the Administrative Agent), prepay
or, if applicable, convert all Eurodollar Rate Loans of such Lender to Base Rate
Loans, either on the last day of the Interest Period therefor, if such Lender
may lawfully continue to maintain such Eurodollar Rate Loans to such day, or
immediately, if such Lender may not lawfully continue to maintain such
Eurodollar Rate Loans. Upon any such prepayment or conversion, the Borrower
shall also pay accrued interest on the amount so prepaid or converted. Each
Lender agrees to designate a different Lending Office if such designation will
avoid
45
the need for such notice and will not, in the good faith judgment of such
Lender, otherwise be materially disadvantageous to such Lender.
3.03 INABILITY TO DETERMINE RATES. If the Required Lenders determine
that for any reason in connection with any request for a Eurodollar Rate Loan or
a conversion to or continuation thereof that (a) Dollar deposits are not being
offered to banks in the London interbank eurodollar market for the applicable
amount and Interest Period of such Eurodollar Rate Loan, (b) adequate and
reasonable means do not exist for determining the Eurodollar Rate for any
requested Interest Period with respect to a proposed Eurodollar Rate Loan, or
(c) that the Eurodollar Rate for any requested Interest Period with respect to a
proposed Eurodollar Rate Loan does not adequately and fairly reflect the cost to
such Lenders of funding such Loan, the Administrative Agent will promptly so
notify the Borrower and each Lender. Thereafter, the obligation of the Lenders
to make or maintain Eurodollar Rate Loans shall be suspended until the
Administrative Agent (upon the instruction of the Required Lenders) revokes such
notice. Upon receipt of such notice, the Borrower may revoke any pending request
for a Borrowing of, conversion to or continuation of Eurodollar Rate Loans or,
failing that, will be deemed to have converted such request into a request for a
Borrowing of Base Rate Loans in the amount specified therein.
3.04 INCREASED COSTS; RESERVES ON EURODOLLAR RATE LOANS.
(a) Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit,
compulsory loan, insurance charge or similar requirement against assets
of, deposits with or for the account of, or credit extended or
participated in by, any Lender (except any reserve requirement)
contemplated by Section 3.04(e) or the L/C Issuer;
(ii) subject any Lender or the L/C Issuer to any tax of any kind
whatsoever with respect to this Agreement, any Letter of Credit, any
participation in a Letter of Credit or any Eurodollar Rate Loan made by
it, or change the basis of taxation of payments to such Lender or the L/C
Issuer in respect thereof (except, in each case, for Indemnified Taxes or
Other Taxes covered by Section 3.01 and the imposition of, or any change
in the rate of, any Excluded Tax payable by such Lender or the L/C
Issuer); or
(iii) impose on any Lender or the L/C Issuer or the London interbank
market any other condition, cost or expense affecting this Agreement or
Eurodollar Rate Loans made by such Lender or any Letter of Credit or
participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Rate Loan (or of maintaining its
obligation to make any such Loan), or to increase the cost to such Lender or the
L/C Issuer of participating in, issuing or maintaining any Letter of Credit (or
of maintaining its obligation to participate in or to issue any Letter of
Credit), or to reduce the amount of any sum received or receivable by such
Lender or the L/C Issuer hereunder (whether of principal, interest or any other
amount) then, upon request of such Lender or the L/C Issuer, the Borrower will
pay to such Lender or the L/C Issuer, as the case may be, such additional amount
or amounts as will compensate such Lender or the L/C Issuer, as the case may be,
for such additional costs incurred or reduction suffered.
46
(b) Capital Requirements. If any Lender or the L/C Issuer determines
that any Change in Law affecting such Lender or the L/C Issuer or any Lending
Office of such Lender or such Lender's or the L/C Issuer's holding company, if
any, regarding capital requirements has or would have the effect of reducing the
rate of return on such Lender's or the L/C Issuer's capital or on the capital of
such Lender's or the L/C Issuer's holding company, if any, as a consequence of
this Agreement, the Commitments of such Lender or the Loans made by, or
participations in Letters of Credit held by, such Lender, or the Letters of
Credit issued by the L/C Issuer, to a level below that which such Lender or the
L/C Issuer or such Lender's or the L/C Issuer's holding company could have
achieved but for such Change in Law (taking into consideration such Lender's or
the L/C Issuer's policies and the policies of such Lender's or the L/C Issuer's
holding company with respect to capital adequacy), then from time to time the
Borrower will pay to such Lender or the L/C Issuer, as the case may be, such
additional amount or amounts as will compensate such Lender or the L/C Issuer or
such Lender's or the L/C Issuer's holding company for any such reduction
suffered.
(c) Certificates for Reimbursement. A certificate of a Lender or the
L/C Issuer setting forth in reasonable detail the amount or amounts necessary to
compensate such Lender or the L/C Issuer or its holding company, as the case may
be, as specified in subsection (a) or (b) of this Section and delivered to the
Borrower shall be conclusive absent manifest error. The Borrower shall pay such
Lender or the L/C Issuer, as the case may be, the amount shown as due on any
such certificate within 10 days after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any Lender or
the L/C Issuer to demand compensation pursuant to the foregoing provisions of
this Section shall not constitute a waiver of such Lender's or the L/C Issuer's
right to demand such compensation, provided that the Borrower shall not be
required to compensate a Lender or the L/C Issuer pursuant to the foregoing
provisions of this Section for any increased costs incurred or reductions
suffered more than nine months prior to the date that such Lender or the L/C
Issuer, as the case may be, notifies the Borrower of the Change in Law giving
rise to such increased costs or reductions and of such Lender's or the L/C
Issuer's intention to claim compensation therefor (except that, if the Change in
Law giving rise to such increased costs or reductions is retroactive, then the
nine-month period referred to above shall be extended to include the period of
retroactive effect thereof).
(e) Additional Reserve Requirements. The Borrower shall pay to each
Lender, (i) as long as such Lender shall be required to maintain reserves with
respect to liabilities or assets consisting of or including Eurocurrency funds
or deposits (currently known as "Eurocurrency liabilities"), additional interest
on the unpaid principal amount of each Eurodollar Rate Loan equal to the actual
costs of such reserves allocated to such Loan by such Lender (as determined by
such Lender in good faith, which determination shall be conclusive absent
manifest error), which shall be due and payable on each date on which interest
is payable on such Loan, provided the Borrower shall have received at least 10
days' prior notice (with a copy to the Administrative Agent) of such additional
interest or costs from such Lender conclusive, and (ii) as long as such Lender
shall be required to comply with any reserve ratio requirement or analogous
requirement of any other central banking or financial regulatory authority
imposed in respect of the maintenance of the Commitments or the funding of the
Eurodollar Rate Loans, such additional costs (expressed as a percentage per
annum and rounded upwards, if necessary, to the nearest five decimal places)
equal to the actual costs allocated to such Commitment or Loan by such Lender
(as determined by such Lender in good faith which determination shall be
conclusive). If a Lender fails to give notice 10 days prior to the
47
relevant Interest Payment Date, such additional interest or costs shall be due
and payable 10 days from receipt of such notice.
3.05 FUNDING LOSSES. 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 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);
(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; or
(c) any assignment of a Eurodollar Rate Loan on a day other than the
last day of the Interest Period therefor as a result of a request by the
Borrower pursuant to Section 10.13;
including 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 3.05, each Lender shall be deemed to have funded each Eurodollar
Rate Loan made by it at the Eurodollar 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 Eurodollar Rate Loan was
in fact so funded.
3.06 MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS.
(a) Designation of a Different Lending Office. If any Lender requests
compensation under Section 3.04, or the Borrower is required to pay any
additional amount to any Lender or any Governmental Authority for the account of
any Lender pursuant to Section 3.01, or if any Lender gives a notice pursuant to
Section 3.02, then such Lender shall use reasonable efforts to designate a
different Lending Office for funding or booking its Loans hereunder or to assign
its rights and obligations hereunder to another of its offices, branches or
affiliates, if, in the judgment of such Lender, such designation or assignment
(i) would eliminate or reduce amounts payable pursuant to Section 3.01 or 3.04,
as the case may be, in the future, or eliminate the need for the notice pursuant
to Section 3.02, as applicable, and (ii) in each case, would not subject such
Lender to any unreimbursed cost or expense and would not otherwise be
disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable
costs and expenses incurred by any Lender in connection with any such
designation or assignment.
(b) Replacement of Lenders. If any Lender requests compensation under
Section 3.04, or if the Borrower is required to pay any additional amount to any
Lender or any Governmental Authority for the account of any Lender pursuant to
Section 3.01, or any Lender submits a notice pursuant to Section 3.02, the
Borrower may replace such Lender in accordance with Section 10.13.
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3.07 SURVIVAL. All of the Borrower's obligations under this Article III
shall survive termination of the Aggregate Commitments and repayment of all
other Obligations hereunder.
ARTICLE IV
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 CONDITIONS OF INITIAL CREDIT EXTENSION. The obligation of the L/C
Issuer and each Lender to make its initial Credit Extension hereunder is subject
to satisfaction of the following conditions precedent:
(a) The Administrative Agent's receipt of the following, each of which
shall be originals or telecopies (followed promptly by originals) unless
otherwise specified, each properly executed by an authorized officer of the
signing Loan Party, each dated the Closing Date (or, in the case of certificates
of governmental officials, a recent date before the Closing Date) and each in
form and substance reasonably satisfactory to the Administrative Agent and each
of the Lenders:
(i) executed counterparts of this Agreement, each Collateral
Document and the Subsidiary Guaranty, sufficient in number for
distribution to the Administrative Agent, each Lender and the Borrower;
(ii) an original Note executed by the Borrower in favor of each
Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency
certificates and/or other certificates of authorized officers of each Loan
Party as the Administrative Agent may reasonably require evidencing the
identity, authority and capacity of each authorized officer thereof
authorized to act as an authorized officer on behalf of such Loan Party in
connection with this Agreement and the other Loan Documents to which such
Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent
may reasonably require to evidence that each Loan Party is duly organized
or formed, is validly existing, and in good standing and qualified to
engage in business in each jurisdiction where its ownership, lease or
operation of properties or the conduct of its business requires such
qualification, except to the extent that failure to be qualified in any
jurisdiction other than its jurisdiction of organization could not
reasonably be expected to have a Material Adverse Effect, including,
certified copies of each Loan Party's Organization Documents, certificates
of good standing and/or qualification to engage in business and tax
clearance certificates (if any);
(v) original certificates, if any, evidencing all of the issued and
outstanding shares of capital stock or other Equity Interest required to
be pledged pursuant to the terms of the Pledge Agreement, which
certificates shall be accompanied by undated stock powers duly executed in
blank by each relevant pledgor;
(vi) evidence that all action that the Administrative Agent may deem
necessary or desirable in order to perfect and protect the first priority
liens and security interests created under the Collateral Documents has
been taken (including, without limitation, receipt of
49
UCC-3 termination statements and UCC financing statements delivered in
proper form for filing naming the Borrower and each other Loan Party (as
appropriate) as the debtor, and the Administrative Agent, as the secured
party, under all jurisdictions as may be necessary or, in the opinion of
the Administrative Agent, desirable to perfect the first priority security
interest of the Administrative Agent in the Collateral pursuant to the
Collateral Documents);
(vii) opinions of special and local counsel to the Loan Parties,
addressed to the Administrative Agent and each Lender, as to the matters
set forth in Exhibit H hereto and such other matters concerning the Loan
Parties and the Loan Documents as the Required Lenders may reasonably
request (including, without limitation, opinions regarding the
enforceability of the security interests created thereby);
(viii) a certificate of an authorized officer of each Loan Party
either (A) attaching copies of all consents, licenses and approvals of
Governmental Authorities and other Persons required in connection with the
execution, delivery and performance by such Loan Party and the validity
against such Loan Party of the Loan Documents to which it is a party, and,
required in connection with the Loan Documents and the transactions
contemplated thereby, and such consents, licenses and approvals shall be
in full force and effect, or (B) stating that no such consents, licenses
or approvals are so required;
(ix) copies of the financial statements referred to in Sections
5.05(a) and (b), and a certificate signed by a Responsible Officer of the
Borrower certifying (A) that the conditions specified in Sections 4.02(a)
and (b) have been satisfied, (B) that there has been no event or
circumstance since November 9, 2004 that has had or could be reasonably
expected to have, either individually or in the aggregate, a Material
Adverse Effect, and (C) a calculation of the Consolidated Leverage Ratio
as of the Closing Date giving Pro Forma effect to any Credit Extension
requested for such date and based on the Consolidated EBITDA for the four
consecutive fiscal quarters of the Borrower most recently ended at least
45 days prior to the Closing Date;
(x) evidence that all insurance required to be maintained pursuant
to the Loan Documents has been obtained and is in effect; and
(xi) such other assurances, certificates, documents, consents or
opinions as the Administrative Agent, the L/C Issuer, the Swing Line
Lender or the Required Lenders reasonably may require.
(b) Any fees and expenses required to be paid on the Closing Date shall
have been paid.
(c) The Borrower shall have paid all reasonable fees, charges and
disbursements of McGuireWoods LLP, counsel of the Administrative Agent, to the
extent invoiced prior to or on the Closing Date, plus such additional amounts of
reasonable fees, charges and disbursements of counsel as shall constitute its
reasonable estimate of fees, charges and disbursements of counsel incurred or to
be incurred by it through the closing proceedings (provided that such estimate
shall not thereafter preclude a final settling of accounts between the Borrower
and the Administrative Agent).
50
(d) There shall exist (i) no order, decree, judgment, ruling,
injunction, writ, temporary restraining order or other order of any nature
issued by any court or Governmental Authority or (ii) no action, suit,
proceeding, investigation, litigation, claim, dispute or proceeding, pending, or
to the knowledge of the Borrower threatened, at law or in equity, in arbitration
or before any Governmental Authority by or against any Loan Party or against any
of their respective properties or revenues, in each case, that (A) purports to
affect, pertain to or enjoin or restrain the execution, delivery and performance
of the Loan Documents or any transactions contemplated hereby or thereby, (B)
either, individually or in the aggregate, if determined adversely, could
reasonably be expected to have a Material Adverse Effect or (C) purports to
affect the legality, validity or enforceability of any Loan Document or the
consummation of the transactions contemplated hereby or thereby.
Without limiting the generality of the provisions of Section 9.04, for
purposes of determining compliance with the conditions specified in this Section
4.01, 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 proposed Closing Date specifying its
objection thereto.
4.02 CONDITIONS TO ALL CREDIT EXTENSIONS. The obligation of each Lender
to honor any Request for Credit Extension (other than a Loan Notice requesting
only a conversion of Loans to the other Type, or a continuation of Eurodollar
Rate Loans), is subject to the following conditions precedent:
(a) The representations and warranties of the Borrower contained in
Article V or any other Loan Document, or which are contained in any document
furnished at any time under or in connection herewith or therewith, shall be
true and correct in all material respects on and as of the date of such Credit
Extension, (i) except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they shall be true and
correct in all material respects as of such earlier date, (ii) except that for
purposes of this Section 4.02, the representations and warranties contained in
subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most
recent statements furnished pursuant to subsections (a) and (b), respectively,
of Section 6.01 and (iii) together with any additional items that will be
disclosed on any updated Schedules required to be supplemented under Section
6.02(b) on the next scheduled delivery date, as to which the Borrower has
notified the Administrative Agent in writing.
(b) No Default shall exist, or would result from such proposed Credit
Extension or from the application of the proceeds thereof.
(c) The Administrative Agent and, if applicable, the L/C Issuer or the
Swing Line Lender, shall have received a Request for Credit Extension, in
accordance with the requirements hereof.
Each Request for Credit Extension (other than a Loan Notice requesting
only a conversion of Loans to the other Type or a continuation of Eurodollar
Rate Loans), submitted by the Borrower shall be deemed to be a representation
and warranty that the conditions specified in Sections 4.02(a) and (b) have been
satisfied on and as of the date of the applicable Credit Extension.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative Agent and the
Lenders that:
5.01 EXISTENCE, QUALIFICATION AND POWER. Each Loan Party and each
Subsidiary thereof (a) is duly organized or formed, validly existing and in good
standing under the Laws of the jurisdiction of its incorporation or
organization, (b) has all requisite power and authority and all requisite
governmental licenses, authorizations, consents and approvals to (i) own or
lease its assets and carry on its business as presently conducted and (ii)
execute, deliver and perform its obligations under the Loan Documents to which
it is a party, and (c) is duly qualified and is licensed and in good standing
under the Laws of each jurisdiction where its ownership, lease or operation of
properties or the conduct of its business requires such qualification or
license; except (A) in each case referred to in clause (a) in respect of any
Subsidiary of the Borrower on or as of any date after the Closing Date (or in
the case of any Subsidiary which becomes a Loan Party after the Closing Date,
after the date on which such Subsidiary becomes a Loan Party under the Loan
Documents), and (B) in each case referred to in clauses (b)(i) or (c), to the
extent that failure to do so could not reasonably be expected to have a Material
Adverse Effect.
5.02 AUTHORIZATION; NO CONTRAVENTION. The execution, delivery and
performance by each Loan Party of each Loan Document to which such Person is
party, have been duly authorized by all necessary corporate or other
organizational action. The execution, delivery and performance by each Loan
Party of each Loan Document to which it is a party, and the consummation of the
transactions contemplated hereby with respect to each Loan Party, do not and
will not: (a) contravene the terms of any of such Person's Organization
Documents; (b) conflict with or result in any breach or contravention of, or the
creation of any Lien under or require any payment to be made under, (i) any
Contractual Obligation to which such Person is a party affecting such Person or
the properties of such Person or any of its Subsidiaries or (ii) any order,
injunction, writ or decree of any Governmental Authority or any arbitral award
to which such Person or its property is subject; or (c) violate any Law,
including, without limitation, Medicare Regulations.
5.03 GOVERNMENTAL AUTHORIZATION; OTHER CONSENTS. No approval, consent,
exemption, authorization, or other action by, or notice to, or filing with, any
Governmental Authority or any other Person is necessary or required in
connection with the execution, delivery or performance by, or the enforcement
against, any Loan Party of this Agreement or any other Loan Document, other than
(i) filings necessary to perfect Liens on the Collateral granted to the
Administrative Agent for the benefit of the Secured Parties, and (ii) the
approvals, consents, exemptions, authorizations, actions, notices or filings
which have been duly obtained, taken, given or made and are in full force and
effect.
5.04 BINDING EFFECT. This Agreement has been, and each other Loan
Document to which any Loan Party is a party, when delivered hereunder, will have
been, duly executed and delivered by each Loan Party that is party thereto. This
Agreement constitutes, and each other Loan Document to which any Loan Party is a
party when so delivered will constitute, a legal, valid and binding obligation
of such Loan Party, enforceable against such Person in accordance with its
terms, except as such enforceability may be limited by Debtor Relief Laws and by
principles of equity.
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5.05 FINANCIAL STATEMENTS; NO MATERIAL ADVERSE EFFECT; NO INTERNAL
CONTROL EVENT.
(a) The Audited Financial Statements furnished to the Administrative
Agent and each Lender (i) were prepared in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly
noted therein; (ii) fairly present in all material respects the financial
condition of the Borrower and its Subsidiaries as of the date thereof and their
results of operations for the period covered thereby in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise
expressly noted therein; and (iii) show all material indebtedness and other
liabilities, direct or contingent, of the Borrower and the Subsidiaries as of
the date thereof, including liabilities for taxes, material commitments and
Indebtedness.
(b) The unaudited consolidated financial statements of the Borrower and
the Subsidiaries dated December 31, 2004, including the consolidated balance
sheet and related consolidated statements of income or operations, and cash
flows for the fiscal quarter ended on that date furnished to the Administrative
Agent and each Lender (i) were prepared in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly
noted therein, (ii) fairly present in all material respects the financial
condition of the Borrower and its Subsidiaries as of the date thereof and their
results of operations for the period covered thereby, subject, in the case of
clauses (i) and (ii), to the absence of footnotes and to normal year-end audit
adjustments and (iii) show all material indebtedness and other material
liabilities, direct or contingent, of the Borrower and its consolidated
Subsidiaries as of the date of such financial statements, including liabilities
for taxes, material commitments and Indebtedness.
(c) As of the Closing Date, since November 9, 2004, there has been no
event or circumstance, either individually or in the aggregate, that has had or
could reasonably be expected to have, either individually or in the aggregate, a
Material Adverse Effect.
(d) Since the date of the most recent Audited Financial Statements, no
Internal Control Event has occurred that has had or could reasonably be expected
to have, either individually or in the aggregate, a Material Adverse Effect.
5.06 LITIGATION. There are no actions, suits, proceedings,
investigations, litigations, claims, disputes or proceedings pending or, to the
knowledge of the Borrower, threatened, at law, in equity, in arbitration or
before any Governmental Authority, by or against the Borrower or any of the
Subsidiaries or against any of their respective properties or revenues or
orders, decrees, judgments, rulings, injunctions, writs, temporary restraining
orders or other orders of any nature issued by any court or Governmental
Authority that (a) purport to affect, pertain to, or enjoin or restrain the
execution, delivery or performance of, this Agreement or any other Loan
Document, or any of the transactions contemplated hereby or thereby, (b) either,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect, or (c) purport to affect the legality, validity or
enforceability of the Loan Documents or the consummation of the transactions
contemplated hereby or thereby.
5.07 NO DEFAULT. Neither the Borrower nor any Subsidiary is in default
under or with respect to any Contractual Obligation that could, either
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. No Default has occurred and is continuing or would
53
result from the consummation of the transactions contemplated by this Agreement
or any other Loan Document.
5.08 OWNERSHIP OF PROPERTY; LIENS. Each of the Borrower and each
Subsidiary has good record and indefeasible title in fee simple to, or valid
leasehold interests in, all real property necessary or used in the ordinary
conduct of its business, except for such defects in title as could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. The property of the Borrower and the Subsidiaries is subject to
no Liens, other than Liens permitted by Section 7.01.
5.09 ENVIRONMENTAL COMPLIANCE. To the Borrower's knowledge, neither
compliance with nor the result of any claims alleging potential liability under
or responsibility for violations of Environmental Laws, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
5.10 INSURANCE. The Borrower and the Subsidiaries maintain with
financially sound and reputable insurance companies not Affiliates of the
Borrower, insurance with respect to their properties and businesses against loss
or damage of the kinds customarily insured against by such Persons engaged in
similar businesses and owning similar properties in localities where the
Borrower and the applicable Subsidiary operates of such types and in such
amounts, with such deductibles and covering such risks, as are customarily
carried under similar circumstances by such other Persons.
5.11 TAXES. The Borrower and each of the Subsidiaries have timely filed
all Federal, state and other material tax returns and reports required to be
filed, and have timely paid all Federal, state and other material taxes,
assessments, fees and other governmental charges levied or imposed upon them or
their properties, income or assets otherwise due and payable, whether or not
shown on any tax return, except those which are being contested in good faith by
appropriate proceedings diligently conducted and for which adequate reserves
have been provided in accordance with GAAP. There is no proposed tax assessment
against the Borrower or any of the Subsidiaries that would, if made, have a
Material Adverse Effect. Neither any Loan Party nor any Subsidiary thereof is
party to any tax sharing agreement.
5.12 ERISA COMPLIANCE.
(a) Each Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Code and other Federal or state Laws. Each
Plan that is intended to qualify under Section 401(a) of the Code has received a
favorable determination letter from the IRS or an application for such a letter
is currently being processed by the IRS with respect thereto and, to the
knowledge of the Borrower, nothing has occurred which would prevent, or cause
the loss of, such qualification. The Borrower and each ERISA Affiliate have made
all required contributions to each Plan subject to Section 412 of the Code, and
no application for a funding waiver or an extension of any amortization period
pursuant to Section 412 of the Code has been made with respect to any Plan.
(b) There are no pending or, to the knowledge of the Borrower,
threatened claims, actions or lawsuits, or action by any Governmental Authority,
with respect to any Plan that could be reasonably expected to have a Material
Adverse Effect. There has been no prohibited transaction or
54
violation of the fiduciary responsibility rules with respect to any Plan that
has resulted or could reasonably be expected to result in a Material Adverse
Effect.
(c) (i) Except as could not reasonably be expected to result, either
individually or in the aggregate, in liability to the Borrower and its
Subsidiaries in excess of the Threshold Amount, no ERISA Event has occurred or
is reasonably expected to occur; (ii) except as could not reasonably expected to
result, either individually or in the aggregate, in liability to the Borrower
and its Subsidiaries in excess of the Threshold Amount, no Pension Plan has any
Unfunded Pension Liability; (iii) neither the Borrower nor any ERISA Affiliate
has incurred, or reasonably expects to incur, any liability under Title IV of
ERISA with respect to any Pension Plan (other than premiums due and not
delinquent under Section 4007 of ERISA); (iv) neither the Borrower nor any ERISA
Affiliate has incurred, or reasonably expects to incur, any liability (and no
event has occurred which, with the giving of notice under Section 4219 of ERISA,
would result in such liability) under Sections 4201 or 4243 of ERISA with
respect to a Multiemployer Plan; and (v) neither the Borrower nor any ERISA
Affiliate has engaged in a transaction that could be subject to Sections 4069 or
4212(c) of ERISA.
5.13 SUBSIDIARIES; EQUITY INTERESTS. (a) As of the Closing Date and as of
the date of each notice delivered to the Administrative Agent pursuant to
Section 6.12(a), the Borrower has no Subsidiaries other than those specifically
disclosed in Part (a) of Schedule 5.13, as supplemented by each such notice
(which disclosure shall include the jurisdiction of organization and classes of
all Equity Interests (including ownership and ownership percentages thereof) for
each such Subsidiary), and all of the outstanding Equity Interests in such
Subsidiaries have been duly and validly authorized and issued, are fully paid
and nonassessable and were not issued in violation of the preemptive rights of
any stockholder, and are owned by a Loan Party in the amounts specified on Part
(a) of Schedule 5.13, as so supplemented, free and clear of all Liens other than
the Lien of the Collateral Documents. As of the Closing Date and as of the date
of each notice delivered to the Administrative Agent pursuant to Section
6.12(a), neither the Borrower nor any Subsidiary has any equity investments in
any other Person other than those disclosed on Schedule 5.13(a), as supplemented
by each such notice, and as specifically disclosed in Part (b) of Schedule 5.13,
as supplemented by each such notice.
(b) As of the Closing Date, the authorized Equity Interests of the
Borrower consists of the number of shares of common stock and the par value set
forth in Part (c) of Schedule 5.13.
(c) Each pledgor under the Pledge Agreement owns good, valid and
marketable title to all the outstanding Equity Interests of any Subsidiary or
Subsidiaries and joint ventures owned by it, free and clear of all Liens of
every kind, whether absolute, matured, contingent or otherwise, other than those
arising under the Collateral Documents. No Subsidiary has outstanding other
capital stock or other Equity Interests, no incentive units, phantom stock or
similar arrangements and no calls, commitments or claims of any character
relating to its Equity Interests. Except as may be entered into after the date
hereof in connection with an Investment in a joint venture permitted pursuant to
Section 7.02(l), there are no shareholder agreements or other agreements
pertaining to any pledgor's beneficial ownership of the Equity Interests of the
Subsidiary or Subsidiaries such pledgor owns, including any agreement that would
restrict such pledgor's right to dispose of such common stock and/or its right
to vote such common stock.
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5.14 MARGIN REGULATIONS; INVESTMENT COMPANY ACT; PUBLIC UTILITY HOLDING
COMPANY ACT.
(a) The Borrower is not engaged and will not engage, principally or as
one of its important activities, in the business of purchasing or carrying
margin stock (within the meaning of Regulation U issued by the FRB), or
extending credit for the purpose of purchasing or carrying margin stock, and no
proceeds of any Loans or drawings under any Letter of Credit will be used to
purchase or carry any margin stock or to extend credit to others for the purpose
of purchasing or carrying margin stock.
(b) None of the Borrower, any Person Controlling the Borrower, or any
Subsidiary (i) is a "holding company," or 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, or (ii) is or is required to be registered as an "investment
company" under the Investment Company Act of 1940.
5.15 DISCLOSURE. The Borrower has disclosed to the Administrative Agent
and the Lenders all agreements, instruments and corporate or other restrictions
to which it or any of the Subsidiaries is subject, and all other matters known
to it, that, individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect. No report, financial statement, certificate
or other written information furnished, except projected financial information
and general economic and industry specific information, by or on behalf of any
Loan Party or any of their respective Subsidiaries to the Administrative Agent
or any Lender in connection with the transactions contemplated hereby and the
negotiation of this Agreement and the other Loan Documents or delivered
hereunder or under any Loan Document (in each case, as modified or supplemented
by other written information so furnished) contains any material misstatement of
fact or omits to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
materially misleading; provided that, with respect to projected financial
information, the Borrower represents only that such information was prepared in
good faith based upon assumptions believed to be reasonable at the time, it
being understood that such projections are subject to contingencies, many of
which are beyond Borrower's control, and that no assurance can be given that
such projections will be realized and actual results may vary from such
projections and that such variance may be material.
5.16 COMPLIANCE WITH LAWS. Each of the Borrower and each Subsidiary is in
compliance in all material respects with the requirements of all Laws
(including, without limitation, Medicare Regulations) and all orders, writs,
injunctions and decrees applicable to it or to its properties, except in such
instances in which (a) such requirement of Law or order, writ, injunction or
decree is being contested in good faith by appropriate proceedings diligently
conducted or (b) the failure to comply therewith, either individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.
Without limiting to foregoing, with respect to the Borrower and each Subsidiary:
(i) (A) neither the Borrower, any of its Subsidiaries, any of
their respective officers or directors nor any individual employed by the
Borrower or any of its Subsidiaries is reasonably expected to have
criminal culpability or to be excluded from participation in any Medical
Reimbursement Program for corporate or individual actions or failures to
act where such culpability or exclusion has resulted or could reasonably
be expected to result in
56
an Exclusion Event; (B) other than activities giving rise to the
Settlement Agreement or the Corporate Integrity Agreement, neither the
Borrower, any of its Subsidiaries, any of their respective officers or
directors nor any individual employed by the Borrower or any of its
Subsidiaries is, or has been within the last six (6) years with respect to
any state or Federal agency, criminal enforcement unit or program
(including Medicare or any other state or Federal health care program) (i)
the subject of any audit, inquiry or investigation, (ii) party to any
consent decree, judgment, order or settlement (other than the Settlement
Agreement and the Corporate Integrity Agreement) that (x) requires or
could be reasonably expected to require, the payment of money by the
Borrower, any of its Subsidiaries or any of its Affiliates to any state or
Federal agency, program or fiscal intermediary which individually or in
the aggregate exceeds, or could reasonably be expected to exceed, $1
million or (y) requires or prohibits any material activity by the
Borrower, any of its Subsidiaries or any of its Affiliates, and in the
case of either clause (x) or (y) is either punitive in nature or has a
civil penalty; and (C) there is no officer continuing to be employed by
any of the Borrower or any of its Subsidiaries who may reasonably be
expected to have individual culpability for matters under investigation by
the OIG or any other Governmental Authority unless such officer has been,
within a reasonable period of time after discovery of such actual or
potential culpability, either suspended or removed from positions of
responsibility related to those activities under challenge by the OIG or
such other Governmental Authority;
(ii) current billing policies, arrangements, protocols and
instructions comply with requirements of Medical Reimbursement Programs
and are administered by properly trained personnel, except where any such
failure to comply would not reasonably be expected to result in an
Exclusion Event; and
(iii) current medical director compensation arrangements comply with
state and federal anti-kick back, fraud and abuse, and ▇▇▇▇▇ I and II
requirements, except where any such failure to comply would not reasonably
be expected to result in an Exclusion Event.
5.17 INTELLECTUAL PROPERTY; LICENSES, ETC. The Borrower and the
Subsidiaries own, or possess the right to use, all of the material trademarks,
service marks, trade names, copyrights, patents, patent rights, franchises,
licenses and other intellectual property rights (collectively, "IP Rights") that
are reasonably necessary for the operation of their respective businesses,
without known conflict in any material respect with the rights of any other
Person. To the knowledge of the Borrower, no slogan or other advertising device,
product, process, method, substance, part or other material now employed, by the
Borrower or any Subsidiary infringes in any material respect upon any rights
held by any other Person. No claim or litigation regarding any of the foregoing
is pending or, to the knowledge of the Borrower, threatened, which, either
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
5.18 SECURITY DOCUMENTS. The Pledge Agreement is effective to create in
favor of the Administrative Agent, for the ratable benefit of the Secured
Parties, a legal, valid and, except as may be limited by Debtor Relief Laws and
principles of equity, enforceable security interest in the Pledged Equity
Interests (as defined in the Pledge Agreement) identified therein, and, when
such Pledged Equity Interests which are certificated securities are delivered to
the Administrative Agent (and so long as they continue to be properly held by
the Administrative Agent), the Pledge Agreement shall constitute a fully
perfected first priority Lien on, and security interest in, all right,
57
title and interest of the pledgors thereunder in such Pledged Equity Interests,
in each case subject to no other Lien other than any nonconsensual Lien
permitted under Section 7.01.
5.19 MATERIAL CONTRACTS. As of the Closing Date, set forth on Schedule
5.19 is a complete and accurate list of all Material Contracts of each of the
Borrower and each Subsidiary, showing as of the date hereof, the name thereof,
the parties, the subject matter and the term. Each such Material Contract has
been duly authorized, executed and delivered, is in full force and effect and is
binding upon and enforceable against all parties thereto in accordance with its
terms except, in any case, where the failure to do so, either, individually or
in the aggregate, could not reasonably be expected to have a Material Adverse
Effect, and neither the Borrower nor any of its Subsidiaries, or to the
Borrower's knowledge, any other party thereto, is in default under or with
respect to any Material Contract that could, either individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
5.20 FRAUD AND ABUSE. Neither the Borrower, any of its Subsidiaries nor
any of their respective officers, directors or, to the knowledge of the
Borrower, any Contract Provider, has engaged in any activities that are
prohibited under Medicare Regulations or that are prohibited by binding rules of
professional conduct, and which could reasonably be expected, either
individually or in the aggregate, to result in an Exclusion Event.
5.21 LICENSING AND ACCREDITATION. Each of the Borrower, its Subsidiaries
(excluding for purposes of this Section any Subsidiary that has assets and/or
revenues of less than $100,000) and their respective Affiliates to the extent
applicable, and, to the knowledge of the Borrower, each Contract Provider, has,
to the extent applicable (a) obtained and maintains in good standing all
required material licenses, permits, certificates, registrations,
authorizations, and approvals necessary for the operation of their businesses as
currently conducted, (b) to the extent prudent and customary in the industry in
which it is engaged and, to the extent necessary for the operation of their
businesses as currently conducted, obtained and maintains accreditation from all
generally recognized accrediting agencies, and (c) entered into and maintains in
good standing its status as a Medicare supplier. To the knowledge of the
Borrower, each Contract Provider is duly licensed by each state, state agency,
commission or other Governmental Authority having jurisdiction over the
provisions of such services by such Contract Provider in the locations where the
Borrower and its Subsidiaries conduct business, to the extent such licensing is
required to enable such Contract Provider to provide the professional services
provided by such Contract Provider and otherwise as is necessary to enable the
Borrower and its Subsidiaries to operate as currently operated and as
contemplated to be operated. To the knowledge of the Borrower, all such required
material licenses are in full force and effect on the date hereof and have not
been revoked or suspended or otherwise limited.
5.22 SOLVENCY. Immediately after giving effect to the initial Credit
Extension made on the Closing Date, (a) the fair value of the assets of each of
the Borrower and each of the Subsidiaries will exceed its debts and liabilities,
subordinated, contingent or otherwise, (b) the present fair saleable value of
the property of each of the Borrower and each of the Subsidiaries will be
greater than the amount that will be required to pay the probable liability of
its debts and other liabilities, subordinated, contingent or otherwise, as such
debts and other liabilities become absolute and mature, and (c) each of the
Borrower and each of the Subsidiaries will not have unreasonably small capital
with which to conduct the business in which it is engaged as such business is
now conducted and is proposed to be conducted following the Closing Date.
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ARTICLE VI
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other non-contingent Obligation hereunder shall remain unpaid or unsatisfied, or
any Letter of Credit shall remain outstanding, the Borrower shall, and shall
(except in the case of the covenants set forth in Sections 6.01, 6.02 and 6.03)
cause each Subsidiary to:
6.01 FINANCIAL STATEMENTS. Deliver to the Administrative Agent (for
further distribution to each Lender), in form and detail satisfactory to the
Administrative Agent and the Required Lenders:
(a) as soon as available, but in any event within the earlier of eighty
(80) days after the end of each fiscal year of the Borrower, or such shorter
period required by the SEC (plus five (5) Business Days), a consolidated balance
sheet of the Borrower and its Subsidiaries as at the end of such fiscal year
(commencing with the fiscal year ended March 31, 2005), and the related
consolidated statements of income or operations, shareholders' equity and cash
flows for such fiscal year, setting forth in each case in comparative form the
figures for the previous fiscal year, all in reasonable detail and prepared in
accordance with GAAP, such consolidated balance sheet and statements to be
audited and accompanied by (i) a report and opinion of a Registered Public
Accounting Firm of nationally recognized standing reasonably acceptable to the
Required Lenders, which report and opinion shall be prepared in accordance with
generally accepted auditing standards and applicable Securities Laws and shall
not be subject to any "going concern" or like qualification or exception or any
qualification or exception as to the scope of such audit and (ii) an attestation
report of such Registered Public Accounting Firm as to the Borrower's internal
controls pursuant to Section 404 of ▇▇▇▇▇▇▇▇-▇▇▇▇▇ expressing a conclusion to
which the Required Lenders do not object; and
(b) as soon as available, but in any event within the earlier of
forty-five (45) days after the end of each of the first three fiscal quarters of
each fiscal year of the Borrower, or such shorter period required by the SEC
(plus five (5) Business Days), a consolidated balance sheet of the Borrower and
its Subsidiaries as at the end of such fiscal quarter (commencing with the
fiscal quarter ended June 30, 2005), and the related consolidated statements of
income or operations, and cash flows for such fiscal quarter and for the portion
of the Borrower's fiscal year then ended, setting forth in each case in
comparative form the figures for the corresponding fiscal quarter of the
previous fiscal year and the corresponding portion of the previous fiscal year,
all in reasonable detail, such consolidated balance sheet and statements to be
certified by a Responsible Officer of the Borrower as fairly presenting in all
material respects the financial condition, results of operations, and cash flows
of the Borrower and its Subsidiaries in accordance with GAAP, subject only to
normal year-end audit adjustments and the absence of footnotes.
As to any information contained in materials furnished pursuant to Section
6.02(d), the Borrower shall not be separately required to furnish such
information under clause (a) or (b) above, but the foregoing shall not be in
derogation of the obligation of the Borrower to furnish the information and
materials described in clauses (a) and (b) above at the times specified therein.
59
6.02 CERTIFICATES; OTHER INFORMATION. Deliver to the Administrative Agent
(for further distribution to each Lender), in form and detail satisfactory to
the Administrative Agent and the Required Lenders:
(a) concurrently with the delivery of the annual financial statements
provided in Section 6.01(a), a certificate of the accountants conducting the
annual audit stating that they have reviewed the relevant sections in this
Agreement and stating further whether, in the course of their audit, they have
become aware of any Default or Event of Default and, if any such Default or
Event of Default exists, specifying the nature and extent thereof;
(b) concurrently with the delivery of the financial statements referred
to in Sections 6.01(a) and (b) (commencing with delivery of the financial
statements for the fiscal year ended March 31, 2005), a duly completed
Compliance Certificate signed by a Responsible Officer of the Borrower. In
connection with the delivery by the Borrower of each Compliance Certificate
pursuant to Section 6.02(b) the Borrower shall deliver to the Administrative
Agent supplements to Schedule 5.13, together with a statement of a Responsible
Officer executing the Compliance Certificate, certifying that, as of the date
thereof, after giving effect to the Supplement to such Schedule and such report
delivered therewith, the representations and warranties in Article V hereof are
true and correct in all material respects;
(c) promptly after receipt thereof, copies of any detailed audit
reports, management letters or recommendations submitted to the board of
directors (or the audit committee of the board of directors) of the Borrower and
any of the Subsidiaries by independent accountants in connection with the
accounts or books of the Borrower or any Subsidiary, or any audit of any of
them;
(d) promptly after the same are made publicly available, (i) copies of
management discussion and analysis in relationship to the financial statements
delivered pursuant to Sections 6.01(a) and 6.01(b) and (ii) copies of each
annual report, proxy or financial statement or other report or communication
sent to the stockholders of the Borrower, and copies of all annual, regular,
periodic and special reports and registration statements which the Borrower may
file or be required to file with the SEC under Section 13 or 15(d) of the
Securities Exchange Act of 1934, and not otherwise required to be delivered to
the Administrative Agent pursuant hereto;
(e) within sixty (60) days following the end of each fiscal year of the
Borrower, an annual business budget of the Borrower and its Subsidiaries,
(including an income statement and a statement of capital expenditures),
containing, among other things, summary pro forma financial information for the
next fiscal year with respect to each fiscal quarter (including all assumptions
related thereto);
(f) promptly, and in any event within five Business Days after receipt
thereof by any Loan Party or any Subsidiary thereof, copies of each notice or
other correspondence received from the SEC, HHS, OIG or the Department of
Justice (or comparable agency in any applicable state or non-U.S. jurisdiction)
concerning any investigation or threatened investigation, and promptly and in
any event within five Business Days after any other material inquiry by such
agency regarding any Loan Party or any Subsidiary thereof is delivered to the
audit committee of the board of directors of the Borrower, copies of each such
inquiry; and
60
(g) promptly, such additional information regarding the business,
financial or corporate affairs of the Borrower or any Subsidiary, or compliance
with the terms of the Loan Documents, as the Administrative Agent or any Lender
may from time to time reasonably request.
Documents required to be delivered pursuant to Sections 6.01(a) or (b) or
Section 6.02(d) (to the extent any such documents are included in materials
otherwise filed with the SEC) may be delivered electronically and if so
delivered, shall be deemed to have been delivered on the date (i) on which the
Borrower posts such documents, or provides a link thereto on the Borrower's
website on the Internet at the website address listed on Schedule 10.02; or (ii)
on which such documents are posted on the Borrower's behalf on Internet or
another intranet website, if any, to which each Lender, the L/C Issuer and the
Administrative Agent have access (whether a commercial, third-party website or
whether sponsored by the Administrative Agent); provided that: (i) the Borrower
shall deliver paper copies of such documents to the Administrative Agent, the
L/C Issuer or any Lender that requests the Borrower to deliver such paper copies
until a written request to cease delivering paper copies is given by the
Administrative Agent, the L/C Issuer or such Lender and (ii) the Borrower shall
notify the Administrative Agent, the L/C Issuer and each Lender (by telecopier
or electronic mail) of the posting of any such documents and provide to the
Administrative Agent by electronic mail electronic versions (i.e., soft copies)
of such documents. Notwithstanding anything contained herein, in every instance
the Borrower shall be required to provide paper copies of the Compliance
Certificates required by Section 6.02(b) to the Administrative Agent. The
Administrative Agent shall have no obligation to request the delivery or to
maintain copies (except for such Compliance Certificates) of the documents
referred to above, and in any event shall have no responsibility to monitor
compliance by the Borrower with any such request for delivery, and each Lender
shall be solely responsible for requesting delivery to it or maintaining its
copies of such documents.
The Borrower hereby acknowledges that (a) the Administrative Agent and/or
the Joint Lead Arrangers will make available to the Lenders and the L/C Issuer
materials and/or information provided by or on behalf of such Borrower hereunder
(collectively, "Borrower Materials") by posting the Borrower Materials on
IntraLinks or another similar electronic system (the "Platform") and (b) certain
of the Lenders may be "public-side" Lenders (i.e., Lenders that do not wish to
receive material non-public information with respect to any Borrower or its
securities) (each a "Public Lender"). The Borrower hereby agrees that (i)
Borrower Materials that are to be made available to Public Lenders shall be
clearly and conspicuously marked "PUBLIC" which, at a minimum, shall mean that
the word "PUBLIC" shall appear prominently on the first page thereof; (ii) by
marking Borrower Materials "PUBLIC", the Borrower shall be deemed to have
authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuer
and the Lenders to treat such Borrower Materials as not containing any material
non-public information with respect to the Borrower or its securities for
purposes of United States Federal and state securities laws (provided, however,
that to the extent such Borrower Materials constitute Information, they shall be
treated as set forth in Section 10.07); (iii) all Borrower Materials marked
"PUBLIC" are permitted to be made available through a portion of the Materials
marked "PUBLIC" are permitted to be made available through a portion of the
Platform designated "Public Investor," and (iv) the Administrative Agent and the
Joint Lead Arrangers shall be entitled to treat any Borrower Materials that are
not marked "PUBLIC" as being suitable only for posting on a portion of the
Platform not designated "Public Investor."
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6.03 NOTICES. Promptly notify the Administrative Agent:
(a) of the occurrence of any Default;
(b) of (i) any breach or non-performance of, or any default under, a
material Contractual Obligation of the Borrower or any Subsidiary; (ii) any
material dispute, action, litigation, investigation, or proceeding between the
Borrower or any Subsidiary and any Governmental Authority; (iii) the
commencement of, or any material development in, any material litigation or
proceeding affecting the Borrower or any Subsidiary, including pursuant to any
applicable Laws; or (iv) the institution of any action, litigation,
investigation or proceeding against such Person (if applicable) (or, to the
knowledge of the Borrower, any Contract Provider) to suspend, revoke or
terminate (or that may result in termination of) its status as a Medicare
supplier, or any such investigation or proceeding that may result in an
Exclusion Event, (v) a copy of any notice of intent to exclude any Loan Party
from participation in any Medical Reimbursement Program, any notice of proposal
to exclude the Borrower or any of its Subsidiaries from participation in any
Medical Reimbursement Program issued by the OIG, or any other Exclusion Event,
or (vi) a copy of any notice of loss or threatened loss of accreditation, loss
of participation under any reimbursement program or loss of applicable health
care license, and all other material deficiency notices, compliance orders or
adverse reports issued by any Governmental Authority or private insurance
company pursuant to a provider agreement that, if not promptly complied with or
cured, could result in the suspension or forfeiture of any license,
certification, or accreditation necessary to carry on its business as then
conducted or the termination of any insurance or reimbursement program;
(c) of the occurrence of any ERISA Event;
(d) of any material change in accounting policies or financial reporting
practices by the Borrower or any Subsidiary;
(e) of the occurrence of any Internal Control Event and;
(f) of material non-compliance with requirements under the Corporate
Integrity Agreement, of any penalties (including monetary penalties imposed)
under the Corporate Integrity Agreement, and shall promptly provide to the
Administrative Agent copies of all material reports delivered to any Person
under the Corporate Integrity Agreement.
Each notice pursuant to this Section 6.03 shall be accompanied by a
statement of a Responsible Officer of the Borrower setting forth details of the
occurrence referred to therein and stating what action the Borrower has taken
and proposes to take with respect thereto. Each notice pursuant to Section
6.03(a) shall describe with particularity any and all provisions of this
Agreement and any other Loan Document that have been breached.
6.04 PAYMENT OF OBLIGATIONS. Pay and discharge as the same shall become
due and payable, all its obligations and liabilities, unless the same are being
contested in good faith by appropriate proceedings diligently conducted and
adequate reserves in accordance with GAAP are being maintained by the Borrower
or such Subsidiary or the failure of which to pay and discharge could not
reasonably be expected to result in liability in excess of the Threshold Amount,
including (a) all tax liabilities, fees, assessments and governmental charges or
levies upon it or its properties or
62
assets; (b) all lawful claims which, if unpaid, would by Law become a Lien upon
its property; and (c) all Indebtedness, as and when due and payable, but subject
to any subordination provisions contained in any instrument or agreement
evidencing such Indebtedness.
6.05 PRESERVATION OF EXISTENCE, ETC. (a) Preserve, renew and maintain in
full force and effect its legal existence and good standing under the Laws of
the jurisdiction of its organization except (i) in a transaction permitted by
Sections 7.04 or 7.05, and (ii) in respect of any Subsidiary of the Borrower on
or as of any date after the Closing Date (or in the case of any Subsidiary which
becomes a Loan Party after the Closing Date, after the date on which such
Subsidiary becomes a Loan Party under the Loan Documents); (b) take all
reasonable action to maintain all rights, privileges, permits, licenses,
approvals and franchises in each case which are necessary or desirable in the
normal conduct of its business, except to the extent that failure to do so could
not reasonably be expected to have a Material Adverse Effect; and (c) preserve
or renew all of its registered patents, trademarks, trade names and service
marks, the non-preservation or non-renewal of which could reasonably be expected
to have a Material Adverse Effect.
6.06 MAINTENANCE OF PROPERTIES. (a) Maintain, preserve and protect all of
its material properties and equipment necessary in the operation of its business
in good working order and condition, ordinary wear and tear and casualty and
condemnation excepted; (b) make all necessary repairs thereto and renewals and
replacements thereof except where the failure to do so could not reasonably be
expected to have a Material Adverse Effect; and (c) use the standard of care
typical in the industry in the operation and maintenance of its facilities.
6.07 MAINTENANCE OF INSURANCE. Maintain with financially sound and
reputable insurance companies not Affiliates of the Borrower, insurance with
respect to its properties and business against loss or damage of the kinds
customarily insured against by Persons engaged in the same or similar businesses
and owning similar properties in localities where the Borrower and the
applicable Subsidiary operates, of such types and in such amounts with such
deductibles and covering such risks, as are customarily carried under similar
circumstances by such other Persons.
6.08 COMPLIANCE WITH LAWS. Comply in all material respects with the
requirements of all Laws (including, without limitation, Medicare Regulations)
and all orders, writs, injunctions and decrees applicable to it or to its
business or property, except in such instances in which (a) such requirement of
Law or order, writ, injunction or decree is being contested in good faith by
appropriate proceedings diligently conducted; or (b) the failure to comply
therewith could not reasonably be expected to have a Material Adverse Effect.
6.09 BOOKS AND RECORDS. (a) Maintain proper books of record and account,
in which full, true and correct entries in conformity with GAAP consistently
applied shall be made of all financial transactions and matters involving the
assets and business of the Borrower or such Subsidiary, as the case may be; and
(b) maintain such books of record and account in material conformity with all
applicable requirements of any Governmental Authority having regulatory
jurisdiction over the Borrower or such Subsidiary, as the case may be.
6.10 INSPECTION RIGHTS. Permit representatives and independent
contractors of the Administrative Agent and the Syndication Agent to visit and
inspect any of its properties, to examine its corporate, financial and operating
records, and make copies thereof or abstracts therefrom, and to
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discuss its affairs, finances and accounts with its directors, officers, and,
together with a representative of the Borrower, its independent public
accountants, all at such reasonable times during normal business hours and as
often as may be reasonably desired, upon reasonable advance notice to the
Borrower; provided, however, such right may not be exercised more than two times
in any consecutive twelve-month period unless an Event of Default shall have
occurred and be continuing; and provided, further, that notwithstanding anything
to the contrary contained herein when an Event of Default exists the
Administrative Agent or any Lender (or any of their respective representatives
or independent contractors) may do any of the foregoing at the expense of the
Borrower at any time during normal business hours and without advance notice.
6.11 USE OF PROCEEDS. Use the proceeds of the Credit Extensions for
working capital, capital expenditures and other corporate purposes (including
Permitted Acquisitions) not in contravention of any Law or of any Loan Document.
6.12 ADDITIONAL SUBSIDIARY GUARANTORS; INVESTMENTS IN JOINT VENTURES. (a)
Notify the Administrative Agent within 30 days after any Person becomes a
Subsidiary, or after the Borrower or any Subsidiary makes any Investment in any
joint venture pursuant to Section 7.02(l), (b) promptly (and in any event within
30 days) after such Person becomes a Domestic Subsidiary and to the extent no
material adverse tax consequences would result, at the time such person becomes
a Foreign Subsidiary, cause such Person to (i) become a Subsidiary Guarantor by
executing and delivering to the Administrative Agent a Subsidiary Guaranty, or
if the Subsidiary Guaranty has been executed and delivered by another Subsidiary
Guarantor, a Joinder Agreement and such other documents as the Administrative
Agent shall deem appropriate for such purpose, and (ii) deliver to the
Administrative Agent documents of the types referred to in clauses (iii), (iv),
(v), (vi) and (viii) of Section 4.01(a) and, if requested by the Administrative
Agent, favorable opinions of counsel to such Person (which shall cover, among
other things, the legality, validity, binding effect and enforceability of the
documentation), all in form, reasonably satisfactory to the Administrative
Agent, and (c) concurrently with notice of any Investment in any joint venture
pursuant to clause (a), deliver to the Administrative Agent documents of the
type described in clause (v) of Section 4.01(a).
6.13 FURTHER ASSURANCES WITH RESPECT TO ADDITIONAL LOAN PARTIES AND OTHER
INVESTMENTS. (a) Promptly (and in any event within thirty (30) days) after any
Person becomes a Subsidiary of the Borrower or after the Borrower or any
Subsidiary makes any Investment in the Equity Interests of a joint venture,
cause the parent of such Subsidiary or the holder of such joint venture Equity
Interests to execute and deliver the Pledge Agreement, or if the Pledge
Agreement has been executed by another Person, a Joinder Agreement and such
other documents as the Administrative Agent shall deem appropriate for such
purpose, (b) pledge and maintain a pledge of one hundred percent (100%) (or 65%
if such Person is a Foreign Subsidiary) of the Equity Interests of such
Subsidiary or the joint venture Equity Interests of such holder, as applicable
(subject to no other Liens other than nonconsensual Liens permitted under
Section 7.01) and (c) cause the parent of such Subsidiary or the holder of such
joint venture Equity Interests to deliver, or cause the Subsidiary to deliver,
as appropriate, to the Administrative Agent documents of the types referred to
in clauses (iii), (iv), (v), (vi), and (viii) of Section 4.01(a) and, if
requested by the Administrative Agent, favorable opinions of counsel to the
Borrower and such Subsidiary (which shall cover, among other things, the
legality, validity, binding effect and enforceability of the documentation and
the enforceability of the security interests), all in form, reasonably
satisfactory to the Administrative Agent.
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6.14 FURTHER ASSURANCES WITH RESPECT TO ADDITIONAL COLLATERAL. Execute
any and all further documents, financing statements under the UCC, agreements
and instruments, and take all such further actions (including the filing and
recording of financing statements and other documents), which may be required
under any applicable Law, or which the Administrative Agent or the Required
Lenders may reasonably request, to comply with the terms of this Agreement and
the other Loan Documents, including causing, to the fullest extent permitted by
Law, (i) the Collateral to be subject to a first priority security interest in
favor of the Administrative Agent (subject no other Liens other than
nonconsensual Liens permitted under Section 7.01) and (ii) the pledge of the
Equity Interests of the Subsidiaries of the Borrower which are subject to a
pledge pursuant to the Pledge Agreement, in each case to secure all the
Obligations, all at the expense of the Borrower. The Borrower also agrees to
provide to the Administrative Agent, from time to time upon request, evidence
reasonably satisfactory to the Administrative Agent as to the validity,
perfection and priority of the Liens created or intended to be created by the
Loan Documents.
6.15 PERFORMANCE OF MATERIAL CONTRACTS, ETC. Do the following: (a)
perform and observe all the terms and provisions of each Material Contract to be
performed or observed by it; (b) maintain each such Material Contract in full
force and effect and enforce each such Material Contract in accordance with its
terms; and (c) take all such action to such end as may be from time to time
requested by the Administrative Agent; except, in the case of clauses (a), (b)
or (c), where the failure to do so, either, individually or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect.
6.16 ENVIRONMENTAL. (a) Upon the reasonable written request of the
Administrative Agent following the occurrence of any event or the discovery of
any condition that the Administrative Agent or the Required Lenders reasonably
believe has caused (or could be reasonably expected to cause) the
representations and warranties set forth in Section 5.09 to be untrue in any
material respect, furnish or cause to be furnished to the Administrative Agent,
at the Borrower's expense, a report of an environmental assessment of reasonable
scope, form and depth, by a consultant reasonably acceptable to the
Administrative Agent as to the nature and extent of the presence of Hazardous
Materials on any Properties and as to the compliance by the Borrower and each
Subsidiary with Environmental Laws at such Properties. If the Borrower fails to
deliver such an environmental report within 75 days after receipt of such
written request then the Administrative Agent may arrange for the same, and the
Borrower and each of the Subsidiaries hereby grant to the Administrative Agent
and their representatives access to the Properties to reasonably undertake such
an assessment. The reasonable out-of-pocket cost of any assessment arranged for
by the Administrative Agent pursuant to this provision will be payable by the
Borrower on demand and added to the obligations secured by the Collateral
Documents.
(b) Conduct and complete, and cause each of the Subsidiaries to conduct
and complete, all investigations, studies, sampling, and testing and all
remedial, removal, and other actions necessary to address all Hazardous
Materials on, from or affecting any of the Subject Properties to the extent
necessary for the Borrower and its Subsidiaries to be in compliance with all
Environmental Laws and with the validly issued orders and directives of all
Governmental Authorities with jurisdiction over such Properties to the extent
any failure could have a Material Adverse Effect.
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ARTICLE VII
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other non-contingent Obligation hereunder shall remain unpaid or unsatisfied, or
any Letter of Credit shall remain outstanding, the Borrower shall not, nor shall
it permit any Subsidiary to, directly or indirectly:
7.01 LIENS. Create, incur, assume or suffer to exist any Lien upon any of
its property, assets or revenues, whether now owned or hereafter acquired, other
than the following:
(a) Liens pursuant to any Loan Document;
(b) Liens for taxes not yet due which are not delinquent or remain
payable without penalty, or to the extent non-payment thereof is permitted under
Section 6.04, provided that no notice of lien has been filed or recorded under
the Code;
(c) carriers', warehousemen's, mechanics', materialmen's, repairmen's or
other like Liens arising in the ordinary course of business (i) which are not
delinquent, (ii) which are permitted not to be paid pursuant to Section 6.04 or
(iii) which are being contested in good faith and by appropriate proceedings
which proceedings have the effect of preventing the forfeiture of the property
subject thereto and for which adequate reserves with respect thereto are
maintained on the books of the applicable Person in accordance with GAAP;
(d) pledges or deposits in the ordinary course of business in connection
with workers' compensation, unemployment insurance and other social security
legislation, other than any Lien imposed by ERISA;
(e) deposits to secure the performance of bids, trade contracts and
leases (other than any Indebtedness, except in respect of any Indebtedness for
the deferred purchase price of property or services), statutory obligations,
surety, customs, stay and appeal bonds, performance bonds and other obligations
of a like nature incurred in the ordinary course of business;
(f) easements, rights-of-way, restrictions, encroachments, protrusions
and other similar encumbrances affecting real property which do not in any case
materially detract from the value of the property subject thereto or materially
interfere with the ordinary conduct of the business of the applicable Person;
(g) Liens securing judgments for the payment of money not constituting
an Event of Default under Section 8.01(h);
(h) Liens securing purchase money Indebtedness and Capitalized Leases
permitted under Section 7.03(d);
(i) Liens in favor of customs and revenue authorities arising as a
matter of Law or pursuant to a bond to secure payment of custom duties in
connection with the importation of goods;
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(j) licenses or sublicenses of intellectual property or short term
leases or subleases of real property assets granted to other Persons in the
ordinary course of business which do not (A) interfere with the ordinary conduct
of business of the Borrower or any Subsidiary, or (B) secure any Indebtedness;
(k) Liens arising from UCC financing statement filings regarding operating
leases entered into by any Loan Party in the ordinary course of business; and
(k) Liens arising from UCC financing statement filings regarding
operating leases entered into by any loan Party in the ordinary course of
business; and
(l) Liens arising solely by virtue of any statutory or common law
provisions relating to bankers' Liens, rights of setoff or similar rights and
remedies as to deposit accounts or other funds maintained with a depository
institution;
(m) Liens of a collection bank arising under Section 4-210 of the UCC on
items in the course of collection;
(n) Liens on ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by the Borrower or any of
its Subsidiaries in connection with any letter of intent or purchase agreement
not prohibited hereunder in an aggregate amount not to exceed $100,000 at any
time; and
(o) Liens in the nature of restrictions imposed pursuant to an agreement
entered into in connection with a sale or other disposition to a Person other
than the Borrower or a Subsidiary permitted pursuant hereto pending the closing
of such sale or other disposition provided that such restriction shall encumber
only the property the subject of such sale or other disposition.
7.02 INVESTMENTS. Make any Investments, except:
(a) (i) Investments held by the Borrower or any Loan Party in the form
of cash equivalents or short-term marketable debt securities; and (ii)
Investments in the ordinary course of business in PolyMedica Securities, Inc.
and PolyMedica Pharmaceuticals Securities, Inc. so long as no Event of Default
has occurred and is continuing, and so long as PolyMedica Securities, Inc. and
PolyMedica Pharmaceuticals Securities, Inc. (A) do not conduct any business
other than investing in cash and cash equivalents, (B) do not own any material
assets other than cash and cash equivalents, (C) do not have any Indebtedness or
any Liens on their assets or properties or any other liabilities, except (1) tax
liabilities in the ordinary course of business and (2) other liabilities (not
constituting Indebtedness or Liens) incurred in the ordinary course of business
for an entity of this type, and (D) do not distribute or otherwise dispose of
any of the cash or cash equivalents to any Person except a Loan Party (for
purposes of clarification this clause (D) shall not be construed to restrict the
surrender of the cash equivalent to the issuer for its cash value);
(b) advances to officers, directors and employees of the Borrower and
its Subsidiaries in an aggregate amount not to exceed $2.5 million at any time
outstanding, for travel, entertainment, relocation and analogous ordinary
business purposes; provided however that any such advances or loans to directors
or executive officers shall only be permitted to the extent allowable under
▇▇▇▇▇▇▇▇-▇▇▇▇▇ (to the extent applicable);
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(c) Investments (i) by any Loan Party in any other Loan Party, (ii) by
any Subsidiary that is not a Loan Party in any Loan Party, (iii) by any Loan
Party in any Subsidiary that is not a Loan Party in an aggregate amount not to
exceed $5 million at anytime outstanding, and (iv) by any Subsidiary which is
not a Loan Party in any other Subsidiary which is not a Loan Party;
(d) Investments that constitute Permitted Acquisitions;
(e) Guarantees permitted by Section 7.03 and other Guarantees (not
constituting Indebtedness) to the extent incurred in the ordinary course of
business and not otherwise prohibited hereunder;
(f) Investments by the Borrower or any of its Subsidiaries in Swap
Contracts permitted under Section 7.03(c);
(g) promissory notes and other non-cash consideration received in
connection with Dispositions permitted by Section 7.05;
(h) advances of payroll payments to employees in the ordinary course of
business;
(i) Investments consisting of extensions of credit in the nature of
accounts receivable or notes receivable arising from the grant of trade credit
in the ordinary course of business;
(j) Investments in connection with the bankruptcy or reorganization of
suppliers or customers and in settlement of delinquent obligations of, and other
disputes with, suppliers or customers arising in the ordinary course of
business;
(k) Investments made on or prior to the Closing Date as set forth on
Schedule 7.02;
(l) Investments in the form of joint venture interests not exceeding $50
million in the aggregate any time outstanding; and
(m) other Investments entered into in the ordinary course of business
not exceeding $5 million in the aggregate at any time outstanding.
For the avoidance of doubt, the Borrower shall not, nor shall it permit any
Subsidiary to, make any acquisition (including by transaction of merger or
consolidation) of any Equity Interests of another Person (other than a
wholly-owned Subsidiary) unless either (i) such acquisition constitutes an
Investment in a joint venture, in which case such acquisition shall only be
permitted subject to the limit in clause (l) of this Section 7.02, (ii) such
Investment constitutes an acquisition of an Equity Interest under clause (j) of
this Section 7.02 or (iii) such acquisition constitutes an Acquisition, in which
case such acquisition shall only be permitted pursuant to clause (d) of this
Section 7.02 upon the satisfaction of the conditions set forth under the
definition of a Permitted Acquisition.
7.03 INDEBTEDNESS. Create, incur, assume or suffer to exist any
Indebtedness, except:
(a) Indebtedness under the Loan Documents;
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(b) Guarantees of any Loan Party in respect of Indebtedness otherwise
permitted hereunder of any Loan Party; provided, however, that no Guarantee of
Permitted Subordinated Indebtedness shall be provided unless the guarantor of
such Permitted Subordinated Indebtedness is a Guarantor hereunder and all the
terms of any such Guarantee are approved by the Required Lenders, including,
without limitation, the terms of subordination thereof;
(c) obligations (contingent or otherwise) of the Borrower or any of its
Subsidiaries existing or arising under any Swap Contract, provided that (i) such
obligations are (or were) entered into by such Person in the ordinary course of
business for the purpose of directly mitigating risks associated with
liabilities, commitments, investments, assets, or property held or reasonably
anticipated by such Person, or changes in the value of securities issued by such
Person, and not for purposes of speculation or taking a "market view;" and (ii)
such Swap Contract does not contain any provision exonerating the non-defaulting
party from its obligation to make payments on outstanding transactions to the
defaulting party;
(d) purchase money Indebtedness of the Borrower and its Subsidiaries,
including Capitalized Leases or Off-Balance Sheet Obligations, and, so long as
no Default has occurred or is continuing or would result therefrom as of the
date of the incurrence thereof, unsecured (except in respect of any Indebtedness
secured by Liens permitted pursuant to Section 7.01(e)) Indebtedness of the
Borrower and its Subsidiaries; provided, however, the total aggregate amount of
all such Indebtedness at any one time outstanding for the Borrower and its
Subsidiaries, taken together with any Refinancing Indebtedness, shall not exceed
$35 million; provided further, to the extent such Indebtedness is purchase money
indebtedness, (i) such Indebtedness (other than any Refinancing Indebtedness)
when initially incurred shall not exceed 100% of the cost or fair market value,
whichever is lower, of the Property being acquired on the date of acquisition
and transaction costs associated therewith, (ii) such Indebtedness is created
and any Lien attaches to such Property concurrently with or within ninety (90)
days of the acquisition thereof, and (iv) such Lien does not at any time
encumber any Property other than the Property financed by such Indebtedness and
proceeds thereof; and Indebtedness ("Refinancing Indebtedness") issued or
incurred (including by means of the extension or renewal of existing
Indebtedness) by the Borrower and its Subsidiaries to extend, renew or refinance
any existing Indebtedness under this Section 7.03(d) ("Refinanced
Indebtedness"); provided that any such secured Refinancing Indebtedness (A) is
in an original aggregate principal amount not greater than the unpaid principal
amount of the applicable Refinanced Indebtedness and (B) is secured only by
Liens on assets which previously secured the applicable Refinanced Indebtedness;
(e) intercompany Indebtedness permitted under Section 7.02(c);
(f) Indebtedness under Cash Management Services Agreements in the
ordinary course of business;
(g) so long as no Default has occurred and is continuing or would result
therefrom, Permitted Subordinated Indebtedness in an aggregate amount not to
exceed $150 million at any one time outstanding; and
(h) obligations to purchase the Equity Interests of any Person which is
a joint venture in which the Borrower or any Subsidiary has invested pursuant to
Section 7.02(l) from any holder of
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such Equity Interests; provided, however, that any purchase of such Equity
Interests pursuant to any such obligation shall be permitted only if in
compliance with Section 7.02(l).
7.04 FUNDAMENTAL CHANGES. Merge, dissolve, liquidate, consolidate with or
into another Person, or Dispose of (whether in one transaction or in a series of
transactions) all or substantially all of its assets (whether now owned or
hereafter acquired) to or in favor of any Person, except that, so long as no
Default exists or would result therefrom:
(a) any Subsidiary may merge or consolidate with or liquidate into the
Borrower; provided that the Borrower shall be the continuing or surviving
Person;
(b) any Loan Party (other than the Borrower) may be a party to a
transaction of merger or consolidation with or liquidation into another Loan
Party;
(c) a Subsidiary may be a party to a transaction of merger or
consolidation with a Person other than the Borrower or another Loan Party;
provided that (A) the surviving entity shall be a wholly-owned Subsidiary and
shall execute and deliver a Subsidiary Guaranty or Joinder Agreement, as
applicable, and its stock shall be subject to a pledge under the Pledge
Agreement, and all actions shall be taken as may be necessary for compliance
with the provisions of Sections 6.12, 6.13 and 6.14 and (B) the transaction
shall otherwise constitute a Permitted Acquisition;
(d) any Subsidiary may Dispose of all or substantially all of its assets
(upon voluntary liquidation or otherwise) to the Borrower or to another Loan
Party; and
(e) a Subsidiary may enter into a transaction of merger or consolidation
in connection with a Disposition permitted under Section 7.05; and
(f) the Borrower and its Subsidiaries may Dispose of assets to a
wholly-owned Subsidiary in a series of related transactions in which such
Subsidiary enters into a transaction of merger or consolidation with another
Person (other than the Borrower or a Subsidiary) in which the survivor of such
merger or consolidation is a Person whose Equity Interests are owned by the Loan
Parties and a Person or Persons (other than the Borrower and its Subsidiaries);
provided, however, that such a transaction shall be deemed to be an Investment
in a joint venture in an amount equal to the product of (i) the fair market
value of the assets or lines of business contributed to such Subsidiary as
determined in good faith by the board of directors of the Borrower as of the
date of such transaction, multiplied by (ii) the percentage of the fully diluted
outstanding Equity Interests of such Person owned by Persons other than the Loan
Parties, and which transaction shall only be permitted subject to the limits in
Section 7.02(l).
7.05 DISPOSITIONS. Make any Disposition, except:
(a) Dispositions of obsolete or worn out property, whether now owned or
hereafter acquired, in the ordinary course of business;
(b) Dispositions of inventory in the ordinary course of business;
(c) Dispositions of equipment or real property to the extent that (i)
such property is exchanged for credit against the purchase price of similar
replacement property or (ii) the proceeds of
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such Disposition are reasonably promptly applied to the purchase price of such
replacement property within 90 days of such Disposition;
(d) Dispositions of property (i) by any Subsidiary to the Borrower or
any other Loan Party, (ii) by the Borrower to any other Loan Party, (iii) by any
Loan Party to a Subsidiary that is not a Loan Party; provided, however, that any
such Disposition shall be deemed to be an Investment in such Subsidiary in the
amount of the fair market value of the property so Disposed of as determined in
good faith by the board of directors of the Borrower as of the date of such
Disposition and shall only be permitted subject to the limits in Section
7.02(c)(iii), and (iv) by any Subsidiary which is not a Loan Party to any other
Subsidiary which is not a Loan Party;
(e) Dispositions permitted by Sections 7.01 and 7.04; and
(f) Dispositions not otherwise permitted under this Section 7.05;
provided that (i) at the time of such Disposition no Default shall exist or
would result from such Disposition, (ii) the aggregate book value of all
property disposed of pursuant to this clause (f) shall not exceed 10% of
Consolidated Net Worth determined on the date of any such Disposition; (iii) no
later than five (5) Business Days prior to any such Disposition of assets having
a fair market value of $10 million or more, the Borrower shall have delivered to
the Administrative Agent, a Compliance Certificate demonstrating that, upon
giving effect on a Pro Forma Basis to such transaction, the Loan Parties would
be in compliance with the financial covenants set forth in Section 7.15 as of
the most recent quarter-end for which financial statements have been delivered
hereunder; and (iv) not less than 75% of the aggregate consideration due in
connection with such Disposition shall be paid in cash concurrent with the
consummation thereof;
(g) Dispositions of cash in the ordinary course of business or cash
equivalents for cash or cash equivalents; and
(h) Dispositions of delinquent accounts receivable for collection in the
ordinary course of business;
provided, however, that any Disposition pursuant to clauses (a), (b), (c),
(d)(iii) and (iv), (e), (f) and (g) shall be for fair market value.
7.06 RESTRICTED PAYMENTS. Declare or make, directly or indirectly, any
Restricted Payment, or incur any obligation (contingent or otherwise) to do so,
except that:
(a) any Subsidiary may make Restricted Payments to the holders of Equity
Interests in such Subsidiary ratably according to their respective holdings of
such Equity Interests;
(b) the Borrower may declare and make dividend payments or other
distributions and finance the costs of Permitted Acquisitions payable solely in
the common stock or other common Equity Interests of the Borrower;
(c) the Borrower may purchase, redeem or otherwise acquire Equity
Interests issued by it with the proceeds received from the substantially
concurrent issue of new shares of its common stock or other common Equity
Interests;
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(d) the Borrower may declare or pay cash dividends to its stockholders
during each fiscal year in an amount not to exceed $20 million, as long as after
giving effect to such payments on a Pro Forma Basis no Event of Default exists;
and
(e) the Borrower may purchase, redeem or otherwise acquire for cash
Equity Interests issued by it not to exceed $40 million in the aggregate during
the term of this Agreement; provided, however, that the Borrower may make up to
an additional $40 million of such purchases, redemptions and acquisitions (up to
$80 million in aggregate under this clause (e) during the term of this
Agreement) if both immediately before and after giving effect to any such
additional purchase, redemption or acquisition the Consolidated Leverage Ratio
is less than 1.50 to 1.00; provided, further, that after giving effect to any
and all such purchases, redemptions or acquisitions under this clause (e) on a
Pro Forma Basis no Default exists.
7.07 CHANGE IN NATURE OF BUSINESS. Make any material change in the nature
of business conducted by the Borrower and the Subsidiaries on the date hereof,
except to enter into and conduct any business or businesses reasonably related
or ancillary thereto.
7.08 TRANSACTIONS WITH AFFILIATES. Enter into any transaction of any kind
with any Affiliate of the Borrower, whether or not in the ordinary course of
business, other than (a) transactions expressly permitted by Sections 7.02,
7.03, 7.04, 7.05 and 7.06, (b) employment and severance arrangements between the
Borrower or its Subsidiaries and their respective officers and employees in the
ordinary course of business, (c) the reimbursement of reasonable out-of-pocket
expenses of, and the payment of customary fees and indemnities to, directors of
the Borrower and its Subsidiaries in the ordinary course of business, (d) the
issuance of Equity Interests by the Borrower, and (e) so long as no Event of
Default has occurred and is continuing, other transactions which are engaged in
by the Borrower or a Subsidiary on fair and reasonable terms substantially as
favorable to the Borrower or such Subsidiary as would be obtainable by the
Borrower or such Subsidiary at the time in a comparable arm's length transaction
with a Person other than an Affiliate; provided that the restriction in clause
(d) shall not apply to transactions between or among any Loan Parties.
7.09 BURDENSOME AGREEMENTS. Enter into any Contractual Obligation (other
than this Agreement or any other Loan Document) that (a) limits the ability (i)
of any Subsidiary to make Restricted Payments to the Borrower or any Subsidiary
Guarantor, (ii) of any Subsidiary to Guarantee the Indebtedness of the Borrower
or (iii) of the Borrower or any Subsidiary to create, incur, assume or suffer to
exist Liens on property of such Person; provided, however, that this clause
(iii) shall not prohibit (A) any negative pledge incurred or provided in favor
of any holder of secured Indebtedness permitted under Section 7.03(d) solely to
the extent any such negative pledge relates to the property financed by or the
subject of such Indebtedness, (B) any encumbrance or restriction that restricts
in a customary manner the subletting, assignment or transfer of any property or
asset that is subject to a lease, license or other contract or the assignment,
encumbrance or hypothecation of such lease, license or other contract, or (C)
any restriction imposed pursuant to an agreement entered into in connection with
a sale or other disposition permitted pursuant hereto pending the closing of
such sale or other disposition; or (b) requires the grant of a Lien to secure an
obligation of such Person if a Lien is granted to secure another obligation of
such Person.
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7.10 AMENDMENT, ETC. OF INDEBTEDNESS, OTHER MATERIAL CONTRACTS AND
CONSTITUTIVE DOCUMENTS AND PAYMENTS IN RESPECT OF INDEBTEDNESS.
(a) After the issuance thereof, amend or modify (or permit the amendment
or modification of (including any waivers of)), the terms of any Indebtedness
(other than Obligations under this Agreement) in excess of the Threshold Amount
in a manner adverse in any material respect to the interests of the Lenders.
(b) Cancel or terminate any Material Contract or consent to or accept
any cancellation or termination thereof by the Borrower or any Subsidiary, amend
or modify (or permit the amendment or modification of (including any waivers
of)), any Material Contract, waive any default under or breach any Material
Contract, or take any other action in connection with any Material Contract,
unless, in each case, any such cancellation, termination, amendment or
modification, or consent, waiver or approval thereunder, could not reasonably be
expected to cause a Material Adverse Effect.
(c) Amend its Organization Documents, unless, in each case, any such
amendment is not adverse in any material respect to the Lenders.
(d) Make any payment in contravention of the terms of any subordination
with respect to any Indebtedness.
(e) Except in connection with a refinancing or refunding of Permitted
Subordinated Indebtedness solely with the proceeds of other Permitted
Subordinated Indebtedness permitted hereunder, make any prepayment, redemption,
defeasance or acquisition for value (including, without limitation, by way of
depositing money or securities with the trustee with respect thereto before due
for the purpose of paying when due), or refund, refinance or exchange of any
Permitted Subordinated Indebtedness (other than regularly scheduled payments of
interest on such Indebtedness).
7.11 IMPAIRMENT OF SECURITY INTERESTS. Take or omit to take any action
which action or omission could reasonably be expected to impair the attachment
or perfection of the security interests in favor of the Administrative Agent
with respect to the Collateral or grant to any Person (other than the
Administrative Agent pursuant to the Collateral Documents) any interest
whatsoever in the Collateral (except in connection with a permitted
Disposition).
7.12 OWNERSHIP OF SUBSIDIARIES AND OTHER RESTRICTIONS RELATING TO THE
SUBSIDIARIES. Notwithstanding any other provision of this Agreement, (a) except
only for Investments in joint ventures permitted pursuant to Sections 7.02(l)
and 7.04(f): (i) permit any Person (other than the Borrower or any wholly-owned
Subsidiary of the Borrower) to own any Equity Interests of any Subsidiary of the
Borrower; (ii) permit any Subsidiary of the Borrower to issue Equity Interests
to any Person, except the Borrower or any wholly-owned Subsidiary of the
Borrower; or (iii) permit any Subsidiary of the Borrower to issue any shares of
preferred Equity Interests; or (b) permit, create, incur, assume or suffer to
exist any Lien on any Equity Interests of any Subsidiary of Borrower or any
Subsidiary or on any Equity Interests of a joint venture owned by the Borrower
or any Subsidiary (other than Liens created by the Loan Documents and
non-consensual Liens permitted by Section 7.01).
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7.13 CAPITAL EXPENDITURES. Make or become legally obligated to make any
expenditure in respect of the purchase or other acquisition of any fixed or
capital asset (excluding normal replacements and maintenance which are properly
charged to current operations, customer lists and direct response advertising),
except for capital expenditures in the ordinary course of business not exceeding
$25 million in the aggregate for the Borrower and the Subsidiaries during each
fiscal year; provided, however, that any portion of any amount set forth above,
if not expended in the fiscal year for which it is permitted above, may be
carried over for expenditure in the next following fiscal year.
7.14 USE OF PROCEEDS. Use the proceeds of any Credit Extension, whether
directly or indirectly, and whether immediately, incidentally or ultimately, to
purchase or carry margin stock (within the meaning of Regulation U of the FRB)
or to extend credit to others for the purpose of purchasing or carrying margin
stock or to refund indebtedness originally incurred for such purpose.
7.15 FINANCIAL COVENANTS.
(a) Consolidated Net Worth. Permit Consolidated Net Worth at any time to
be less than (i) the sum of (A) $250 million, (B) an amount equal to 75% of the
Consolidated Net Income earned in each full fiscal quarter ending after December
31, 2004 (with no deduction for a net loss in any such fiscal quarter) and (C)
an amount equal to 100% of the aggregate increases in Shareholders' Equity of
the Borrower and the Subsidiaries after the date hereof by reason of the
issuance and sale of Equity Interests of the Borrower or any Subsidiary (other
than issuances to the Borrower or a wholly-owned Subsidiary, including upon any
conversion of debt securities of the Borrower into such Equity Interests), minus
(ii) dividends and stock repurchases permitted pursuant to Section 7.06 during
the period commencing on the Closing Date.
(b) Consolidated Coverage Ratio. Permit the Consolidated Coverage Ratio
as of the end of any fiscal quarter of the Borrower to be less than 3.50 to
1.00.
(c) Consolidated Leverage Ratio. Permit the Consolidated Leverage Ratio
as at the end of any fiscal quarter of the Borrower to be greater than 2.00 to
1.00.
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
8.01 EVENTS OF DEFAULT. Any of the following shall constitute an Event of
Default:
(a) Non-Payment. The Borrower or any other Loan Party fails to pay (i)
when and as required to be paid herein, any amount of principal of any Loan or
any L/C Obligation, or (ii) within three Business Days after the same becomes
due, any interest on any Loan or on any L/C Obligation, or any fee due
hereunder, or (iii) within five Business Days after the same becomes due, any
other amount payable hereunder or under any other Loan Document; or
(b) Specific Covenants. The Borrower fails to perform or observe any
term, covenant or agreement contained in any of Sections 6.01, 6.02, 6.03, 6.05,
6.10, 6.11, 6.12, 6.13, 6.14, or 6.15 or Article VII; or
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(c) Other Defaults. Any Loan Party fails to perform or observe any other
covenant or agreement (not specified in subsection (a) or (b) above) contained
in any Loan Document on its part to be performed or observed and such failure
continues for 30 days after the earlier of (i) any date on which a Responsible
Officer of any Loan Party first becomes aware of such failure and (ii) written
notice thereof shall have been delivered to the Borrower by the Administrative
Agent or any Lender; or
(d) Representations and Warranties. Any representation, warranty,
certification or statement of fact made or deemed made by or on behalf of the
Borrower or any other Loan Party herein, in any other Loan Document, or in any
document delivered in connection herewith or therewith shall be incorrect or
misleading in any material respect when made or deemed made; or
(e) Cross-Default. (i) The Borrower or any Subsidiary (A) fails to make
any payment when due (whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise, taking into account any applicable grace
period) in respect of any Indebtedness or Guarantee (other than Indebtedness
hereunder and Indebtedness under Swap Contracts) having an aggregate principal
amount (including undrawn committed or available amounts and including amounts
owing to all creditors under any combined or syndicated credit arrangement) of
more than the Threshold Amount, or (B) fails to observe or perform any other
agreement or condition relating to any such Indebtedness or Guarantee or
contained in any instrument or agreement evidencing, securing or relating
thereto, or any other event occurs, the effect of which default or other event
is to cause, or to permit (taking into account any applicable grace period) the
holder or holders of such Indebtedness or the beneficiary or beneficiaries of
such Guarantee (or a trustee or agent on behalf of such holder or holders or
beneficiary or beneficiaries) to cause, with the giving of notice if required,
such Indebtedness to be demanded or to become due or to be repurchased, prepaid,
defeased or redeemed (automatically or otherwise), or an offer to repurchase,
prepay, defease or redeem such Indebtedness to be made, prior to its stated
maturity, or such Guarantee to become payable or cash collateral in respect
thereof to be demanded; or (ii) there occurs under any Swap Contract an Early
Termination Date (as defined in such Swap Contract) resulting from (A) any event
of default under such Swap Contract as to which the Borrower or any Subsidiary
is the Defaulting Party (as defined in such Swap Contract) or (B) any
Termination Event (as so defined) under such Swap Contract as to which the
Borrower or any Subsidiary is an Affected Party (as so defined) and, in either
event, the Swap Termination Value owed by the Borrower or such Subsidiary as a
result thereof is greater than the Threshold Amount; or
(f) Insolvency Proceedings, Etc. Any Loan Party or any of its
Subsidiaries institutes or consents to the institution of any proceeding under
any Debtor Relief Law, or makes a general assignment for the benefit of
creditors; or applies for or consents to the appointment of any receiver,
trustee, custodian, conservator, liquidator, rehabilitator or similar officer
for it or for all or any material part of its property; or any receiver,
trustee, custodian, conservator, liquidator, rehabilitator or similar officer is
appointed without the application or consent of such Person and the appointment
continues undischarged or unstayed for 60 calendar days; or any proceeding under
any Debtor Relief Law relating to any such Person or to all or any material part
of its property is instituted without the consent of such Person and continues
undismissed or unstayed for 60 calendar days, or an order for relief is entered
in any such proceeding; or
(g) Inability to Pay Debts; Attachment. (i) The Borrower or any
Subsidiary becomes unable or admits in writing its inability or fails generally
to pay its debts as they become due, or (ii)
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any writ or warrant of attachment or execution or similar process is issued or
levied against all or any material part of the property of any such Person and
is not released, vacated or fully bonded within 30 days after its issue or levy;
or
(h) Judgments. There is entered against the Borrower or any Subsidiary
(i) a final judgment or order for the payment of money in an aggregate amount
exceeding the Threshold Amount (to the extent not covered by independent
third-party insurance as to which the insurer does not dispute coverage), or
(ii) any one or more non-monetary final judgments that have, or could reasonably
be expected to have, individually or in the aggregate, a Material Adverse Effect
and, in either case, (A) enforcement proceedings are commenced by any creditor
upon such judgment or order, or (B) there is a period of 20 consecutive days
during which a stay of enforcement of such judgment, by reason of a pending
appeal or otherwise, is not in effect; or
(i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or
Multiemployer Plan which has resulted or could reasonably be expected to result
in liability of the Borrower under Title IV of ERISA to the Pension Plan,
Multiemployer Plan or the PBGC in an aggregate amount in excess of the Threshold
Amount, or (ii) the Borrower or any ERISA Affiliate fails to pay when due, after
the expiration of any applicable grace period, any installment payment with
respect to its withdrawal liability under Section 4201 of ERISA under a
Multiemployer Plan in an aggregate amount in excess of the Threshold Amount; or
(j) Invalidity of Loan Documents. Any material provision of any Loan
Document, at any time after its execution and delivery and for any reason other
than as expressly permitted hereunder or thereunder (including as a result of a
transaction expressly permitted under Sections 7.04 or 7.05) or satisfaction in
full of all the Obligations, ceases to be in full force and effect; or any Loan
Party or any other Person contests in any manner the validity or enforceability
of any provision of any Loan Document; or any Loan Party denies that it has any
or further liability or obligation under any Loan Document, or purports to
revoke, terminate or rescind any provision of any Loan Document; or
(k) Change of Control. There occurs any Change of Control with respect
to the Borrower; or
(l) Exclusion Event. There occurs an Exclusion Event that would result
in a Material Adverse Effect.
8.02 REMEDIES UPON EVENT OF DEFAULT. If any Event of Default occurs and
is continuing, the Administrative Agent shall, at the request of, or may, with
the consent of, the Required Lenders, take any or all of the following actions:
(a) declare the Commitment of each Lender to make Loans and any
obligation of the L/C Issuer to make L/C Credit Extensions to be terminated,
whereupon such Commitments and obligation shall be terminated;
(b) declare the unpaid principal amount of all outstanding Loans, all
interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan
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Document to be immediately due and payable, without presentment, demand, protest
or other notice of any kind, all of which are hereby expressly waived by the
Borrower;
(c) require that the Borrower Cash Collateralize the L/C Obligations (in
an amount equal to the then Outstanding Amount thereof); and
(d) exercise on behalf of itself and the Lenders all rights and remedies
available to it and the Lenders under the Loan Documents;
provided, however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to the Borrower under the Bankruptcy Code of the
United States, the obligation of each Lender to make Loans and any obligation of
the L/C Issuer to make L/C Credit Extensions shall automatically terminate, the
unpaid principal amount of all outstanding Loans and all interest and other
amounts as aforesaid shall automatically become due and payable, and the
obligation of the Borrower to Cash Collateralize the L/C Obligations as
aforesaid shall automatically become effective, in each case without further act
of the Administrative Agent or any Lender.
8.03 APPLICATION OF FUNDS. After the exercise of remedies provided for in
Section 8.02 (or after the Loans have automatically become immediately due and
payable and the L/C Obligations have automatically been required to be Cash
Collateralized as set forth in the proviso to Section 8.02), any amounts
received by the Administrative Agent on account of the Obligations shall be
applied by the Administrative Agent in the following order:
First, to payment of that portion of the Obligations constituting fees,
indemnities, expenses and other amounts (including fees, charges and
disbursements of counsel to the Administrative Agent and amounts payable under
Article III) 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, interest, Letter of Credit
Fees and Commitment Fees) payable to the Lenders and the L/C Issuer (including
fees, charges and disbursements of counsel to the respective Lenders and the L/C
Issuer and amounts payable under Article III), ratably among them in proportion
to the respective amounts described in this clause Second payable to them;
Third, to payment of that portion of the Obligations constituting accrued
and unpaid Letter of Credit Fees, Commitment Fees and interest on the Loans and
L/C Borrowings, 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 and L/C Borrowings, ratably among the Lenders and the L/C
Issuer in proportion to the respective amounts described in this clause Fourth
held by them;
Fifth, ratably (i) to the Administrative Agent for the account of the L/C
Issuer, to Cash Collateralize that portion of L/C Obligations comprised of the
aggregate undrawn amount of Letters of Credit and (ii) to the payment of that
portion of the Obligations constituting amounts owing under or with respect of
Swap Contracts with Swap Banks and Secured Cash Management Services Agreements
with Cash Management Banks, ratably among the Swap Banks and the Cash Management
Banks in proportion to the respective amounts described in this subclause (ii)
to this clause Fifth held by them; and
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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 Section 2.03(c), 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 IX
ADMINISTRATIVE AGENT
9.01 APPOINTMENT AND AUTHORITY.
Each of the Lenders and the L/C Issuer hereby irrevocably appoints Bank of
America to act on its behalf as the Administrative Agent hereunder and under the
other Loan Documents and authorizes the Administrative Agent to take such
actions on its behalf and to exercise such powers as are delegated to the
Administrative Agent by the terms hereof or thereof, together with such actions
and powers as are reasonably incidental thereto. The provisions of this Article,
other than the provisions of Sections 9.06 and 9.10, are solely for the benefit
of the Administrative Agent, the Lenders and the L/C Issuer, and Borrower shall
not have rights as a third party beneficiary of any of such provisions.
9.02 RIGHTS AS A LENDER. The Person serving as the Administrative Agent
hereunder shall have the same rights and powers in its capacity as a Lender as
any other Lender and may exercise the same as though it were not the
Administrative Agent and the term "Lender" or "Lenders" shall, unless otherwise
expressly indicated or unless the context otherwise requires, include the Person
serving as the Administrative Agent hereunder in its individual capacity. Such
Person and its Affiliates may accept deposits from, lend money to, act as the
financial advisor or in any other advisory capacity for and generally engage in
any kind of business with the Borrower or any Subsidiary or other Affiliate
thereof as if such Person were not the Administrative Agent hereunder and
without any duty to account therefor to the Lenders.
9.03 EXCULPATORY PROVISIONS. The Administrative Agent shall not have any
duties or obligations except those expressly set forth herein and in the other
Loan Documents. Without limiting the generality of the foregoing, the
Administrative Agent:
(a) shall not be subject to any fiduciary or other implied duties,
regardless of whether a Default has occurred and is continuing;
(b) shall not have any duty to take any discretionary action or exercise
any discretionary powers, except discretionary rights and powers expressly
contemplated hereby or by the other Loan Documents that the Administrative Agent
is required to exercise as directed in writing by the Required Lenders (or such
other number or percentage of the Lenders as shall be expressly provided for
herein or in the other Loan Documents), provided that the Administrative Agent
shall not be required to take any action that, in its opinion or the opinion of
its counsel, may expose the Administrative Agent to liability or that is
contrary to any Loan Document or applicable Law; and
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(c) shall not, except as expressly set forth herein and in the other
Loan Documents, have any duty to disclose, and shall not be liable for the
failure to disclose, any information relating to the Borrower or any of its
Affiliates that is communicated to or obtained by the Person serving as the
Administrative Agent or any of its Affiliates in any capacity.
The Administrative Agent shall not be liable for any action taken or not
taken by it (i) with the consent or at the request of the Required Lenders (or
such other number or percentage of the Lenders as shall be necessary, or as the
Administrative Agent shall believe in good faith shall be necessary, under the
circumstances as provided in Sections 10.01 and 8.02) or (ii) in the absence of
its own gross negligence or willful misconduct. The Administrative Agent shall
be deemed not to have knowledge of any Default unless and until notice
describing such Default is given to the Administrative Agent by the Borrower, a
Lender or the L/C Issuer.
The Administrative Agent shall not be responsible for or have any duty to
ascertain or inquire into (i) any statement, warranty or representation made in
or in connection with this Agreement or any other Loan Document, (ii) the
contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein or therein or the occurrence of any Default, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement, any other Loan
Document or any other agreement, instrument or document or (v) the satisfaction
of any condition set forth in Article IV or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to the
Administrative Agent.
9.04 RELIANCE BY ADMINISTRATIVE AGENT.
The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing (including any electronic
message, Internet or intranet website posting or other distribution) believed by
it to be genuine and to have been signed, sent or otherwise authenticated by the
proper Person. The Administrative Agent also may rely upon any statement made to
it orally or by telephone and believed by it to have been made by the proper
Person, and shall not incur any liability for relying thereon. In determining
compliance with any condition hereunder to the making of a Loan, or the issuance
of a Letter of Credit, that by its terms must be fulfilled to the satisfaction
of a Lender or the L/C Issuer, the Administrative Agent may presume that such
condition is satisfactory to such Lender or the L/C Issuer unless the
Administrative Agent shall have received notice to the contrary from such Lender
or the L/C Issuer prior to the making of such Loan or the issuance of such
Letter of Credit. The Administrative Agent may consult with legal counsel (who
may be counsel for the Borrower), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or experts.
9.05 DELEGATION OF DUTIES. The Administrative Agent may perform any and
all of its duties and exercise its rights and powers hereunder or under any
other Loan Document by or through any one or more sub-agents appointed by the
Administrative Agent. The Administrative Agent and any such sub-agent may
perform any and all of its duties and exercise its rights and powers by or
through their respective Related Parties. The exculpatory provisions of this
Article shall apply to any such sub-agent and to the Related Parties of the
Administrative Agent and any such sub-agent, and
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shall apply to their respective activities in connection with the syndication of
the credit facilities provided for herein as well as activities as
Administrative Agent.
9.06 RESIGNATION OF ADMINISTRATIVE AGENT. The Administrative Agent may at
any time give notice of its resignation to the Lenders, the L/C Issuer and the
Borrower upon thirty days notice. Upon receipt of any such notice of
resignation, the Required Lenders shall have the right, with the consent, so
long as no Event of Default then exists, of the Borrower, which shall not be
unreasonably withheld or delayed, to appoint a successor, which shall be a bank
with an office in the United States, or an Affiliate of any such bank with an
office in the United States. If no such successor shall have been so appointed
by the Required Lenders and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of its resignation, then
the retiring Administrative Agent may on behalf of the Lenders and the L/C
Issuer, appoint a successor Administrative Agent meeting the qualifications set
forth above; provided that if the Administrative Agent shall notify the Borrower
and the Lenders that no qualifying Person has accepted such appointment, then
such resignation shall nonetheless become effective in accordance with such
notice and (1) the retiring Administrative Agent shall be discharged from its
duties and obligations hereunder and under the other Loan Documents (except that
in the case of any collateral security held by the Administrative Agent on
behalf of the Lenders or the L/C Issuer under any of the Loan Documents, the
retiring Administrative Agent shall continue to hold such collateral security
until such time as a successor Administrative Agent is appointed) and (2) all
payments, communications and determinations provided to be made by, to or
through the Administrative Agent shall instead be made by or to each Lender and
the L/C Issuer directly, until such time as the Required Lenders appoint a
successor Administrative Agent as provided for above in this Section. Upon the
acceptance of a successor's appointment as Administrative Agent hereunder, such
successor shall succeed to and become vested with all of the rights, powers,
privileges and duties of the retiring (or retired) Administrative Agent, and the
retiring Administrative Agent shall be discharged from all of its duties and
obligations hereunder or under the other Loan Documents (if not already
discharged therefrom as provided above in this Section). The fees payable by the
Borrower to a successor Administrative Agent shall be the same as those payable
to its predecessor unless otherwise agreed between the Borrower and such
successor. After the retiring Administrative Agent's resignation hereunder and
under the other Loan Documents, the provisions of this Article and Section 10.04
shall continue in effect for the benefit of such retiring Administrative Agent,
its sub-agents and their respective Related Parties in respect of any actions
taken or omitted to be taken by any of them while the retiring Administrative
Agent was acting as Administrative Agent.
Any resignation by Bank of America as Administrative Agent pursuant to
this Section shall also constitute its resignation as L/C Issuer and Swing Line
Lender. Upon the acceptance of a successor's appointment as Administrative Agent
hereunder, (a) such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring L/C Issuer and Swing Line
Lender, (b) the retiring L/C Issuer and Swing Line Lender shall be discharged
from all of their respective duties and obligations hereunder or under the other
Loan Documents, and (c) the successor L/C Issuer shall issue letters of credit
in substitution for the Letters of Credit, if any, outstanding at the time of
such succession or make other arrangements satisfactory to the retiring L/C
Issuer to effectively assume the obligations of the retiring L/C Issuer with
respect to such Letters of Credit.
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9.07 NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS. Each Lender
and the L/C Issuer acknowledges that it has, independently and without reliance
upon the Administrative Agent or any other Lender or any of their Related
Parties and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender and the L/C Issuer also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any other
Lender or any of their Related Parties and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any other Loan Document or any related agreement or any document furnished
hereunder or thereunder.
9.08 NO OTHER DUTIES, ETC. Anything herein to the contrary
notwithstanding, none of the Syndication Agent, Documentation Agent or Joint
Lead Arrangers listed on the cover page hereof shall have any powers, duties or
responsibilities under this Agreement or any of the other Loan Documents, except
in its capacity, as applicable, as the Administrative Agent, a Lender or the L/C
Issuer hereunder.
9.09 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 Loan Party, the Administrative Agent (irrespective of
whether the principal of any Loan or L/C 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, L/C
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, the L/C Issuer and the Administrative
Agent (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Lenders, the L/C Issuer and the
Administrative Agent and their respective agents and counsel and all other
amounts due to the Lenders and the Administrative Agent under Sections
2.03(i) and (j), 2.09 and 10.04) allowed in such judicial proceeding; and
(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 and the L/C Issuer 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 and the L/C Issuer, 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 2.09
and 10.04.
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 or
the L/C Issuer any plan of reorganization,
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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.
9.10 COLLATERAL AND GUARANTY MATTERS. The Lenders and the L/C Issuer
irrevocably authorize the Administrative Agent:
(a) to release any Lien on any Property granted to or held by the
Administrative Agent under any Loan Document (other than any applicable
Cash Collateral, except as provided in Section 2.03(g)) (i) upon
termination of the Aggregate Commitments and payment in full of all
Obligations (other than contingent indemnification obligations) and the
expiration, termination or Cash Collateralization of all Letters of
Credit, (ii) that is sold or to be sold as part of or in connection with
any Disposition to a Person other than a Loan Party permitted under the
Loan Documents, (iii) subject to Section 10.01, if approved, authorized or
ratified in writing by the Required Lenders, or (iv) owned by a Subsidiary
Guarantor upon release of such Subsidiary Guarantor from its Obligations
pursuant to clause (c) below;
(b) to subordinate any Lien on any property granted to or held by
the Administrative Agent under any Loan Document to the holder of any Lien
on such property that is permitted by Section 7.01(h); and
(c) to release any Subsidiary Guarantor from its Obligations under
the Loan Documents 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 Subsidiary Guarantor from its Obligations under the Loan Documents pursuant
to this Section 9.10. Subject to compliance by the Loan Parties to the
satisfaction of the Administrative Agent with the provisions of Section 2.9 of
the Pledge Agreement or other applicable release provisions of any Loan
Document, in each case specified in this Section 9.10, the Administrative Agent
will, at the Borrower's expense, execute and deliver to the applicable Loan
Party such documents as such Loan Party may reasonably request to evidence the
release of such Collateral from the Lien of the Collateral Documents or release
such Subsidiary Guarantor from its Obligations in accordance with the terms of
the Loan Documents and this Section 9.10.
ARTICLE X
MISCELLANEOUS
10.01 AMENDMENTS, ETC. No amendment or waiver of any provision of this
Agreement or any other Loan Document, and no consent to any departure by the
Borrower or any other Loan Party therefrom, shall in any event be effective
unless the same shall be in writing and signed by the Required Lenders and the
Borrower or the applicable Loan Party, as the case may be, and acknowledged by
the Administrative Agent (without in any way limiting the Administrative Agent's
discretion to withhold its consent in respect of matters affecting its rights
and duties pursuant to clause (iii) of the second proviso below, such
acknowledgment not to be unreasonably withheld if such amendment, waiver or
consent has been signed by the requisite Lenders hereunder), and then
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each such waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given; provided, however, that no such
amendment, waiver or consent shall:
(a) waive any condition set forth in Section 4.01(a) without the written
consent of each Lender;
(b) extend or increase the Commitment of any Lender (or reinstate any
Commitment terminated pursuant to Section 8.02) without the written consent of
such Lender (it being understood that a waiver of any condition precedent set
forth in Section 4.02 or the waiver of any Default or Event of Default shall not
constitute an extension or increase of any Commitment of any Lender);
(c) postpone any date fixed by this Agreement or any other Loan Document
for any payment (or mandatory prepayment pursuant to Section 2.05(c)) of
principal, interest, fees or other amounts due to the Lenders (or any of them)
hereunder or under any other Loan Document without the written consent of each
Lender directly affected thereby;
(d) reduce the principal of, or the rate of interest specified herein
on, any Loan or L/C Borrowing, or (subject to clause (iv) of the second proviso
to this Section 10.01) any fees or other amounts payable hereunder or under any
other Loan Document without the written consent of each Lender directly affected
thereby; provided, however, that only the consent of the Required Lenders shall
be necessary (i) to amend the definition of "Default Rate" or to waive any
obligation of the Borrower to pay interest or Letter of Credit Fees at the
Default Rate or (ii) to amend any financial covenant hereunder (or any defined
term used therein) even if the effect of such amendment would be to reduce the
rate of interest on any Loan or L/C Borrowing or to reduce any fee payable
hereunder;
(e) change Section 2.13 or Section 8.03 in a manner that would alter the
pro rata sharing of payments required thereby without the written consent of
each Lender;
(f) change any provision of this Section or the definition of "Required
Lenders" or any other provision hereof specifying the number or percentage of
Lenders required to amend, waive or otherwise modify any rights hereunder or
make any determination or grant any consent hereunder, without the written
consent of each Lender; or
(g) release all or substantially all of the value of the Subsidiary
Guaranty or release all or substantially all of the Collateral in any
transaction or a series of related transactions, except in each case as
specifically permitted by the Loan Documents, without, in each case, the written
consent of each Lender;
and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the L/C Issuer in addition to the Lenders required above,
affect the rights or duties of the L/C Issuer under this Agreement or any Issuer
Document relating to any Letter of Credit issued or to be issued by it; (ii) no
amendment, waiver or consent shall, unless in writing and signed by the Swing
Line Lender in addition to the Lenders required above, affect the rights or
duties of the Swing Line Lender under this Agreement; (iii) no amendment, waiver
or consent shall, unless in writing and signed by the Administrative Agent in
addition to the Lenders required above, affect the rights or duties of the
Administrative Agent under this Agreement or any other Loan Document; and (iv)
each of the Fee
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Letters may be amended, or rights or privileges thereunder waived, in a writing
executed only by the parties thereto. Notwithstanding anything to the contrary
herein, no Defaulting Lender shall have any right to approve or disapprove any
amendment, waiver or consent hereunder, except that the Commitment of such
Lender may not be increased or extended without the consent of such Lender. Upon
delivery by the Borrower of each Compliance Certificate of a Responsible Officer
certifying supplements to the Schedules to this Agreement pursuant to Section
6.02(b), the schedule supplements attached to each such certificate shall be
incorporated into and become a part of and supplement Schedule 5.13, and the
Administrative Agent may attach such schedule supplements to such Schedules, and
each reference to such Schedules shall mean and be a reference to such
Schedules, as supplemented pursuant thereto.
In the event that any waiver, amendment or modification requires the prior
written consent of each Lender pursuant to this Section 10.01 and the Borrower
has obtained the approval of all but one Lender, the Borrower shall have the
right to replace such non-consenting Lender in accordance with the provisions in
Section 10.13.
10.02 NOTICES; EFFECTIVENESS; ELECTRONIC COMMUNICATIONS
(a) Notices Generally. Except in the case of notices and other
communications expressly permitted to be given by telephone (and except as
provided in subsection (b) below), all notices and other communications provided
for herein shall be in writing and shall be delivered by hand or overnight
courier service, mailed by certified or registered mail or sent by telecopier as
follows, and all notices and other communications expressly permitted hereunder
to be given by telephone shall be made to the applicable telephone number, as
follows:
(i) if to the Borrower, the Administrative Agent, the L/C Issuer
or the Swing Line Lender, to the address, telecopier number, electronic
mail address or telephone number specified for such Person on Schedule
10.02; and
(ii) if to any other Lender, to the address, telecopier number,
electronic mail address or telephone number specified in its
Administrative Questionnaire.
Notices sent by hand or overnight courier service, or mailed by certified or
registered mail, shall be deemed to have been given when received; notices sent
by telecopier shall be deemed to have been given when sent (except that, if not
given during normal business hours for the recipient, shall be deemed to have
been given at the opening of business on the next business day for the
recipient). Notices delivered through electronic communications to the extent
provided in subsection (b) below, shall be effective as provided in such
subsection (b).
(b) Electronic Communications. Notices and other communications to the
Lenders and the L/C Issuer hereunder may be delivered or furnished by electronic
communication (including e-mail and Internet or intranet websites) pursuant to
procedures approved by the Administrative Agent, provided that the foregoing
shall not apply to notices to any Lender or the L/C Issuer pursuant to Article
II if such Lender or the L/C Issuer, as applicable, has notified the
Administrative Agent that it is incapable of receiving notices under such
Article by electronic communication. The Administrative Agent or the Borrower
may, in its discretion, agree to accept notices and other
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communications to it hereunder by electronic communications pursuant to
procedures approved by it, provided that approval of such procedures may be
limited to particular notices or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and
other communications sent to an e-mail address shall be deemed received upon the
sender's receipt of an acknowledgement from the intended recipient (such as by
the "return receipt requested" function, as available, return e-mail or other
written acknowledgement), provided that if such notice or other communication is
not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on
the next business day for the recipient, and (ii) notices or communications
posted to an Internet or intranet website shall be deemed received upon the
deemed receipt by the intended recipient at its e-mail address as described in
the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.
(c) The Platform. THE PLATFORM IS PROVIDED "AS IS" AND "AS AVAILABLE."
THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS
OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY
DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO
WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD
PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT
PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event
shall the Administrative Agent or any of its Related Parties (collectively, the
"Agent Parties") have any liability to the Borrower, any Lender, the L/C Issuer
or any other Person for losses, claims, damages, liabilities or expenses of any
kind (whether in tort, contract or otherwise) arising out of the Borrower's or
the Administrative Agent's transmission of Borrower Materials through the
Internet, except to the extent that such losses, claims, damages, liabilities or
expenses are determined by a court of competent jurisdiction by a final and
nonappealable judgment to have resulted from the gross negligence or willful
misconduct of such Agent Party; provided, however, that in no event shall any
Agent Party have any liability to the Borrower, any Lender, the L/C Issuer or
any other Person for indirect, special, incidental, consequential or punitive
damages (as opposed to direct or actual damages).
(d) Change of Address, Etc. Each of the Borrower, the Administrative
Agent, the L/C Issuer and the Swing Line Lender may change its address,
telecopier or telephone number for notices and other communications hereunder by
notice to the other parties hereto. Each other Lender may change its address,
telecopier or telephone number for notices and other communications hereunder by
notice to the Borrower, the Administrative Agent, the L/C Issuer and the Swing
Line Lender. In addition, each Lender agrees to notify the Administrative Agent
from time to time to ensure that the Administrative Agent has on record (i) an
effective address, contact name, telephone number, telecopier number and
electronic mail address to which notices and other communications may be sent
and (ii) accurate wire instructions for such Lender.
(e) Reliance by Administrative Agent, L/C Issuer and Lenders. The
Administrative Agent, the L/C Issuer and the Lenders shall be entitled to rely
and act upon any notices (including telephonic Loan Notices and Swing Line Loan
Notices) purportedly given by or on behalf of the
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Borrower even if (i) such notices were not made in a manner specified herein,
were incomplete or were not preceded or followed by any other form of notice
specified herein, or (ii) the terms thereof, as understood by the recipient,
varied from any confirmation thereof. The Borrower shall indemnify the
Administrative Agent, the L/C Issuer, each Lender and the Related Parties of
each of them from all losses, costs, expenses and liabilities resulting from the
reliance by such Person on each notice purportedly given by or on behalf of the
Borrower. All telephonic notices to and other telephonic communications with the
Administrative Agent may be recorded by the Administrative Agent, and each of
the parties hereto hereby consents to such recording.
10.03 NO WAIVER; CUMULATIVE REMEDIES. No failure by any Lender, the L/C
Issuer or the Administrative Agent to exercise, and no delay by any such Person
in exercising, any right, remedy, power or privilege hereunder shall operate as
a waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein provided are cumulative and not exclusive
of any rights, remedies, powers and privileges provided by Law.
10.04 EXPENSES; INDEMNITY; DAMAGE WAIVER.
(a) Costs and Expenses. The Borrower shall pay (i) all reasonable
ut-of-pocket expenses incurred by the Administrative Agent and its Affiliates
(including the reasonable fees, charges and disbursements of one counsel for the
Administrative Agent and its Affiliates), in connection with the syndication of
the credit facilities provided for herein, the preparation, negotiation,
execution, delivery and administration of this Agreement and the other Loan
Documents or any amendments, modifications or waivers of the provisions hereof
or thereof (whether or not the transactions contemplated hereby or thereby shall
be consummated), (ii) all reasonable out-of-pocket expenses incurred by the L/C
Issuer in connection with the issuance, amendment, renewal or extension of any
Letter of Credit or any demand for payment thereunder and (iii) all
out-of-pocket expenses incurred by the Administrative Agent, any Lender or the
L/C Issuer (including the fees, charges and disbursements of any counsel for the
Administrative Agent, any Lender or the L/C Issuer), in connection with the
enforcement or protection of its rights (A) in connection with this Agreement
and the other Loan Documents, including its rights under this Section, or (B) in
connection with the Loans made or Letters of Credit issued hereunder, including
all such out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans or Letters of Credit.
(b) Indemnification by the Borrower. The Borrower shall indemnify the
Administrative Agent (and any sub-agent thereof), the Syndication Agent, the
Documentation Agent, each Lender and the L/C Issuer, and each Related Party of
any of the foregoing Persons (each such Person being called an "Indemnitee")
against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses (including the reasonable fees,
charges and disbursements of any counsel for any Indemnitee), incurred by any
Indemnitee or asserted against any Indemnitee by any third party or by the
Borrower or any other Loan Party arising out of, in connection with, or as a
result of (i) the execution or delivery of this Agreement, any other Loan
Document or any agreement or instrument contemplated hereby or thereby, the
performance by the parties hereto of their respective obligations hereunder or
thereunder, the consummation of the transactions contemplated hereby or thereby,
or, in the case of the Administrative Agent (and any sub-agent
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thereof) and its Related Parties only, the administration of this Agreement and
the other Loan Documents, (ii) any Loan or Letter of Credit or the use or
proposed use of the proceeds therefrom (including any refusal by the L/C Issuer
to honor a demand for payment under a Letter of Credit if the documents
presented in connection with such demand do not strictly comply with the terms
of such Letter of Credit), (iii) any actual or alleged presence or release of
Hazardous Materials on or from any property owned or operated by the Borrower or
any of its Subsidiaries, or any Environmental Liability related in any way to
the Borrower or any of its Subsidiaries, or (iv) any actual or prospective
claim, litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory, whether brought by a third
party or by the Borrower or any other Loan Party, and regardless of whether any
Indemnitee is a party thereto, in all cases, whether or not caused by or
arising, in whole or in part, out of the comparative, contributory or sole
negligence of the Indemnitee; provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses (x) are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Indemnitee or (y) result from a claim
brought by the Borrower or any other Loan Party against an Indemnitee for breach
in bad faith of such Indemnitee's obligations hereunder or under any other Loan
Document, if the Borrower or such Loan Party has obtained a final and
nonappealable judgment in its favor on such claim as determined by a court of
competent jurisdiction.
The Borrower hereby agrees to reimburse each Indemnitee promptly following
written demand therefor setting forth in reasonable detail a breakdown of such
claims, damages, losses, liabilities and expenses (provided that failure to
provide such written demand shall not relieve the Borrower of its obligation to
indemnify any Indemnitee for such claims, damages, losses, liabilities and
expenses). All Indemnitees shall use a single counsel for related claims in each
applicable jurisdiction; provided, however, than an Indemnitee shall have the
right to employ separate counsel, and the Borrower shall bear the reasonable
fees, costs and expenses of such separate counsel, if (a) the use of counsel
chosen by the other Indemnitees to represent the Indemnitees would present such
counsel with a conflict of interest; (b) such Indemnitee shall have reasonably
concluded that there may be legal defenses available to it that are different
from or additional to those available to the other Indemnitees; (c) such
Indemnitee shall have reasonably concluded that it otherwise has divergent
interests from the other Indemnitees or (d) the Borrower shall authorize in
writing such Indemnitee to employ separate counsel at the Borrower's expense.
(c) Reimbursement by Lenders. To the extent that the Borrower for any
reason fails to indefeasibly pay any amount required under subsection (a) or (b)
of this Section to be paid by it to the Administrative Agent (or any sub-agent
thereof), the L/C Issuer or any Related Party of any of the foregoing, each
Lender severally agrees to pay to the Administrative Agent (or any such
sub-agent), the L/C Issuer or such Related Party, as the case may be, such
Lender's Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent (or any such sub-agent) or the L/C Issuer in
its capacity as such, or against any Related Party of any of the foregoing
acting for the Administrative Agent (or any such sub-agent) or L/C Issuer in
connection with such capacity. The obligations of the Lenders under this
subsection (c) are subject to the provisions of Section 2.12(d).
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(d) Waiver of Consequential Damages, Etc. To the fullest extent
permitted by applicable Law, the Borrower shall not assert, and hereby waives,
any claim against any Indemnitee, on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to direct or actual
damages) arising out of, in connection with, or as a result of, this Agreement,
any other Loan Document or any agreement or instrument contemplated hereby, the
transactions contemplated hereby or thereby, any Loan or Letter of Credit or the
use of the proceeds thereof. No Indemnitee referred to in subsection (b) above
shall be liable for any damages arising from the use by unintended recipients of
any information or other materials distributed by it through telecommunications,
electronic or other information transmission systems in connection with this
Agreement or the other Loan Documents or the transactions contemplated hereby or
thereby.
(e) Payments. All amounts due under this Section shall be payable not
later than ten Business Days after demand therefor.
(f) Survival. The agreements in this Section shall survive the
resignation of the Administrative Agent and the L/C Issuer, the replacement of
any Lender, the termination of the Aggregate Commitments and the repayment,
satisfaction or discharge of all the other Obligations.
10.05 PAYMENTS SET ASIDE. To the extent that any payment by or on behalf
of the Borrower is made to the Administrative Agent or any Lender, the L/C
Issuer, the Administrative Agent or any Lender exercises its right of setoff,
and such payment or the proceeds of such set-off or any part thereof is
subsequently invalidated, declared to be fraudulent or preferential, set aside
or required (including pursuant to any settlement entered into by the
Administrative Agent, the L/C Issuer or such Lender in its discretion) to be
repaid to a trustee, receiver or any other party, in connection with any
proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of
such recovery, the obligation or part thereof originally intended to be
satisfied shall be revived and continued in full force and effect as if such
payment had not been made or such setoff had not occurred, and (b) each Lender
and the L/C Issuer severally agrees to pay to the Administrative Agent, the L/C
Issuer upon demand its applicable share (without duplication) of any amount so
recovered from or repaid by the Administrative Agent, plus interest thereon from
the date of such demand to the date such payment is made at a rate per annum
equal to the Federal Funds Rate from time to time in effect.
10.06 SUCCESSORS AND ASSIGNS.
(a) Successors and Assigns Generally. 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 the Administrative Agent and 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 subsection (b) of this Section 10.06, (ii) by way of participation in
accordance with the provisions of subsection (d) of this Section 10.06, or (iii)
by way of pledge or assignment of a security interest subject to the
restrictions of subsection (f) of this Section (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 subsection (d) of this
Section 10.06 and, to the extent expressly
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contemplated hereby, the Related Parties of each of the Administrative Agent,
the L/C Issuer and the Lenders) any legal or equitable right, remedy or claim
under or by reason of this Agreement.
(b) Assignments by Lenders. 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 Commitment and the Loans
(including for purposes of this subsection (b), participations in L/C
Obligations and in Swing Line Loans) at the time owing to it); provided that
(i) except in the case of an assignment of the entire remaining
amount of the assigning Lender's Commitment and the Loans at the time
owing to it or in the case of an assignment to a Lender or an Affiliate of
a Lender or an Approved Fund with respect to a Lender, the aggregate
amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the Commitment is not then in effect, the
outstanding principal balance of the Loan 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 a "Trade Date" is specified in the Assignment
and Assumption, as of the Trade Date, shall not be less than $5 million
unless each of the Administrative Agent and, so long as no Event of
Default has occurred and is continuing, the Borrower otherwise consents
(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 Commitment assigned,
except that this clause (ii) shall not apply to rights in respect of Swing
Line Loans;
(iii) any assignment of a Commitment must be approved by the
Administrative Agent, the L/C Issuer and the Swing Line Lender (each such
consent not to be unreasonably withheld), unless the Person that is the
proposed assignee is itself a Lender (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 in the amount of $2,500 (other than
assignments by a Lender to one of its Affiliates), and the Eligible
Assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent an Administrative Questionnaire and shall deliver to the Borrower
and the Administrative Agent the tax form required to be delivered
pursuant to Section 3.01(e).
Subject to acceptance and recording thereof by the Administrative Agent pursuant
to subsection (c) of this Section 10.06, 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 3.01, 3.04, 3.05 and 10.04 with
respect to facts and circumstances occurring
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prior to the effective date of such assignment). Upon request, the Borrower (at
its expense) shall execute and deliver a Note to the assignee Lender. Any
assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this subsection 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 subsection (d) of this Section 10.06.
(c) Register. The Administrative Agent, acting solely for this purpose
as an agent of the Borrower, shall maintain at the Administrative Agent's Office
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 Commitments of,
and principal amounts of the Loans and L/C Obligations and the amount of
interest thereon owing to and paid to, each Lender pursuant to the terms hereof
from time to time (the "Register"). The entries in the Register shall be
conclusive absent manifest error, 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 each of the Borrower and the L/C Issuer, at any
reasonable time and from time to time upon reasonable prior notice. In addition,
at any time that a request for a consent for a material or substantive change to
the Loan Documents is pending, any Lender may request and receive from the
Administrative Agent a copy of the Register.
(d) Participations. 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 Commitment and/or the Loans (including such Lender's
participations in L/C Obligations and/or Swing Line 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, the Lenders and the L/C Issuer 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, waiver or other modification
described in clauses (b), (c), (d) or (g) of the first proviso to Section 10.01
that directly affects such Participant. Subject to subsection (e) of this
Section, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to subsection (b) of
this Section 10.06. To the extent permitted by Law, each Participant also shall
be entitled to the benefits of Section 10.08 as though it were a Lender;
provided such Participant agrees to be subject to Section 2.13 as though it were
a Lender.
(e) Limitations upon Participant Rights. A Participant shall not be
entitled to receive any greater payment under Section 3.01 or 3.04 than the
applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to
such Participant is made with the Borrower's prior written consent. A
Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of Section 3.01 unless the
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Borrower is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrower, to comply with Section
3.01(e) as though it were a Lender.
(f) Certain Pledges. Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under this Agreement
(including under its Note, if any) to secure obligations of such Lender,
including 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) Electronic Execution of Assignments. The words "execution,"
"signed," "signature," and words of like import in any Assignment and Assumption
shall be deemed to include electronic signatures or the keeping of records in
electronic form, each of which shall be of the same legal effect, validity or
enforceability as a manually executed signature or the use of a paper-based
recordkeeping system, as the case may be, to the extent and as provided for in
any applicable Law, including the Federal Electronic Signatures in Global and
National Commerce Act, the New York State Electronic Signatures and Records Act,
or any other similar state Laws based on the Uniform Electronic Transactions
Act.
(h) Resignation as L/C Issuer or Swing Line Lender after Assignment.
Notwithstanding anything to the contrary contained herein, if at any time Bank
of America assigns all of its Commitment and Loans pursuant to subsection (b)
above, Bank of America may, (i) upon 30 days' notice to the Borrower and the
Lenders, resign as L/C Issuer and/or (ii) upon 30 days' notice to the Borrower,
resign as Swing Line Lender. In the event of any such resignation as L/C Issuer
or Swing Line Lender, the Borrower shall be entitled to appoint from among the
Lenders a successor L/C Issuer or Swing Line Lender hereunder; provided,
however, that no failure by the Borrower to appoint any such successor shall
affect the resignation of Bank of America as L/C Issuer or Swing Line Lender, as
the case may be. If Bank of America resigns as L/C Issuer, it shall retain all
the rights, powers, privileges and duties of the L/C Issuer hereunder with
respect to all Letters of Credit outstanding as of the effective date of its
resignation as L/C Issuer and all L/C Obligations with respect thereto
(including the right to require the Lenders to make Base Rate Loans or fund risk
participations in Unreimbursed Amounts pursuant to Section 2.03(c)). If Bank of
America resigns as Swing Line Lender, it shall retain all the rights of the
Swing Line Lender provided for hereunder with respect to Swing Line Loans made
by it and outstanding as of the effective date of such resignation, including
the right to require the Lenders to make Base Rate Loans or fund risk
participations in outstanding Swing Line Loans pursuant to Section 2.04(c). Upon
the appointment of a successor L/C Issuer and/or Swing Line Lender, (a) such
successor shall succeed to and become vested with all of the rights, powers,
privileges and duties of the retiring L/C Issuer or Swing Line Lender, as the
case may be, and (b) the successor L/C Issuer shall issue letters of credit in
substitution for the Letters of Credit, if any, outstanding at the time of such
succession or make other arrangements satisfactory to Bank of America to
effectively assume the obligations of Bank of America with respect to such
Letters of Credit.
10.07 TREATMENT OF CERTAIN INFORMATION; CONFIDENTIALITY. Each of the
Administrative Agent, the Lenders and the L/C Issuer agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to its Affiliates and to its and its Affiliates' respective
partners, directors, officers, employees, advisors and representatives in
connection with the transactions contemplated hereby (it being understood that
the Persons to whom
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such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the
extent requested by any regulatory authority purporting to have authority over
it (including any self-regulatory authority, such as the National Association of
Insurance Commissioners) (in which case, except in the case of supervisory
examinations by bank regulatory authorities, such Administrative Agent, Lender
or L/C Issuer shall promptly notify you to the extent lawfully permitted to do
so, provided that in no event shall any of the Administrative Agent, Lenders or
L/C Issuer be liable to you for any claims, losses or damages arising from any
failure to so notify you of such disclosure), (c) to the extent required by
applicable Law or regulations or by any subpoena or similar legal process, (d)
to any other party hereto, (e) in connection with the exercise of any remedies
hereunder or under any other Loan Document or any action or proceeding relating
to this Agreement or any other Loan Document or the enforcement of rights
hereunder or thereunder, (f) subject to an agreement containing provisions
substantially the same as those of this Section 10.07, to (i) any assignee of or
Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement or (ii) any actual or prospective
counterparty (or its advisors) to any swap or derivative transaction relating to
the Borrower and its obligations, or (g) with the consent of the Borrower.
For purposes of this Section, "Information" means all information received
from the Borrower or any Subsidiary relating to the Borrower or any Subsidiary
or any of their respective businesses, other than any such information that is
available to the Administrative Agent, any Lender or the L/C Issuer on a
nonconfidential basis prior to disclosure by the Borrower or any Subsidiary;
provided that, in the case of information received from the Borrower or any
Subsidiary after the date hereof, such information is clearly identified at the
time of delivery as confidential provided, further, that "Information" shall
exclude any information that (x) is in the Administrative Agent, the L/C Issuer
or any Lender's possession prior to its being provided by you or on your behalf,
provided that such information is not known by such Administrative Agent, L/C
Issuer or Lender to be subject to another confidentiality agreement with, or
other legal or contractual obligation of confidentiality to, you, (y) is or
becomes publicly available (other than through a breach of this Agreement by the
Administrative Agent, L/C Issuer or any Lender), or (z) becomes available to any
the Administrative Agent, L/C Issuer or any Lender on a nonconfidential basis,
provided that the source of such information was not known by such
Administrative Agent, L/C Issuer or Lender to be bound by a confidentiality
agreement or other legal or contractual obligation of confidentiality with
respect to such information. Any Person required to maintain the confidentiality
of Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of
care to maintain the confidentiality of such Information as such Person would
accord to its own confidential information.
Each of the Administrative Agent, the Lenders and the L/C Issuer
acknowledges that (a) the Information may include material non-public
information concerning the Borrower or a Subsidiary, as the case may be, (b) it
has developed compliance procedures regarding the use of material non-public
information and (c) it will handle such material non-public information in
accordance with applicable Law, including Federal and state securities Laws.
10.08 RIGHT OF SETOFF. If an Event of Default shall have occurred and be
continuing, each Lender, the L/C Issuer and each of their respective Affiliates
is hereby authorized at any time and from time to time, to the fullest extent
permitted by Law, to setoff and apply any and all deposits (general or special,
time or demand, provisional or final, in whatever currency) at any time held and
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other obligations (in whatever currency) at any time owing by such Lender, the
L/C Issuer or any such Affiliate to or for the credit or the account of the
Borrower against any and all of the obligations of the Borrower now or hereafter
existing under this Agreement or any other Loan Document to such Lender or the
L/C Issuer, irrespective of whether or not such Lender or the L/C Issuer shall
have made any demand under this Agreement or any other Loan Document and
although such obligations of the Borrower may be contingent or unmatured or are
owed to a branch or office of such Lender or the L/C Issuer different from the
branch or office holding such deposit or obligated on such indebtedness. The
rights of each Lender, the L/C Issuer and their respective Affiliates under this
Section are in addition to other rights and remedies (including other rights of
setoff) that such Lender, the L/C Issuer or their respective Affiliates may
have. Each Lender and the L/C Issuer agrees to notify the Borrower and the
Administrative Agent promptly after any such setoff and application, provided
that the failure to give such notice shall not affect the validity of such
setoff and application.
10.09 INTEREST RATE LIMITATION. Notwithstanding anything to the contrary
contained in any Loan Document, the interest paid or agreed to be paid under the
Loan Documents shall not exceed the maximum rate of non-usurious interest
permitted by applicable Law (the "Maximum Rate"). If the Administrative Agent or
any Lender shall receive interest in an amount that exceeds the Maximum Rate,
the excess interest shall be applied to the principal of the Loans or, if it
exceeds such unpaid principal, refunded to the Borrower. In determining whether
the interest contracted for, charged, or received by the Administrative Agent or
a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by
applicable Law, (a) characterize any payment that is not principal as an
expense, fee, or premium rather than interest, (b) exclude voluntary prepayments
and the effects thereof, and (c) amortize, prorate, allocate, and spread in
equal or unequal parts the total amount of interest throughout the contemplated
term of the Obligations hereunder.
10.10 COUNTERPARTS; INTEGRATION; EFFECTIVENESS. This Agreement may be
executed in counterparts (and by different parties hereto in different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement and the other
Loan Documents constitute the entire contract among the parties relating to the
subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except
as provided in Section 4.01, this Agreement shall become effective when it shall
have been executed by the Administrative Agent and when the Administrative Agent
shall have received counterparts hereof that, when taken together, bear the
signatures of each of the other parties hereto. Delivery of an executed
counterpart of a signature page of this Agreement by telecopy shall be effective
as delivery of a manually executed counterpart of this Agreement. With respect
to any matter expressly provided for in this Agreement, in the event of any
conflict or inconsistency between the provisions of this Agreement and those of
any other Loan Document with respect to such matter, then the provisions of this
Agreement shall control such matter; provided, however, that the inclusion of
additional, supplemental or alternative rights or remedies in favor of any
Secured Party in any other Loan Document shall not be deemed to be a conflict or
inconsistent with this Agreement.
10.11 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties made hereunder and in any other Loan Document or other document
delivered pursuant hereto or thereto or in connection herewith or therewith
shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by the
Administrative
93
Agent and each Lender, regardless of any investigation made by the
Administrative Agent or any Lender or on their behalf and notwithstanding that
the Administrative Agent or any Lender may have had notice or knowledge of any
Default at the time of any Credit Extension, and shall continue in full force
and effect as long as any Loan or any other Obligation hereunder shall remain
unpaid or unsatisfied or any Letter of Credit shall remain outstanding.
10.12 SEVERABILITY. If any provision of this Agreement or the other Loan
Documents is held to be illegal, invalid or unenforceable, (a) the legality,
validity and enforceability of the remaining provisions of this Agreement and
the other Loan Documents shall not be affected or impaired thereby and (b) the
parties shall endeavor in good faith negotiations to replace the illegal,
invalid or unenforceable provisions with valid provisions the economic effect of
which comes as close as possible to that of the illegal, invalid or
unenforceable provisions. The invalidity of a provision in a particular
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
10.13 REPLACEMENT OF LENDERS. If any Lender requests compensation under
Section 3.04, or if the Borrower is required to pay any additional amount to any
Lender or any Governmental Authority for the account of any Lender pursuant to
Section 3.01, or any Lender submits a notice pursuant to Section 3.02, or if any
Lender is a Defaulting Lender, or if the circumstances exist under the last
sentence in Section 10.01, then the Borrower may, at its sole expense and
effort, upon notice to such Lender and the Administrative Agent, require such
Lender to assign and delegate, without recourse (in accordance with and subject
to the restrictions contained in, and consents required by, Section 10.06), all
of its interests, rights and obligations under this Agreement and the related
Loan Documents to an assignee that shall assume such obligations (which assignee
may be another Lender, if a Lender accepts such assignment), provided that:
(a) the Borrower shall have paid to the Administrative Agent the
assignment fee specified in Section 10.06(b);
(b) such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans and L/C Advances, accrued interest thereon,
accrued fees and all other amounts payable to it hereunder and under the other
Loan Documents (including any amounts under Section 3.05) from the assignee (to
the extent of such outstanding principal and accrued interest and fees) or the
Borrower (in the case of all other amounts);
(c) in the case of any such assignment resulting from a claim for
compensation under Section 3.04 or payments required to be made pursuant to
Section 3.01, such assignment will result in a reduction in such compensation or
payments thereafter;
(d) such assignment does not conflict with applicable Laws; and
(e) such assignment is recorded in the Register.
A Lender shall not be required to make any such assignment or delegation
if, prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Borrower to require such assignment and delegation
cease to apply.
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10.14 GOVERNING LAW; JURISDICTION; ETC.
(a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(b) SUBMISSION TO JURISDICTION. EACH PARTY HERETO IRREVOCABLY AND
UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN THE BOROUGH OF
MANHATTAN AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF
NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO
IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT
OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT.
EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR
PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY
SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS
AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT ANY PARTY
HERETO MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST ANY OTHER PARTY OR ITS PROPERTIES
IN THE COURTS OF ANY JURISDICTION.
(c) WAIVER OF VENUE. EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT
MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY
COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR
PROCEEDING IN ANY SUCH COURT.
(d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO
SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02. NOTHING
IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN
ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
10.15 WAIVER OF JURY TRIAL EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY
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HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
10.16 USA PATRIOT ACT NOTICE. Each of the Lenders that is subject to the
Patriot Act (as hereinafter defined), the Administrative Agent (for itself and
not on behalf of any Lender) and the L/C Issuer 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)), 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, the Administrative Agent or the L/C Issuer, as applicable, to identify
the Borrower in accordance with such Act.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
POLYMEDICA CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
___________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
_________________________________
Title: Chief Financial Officer
________________________________
BANK OF AMERICA, N.A., as
Administrative Agent
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
___________________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
_________________________________
Title: Assistant Vice President
________________________________
WACHOVIA BANK, NATIONAL
ASSOCIATION, as Syndication Agent
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
___________________________________
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
_________________________________
Title: Vice President
________________________________
CITIZENS BANK OF MASSACHUSETTS, as
Documentation Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
___________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
_________________________________
Title: Senior Vice President
________________________________
BANK OF AMERICA, N.A., as a Lender, L/C
Issuer and Swing Line Lender
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
___________________________________
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
_________________________________
Title: Senior Vice President
________________________________
WACHOVIA BANK, NATIONAL
ASSOCIATION, as a Lender
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
___________________________________
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
_________________________________
Title: Vice President
________________________________
CITIZENS BANK OF MASSACHUSETTS, as a
Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
___________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
_________________________________
Title: Senior Vice President
________________________________
KEYBANK NATIONAL ASSOCIATION, as a
Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
___________________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
_________________________________
Title: Senior Vice President
________________________________
CIBC INC., as a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
___________________________________
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
_________________________________
Title: Managing Director
_______________________________
SUNTRUST BANK, as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
___________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
________________________________
Title: Director
________________________________
DEUTSCHE BANK TRUST COMPANY
AMERICAS, as a Lender
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
By:___________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇
Name:_________________________________
Vice President
Title:________________________________
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
By:___________________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇
Name:_________________________________
Director
Title:________________________________
UBS LOAN FINANCE LLC, as a Lender
/s/ ▇▇▇▇▇▇▇ ▇. Saint
By:___________________________________
▇▇▇▇▇▇▇ ▇. Saint
Name:_________________________________
Director
Title:________________________________
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
By:___________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:_________________________________
Director
Title:________________________________