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EXHIBIT 10.37a
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COMMITMENT AGREEMENT
dated as of July 27, 2001,
by and among
MEDCATH INCORPORATED,
as Obligor,
the Lenders referred to herein,
BANK OF AMERICA, N.A.,
as Administrative Agent,
BANKERS TRUST COMPANY,
as Syndication Agent,
and
FIRST UNION NATIONAL BANK,
as Documentation Agent
BANC OF AMERICA SECURITIES LLC and
DEUTSCHE BANC ALEX. ▇▇▇▇▇ INC.,
as Co-Lead Arrangers and Co-Book Managers
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TABLE OF CONTENTS
ARTICLE I DEFINITIONS........................................................................1
SECTION 1.1 Definitions.....................................................................1
SECTION 1.2 General.........................................................................6
SECTION 1.3 Other Definitions and Provisions................................................6
ARTICLE II FINANCING COMMITMENT..............................................................7
SECTION 2.1 Commitment to Provide Financing.................................................7
SECTION 2.2 Procedure for Advance of each Construction Loan.................................9
SECTION 2.3 Permanent Reduction of the Revolving Credit Commitment..........................9
SECTION 2.4 Use of Proceeds.................................................................9
SECTION 2.5 Increase of Aggregate Commitment................................................9
SECTION 2.6 Termination of Agreement.......................................................10
ARTICLE III GENERAL PROVISIONS..............................................................10
SECTION 3.1 Fees...........................................................................10
SECTION 3.2 Capital Requirements...........................................................10
SECTION 3.3 Taxes..........................................................................11
ARTICLE IV CLOSING; CONDITIONS OF CLOSING AND BORROWING.....................................12
SECTION 4.1 Closing........................................................................12
SECTION 4.2 Conditions to Closing..........................................................12
ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE COMPANY.....................................15
SECTION 5.1 Representations and Warranties.................................................15
SECTION 5.2 Survival of Representations and Warranties, Etc................................17
COVENANTS....................................................................................17
SECTION 6.1 General Covenants..............................................................18
SECTION 6.2 Further Assurances.............................................................18
SECTION 6.3 Accuracy of Information........................................................18
ARTICLE VII DEFAULT AND REMEDIES...........................................................18
SECTION 7.1 Events of Default..............................................................18
SECTION 7.2 Remedies.......................................................................20
SECTION 7.3 Rights and Remedies Cumulative; Non-Waiver; etc................................21
ARTICLE VIII THE ADMINISTRATIVE AGENT.......................................................21
SECTION 8.1 Terms and Conditions Relating to the Administrative Agent, the Syndication
Agent, the Documentation Agent and the Co-Lead Arrangers.......................21
ARTICLE IX MISCELLANEOUS....................................................................22
SECTION 9.1 Notices........................................................................22
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SECTION 9.2 Expenses; Indemnity............................................................23
SECTION 9.3 Set-off........................................................................24
SECTION 9.4 Governing Law..................................................................24
SECTION 9.5 Jurisdiction and Venue.........................................................25
SECTION 9.6 Waiver of Right to Trial by Jury...............................................25
SECTION 9.7 Reversal of Payments...........................................................25
SECTION 9.8 Injunctive Relief; Punitive Damages............................................26
SECTION 9.9 Accounting Matters.............................................................26
SECTION 9.10 Successors and Assigns; Participations.........................................26
SECTION 9.11 Amendments, Waivers and Consents...............................................29
SECTION 9.12 Confidentiality................................................................30
SECTION 9.13 Performance of Duties..........................................................30
SECTION 9.14 All Powers Coupled with Interest...............................................30
SECTION 9.15 Survival of Indemnities........................................................31
SECTION 9.16 Titles and Captions............................................................31
SECTION 9.17 Severability of Provisions.....................................................31
SECTION 9.18 Counterparts...................................................................31
SECTION 9.19 Term of Agreement..............................................................31
SECTION 9.20 Advice of Counsel..............................................................31
SECTION 9.21 No Strict Construction.........................................................31
SECTION 9.22 Inconsistencies with Other Documents; Independent Effect of Covenants..........31
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EXHIBITS AND SCHEDULES
EXHIBITS
Exhibit A - Form of Construction Loan Agreement
Exhibit B - Form of Notice of Proposed Construction Loan Facility
Exhibit C - Form of Notice of Aggregate Commitment Reduction
Exhibit D - Form of Assignment and Acceptance
Exhibit E - Form Construction Loan Documents
E-1 - Form of Construction Loan Note
E-2 - Form of Guaranty Agreement
E-3 - Form of Mortgage and Security Agreement
E-4 - Form of Security Agreement
E-5 - Form of Pledge and Security Agreement
E-6 - Form of Collateral Assignment of Architect's Contract
E-7 - Form of Collateral Assignment of Construction Contract
E-8 - Form of Management Fee and Guaranty Fee Subordination
Agreement
E-9 - Form of Intercompany Loan Subordination Agreement
SCHEDULES
Schedule 1.1(a) - Lenders and Commitments
Schedule 1.1(b) - Related Loan Agreements and Related Guaranty Agreements
as of the Closing Date
Schedule 1.1(c) - Material Contracts
Schedule 5.1(a) - Jurisdictions of Organization and Qualification
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COMMITMENT AGREEMENT
COMMITMENT AGREEMENT, dated as of the 27th day of July, 2001, by and
among, MEDCATH INCORPORATED, a North Carolina corporation, the lenders who are
or may become a party to this Agreement, as Lenders, BANK OF AMERICA, N.A., as
Administrative Agent for the Lenders, BANKERS TRUST COMPANY, as Syndication
Agent for the Lenders, and FIRST UNION NATIONAL BANK, as Documentation Agent for
the Lenders.
STATEMENT OF PURPOSE
Subject to the terms and conditions of this Agreement, the Company has
requested, and the Lenders have agreed to provide, financing for the acquisition
and construction of new hospital facilities by Subsidiaries previously formed or
hereafter to be formed by the Company (collectively, the "New Hospital Joint
Ventures").
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, such parties
hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions. The following terms when used in this
Agreement shall have the meanings assigned to them below:
"Administrative Agent" means Bank of America, in its capacity as
Administrative Agent hereunder, and any successor thereto appointed pursuant to
Article VIII.
"Administrative Agent-Related Person" shall have the meaning assigned
thereto in the Related Loan Agreements.
"Administrative Agent's Office" means the office of the Administrative
Agent specified in or determined in accordance with the provisions of Section
9.1(c).
"Affiliate" shall have the meaning assigned thereto in the Related Loan
Agreements.
"Aggregate Commitment" means the aggregate amount of the Lenders'
Commitments hereunder, as such amount may be reduced, increased or otherwise
modified at any time or from time to time pursuant to the terms hereof. On the
Closing Date, the Aggregate Commitment shall be [One Hundred Ten Million Dollars
($110,000,000)].
"Aggregate Project Costs" means, with respect to any new hospital
facility to be constructed by a New Hospital Joint Venture with the proceeds of
a Construction Loan Facility,
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all costs and expenses required to construct such new hospital facility
(excluding costs and expenses attributable to any equipment which is subject to
any equipment loan financing applicable thereto), which costs and expenses are
detailed on the budget prepared in connection with such Construction Loan
Facility.
"Agreement" means this Commitment Agreement, as amended, restated,
supplemented or otherwise modified from time to time.
"Applicable Law" shall have the meaning assigned thereto in the Related
Guaranty Agreements.
"Approved Fund" shall have the meaning assigned thereto in Section
9.10(f).
"Assignment and Acceptance" means an Assignment and Acceptance
substantially in the form of Exhibit D attached hereto.
"Attorney Costs" means and includes all fees and disbursements of any
law firm or other external counsel.
"Bank of America" means Bank of America, N.A., a national banking
association, and its successors.
"Borrower" means any borrower which is a party to any of the Related
Loan Agreements.
"Business Day" shall have the meaning assigned thereto in the Related
Loan Agreements.
"Closing Date" means the date of this Agreement or such later Business
Day upon which each condition described in Section 4.2 shall be satisfied or
waived in all respects in a manner acceptable to the Administrative Agent, in
its sole discretion.
"Co-Lead Arrangers" means Banc of America Securities LLC and Deutsche
Bank Alex. ▇▇▇▇▇ Inc. in their capacity as co-lead arrangers and co-book
managers.
"Commitment" means (a) as to any Lender, the amount set forth opposite
such Lender's name on Schedule 1.1(a) hereto, as such amount may be reduced or
modified at any time or from time to time pursuant to the terms hereof and (b)
as to all Lenders, the aggregate amount designated Schedule 1.1(a) hereto, as
such amount may be reduced or modified at any time or from time to time pursuant
to the terms hereof.
"Commitment Percentage" means, as to any Lender, the ratio of (a) the
amount of the Commitment of such Lender to (b) the Aggregate Commitment of all
of the Lenders.
"Company" means MedCath Incorporated, a North Carolina corporation.
"Consolidated" shall have the meaning assigned thereto in the Related
Guaranty Agreements.
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"Construction Loan Advances" means the construction loan advances made
to each applicable New Hospital Joint Venture pursuant to each Construction Loan
Agreement which has been duly executed and delivered pursuant to Section 2.1.
"Construction Loan Agreement" means any Construction Loan Agreement by
and among any applicable New Hospital Joint Venture, the Lenders, the
Administrative Agent, the Syndication Agent and the Documentation Agent,
substantially in the form of Exhibit A attached hereto, evidencing the agreement
of the Lenders to provide a Construction Loan Facility to such New Hospital
Joint Venture, and any amendments, restatements, supplements or other
modifications thereto.
"Construction Loan Facility" means any construction loan facility
extended by the Lenders to a New Hospital Joint Venture designated by the
Company pursuant to Article II.
"Debtor Relief Law" shall have the meaning assigned thereto in the
Related Loan Agreements.
"Default" means any of the events specified in Section 7.1 which with
the passage of time, the giving of notice or any other condition, would
constitute an Event of Default.
"Documentation Agent" means First Union National Bank, in its capacity
as Documentation Agent hereunder.
"Eligible Assignee" shall have the meaning assigned thereto in Section
9.10(f).
"Event of Default" means any of the events specified in Section 7.1,
provided that any requirement for passage of time, giving of notice, or any
other condition, has been satisfied.
"Fee Letters" means the collective reference to (a) the fee letter
dated June 1, 2001 among the Company, the Administrative Agent, the Syndication
Agent and the Co-Lead Arrangers, (b) the administration fee letter dated June 1,
2001 among the Company, Bank of America and Banc of America Securities LLC and
(c) the supplemental fee letter dated April 17, 2001 among the Company, Bank of
America and Banc of America Securities LLC.
"Fiscal Year" shall have the meaning assigned thereto in the Related
Guaranty Agreements.
"Foreign Lender" shall have the meaning assigned thereto in Section
3.3(e).
"Form Construction Loan Documents" means the construction loan
documents to be executed in connection with each Construction Loan Facility,
substantially in the form of Exhibits E-1 through E-10 attached hereto,
including any amendments, restatements, supplements or other modifications
thereto.
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"Governmental Approval" shall have the meaning assigned thereto in the
Related Guaranty Agreements.
"Governmental Authority" shall have the meaning assigned thereto in the
Related Guaranty Agreements.
"Guarantor" means any guarantor which is a party to any of the Related
Guaranty Agreements.
"Holdings" means MedCath Holdings, Inc., a Delaware corporation, and
the owner of one hundred percent (100%) of the issued and outstanding capital
stock of Intermediate Holdings.
"Hospital Joint Venture" means any business entity (a) formed for the
purpose of owning, operating or managing a heart hospital and related facilities
or diagnostic facilities, and (b) a portion of the capital stock, limited
liability company interests, partnership interests or other ownership interest
of which is owned or beneficially controlled, either directly or indirectly, by
the Parent or one or more of its Wholly-Owned Subsidiaries.
"Indemnitees" shall have the meaning assigned thereto in Section 9.2
(b).
"Indemnified Liabilities" shall have the meaning assigned thereto in
Section 9.2 (b).
"Information" shall have the meaning assigned thereto in Section 9.12.
"Initial Public Offering" shall have the meaning assigned thereto in
Section 4.2(d)(ii).
"Intermediate Holdings" means MedCath Intermediate Holdings, Inc., a
Delaware corporation, and the owner of one hundred percent (100%) of the issued
and outstanding capital stock of the Company.
"Lender" means each Person executing this Agreement as a Lender set
forth on the signature pages hereto and each Person that hereafter becomes a
party to this Agreement as a Lender pursuant to Section 9.10.
"Loan Documents" means, collectively, this Agreement and each other
document, instrument, certificate and agreement executed and delivered by the
Company or any Affiliate thereof in connection with this Agreement or otherwise
referred to herein or contemplated hereby (excluding any Hedging Agreement), all
as may be amended, restated, supplemented or otherwise modified from time to
time.
"Material Adverse Effect" means, with respect to the Parent and its
Subsidiaries, a material adverse effect on (i) the properties, business,
operations or condition (financial or otherwise) of the Parent and its
Subsidiaries on a consolidated basis, taken as a whole, or (ii) any such Person
or the ability of any such Person to perform its obligations under the Loan
Documents to which it is a party.
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"Material Contract" means (a) as of the Closing Date, the contracts and
agreements set forth on Schedule 1.1(c) and (b) after the Closing Date, (i) the
contracts and agreements set forth on Schedule 1.1(c), (ii) any contract or
other agreement, written or oral, of the Parent or any Subsidiary thereof (A)
which involves monetary liability of or to any such Person in an amount in
excess of (1) $1,000,000 per annum with respect to any such Person (other than
the MedCath Parent Entities) and (2) $5,000,000 with respect to any MedCath
Parent Entity and (B) which by its terms may not be canceled within ninety (90)
days, or (iii) any other contract or agreement, written or oral, of any such
Person the failure to comply with which could reasonably be expected to have a
Material Adverse Effect.
"MedCath Parent Entities" means MedCath Corporation, MedCath Holdings,
Inc., MedCath Intermediate Holdings, Inc. and MedCath Incorporated.
"New Hospital Joint Venture" shall have the meaning assigned thereto in
the Statement of Purpose.
"Notice of Aggregate Commitment Reduction" shall have the meaning
assigned thereto in Section 2.3.
"Notice of Proposed Construction Loan Facility" means shall have the
meaning assigned thereto in Section 2.2.
"Obligations" means, whether now in existence or hereafter arising, all
fees and commissions (including Attorney Costs), charges, indebtedness, loans,
liabilities, financial accommodations, obligations, covenants and duties owing
by the Company to the Lenders or the Administrative Agent, in each case under or
in respect of this Agreement, or any of the other Loan Documents of every kind,
nature and description, direct or indirect, absolute or contingent, due or to
become due, contractual or tortious, liquidated or unliquidated, and whether or
not evidenced by any note.
"Other Taxes" shall have the meaning assigned thereto in Section
3.3(b).
"Parent" means MedCath Corporation, a Delaware corporation, and the
owner of one hundred percent (100%) of the issued and outstanding capital stock
of Holdings.
"Participant" shall have the meaning assigned thereto in Section
9.10(d).
"Person" shall have the meaning assigned thereto in the Related
Guaranty Agreements.
"Register" shall have the meaning assigned thereto in Section 9.10(c).
"Related Credit Documents" means the collective reference to (a) each
of the Related Loan Agreements, (b) each of the Related Guaranty Agreements, and
(c) each of the other loan documents executed in connection with the Related
Loan Agreements.
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"Related Guaranty Agreements" means the collective reference to (a)
each of the Guaranty Agreements set forth on Schedule 1.1(b) hereto and (b) each
of the Guaranty Agreements entered into in connection with each Construction
Loan Agreement entered into pursuant to the terms hereof, in each case as
amended, restated, supplemented or otherwise modified in accordance with the
terms thereof.
"Related Loan Agreements" means the collective reference to (a) each of
the Loan Agreements set forth on Schedule 1.1(b) hereto and (b) each of the
Construction Loan Agreements entered into pursuant to the terms hereof, in each
case as amended, restated, supplemented or otherwise modified in accordance with
the terms thereof.
"Required Lenders" means, at any date, any combination of Lenders whose
Commitment Percentages aggregate at least sixty-six and two-thirds percent
(66-2/3%) of the Aggregate Commitment.
"Subsidiary" shall have the meaning assigned thereto in the Related
Guaranty Agreements.
"Syndication Agent" means Bankers Trust Company, in its capacity as
Syndication Agent hereunder.
"Taxes" shall have the meaning assigned thereto in Section 3.3(a).
"Termination Date" means the earliest of the dates referred to in
Section 2.6.
SECTION 1.2 General. Unless otherwise specified, a reference in this
Agreement to a particular article, section, subsection, Schedule or Exhibit is a
reference to that article, section, subsection, Schedule or Exhibit of this
Agreement. Wherever from the context it appears appropriate, each term stated in
either the singular or plural shall include the singular and plural, and
pronouns stated in the masculine, feminine or neuter gender shall include the
masculine, the feminine and the neuter. Any reference herein to "Charlotte time"
shall refer to the applicable time of day in Charlotte, North Carolina.
SECTION 1.3 Other Definitions and Provisions.
(a) Use of Capitalized Terms.
(i) Unless otherwise defined therein, all capitalized terms
defined in this Agreement shall have the defined meanings when used in
this Agreement or any certificate, report or other document made or
delivered pursuant to this Agreement.
(ii) Capitalized terms used herein, and not otherwise defined,
shall have the meaning assigned thereto in the Related Guaranty
Agreements or, to the extent any such capitalized term is not defined
in the Related Guaranty Agreements, such capitalized term shall have
the meaning assigned thereto in the Related Loan Agreements.
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(b) Miscellaneous. The words "hereof", "herein" and "hereunder" and
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement.
ARTICLE II
FINANCING COMMITMENT
SECTION 2.1 Commitment to Provide Financing.
(a) Subject to the terms and conditions of this Agreement, and in
reliance on the representations and warranties set forth herein, the Lenders
hereby agree to provide a Construction Loan Facility to each New Hospital Joint
Venture designated by the Company from the Closing Date through, but not
including, the Termination Date upon the request of the Company in accordance
with the terms of Section 2.2. The aggregate principal committed amount of each
Lender under each Construction Loan Facility requested by the Company on behalf
of each New Hospital Joint Venture shall be equal to such Lender's Commitment
Percentage of the aggregate principal amount of such Construction Loan Facility.
(b) The agreement of the Lenders set forth in Section 2.1(a) shall be
subject to the following terms and conditions:
(i) the aggregate principal committed amount of all of the
Construction Loan Facilities (after giving effect to any Construction
Loan Facility requested by the Company on behalf of any New Hospital
Joint Venture) shall not at any time exceed the Aggregate Commitment;
(ii) the aggregate principal committed amount of each Lender
under all of the Construction Loan Facilities (after giving effect to
any Construction Loan Facility requested by the Company on behalf of
any New Hospital Joint Venture) shall not at any time exceed the
Commitment of such Lender;
(iii) the aggregate principal amount of each Construction Loan
Facility to be provided to any New Hospital Joint Venture shall not
exceed the lesser of (i) eighty percent (80%) of the Aggregate Project
Costs of the new hospital facility to be constructed with the proceeds
of such Construction Loan Facility and (ii) seventy-five percent (75%)
of the appraised value of the new hospital facility to be constructed
with the proceeds of such Construction Loan Facility; provided further
that the aggregate principal amount of each Construction Loan Facility
(other than the Construction Loan Facility with respect to the new
hospital facility to be located in Harlingen, Texas) shall not exceed
$40,000,000 without the prior written consent of the Required Lenders;
(iv) each Construction Loan Facility and the obligation of the
New Hospital Joint Venture which will be the Borrower thereunder to
repay the Construction Loan Advances thereunder shall be evidenced by a
separate Construction Loan Agreement executed by such New Hospital
Joint Venture designated by the Company, the Lenders,
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the Administrative Agent, the Syndication Agent and the Documentation
Agent and all closing conditions thereunder shall be satisfied in a
manner in form and substance satisfactory to the Administrative Agent
and the Lenders;
(v) each of the following conditions shall have been satisfied
in a manner satisfactory to the Administrative Agent and the Lenders
prior to the funding of each Construction Loan Facility:
(A) the negotiation, execution and delivery of
definitive documentation with respect to such Construction
Loan Facility, including, without limitation, a Construction
Loan Agreement and Form Construction Loan Documents,
consistent with this Agreement and otherwise satisfactory to
the Administrative Agent and the Lenders and the satisfaction
of each of the closing conditions applicable to such
Construction Loan Facility; provided that the Administrative
Agent and the Lenders acknowledge that the Construction Loan
Agreement and the Form Construction Loan Documents are in form
and substance satisfactory thereto;
(B) the completion of all reasonable due diligence
reviews with respect to the Parent and its Subsidiaries, the
Company and its Subsidiaries and the applicable New Hospital
Joint Venture in scope and determination reasonably
satisfactory to the Administrative Agent and the Lenders;
provided that such due diligence reviews shall be
substantially similar in scope to the due diligence reviews
conducted by the Administrative Agent and the Lenders in
connection with the closing of this Agreement and the Related
Credit Documents (subject to the right of the Administrative
Agent and the Lenders to reasonably expand the scope of such
due diligence reviews in the event of any material change
after the Closing Date in the business or operations of the
Parent and its Subsidiaries or any Applicable Law directly
related thereto);
(C) Since September 30, 2000, there shall not have
occurred any Material Adverse Effect with respect to the
Parent and its Subsidiaries, taken as a whole, or the New
Hospital Joint Venture, and no event has occurred or condition
arisen that could reasonably be expected to have a Material
Adverse Effect;
(D) the representations and warranties contained in
Article V hereof shall be true and correct on and as of the
closing date of such Construction Loan Facility with the same
effect as if made on and as of such date, except for any
representation and warranty made as of an earlier date, which
representation and warranty shall remain true and correct as
of such earlier date; and
(E) no Default or Event of Default shall have
occurred and be continuing on and as of the closing date of
such Construction Loan Facility.
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SECTION 2.2 Procedure for Advance of each Construction Loan.
(a) The Company shall give the Administrative Agent notice in the form
attached hereto as Exhibit B (a "Notice of Proposed Construction Loan Facility")
not less than thirty (30) days prior to the proposed closing date of any
proposed Construction Loan Facility specifying (i) the name of the New Hospital
Joint Venture designated by the Company to be the Borrower in connection with
such Construction Loan Facility and (ii) the proposed closing date of such
Construction Loan Facility. The Administrative Agent shall promptly notify the
Lenders of each Notice of Proposed Construction Loan Facility.
(b) Upon the satisfaction of all of the applicable terms and conditions
set forth herein and in the applicable Construction Loan Agreement, the Lenders
shall provide the applicable Construction Loan Facility to the New Hospital
Joint Venture. Notwithstanding anything to the contrary contained herein, the
Lenders, the Administrative Agent, the Syndication Agent and the Documentation
Agent shall not be obligated to provide any Construction Loan Facility to the
extent that any of the terms and conditions set forth herein and in the
Construction Loan Agreement related thereto have not been satisfied.
SECTION 2.3 Permanent Reduction of the Revolving Credit Commitment. The
Company shall have the right at any time and from time to time, upon at least
five (5) Business Days prior written notice to the Administrative Agent, in the
form attached hereto as Exhibit C (a "Notice of Aggregate Commitment
Reduction"), to permanently reduce, without premium or penalty, (i) the entire
Aggregate Commitment at any time to zero or (ii) portions of the Aggregate
Commitment, from time to time, in an aggregate principal amount not less than
$10,000,000 or any whole multiple of $1,000,000 in excess thereof. Such
reduction shall permanently reduce the Lenders' Commitments pro rata in
accordance with their respective Commitment Percentages.
SECTION 2.4 Use of Proceeds. The Company shall cause each New Hospital
Joint Venture to use the proceeds of the Construction Loan made by the Lenders
to such New Hospital Joint Venture to (a) fund the costs associated with the
construction of a new hospital by such New Hospital Joint Venture and (b) pay
certain fees and expenses in connection with the Construction Loan Agreement
executed by such New Hospital Joint Venture, the Lenders, the Administrative
Agent, the Syndication Agent and the Documentation Agent.
SECTION 2.5 Increase of Aggregate Commitment. At any time prior to the
second (2nd) anniversary of the Closing Date, the Company shall have the
one-time right to increase the Aggregate Commitment upon not less than thirty
(30) days prior written notice to the Administrative Agent; provided that (a) in
no event shall the Aggregate Commitment be increased by an amount greater than
$50,000,000, (b) no Default or Event of Default shall have occurred and be
continuing either prior to or after giving effect to such increase in the
Aggregate Commitment and (c) the Required Lenders shall consent to such increase
in the Aggregate Commitment; provided further that:
(a) Any increase in the Aggregate Commitment which is
accomplished by increasing the Commitment of any Lender or Lenders who
are at the time of such increase party to this Agreement (which Lender
or Lenders may consent to such increase in their
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sole and absolute discretion) shall be accomplished as follows: (i)
this Agreement will be amended by the Company, the Administrative Agent
and those Lender(s) whose Commitment(s) is or are being increased to
reflect the revised Commitment amounts of each of the Lenders and (ii)
the Administrative Agent will deliver an updated Schedule 1.1(a) to the
Company and each of the Lenders reflecting the revised Commitment
amounts and Commitment Percentages of each of the Lenders; and
(b) Any increase in the Aggregate Commitment which is
accomplished by addition of a new Lender under the Agreement shall be
accomplished as follows: (i) such new Lender shall be an Eligible
Assignee and shall be subject to the consent of the Administrative
Agent, which consent shall not be unreasonably withheld, (ii) this
Agreement will be amended by the Company, the Administrative Agent and
by the party becoming an additional Lender hereunder to reflect the
addition of such party as a Lender hereunder and (iii) the
Administrative Agent will deliver an updated Schedule 1.1(a) to the
Company and each of the Lenders reflecting the revised Commitment
amounts and Commitment Percentages of each of the Lenders.
SECTION 2.6 Termination of Agreement. This Agreement shall terminate on
the earliest of (a) January [26], 2005, (b) the date of the reduction of the
Aggregate Commitment to zero by the Company pursuant to Section 2.3, or (c) the
termination of the Aggregate Commitment by the Administrative Agent on behalf of
the Lenders pursuant to Section 7.2(a).
ARTICLE III
GENERAL PROVISIONS
SECTION 3.1 Fees.
(a) Commitment Fee. Commencing on the Closing Date, the Company shall
pay to the Administrative Agent, for the account of the Lenders, a
non-refundable commitment fee at a rate per annum equal to 0.50% on the average
daily unused portion of the Aggregate Commitment. The commitment fee shall be
payable in arrears on the last Business Day of each calendar month during the
term of this Agreement commencing August 31, 2001, and on the Termination Date.
Such commitment fee shall be distributed by the Administrative Agent to the
Lenders pro rata in accordance with the Lenders' respective Commitment
Percentages.
(b) Other Fees. On the Closing Date, the Company shall pay to the
Administrative Agent, for the account of each applicable Person, all of the fees
set forth in the Fee Letters which are required to be paid on, or prior to, the
Closing Date.
SECTION 3.2 Capital Requirements. If either (a) the introduction of, or
any change in, or in the interpretation of, any Applicable Law or (b) compliance
with any guideline or request from any central bank or comparable agency or
other Governmental Authority (whether or not having the force of law), has or
would have the effect of reducing the rate of return on the capital of, or has
affected or would affect the amount of capital required to be maintained by, any
Lender or any corporation controlling such Lender as a consequence of, or with
reference to the
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Commitments and other commitments of this type, below the rate which such Lender
or such other corporation could have achieved but for such introduction, change
or compliance, then within five (5) Business Days after written demand by any
such Lender, the Company shall pay to such Lender from time to time as specified
by such Lender additional amounts sufficient to compensate such Lender or other
corporation for such reduction. A certificate as to such amounts submitted to
the Company and the Administrative Agent by such Lender, shall, in the absence
of manifest error, be presumed to be correct and binding for all purposes.
SECTION 3.3 Taxes.
(a) Payments Free and Clear. Any and all payments by the Company
hereunder shall be made free and clear of and without deduction for any and all
present or future taxes, levies, imposts, deductions, charges or withholding,
and all liabilities with respect thereto excluding, (i) in the case of each
Lender and the Administrative Agent, income and franchise taxes imposed by the
jurisdiction under the laws of which such Lender or the Administrative Agent (as
the case may be) is organized or is or should be qualified to do business or any
political subdivision thereof and (ii) in the case of each Lender, income and
franchise taxes imposed by the jurisdiction of that applicable lending office of
such Lender or any political subdivision thereof (all such non-excluded taxes,
levies, imposts, deductions, charges, withholdings and liabilities being
hereinafter referred to as "Taxes"). If the Company shall be required by law to
deduct or withhold any Taxes from or in respect of any sum payable hereunder to
any Lender or the Administrative Agent, (A) the sum payable shall be increased
as may be necessary so that after making all required deductions or withholdings
(including deductions or withholdings applicable to additional sums payable
under this Section 3.3) such Lender or the Administrative Agent (as the case may
be) receives an amount equal to the amount such party would have received had no
such deductions or withholdings been made, (B) the Company shall make such
deductions or withholdings, (C) the Company shall pay the full amount deducted
to the relevant taxing authority or other authority in accordance with
Applicable Law, and (D) the Company shall deliver to the Administrative Agent
evidence of such payment to the relevant taxing authority or other Governmental
Authority in the manner provided in Section 3.3(d).
(b) Stamp and Other Taxes. In addition, the Company shall pay any
present or future stamp, registration, recordation or documentary taxes or any
other similar fees or charges or excise or property taxes, levies of the United
States or any state or political subdivision thereof or any applicable foreign
jurisdiction which arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement or the
other Loan Documents (hereinafter referred to as "Other Taxes").
(c) Indemnity. The Company shall indemnify each Lender and the
Administrative Agent for the full amount of Taxes and Other Taxes (including,
without limitation, any Taxes and Other Taxes imposed by any jurisdiction on
amounts payable under this Section 3.3) paid by such Lender or the
Administrative Agent (as the case may be) and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto,
whether or not such Taxes or Other Taxes were correctly or legally asserted.
Such indemnification shall be made within thirty (30) days from the date such
Lender or the Administrative Agent (as the case may be) makes written demand
therefor.
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(d) Evidence of Payment. Within thirty (30) days after the date of any
payment of Taxes or Other Taxes, the Company shall furnish to the Administrative
Agent, at its address referred to in Section 9.1, the original or a certified
copy of a receipt evidencing payment thereof or other evidence of payment
satisfactory to the Administrative Agent.
(e) Delivery of Tax Forms. Each Lender organized under the laws of a
jurisdiction other than the United States or any state thereof (a "Foreign
Lender") shall deliver to the Company, with a copy to the Administrative Agent,
on the Closing Date or concurrently with the delivery of the relevant Assignment
and Acceptance, as applicable, (i) two United States Internal Revenue Service
Forms W-8ECI or Forms W-8BEN, as applicable (or successor forms) properly
completed and certifying in each case that such Lender is entitled to a complete
exemption from withholding or deduction for or on account of any United States
federal income taxes, and (ii) an Internal Revenue Service Form W-8BEN or W-8ECI
or successor applicable form, as the case may be, to establish an exemption from
United States backup withholding taxes. Each such Lender further agrees to
deliver to the Company, with a copy to the Administrative Agent, a Form W-8BEN
or W-8ECI, or successor applicable forms or manner of certification, as the case
may be, on or before the date that any such form expires or becomes obsolete or
after the occurrence of any event requiring a change in the most recent form
previously delivered by it to the Company, certifying in the case of a Form
W-8BEN or W-8ECI that such Lender is entitled to receive payments under this
Agreement without deduction or withholding of any United States federal income
taxes (unless in any such case an event (including, without limitation, any
change in treaty, law or regulation) has occurred prior to the date on which any
such delivery would otherwise be required which renders such forms inapplicable
or the exemption to which such forms relate unavailable and such Lender notifies
the Company and the Administrative Agent that it is not entitled to receive
payments without deduction or withholding of United States federal income taxes)
and, in the case of a Form W-8BEN or W-8ECI, establishing an exemption from
United States backup withholding tax.
(f) Survival. Without prejudice to the survival of any other agreement
of the Company hereunder, the agreements and obligations of the Company
contained in this Section 3.3 shall survive the payment in full of the
Obligations and the termination of the Commitments.
ARTICLE IV
CLOSING; CONDITIONS OF CLOSING AND BORROWING
SECTION 4.1 Closing. The closing shall take place at the offices of
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, at 10:00 a.m. on July [26], 2001, or on such
other date and time as the parties hereto shall mutually agree.
SECTION 4.2 Conditions to Closing. The obligation of the Lenders to
close this Agreement is subject to the satisfaction of each of the following
conditions:
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(a) Executed Loan Documents. This Agreement, together with any
other applicable Loan Documents, shall have been duly authorized,
executed and delivered to the Administrative Agent by the parties
thereto, shall be in full force and effect and no default or event of
default shall exist thereunder, and the Company shall have delivered
original counterparts thereof to the Administrative Agent.
(b) Closing Certificates; etc.
(i) Officer's Certificate. The Administrative Agent
shall have received a certificate from a Responsible Officer
of the Company, in form and substance satisfactory to the
Administrative Agent, to the effect that all representations
and warranties of the Company contained in this Agreement and
the other Loan Documents are true, correct and complete; that
the Company is not in violation of any of the covenants
contained in this Agreement and the other Loan Documents;
that, after giving effect to the transactions contemplated by
this Agreement, no Default or Event of Default has occurred
and is continuing; and that the Company have satisfied each of
the closing conditions.
(ii) Certificates of Secretary of the Company. The
Administrative Agent shall have received a certificate of the
secretary or assistant secretary of the Company certifying as
to the incumbency and genuineness of the signature of each
officer of the Company executing Loan Documents to which it is
a party and certifying that attached thereto is a true,
correct and complete copy of (a) the articles of incorporation
of the Company and all amendments thereto, certified as of a
recent date by the appropriate Governmental Authority in its
jurisdiction of incorporation, (b) the bylaws of the Company
as in effect on the date of such certifications, (c)
resolutions duly adopted by the Board of Directors of the
Company authorizing the execution, delivery and performance of
this Agreement and the other Loan Documents to which the
Company is a party and (d) each certificate required to be
delivered pursuant to Section 4.2(b)(iii).
(iii) Certificates of Good Standing. The
Administrative Agent shall have received certificates as of a
recent date of the good standing of the Company under the laws
of its jurisdiction of organization and, to the extent
requested by the Administrative Agent, each other jurisdiction
where the Company is qualified to do business and a
certificate of the relevant taxing authorities of such
jurisdictions certifying that the Company has filed required
tax returns and owes no delinquent taxes.
(iv) Opinions of Counsel. The Administrative Agent
shall have received favorable opinions of counsel to the
Company addressed to the Administrative Agent and the Lenders
with respect to the Company, the Loan Documents and such other
matters as the Lenders shall request.
(c) Consents; Defaults.
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(i) Governmental and Third Party Approvals. The
Company shall have obtained all necessary approvals,
authorizations and consents of any Person and of all
Governmental Authorities and courts having jurisdiction with
respect to the transactions contemplated by this Agreement and
the other Loan Documents.
(ii) No Injunction, Etc. No action, proceeding,
investigation, regulation or legislation shall have been
instituted, threatened or proposed before any Governmental
Authority to enjoin, restrain, or prohibit, or to obtain
substantial damages in respect of, or which is related to or
arises out of this Agreement or the other Loan Documents or
the consummation of the transactions contemplated hereby or
thereby, or which, in the Administrative Agent's sole
discretion, would make it inadvisable to consummate the
transactions contemplated by this Agreement and such other
Loan Documents.
(iii) No Event of Default. No Default or Event of
Default shall have occurred and be continuing.
(d) Financial Matters.
(i) Financial Statements. The Administrative Agent
shall have received (A) the audited Consolidated balance
sheets of the Parent and its Subsidiaries for the Fiscal Years
ending 1998, 1999 and 2000 and, in each case, the related
audited statements of income and retained earnings and cash
flows for each Fiscal Year then ended, (B) the unaudited
Consolidated balance sheet of the Parent and its Subsidiaries
as of March 30, 2001 and the related unaudited interim
statements of income and retained earnings and cash flow for
the fiscal quarter then ended, (C) interim monthly financial
statements of the Parent and its Subsidiaries, including
monthly working capital detail for the trailing twelve (12)
months and the first projected year, (D) Consolidated and
consolidating operating and financial projections (prepared by
the senior management of the Company) for the Parent and its
Subsidiaries for the Fiscal Years ending 2001, 2002, 2003,
2004 and 2005, and (E) a pro forma balance sheet of the Parent
and its Subsidiaries as of March 31, 2001 after giving effect
to the Initial Public Offering and the closing of this
Agreement and the Related Loan Agreements set forth on
Schedule 1.1(b) hereto, all in form and substance satisfactory
to the Administrative Agent and prepared in accordance with
GAAP.
(ii) Initial Public Offering Proceeds. The
Administrative Agent shall have received evidence that the
Parent shall have received net cash proceeds of at least
$110,000,000 from the consummation of an initial public
offering (the "Initial Public Offering") on terms and
conditions reasonably acceptable to the Administrative Agent.
(iii) Payment at Closing; Fee Letters. The Company
shall have paid, or shall have cause to be paid, to the
Administrative Agent and the Lenders the fees set forth or
referenced in Section 3.1 and any other accrued and unpaid
fees or
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commissions due hereunder (including, without limitation, Attorney
Costs) and to any other Person such amount as may be due thereto in
connection with the transactions contemplated hereby, including all
taxes, fees and other charges in connection with the execution,
delivery, recording, filing and registration of any of the Loan
Documents.
(e) Closing of the Related Loan Agreements. Each of the
Related Loan Agreements set forth on Schedule 1.1(b) hereto, including
all Related Credit Documents executed in connection therewith, shall be
closed contemporaneously with this Agreement, and all conditions to
closing set forth therein shall have been satisfied in accordance with
the terms and conditions set forth therein.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
SECTION 5.1 Representations and Warranties. To induce the
Administrative Agent and the Lenders to enter into this Agreement and to induce
the Lenders to provide the Construction Loan Facilities, the Company hereby
represents and warrants to the Administrative Agent and the Lenders both before
and after giving effect to the transactions contemplated hereunder that:
(a) Organization; Power; Qualification. Each of the Parent,
the Company and their respective Subsidiaries is duly organized,
validly existing and in good standing under the laws of the
jurisdiction of its incorporation or formation, has the power and
authority to own its properties and to carry on its business as now
being and hereafter proposed to be conducted and is duly qualified and
authorized to do business in each jurisdiction in which the character
of its properties or the nature of its business requires such
qualification and authorization except where the failure to be so
qualified and authorized could not reasonably be expected to have a
Material Adverse Effect. The jurisdictions in which each of the Parent,
the Company and their respective Subsidiaries is organized and
qualified to do business as of the Closing Date are described on
Schedule 5.1(a).
(b) Authorization of Agreement, Loan Documents and Borrowing.
The Company has the right, power and authority and has taken all
necessary corporate and other action to authorize the execution,
delivery and performance of this Agreement and each of the other Loan
Documents to which it is a party in accordance with their respective
terms. This Agreement and each of the other Loan Documents have been
duly executed and delivered by the duly authorized officers of the
Company, and each such document constitutes the legal, valid and
binding obligation of the Company, enforceable in accordance with its
terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar state or federal
debtor relief laws from time to time in effect which affect the
enforcement of creditors' rights in general and the availability of
equitable remedies.
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(c) Compliance of Agreement, Loan Documents and Borrowing with
Laws, Etc. The execution, delivery and performance by the Company of
the Loan Documents to which it is a party, in accordance with their
respective terms, the borrowings hereunder and the transactions
contemplated hereby do not and will not, by the passage of time, the
giving of notice or otherwise, (i) require any Governmental Approval or
violate any Applicable Law relating to the Company, (ii) conflict with,
result in a breach of or constitute a default under the organizational
documents of the Company or any indenture, agreement or other
instrument to which the Company is a party or by which any of its
properties may be bound or any Governmental Approval relating to the
Company, (iii) result in or require the creation or imposition of any
Lien upon or with respect to any property now owned or hereafter
acquired by the Company other than Liens arising under the Loan
Documents or (iv) require any consent or authorization of, filing with,
or other act in respect of, an arbitrator or Governmental Authority and
no consent of any other Person is required in connection with the
execution, delivery, performance, validity or enforceability of this
Agreement.
(d) Compliance with Law; Governmental Approvals. Each of the
Parent, the Company and their Subsidiaries (i) has all Governmental
Approvals required by any Applicable Law for it to conduct its
business, each of which is in full force and effect, is final and not
subject to review on appeal and is not the subject of any pending or,
to the best of its knowledge, threatened attack by direct or collateral
proceeding, (ii) is in compliance with each Governmental Approval
applicable to it and in compliance with all other Applicable Laws
relating to it or any of its respective properties, except where the
failure to so comply could not reasonably be expected to have a
Material Adverse Effect and (iii) has timely filed all material
reports, documents and other materials required to be filed by it under
all Applicable Laws with any Governmental Authority and has retained
all material records and documents required to be retained by it under
Applicable Law.
(e) Financial Statements. The (i) audited Consolidated balance
sheet of the Parent and its Subsidiaries as of September 30, 2000 and
the related audited statements of income and retained earnings and cash
flows for the Fiscal Year then ended and (ii) unaudited Consolidated
balance sheet of the Parent and its Subsidiaries as of March 31, 2001
and related unaudited interim statements of income and retained
earnings, copies of which have been furnished to the Administrative
Agent and each Lender, are complete and correct in all material
respects and fairly present on a Consolidated basis the assets,
liabilities and financial position of the Parent and its Subsidiaries
as at such dates, and the results of the operations and changes of
financial position for the periods then ended (other than customary
year-end adjustments for unaudited financial statements). All such
financial statements, including the related schedules and notes
thereto, have been prepared in accordance with GAAP as applied in a
manner consistent with the past practices of the Parent.
(f) Accuracy and Completeness of Information. All written
information, reports, statements and other papers and data produced by
or on behalf of the Parent, the Company or any Subsidiary thereof and
furnished to the Administrative Agent or any Lender in connection with
this Agreement or any of the other Loan Documents, were, at
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the time the same were so furnished, complete and correct in all
material respects to the extent necessary to give the Administrative
Agent or any Lender complete, true and accurate knowledge of the
subject matter based on the Parent's knowledge thereof (other than
projections, budgets or other estimates which shall be determined in
good faith utilizing reasonable assumptions). No document furnished or
written statement made to the Administrative Agent or the Lenders by
the Parent, the Company or any Subsidiary thereof in connection with
the negotiation, preparation or execution of this Agreement or any of
the Loan Documents contains or will contain any untrue statement of a
fact material to the creditworthiness of the Parent, the Company and
their Subsidiaries or omits or will omit to state a fact necessary in
order to make the statements contained therein not misleading to the
extent material to the creditworthiness of the Borrower. The Company is
not aware of any facts which it has not disclosed in writing to the
Administrative Agent having a Material Adverse Effect, or insofar as
the Company can now foresee, which could reasonably be expected to have
a Material Adverse Effect.
SECTION 5.2 Survival of Representations and Warranties, Etc. All
representations and warranties set forth in this Article V and all
representations and warranties contained in any certificate, or any of the Loan
Documents (including, but not limited to, any such representation or warranty
made in or in connection with any amendment thereto) shall constitute
representations and warranties made under this Agreement. All representations
and warranties made under this Agreement shall be made or deemed to be made at
and as of the Closing Date (except those that are expressly made as of a
specific date), shall survive the Closing Date and shall not be waived by the
execution and delivery of this Agreement, any investigation made by or on behalf
of the Lenders or the provision of any Construction Loan Facility hereunder.
ARTICLE VI
COVENANTS
Until all the Obligations have been finally and indefeasibly paid and
satisfied in full and the Commitments terminated, unless consent has been
obtained in the manner set forth in Section 9.11, the Company shall:
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SECTION 6.1 General Covenants.
(a) General Terms. Comply with each and every covenant and agreement
set forth in Sections 10, 11, 12 and 13 of the Related Guaranty Agreements as if
such Sections 10, 11, 12 and 13 of the Related Guaranty Agreements (including,
without limitation, each defined term, article, section, exhibit or schedule
referenced in or relating to such Sections 10, 11, 12 and 13 of the Related
Guaranty Agreements) were set forth herein; provided that, with respect to each
and every covenant and agreement set forth in Section 10 of the Related Guaranty
Agreements, the Company will furnish or cause to be furnished to the
Administrative Agent at the Administrative Agent's Office at the address set
forth in Section 9.1 and to the Lenders at their respective addresses as set
forth Schedule 1.1(a), or such other office as may be designated by the
Administrative Agent and the Lenders from time to time, each and every financial
statement, certificate or other document or instrument required to be delivered
to the Administrative Agent and the Lenders under Section 10 of the Related
Guaranty Agreements.
(b) Rules of Construction. All definitions and other provisions of the
Related Guaranty Agreements which are incorporated in this Section 6.1 by
reference shall be construed in such a manner so as to give such incorporated
terms legal effect and meaning hereunder.
SECTION 6.2 Further Assurances. Make, execute and deliver all such
additional and further acts, things, deeds and instruments as the Administrative
Agent or any Lender may reasonably require to document and consummate the
transactions contemplated hereby and to vest completely in and insure the
Administrative Agent and the Lenders their respective rights under this
Agreement and the other Loan Documents.
SECTION 6.3 Accuracy of Information. All written information, reports,
statements and other papers and data furnished by or on behalf of the Parent,
the Company and their Subsidiaries to the Administrative Agent or any Lender
pursuant to this Agreement, or any of the other Loan Documents, shall be, at the
time the same is so furnished, complete and correct in all material respects to
the extent necessary to give the Administrative Agent or any Lender complete,
true and accurate knowledge of the subject matter based on the knowledge of the
Parent and the Company thereof.
ARTICLE VII
DEFAULT AND REMEDIES
SECTION 7.1 Events of Default. Each of the following shall constitute
an Event of Default, whatever the reason for such event and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment or order of any court or any order, rule or regulation of any
Governmental Authority or otherwise:
(a) Payment Default. The Company shall default in any payment
of any Obligation due hereunder when and as due (whether at maturity,
by reason of acceleration or otherwise), and such default shall
continue unremedied for five (5) Business Days.
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(b) Default in Performance of Certain Covenants. The Company
or any of its Subsidiaries shall default in the performance or
observance of any term, covenant, condition or agreement contained in
this Agreement (other than as specifically provided for otherwise in
this Section 7.1) or any other Loan Document and such default shall
continue for a period of thirty (30) days after written notice thereof
has been given to the Company by the Administrative Agent.
(c) Misrepresentation. Any representation or warranty made or
deemed to be made by the Company or any of its Subsidiaries under this
Agreement, any Loan Document or any amendment hereto or thereto, shall
at any time prove to have been incorrect or misleading in any material
respect when made or deemed made.
(d) Default under any Related Credit Document. Any Borrower or
any Guarantor shall (i) default in the payment of any obligations under
any of the Related Credit Documents to which such Person is a party
(any applicable grace period having expired), or (ii) default in the
observance or performance of any other agreement or condition relating
to any of the Related Credit Documents to which such Person is a party
or contained in any instrument or agreement evidencing, securing or
relating thereto or any other event shall occur or condition exist, the
effect of which default or other event or condition is to cause, or to
permit the holder or holders of any Debt (or a trustee or agent on
behalf of such holder or holders) under any Related Credit Document to
cause, with the giving of notice if required, any such Debt to become
due prior to its stated maturity (any applicable grace period having
expired); provided however that, with respect to clause (ii) above, an
Event of Default shall not be deemed to exist under such clause (ii)
unless a default as described therein exists as of the closing date of
any Construction Loan Facility requested by the Borrower under this
Agreement and such default exists under more than one (1) Related Loan
Agreement at such time (provided however that, if one or more of such
defaults is thereafter cured or waived so that thereafter there is not
more than one (1) of such defaults, then there shall be no Event of
Default under such clause (ii)).
(e) Corporate Revolver. The occurrence of an Event of Default
under the Credit Agreement dated as of July 31, 1998, as amended,
restated, supplemented or otherwise modified from time to time, by and
among Intermediate Holdings, as Borrower, the Initial Lenders named
therein, the Initial Issuing Bank named therein, Bank of America, N.A.
as Administrative Agent and Collateral Agent, and Banc of America
Securities LLC, as Arranger and Syndication Agent.
(f) Voluntary Bankruptcy Proceeding. The Parent or any of its
Subsidiaries shall (i) commence a voluntary case under the federal
bankruptcy laws (as now or hereafter in effect), (ii) file a petition
seeking to take advantage of any other laws, domestic or foreign,
relating to bankruptcy, insolvency, reorganization, winding up or
composition for adjustment of debts, (iii) consent to or fail to
contest in a timely and appropriate manner any petition filed against
it in an involuntary case under such bankruptcy laws or other laws,
(iv) apply for or consent to, or fail to contest in a timely and
appropriate manner, the appointment of, or the taking of possession by,
a receiver, custodian, trustee,
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or liquidator of itself or of a substantial part of its property,
domestic or foreign, (v) admit in writing its inability to pay its
debts as they become due, (vi) make a general assignment for the
benefit of creditors, or (vii) take any corporate action for the
purpose of authorizing any of the foregoing.
(g) Involuntary Bankruptcy Proceeding. A case or other
proceeding shall be commenced against the Parent or any of its
Subsidiaries in any court of competent jurisdiction seeking (i) relief
under the federal bankruptcy laws (as now or hereafter in effect) or
under any other laws, domestic or foreign, relating to bankruptcy,
insolvency, reorganization, winding up or adjustment of debts, or (ii)
the appointment of a trustee, receiver, custodian, liquidator or the
like for the Parent or any of its Subsidiaries or for all or any
substantial part of their respective assets, domestic or foreign, and
such case or proceeding shall continue undismissed or unstayed for a
period of sixty (60) consecutive days, or an order granting the relief
requested in such case or proceeding (including, but not limited to, an
order for relief under such federal bankruptcy laws) shall be entered.
(h) Failure of Agreements. Any provision of this Agreement or
of any other Loan Document shall for any reason cease to be valid and
binding on the Company or any other Person party thereto.
(i) Judgment. A judgment or order by any court for the payment
of money which causes the aggregate amount of all judgments and orders
by any court in any Fiscal Year (which are not fully covered by
insurance or with respect to which the applicable insurance carrier has
not acknowledged that such judgment is fully covered by insurance) to
exceed (i) $1,000,000 with respect to the Parent or any Subsidiary
thereof (other than MedCath Parent Entities), (ii) $1,500,000 in the
aggregate with respect to the Parent and its Subsidiaries (other than
the MedCath Parent Entities) or (iii) $2,000,000 with respect to any of
the MedCath Parent Entities, and such judgment or order shall continue
without discharge or stay for a period of thirty (30) days.
SECTION 7.2 Remedies. Upon the occurrence of an Event of Default, with
the consent of the Required Lenders, the Administrative Agent may, and upon the
request of the Required Lenders, the Administrative Agent shall, do any one or
more of the following:
(a) terminate the Commitments and any right of the Company to
request any new Construction Loan Facility hereunder, declare all
amounts owed to the Lenders and the Administrative Agent under this
Agreement or any other Loan Document and all other Obligations to be
forthwith due and payable, whereupon the same shall immediately become
due and payable without presentment, demand, protest or other notice of
any kind, all of which are expressly waived, anything in this Agreement
or any other Loan Document to the contrary notwithstanding; provided,
that upon the occurrence of an Event of Default specified in Section
7.1(f) or (g), the Commitments and any right of the Company to request
any new Construction Loan Facility hereunder shall be automatically
terminated and all Obligations shall automatically become due and
payable without presentment, demand, protest or other notice of any
kind, all of
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which are expressly waived, anything in this Agreement or any other
Loan Document to the contrary notwithstanding;
(b) institute an action to reduce any claim to judgment;
(c) exercise any and all rights and remedies afforded by this
Agreement, the other Loan Documents, Applicable Law, equity or
otherwise; or
(d) set-off and apply, to the extent thereof and to the
maximum extent permitted by law, any and all deposits, funds or assets
at any time held and any and all other indebtedness at any time owing
by any Lender to or for the credit or account of the Company against
any Obligations.
SECTION 7.3 Rights and Remedies Cumulative; Non-Waiver; etc. The
enumeration of the rights and remedies of the Administrative Agent and the
Lenders set forth in this Agreement is not intended to be exhaustive and the
exercise by the Administrative Agent and the Lenders of any right or remedy
shall not preclude the exercise of any other rights or remedies, all of which
shall be cumulative, and shall be in addition to any other right or remedy given
hereunder or under the other Loan Documents or that may now or hereafter exist
at law or in equity or by suit or otherwise. No delay or failure to take action
on the part of the Administrative Agent or any Lender in exercising any right,
power or privilege shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, power or privilege preclude any other or
further exercise thereof or the exercise of any other right, power or privilege
or shall be construed to be a waiver of any Event of Default. No course of
dealing between the Company, the Administrative Agent and the Lenders or their
respective agents or employees shall be effective to change, modify or discharge
any provision of this Agreement or any of the other Loan Documents or to
constitute a waiver of any Event of Default.
ARTICLE VIII
THE ADMINISTRATIVE AGENT
SECTION 8.1 Terms and Conditions Relating to the Administrative Agent,
the Syndication Agent, the Documentation Agent and the Co-Lead Arrangers.
(a) General Terms. Each of the terms, conditions and other provisions
set forth in Article XI of the Related Loan Agreements (including, without
limitation, each defined term, article, section, exhibit or schedule referenced
in or relating to such Article XI of the Related Loan Agreements) shall apply to
this Agreement and the other Loan Documents as if fully set forth herein and
such terms, conditions and other provisions shall inure to the benefit of the
Administrative Agent, the Syndication Agent, the Documentation Agent and the
Co-Lead Arrangers as if fully set forth herein.
(b) Rules of Construction. All definitions and other provisions of the
Related Loan Agreements which are incorporated in this Section 8.1 by reference
shall be construed in such a manner so as to give such incorporated terms legal
effect and meaning hereunder.
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ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Notices.
(a) Method of Communication. Except as otherwise provided in this
Agreement, all notices and communications hereunder shall be in writing, or by
telephone subsequently confirmed in writing. Any notice shall be effective if
delivered by hand delivery or sent via telecopy, recognized overnight courier
service or certified mail, return receipt requested, and shall be presumed to be
received by a party hereto (i) on the date of delivery if delivered by hand or
sent by telecopy, (ii) on the next Business Day if sent by recognized overnight
courier service and (iii) on the third Business Day following the date sent by
certified mail, return receipt requested. A telephonic notice to the
Administrative Agent as understood by the Administrative Agent will be deemed to
be the controlling and proper notice in the event of a discrepancy with or
failure to receive a confirming written notice.
(b) Addresses for Notices. Notices to any party shall be sent to it at
the following addresses, or any other address as to which all the other parties
are notified in writing.
If to the Company: MedCath Corporation
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
With copies to: ▇▇▇▇▇ & ▇▇▇ ▇▇▇▇▇, PLLC
Bank of America Corporate Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to Bank of America as Bank of America, N.A.
Administrative Agent: IL1-231-08-03
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
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With copies to: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P.
Bank of America Corporate Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to any Lender: To the address set forth on Schedule 1.1(a) hereto
(c) Administrative Agent's Office. The Administrative Agent hereby
designates its office located at the address set forth above, or any subsequent
office which shall have been specified for such purpose by written notice to the
Company and Lenders, as the Administrative Agent's Office referred to herein, to
which payments due are to be made.
SECTION 9.2 Expenses; Indemnity.
(a) The Company agrees (i) to pay or reimburse the Administrative Agent
and the Syndication Agent for all costs and expenses incurred in connection with
the development, preparation, negotiation and execution of this Agreement and
the other Loan Documents and any amendment, waiver, consent or other
modification of the provisions hereof and thereof (whether or not the
transactions contemplated hereby or thereby are consummated), and the
consummation and administration of the transactions contemplated hereby and
thereby, including, without limitation, all out-of-pocket syndication and due
diligence expenses and all Attorney Costs (provided that such Attorney Costs
shall be limited to the fees and expenses of a single law firm representing the
Administrative Agent and the Syndication Agent), and (ii) to pay or reimburse
the Administrative Agent and each Lender for all costs and expenses incurred in
connection with the enforcement, attempted enforcement, or preservation of any
rights or remedies under this Agreement or the other Loan Documents (including
all such costs and expenses incurred during any "workout" or restructuring in
respect of the Obligations and during any legal proceeding, including any
proceeding under any Debtor Relief Law), including, without limitation, all
Attorney Costs. The foregoing costs and expenses shall include all search,
filing, recording, title insurance and appraisal charges and fees and taxes
related thereto, and other out-of-pocket expenses incurred by the Administrative
Agent and the cost of independent public accountants and other outside experts
retained by the Administrative Agent or any Lender. The agreements in this
Section 9.2(a) shall survive the termination of the Commitments and repayment of
all the other Obligations.
(b) Whether or not the transactions contemplated hereby are
consummated, the Company agrees to indemnify, save and hold harmless each
Administrative Agent-Related Person, each Lender and their respective
Affiliates, directors, officers, employees, counsel, agents and
attorneys-in-fact (collectively the "Indemnitees") from and against: (i) any and
all claims, demands, actions or causes of action that are asserted against any
Indemnitee by any Person (other than the Administrative Agent or any Lender)
relating directly or indirectly to a claim, demand, action or cause of action
that such Person asserts or may assert against the
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Company, any Borrower, any Guarantor, any Affiliate thereof or any of their
respective officers or directors; (ii) any and all claims, demands, actions or
causes of action that may at any time (including at any time following repayment
of the Obligations and the resignation or removal of the Administrative Agent or
the replacement of any Lender) be asserted or imposed against any Indemnitee,
arising out of or relating to, the Loan Documents, any predecessor loan
documents, the Commitments, the use or contemplated use of the proceeds of any
Construction Loan Facility, or the relationship of the Company, the Borrowers,
the Guarantors, the Administrative Agent and the Lenders under this Agreement or
any other Loan Document; (iii) any administrative or investigative proceeding by
any Governmental Authority arising out of or related to a claim, demand, action
or cause of action described in clause (i) or (ii) above; and (iv) any and all
liabilities (including liabilities under indemnities), losses, costs or expenses
(including Attorney Costs) that any Indemnitee suffers or incurs as a result of
the assertion of any foregoing claim, demand, action, cause of action or
proceeding, or as a result of the preparation of any defense in connection with
any foregoing claim, demand, action, cause of action or proceeding, in all
cases, whether or not arising out of the negligence of an Indemnitee, and
whether or not an Indemnitee is a party to such claim, demand, action, cause of
action or proceeding (all the foregoing, collectively, the "Indemnified
Liabilities"); provided that no Indemnitee shall be entitled to indemnification
for any claim caused by its own gross negligence or willful misconduct or for
any loss asserted against it by another Indemnitee. The agreements in this
Section 9.2(b) shall survive the termination of the Commitments and repayment of
all the other Obligations.
SECTION 9.3 Set-off. In addition to any rights now or hereafter granted
under Applicable Law and not by way of limitation of any such rights, upon and
after the occurrence of any Event of Default and during the continuance thereof,
the Lenders and any assignee or participant of a Lender in accordance with
Section 9.10 are hereby authorized by the Company at any time or from time to
time, without notice to the Company or to any other Person, any such notice
being hereby expressly waived, to set off and to appropriate and to apply any
and all deposits (general or special, time or demand, including, but not limited
to, indebtedness evidenced by certificates of deposit, whether matured or
unmatured) and any other indebtedness at any time held or owing by the Lenders
or any such assignee or participant to or for the credit or the account of the
Company against and on account of the Obligations irrespective of whether or not
(a) the Lenders shall have made any demand under this Agreement or any of the
other Loan Documents or (b) the Administrative Agent shall have declared any or
all of the Obligations to be due and payable as permitted by Section 7.2 and
although such Obligations shall be contingent or unmatured. Notwithstanding the
preceding sentence, each Lender agrees to notify the Company and the
Administrative Agent after any such set-off and application, provided that the
failure to give such notice shall not affect the validity of such set-off and
application.
SECTION 9.4 Governing Law. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS,
UNLESS OTHERWISE EXPRESSLY SET FORTH THEREIN, SHALL BE GOVERNED BY, CONSTRUED
AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH CAROLINA, WITHOUT
REFERENCE TO THE CONFLICTS OR CHOICE OF LAW PRINCIPLES THEREOF; PROVIDED
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THAT THE ADMINISTRATIVE AGENT AND EACH LENDER SHALL RETAIN ALL RIGHTS ARISING
UNDER FEDERAL LAW.
SECTION 9.5 Jurisdiction and Venue.
(a) Jurisdiction. The Company hereby irrevocably consents to the
personal jurisdiction of the state and federal courts located in Mecklenburg
County, North Carolina, in any action, claim or other proceeding arising out of
any dispute in connection with this Agreement and the other Loan Documents, any
rights or obligations hereunder or thereunder, or the performance of such rights
and obligations. The Company hereby irrevocably consents to the service of a
summons and complaint and other process in any action, claim or proceeding
brought by the Administrative Agent or any Lender in connection with this
Agreement or the other Loan Documents, any rights or obligations hereunder or
thereunder, or the performance of such rights and obligations, on behalf of
itself or its property, in the manner specified in Section 9.1. Nothing in this
Section 9.5 shall affect the right of the Administrative Agent or any Lender to
serve legal process in any other manner permitted by Applicable Law or affect
the right of the Administrative Agent or any Lender to bring any action or
proceeding against the Company or its properties in the courts of any other
jurisdictions.
(b) Venue. The Company hereby irrevocably waives any objection it may
have now or in the future to the laying of venue in the aforesaid jurisdiction
in any action, claim or other proceeding arising out of or in connection with
this Agreement, any other Loan Document or the rights and obligations of the
parties hereunder. The Company irrevocably waives, in connection with such
action, claim or proceeding, any plea or claim that the action, claim or other
proceeding has been brought in an inconvenient forum.
SECTION 9.6 Waiver of Right to Trial by Jury. EACH PARTY TO THIS
AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY
CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR
ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED
THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER
FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND
CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED
BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN
ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 9.6 WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT
TO TRIAL BY JURY.
SECTION 9.7 Reversal of Payments. To the extent the Company makes a
payment or payments to the Administrative Agent for the ratable benefit of the
Lenders or the Administrative Agent receives any payment or proceeds of the
collateral which payments or proceeds or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential,
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set aside and/or required to be repaid to a trustee, receiver or any other party
under any bankruptcy law, state or federal law, common law or equitable cause,
then, to the extent of such payment or proceeds repaid, the Obligations or part
thereof intended to be satisfied shall be revived and continued in full force
and effect as if such payment or proceeds had not been received by the
Administrative Agent.
SECTION 9.8 Injunctive Relief; Punitive Damages.
(a) The Company recognizes that, in the event the Company fails to
perform, observe or discharge any of its obligations or liabilities under this
Agreement, any remedy of law may prove to be inadequate relief to the Lenders.
Therefore, the Company agrees that the Lenders, at the Lenders' option, shall be
entitled to temporary and permanent injunctive relief in any such case without
the necessity of proving actual damages.
(b) The Administrative Agent, the Lenders and the Company hereby agrees
that no such Person shall have a remedy of punitive or exemplary damages against
any other party to a Loan Document and each such Person hereby waives any right
or claim to punitive or exemplary damages that it may now have or which may
arise in the future in connection with any dispute, whether such dispute is
resolved through arbitration or judicially.
SECTION 9.9 Accounting Matters. All financial and accounting
calculations, measurements and computations made for any purpose relating to
this Agreement, including, without limitation, all computations utilized by the
Parent, the Company and their respective Subsidiaries to determine compliance
with any covenant contained herein, shall, except as otherwise expressly
contemplated hereby or unless there is an express written direction by the
Administrative Agent to the contrary agreed to by the Company, be performed in
accordance with GAAP as in effect on the Closing Date. In the event that changes
in GAAP shall be mandated by the Financial Accounting Standards Board, or any
similar accounting body of comparable standing, or shall be recommended by the
Parent's certified public accountants, to the extent that such changes would
modify such accounting terms or the interpretation or computation thereof, such
changes shall be followed in defining such accounting terms only from and after
the date that (i) the Company and the Required Lenders shall have amended this
Agreement to the extent necessary to reflect any such changes in the financial
covenants and other terms and conditions of this Agreement or (ii) the
Guarantors and the Required Lenders (as defined in the Related Guaranty
Agreements) shall have amended the Related Guaranty Agreements to the extent
necessary to reflect any such changes in the financial covenants and other terms
and conditions of the Related Guaranty Agreements which are incorporated herein
by reference.
SECTION 9.10 Successors and Assigns; Participations.
(a) The provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns
permitted hereby, except that the Company may not assign or otherwise transfer
any of its rights or obligations hereunder without the prior written consent of
each Lender (and any attempted assignment or transfer by the Company without
such consent shall be null and void). Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties
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hereto, their respective successors and assigns permitted hereby and, to the
extent expressly contemplated hereby, the Indemnitees) any legal or equitable
right, remedy or claim under or by reason of this Agreement.
(b) Any Lender may 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); provided that:
(i) except in the case of an assignment of the entire
remaining amount of the assigning Lender's Commitment 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
of the assigning Lender subject to each such assignment, determined as
of the date the Assignment and Acceptance with respect to such
assignment is delivered to the Administrative Agent, shall not be less
than $5,000,000, unless each of the Administrative Agent and, so long
as no Event of Default has occurred and is continuing, the Company
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 Commitment
assigned; and
(iii) the parties to each assignment shall execute and deliver
to the Administrative Agent an Assignment and Acceptance, together with
a processing and recordation fee of $3,500.
Subject to acceptance and recording thereof by the Administrative Agent pursuant
to subsection (c) of this Section 9.10, from and after the effective date
specified in each Assignment and Acceptance, the Eligible Assignee thereunder
shall be a party hereto and, to the extent of the interest assigned by such
Assignment and Acceptance, have the rights and obligations of a Lender under
this Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Acceptance, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Section 9.2). Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not comply with
this subsection (b) 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 9.10.
(c) The Administrative Agent, acting solely for this purpose as an
agent of the Company, shall maintain at the Administrative Agent's Office a copy
of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of
each Lender pursuant to the terms hereof from time to time (the "Register"). The
entries in the Register shall be conclusive, and the Company, the Administrative
Agent and the Lenders may treat each Person whose name is recorded in the
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Register pursuant to the terms hereof as a Lender hereunder for all purposes of
this Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Company and any Lender, at any reasonable time
and from time to time upon reasonable prior notice.
(d) Any Lender may, with notice to, but without the consent of, the
Company or the Administrative Agent, sell participations to one or more banks or
other entities (a "Participant") in all or a portion of such Lender's rights
and/or obligations under this Agreement (including all or a portion of its
Commitment); 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
Company, the Administrative Agent and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, waiver or other modification
that would amend or modify any provision of the form of the Construction Loan
Agreement attached hereto as Exhibit A with respect to (i) postponing any date
upon which any payment of money is scheduled to be paid to such Participant,
(ii) reducing the principal, interest, fees or other amounts payable to such
Participant or (iii) releasing any Guarantor from its obligations under the
Guaranty Agreement to be executed in connection therewith (other than as
specifically permitted or contemplated therein or in the Guaranty Agreement to
be executed in connection therewith). Subject to subsection (e) of this Section
9.10, the Borrower agrees that each Participant shall be entitled to the
benefits of Section 3.3; provided that, subject to subsection (e) of this
Section 9.10, no Participant shall be entitled to receive any greater amount
pursuant to such Section 3.3 than the transferor Lender would have been entitled
to receive in respect of the amount of the participation transferred by such
transferor Lender to such Participant had no such transfer occurred. To the
extent permitted by law, each Participant also shall be entitled to the benefits
of Section 9.3 as though it were a Lender.
(e) A Participant shall not be entitled to receive any greater payment
under Section 3.3 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 3.3 unless the Borrower is notified
of the participation sold to such Participant and such Participant agrees, for
the benefit of the Borrower, to comply with Section 3.3(e) as though it were a
Lender.
(f) Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement to secure obligations of
such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank; provided that no such pledge or assignment shall release a
Lender from any of its obligations hereunder or substitute any such pledgee or
assignee for such Lender as a party hereto.
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(g) If the consent of the Company to an assignment or to an Eligible
Assignee is required hereunder (including a consent to an assignment which does
not meet the minimum assignment threshold specified in clause (i) of the proviso
to the first sentence of Section 9.10(b)), the Company shall be deemed to have
given its consent five (5) Business Days after the date notice thereof has been
delivered by the assigning Lender (through the Administrative Agent) unless such
consent is expressly refused by the Company prior to such fifth (5th) Business
Day.
(f) As used herein, the following terms have the following meanings:
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a
Lender; (c) an Approved Fund; and (d) any other Person (other than a
natural Person) approved by the Administrative Agent and, unless (i)
such Person is taking delivery of an assignment in connection with
physical settlement of a credit derivatives transaction or (ii) an
Event of Default has occurred and is continuing, the Company (each such
approval not to be unreasonably withheld or delayed).
"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.
"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.
SECTION 9.11 Amendments, Waivers and Consents. Except as set forth
below or as specifically provided in any Loan Document, any term, covenant,
agreement or condition of this Agreement or any of the other Loan Documents may
be amended or waived by the Lenders, and any consent given by the Lenders, if,
but only if, such amendment, waiver or consent is in writing signed by the
Required Lenders (or by the Administrative Agent with the consent of the
Required Lenders) and delivered to the Administrative Agent and, in the case of
an amendment, signed by the Company; provided, that no amendment, waiver or
consent shall (a) increase the Commitment of any Lender, (b) amend or modify any
provision of the form of the Construction Loan Agreement attached hereto as
Exhibit A with respect to (i) reducing the rate of interest or fees payable on
any Construction Loan Advance, (ii) reducing or forgiving the principal amount
of any Construction Loan Advance, (iii) extending the originally scheduled time
or times of payment of the principal of any Construction Loan Advance or the
time or times of payment of interest on any Construction Loan Advance or any fee
or commission with respect thereto, (iv) permitting any subordination of the
principal or interest on any Construction Loan Advance or (v) releasing any
Guarantor from its obligations under the Guaranty Agreement to be executed in
connection therewith (other than as specifically permitted or contemplated
therein or in the Guaranty Agreement to be executed in connection therewith),
(c) release the Company from the Obligations hereunder, (d) permit any
assignment (other than as specifically permitted or contemplated in this
Agreement) of any of the Company's rights and obligations hereunder or (e) amend
the provisions of this Section 9.11 or the definition of Required Lenders, in
each case, without the prior written consent of each Lender. In addition, no
amendment, waiver or consent to
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the provisions of Article XI of the Related Loan Agreements (as incorporated
herein pursuant to Section 8.1) shall be made without the written consent of the
Administrative Agent.
SECTION 9.12 Confidentiality. The Administrative Agent and each of the
Lenders agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (a) to its and its Affiliates'
directors, officers, employees and agents, including accountants, legal counsel
and other advisors (it being understood that the Persons to whom such disclosure
is made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential); (b) to the extent requested
by any regulatory authority; (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process; (d) to any other party
to this Agreement; (e) in connection with the exercise of any remedies hereunder
or any suit, action or proceeding relating to this Agreement or the enforcement
of rights hereunder; (f) subject to an agreement containing provisions
substantially the same as those of this Section 9.12, to (i) any Eligible
Assignee or Participant in, or any prospective Eligible Assignee of or
Participant in, any of its rights or obligations under this Agreement or (ii)
any direct or indirect contractual counterparty or prospective counterparty (or
such contractual counterparty's or prospective counterparty's professional
advisor) to any credit derivative transaction relating to obligations of the
Company, any Borrower and any Guarantor; (g) with the consent of the Company;
(h) to the extent such Information (i) becomes publicly available other than as
a result of a breach of this Section 9.12 or (ii) becomes available to the
Administrative Agent or any Lender on a nonconfidential basis from a source
other than the Company, any Borrower or any Guarantor; or (i) to the National
Association of Insurance Commissioners or any other similar organization or any
nationally recognized rating agency that requires access to information about a
Lender's or its Affiliates' investment portfolio in connection with ratings
issued with respect to such Lender or its Affiliates. For the purposes of this
Section 9.12, "Information" means all information received from the Company, the
Borrowers and the Guarantors relating to the Company, the Borrowers and the
Guarantors or the business, other than any such information that is available to
the Administrative Agent or any Lender on a nonconfidential basis prior to
disclosure by the Company, the Borrowers or the Guarantors; provided that, in
the case of information received from the Company, any Borrower or any Guarantor
after the date hereof, such information is clearly identified in writing at the
time of delivery as confidential. Any Person required to maintain the
confidentiality of Information as provided in this Section 9.12 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.
SECTION 9.13 Performance of Duties. The Company's obligations under
this Agreement and each of the other Loan Documents shall be performed by the
Company at its sole cost and expense.
SECTION 9.14 All Powers Coupled with Interest. All powers of attorney
and other authorizations granted to the Lenders, the Administrative Agent and
any Persons designated by the Administrative Agent or any Lender pursuant to any
provisions of this Agreement or any of the other Loan Documents shall be deemed
coupled with an interest and shall be irrevocable so
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long as any of the Obligations remain unpaid or unsatisfied or the Commitments
have not been terminated.
SECTION 9.15 Survival of Indemnities. Notwithstanding any termination
of this Agreement, the indemnities to which the Administrative Agent and the
Lenders are entitled under the provisions of this Article IX and any other
provision of this Agreement and the other Loan Documents shall continue in full
force and effect and shall protect the Administrative Agent and the Lenders
against events arising after such termination as well as before.
SECTION 9.16 Titles and Captions. Titles and captions of Articles,
Sections and subsections in, and the table of contents of, this Agreement are
for convenience only, and neither limit nor amplify the provisions of this
Agreement.
SECTION 9.17 Severability of Provisions. Any provision of this
Agreement or any other Loan Document which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective only to the extent
of such prohibition or unenforceability without invalidating the remainder of
such provision or the remaining provisions hereof or thereof or affecting the
validity or enforceability of such provision in any other jurisdiction.
SECTION 9.18 Counterparts. This Agreement may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and shall be binding
upon all parties, their successors and assigns, and all of which taken together
shall constitute one and the same agreement.
SECTION 9.19 Term of Agreement. This Agreement shall remain in effect
from the Closing Date through and including the date upon which all Obligations
shall have been indefeasibly and irrevocably paid and satisfied in full. No
termination of this Agreement shall affect the rights and obligations of the
parties hereto arising prior to such termination or in respect of any provision
of this Agreement which survives such termination.
SECTION 9.20 Advice of Counsel. Each of the parties represents to each
other party hereto that it has discussed this Agreement with its counsel.
SECTION 9.21 No Strict Construction. The parties hereto have
participated jointly in the negotiation and drafting of this Agreement. In the
event an ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by the parties hereto and no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any provisions of this Agreement.
SECTION 9.22 Inconsistencies with Other Documents; Independent Effect
of Covenants.
(a) In the event there is a conflict or inconsistency between this
Agreement and any other Loan Document, the terms of this Agreement shall
control.
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36
(b) The Company expressly acknowledges and agrees that each covenant
contained in Article VI hereof shall be given independent effect. Accordingly,
the Company, the Borrowers and the Guarantors shall not engage in any
transaction or other act otherwise permitted under any covenant contained in
Article VI hereof if, before or after giving effect to such transaction or act,
the Company, any Borrower or any Guarantor shall or would be in breach of any
other covenant contained in Article VI hereof.
[Signature pages to follow]
32
37
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed under seal by their duly authorized officers, all as of the day and
year first written above.
[CORPORATE SEAL] MEDCATH INCORPORATED
By:
----------------------------------------
Name:
--------------------------------
Title:
-------------------------------
BANK OF AMERICA, N.A., as Administrative
Agent and as Lender
By:
----------------------------------------
Name:
--------------------------------
Title:
-------------------------------
BANKERS TRUST COMPANY, as Syndication
Agent and as Lender
By:
----------------------------------------
Name:
--------------------------------
Title:
-------------------------------
FIRST UNION NATIONAL BANK, as
Documentation Agent and as Lender
By:
----------------------------------------
Name:
--------------------------------
Title:
-------------------------------
[ADDITIONAL LENDERS], as Lender
By:
----------------------------------------
Name:
--------------------------------
Title:
-------------------------------
33
38
Acknowledged and Accepted as of the [26th]
day of July, 2001:
MEDCATH CORPORATION
By:
-------------------------------------------------
Name:
-----------------------------------------------
Title:
----------------------------------------------
MEDCATH HOLDINGS, INC.
By:
-------------------------------------------------
Name:
-----------------------------------------------
Title:
----------------------------------------------
MEDCATH INTERMEDIATE HOLDINGS,
INC.
By:
-------------------------------------------------
Name:
-----------------------------------------------
Title:
----------------------------------------------
34
39
Schedule 1.1(a)
Lenders and Commitments
--------------------------------------------------------------------------------
LENDER COMMITMENT COMMITMENT
PERCENTAGE
--------------------------------------------------------------------------------
Bank of America, N.A. ________% $___________
IL1-231-08-30
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
--------------------------------------------------------------------------------
The Bankers Trust Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇ ________% $___________
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
--------------------------------------------------------------------------------
First Union National Bank
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇ ________% $___________
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
--------------------------------------------------------------------------------
GE Healthcare Financial Services
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Dev Lobo ________% $___________
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
--------------------------------------------------------------------------------
Siemens Medical Systems, Inc. ________% $___________
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
--------------------------------------------------------------------------------
40
--------------------------------------------------------------------------------
The Chase Manhattan Bank ________% $___________
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇ ▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
--------------------------------------------------------------------------------
Fifth Third Bank (Western Ohio) ________% $___________
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
--------------------------------------------------------------------------------
TOTAL:
--------------------------------------------------------------------------------
41
Schedule 1.1(b)
Related Loan Agreements and
Related Guaranty Agreements
as of the Closing Date
42
Schedule 1.1(c)
Material Contracts