UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (date of earliest event reported):
May 2, 2007
CHEMED CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 1-8351 31-0791746
(State or other jurisdiction (Commission File Number) (I.R.S. Employer
of incorporation) Identification Number)
2600 Chemed Center, 255 East 5th Street, Cincinnati, OH 45202
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code:
(513) 762-6900
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions:
[_] Written communications pursuant to Rule 425 under the Securities Act
(17 CFR 230.425)
[_] Soliciting material pursuant to Rule 14a-12 under the Exchange Act
(17 CFR 230.425)
[_] Pre-commencement communications pursuant to Rule 14d-2(b) under Exchange Act
(17 CFR 230.425)
[_] Pre-commencement communications pursuant to Rule 13e-4(c) under Exchange Act
(17 CFR 230.425)
Page 1 of 3
Item 1.01 Entry into a Material Definitive Agreement.
On May 2, 2007, Chemed Corporation ("We") entered into a new senior secured
credit facility with JPMorgan Chase Bank, N.A. (the "2007 Facility") to replace
our existing credit facility and to redeem our 8-3/4% Senior Notes due 2011
("Notes"). The 2007 Facility includes a $100 million term loan, a $175 million
revolving credit facility and a $100 million expansion feature. The facility has
a 5-year maturity with principal payments on the term loan due quarterly and on
the revolving credit facility due at maturity. Interest is payable quarterly at
a floating rate equal to our choice of various indexes plus a specified margin
based on our leverage ratio. The interest rate at the inception of the agreement
is LIBOR plus 0.875%. In connection with replacing our existing credit facility,
we will write-off approximately $2.3 million in the second quarter of 2007
related to deferred debt costs.
Item 1.02 Termination of Material Definitive Agreement.
We announced May 7, 2007, that on May 4, 2007 we completed the previously
announced redemption of the entire $150 million aggregate principal amount of
our 8-3/4% Senior Notes due 2011. We made this redemption under the indenture
dated February 24, 2004 at 104.375% of the principal amount of the Notes plus
accrued but interest.
We estimate we will record a pretax charge of approximately $11.5 million,
comprising the write-off of deferred financing and other costs ($4.9 million)
related to the Notes and the payment of the 4.375% redemption premium ($6.6
million). We will classify this charge as a loss on extinguishment of debt in
the consolidated statement of income.
Item 5.02(e) Compensatory Arrangements of Certain Officers
Employment Agreements
On May 6, 2007 Chemed Corporation and Timothy S. O'Toole, its Executive Vice
President and Chief Executive Officer of its Vitas Healthcare Corporation
subsidiary, entered into an Employment Agreement which provides for an annual
base salary of $504,500. If the Corporation terminates Mr. O'Toole's employment
with cause, as defined in the agreement, he shall receive two and one-half times
his annual base salary plus a pro-rated portion of his annual incentive bonus,
and shall continue to participate in the Corporation's welfare benefit plans for
eighteen months, in exchange for one-year post termination noncompete and
nonsolicitation covenants.
The Corporation's Board of Directors has authorized the execution of a
comparable employment agreement with Kevin McNamara, its President and Chief
Executive Officer upon expiration of his existing employment agreement in May
2008.
Page 2 of 3
Item 9.01 Financial Statements and Exhibits
c) Exhibits
10.01 Credit Agreement dated as of May 2, 2007 among Chemed Corporation, the
lenders from time to time parties thereto and JPMorgan Chase Bank, NA as
Administrative Agent.
10.02 Employment Agreement dated as of May 6, 2007 between Chemed Corporation
and Timothy S. O'Toole.
99.1 Registrant's press release dated May 7, 2007.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has caused this report to be signed on its behalf by the undersigned
hereunto duly authorized.
CHEMED CORPORATION
Dated: May 7, 2007 By: /s/ Arthur V. Tucker, Jr.
----------- -------------------------
Arthur V. Tucker, Jr.
Vice President and Controller
Page 3 of 3
Exhibit 10.01
EXECUTION COPY
CREDIT AGREEMENT
DATED AS OF MAY 2, 2007
AMONG
CHEMED CORPORATION
THE LENDERS FROM TIME TO TIME PARTIES HERETO,
CITIBANK, N.A., AS A SYNDICATION AGENT,
LASALLE BANK NATIONAL ASSOCIATION, AS A SYNDICATION AGENT,
NATIONAL CITY BANK, AS DOCUMENTATION AGENT
AND
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,
AS ADMINISTRATIVE AGENT
================================================================================
J.P. MORGAN SECURITIES INC.,
AS SOLE LEAD ARRANGER AND SOLE BOOK RUNNER
================================================================================
TABLE OF CONTENTS
ARTICLE I DEFINITIONS....................................................................1
1.1. Certain Defined Terms..............................................................1
1.2. Plural Forms......................................................................23
ARTICLE II THE CREDITS...................................................................23
2.1. Revolving Loan Commitments and Term Loan Commitments..............................23
2.2. Required Payments; Termination ...................................................24
2.3. Ratable Loans; Types of Advances..................................................24
2.4. Swing Line Loans..................................................................24
2.5. Commitment Fee; Aggregate Revolving Loan Commitment; Increase in
Aggregate Revolving Loan Commitment or Aggregate Term Loan
Commitment........................................................................26
2.6. Minimum Amount of Each Advance....................................................29
2.7. Optional Principal Payments.......................................................29
2.8. Method of Selecting Types and Interest Periods for New Advances ..................29
2.9. Conversion and Continuation of Outstanding Advances; No Conversion or
Continuation of Eurodollar Advances After Event of Default .......................30
2.10. Changes in Interest Rate, etc.....................................................31
2.11. Default Rate .....................................................................31
2.12. Method of Payment.................................................................31
2.13. Noteless Agreement; Evidence of Indebtedness......................................32
2.14. Telephonic Notices ...............................................................32
2.15. Interest Payment Dates; Interest and Fee Basis....................................33
2.16. Notification of Advances, Interest Rates, Prepayments and Revolving
Loan Commitment Reductions; Availability of Loans.................................33
2.17. Lending Installations.............................................................34
2.18. Non-Receipt of Funds by the Administrative Agent .................................34
2.19. Replacement of Lender.............................................................34
2.20. Facility LCs......................................................................35
2.21. Interest Rate Limitation .........................................................41
ARTICLE III YIELD PROTECTION; TAXES........................................................41
3.1. Yield Protection..................................................................41
3.2. Changes in Capital Adequacy Regulations...........................................42
3.3. Availability of Types of Advances ................................................42
3.4. Funding Indemnification...........................................................42
3.5. Taxes.............................................................................43
3.6. Lender Statements; Survival of Indemnity..........................................45
3.7. Alternative Lending Installation..................................................46
ARTICLE IV CONDITIONS PRECEDENT...........................................................46
4.1. Initial Credit Extension..........................................................46
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4.2. Each Credit Extension.............................................................47
ARTICLE V REPRESENTATIONS AND WARRANTIES.................................................48
5.1. Existence and Standing............................................................48
5.2. Authorization and Validity .......................................................48
5.3. No Conflict; Government Consent ..................................................48
5.4. Financial Statements .............................................................49
5.5. Material Adverse Change ..........................................................49
5.6. Taxes.............................................................................49
5.7. Litigation and Contingent Obligations.............................................50
5.8. Subsidiaries......................................................................50
5.9. ERISA.............................................................................50
5.10. Accuracy of Information...........................................................50
5.11. Regulations T, U, and X ..........................................................50
5.12. Material Agreements; Restrictions on Dividends....................................50
5.13. Compliance With Laws..............................................................51
5.14. Ownership of Properties; Priority of Liens........................................51
5.15. Plan Assets; Prohibited Transactions..............................................51
5.16. Environmental Matters.............................................................51
5.17. Investment Company Act ...........................................................51
5.18. Insurance.........................................................................51
5.19. No Event of Default or Unmatured Event of Default.................................52
5.20. SDN List Designation..............................................................52
5.21. Solvency..........................................................................52
ARTICLE VI COVENANTS .....................................................................52
6.1. Financial Reporting...............................................................52
6.2. Use of Proceeds...................................................................54
6.3. Notice of Event of Default........................................................55
6.4. Conduct of Business ..............................................................55
6.5. Taxes.............................................................................55
6.6. Insurance.........................................................................55
6.7. Compliance with Laws .............................................................55
6.8. Maintenance of Properties ........................................................55
6.9. Inspection; Keeping of Books and Records..........................................56
6.10. Restricted Payments...............................................................56
6.11. Merger or Dissolution.............................................................58
6.12. Sale of Assets....................................................................58
6.13. Investments and Acquisitions .....................................................59
6.14. Indebtedness......................................................................62
6.15. Liens.............................................................................64
6.16. Transactions with Affiliates......................................................67
6.17. Financial Contracts ..............................................................67
6.18. Subsidiary Covenants..............................................................67
6.19. Contingent Obligations ...........................................................68
6.20. Leverage Ratio....................................................................68
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6.21. Fixed Charge Coverage Ratio.......................................................69
6.22. Minimum Consolidated Net Worth ...................................................69
6.23. Operating Leases..................................................................69
6.24. Guarantors........................................................................69
6.25. Collateral........................................................................70
6.26. Credit Parties' Asset Value.......................................................70
6.27. Prepayment of Senior Unsecured Notes .............................................70
6.28. Convertible Note Offering.........................................................70
ARTICLE VII EVENTS OF DEFAULT..............................................................71
ARTICLE VIII ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES.................................73
8.1. Acceleration......................................................................73
8.2. Amendments .......................................................................75
8.3. Preservation of Rights............................................................76
ARTICLE IX GENERAL PROVISIONS ............................................................77
9.1. Survival of Representations.......................................................77
9.2. Governmental Regulation...........................................................77
9.3. Headings .........................................................................77
9.4. Entire Agreement..................................................................77
9.5. Several Obligations; Benefits of this Agreement...................................77
9.6. Expenses; Indemnification.........................................................77
9.7. Numbers of Documents .............................................................78
9.8. Accounting........................................................................78
9.9. Severability of Provisions........................................................79
9.10. Nonliability of Lenders...........................................................79
9.11. Confidentiality ..................................................................79
9.12. Lenders Not Utilizing Plan Assets.................................................80
9.13. Nonreliance.......................................................................80
9.14. Disclosure .......................................................................80
9.15. Performance of Obligations........................................................80
9.16. USA Patriot Act Notification......................................................81
IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A
NEW ACCOUNT..................................................................................81
9.17. Subordination of Intercompany Indebtedness .......................................81
ARTICLE X THE ADMINISTRATIVE AGENT.......................................................83
10.1. Appointment; Nature of Relationship...............................................83
10.2. Powers............................................................................83
10.3. General Immunity..................................................................83
10.4. No Responsibility for Loans, Recitals, etc........................................83
10.5. Action on Instructions of Lenders.................................................84
10.6. Employment of Agents and Counsel .................................................84
10.7. Reliance on Documents; Counsel....................................................84
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10.8. Administrative Agent's Reimbursement and Indemnification..........................85
10.9. Notice of Event of Default........................................................85
10.10. Rights as a Lender................................................................85
10.11. Lender Credit Decision............................................................86
10.12. Successor Administrative Agent....................................................86
10.13. Administrative Agent and Arranger Fees ...........................................86
10.14. Delegation to Affiliates..........................................................87
10.15. Collateral Documents..............................................................87
ARTICLE XI SETOFF; RATABLE PAYMENTS.......................................................88
11.1. Setoff............................................................................88
11.2. Ratable Payments..................................................................88
ARTICLE XII BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS..............................88
12.1. Successors and Assigns............................................................88
12.2. Participations....................................................................89
12.3. Assignments.......................................................................90
12.4. Dissemination of Information......................................................92
12.5. Tax Treatment.....................................................................92
ARTICLE XIII NOTICES........................................................................92
13.1. Notices; Effectiveness; Electronic Communication .................................92
13.2. Change of Address, Etc............................................................93
ARTICLE XIV COUNTERPARTS; INTEGRATION; EFFECT IVENESS; ELECTRONIC EXECUTION................94
14.1. Counterparts; Effectiveness ......................................................94
14.2. Electronic Execution of Assignments...............................................94
ARTICLE XV CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF
JURY TRIAL...................................................................94
15.1. CHOICE OF LAW ....................................................................94
15.2. CONSENT TO JURISDICTION...........................................................94
15.3. WAIVER OF JURY TRIAL..............................................................95
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SCHEDULES
---------
Commitment Schedule
Pricing Schedule
Schedule 2.20 - Existing Letters of Credit
Schedule 5.8 - Subsidiaries
Schedule 6.13 - Existing Investments
Schedule 6.14 - Existing Indebtedness
Schedule 6.15 - Existing Liens; Closing Date Surety Bond Liens
Schedule 6.16 - Transactions with Affiliates
Schedule 6.18 - Subsidiary Covenants
EXHIBITS
--------
Exhibit A-1 - Form of Borrower's In-House Counsel's Opinion
Exhibit A-2 - Form of Cravath, Swaine & Moore LLP (Special New York
Counsel) Opinion
Exhibit A-3 - Form of Richards, Layton & Finger (Special Delaware
Counsel) Opinion
Exhibit B - Form of Compliance Certificate
Exhibit C - Form of Assignment and Assumption Agreement
Exhibit D - Form of Loan/Credit Related Money Transfer
Instruction
Exhibit E-1 - Form of Promissory Note for Revolving Loan (if
requested)
Exhibit E-2 - Form of Promissory Note for Term Loan (if requested)
Exhibit F - Officer's Certificate
Exhibit G - List of Closing Documents
Exhibit H - Form of Commitment and Acceptance
CREDIT AGREEMENT
This Credit Agreement, dated as of May 2, 2007, is entered into by and
among Chemed Corporation, a Delaware corporation, the Lenders, the LC Is suer,
and JPMorgan Chase Bank, National Association, a national banking association,
as Administrative Agent. The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1. Certain Defined Terms. As used in this Agreement:
"Accounting Changes" is defined in Section 9.8 hereof.
"Acquisition" means any transaction, or any series of related
transactions, consummated on or after the Closing Date, by which the Borrower or
any of its Subsidiaries (i) acquires any going business or all or substantially
all of the assets of any firm, corporation or limited liability company, or
division thereof, whether through purchase of assets, merger or otherwise or
(ii) directly or indirectly acquires (in one transaction or as the most recent
transaction in a series of transactions) at least a majority (in number of
votes) of the securities of a corporation which have ordinary voting power for
the election of directors (other than securities having such power only by
reason of the happening of a contingency) or a majority (by percentage of voting
power) of the outstanding ownership interests of a partnership or limited
liability company of any Person.
"Administrative Agent" means JPMorgan Chase in its capacity as
contractual representative of the Lenders pursuant to Article X, and not in its
individual capacity as a Lender, as Administrative Agent, and any successor
Administrative Agent appointed pursuant to Article X.
"Advance" means a borrowing hereunder consisting of the aggregate
amount of several Revolving Loans or Term Loans, as the case may be (i) made by
some or all of the Lenders on the same Borrowing Date, or (ii) converted or
continued by the Lenders on the same date of conversion or continuation,
consisting, in either case, of the aggregate amount of the several Loans of the
same Type and, in the case of Eurodollar Loans, for the same Interest Period.
The term "Advance" shall include Swing Line Loans unless otherwise expressly
provided.
"Affiliate" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person is the
"beneficial owner" (as defined in Rule 13d-3 under the Securities Exchange Act
of 1934) of 10% or more of any class of voting securities (or other ownership
interests) of the controlled Person or possesses, directly or indirectly, the
power to direct or cause the direction of the management or policies of the
controlled Person, whether through ownership of voting securities, by contract
or otherwise.
"Aggregate Outstanding Revolving Credit Exposure" means, at any time,
the aggregate of the Outstanding Revolving Credit Exposure of all the Lenders.
"Aggregate Revolving Loan Commitment" means the aggregate of the
Revolving Loan Commitments of all the Lenders, as may be increased or reduced
from time to time pursuant to the terms hereof. The initial Aggregate Revolving
Loan Commitment is One Hundred Seventy-Five Million and 00/100 Dollars
($175,000,000).
"Aggregate Term Loan Commitment" means the aggregate of the Term Loan
Commitments of all the Lenders, as may be reduced from time to time pursuant
hereto. The initial Aggregate Term Loan Commitment is One Hundred Million and
00/100 Dollars ($100,000,000).
"Agreement" means this Credit Agreement, as it may be amended,
restated, supplemented or otherwise modified and as in effect from time to time.
"Agreement Accounting Principles" means generally accepted accounting
principles as in effect in the United States from time to time, applied in a
manner consistent with that used in preparing the financial statements of the
Borrower referred to in Section 5.4; provided, however, that except as provided
in Section 9.8, with respect to the calculation of the financial covenants set
forth in Sections 6.20 through 6.23 (and the defined terms used in such
Sections), "Agreement Accounting Principles" means generally accepted accounting
principles as in effect in the United States as of the Closing Date, applied in
a manner consistent with that used in preparing the financial statements of the
Borrower referred to in Section 5.4.
"Alternate Base Rate" means, for any day, a rate of interest per annum
equal to the higher of (i) the Prime Rate for such day and (ii) the sum of the
Federal Funds Effective Rate for such day plus 1/2 of 1% per annum.
"Applicable Fee Rate" means, with respect to the Commitment Fee at any
time, the percentage rate per annum which is applicable at such time with
respect to such fee as set forth in the Pricing Schedule.
"Applicable Margin" means, with respect to Advances of any Type at any
time, the percentage rate per annum which is applicable at such time with
respect to Advances of such Type as set forth in the Pricing Schedule.
"Applicable Pledge Percentage" means 100%, but (x) 65% in the case of a
pledge of capital stock of a Foreign Subsidiary or (y) 0% in the case of a
pledge of capital stock of a Foreign Subsidiary to the extent a pledge would
cause a Financial Assistance Problem.
"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.
"Arranger" means J.P. Morgan Securities Inc., a Delaware corporation,
and its successors, in its capacity as Sole Lead Arranger and Sole Book Runner.
2
"Article" means an article of this Agreement unless another document is
specifically referenced.
"Asset Sale" means, with respect to the Borrower or any Subsidiary, the
sale, lease, conveyance, disposition or other transfer by such Person of any of
its assets (including by way of a sale-leaseback transaction, and including the
sale or other transfer of any of the capital stock or other equity interests of
such Person or any Subsidiary of such Person but excluding cash and cash
equivalents other than Cash Equivalent Investments) to any Person other than the
Borrower or any of its Wholly-Owned Subsidiaries other than (i) the sale or
other disposition of inventory in the ordinary course of business, (ii) the sale
or other disposition of any obsolete, excess, damaged, surplus or worn-out
Equipment or overdue Receivables disposed of in the ordinary course of business,
(iii) leases or licenses of assets in the ordinary course of business consistent
with past practice, (iv) transfers consisting of Restricted Payments permitted
under Section 6.10, dispositions permitted by Section 6.12.11, Investments
permitted under Section 6.13 and Liens permitted under Section 6.15, and (v)
sales or liquidations of Cash Equivalent Investments.
"Assignment Agreement" is defined in Section 12.3.1.
"Authorized Officer" means any of the Chief Executive Officer,
President, Chief Financial Officer, Treasurer or Controller of the Borrower, or
such other officer of the Borrower as may be designated by the Borrower in
writing to the Administrative Agent from time to time, acting singly.
"Borrower" means Chemed Corporation, a Delaware corporation, and its
permitted successors and assigns (including, without limitation, a debtor in
possession on its behalf).
"Borrowing Date" means a date on which an Advance is made hereunder.
"Borrowing Notice" is defined in Section 2.8.
"Business Day" means (i) with respect to any borrowing, payment or rate
selection of Eurodollar Advances, a day (other than a Saturday or Sunday) on
which banks generally are open in Chicago, Illinois for the conduct of
substantially all of their commercial lending activities, interbank wire
transfers can be made on the Fedwire system and dealings in Dollars are carried
on in the London interbank market and (ii) for all other purposes, a day (other
than a Saturday or Sunday) on which banks generally are open in Chicago,
Illinois for the conduct of substantially all of their commercial lending
activities and interbank wire transfers can be made on the Fedwire system.
"Capital Expenditures" means, without duplication, any expenditures for
any purchase or other acquisition of any asset, other than any expenditures in
connection with Permitted Acquisitions, which would be classified as a fixed or
capital asset on a consolidated balance sheet of the Borrower and its
Subsidiaries prepared in accordance with Agreement Accounting Principles.
"Capitalized Lease" of a Person means any lease of Property by such
Person as lessee which would be capitalized on a balance sheet of such Person
prepared in accordance with Agreement Accounting Principles.
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"Capitalized Lease Obligations" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be classified as
a liability on a balance sheet of such Person prepared in accordance with
Agreement Accounting Principles.
"Cash Equivalent Investments" means (i) direct obligations of, or fully
guaranteed by, the United States of America, (ii) commercial paper rated A-1 or
better by S&P or P-1 or better by Moody's, (iii) demand deposit accounts
maintained in the ordinary course of business, (iv) certificates of deposit,
bankers' acceptances, money market deposit accounts, and time deposits issued by
or maintained with, as applicable, commercial banks (whether domestic or
foreign) having capital and surplus in excess of $100,000,000, (v) fully
collateralized repurchase agreements with a term of not more than 30 days for
securities described in clause (i) above and entered into with a financial
institution satisfying the criteria described in clause (iv) above, and (vi) in
the case of any Foreign Subsidiary, (A) marketable direct obligations issued by,
or unconditionally guaranteed by, the sovereign nation in which such Foreign
Subsidiary is organized and is conducting business or issued by any agency of
such sovereign nation and backed by the full faith and credit of such sovereign
nation, in each case maturing within one year from the date of acquisition, so
long as the Indebtedness of such sovereign nation is rated at least A-1 or
better by S&P or P-1 or better by Moody's or carries an equivalent rating from a
comparable foreign rating agency or (B) Investments of the type and maturity
described in clauses (ii) through (v) above of foreign obligors, which
Investments or obligors have ratings described in such clauses or equivalent
ratings from comparable foreign rating agencies.
"CHAMPVA" means, collectively, the Civilian Health and Medical Program
of the Department of Veteran Affairs, a program of medical benefits covering
retirees and dependents of former members of the armed services administered by
the United States Department of Veteran Affairs, and all laws, rules,
regulations, manuals, orders, guidelines or requirements pertaining to such
program including (a) all federal statutes (whether set forth in 38 U.S.C. ss.
17 13 or elsewhere) affecting such program or, to the extent applicable to
CHAMPVA; and (b) all rules, regulations (including 38 C.F.R. ss. 17.54),
manuals, orders and administrative, reimbursement and other guidelines of all
governmental authorities promulgated in connection with such program (whether or
not having the force of law), in each case as the same may be amended,
supplemented or otherwise modified from time to time.
"CHAMP VA Receivable" means a Receivable payable pursuant to the CHAMP
VA program.
"Change of Control" means the acquisition by any Person, or any group
of Persons (within the meaning of Section 13 or 14 of the Securities Exchange
Act of 1934, as amended) acting in concert, of beneficial ownership (within the
meaning of Rule 13d-3 of the Securities and Exchange Commission under the
Securities Exchange Act of 1934, as amended) of 50% or more of the outstanding
shares of capital stock of the Borrower.
"Closing Date" means May 2, 2007.
"Closing Date Net Worth Amount" means the excess of $350,000,000 over
the lesser of (x) $100,000,000 and (y) the aggregate amount paid to repurchase
the Borrower's capital stock during the period beginning on the Closing Date and
ending on the six-month anniversary
4
thereof; provided, that the Borrower shall deliver a written certificate to the
Administrative Agent at the end of each fiscal quarter occurring during such
period setting forth the aggregate of amounts paid in respect of stock
repurchases since the Closing Date and shall re-calculate in such certificate
the Closing Date Net Worth Amount as of the end of such fiscal quarter (giving
effect to all such repurchases) and such amount shall constitute the Closing
Date Net Worth Amount on and after the last day of such fiscal quarter;
provided, further, that the final determination of the Closing Date Net Worth
Amount shall be made on the six-month anniversary of the Closing Date and such
amount shall constitute the Closing Date Net Worth Amount on and after such
date.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time, and any rule or regulation issued
thereunder.
"Collateral" means all Property and interests in Property now owned or
hereafter acquired by any Credit Party in or upon which a security interest,
lien or mortgage is granted to the Administrative Agent, for the benefit of the
Holders of Secured Obligations, whether under the Pledge and Security Agreement,
under any of the other Collateral Documents or under any of the other Loan
Documents.
"Collateral Documents" means all agreements, instruments and documents
executed in connection with this Agreement that are intended to create or
evidence Liens to secure the Secured Obligations, including, without limitation,
the Pledge and Security Agreement, the Intellectual Property Security
Agreements, and all other security agreements, mortgages, deeds of trust, loan
agreements, notes, guarantees, subordination agreements, pledges, powers of
attorney, consents, assignments, contracts, fee letters, notices, leases,
financing statements and all other written matter whether heretofore, now, or
hereafter executed by any Credit Party and delivered to the Administrative
Agent.
"Collateral Shortfall Amount" is defined in Section 8.1.
"Commitment Fee" is defined in Section 2.5.1.
"Commitment Schedule" means the Schedule identifying each Lender's
Revolving Loan Commitment and Term Loan Commitment as of the Closing Date
attached hereto and identified as such.
"Consolidated Capital Expenditures" means, with reference to any
period, the Capital Expenditures of the Borrower and its consolidated
Subsidiaries calculated on a consolidated basis for such period.
"Consolidated Current Maturities" means, with reference to any period,
all scheduled payments of principal due within twelve (12) calendar months on
and after the last day of such period with respect to all Consolidated
Indebtedness of the Borrower.
"Consolidated EBITDA" means Consolidated Net Income from continuing
operations plus, to the extent deducted from revenues in determining
Consolidated Net Income, (i) Consolidated Interest Expense, (ii) expense for
taxes paid or accrued, (iii) depreciation, (iv) amortization expense of the
Borrower and its consolidated Subsidiaries (including amortization
5
recorded in connection with the application of Financial Accounting Standard No.
142 (Goodwill and Other Intangibles)), (v) dividends, distributions and payments
under any employee stock award or incentive plans plus any employment taxes,
cash fringes and employee benefit charges payable in connection therewith, (vi)
all other non-cash charges of the Borrower and its consolidated Subsidiaries
(excluding any such non-cash charge to the extent it represents an accrual of or
reserve for cash expenditures in any future period) less interest income and all
non-cash items of income of the Borrower and its consolidated Subsidiaries in
each case for such period, (vii) the aggregate amount of the awards remitted by
the Borrower to its senior management under the current Multi-Year Management
Incentive Plans; provided, however, that no more than $5,000,000 of cash
compensation, payments or awards remitted to senior management shall be included
in this calculation, (viii) non-cash charges arising from compensation expense
as a result of Financial Accounting Standards Board Statement 123R, "Share Based
Payment", which would require certain stock based compensation to be recorded as
expense within the Borrower's consolidated statement of operation, less the
amount of any subsequent cash payments in respect of any such non-cash charges,
(ix) any loss incurred by the Borrower as a result of the early extinguishment
of Indebtedness, including in connection with redemption of the Senior Unsecured
Notes, (x) all non-recurring costs and expenses incurred in connection with the
consummation of any Permitted Acquisition, Investment, asset disposition,
issuance or repayment of debt, issuance of equity securities, refinancing
transaction or amendment or modification of any debt instrument (in each case,
including any such transaction consummated prior to the Closing Date and any
such transaction undertaken but not completed) and any non-recurring charges or
non-recurring costs incurred as a result of such transaction, including all such
costs, expenses and charges in connection with the Convertible Note Offering and
the redemption, and refinancing pursuant hereto, of the Senior Unsecured Notes,
(xi) Yellow Pages Advertising Expense and (xii) up to $25,000,000 in respect of
litigation costs and expenses (including settlement amounts) related to matters
settled prior to the Closing Date and matters disclosed in the Borrower's Form
10-Q Quarterly Report filed with the SEC for the fiscal quarter ended March 31,
2007.
"Consolidated Funded Indebtedness" means, at any time, with respect to
any Person, without duplication, (i) the aggregate Dollar amount of Consolidated
Indebtedness which would be classified on the balance sheet of such Person, as
of the applicable determination date, as long-term Indebtedness, plus (ii) the
aggregate stated or face amount of all Letters of Credit at such time for which
such Person is the account party or is otherwise liable other than Letters of
Credit to the extent collateralized by cash or Cash Equivalent Instruments.
"Consolidated Indebtedness" means, at any time, with respect to any
Person, the Indebtedness of such Person and its consolidated Subsidiaries
calculated on a consolidated basis as of such time.
"Consolidated Interest Expense" means, with reference to any period,
the interest expense of the Borrower and its consolidated Subsidiaries
calculated on a consolidated basis for such period, in accordance with Agreement
Accounting Principles. Notwithstanding anything to the contrary set forth
herein, (i) interest expense in respect of amounts owing under and in connection
with the Senior Unsecured Indenture Documents shall not constitute interest
expense for purposes hereof during the five Business Day period referenced in
Sections 4.1.8 and 6.27 and at any time after the expiration of such period so
long as the Borrower has satisfied the
6
requirements of those Sections by the end of such five Business Day period, and
(ii) any premium paid in connection with the repayment of Indebtedness of the
Borrower evidenced by the Senior Unsecured Indenture Documents shall not at any
time be included in Consolidated Interest Expense.
"Consolidated Net Income" means, with reference to any period, the net
income (or loss) of the Borrower and its consolidated Subsidiaries calculated on
a consolidated basis for such period in accordance with Agreement Accounting
Principles.
"Consolidated Net Worth" means at any time, with respect to any Person,
the consolidated stockholders' equity of such Person and its consolidated
Subsidiaries, plus minority interests in Subsidiaries, calculated on a
consolidated basis in accordance with Agreement Accounting Principles.
"Contingent Obligation" of a Person means any agreement, undertaking or
arrangement by which such Person assumes, guarantees, endorses, contingently
agrees to purchase or provide funds for the payment of, or otherwise becomes or
is contingently liable upon, the obligation or liability of any other Person, or
agrees to maintain the net worth or working capital or other financial condition
of any other Person, or otherwise assures any creditor of such other Person
against loss, including, without limitation, any operating agreement,
take-or-pay contract or the obligations of any such Person as general partner of
a partnership with respect to the liabilities of the partnership (except to the
extent expressly without recourse to such Person).
"Continuing Director" means, with respect to any Person as of any date
of determination, any member of the board of directors of such Person who (i)
was a member of such board of directors on the Closing Date, or (ii) was
nominated for election or elected to such board of directors with the approval
of the required majority of the Continuing Directors who were members of such
board at the time of such nomination or election.
"Controlled Group" means all members of a controlled group of
corporations or other business entities and all trades or businesses (whether or
not incorporated) under common control which, together with the Borrower or any
of its Subsidiaries, are treated as a single employer under Section 414 of the
Code.
"Conversion/Continuation Notice" is defined in Section 2.9.
"Convertible Note Offering" means (x) the following series of
contemporaneous transactions:
(i) the Borrower's issuance of unsecured notes in an aggregate
principal amount not in excess of $200,000,000 (as amended, modified, refinanced
or replaced from time to time, the "Convertible Notes"), which unsecured notes
may be guaranteed by the Guarantors, and which unsecured notes initially are
convertible into cash and shares of the Borrower's capital stock; and
(ii) one or more call option transactions, between the Borrower and one
or more financial institutions, which upon exercise, will require such financial
institutions to deliver shares of capital stock of the Borrower or other
property to the Borrower in an amount substantially
7
equivalent to the shares of capital stock of the Borrower or other property
deliverable to holders of the Convertible Notes upon conversion of the
Convertible Notes;
(iii) one or more warrant transactions between the Borrower and one or
more financial institutions which, upon exercise, will require the Borrower to
deliver a specified number of shares of capital stock of the Borrower or other
property to the financial institutions party thereto; and
(iv) the repurchase of shares of the Borrower's capital stock either
concurrently with the issuance of the Convertible Notes or pursuant to one or
more accelerated share repurchase agreements entered into at the time of
issuance of the Convertible Notes with one or more financial institutions (any
such repurchase or repurchase contract, together with any call option
transactions entered into pursuant to the intermediary proceeding clause (ii)
and any warrant transactions entered into pursuant to the immediately preceding
clause (iii) being referred to herein as "Permitted Stock Transactions") and
(y) all conversions of the Convertible Notes into cash and shares of
the Borrower's capital stock or other property, all exchanges or transfers of
the Borrower's capital stock between the Borrower and the holders of the
Convertible Notes or the counterparties to the Permitted Stock Transactions or
any early termination of any of the foregoing in each case in furtherance of the
transactions described in clause (x) above.
"Convertible Notes" has the meaning set forth in the definition of
Convertible Note Offering.
"Credit Extension" means the making of an Advance or the issuance of a
Facility LC hereunder.
"Credit Extension Date" means the Borrowing Date for an Advance or the
issuance date for a Facility LC.
"Credit Party" means, at any time, any of the Borrower and any Person
which is a Guarantor at such time.
"Credit Parties' Asset Value" means, as of the end of each of the
Borrower's fiscal quarters, the aggregate book value of the Credit Parties'
Property.
"Deemed Dividend Problem" means, with respect to any Foreign
Subsidiary, such Foreign Subsidiary's accumulated and undistributed earnings and
profits being deemed to be repatriated to the Borrower or the applicable parent
Domestic Subsidiary for U.S. federal income tax purposes and the effect of such
repatriation causing adverse tax consequences to the Borrower or such parent
Domestic Subsidiary, in each case as determined by the Borrower in its
commercially reasonable judgment acting in good faith and, if applicable, in
consultation with its legal and tax advisors.
"Disqualified Stock" means any capital stock or other equity interest
that, by its terms (or by the terms of any security into which it is convertible
or for which it is exchangeable), matures or is mandatorily redeemable, pursuant
to a sinking fund obligation or otherwise, or redeemable
8
at the option of the holder thereof, in whole or in part, on or prior to the
date that is 91 days after the later of the (i) the Revolving Loan Termination
Date and (ii) the Term Loan Maturity Date.
"Dollar", "dollar" and "$" means the lawful currency of the United
States of America.
"Domestic Subsidiary" means any Subsidiary of any Person organized
under the laws of a jurisdiction located in the United States of America.
"Environmental Laws" means any and all federal, state, local and
foreign statutes, laws, judicial decisions, regulations, ordinances, rules,
judgments, orders, decrees, injunctions, permits, and legally enforceable
governmental concessions, grants, franchises, licenses, agreements and
restrictions relating to (i) the protection of the environment, (ii) emissions,
discharges or releases of pollutants, contaminants, hazardous substances or
wastes into surface water, ground water or land, or (iii) the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of pollutants, contaminants, hazardous substances or wastes or the
clean-up or other remediation thereof.
"Equipment" means all of the Borrower's and each Subsidiary's present
and future (i) equipment, including, without limitation, machinery,
manufacturing, distribution, data processing and office equipment, assembly
systems, tools, molds, dies, fixtures, appliances, furniture, furnishings,
vehicles, vessels, aircraft, aircraft engines, and trade fixtures, (ii) other
tangible personal property (other than inventory), and (iii) any and all
accessions, parts and appurtenances attached to any of the foregoing or used in
connection therewith, and any substitutions therefor and replacements, products
and proceeds thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any rules or regulations promulgated thereunder.
"Eurodollar Advance" means an Advance which, except as otherwise
provided in Section 2.11, bears interest at the applicable Eurodollar Rate.
"Eurodollar Base Rate" means, with respect to any Eurodollar Advance
for any Interest Period, the rate appearing on Reuters BBA Libor Rates Page 3750
(or on any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the "Eurodollar Base Rate" with
respect to such Eurodollar Advance for such Interest Period shall be the rate at
which dollar deposits in a comparable amount and for a maturity comparable to
such Interest Period are offered by the principal London office of the
Administrative Agent in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
"Eurodollar Loan" means a Loan which, except as otherwise provided in
Section 2.11, bears interest at the applicable Eurodollar Rate.
9
"Eurodollar Rate" means, with respect to a Eurodollar Advance for the
relevant Interest Period, the sum of (i) the quotient of (a) the Eurodollar Base
Rate applicable to such Interest Period, divided by (b) one minus the Reserve
Requirement (expressed as a decimal) applicable to such Interest Period, plus
(ii) the Applicable Margin then in effect, changing as and when the Applicable
Margin changes.
"Event of Default" means an event described in Article VII.
"Event of Loss" means, with respect to any Property, any of the
following: (i) any loss, destruction or damage of such Property or (ii) any
condemnation, seizure, or taking, by exercise of the power of eminent domain or
otherwise, of such Property, or confiscation of such Property or the requisition
of the use of such Property by any Governmental Authority.
"Excluded Taxes" means, in the case of each Lender or applicable
Lending Installation and the Administrative Agent, (i) taxes imposed on its
overall net income, and franchise taxes imposed on it, by (a) the United States
of America, (b) the jurisdiction under the laws of which such Lender or the
Administrative Agent is incorporated or organized or any political combination
or subdivision or taxing authority thereof or (c) the jurisdiction in which the
Administrative Agent's or such Lender's principal executive office or such
Lender's applicable Lending Installation or office making or booking a Loan or
Facility LC is located, (ii) any branch profits taxes described in clauses (b)
and (c) above imposed by the United States of America or any similar tax imposed
by any other jurisdiction and (iii) in the case of a Non U.S. Lender (as defined
in Section 3.5), any withholding tax that is imposed on amounts payable to such
Non U.S. Lender at the time such Non U.S. Lender becomes a party to this
Agreement (or designates a new lending office).
"Exhibit" refers to an exhibit to this Agreement, unless another
document is specifically referenced.
"Existing Letters of Credit" means those Letters of Credit identified
in Schedule 2.20.
"Existing Revolving Credit Lender" is defined in Section 2.5.3.
"Facility LC" is defined in Section 2.20.1.
"Facility LC Application" is defined in Section 2.20.3.
"Facility LC Collateral Account" is defined in Section 2.20.11.
"Federal Funds Effective Rate" means, for any day, the weighted average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any date that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
10
"Financial Contract" of a Person means (i) any exchange-traded or
over-the-counter future, forward, swap or option contract or other financial
instrument with similar characteristics or (ii) any Rate Management Transaction.
"Financial Assistance Problem" means, with respect to any Foreign
Subsidiary, the inability of such Foreign Subsidiary to become a Subsidiary
Guarantor or to permit its assets from being pledged pursuant to a pledge or
security agreement on account of legal or financial limitations imposed by the
jurisdiction of organization of such Foreign Subsidiary or other relevant
jurisdictions having authority over such Foreign Subsidiary, in each case as
determined by the Borrower in its commercially reasonable judgment acting in
good faith and in consultation with its legal and tax advisors.
"Financing" means, with respect to any Person, (i) the issuance or sale
by such Person of any equity interests in such Person, or (ii) the issuance or
sale by such Person of any Indebtedness other than Indebtedness permitted under
Section 6.14; provided, however, that the foregoing clause (ii) shall not permit
the incurrence by the Borrower or any Subsidiary of any Indebtedness if such
incurrence is not otherwise permitted by Section 6.14.
"FIRREA" means the Financial Institutions Reform, Recovery, and
Enforcement Act of 1989, as amended, modified or supplemented from time to time.
"First Tier Foreign Subsidiary" means each Foreign Subsidiary with
respect to which any one or more of the Borrower and its Domestic Subsidiaries
directly owns more than 50% of such Foreign Subsidiary's issued and outstanding
ordinary equity interests.
"Floating Rate" means, for any day, a rate per annum equal to the sum
of (i) the Alternate Base Rate for such day, changing when and as the Alternate
Base Rate changes plus (ii) the Applicable Margin then in effect, changing as
and when the Applicable Margin changes.
"Floating Rate Advance" means an Advance which, except as otherwise
provided in Section 2.11, bears interest at the Floating Rate.
"Floating Rate Loan" means a Loan which, except as otherwise provided
in Section 2.11, bears interest at the Floating Rate.
"Foreign Subsidiary" means any Subsidiary of any Person which is not a
Domestic Subsidiary of such Person.
"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.
"Governmental Authority" means any nation or government, any foreign,
federal, state, local or other political subdivision thereof and any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Governmental Receivables" means, collectively, any and all Receivables
which are (a) Medicare Receivables, (b) Medicaid Receivables, (c) CHAMPVA
Receivables, (d) TRICARE
11
Receivables, or (e) any other Receivables payable by a Governmental Authority
approved by the Administrative Agent.
"Guarantor" means each Subsidiary of the Borrower which is a party to
the Guaranty Agreement, including each Subsidiary of the Borrower which becomes
a party to the Guaranty Agreement pursuant to a joinder or other supplement
thereto.
"Guaranty Agreement" means the Guaranty Agreement, dated as of the
Closing Date, made by the Guarantors in favor of the Administrative Agent for
the benefit of the Holders of Secured Obligations, as the same may be amended,
restated, supplemented or otherwise modified from time to time.
"Holders of Secured Obligations" means the holders of the Secured
Obligations from time to time and shall refer to (i) each Lender in respect of
its Loans, (ii) the LC Issuer in respect of Reimbursement Obligations, (iii) the
Administrative Agent, the Lenders and the LC Issuer in respect of all other
present and future obligations and liabilities of the Borrower or any of its
Domestic Subsidiaries of every type and description arising under or in
connection with this Agreement or any other Loan Document, (iv) each Lender (or
affiliate thereof), in respect of all Rate Management Obligations of the
Borrower to such Lender (or such affiliate) as exchange party or counterparty
under any Rate Management Transaction, unless the Borrower and such Lender
mutually agree that such Rate Management Obligations do not constitute Secured
Obligations, (v) each Person benefiting from indemnities made by the Borrower or
any Subsidiary hereunder or in any Loan Document in respect of the obligations
and liabilities of the Borrower or such Subsidiary to such Person, and (vi)
their respective permitted successors, transferees and assigns.
"Indebtedness" of a Person means, at any time, without duplication,
such Person's (i) obligations for borrowed money, (ii) obligations representing
the deferred purchase price of Property or services (other than current accounts
payable arising in the ordinary course of such Person's business and obligations
in respect of deferred compensation), (iii) obligations, whether or not assumed,
secured by Liens or payable out of the proceeds or production from Property now
or hereafter owned or acquired by such Person, (iv) obligations which are
evidenced by notes, bonds, debentures, acceptances, or other similar
instruments, (v) obligations to purchase securities or other Property arising
out of or in connection with the sale of the same or substantially similar
securities or Property, (vi) Capitalized Lease Obligations, (vii) Contingent
Obligations of such Person in respect of Indebtedness, (viii) reimbursement
obligations under Letters of Credit, bankers' acceptances, surety bonds and
similar instruments, (ix) for purposes of Section 6.14 only, Net Mark-to-Market
Exposure under Rate Management Transactions and other Financial Contracts, and
(x) any other obligation for borrowed money which in accordance with Agreement
Accounting Principles would be classified as indebtedness on the consolidated
balance sheet of such Person. Notwithstanding anything to the contrary set forth
herein, Indebtedness owing under and in connection with the Senior Unsecured
Indenture Documents shall not constitute Indebtedness for purposes hereof during
the five Business Day period referenced in Sections 4.1.8 and 6.27 and at any
time after the expiration of such period so long as the Borrower has satisfied
the requirements of those Sections by the end of such five Business Day period.
Notwithstanding anything in this definition to the contrary, obligations of the
Borrower under Permitted Stock Transactions shall not constitute Indebtedness.
12
"Intellectual Property Security Agreements" means the intellectual
property security agreements as any Credit Party may from time to time make in
favor of the Administrative Agent for the benefit of the Holders of Secured
Obligations, in each case as the same may be amended, restated, supplemented or
otherwise modified from time to time.
"Interest Period" means, with respect to a Eurodollar Advance, a period
of one, two, three or six months, or, to the extent available as determined by
the Administrative Agent in its reasonable judgment, nine or twelve months,
commencing on a Business Day selected by the Borrower pursuant to this
Agreement. Such Interest Period shall end on but exclude the day which
corresponds numerically to such date one, two, three, six, or, if applicable,
nine or twelve months thereafter, provided, however, that if there is no such
numerically corresponding day in such next, second, third, sixth or, if
applicable, ninth or twelfth succeeding month, such Interest Period shall end on
the last Business Day of such next, second, third, sixth or, if applicable,
ninth or twelfth succeeding month. If an Interest Period would otherwise end on
a day which is not a Business Day, such Interest Period shall end on the next
succeeding Business Day, provided, however, that if said next succeeding
Business Day falls in a new calendar month, such Interest Period shall end on
the immediately preceding Business Day.
"Investment" of a Person means any loan, advance (other than
commission, travel, relocation and other loans and advances to officers or
employees made in the ordinary course of business), extension of credit (other
than Receivables arising in the ordinary course of business) or contribution of
capital by such Person; stocks, bonds, mutual funds, partnership interests,
notes, debentures or other securities owned by such Person; any deposit accounts
and certificate of deposit owned by such Person; and structured notes,
derivative financial instruments and other similar instruments or contracts
owned by such Person.
"JPMorgan Chase" means JPMorgan Chase Bank, National Association, a
national banking association, in its individual capacity, and its successors.
"LC Fee" is defined in Section 2.20.4.
"LC Issuer" means JPMorgan Chase (or any subsidiary or affiliate of
JPMorgan Chase designated by JPMorgan Chase) in its capacity as issuer of
Facility LCs hereunder.
"LC Obligations" means, at any time, the sum, without duplication, of
(i) the aggregate undrawn stated amount under all Facility LCs outstanding at
such time plus (ii) the aggregate unpaid amount at such time of all
Reimbursement Obligations.
"LC Payment Date" is defined in Section 2.20.5.
"Lenders" means the lending institutions listed on the signature pages
of this Agreement and their respective permitted successors and assigns. Unless
otherwise specified, the term "Lenders" includes the Swing Line Lender and the
LC Issuer.
"Lending Installation" means, with respect to a Lender or the
Administrative Agent, the office, branch, subsidiary or affiliate of such Lender
or the Administrative Agent listed on the signature pages hereof or on the
administrative information sheets provided to the Administrative
13
Agent in connection herewith or on a Schedule or otherwise selected by such
Lender or the Administrative Agent pursuant to Section 2.17.
"Letter of Credit" of a Person means a letter of credit or similar
instrument which is issued upon the application of such Person or upon which
such Person is an account party or for which such Person is in any way liable.
"Leverage Ratio" has the meaning set forth in Section 6.20.
"Lien" means any lien (statutory or other), security interest,
mortgage, pledge, hypothecation, assignment, deposit arrangement, or encumbrance
of any kind or nature whatsoever (including, without limitation, the interest of
a vendor or lessor under any conditional sale, Capitalized Lease or other title
retention agreement, and, in the case of stock agreements, any purchase option,
call or similar right of a Person with respect to such stock).
"Loan" means, with respect to a Lender, such Lender's loan made
pursuant to Article II (or any conversion or continuation thereof), whether
constituting a Term Loan, Revolving Loan or a Swing Line Loan.
"Loan Documents" means this Agreement, the Facility LC Applications,
the Collateral Documents, the Guaranty Agreement and all other documents,
instruments, notes (including any Notes issued pursuant to Section 2.13 (if
requested)) and agreements executed in connection herewith or therewith or
contemplated hereby or thereby, as the same may be amended, restated or
otherwise modified and in effect from time to time.
"Material Adverse Effect" means a material adverse effect on (i) the
business, assets, condition (financial or otherwise), or Property of the
Borrower and its Subsidiaries taken as a whole, (ii) the ability of the Borrower
or any Subsidiary to perform its material obligations under the Loan Documents,
or (iii) the validity or enforceability of the Loan Documents or the rights or
remedies of the Administrative Agent, the LC Is suer or the Lenders thereunder
or their rights with respect to the Collateral.
"Material Indebtedness" means any Indebtedness in an outstanding
principal amount of $20,000,000 or more in the aggregate (or the equivalent
thereof in any currency other than Dollars).
"Material Indebtedness Agreement" means any agreement under which any
Material Indebtedness is outstanding or is governed.
"Medicaid" shall mean, collectively, the health care assistance program
established by Title XIX of the Social Security Act (42 U.S.C. ss.ss. 1396 et
seq.) and any statutes succeeding thereto, and all laws, rules, regulations,
manuals, orders, guidelines or requirements pertaining to such program including
(a) all federal statutes (whether set forth in Title XIX of the Social Security
Act or elsewhere) affecting such program; (b) all state statutes and plans for
medical assistance enacted in connection with such program and federal rules and
regulations promulgated in connection with such program; and (c) all applicable
provisions of all rules, regulations, manuals, orders and administrative
reimbursement guidelines and requirements of all government authorities
promulgated in connection with such program (whether or not having
14
the force of law), in each case as the same may be amended, supplemented or
otherwise modified from time to time.
"Medicaid Receivable" shall mean a Receivable payable pursuant to the
Medicaid program.
"Medicare" shall mean, collectively, the health insurance program for
the aged and disabled established by Title XVIII of the Social Security Act (42
U.S.C. ss.ss. 1395 et seq.) and any statutes succeeding thereto, and all laws,
rules, regulations, manuals, orders or guidelines pertaining to such program
including (a) all federal statutes (whether set forth in Title XVIII of the
Social Security Act or elsewhere) affecting such program; and (b) all applicable
provisions of all rules, regulations, manuals, orders and administrative
reimbursement guidelines and requirements of all governmental authorities
promulgated in connection with such program (whether or not having the force of
law), in each case as the same may be amended, supplemented or otherwise
modified from time to time.
"Medicare Receivable" shall mean a Receivable payable pursuant to the
Medicare program.
"Modify" and "Modification" are defined in Section 2.20.1.
"Moody's" means Moody's Investors Services, Inc. and any successor
thereto.
"Multiemployer Plan" means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA, which is covered by Title IV of ERISA and to which the
Borrower or any member of the Controlled Group is obligated to make
contributions.
"Multi-Year Management Incentive Plans" means the Borrower's incentive
plans in effect on the Closing Date that run to the benefit of Borrower's senior
management and that award cash and/or non-cash bonuses (such as equity interests
or options to purchase equity interests in the Borrower) to senior management
based upon increases in Consolidated EBITDA and/or the share price for equity
interests of the Borrower or similar items that evidence increases in the
Borrower's profitability.
"Net Mark-to-Market Exposure" of a Person means, as of any date of
determination, the excess (if any) of all unrealized losses over all unrealized
profits of such Person arising from Rate Management Transactions, as determined
by such Person in good faith. "Unrealized losses" means the fair market value of
the cost to such Person of replacing such Rate Management Transaction as of the
date of determination (assuming the Rate Management Transaction were to be
terminated as of that date), and "unrealized profits" means the fair market
value of the gain to such Person of replacing such Rate Management Transaction
as of the date of determination (assuming such Rate Management Transaction were
to be terminated as of that date).
"Non-U.S. Lender" is defined in Section 3.5(iv).
"Note" is defined in Section 2.13.
15
"Obligations" means all Loans, all Reimbursement Obligations, advances,
debts, liabilities, obligations, covenants and duties owing by the Borrower to
the Administrative Agent, any Lender, the Swing Line Lender, the LC Is suer, the
Arranger, or any indemnitee under the provisions of Section 9.6 or any other
provisions of the Loan Documents, in each case of any kind or nature, present or
future, arising under this Agreement or any other Loan Document, whether or not
evidenced by any note, guaranty or other instrument, whether or not for the
payment of money, whether arising by reason of an extension of credit, loan,
foreign exchange risk, guaranty, indemnification, or in any other manner,
whether direct or indirect (including those acquired by assignment), absolute or
contingent, due or to become due, now existing or hereafter arising and however
acquired. The term includes, without limitation, all interest, charges,
expenses, fees, attorneys' fees and disbursements (in each case whether or not
allowed), and any other sum chargeable to the Borrower or any of its
Subsidiaries under this Agreement or any other Loan Document.
"Operating Lease" of a Person means any lease of Property (other than a
Capitalized Lease) by such Person as lessee which has an original term
(including any required renewals and any renewals effective at the option of the
lessor) of one year or more.
"Other Taxes" is defined in Section 3.5(ii).
"Outstanding Revolving Credit Exposure" means, as to any Lender at any
time, the sum of (i) the aggregate principal amount of its Revolving Loans
outstanding at such time, plus (ii) an amount equal to its ratable obligation to
purchase participations in the aggregate principal amount of Swing Line Loans
outstanding at such time, plus (iii) an amount equal to its ratable obligation
to purchase participations in the LC Obligations at such time.
"Participants" is defined in Section 12.2.1.
"Payment Date" means the last day of each March, June, September and
December, the Revolving Loan Termination Date and the Term Loan Maturity Date.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
"Permitted Acquisition" is defined in Section 6.13.20.
"Permitted Stock Transactions" has the meaning set forth in the
definition of Convertible Note Offering.
"Person" means any natural person, corporation, firm, joint venture,
partnership, limited liability company, association, enterprise, trust or other
entity or organization, or any government or political subdivision or any
agency, department or instrumentality thereof.
"PIP" means periodic interim payments (or similar payments) made by any
Governmental Authority to any Credit Party under the Medicare, Medicaid, TRICARE
or CHAMP VA programs or any similar program of any Governmental Authority.
"PIP Settlements" has the meaning ascribed to such term in Section
6.9(ii) hereof.
16
"Plan" means an employee pension benefit plan, excluding any
Multiemployer Plan, which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Code as to which the Borrower
or any member of the Controlled Group may have any liability.
"Pledge and Security Agreement" means that certain Pledge and Security
Agreement, dated as of the Closing Date, by and between the Credit Parties and
the Administrative Agent for the benefit of the Holders of Secured Obligations,
as the same may be amended, restated, supplemented, or otherwise modified from
time to time.
"Pledge Subsidiary" means each Domestic Subsidiary and, at the option
of the Administrative Agent, each First Tier Foreign Subsidiary.
"Pricing Schedule" means the Schedule identifying the Applicable Margin
and Applicable Fee Rate attached hereto and identified as such.
"Prime Rate" means the rate of interest per annum publicly announced
from time to time by JPMorgan Chase as its prime rate in effect at its principal
office in New York City; each change in the Prime Rate shall be effective from
and including the date such change is publicly announced as being effective.
"Property" of a Person means any and all property, whether real,
personal, tangible, intangible, or mixed, of such Person.
"Pro Rata Share" means, with respect to any Lender, the percentage
obtained by multiplying 100% by the quotient of (i) the sum of such Lender's
Revolving Loan Commitment and Term Loans at such time divided by (ii) the sum of
the Aggregate Revolving Loan Commitment and the aggregate amount of all of the
Term Loans at such time; provided, however, if all of the Revolving Loan
Commitments and Term Loan Commitments are terminated pursuant to the terms of
this Agreement, then "Pro Rata Share" means the percentage obtained by
multiplying 100% by the quotient of (a) the sum of such Lender's Outstanding
Revolving Credit Exposure and outstanding Term Loans at such time divided by (b)
the sum of the Aggregate Outstanding Revolving Credit Exposure and the aggregate
outstanding amount of all Term Loans at such time.
"Purchase Price" means the total consideration and other amounts
payable in connection with any Acquisition, including, without limitation, any
portion of the consideration payable in cash, all Indebtedness, liabilities and
contingent obligations incurred or assumed in connection with such Acquisition
and all transaction costs and expenses incurred in connection with such
Acquisition, but exclusive of the value of any capital stock or other equity
interests of the Borrower or any Subsidiary issued as consideration for such
Acquisition.
"Purchasers" is defined in Section 12.3.1.
"Rabbi Trust" means a trust established by the Borrower or any
Subsidiary to hold assets in connection with an employee benefit plan or
arrangement, including, without limitation, the trusts established in connection
with the Chemed Excess Benefit Plan, the Roto-Rooter Deferred Compensation Plan
and the Chemed Corporation Long-Term Care Insurance Plan.
17
"Rabbi Trust Subsidiary" means any Subsidiary of the Borrower
substantially all the assets of which are, or are to be, assets of one or more
Rabbi Trusts.
"Rate Management Obligations" of a Person means any and all obligations
of such Person, whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor), under (i) any and all Rate
Management Transactions, and (ii) any and all cancellations, buy backs,
reversals, terminations or assignments of any Rate Management Transactions.
"Rate Management Transaction" means any transaction (including an
agreement with respect thereto) now existing or hereafter entered by the
Borrower or a Subsidiary which is a rate swap, basis swap, forward rate
transaction, commodity swap, commodity option, equity or equity index swap,
equity or equity index option, bond option, interest rate option, foreign
exchange transaction, cap transaction, floor transaction, collar transaction,
forward transaction, currency swap transaction, cross-currency rate swap
transaction, currency option or any other similar transaction (including any
option with respect to any of these transactions) or any combination thereof,
whether linked to one or more interest rates, foreign currencies, commodity
prices, equity prices or other financial measures.
"Receivable(s)" means and includes all of the Borrower's and each
Subsidiary's presently existing and hereafter arising or acquired accounts,
accounts receivable, and all present and future rights of the Borrower or such
Subsidiary to payment for goods sold or leased or for services rendered (except
those evidenced by instruments or chattel paper), whether or not they have been
earned by performance, and all rights in any merchandise or goods which any of
the same may represent, and all rights, title, security and guarantees with
respect to each of the foregoing, including, without limitation, any right of
stoppage in transit.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor thereto
or other regulation or official interpretation of said Board of Governors
relating to reserve requirements applicable to member banks of the Federal
Reserve System.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by banks, non-banks and non-broker lenders for the purpose
of purchasing or carrying margin stocks applicable to member banks of the
Federal Reserve System.
"Regulation X" means Regulation X of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by foreign lenders for the purpose of purchasing or carrying
margin stock (as defined therein).
"Reimbursement Obligations" means, at any time, the aggregate of all
obligations of the Borrower then outstanding under Section 2.20 to reimburse the
LC Issuer for amounts paid by the LC Issuer in respect of any one or more
drawings under Facility LCs.
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"Reportable Event" means a reportable event, as defined in Section 4043
of ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC has by regulation waived
the requirement of Section 4043(a) of ERISA that it be notified within thirty
(30) days of the occurrence of such event, provided, however, that a failure to
meet the minimum funding standard of Section 412 of the Code and of Section 302
of ERISA shall be a Reportable Event regardless of the issuance of any such
waiver of the notice requirement in accordance with either Section 4043(a) of
ERISA or Section 412(d) of the Code.
"Reports" is defined in Section 9.6.
"Required Guarantor Subsidiary" means, at any time, (i) any Domestic
Subsidiary all of the outstanding voting securities of which shall at the time
be owned, directly or indirectly, by the Borrower or one or more Required
Guarantor Subsidiaries or by the Borrower and one or more Required Guarantor
Subsidiaries, or (ii) any Domestic Subsidiary that is a partnership, limited
liability company, association, joint venture or similar business organization
100% of the ownership interests having ordinary voting power of which shall at
the time be so owned; provided, however, that VNF and any Rabbi Trust or Rabbi
Trust Subsidiary shall not be Required Guarantor Subsidiaries.
"Required Lenders" means Lenders in the aggregate having more than 50%
of the sum of the Aggregate Revolving Loan Commitment and the Aggregate Term
Loan Commitment (or, if all of the Revolving Loan Commitments and Term Loan
Commitments are terminated pursuant to the terms of this Agreement, the
Aggregate Outstanding Revolving Credit Exposure and aggregate outstanding
principal amount of Term Loans at such time).
"Reserve Requirement" means, with respect to an Interest Period, the
maximum aggregate reserve requirement (including all basic, supplemental,
marginal and other reserves) which is imposed under Regulation D on
"Eurocurrency liabilities" (as defined in Regulation D) for such Interest
Period.
"Restricted Payment" means (i) any dividend or other distribution,
direct or indirect, on account of any equity interests of the Borrower or VITAS
Healthcare now or hereafter outstanding, except a dividend payable solely in the
Borrower's or VITAS Healthcare's capital stock (other than Disqualified Stock)
or in options, warrants or other rights to purchase such capital stock, or (ii)
any redemption, retirement, purchase or other acquisition for value, direct or
indirect, of any equity interests of the Borrower or any of its Subsidiaries now
or hereafter outstanding, other than in exchange for, or out of the proceeds of,
the substantially concurrent sale (other than to a Subsidiary of the Borrower)
of other equity interests of the Borrower (other than Disqualified Stock).
"Revolving Commitment Increase Lender" is defined in Section 2.5.3.
"Revolving Loan" means, with respect to a Lender, such Lender's loan
made pursuant to its commitment to lend set forth in Section 2.1.1 (and any
conversion or continuation thereof).
"Revolving Loan Commitment" means, for each Lender, including without
limitation, each LC Issuer, such Lender's obligation to make Revolving Loans to,
and participate in Facility LCs issued upon the application of, the Borrower in
an aggregate amount not exceeding the
19
amount set forth for such Lender on the Commitment Schedule or in any Assignment
Agreement delivered pursuant to Section 12.3, as such amount may be modified
from time to time pursuant to the terms hereof.
"Revolving Loan Pro Rata Share" means, with respect to any Lender, the
percentage obtained by multiplying 100% by the quotient of (i) such Lender's
Revolving Loan Commitment at such time divided by (ii) the Aggregate Revolving
Loan Commitment at such time; provided, however, if all of the Revolving Loan
Commitments are terminated pursuant to the terms of this Agreement, then
"Revolving Loan Pro Rata Share" means the percentage obtained by multiplying
100% by the quotient of (a) such Lender's Outstanding Revolving Credit Exposure
at such time divided by (b) the Aggregate Outstanding Revolving Credit Exposure
at such time.
"Revolving Loan Termination Date" means the earlier of (a) May 2, 2012,
and (b) the date of termination in whole of the Aggregate Revolving Loan
Commitment pursuant to Section 2.2 hereof or the Revolving Loan Commitments
pursuant to Section 8.1 hereof.
"S&P" means Standard and Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc., and any successor thereto.
"Sale and Leaseback Transaction" means any sale or other transfer of
Property by any Person with the intent to lease such Property as lessee.
"Schedule" refers to a specific schedule to this Agreement, unless
another document is specifically referenced.
"SEC" means the Securities and Exchange Commission or any other
governmental authority succeeding to any of the principal functions thereof.
"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
"Secured Obligations" means, collectively, (i) the Obligations and (ii)
all Rate Management Obligations owing in connection with Rate Management
Transactions to any Lender or any affiliate of any Lender, unless the Borrower
and any such Lender mutually agree that such Rate Management Obligations do not
constitute Secured Obligations.
"Senior Unsecured Indenture" means the Indenture, dated as of February
24, 2004, by and between the Borrower and LaSalle Bank National Association, as
Trustee for the purchasers of the Senior Unsecured Notes, as the same may be
amended, restated, supplemented or otherwise modified from time to time.
"Senior Unsecured Indenture Documents" means the Senior Unsecured
Notes, the Senior Unsecured Indenture, and the agreements, documents, and
instruments delivered in connection therewith, as each of the foregoing may be
amended, restated, supplemented or otherwise modified from time to time.
"Senior Unsecured Notes" means those certain unsecured 8-3/4% Senior
Unsecured Notes due 2011 in an initial aggregate principal amount equal to
$150,000,000, issued by the
20
Borrower pursuant to the Senior Unsecured Indenture, as such Notes may be
amended, restated, supplemented, or otherwise modified from time to time.
"Single Employer Plan" means a Plan maintained by the Borrower or any
member of the Controlled Group for employees of the Borrower or any member of
the Controlled Group.
"Subsidiary" of a Person means (i) any corporation of which more than
50% of the outstanding securities having ordinary voting power shall at the time
be owned or controlled, directly or indirectly, by such Person or by one or more
of its Subsidiaries or by such Person and one or more of its Subsidiaries, or
(ii) any partnership, limited liability company, association, joint venture or
similar business organization of which more than 50% of the ownership interests
having ordinary voting power shall at the time be so owned or controlled. Unless
otherwise expressly provided, all references herein to a "Subsidiary" shall mean
a Subsidiary of the Borrower.
"Substantial Portion" means, with respect to the Property of the
Borrower and its Subsidiaries, Property which represents more than 10% of the
consolidated tangible assets of the Borrower and its Subsidiaries or Property
which is responsible for more than 10% of the consolidated net revenues of the
Borrower and its Subsidiaries, in each case, as would be shown in the
consolidated financial statements of the Borrower and its Subsidiaries as at the
beginning of the twelve-month period ending with the month in which such
determination is made (or if financial statements have not been delivered
hereunder for that month which begins the twelve-month period, then the
financial statements delivered hereunder for the quarter ending immediately
prior to that month).
"Swing Line Borrowing Notice" is defined in Section 2.4.2.
"Swing Line Commitment" means the obligation of the Swing Line Lender
to make Swing Line Loans up to a maximum principal amount of $20,000,000 at any
one time outstanding.
"Swing Line Lender" means JPMorgan Chase.
"Swing Line Loan" means a Loan made available to the Borrower by the
Swing Line Lender pursuant to Section 2.4.
"Taxes" means any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings, and any and all liabilities with
respect to the foregoing, but excluding Excluded Taxes and Other Taxes.
"Term Loan" and "Term Loans" are defined in Section 2.1.2.
"Term Loan Commitment" means, as to each Lender, its obligation to make
Term Loans to the Borrower pursuant to Section 2.1.2 in an aggregate principal
amount set forth for such Lender on the Commitment Schedule.
"Term Loan Maturity Date" means May 2, 2012.
21
"Term Loan Pro Rata Share" means, with respect to any Lender, the
percentage obtained by multiplying 100% by the quotient of (a) such Lender's
Term Loans at such time divided by (b) the aggregate amount of all of the Term
Loans at such time.
"Third Party Payor" shall mean any Governmental Authority, insurance
company, health maintenance organization, preferred provider organization or
similar entity that is obligated to make payments with respect to a Receivable.
"Transferee" is defined in Section 12.4.
"TRICARE" means, collectively, a program of medical benefits covering
former and active members of the uniformed services and certain of their
dependents, financed and administered by the United States Departments of
Defense, Health and Human Services and Transportation, which program was
formerly known as the Civilian Health and Medical Program of the Uniformed
Services (CHAMPUS), and all laws, rules, regulations, manuals, orders and
administrative, reimbursement and other guidelines of all governmental
authorities promulgated in connection with such program (whether or not having
the force of law), in each case as the same may be amended, supplemented or
otherwise modified from time to time.
"TRICARE Receivable" means a Receivable payable pursuant to the TRICARE
program.
"Type" means, with respect to any Advance, its nature as a Floating
Rate Advance or a Eurodollar Advance and with respect to any Loan, its nature as
a Floating Rate Loan or a Eurodollar Loan.
"Unapplied PIP" has the meaning ascribed to such term in Section
6.9(ii).
"Unfunded Liabilities" means the amount (if any) by which the present
value of all vested and unvested accrued benefits under each Single Employer
Plan exceeds the fair market value of all such Plan's assets allocable to such
benefits, all determined as of the then most recent valuation date for such Plan
for which a valuation report is available, using actuarial assumptions for
funding purposes as set forth in such report.
"Unmatured Event of Default" means an event which but for the lapse of
time or the giving of notice, or both, would constitute an Event of Default.
"VITAS Healthcare" means VITAS Healthcare Corporation, a Delaware
corporation.
"VNF" means VITAS of North Florida, Inc., a Florida not-for-profit
corporation and a Wholly-Owned Subsidiary of VITAS Healthcare.
"Wholly-Owned Subsidiary" of a Person means (i) any Subsidiary all of
the outstanding voting securities of which (other than directors' qualifying
shares or shares issued to third parties to the extent necessary to satisfy any
licensing requirements under applicable law with respect to the Borrower's or
any of its Subsidiaries' businesses) shall at the time be owned or controlled,
directly or indirectly, by such Person or one or more Wholly-Owned Subsidiaries
of such Person, or by such Person and one or more Wholly-Owned Subsidiaries of
such Person, or (ii) any
22
partnership, limited liability company, association, joint venture or similar
business organization 100% of the ownership interests having ordinary voting
power of which (other than directors' qualifying shares or shares issued to
third parties to the extent necessary to satisfy any licensing requirements
under applicable law with respect to the Borrower's or any of its Subsidiaries'
businesses) shall at the time be so owned or controlled.
"Yellow Pages Advertising Expense" means, on any determination date,
the excess of (x) costs accrued in accordance with GAAP during the twelve-month
period ending on such date in connection with the Borrower's and its Affiliates'
purchase of advertisements in the Yellow Pages telephone directory and other
similar telephone directories, over (y) amounts deemed by the Borrower to have
been paid in respect of such advertisements during such twelve-month period as
set forth in the Borrower's internal management reports detailing its
advertising expenses.
1.2. Plural Forms. The foregoing definitions shall be equally
applicable to both the singular and plural forms of the defined terms.
ARTICLE II
THE CREDITS
2.1. Revolving Loan Commitments and Term Loan Commitments.
2.1.1 Revolving Loans. From and including the Closing Date and
prior to the Revolving Loan Termination Date, upon the satisfaction of
the conditions precedent set forth in Section 4.1 and 4.2, as
applicable, each Lender severally and not jointly agrees, on the terms
and conditions set forth in this Agreement, to (i) make Revolving Loans
to the Borrower from time to time and (ii) participate in Facility LCs
issued upon the request of the Borrower, in each case in an amount not
to exceed in the aggregate at any one time outstanding of its Revolving
Loan Pro Rata Share of the excess of the Aggregate Revolving Loan
Commitment over the Aggregate Outstanding Revolving Credit Exposure;
provided that at no time shall the Aggregate Outstanding Revolving
Credit Exposure hereunder exceed the Aggregate Revolving Loan
Commitment. Subject to the terms of this Agreement, the Borrower may
borrow, repay and reborrow Revolving Loans at any time prior to the
Revolving Loan Termination Date. The commitment of each Lender to lend
hereunder shall automatically expire on the Revolving Loan Termination
Date. The LC Issuer will issue Facility LCs hereunder on the terms and
conditions set forth in Section 2.20.
2.1.2 Term Loans. Each Lender severally and not jointly agrees
to make a term loan, in Dollars, to the Borrower on the Closing Date in
an amount equal to such Lender's Term Loan Commitment (each such loan
being referred to herein individually as a "Term Loan" and collectively
as the "Term Loans"). The unpaid principal balance of the Term Loans
shall be repaid in twenty (20) consecutive quarterly principal
installments, payable on the last Business Day of each fiscal quarter
of the Borrower, commencing on June 30, 2007, and continuing thereafter
until the Term Loan Maturity Date, and the Term Loans shall be
permanently reduced by the amount of each
23
installment on the date payment thereof is made hereunder. Each such
quarterly installment, other than the installment due on the Term Loan
Maturity Date or such other date on which the Term Loans are to be
fully repaid, shall be in an amount equal to 2.5% of the aggregate
principal amount of the Term Loans outstanding on the Closing Date. The
final installment for the Term Loans shall be in the amount of the then
outstanding principal balance of the Term Loans. In addition,
notwithstanding the immediately preceding sentence, the then
outstanding principal balance of the Term Loans, if any, shall be due
and payable on the Term Loan Maturity Date. No installment of any Term
Loan shall be reborrowed once repaid. In addition to the scheduled
payments on the Term Loans, the Borrower may make the voluntary
prepayments described in Section 2.7 for credit against the scheduled
payments on the Term Loans pursuant to Section 2.7.
2.2. Required Payments; Termination. Any outstanding Revolving Loans
shall be paid in full by the Borrower on the Revolving Loan Termination Date,
any outstanding Term Loans shall be paid in full by the Borrower on the Term
Loan Maturity Date, and all other due and unpaid Secured Obligations shall be
paid in full by the Borrower on the later of the date when due or the Revolving
Loan Termination Date and the Term Loan Maturity Date, as applicable. In
addition, if at any time the Aggregate Outstanding Revolving Credit Exposure
hereunder exceeds the Aggregate Revolving Loan Commitment, the Borrower shall
promptly repay outstanding Revolving Loans and Swing Line Loans (or, if no
Revolving Loans or Swing Line Loans are outstanding, cash collateralize the
outstanding LC Obligations by depositing funds in the Facility LC Collateral
Account in accordance with Section 2.20.11) in an aggregate amount equal to the
excess of the Aggregate Outstanding Revolving Credit Exposure over the Aggregate
Revolving Loan Commitment. Notwithstanding the termination of the Revolving Loan
Commitments under this Agreement on the Revolving Loan Termination Date, until
all of the Obligations (other than obligations to pay fees and expenses with
respect to which the Borrower has not received an invoice and contingent
indemnity obligations) shall have been fully paid and satisfied, all of the
rights and remedies under this Agreement and the other Loan Documents shall
survive to the extent provided herein.
2.3. Ratable Loans; Types of Advances. (a) Each Advance hereunder
(other than a Swing Line Loan) shall consist of Loans made from the several
Lenders. Such Loans shall be made ratably in proportion to their respective
Revolving Loan Pro Rata Shares or Term Loan Pro Rata Shares, as applicable.
(b) The Advances may be Floating Rate Advances or Eurodollar
Advances, or a combination thereof, selected by the Borrower in accordance with
Sections 2.8 and 2.9, or Swing Line Loans selected by the Borrower in accordance
with Section 2.4.
2.4. Swing Line Loans.
2.4.1 Amount of Swing Line Loans. Upon the satisfaction of the
conditions precedent set forth in Section 4.2 and, if such Swing Line
Loan is to be made on the date of the initial Credit Extension
hereunder, the satisfaction of the conditions precedent set forth in
Section 4.1 as well, from and including the date of this Agreement and
prior to the Revolving Loan Termination Date, the Swing Line Lender
agrees, on the terms and conditions set forth in this Agreement, to
make Swing Line Loans to the Borrower from
24
time to time in an aggregate principal amount not to exceed the Swing Line
Commitment, provided that the Aggregate Outstanding Revolving Credit Exposure
shall not at any time exceed the Aggregate Revolving Loan Commitment, and
provided further that at no time shall the sum of (i) the Swing Line Lender's
Pro Rata Share of the Swing Line Loans then outstanding, plus (ii) the
outstanding Revolving Loans made by the Swing Line Lender pursuant to Section
2.1 (including its participation in any Facility LCs), exceed the Swing Line
Lender's Revolving Loan Commitment at such time. Subject to the terms of this
Agreement, the Borrower may borrow, repay and reborrow Swing Line Loans at any
time prior to the Revolving Loan Termination Date.
2.4.2 Borrowing Notice. The Borrower shall deliver to the
Administrative Agent and the Swing Line Lender irrevocable notice (a "Swing Line
Borrowing Notice") not later than 12:00 noon (Chicago, Illinois time) on the
Borrowing Date of each Swing Line Loan, specifying (i) the applicable Borrowing
Date (which date shall be a Business Day), and (ii) the aggregate amount of the
requested Swing Line Loan which shall be an amount not less than $100,000. The
Swing Line Loans shall bear interest at the Floating Rate or at such other rate
as is agreed upon by the Borrower and the Swing Line Lender.
2.4.3 Making of Swing Line Loans. Promptly after receipt of a Swing
Line Borrowing Notice, the Administrative Agent shall notify each Lender by fax
or other similar form of transmission, of the requested Swing Line Loan. Not
later than 2:00 p.m. (Chicago, Illinois time) on the applicable Borrowing Date,
the Swing Line Lender shall make available the Swing Line Loan, in funds
immediately available in Chicago, to the Administrative Agent at its address
specified pursuant to Article XIII. The Administrative Agent will promptly make
the funds so received from the Swing Line Lender available to the Borrower on
the Borrowing Date at the Administrative Agent's aforesaid address.
2.4.4 Repayment of Swing Line Loans. Each Swing Line Loan shall be paid
in full by the Borrower on or before the fifth (5th) Business Day after the
Borrowing Date for such Swing Line Loan. In addition, the Swing Line Lender (i)
may at any time in its sole discretion with respect to any outstanding Swing
Line Loan, or (ii) shall, on the fifth (5th) Business Day after the Borrowing
Date of any Swing Line Loan, require each Lender (including the Swing Line
Lender) to make a Revolving Loan in the amount of such Lender's Revolving Loan
Pro Rata Share of such Swing Line Loan (including, without limitation, any
interest accrued and unpaid thereon), for the purpose of repaying such Swing
Line Loan. Not later than 1:00 p.m. (Chicago, Illinois time) on the date of any
notice received pursuant to this Section 2.4.4, each Lender shall make available
its required Revolving Loan, in funds immediately available in Chicago to the
Administrative Agent at its address specified pursuant to Article XIII.
Revolving Loans made pursuant to this Section 2.4.4 shall initially be Floating
Rate Loans and thereafter may be continued as Floating Rate Loans or converted
into Eurodollar Loans in the manner provided in Section 2.9 and subject to the
other conditions and limitations set forth in Article II. Unless a Lender shall
have notified the Swing Line Lender, prior to its making any Swing Line Loan,
that any applicable condition precedent set forth in Sections 4.1 or 4.2, as
applicable, had not been satisfied, such Lender's obligation to make Revolving
Loans pursuant to this Section 2.4.4 to repay Swing Line Loans shall be
25
unconditional, continuing, irrevocable and absolute and shall not be
affected by any circumstances, including, without limitation, (a) any
set-off, counterclaim, recoupment, defense or other right which such
Lender may have against the Swing Line Lender or any other Person, (b)
the occurrence or continuance of an Event of Default or Unmatured Event
of Default, (c) any adverse change in the condition (financial or
otherwise) of the Borrower, or (d) any other circumstances, happening
or event whatsoever. In the event that any Lender fails to make payment
to the Administrative Agent of any amount due under this Section 2.4.4,
the Administrative Agent shall be entitled to receive, retain and apply
against such obligation the principal and interest otherwise payable to
such Lender hereunder until the Administrative Agent receives such
payment from such Lender or such obligation is otherwise fully
satisfied. In addition to the foregoing, if for any reason any Lender
fails to make payment to the Administrative Agent of any amount due
under this Section 2.4.4, such Lender shall be deemed, at the option of
the Administrative Agent, to have unconditionally and irrevocably
purchased from the Swing Line Lender, without recourse or warranty, an
undivided interest and participation in the applicable Swing Line Loan
in the amount of such Revolving Loan, and such interest and
participation may be recovered from such Lender together with interest
thereon at the Federal Funds Effective Rate for each day during the
period commencing on the date of demand and ending on the date such
amount is received. On the Revolving Loan Termination Date, the
Borrower shall repay in full the outstanding principal balance of the
Swing Line Loans.
2.5. Commitment Fee; Aggregate Revolving Loan Commitment; Increase in
Aggregate Revolving Loan Commitment or Aggregate Term Loan Commitment.
2.5.1 Commitment Fee. The Borrower shall pay to the
Administrative Agent, for the account of the Lenders with Revolving
Loan Commitments in accordance with their Revolving Loan Pro Rata
Shares, from and after the Closing Date until the date on which the
Aggregate Revolving Loan Commitment shall be terminated in whole, a
commitment fee (the "Commitment Fee") accruing at the rate of the then
Applicable Fee Rate on the average daily excess of the Aggregate
Revolving Loan Commitment over the Aggregate Outstanding Revolving
Credit Exposure. All such Commitment Fees payable hereunder shall be
payable quarterly in arrears on each Payment Date.
2.5.2 Reductions in Aggregate Revolving Loan Commitment. The
Borrower may permanently reduce the Aggregate Revolving Loan Commitment
in whole, or in part, ratably among the Lenders in the minimum amount
of $5,000,000 (and in multiples of $1,000,000 in excess thereof), upon
at least three (3) Business Days' written notice to the Administrative
Agent, which notice may be conditional and shall specify the amount of
any such reduction, provided, however, that the amount of the Aggregate
Revolving Loan Commitment may not be reduced below the Aggregate
Outstanding Revolving Credit Exposure. All accrued Commitment Fees
shall be payable on the effective date of any termination of the
obligations of the Lenders to make Credit Extensions hereunder and on
the final date upon which all Loans are repaid.
2.5.3 Increase of Aggregate Revolving Loan Commitment or
Aggregate Term Loan Commitment. At any time, but not more than three
(3) times on Term Loans during
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the term of this Agreement, the Borrower may request that the aggregate of the
Revolving Loan Commitments and/or the Term Loan Commitments (the "Aggregate
Commitment") be increased by increasing the Revolving Loan Commitments and/or by
obtaining incremental Term Loans hereunder; provided that (i) the Aggregate
Commitment shall at no time exceed $375,000,000, the Aggregate Revolving Loan
Commitment shall at no time exceed $275,000,000, the Aggregate Term Loan
Commitment and related aggregate outstanding principal amount of Term Loans
shall at no time exceed $200,000,000, and the aggregate of all increases under
this Section shall not exceed $100,000,000, and (ii) such request shall be in a
minimum amount of $5,000,000. Such request shall be made in a written notice
given to the Administrative Agent by the Borrower not less than five (5)
Business Days prior to the proposed effective date of such increase, which
notice (a "Commitment Increase Notice") shall specify (A) the amount of the
proposed increase in the Aggregate Commitment, (B) whether such increase is
being allocated to the Revolving Loan Commitments and/or incremental Term Loans,
and (C) the proposed effective date of such increase. Not less than three (3)
Business Days prior to the proposed effective date of such increase, the
Borrower shall notify the Administrative Agent of the Lenders or other Persons
willing to provide such incremental Commitments and the amounts they are willing
to provide. If the Borrower notifies the Administrative Agent of any financial
institution that shall have agreed to become a "Lender" party hereto (a
"Proposed New Lender") in connection with the Commitment Increase Notice and any
Proposed New Lender shall be consented to by the Administrative Agent (which
consent shall not be unreasonably withheld or delayed). The Administrative Agent
shall notify the Lenders on or before the Business Day immediately prior to the
proposed effective date of the amount of each Lender's and Proposed New Lender's
Revolving Loan Commitment and/or incremental Term Loan Commitment (collectively,
the "Effective Commitment Amount"), the amount of the Aggregate Commitment,
which amount shall be effective on the following Business Day. To the extent
incremental Term Loans are added pursuant hereto, the amortization schedule
therefor shall be mutually acceptable to the Borrower, the Administrative Agent
and the applicable Proposed New Lender. Any increase in the Aggregate Commitment
shall be subject to the following conditions precedent: (A) as of the effective
date of the increase in the Aggregate Commitment, all representations and
warranties under Article V shall be true and correct in all material respects as
though made on such date (except for those representations and warranties which
expressly relate to an earlier date, which shall have been true and correct as
of such earlier date), no event shall have occurred and then be continuing which
constitutes an Unmatured Event of Default or Event of Default, and the Borrower
and its Subsidiaries, on a pro forma basis shall be in compliance with Sections
6.20 through 6.23 as of the then most recently ended fiscal quarter (as
determined in good faith by the Borrower, including without limitation, as if
(x) any such incremental Term Loans and the aggregate Revolving Loans to be
outstanding on the effective date of such increase (after giving effect to such
increase) had been outstanding on the last day of such fiscal quarter, and (y)
any increase in Consolidated EBITDA resulting from any Permitted Acquisition
pursuant to Section 6.13.20 and financed with the proceeds from such incremental
Term Loans and/or additional Revolving Loan Commitments and Loans extended
thereunder had been realized on the first day of such fiscal quarter, (B) the
Borrower, the Administrative Agent, and each Proposed New
27
Lender or Lender that shall have agreed to provide a Revolving Loan Commitment
or incremental Term Loans in support of such increase in the Aggregate
Commitment shall have executed and delivered a "Commitment and Acceptance"
substantially in the form of Exhibit H hereto, (C) counsel for the Borrower
shall have provided to the Administrative Agent supplemental opinions in form
and substance reasonably satisfactory to the Administrative Agent, and (D) the
Administrative Agent shall have administered the reallocation of the Outstanding
Revolving Credit Exposures as set forth below on the effective date of such
increase ratably among the Lenders (including new Lenders) after giving effect
to such increase. The Borrower hereby agrees to compensate each Lender for all
losses, expenses and liabilities incurred by such Lender in connection with the
sale and assignment of any Eurodollar Loan hereunder on the terms and in the
manner as set forth in Section 3.4 hereof. Upon satisfaction of the conditions
precedent to any increase in the Aggregate Commitment, the Administrative Agent
shall promptly advise the Borrower and each Lender of the effective date of such
increase. Upon the effective date of any increase in the Aggregate Commitment
that is supported by a Proposed New Lender, such Proposed New Lender shall be a
party to this Agreement and as a Lender shall have the rights and obligations of
a Lender hereunder. Nothing contained herein shall constitute, or otherwise be
deemed to be, a commitment on the part of any Lender to increase its Revolving
Loan Commitment or provide incremental Term Loans at any time. If the Borrower
requests the Administrative Agent to arrange for the financial institutions to
provide requested additional Revolving Loan Commitments or Term Loan
Commitments, the Borrower will pay the Administrative Agent or its affiliate
such arrangement fees as may be mutually agreed to, if any, at the time of such
arrangement and commitment increase. Promptly following the effective date of an
increase in the Aggregate Commitment pursuant to this Section 2.5.3, the
Administrative Agent shall distribute an amended Commitment Schedule (which
shall thereafter be incorporated into this Agreement) to reflect any changes in
the Lenders, the Aggregate Commitment and each Lender's Pro Rata Share as of
such effective date. Upon each increase in the Revolving Loan Commitments
pursuant to this Section, each Lender with a Revolving Loan Commitment
immediately prior to such increase (an "Existing Revolving Credit Lender") will
automatically and without further act be deemed to have assigned to each Lender
providing a portion of the increase (each a "Revolving Commitment Increase
Lender") in respect of such increase, and each such Revolving Commitment
Increase Lender will automatically and without further act be deemed to have
assumed, a portion of such Existing Revolving Credit Lender's participations
hereunder in outstanding Letters of Credit and Swing Line Loans such that, after
giving effect to each such deemed assignment and assumption of participations,
the percentage of the aggregate outstanding (i) participations hereunder in
Letters of Credit and (ii) participations hereunder in Swing Line Loans held by
each Existing Revolving Credit Lender (including each such Revolving Commitment
Increase Lender) will equal the percentage of the aggregate Revolving Loan
Commitments of all Lenders with a Revolving Loan Commitment represented by such
Lender's Revolving Loan Commitment and (b) if, on the date of such increase,
there are any Revolving Loans outstanding, such Revolving Loans shall on or
prior to the effectiveness of such Revolving Commitment Increase be prepaid to
the extent necessary from the proceeds of additional Revolving Loans made
hereunder by the Revolving Commitment Increase
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Lenders, so that, after giving effect to such prepayments and any
borrowings on such date of all or any portion of such Revolving Loan
Commitment increase, the principal balance of all outstanding Revolving
Loans owing to each Lender with a Revolving Loan Commitment is equal to
such Lender's Pro Rata Share (after giving effect to any nonratable
Revolving Loan Commitment increase resulting from a Revolving Loan
Commitment increase pursuant to this Section 2.5.3) of all then
outstanding Revolving Loans. The Administrative Agent and the Lenders
hereby agree that the borrowing notice, minimum borrowing, pro rata
borrowing and pro rata payment requirements contained elsewhere in this
Agreement shall not apply to the transactions effected pursuant to the
immediately preceding sentence. Upon the effective date of any increase
in the Aggregate Commitment that is supported by a Proposed New Lender,
such Proposed New Lender shall be a party to this Agreement and as a
Lender and shall have the rights and obligations of a Lender hereunder.
Nothing contained herein shall constitute, or otherwise be deemed to
be, a commitment on the part of any Lender to increase its Revolving
Loan Commitment or provide incremental Term Loans at any time.
2.6. Minimum Amount of Each Advance. Each Eurodollar Advance shall be
in the minimum amount of $2,000,000 (and in multiples of $500,000 if in excess
thereof), and each Floating Rate Advance (other than an Advance to repay Swing
Line Loans) shall be in the minimum amount of $1,000,000 (and in multiples of
$250,000 if in excess thereof), provided, however, that any Floating Rate
Advance may be (i) in the amount of the excess of the Aggregate Revolving Loan
Commitment over the Aggregate Outstanding Revolving Credit Exposure or (ii) in
such amount as is required, in accordance with Section 2.20.6, to finance the
reimbursement of a draw under a Facility LC.
2.7. Optional Principal Payments. The Borrower may from time to time
pay, without penalty or premium, all outstanding Floating Rate Advances (other
than Swing Line Loans), or any portion of the outstanding Floating Rate Advances
(other than Swing Line Loans), in a minimum aggregate amount of $500,000 or any
integral multiple of $100,000 in excess thereof, with notice to the
Administrative Agent by 11:00 a.m. (Chicago, Illinois time) on the date of
repayment, which notice may be conditional. The Borrower may at any time pay,
without penalty or premium, all outstanding Swing Line Loans, or, in a minimum
amount of $100,000 and increments of $50,000 in excess thereof, any portion of
the outstanding Swing Line Loans, with notice to the Administrative Agent and
the Swing Line Lender by 11:00 a.m. (Chicago, Illinois time) on the date of
repayment, which notice may be conditional. The Borrower may from time to time
pay, subject to the payment of any funding indemnification amounts required by
Section 3.4 but without penalty or premium, all outstanding Eurodollar Advances,
or, in a minimum aggregate amount of $1,000,000 or any integral multiple of
$500,000 in excess thereof, any portion of the outstanding Eurodollar Advances
upon three (3) Business Days' prior notice to the Administrative Agent, which
notice may be conditional.
2.8. Method of Selecting Types and Interest Periods for New Advances.
The Borrower shall select the Type of Advance and, in the case of each
Eurodollar Advance, the Interest Period applicable thereto from time to time;
provided that there shall be no more than 5 Interest Periods in effect with
respect to all of the Loans at any time, unless such limit has been waived by
the Administrative Agent in its sole discretion. The Borrower shall give the
29
Administrative Agent irrevocable notice (a "Borrowing Notice") not later than
10:00 a.m. (Chicago, Illinois time) at least one Business Day before the
Borrowing Date of each Floating Rate Advance (other than a Swing Line Loan) and
three (3) Business Days before the Borrowing Date for each Eurodollar Advance,
specifying:
(i) the Borrowing Date, which shall be a Business Day, of such
Advance,
(ii) the aggregate amount of such Advance,
(iii) the Type of Advance selected, and
(iv) in the case of each Eurodollar Advance, the Interest Period
applicable thereto.
Not later than 12:00 noon (Chicago, Illinois time) on each Borrowing Date, each
Lender shall make available its Loan or Loans in Federal or other funds
immediately available in Chicago to the Administrative Agent at its address
specified pursuant to Article XIII. The Administrative Agent will promptly make
the funds so received from the Lenders available to the Borrower at the
Administrative Agent's aforesaid address.
2.9. Conversion and Continuation of Outstanding Advances; No Conversion
or Continuation of Eurodollar Advances After Event of Default. Floating Rate
Advances (other than Swing Line Advances) shall continue as Floating Rate
Advances unless and until such Floating Rate Advances are converted into
Eurodollar Advances pursuant to this Section 2.9 or are repaid in accordance
with Section 2.7. Each Eurodollar Advance shall continue as a Eurodollar Advance
until the end of the then applicable Interest Period therefor, at which time
such Eurodollar Advance shall be automatically converted into a Floating Rate
Advance unless (x) such Eurodollar Advance is or was repaid in accordance with
Section 2.7 or (y) the Borrower shall have given the Administrative Agent a
Conversion/Continuation Notice (as defined below) requesting that, at the end of
such Interest Period, such Eurodollar Advance continue as a Eurodollar Advance
for the same or another Interest Period. Subject to the terms of Section 2.6,
the Borrower may elect from time to time to convert all or any part of an
Advance of any Type (other than a Swing Line Advance) into any other Type or
Types of Advances; provided that any conversion of any Eurodollar Advance shall
be made on, and only on, the last day of the Interest Period applicable thereto.
Notwithstanding anything to the contrary contained in this Section 2.9, during
the continuance of an Event of Default or an Unmatured Event of Default, the
Administrative Agent may (or shall at the direction of the Required Lenders), by
notice to the Borrower, declare that no Advance may be made, converted or
continued as a Eurodollar Advance. The Borrower shall give the Administrative
Agent irrevocable notice (a "Conversion/Continuation Notice") of each conversion
of an Advance or continuation of a Eurodollar Advance not later than 10:00 a.m.
(Chicago, Illinois time) at least one (1) Business Day, in the case of a
conversion into a Floating Rate Advance, or three (3) Business Days, in the case
of a conversion into or continuation of a Eurodollar Advance, prior to the date
of the requested conversion or continuation, specifying:
(i) the requested date, which shall be a Business Day, of such
conversion or continuation,
30
(ii) the aggregate amount and Type of the Advance which is to be
converted or continued, and
(iii) the amount of such Advance which is to be converted into or
continued as a Eurodollar Advance and the duration of the
Interest Period applicable thereto.
2.10. Changes in Interest Rate, etc. Each Floating Rate Advance (other
than a Swing Line Advance) shall bear interest on the outstanding principal
amount thereof, for each day from and including the date such Advance is made or
is automatically converted from a Eurodollar Advance into a Floating Rate
Advance pursuant to Section 2.9, to but excluding the date it is paid or is
converted into a Eurodollar Advance pursuant to Section 2.9 hereof, at a rate
per annum equal to the Floating Rate for such day. Each Swing Line Loan shall
bear interest on the outstanding principal amount thereof, for each day from and
including the day such Swing Line Loan is made to but excluding the date it is
fully paid at a rate per annum equal to the Floating Rate for such day. Changes
in the rate of interest on that portion of any Advance maintained as a Floating
Rate Advance will take effect simultaneously with each change in the Alternate
Base Rate. Each Eurodollar Advance shall bear interest on the outstanding
principal amount thereof from and including the first day of the Interest Period
applicable thereto to (but not including) the last day of such Interest Period
at the interest rate determined by the Administrative Agent as applicable to
such Eurodollar Advance based upon the Borrower's selections under Sections 2.8
and 2.9 and otherwise in accordance with the terms hereof. No Interest Period in
respect of any Revolving Loan may end after the Revolving Loan Termination Date.
No Interest Period in respect of any Term Loan may end after the Term Loan
Maturity Date.
2.11. Default Rate. To the extent permitted by applicable law, (i) if
any principal of any Loan is not paid when due, whether at stated maturity, upon
acceleration or otherwise, all amounts of principal of the Loans shall, for so
long as any principal remains past due, bear interest, after as well as before
judgment, at a rate per annum equal to 2.00% plus the rate otherwise applicable
to such Loan as provided in Section 2.3(b) and (ii) if any interest on any Loan,
or any fee or other amount payable by the Borrower hereunder is not paid when
due, such amount shall bear interest, after as well as before judgment, at a
rate per annum equal to 2.00% plus the rate applicable to Floating Rate Loans as
provided in Section 2.3(b).
2.12. Method of Payment. All payments of the Obligations hereunder
shall be made, without setoff, deduction, or counterclaim, in immediately
available funds to the Administrative Agent at the Administrative Agent's
address specified pursuant to Article XIII, or at any other Lending Installation
of the Administrative Agent specified in writing by the Administrative Agent to
the Borrower, by 12:00 noon (Chicago, Illinois time) on the date when due and
shall (except with respect to repayments of Swing Line Loans, and except in the
case of Reimbursement Obligations for which the LC Issuer has not been fully
indemnified by the Lenders, or as otherwise specifically required hereunder) be
applied ratably by the Administrative Agent among the Lenders. Each payment
delivered to the Administrative Agent for the account of any Lender shall be
delivered promptly by the Administrative Agent to such Lender in the same type
of funds that the Administrative Agent received at its address specified
pursuant to Article XIII or at any Lending Installation specified in a notice
received by the Administrative Agent from such Lender. The Administrative Agent
is hereby authorized to charge the account of the Borrower maintained with
JPMorgan Chase for each payment of the
31
Obligations as it becomes due hereunder. Each reference to the Administrative
Agent in this Section 2.12 shall also be deemed to refer, and shall apply
equally, to the LC Issuer in the case of payments required to be made by the
Borrower to the LC Issuer pursuant to Section 2.20.6.
2.13. Noteless Agreement; Evidence of Indebtedness.
(i) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of
the Borrower to such Lender resulting from each Loan made by
such Lender from time to time, including the amounts of
principal and interest payable and paid to such Lender from
time to time hereunder.
(ii) The Administrative Agent shall also maintain accounts in which
it will record (a) the date and the amount of each Loan made
hereunder, the Type thereof and the Interest Period (in the
case of a Eurodollar Advance) with respect thereto, (b) the
amount of any principal or interest due and payable or to
become due and payable from the Borrower to each Lender
hereunder, (c) the original stated amount of each Facility LC
and the amount of LC Obligations outstanding at any time, (d)
the effective date and amount of each Assignment Agreement
delivered to and accepted by it and the parties thereto
pursuant to Section 12.3, (e) the amount of any sum received
by the Administrative Agent hereunder from the Borrower and
each Lender's share thereof, and (f) all other appropriate
debits and credits as provided in this Agreement, including,
without limitation, all fees, charges, expenses and interest.
(iii) The entries maintained in the accounts maintained pursuant to
paragraphs (i) and (ii) above shall be prima facie evidence of
the existence and amounts of the Obligations therein recorded;
provided, however, that the failure of the Administrative
Agent or any Lender to maintain such accounts or any error
therein shall not in any manner affect the obligation of the
Borrower to repay the Obligations in accordance with their
terms.
(iv) Any Lender may request that its Term Loans, Revolving Loans
or, in the case of the Swing Line Lender, the Swing Line
Loans, be evidenced by promissory notes (the "Notes") in
substantially the form of Exhibit E-1 or E-2, with appropriate
changes for notes evidencing Swing Line Loans. In such event,
the Borrower shall prepare, execute and deliver to such Lender
such Note(s) payable to such Lender. Thereafter, the Loans
evidenced by such Note(s) and interest thereon shall at all
times (prior to any assignment pursuant to Section 12.3) be
represented by one or more Notes payable to the payee named
therein, except to the extent that any such Lender
subsequently returns any such Note(s) for cancellation and
requests that such Loans once again be evidenced as described
in paragraphs (i) and (ii) above.
2.14. Telephonic Notices. The Borrower hereby authorizes the Lenders
and the Administrative Agent to extend, convert or continue Advances, effect
selections of Types of Advances and to transfer funds based on telephonic
notices made by any person or persons the
32
Administrative Agent or any Lender in good faith believes to be acting on behalf
of the Borrower, it being understood that the foregoing authorization is
specifically intended to allow Borrowing Notices and Conversion/Continuation
Notices to be given telephonically. The Borrower agrees to deliver promptly to
the Administrative Agent a written confirmation, signed by an Authorized
Officer, if such confirmation is requested by the Administrative Agent or any
Lender, of each telephonic notice. If the written confirmation differs in any
material respect from the action taken by the Administrative Agent and the
Lenders, the records of the Administrative Agent and the Lenders shall govern
absent manifest error.
2.15. Interest Payment Dates; Interest and Fee Basis. Interest accrued
on each Floating Rate Advance shall be payable in arrears on each Payment Date,
commencing with the first such date to occur after the Closing Date, on any date
on which the Floating Rate Advance is prepaid, whether due to acceleration or
otherwise, and at maturity. Interest accrued on that portion of the outstanding
principal amount of any Floating Rate Advance converted into a Eurodollar
Advance on a day other than a Payment Date shall be payable on the date of
conversion. Interest accrued on each Eurodollar Advance shall be payable on the
last day of its applicable Interest Period, on any date on which the Eurodollar
Advance is prepaid, whether by acceleration or otherwise, and at maturity.
Interest accrued on each Eurodollar Advance having an Interest Period longer
than three months shall also be payable on the last day of each three-month
interval during such Interest Period. Interest on Eurodollar Advances, LC Fees
and all other fees hereunder shall be calculated for actual days elapsed on the
basis of a 360-day year. Interest on Floating Rate Advances shall be calculated
for actual days elapsed on the basis of a 365/366-day year. Interest shall be
payable for the day an Advance is made but not for the day of any payment on the
amount paid if payment is received prior to 12:00 noon (Chicago, Illinois time)
at the place of payment. If any payment of principal of or interest on an
Advance, any fees or any other amounts payable to the Administrative Agent or
any Lender hereunder shall become due on a day which is not a Business Day, such
payment shall be made on the next succeeding Business Day and, in the case of a
principal payment, such extension of time shall be included in computing
interest, fees and commissions in connection with such payment.
2.16. Notification of Advances, Interest Rates, Prepayments and
Revolving Loan Commitment Reductions; Availability of Loans. Promptly after
receipt thereof, the Administrative Agent will notify each Lender of the
contents of each Aggregate Revolving Loan Commitment reduction notice, Borrowing
Notice, Swing Line Borrowing Notice, Conversion/Continuation Notice, and
repayment notice received by it hereunder. Promptly after notice from the LC
Issuer, the Administrative Agent will notify each Lender of the contents of each
request for issuance of a Facility LC hereunder. The Administrative Agent will
notify the Borrower and each Lender of the interest rate applicable to each
Eurodollar Advance promptly upon determination of such interest rate and will
give the Borrower and each Lender prompt notice of each change in the Alternate
Base Rate. Not later than 12:00 noon (Chicago, Illinois time) on each Borrowing
Date (except with respect to Revolving Loans made available pursuant to the
terms of Section 2.4.4), each Lender shall make available its Revolving Loan or
Revolving Loans in funds immediately available in Chicago to the Administrative
Agent at its address specified pursuant to Article XIII. The Administrative
Agent will promptly make the funds so received from the Lenders available to the
Borrower at the Administrative Agent's aforesaid address.
33
2.17. Lending Installations. Each Lender may book its Loans and its
participation in any LC Obligations and the LC Issuer may book the Facility LCs
at any Lending Installation selected by such Lender or the LC Issuer, as
applicable, and may change its Lending Installation from time to time. All terms
of this Agreement shall apply to any such Lending Installation and the Loans,
Facility LCs, participations in LC Obligations and any Notes issued hereunder
shall be deemed held by each Lender or the LC Issuer, as applicable, for the
benefit of any such Lending Installation. Each Lender and the LC Issuer may, by
written notice to the Administrative Agent and the Borrower in accordance with
Article XIII, designate replacement or additional Lending Installations through
which Loans will be made by it or Facility LCs will be issued by it and for
whose account Loan payments or payments with respect to Facility LCs are to be
made.
2.18. Non-Receipt of Funds by the Administrative Agent. Unless the
Borrower or a Lender, as the case may be, notifies the Administrative Agent
prior to the date on which it is scheduled to make payment to the Administrative
Agent of (i) in the case of a Lender, the proceeds of a Loan or (ii) in the case
of the Borrower, a payment of principal, interest or fees to the Administrative
Agent for the account of the Lenders, that it does not intend to make such
payment, the Administrative Agent may assume that such payment has been made.
The Administrative Agent may, but shall not be obligated to, make the amount of
such payment available to the intended recipient in reliance upon such
assumption. If such Lender or the Borrower, as the case may be, has not in fact
made such payment to the Administrative Agent, the recipient of such payment
shall, on demand by the Administrative Agent, repay to the Administrative Agent
the amount so made available together with interest thereon in respect of each
day during the period commencing on the date such amount was so made available
by the Administrative Agent until the date the Administrative Agent recovers
such amount at a rate per annum equal to (x) in the case of payment by a Lender,
the Federal Funds Effective Rate for such day for the first three (3) days and,
thereafter, the interest rate applicable to the relevant Loan or (y) in the case
of payment by the Borrower, the interest rate applicable to the relevant Loan.
2.19. Replacement of Lender. If (x) the Borrower is required pursuant
to Section 3.1, 3.2 or 3.5 to make any additional payment to any Lender or if
any Lender's obligation to make or continue, or to convert Floating Rate
Advances into, Eurodollar Advances shall be suspended pursuant to Section 3.3,
(y) any Lender defaults in its obligations to extend Loans or participate in
Facility LCs hereunder or (z) in connection with any proposed amendment, waiver
or consent requiring the consent of "each Lender" or "each Lender affected
thereby," the consent of the Required Lenders is obtained, but the consent of
other necessary Lenders is not obtained (any Lender so affected or subject to
the foregoing clauses (x) or (y) or failing to provide a consent as described in
clause (z), an "Affected Lender"), the Borrower may elect to terminate or
replace the Revolving Loan Commitment, Term Loan Commitment and Loans of such
Affected Lender, provided that concurrently with such termination or
replacement, (i) if the Affected Lender is being replaced, another bank or other
entity which is reasonably satisfactory to the Borrower and the Administrative
Agent shall agree, as of such date, to purchase for cash the Outstanding
Revolving Credit Exposure and Term Loans of the Affected Lender pursuant to an
Assignment Agreement substantially in the form of Exhibit C and to become a
Lender for all purposes under this Agreement and to assume all obligations of
the Affected Lender to be terminated as of such date and to comply with the
requirements of Section 12.3 applicable to assignments, and (ii) the
34
Borrower shall pay to such Affected Lender in immediately available funds on the
day of such replacement (A) all interest, fees and other amounts then accrued
but unpaid to such Affected Lender by the Borrower hereunder to and including
the date of termination, including without limitation payments due to such
Affected Lender under Sections 3.1, 3.2 and 3.5, and (B) an amount, if any,
equal to the payment which would have been due to such Lender on the day of such
replacement under Section 3.4 had the Loans of such Affected Lender been prepaid
on such date rather than sold to the replacement Lender, in each case to the
extent not paid by the purchasing lender and (iii) if the Affected Lender is
being terminated, the Borrower shall pay to such Affected Lender all Obligations
due to such Affected Lender (including the amounts described in the immediately
preceding clauses (i) and (ii) plus, to the extent not paid by the replacement
Lender, the outstanding principal balance of such Affected Lender's Credit
Extensions). The Administrative Agent shall record such payments made by the
Borrower in accordance with Section 2.13.
2.20. Facility LCs.
2.20.1 Existing Letters of Credit; Issuance. The Borrower, the
Lenders, the Administrative Agent and the LC Issuer agree and confirm
that, as of the Closing Date, and subject to the satisfaction of the
condition precedent set forth in Section 4.1, the Existing Letters of
Credit shall (x) be deemed to have been issued pursuant to this
Agreement, (y) constitute Facility LCs, and (z) be governed by this
Section 2.20, together with the other terms and conditions of this
Agreement. The LC Is suer hereby agrees, on the terms and conditions
set forth in this Agreement, to issue standby Letters of Credit (each,
a "Facility LC") and to renew, extend, increase, decrease or otherwise
modify each Facility LC ("Modify," and each such action, a
"Modification"), from time to time from and including the date of this
Agreement and prior to the Revolving Loan Termination Date upon the
request of the Borrower; provided that immediately after each such
Facility LC is issued or Modified, (i) the aggregate amount of the
outstanding LC Obligations shall not exceed $50,000,000 and (ii) the
Aggregate Outstanding Revolving Credit Exposure shall not exceed the
Aggregate Revolving Loan Commitment. Subject to the remaining terms of
this Section 2.20.1, no Facility LC shall have an expiry date later
than the earlier of (x) the fifth Business Day prior to the Revolving
Loan Termination Date and (y) one year after its issuance; provided
that any Facility LC with a one-year term may provide for the renewal
thereof for additional one-year periods (which in no event shall extend
beyond the date referred to in the preceding clause (x)); provided,
further, that so long as approved by the Administrative Agent and the
LC Is suer (which approvals shall not be unreasonably withheld),
Facility LCs with stated face amounts not in excess of $250,000 in the
aggregate may have expiry dates that occur within three years of the
dates of issuance thereof but in any event no later than the date
referred to in the preceding clause (x)). Notwithstanding anything to
the contrary set forth in this Agreement, a Facility LC may have an
expiry date which occurs after the Revolving Loan Termination Date so
long as the Administrative Agent receives from the Borrower, at least
five (5) Business Days prior to the Revolving Loan Termination Date, an
amount in immediately available funds equal to at least 105% of the LC
Obligations owing under or in connection with such Facility LC. Such
funds shall secure the repayment of such LC Obligations and any other
then outstanding Secured Obligations, if any, in respect of such
Facility LC and shall be deposited in the Facility LC Collateral
35
Account. The Borrower shall ensure that the Administrative Agent for the benefit
of the LC Issuer and the Lenders at all times maintains a perfected first
priority Lien upon and control over the Facility LC Collateral Account. Such
funds and any interest accrued thereon (to the extent not applied to reimburse
the LC Issuer for any draw under a Facility LC) shall be returned to the
Borrower within three Business Days after the expiration of the Facility LC
relating to the LC Obligations secured by such funds.
2.20.2 Participations. Upon the issuance or Modification by the LC
Issuer of a Facility LC in accordance with this Section 2.20, the LC Issuer
shall be deemed, without further action by any party hereto, to have
unconditionally and irrevocably sold to each Lender, and each Lender shall be
deemed, without further action by any party hereto, to have unconditionally and
irrevocably purchased from the LC Issuer, a participation in such Facility LC
(and each Modification thereof) and the related LC Obligations in proportion to
its Revolving Loan Pro Rata Share.
2.20.3 Notice. Subject to Section 2.20.1, the Borrower shall give the
LC Issuer notice prior to 10:00 a.m. (Chicago, Illinois time) at least five (5)
Business Days prior to the proposed date of issuance or Modification of each
Facility LC, specifying the beneficiary, the proposed date of issuance (or
Modification) and the expiry date of such Facility LC, and describing the
proposed terms of such Facility LC and the nature of the transactions proposed
to be supported thereby. Upon receipt of such notice, the LC Issuer shall
promptly notify the Administrative Agent, and, upon issuance only, the
Administrative Agent shall promptly notify each Lender, of the contents thereof
and of the amount of such Lender's participation in such proposed Facility LC.
The issuance or Modification by the LC Issuer of any Facility LC shall, in
addition to the conditions precedent set forth in Article IV (the satisfaction
of which the LC Issuer shall have no duty to ascertain), be subject to the
conditions precedent that such Facility LC shall be satisfactory to the LC Is
suer and that the Borrower shall have executed and delivered such application
agreement and/or such other instruments and agreements relating to such Facility
LC as the LC Issuer shall have reasonably requested (each, a "Facility LC
Application"). In the event of any conflict between the terms of this Agreement
and the terms of any Facility LC Application, the terms of this Agreement shall
control.
2.20.4 LC Fees. The Borrower shall pay to the Administrative Agent, for
the account of the Lenders ratably in accordance with their respective Revolving
Loan Pro Rata Shares, a letter of credit fee at a per annum rate equal to the
Applicable Margin for Eurodollar Advances of Revolving Loans then in effect
times the average daily undrawn aggregate stated amount under the Facility LCs,
such fee to be payable in arrears on each Payment Date. The Borrower shall also
pay to the LC Issuer for its own account with respect to each Facility LC, in
arrears on each Payment Date after the issuance thereof for so long as such
Facility LC is outstanding, a fronting fee in an amount equal to 0.125% times
the average daily undrawn amount of such Facility LC, and (y) documentary and
processing charges in connection with the issuance or Modification of and draws
under Facility LCs in accordance with the LC Issuer's standard schedule for such
charges as in effect from time to time. Each fee described in this Section
2.20.4 shall constitute an "LC Fee".
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2.20.5 Administration; Reimbursement by Lenders. Upon receipt from the
beneficiary of any Facility LC of any demand for payment under such Facility LC,
the LC Is suer shall notify the Administrative Agent and the Administrative
Agent shall promptly notify the Borrower and each other Lender as to the amount
to be paid by the LC Issuer as a result of such demand and the proposed payment
date (the "LC Payment Date"). The responsibility of the LC Issuer to the
Borrower and each Lender shall be only to determine that the documents
(including each demand for payment) delivered under each Facility LC in
connection with such presentment shall be in conformity in all material respects
with such Facility LC. The LC Issuer shall endeavor to exercise the same care in
the issuance and administration of the Facility LCs as it does with respect to
letters of credit in which no participations are granted, it being understood
that in the absence of any gross negligence or willful misconduct by the LC
Issuer, each Lender shall be unconditionally and irrevocably liable without
regard to the occurrence of any Event of Default or any condition precedent
whatsoever, to reimburse the LC Issuer on demand for (i) such Lender's Revolving
Loan Pro Rata Share of the amount of each payment made by the LC Issuer under
each Facility LC to the extent such amount is not reimbursed by the Borrower
pursuant to Section 2.20.6 below, plus (ii) interest on the foregoing amount to
be reimbursed by such Lender, for each day from the date of the LC Issuer's
demand for such reimbursement (or, if such demand is made after 11:00 a.m.
(Chicago, Illinois time) on such date, from the next succeeding Business Day) to
the date on which such Lender pays the amount to be reimbursed by it, at a rate
of interest per annum equal to the Federal Funds Effective Rate for the first
three (3) days and, thereafter, at a rate of interest equal to the rate
applicable to Floating Rate Advances.
2.20.6 Reimbursement by Borrower. The Borrower shall be irrevocably and
unconditionally obligated to reimburse the LC Is suer for any amounts to be paid
by the LC Issuer. Upon any drawing under any Facility LC, a reimbursement in
respect thereof shall be made by the Borrower on the date of the drawing if the
Borrower shall have received written notice of such drawing prior to 10:00 a.m.
Chicago time on such date, or, if such notice has not been received by the
Borrower prior to such time on such date, then not later than 12:00 noon Chicago
time on (i) the Business Day that the Borrower receives such notice, if such
notice is received prior to 10:00 a.m. Chicago time on the day of receipt or
(ii) the Business Day immediately following the day that the Borrower receives
such notice, if such notice is not received prior to such time on the day of
receipt; provided that neither the Borrower nor any Lender shall hereby be
precluded from asserting any claim for direct (but not consequential) damages
suffered by the Borrower or such Lender to the extent, but only to the extent,
caused by (i) the willful misconduct or gross negligence of the LC Issuer in
determining whether a request presented under any Facility LC issued by it
complied with the terms of such Facility LC or (ii) the LC Issuer's failure to
pay under any Facility LC issued by it after the presentation to it of a request
strictly complying with the terms and conditions of such Facility LC. Whether or
not an Event of Default or Unmatured Event of Default has occurred and is
continuing, unless the Borrower elects to repay a Reimbursement Obligation,
regardless of whether the conditions for making a Revolving Loan under Section
4.2 have been satisfied, such unpaid Reimbursement Obligation shall be
automatically converted into a Revolving Loan as of the date of the payment by
the LC Issuer giving rise to the Reimbursement Obligation. Such Revolving Loan
shall be in an
37
amount equal to the amount of the unpaid Reimbursement Obligation. Such
Revolving Loan shall initially constitute a Floating Rate Advance and the
proceeds of such Advance shall be used to repay such Reimbursement Obligation.
Such Floating Rate Advance may be converted into a Eurodollar Advance in
accordance with the terms of Section 2.9. If the Borrower at any time fails to
repay a Reimbursement Obligation pursuant to this Section 2.20, such unpaid
Reimbursement Obligation shall at that time be automatically converted into an
Obligation and the Borrower shall be deemed to have elected to borrow a
Revolving Loan from the Lenders, as of the date of the payment by the LC Issuer
giving rise to the Reimbursement Obligation, in an amount equal to the amount of
the unpaid Reimbursement Obligation. Such Revolving Loan shall be made as of the
date of the payment giving rise to such Reimbursement Obligation, automatically,
without notice and without any requirement to satisfy the conditions precedent
otherwise applicable to a Revolving Loan if the Borrower shall have failed to
make such payment to the Administrative Agent for the account of the LC Is suer
prior to such time. Such Revolving Loan shall constitute a Floating Rate Advance
and the proceeds of such Advance shall be used to repay such Reimbursement
Obligation. If, for any reason, the Borrower fails to repay a Reimbursement
Obligation on the day such Reimbursement Obligation arises and, for any reason,
the Lenders are unable to make or have no obligation to make a Revolving Loan,
then such Reimbursement Obligation shall bear interest from and after such day,
until paid in full, at the interest rate applicable to a Floating Rate Advance.
The Borrower agrees to indemnify the LC Issuer against any loss or expense
determined by the LC Issuer in good faith to have resulted from any conversion
pursuant to this Section 2.20 by reason of the inability of the LC Issuer to
convert the amount received from the Borrower or from the Lenders, as
applicable, into an amount equal to the amount of such Reimbursement Obligation.
The LC Issuer will pay to each Lender ratably in accordance with its Revolving
Loan Pro Rata Share all amounts received by it from the Borrower for application
in payment, in whole or in part, of the Reimbursement Obligation in respect of
any Facility LC issued by the LC Issuer, but only to the extent such Lender has
made payment to the LC Issuer in respect of such Facility LC pursuant to Section
2.20.5.
2.20.7 Obligations Absolute. The Borrower's obligations under this
Section 2.20 shall be absolute and unconditional under any and all circumstances
and irrespective of any setoff, counterclaim or defense to payment which the
Borrower may have or have had against the LC Issuer, any Lender or any
beneficiary of a Facility LC. The Borrower further agrees with the LC Issuer and
the Lenders that the LC Issuer and the Lenders shall not be responsible for, and
the Borrower's Reimbursement Obligation in respect of any Facility LC shall not
be affected by, among other things, the validity or genuineness of documents or
of any endorsements thereon, even if such documents should in fact prove to be
in any or all respects invalid, fraudulent or forged, or any dispute between or
among the Borrower, any of its Affiliates, the beneficiary of any Facility LC or
any financing institution or other party to whom any Facility LC may be
transferred or any claims or defenses whatsoever of the Borrower or of any of
its Affiliates against the beneficiary of any Facility LC or any such
transferee. The LC Issuer shall not be liable for any error, omission,
interruption or delay in transmission, dispatch or delivery of any message or
advice, however transmitted, in connection with any Facility LC. The Borrower
agrees that any action taken or omitted by the LC Is suer or any Lender under or
in connection
38
with each Facility LC and the related drafts and documents, if done without
gross negligence or willful misconduct, shall be binding upon the Borrower and
shall not put the LC Issuer or any Lender under any liability to the Borrower.
Nothing in this Section 2.20.7 is intended to limit the right of the Borrower to
make a claim against the LC Issuer for damages as contemplated by the proviso to
the first sentence of Section 2.20.6.
2.20.8 Actions of LC Issuer. The LC Issuer shall be entitled to rely,
and shall be fully protected in relying, upon any Facility LC, draft, writing,
resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex or teletype message, statement, order or other
document believed by it to be genuine and correct and to have been signed, sent
or made by the proper Person or Persons, and upon advice and statements of legal
counsel, independent accountants and other experts selected by the LC Issuer.
The LC Issuer shall be fully justified in failing or refusing to take any action
under this Agreement unless it shall first have received such advice or
concurrence of the Required Lenders as it reasonably deems appropriate or it
shall first be indemnified to its reasonable satisfaction by the Lenders against
any and all liability and expense which may be incurred by it by reason of
taking or continuing to take any such action. Notwithstanding any other
provision of this Section 2.20, the LC Issuer shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement in
accordance with a request of the Required Lenders, and such request and any
action taken or failure to act pursuant thereto shall be binding upon the
Lenders and any future holders of a participation in any Facility LC.
2.20.9 Indemnification. The Borrower hereby agrees to indemnify and
hold harmless each Lender, the LC Issuer and the Administrative Agent, and their
respective directors, officers, agents and employees from and against any and
all claims and damages, losses, liabilities and related reasonable out-of-pocket
costs or expenses which such Lender, the LC Issuer or the Administrative Agent
may incur (or which may be claimed against such Lender, the LC Issuer or the
Administrative Agent by any Person whatsoever) by reason of or in connection
with the issuance, execution and delivery or transfer of or payment or failure
to pay under any Facility LC or any actual or proposed use of any Facility LC,
including, without limitation, any such claims, damages, losses, liabilities,
costs or expenses which the LC Issuer may incur by reason of or in connection
with the LC Issuer issuing any Facility LC which specifies that the term
"Beneficiary" included therein includes any successor by operation of law of the
named Beneficiary, but which Facility LC does not require that any drawing by
any such successor Beneficiary be accompanied by a copy of a legal document,
satisfactory to the LC Issuer, evidencing the appointment of such successor
Beneficiary; provided that the Borrower shall not be required to indemnify any
Lender, the LC Issuer or the Administrative Agent for any claims, damages,
losses, liabilities, costs or expenses to the extent, but only to the extent,
caused by (x) the willful misconduct or gross negligence of the LC Issuer in
determining whether a request presented under any Facility LC complied with the
terms of such Facility LC or (y) the LC Issuer's failure to pay under any
Facility LC after the presentation to it of a request strictly complying with
the terms and conditions of such Facility LC. Nothing in this Section 2.20.9 is
intended to limit the obligations of the Borrower under any other provision of
this Agreement.
39
2.20.10 Lenders' Indemnification. Each Lender shall, ratably in
accordance with its Revolving Loan Pro Rata Share, indemnify the LC Issuer, its
affiliates and their respective directors, officers, agents and employees (to
the extent not reimbursed by the Borrower) against any cost, expense (including
reasonable counsel fees and disbursements), claim, demand, action, loss or
liability (except such as result from such indemnitees' gross negligence or
willful misconduct or the LC Issuer's failure to pay under any Facility LC after
the presentation to it of a request strictly complying with the terms and
conditions of the Facility LC) that such indemnitees may suffer or incur in
connection with this Section 2.20 or any action taken or omitted by such
indemnitees hereunder.
2.20.11 Facility LC Collateral Account. The Borrower agrees that it
will, upon the request of the Administrative Agent or the Required Lenders and
until the final expiration date of any Facility LC and thereafter as long as any
amount is payable to the LC Issuer or the Lenders in respect of any Facility LC,
maintain a special collateral account pursuant to arrangements reasonably
satisfactory to the Administrative Agent and the Borrower (the "Facility LC
Collateral Account") at the Administrative Agent's office at the address
specified pursuant to Article XIII, in the name of the Borrower but under the
sole dominion and control of the Administrative Agent for the benefit of the LC
Issuers and the Lenders and in which the Borrower shall have no interest other
than as set forth in Section 8.1. The Borrower hereby pledges, assigns and
grants to the Administrative Agent, on behalf of and for the ratable benefit of
the Lenders and the LC Issuer, a security interest in all of the Borrower's
right, title and interest in and to all funds which may from time to time be on
deposit in the Facility LC Collateral Account to secure the prompt and complete
payment and performance of the Secured Obligations in respect of Facility LCs.
The Borrower shall deposit cash collateral pursuant to this paragraph as and to
the extent required by Section 2.2 as collateral for the payment and performance
of the LC Obligations and the other Secured Obligations in respect of Facility
LCs. Each such deposit shall be held by the Administrative Agent as collateral
for the payment and performance of the obligations of the Borrower for the
portion of the LC Obligations relating to Facility LCs issued for the account of
the Borrower under this Agreement. The Administrative Agent will invest any
funds on deposit from time to time in the Facility LC Collateral Account in
certificates of deposit of JPMorgan Chase having a maturity not exceeding thirty
(30) days. Interest or profits, if any, on such investments shall accumulate in
such account. Moneys in such account shall be applied to reimburse the LC Issuer
for Reimbursement Obligations for which it has not been reimbursed and as
collateral for the remaining LC Obligations. If the Borrower is required to
provide an amount of cash collateral hereunder pursuant to Section 8.1, such
amount (to the extent not applied) shall be returned to such Borrower within
three Business Days after all Events of Default have been cured or waived. If
the Borrower is required to provide an amount of cash collateral hereunder
pursuant to Section 2.2, such amount (to the extent not applied as aforesaid)
shall be returned to the Borrower as and to the extent that, after giving effect
to such return, the Borrower would remain in compliance with Section 2.2.
Nothing in this Section 2.20.11 shall either require the Borrower or any
Guarantor to deposit any funds in the Facility LC Collateral Account or limit
the right of the Administrative Agent to release any funds held in the Facility
LC Collateral Account in each case other than as required by this Section,
Section 2.2 or Section 8.1.
40
2.20.12 Rights as a Lender. In its capacity as a Lender, the
LC Issuer shall have the same rights and obligations as any other
Lender.
2.21. Interest Rate Limitation. Notwithstanding anything herein to the
contrary, if at any time the interest rate applicable to any Loan, together with
all fees, charges and other amounts which are treated as interest on such Loan
under applicable law (collectively the "Charges"), shall exceed the maximum
lawful rate (the "Maximum Rate") which may be contracted for, charged, taken,
received or reserved by the Lender holding such Loan in accordance with
applicable law, the rate of interest payable in respect of such Loan hereunder,
together with all Charges payable in respect thereof, shall be limited to the
Maximum Rate and, to the extent lawful, the interest and Charges that would have
been payable in respect of such Loan but were not payable as a result of the
operation of this Section 2.21 shall be cumulated and the interest and Charges
payable to such Lender in respect of other Loans or periods shall be increased
(but not above the Maximum Rate therefor) until such cumulated amount shall have
been received by such Lender.
ARTICLE III
YIELD PROTECTION; TAXES
3.1. Yield Protection. If, on or after the Closing Date, the adoption
of any law or any governmental or quasi-governmental rule, regulation, policy,
guideline or directive (whether or not having the force of law), or any change
in any such law, rule, regulation, policy, guideline or directive or in the
interpretation or administration thereof by any governmental or
quasi-governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender or
applicable Lending Installation or the LC Issuer with any request or directive
(whether or not having the force of law) of any such authority, central bank or
comparable agency:
(i) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar
requirement against assets of, deposits with or for the
account of, or credit extended by, any Lender or any
applicable Lending Installation or the LC Issuer (other than
reserves and assessments taken into account in determining the
interest rate applicable to Eurodollar Advances), or
(ii) imposes any other condition the result of which is to increase
the cost to any Lender or any applicable Lending Installation
of making, funding or maintaining its Revolving Loan
Commitment or Eurodollar Loans or of issuing or participating
in Facility LCs, or reduces any amount receivable by any
Lender or any applicable Lending Installation or the LC Issuer
in connection with its Revolving Loan Commitment or Eurodollar
Loans or Facility LCs (including participations therein), or
requires any Lender or any applicable Lending Installation or
the LC Issuer to make any payment calculated by reference to
the amount of Revolving Loan Commitment or Eurodollar Loans or
Facility LCs (including participations therein) held or
interest or LC Fees received by it, by an amount deemed
material by such Lender or the LC Issuer, as applicable.
41
and the result of any of the foregoing is to increase the cost to such Lender or
applicable Lending Installation or the LC Issuer of making or maintaining its
Eurodollar Loans or Revolving Loan Commitment or of issuing or participating in
Facility LCs, as applicable, or to reduce the return received by such Lender or
applicable Lending Installation or LC Issuer in connection with such Eurodollar
Loans or Revolving Loan Commitment, or Facility LCs (including participations
therein), then, within fifteen (15) days of demand, accompanied by the written
statement required by Section 3.6, by such Lender or LC Issuer, the Borrower
shall pay such Lender or LC Issuer such additional amount or amounts as will
compensate such Lender or LC Issuer for such increased cost or reduction in
amount received.
3.2. Changes in Capital Adequacy Regulations. If a Lender or LC Issuer
determines the amount of capital required or expected to be maintained by such
Lender or LC Issuer, any Lending Installation of such Lender or LC Issuer or any
corporation controlling such Lender or LC Issuer is increased as a result of a
Change (as defined below), then, within fifteen (15) days of demand, accompanied
by the written statement required by Section 3.6, by such Lender or LC Issuer,
the Borrower shall pay such Lender or LC Issuer the amount necessary to
compensate for any shortfall in the rate of return on the portion of such
increased capital which such Lender or LC Issuer determines is attributable to
this Agreement, its Outstanding Revolving Credit Exposure, its Term Loans, its
Term Loan Commitment to make Term Loans, its Revolving Loan Commitment to make
Revolving Loans and issue or participate in Facility LCs, as applicable,
hereunder (after taking into account such Lender's or LC Issuer's policies as to
capital adequacy). "Change" means (i) any change after the Closing Date in the
Risk-Based Capital Guidelines or (ii) any adoption of, or change in, or change
in the interpretation or administration of any other law, governmental or
quasi-governmental rule, regulation, policy, guideline, interpretation, or
directive (whether or not having the force of law) after the Closing Date which
affects the amount of capital required or expected to be maintained by any
Lender or LC Is suer or any Lending Installation or any corporation controlling
any Lender or LC Issuer. "Risk-Based Capital Guidelines" means (i) the
risk-based capital guidelines in effect in the United States on the Closing
Date, including transition rules, and (ii) the corresponding capital regulations
promulgated by regulatory authorities outside the United States implementing the
July 1988 report of the Basle Committee on Banking Regulation and Supervisory
Practices Entitled "International Convergence of Capital Measurements and
Capital Standards," including transition rules, and any amendments to such
regulations adopted prior to the Closing Date.
3.3. Availability of Types of Advances. If the Administrative Agent
determines that maintenance of its Eurodollar Loans at a suitable Lending
Installation would violate any applicable law, rule, regulation, or directive,
whether or not having the force of law, or no reasonable basis exists for
determining the Eurodollar Base Rate, then the Administrative Agent shall
suspend the availability of Eurodollar Advances and require any affected
Eurodollar Advances to be repaid or converted to Floating Rate Advances on the
respective last days of the then current Interest Periods with respect to such
Revolving Loans or within such earlier period as required by law, subject to the
payment of any funding indemnification amounts required by Section 3.4.
3.4. Funding Indemnification. If any payment of a Eurodollar Advance
occurs on a date which is not the last day of the applicable Interest Period,
whether because of acceleration, prepayment or otherwise, or a Eurodollar
Advance is not made or continued, or a Floating Rate
42
Advance is not converted into a Eurodollar Advance, on the date specified by the
Borrower for any reason other than default by the Lenders, or a Eurodollar
Advance is not prepaid on the date specified by the Borrower for any reason, the
Borrower will indemnify each Lender for any loss or cost (excluding lost profit)
incurred by it resulting therefrom, including, without limitation, any loss or
cost in liquidating or employing deposits acquired to fund or maintain such
Eurodollar Advance.
3.5. Taxes.
(i) Subject to Section 3.5(v) below, all payments by the Borrower
to or for the account of any Lender or the LC Issuer or the
Administrative Agent hereunder or under any Note shall be made
free and clear of and without deduction for any and all Taxes.
If the Borrower shall be required by law to deduct any Taxes
from or in respect of any sum payable hereunder to any Lender,
LC Issuer or the Administrative Agent, (a) the sum payable
shall be increased as necessary so that after making all
required deductions (including deductions applicable to
additional sums payable under this Section 3.5) such Lender,
LC Issuer or the Administrative Agent (as the case may be)
receives an amount equal to the sum it would have received had
no such deductions been made, (b) the Borrower shall make such
deductions, (c) the Borrower shall pay the full amount
deducted to the relevant authority in accordance with
applicable law and (d) the Borrower shall furnish to the
Administrative Agent the original copy of a receipt evidencing
payment thereof or, if a receipt cannot be obtained with
reasonable efforts, such other evidence of payment as is
reasonably acceptable to the Administrative Agent, in each
case within thirty (30) days after such payment is made.
(ii) In addition, the Borrower shall pay any present or future
stamp or documentary taxes and any other excise or property
taxes, charges or similar levies which arise from any payment
made hereunder or under any Note or Facility LC Application or
from the execution or delivery of, or otherwise with respect
to, this Agreement or any Note or Facility LC Application
("Other Taxes").
(iii) The Borrower shall indemnify the Administrative Agent, the LC
Issuer and each Lender for the full amount of Taxes or Other
Taxes (including, without limitation, any Taxes or Other Taxes
imposed on amounts payable under this Section 3.5) paid by the
Administrative Agent, the LC Issuer or such Lender as a result
of its Revolving Loan Commitment, any Credit Extensions made
by it hereunder, any Facility LC issued or participated in by
it hereunder, or otherwise in connection with its
participation in this Agreement and any liability (including
penalties, interest and expenses) arising therefrom or with
respect thereto; provided, however, that the Borrower shall
not be obligated to reimburse the Administrative Agent, the LC
Issuer or a Lender in respect of penalties, interest or
similar liabilities attributable to such Taxes or Other Taxes
if such penalties, interest or similar liabilities are
attributable to a failure or delay by the Administrative
Agent, the LC Issuer or a Lender to make a written request
therefore pursuant to Section 3.6; provided, further, that no
request delivered within the ninety (90) day period described
in Section 3.6 shall constitute a delayed request. Payments
due
43
under this indemnification shall be made within thirty (30)
days of the date the Administrative Agent, the LC
Issuer or such Lender makes demand therefor pursuant
to Section 3.6.
(iv) Each Lender that is not incorporated under the laws of the
United States of America or a state thereof (each a "Non-U.S.
Lender") agrees that it will, not more than ten (10) Business
Days after the date on which it becomes a party to this
Agreement or changes its lending office under this Agreement
(but in any event before a payment is due to it hereunder),
(i) deliver to each of the Borrower and the Administrative
Agent two duly completed copies of United States Internal
Revenue Service Form W-8BEN or W-8ECI (or successor forms),
certifying in either case that such Lender is entitled to
receive payments under this Agreement without deduction or
withholding of any United States federal income taxes
(including backup withholding taxes), or (ii) in the case of a
Non-U.S. Lender that is fiscally transparent, deliver to the
Administrative Agent a United States Internal Revenue Form
W-8IMY (or successor forms) together with the applicable
accompanying forms, W-8 or W-9, as the case may be, and
certify that it is entitled to an exemption from United States
Federal income tax (including backup withholding taxes). Each
Non-U.S. Lender further undertakes to deliver to each of the
Borrower and the Administrative Agent (x) renewals or
additional copies of such form (or any successor form) on or
before the date that such form expires or becomes obsolete,
and (y) after the occurrence of any event requiring a change
in the most recent forms so delivered by it, such additional
forms or amendments thereto as may be reasonably requested by
the Borrower or the Administrative Agent.
(v) For any period during which a Non-U.S. Lender has failed to
provide the Borrower with an appropriate form pursuant to
clause (iv) above (unless such failure is due to a change in
treaty, law or regulation, or any change in the interpretation
or administration thereof by any governmental authority,
occurring subsequent to the date on which a form originally
was required to be provided), such Non-U.S. Lender shall not
be entitled to indemnification under this Section 3.5 with
respect to Taxes imposed by the United States.
(vi) Any Lender that is entitled to an exemption from or reduction
of withholding tax with respect to payments under this
Agreement or any Note pursuant to the law of any relevant
jurisdiction or any treaty shall deliver to the Borrower (with
a copy to the Administrative Agent), at the time or times
prescribed by applicable law, such properly completed and
executed documentation prescribed by applicable law or
reasonably requested by the Borrower as will permit such
payments to be made without withholding or at a reduced rate.
(vii) If the U.S. Internal Revenue Service or any other governmental
authority of the United States or any other country or any
political subdivision thereof asserts a claim that the
Administrative Agent did not properly withhold tax from
amounts paid to or for the account of any Lender (because the
appropriate form was not delivered or properly completed,
because such Lender failed to notify the
44
Administrative Agent of a change in circumstances which
rendered its exemption from withholding ineffective, or for
any other reason), such Lender shall indemnify the
Administrative Agent fully for all amounts paid, directly or
indirectly, by the Administrative Agent as tax, withholding
therefor, or otherwise, including penalties and interest, and
including taxes imposed by any jurisdiction on amounts payable
to the Administrative Agent under this subsection, together
with all costs and expenses related thereto (including
attorneys fees and time charges of attorneys for the
Administrative Agent, which attorneys may be employees of the
Administrative Agent). The obligations of the Lenders under
this Section 3.5(vii) shall survive the payment of the
Obligations and termination of this Agreement.
(viii) The Administrative Agent, the LC Is suer and each Lender shall
take such steps as the Borrower reasonably requests to apply
or otherwise take advantage of any tax refund or offsetting
tax credit or other similar tax benefit arising out of or in
conjunction with any amounts for which they have been
indemnified by the Borrower or with respect to which the
Borrower has paid additional amounts pursuant to this Section
3.5. If the Administrative Agent, the LC Issuer or a Lender
determines that it has received a tax benefit arising out of
or in conjunction with any amounts as to which it has been
indemnified by the Borrower or with respect to which the
Borrower has paid additional amounts pursuant to this Section
3.5, it shall pay over such refund to the Borrower (but only
to the extent of indemnity payments made, or additional
amounts paid by the Borrower under this Section 3.5 with
respect to the amounts giving rise to such refund); provided,
however, that during the continuance of an Event of Default,
any such refund shall be applied in reduction of the Secured
Obligations.
(ix) The Administrative Agent, the LC Issuer, and each Lender shall
take reasonable steps to avoid the need for the Borrower to
pay any amounts under this Section 3.5, but they shall not be
required to take any steps that would impose material costs or
other detriments on them. Any such cost incurred by the
Administrative Agent, the LC Issuer or any Lender shall
constitute a Secured Obligation and the Borrower shall
reimburse such Person for such cost.
3.6. Lender Statements; Survival of Indemnity. Each Lender shall
deliver a written statement of such Lender to the Borrower (with a copy to the
Administrative Agent) as to the amount due, if any, under Section 3.1, 3.2, 3.4
or 3.5. Such written statement shall set forth in reasonable detail the
calculations upon which such Lender determined such amount and shall be final,
conclusive and binding on the Borrower in the absence of manifest error.
Determination of amounts payable under such Sections in connection with a
Eurodollar Loan shall be calculated as though each Lender funded its Eurodollar
Loan through the purchase of a deposit of the type, currency and maturity
corresponding to the deposit used as a reference in determining the Eurodollar
Rate applicable to such Loan, whether in fact that is the case or not. Unless
otherwise provided herein, the amount specified in the written statement of any
Lender shall be payable on demand after receipt by the Borrower of such written
statement. The obligations of the Borrower under Sections 3.1, 3.2, 3.4 and 3.5
shall survive payment of the Obligations and termination of this Agreement;
provided that the Borrower shall not be required to make any payments pursuant
45
to Section 3.1, 3.2, 3.4 or 3.5 to a Lender or LC Issuer for any increased costs
incurred or reductions suffered more than ninety (90) days prior to the date
that such Lender or LC Is suer, as the case may be, notifies the Borrower of the
circumstances giving rise to such increased costs or reductions and of such
Lender's or the LC Issuer's intention to claim compensation therefor (except
that, if the circumstances giving rise to such increased costs or reductions are
retroactive, then the ninety (90) day period referred to above shall be extended
to include the period of retroactive effect thereof).
3.7. Alternative Lending Installation. To the extent reasonably
possible, each Lender shall designate an alternate Lending Installation with
respect to its Eurodollar Loans to reduce any liability of the Borrower to such
Lender under Sections 3.1, 3.2 and 3.5 or to avoid the unavailability of
Eurodollar Advances under Section 3.3, so long as such designation is not, in
the reasonable judgment of such Lender, reasonably disadvantageous to such
Lender. A Lender's designation of an alternative Lending Installation shall not
affect the Borrower's rights under Section 2.19 to replace a Lender.
ARTICLE IV
CONDITIONS PRECEDENT
4.1. Initial Credit Extension. The Lenders shall not be required to
make the initial Credit Extension hereunder, which initial Credit Extension
shall occur no later than May 2, 2007, unless the following conditions precedent
are satisfied (or waived by the Administrative Agent) immediately prior to or
substantially concurrent with such initial Credit Extension:
4.1.1 Copies of the articles or certificate of incorporation
(or the equivalent thereof) of each Credit Party, in each case,
together with all amendments thereto, and a certificate of good
standing, each certified by the appropriate governmental officer in its
jurisdiction of organization.
4.1.2 Copies, certified by the Secretary or Assistant
Secretary (or the equivalent thereof) of each Credit Party, in each
case, of its by-laws and of its Board of Directors' resolutions and of
resolutions or actions of any other body authorizing the execution of
the Loan Documents to which such Credit Party is a party.
4.1.3 An incumbency certificate, executed by the Secretary or
Assistant Secretary (or the equivalent thereof) of each Credit Party,
in each case, which shall identify by name and title and bear the
signatures of the Authorized Officers and any other officers of such
Credit Party authorized to sign the Loan Documents to which such Credit
Party is party, upon which certificate the Administrative Agent and the
Lenders shall be entitled to rely until informed of any change in
writing by such Credit Party.
4.1.4 A certificate signed by the chief financial officer of
the Borrower, stating that on the initial Credit Extension Date (i) no
Event of Default or Unmatured Event of Default has occurred and is
continuing, (ii) all of the representations and warranties in Article V
shall be true and correct in all material respects as of such date and
(iii) other than as disclosed in public filings with the Securities and
Exchange Commission prior to
46
the initial Credit Extension Date, no material adverse change in the
business, assets, condition (financial or otherwise), or Property of the
Borrower and its Subsidiaries, taken as a whole, has occurred since
December 31, 2006.
4.1.5 (a) A written opinion of the Borrower's in-house counsel,
in form and substance reasonably satisfactory to the Administrative
Agent and addressed to the Administrative Agent and the Lenders, in
substantially the form of Exhibit A-1, (b) a written opinion of Cravath,
Swaine & Moore LLP, special New York counsel to the Borrower, in form
and substance reasonably satisfactory to the Administrative Agent and
addressed to the Administrative Agent and the Lenders, in substantially
the form of Exhibit A-2 and (c) a written opinion of Richards, Layton &
Finger, special Delaware counsel to the Credit Parties, addressed to the
Administrative Agent and the Lenders, in substantially the form of
Exhibit A-3.
4.1.6 Any Notes requested by a Lender pursuant to Section 2.13
payable to each such requesting Lender.
4.1.7 Written money transfer instructions, in substantially the
form of Exhibit D, addressed to the Administrative Agent and signed by
an Authorized Officer, together with such other related money transfer
authorizations as the Administrative Agent may have reasonably
requested.
4.1.8 The Administrative Agent shall have received written
evidence reasonably satisfactory to it that all of the obligations owing
under the Senior Unsecured Indenture Documents shall be fully repaid and
discharged within five Business Days after the Closing Date, that the
amounts required to fully repay obligations outstanding thereunder and
in connection therewith will be delivered into escrow on the Closing
Date on terms reasonably acceptable to the Administrative Agent, and
that at the end of such five Business Day period the Senior Unsecured
Indenture Documents, including without limitation the Senior Unsecured
Notes, shall be terminated except to the extent the provisions thereof
expressly survive the repayment of such obligations.
4.1.9 All legal matters shall be reasonably satisfactory to the
Administrative Agent.
4.1.10 The Administrative Agent shall have received evidence
reasonably satisfactory to it that the Administrative Agent, on behalf
of the Lenders, holds a perfected Lien upon the Collateral having the
priority required by the Collateral Documents and that is perfected to
the extent required by the Collateral Documents, or that arrangements
reasonably satisfactory to the Administrative Agent for so perfecting
such Liens are in place.
4.1.11 Such other documents as the Administrative Agent or its
counsel may have reasonably requested, including, without limitation,
the Collateral Documents and those other documents set forth in Exhibit
G hereto.
4.2. Each Credit Extension. The Lenders shall not (except as otherwise
set forth in Section 2.4.4 or Section 2.20.6 with respect to Revolving Loans
extended for the purpose of
47
repaying Swing Line Loans or reimbursing draws under Facility LCs, as the case
may be) be required to make any Credit Extension unless on the applicable Credit
Extension Date:
4.2.1 There exists no Event of Default or Unmatured Event of
Default.
4.2.2 The representations and warranties contained in Article
V are true and correct as of such Credit Extension Date in all material
respects except to the extent any such representation or warranty is
stated to relate solely to an earlier date, in which case such
representation or warranty shall have been true and correct in all
material respects on and as of such earlier date.
Each Borrowing Notice or Swing Line Borrowing Notice, as the case may
be, or request for issuance of a Facility LC, with respect to each such Credit
Extension shall constitute a representation and warranty by the Borrower that
the conditions contained in Sections 4.2.1 and 4.2.2 have been satisfied.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to each Lender and the
Administrative Agent as of each of (i) the date of the initial Credit Extension
hereunder and (ii) each date as required by Section 4.2:
5.1. Existence and Standing. Each of the Borrower and its Subsidiaries
is a corporation, partnership (in the case of Subsidiaries only) or limited
liability company duly incorporated or organized, as the case may be, validly
existing and (to the extent such concept applies to such entity) in good
standing under the laws of its jurisdiction of incorporation or organization and
has all requisite authority to conduct its business in each jurisdiction in
which its business is conducted.
5.2. Authorization and Validity. The Borrower has the power and
authority and legal right to execute and deliver the Loan Documents to which it
is a party and to perform its obligations thereunder. The execution and delivery
by the Borrower of the Loan Documents to which it is a party and the performance
of its obligations thereunder have been duly authorized by proper proceedings,
and the Loan Documents to which the Borrower is a party constitute legal, valid
and binding obligations of the Borrower enforceable against the Borrower in
accordance with their terms, except as enforceability may be limited by (i)
bankruptcy, insolvency, fraudulent conveyances, reorganization or similar laws
relating to or affecting the enforcement of creditors' rights generally; (ii)
general equitable principles (whether considered in a proceeding in equity or at
law); and (iii) requirements of reasonableness, good faith and fair dealing.
5.3. No Conflict; Government Consent. Neither the execution and
delivery by the Borrower or its Subsidiaries, as applicable, of the Loan
Documents to which such Person is a party, nor the consummation of the
transactions therein contemplated, nor compliance with the provisions thereof
will violate (i) any law, rule, regulation, order, writ, judgment, injunction,
decree or award binding on the Borrower or any of its Subsidiaries except for
violations which
48
individually or in the aggregate would not reasonably be expected to result in a
Material Adverse Effect, or (ii) the Borrower's or any Subsidiary's articles or
certificate of incorporation, partnership agreement, certificate of partnership,
articles or certificate of organization, by-laws, or operating agreement or
other management agreement, as the case may be, or (iii) the provisions of any
indenture, instrument or agreement to which the Borrower or any of its
Subsidiaries is a party or is subject, or by which it, or its Property, is
bound, or conflict with, or constitute a default thereunder, or result in, or
require, the creation or imposition of any Lien in, of or on the Property of the
Borrower or a Subsidiary pursuant to the terms of, any such indenture,
instrument or agreement, other than the Senior Unsecured Indenture Documents,
and except for violations which individually or in the aggregate would not
reasonably be expected to result in a Material Adverse Effect. No material
order, consent, adjudication, approval, license, authorization, or validation
of, or filing, recording or registration with, or exemption by, or other
material action in respect of any governmental or public body or authority, or
any subdivision thereof, which has not been obtained by the Borrower or any of
its Subsidiaries, is required to be obtained by the Borrower or any of its
Subsidiaries in connection with the execution and delivery of the Loan
Documents, the borrowings under this Agreement, the payment and performance by
the Borrower of the Obligations or the legality, validity, binding effect or
enforceability of any of the Loan Documents, except filings necessary to perfect
Liens created under the Loan Documents.
5.4. Financial Statements. The December 31, 2006 audited consolidated
financial statements of the Borrower and its Subsidiaries heretofore delivered
to the Administrative Agent and the Lenders were prepared in accordance with
generally accepted accounting principles in effect on the date such statements
were prepared and fairly present in all material respects the consolidated
financial condition and operations of the Borrower and its Subsidiaries at such
date and the consolidated results of their operations for the period then ended
in accordance with generally accepted accounting principles in effect on the
date such statements were prepared.
5.5. Material Adverse Change. Other than as disclosed in public
filings with the Securities and Exchange Commission prior to the initial Credit
Extension Date, since December 31, 2006, there has been no change in the
business, assets, condition (financial or otherwise), or Property of the
Borrower and its Subsidiaries taken together, in each case which could
reasonably be expected to have a Material Adverse Effect.
5.6. Taxes. The Borrower and its Subsidiaries have filed all United
States federal tax returns and all other tax returns which are required to be
filed and have paid all taxes due pursuant to said returns or pursuant to any
assessment received by the Borrower or any of its Subsidiaries, except (i) in
respect of such taxes, if any, as are being contested in good faith and as to
which adequate reserves have been provided in accordance with Agreement
Accounting Principles or (ii) to the extent that the failure to do so would not
reasonably be expected to have a Material Adverse Effect. The United States
federal income tax returns of the Borrower and its Subsidiaries have been
audited by the Internal Revenue Service or the relevant statute of limitations
has expired through the 2002 fiscal year except with respect to VITAS
Healthcare, which has been audited through February 24, 2004. No Liens have been
filed and no claims are being asserted with respect to such taxes that would
reasonably be expected to have a Material Adverse Effect.
49
5.7. Litigation and Contingent Obligations. There is no litigation,
arbitration, governmental investigation, proceeding or inquiry pending or, to
the knowledge of any of their officers, threatened against or affecting the
Borrower or any of its Subsidiaries which could reasonably be expected to have a
Material Adverse Effect or which seeks to prevent, enjoin or delay the making of
any Credit Extensions.
5.8. Subsidiaries. Schedule 5.8 contains an accurate list of all
Subsidiaries of the Borrower as of the date of this Agreement, setting forth
their respective jurisdictions of organization and the percentage of their
respective capital stock or other ownership interests owned by the Borrower or
other Subsidiaries. All of the issued and outstanding shares of capital stock or
other ownership interests of such Subsidiaries have been (to the extent such
concepts are relevant with respect to such ownership interests) duly authorized
and issued and are fully paid and non-assessable.
5.9. ERISA. The Unfunded Liabilities of all Single Employer Plans
would not reasonably be expected to have a Material Adverse Effect. Neither the
Borrower nor any other member of the Controlled Group has incurred, or
reasonably expects to incur, pursuant to Section 4201 of ERISA, any withdrawal
liability to Multiemployer Plans that in the aggregate would reasonably be
expected to have a Material Adverse Effect. Each Plan complies in all material
respects with all applicable requirements of law and regulations. No Reportable
Event has occurred with respect to any Plan that would reasonably be expected to
have a Material Adverse Effect. No steps have been taken to reorganize or
terminate, within the meaning of Title IV of ERISA, any Multiemployer Plan.
5.10. Accuracy of Information. The Loan Documents and other written
statements furnished by the Borrower and its Subsidiaries to the Administrative
Agent in connection with the negotiation of, and compliance with, the Loan
Documents (as modified or supplemented by information so furnished) taken as a
whole do not contain any material misstatement of fact or omit to state a
material fact necessary to make the statements contained therein, in light of
the circumstances under which they were made, not misleading; provided, however,
that with respect to projected financial information, the Borrower and its
Subsidiaries represent only that such information was prepared in good faith
based upon assumptions believed to be reasonable at the time.
5.11. Regulations T, U, and X. The Borrower will ensure that no use of
Advances or proceeds thereof will violate Regulation T, U or X.
5.12. Material Agreements; Restrictions on Dividends. As of the Closing
Date, neither the Borrower nor any Subsidiary is a party to any agreement or
instrument or subject to any charter or other corporate restriction which could
reasonably be expected to have a Material Adverse Effect. As of the Closing
Date, neither the Borrower nor any Subsidiary is in default in the performance,
observance or fulfillment of any of the obligations, covenants or conditions
contained in any agreement or instrument to which it is a party, which default
could reasonably be expected to have a Material Adverse Effect (other than any
agreement or instrument evidencing or governing Indebtedness).
50
5.13. Compliance With Laws. The Borrower and its Subsidiaries have
complied with all applicable statutes, rules, regulations, orders and
restrictions of any domestic or foreign government or any instrumentality or
agency thereof having jurisdiction over the conduct of their respective
businesses or the ownership of their respective Property, except such
non-compliances that would not, either individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. This Section 5.13 does
not relate to taxes which are the subject of Section 5.6, to employee benefits
or ERISA matters which are the subject of Section 5.9 and environmental matters
which are the subject of Section 5.16.
5.14. Ownership of Properties; Priority of Liens. The Borrower and its
Subsidiaries have good title, free of all Liens other than those permitted by
Section 6.15, to all of the material Property and assets reflected in the
Borrower's most recent consolidated financial statements provided to the
Administrative Agent, as owned by the Borrower and its Subsidiaries. The
Borrower and its Subsidiaries own or are licensed to use all trademarks,
tradenames, copyrights, patents and other intellectual property necessary to
their business as currently conducted, and to the knowledge of the Borrower, the
use thereof by the Borrower and its Subsidiaries does not infringe in any
material respect upon the rights of any other Person. To the extent governed by
Article 8 or Article 9 of the UCC, when financing statements have been filed in
the appropriate offices, the Administrative Agent has a perfected first priority
Lien upon all of the Collateral, subject to (i) Liens permitted by Section 6.15,
(ii) filings under any federal statute for patents, trademarks, and copyrights,
and (iii) Collateral in which security interests or liens can only be perfected
through compliance with the terms of the Federal Assignment of Claims Act.
5.15. Plan Assets; Prohibited Transactions. The Borrower is not an
entity deemed to hold "plan assets" within the meaning of 29 C.F.R. ss. 25
10.3-101 of an employee benefit plan (as defined in Section 3(3) of ERISA) which
is subject to Title I of ERISA or any plan (within the meaning of Section 4975
of the Code).
5.16. Environmental Matters. The Borrower is in compliance with
Environmental Laws, except for any non-compliance which could not reasonably be
expected to have a Material Adverse Effect. Neither the Borrower nor any
Subsidiary has received any notice to the effect that its operations are not in
material compliance with any of the requirements of applicable Environmental
Laws or are the subject of any federal or state investigation evaluating whether
any remedial action is needed to respond to a release of any toxic or hazardous
waste or substance into the environment, which non-compliance or remedial action
could reasonably be expected to have a Material Adverse Effect.
5.17. Investment Company Act. Neither the Borrower nor any Subsidiary
is required to register as an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
5.18. Insurance. The Borrower maintains, and has caused each Subsidiary
to maintain, with financially sound and reputable insurance companies, or
pursuant to self-insurance arrangements, insurance on all their material
Property in such amounts, subject to such deductibles and self-insurance
retentions and covering such properties and risks as is reasonably consistent
with sound business practice.
51
5.19. No Event of Default or Unmatured Event of Default. No Event of
Default or Unmatured Event of Default has occurred and is continuing.
5.20. SDN List Designation. Neither the Borrower nor any of its
Subsidiaries or Affiliates is a country, individual or entity named on the
Specifically Designated National and Blocked Persons (SDN) list issued by the
Office of Foreign Asset Control of the Department of the Treasury of the United
States of America.
5.21. Solvency. Immediately prior to and after the consummation of the
transactions to occur as of the initial Credit Extension Date, prior to and
immediately following the making of each Credit Extension on the initial Credit
Extension Date, and prior to and after giving effect to the application of the
proceeds of such Credit Extensions: (i) the fair value of the assets of the
Borrower and its Subsidiaries on a consolidated basis, at fair valuation, will
exceed the debts and liabilities, subordinated, contingent, or otherwise, of the
Borrower and its Subsidiaries on a consolidated basis, (ii) the present fair
saleable value of the Property of the Borrower and its Subsidiaries on a
consolidated basis will be greater than the amount that will be required to pay
the probable liability of the Borrower and its Subsidiaries on a consolidated
basis on their debts and other liabilities, subordinated, contingent or
otherwise, as such debts and other liabilities become absolute and matured,
(iii) the Borrower and its Subsidiaries on a consolidated basis will be able to
pay their debts and liabilities, subordinated, contingent or otherwise, as such
debts and liabilities become absolute and matured, and (iv) the Borrower and its
Subsidiaries on a consolidated basis will not have unreasonably small capital
with which to conduct the businesses in which they are engaged as such
businesses are now conducted and are proposed to be conducted after the Closing
Date and after the initial Credit Extension Date.
ARTICLE VI
COVENANTS
Until the Revolving Loan Commitments have expired or been terminated,
the LC Obligations have expired, been reimbursed or been cash collateralized (in
each case in accordance with the terms of this Agreement), and the other
Obligations have been paid in full (other than obligations to pay fees and
expenses with respect to which the Borrower has not received an invoice,
contingent indemnity obligations, other contingent obligations, and Rate
Management Obligations), unless the Required Lenders shall otherwise consent in
writing:
6.1. Financial Reporting. The Borrower will maintain, for itself and
each Subsidiary, a system of accounting established and administered in
accordance with generally accepted accounting principles, and furnish to the
Lenders:
6.1.1 Within ninety (90) days after the close of each of its
fiscal years, financial statements prepared in accordance with
Agreement Accounting Principles on a consolidated basis for itself and
its consolidated Subsidiaries (including, to the extent required by
Regulation S-X promulgated by the SEC, consolidating footnote
disclosure), including balance sheets as of the end of such period,
statements of income and statements of cash flows, accompanied by (a)
an audit report, unqualified as to scope, of a nationally recognized
firm of independent public accountants or other independent public
52
accountants reasonably acceptable to the Required Lenders and (b) a certificate
of said accountants (which certificate may be limited to the extent required by
generally accepted accounting principles, rules or guidelines) that, in the
course of their audit of the financial statements of the Borrower and its
consolidated Subsidiaries, which audit was conducted in accordance with
generally accepted accounting standards, they have obtained no knowledge of any
Event of Default or Unmatured Event of Default, or if, in the opinion of such
accountants, any Event of Default or Unmatured Event of Default shall exist,
stating the nature and status thereof (for purposes hereof, delivery of the
Borrower's annual report on Form 10-K (which shall be deemed delivered on the
date when such document is posted on the SEC's website at www.sec.gov or any
replacement website) will be sufficient in lieu of delivery of such financial
statements and audit report).
6.1.2 Within forty-five (45) days after the close of the first three
quarterly periods of each of its fiscal years, for itself and its consolidated
Subsidiaries, consolidated unaudited balance sheets as at the close of each such
period and consolidated statements of income and a statement of cash flows for
the period from the beginning of such fiscal year to the end of such quarter
(including, to the extent required by Regulation S-X promulgated by the SEC,
consolidating footnote disclosure), all certified as to fairness of presentation
in all material respects in accordance with Agreement Accounting Principles,
compliance with Agreement Accounting Principles, and consistency by its chief
financial officer or treasurer, except for normal year-end audit adjustments and
the absence of footnotes (for purposes hereof, delivery of the Borrower's
quarterly report on Form 10-Q (which shall be deemed delivered on the date when
such document is posted on the SEC's website at www.sec.gov or any replacement
website) will be sufficient in lieu of delivery of such financial statements and
certifications).
6.1.3 Not later than the deadline for the financial statements required
under Sections 6.1.1 and 6.1.2, a compliance certificate in substantially the
form of Exhibit B signed by its chief financial officer or treasurer showing the
calculations necessary to determine compliance with Sections 6.20 through 6.23
and setting forth the Credit Parties' Asset Value at the end of the applicable
period, an officer's certificate in substantially the form of Exhibit F stating
that, to such officer's knowledge, no Event of Default or Unmatured Event of
Default exists, or if any Event of Default or Unmatured Event of Default exists,
stating the nature and status thereof, and a calculation of the Closing Date Net
Worth Amount to the extent not otherwise provided to the Administrative Agent as
and when required in the definition thereof;
6.1.4 As soon as possible and in any event within ten (10) days after
the Borrower knows that any material Reportable Event has occurred with respect
to any Plan, a statement, signed by the chief financial officer or treasurer of
the Borrower, describing said Reportable Event and the action which the Borrower
proposes to take with respect thereto.
6.1.5 As soon as possible and in any event within ten (10) days after
receipt by the Borrower, a copy of (a) any written notice or claim to the effect
that the Borrower or any of its Subsidiaries is or may be liable to any Person
as a result of the release by the Borrower, any of its Subsidiaries, or any
other Person of any toxic or hazardous waste or
53
substance into the environment, and (b) any written notice alleging any
violation of any Environmental Law by the Borrower or any of its
Subsidiaries, which, in either case, could reasonably be expected to
have a Material Adverse Effect.
6.1.6 Promptly upon the filing thereof (unless posted on the
SEC's website at www.sec.gov or any replacement website), copies of all
registration statements and copies of all filings on forms 10-K, 10-Q,
or 8-K which the Borrower or any of its Subsidiaries makes with the
Securities and Exchange Commission, including, without limitation, all
certifications and other filings required by Section 302 and Section
906 of the Sarbanes-Oxley Act of 2002 and all rules and regulations
related thereto.
6.1.7 As soon as practicable, and in any event within thirty
(30) days after the beginning of each fiscal year of the Borrower, a
copy of the plan and forecast (including a projected consolidated
balance sheet, income statement and funds flow statement) of the
Borrower for such fiscal year.
6.1.8 As soon as possible, and in any event within three (3)
Business Days (in the case of the Borrower) and fifteen (15) days (in
the case of any Guarantor) after the occurrence thereof, a reasonably
detailed notification to the Administrative Agent and its counsel of
any change in the jurisdiction of organization of the Borrower or any
Guarantor.
6.1.9 Such other information (including non-financial
information) as the Administrative Agent or any Lender may from time to
time reasonably request.
If any information which is required to be furnished to the Lenders
under this Section 6.1 is required by law or regulation to be filed by the
Borrower with a government body on an earlier date, then the information
required hereunder shall be furnished to the Lenders promptly following such
earlier date.
6.2. Use of Proceeds. The Borrower will, and will cause each Subsidiary
to, use (i) the proceeds of the Term Loans in compliance with Section 2.1.2, to
refinance certain existing Indebtedness outstanding on the Closing Date and for
general corporate purposes, including to repurchase capital stock and other
equity securities of the Borrower to the extent permitted hereunder and (ii) the
proceeds of the Revolving Loans to refinance certain Indebtedness outstanding on
the Closing Date and for general corporate purposes, including, without
limitation, for working capital, commercial paper liquidity support, Permitted
Acquisitions, to pay fees and expenses incurred in connection with this
Agreement and to repurchase capital stock and other equity securities of the
Borrower to the extent permitted hereunder. The Borrower shall use the proceeds
of Credit Extensions in compliance with all applicable legal and regulatory
requirements and any such use shall not result in a violation of any such
requirements, including, without limitation, Regulation T, U and X, the
Securities Act of 1933, as amended, and the Securities Exchange Act of 1934, as
amended, and the regulations promulgated thereunder.
54
6.3. Notice of Event of Default. Within three (3) Business Days after
an Authorized Officer becomes aware thereof, the Borrower will give notice in
writing to the Lenders of the occurrence of any Event of Default or Unmatured
Event of Default.
6.4. Conduct of Business. The Borrower will, and will cause each
Subsidiary to, carry on and conduct its business in substantially the same
manner and in substantially the same fields of enterprise as it is presently
conducted, and do all things necessary to remain duly incorporated or organized,
validly existing and (to the extent such concept applies to such entity) in good
standing as a domestic corporation, partnership or limited liability company in
its jurisdiction of incorporation or organization, as the case may be, as in
effect on the Closing Date, and maintain all requisite authority to conduct its
business in each jurisdiction in which its business is conducted; provided,
however, that the foregoing shall not prohibit any merger, dissolution, or
consolidation permitted under Section 6.11.
6.5. Taxes. The Borrower will, and will cause each Subsidiary to,
timely file complete and correct United States federal and applicable foreign,
state and local tax returns required by law and pay all material taxes,
assessments and governmental charges and levies before the same shall become
delinquent or in default upon it or its income, profits or Property, except
those which are being contested in good faith by appropriate proceedings and
with respect to which adequate reserves have been set aside in accordance with
Agreement Accounting Principles and except to the extent the failure to do so
would not reasonably be expected to give rise to a Material Adverse Effect.
6.6. Insurance. The Borrower will, and will cause each Subsidiary to,
maintain with financially sound and reputable insurance companies, or pursuant
to self-insurance arrangements, insurance on all their material Property in such
amounts, subject to such deductibles and self-insurance retentions, and covering
such risks as is consistent with sound business practice, and the Borrower will
furnish to any Lender upon request full information as to the insurance carried.
In the event the Borrower or any of its Subsidiaries at any time or times
hereafter shall fail to obtain or maintain any of the policies or insurance
required herein or to pay any premium in whole or in part relating thereto, then
the Administrative Agent, without waiving or releasing any obligations or
resulting Event of Default hereunder, may at any time or times thereafter (but
shall be under no obligation to do so) obtain and maintain such policies of
insurance and pay such premiums and take any other action with respect thereto
which the Administrative Agent deems advisable. All sums so disbursed by the
Administrative Agent shall constitute part of the Obligations, payable as
provided in this Agreement.
6.7. Compliance with Laws. The Borrower will, and will cause each
Subsidiary to, comply with all laws, rules, regulations, orders, writs,
judgments, injunctions, decrees or awards to which it may be subject including,
without limitation, all Environmental Laws, ERISA and Section 302 and Section
906 of the Sarbanes-Oxley Act of 2002, except where the failure to do so
individually or in the aggregate would not reasonably be expected to result in a
Material Adverse Effect.
6.8. Maintenance of Properties. Subject to Section 6.12, the Borrower
will, and will cause each Subsidiary to, do all things necessary to maintain,
preserve, protect and keep its Property material to the operation of its
business in good repair, working order and condition
55
(ordinary wear and tear excepted), and make all necessary and proper repairs,
renewals and replacements to any such Property so that its business carried on
in connection therewith may be properly conducted at all times.
6.9. Inspection; Keeping of Books and Records.
(i) The Borrower will, and will cause each Subsidiary to, permit
(x) the Administrative Agent at any time and (y) the Lenders
during the continuance of an Event of Default, in each case by
their respective representatives and agents, to inspect any of
the Property, including, without limitation, the Collateral,
books and financial records of the Borrower and each
Subsidiary, to examine and make copies of the books of
accounts and other financial records of the Borrower and each
Subsidiary, and to discuss the affairs, finances and accounts
of the Borrower and each Subsidiary with, and to be advised as
to the same by, their respective officers at such reasonable
times and intervals as the Administrative Agent or any Lender
may designate (in each case other than (x) records subject to
attorney-client privilege and (y) patent-related information
the disclosure of which is prohibited by applicable law or the
rules and regulations of a Governmental Authority). The
Borrower shall keep and maintain, and cause each of its
Subsidiaries to keep and maintain, in all material respects,
proper books of record and account in which entries in
conformity with Agreement Accounting Principles shall be made
of all dealings and transactions in relation to their
respective businesses and activities.
(ii) Except to the extent the Administrative Agent may reasonably
consent to any change, the Borrower will, or will cause each
Subsidiary to, continue to account for PIP in the same manner
as the Credit Parties account for PIP as of the Closing Date
which is as follows: (i) when PIP is received by any Credit
Parties, funds are initially allocated (a) as a debit to cash
on the Credit Parties' general ledger; and (B) as a
corresponding credit in a contra-account reserve established
with respect to the Credit Parties' accounts, with the funds
in such contra-account not specifically allocated to
identified accounts (the amount of funds in such
contra-account from time to time are referred to as "Unapplied
PIP"); (ii) at such time as the Borrower allocates any portion
of PIP to identified accounts, the contra-account for
Unapplied PIP is reduced by that amount and the identified
account is extinguished by that amount; and (iii) at such time
as the Borrower determines any portion of PIP represents an
overpayment under applicable Medicare, Medicaid, TRICARE,
CHAMPVA or any other program of any Governmental Authority,
Borrower transfers such overpaid portion on its books from the
contra-account for Unapplied PIP to a liability entry on its
general ledger entitled "PIP Settlements".
6.10. Restricted Payments. The Borrower will not, nor will it permit
any Subsidiary to, make any Restricted Payment (other than dividends payable in
its own capital stock) except that,
6.10.1 Any Subsidiary may declare and pay dividends or make
distributions (i) payable solely in its capital stock to the direct or indirect
holders of its capital stock or (ii)
56
payable in dividends and distributions to the Borrower or to a Subsidiary that
is a Guarantor (and if such Subsidiary has shareholders other than the Borrower
or a Subsidiary that is a Guarantor, to its shareholders on a pro rata basis).
6.10.2 The Borrower may make Restricted Payments pursuant to stock
incentive or award plans approved by its stockholders.
6.10.3 The Borrower may declare and pay dividends with respect to its
capital stock payable solely in additional shares of its capital stock (or
warrants, options, or other rights to acquire additional shares of its capital
stock).
6.10.4 Repurchases of capital stock deemed to occur upon exercise of
stock options if such capital stock represents a portion of the exercise price
of such options, and repurchases of capital stock of Subsidiaries consisting of
directors' qualifying shares or repurchases of shares issued to third parties to
the extent necessary to satisfy any licensing requirements under applicable law
with respect to the Borrower's or any of its Subsidiaries' businesses.
6.10.5 Cash payments in lieu of the issuance of fractional shares in
connection with the exercise of warrants, options or other securities
convertible into or exchangeable for capital stock of the Borrower; provided,
however, that any such cash payment shall not be for the purpose of evading the
limitations of this Section 6.10.
6.10.6 The Borrower may purchase, acquire, transfer or issue the
Borrower's capital stock and make any required cash payments or deliveries of
property under or in connection with the Convertible Note Offering.
6.10.7 Any purchase, repurchase, redemption, retirement or other
acquisition for value of shares of, or options to purchase shares of, capital
stock of the Borrower or any of its Subsidiaries from employees, former
employees, directors or former directors of the Borrower or any of its
Subsidiaries (or permitted transferees of such employees, former employees,
directors or former directors), pursuant to the terms of agreements (including
employment agreements) or plans (or amendments thereto) approved by the Board of
Directors under which such individuals purchase or sell or are granted the
option to purchase or sell, shares of such capital stock; provided, however,
that the aggregate amount of such purchases, repurchases, redemptions,
retirements and other acquisitions for value will not exceed $2,000,000 in any
calendar year.
6.10.8 Any Restricted Payment to the extent not otherwise permitted
under this Section 6.10 so long as at the time of such Restricted Payment the
aggregate amount of such additional Restricted Payment together with all other
outstanding Restricted Payments pursuant to this Section 6.10 does not exceed
$5,000,000.
6.10.9 Any Restricted Payment made by or to a Rabbi Trust or Rabbi
Trust Subsidiary.
6.10.10 So long as no Event of Default or Unmatured Event of Default
exists at the time thereof or would result therefrom (after giving pro forma
effect thereto), the
57
Borrower may declare and pay cash dividends on its capital stock,
repurchase and otherwise acquire its capital stock and make any other
Restricted Payment.
6.11. Merger or Dissolution. The Borrower will not, nor will it permit
any Subsidiary to, merge or consolidate into any other Person or dissolve,
except that:
6.11.1 A Guarantor may merge into (x) the Borrower or (y) a
Subsidiary that is a Guarantor or becomes a Guarantor promptly upon the
completion of the applicable merger or consolidation.
6.11.2 A Subsidiary that is not a Guarantor and not required
to be a Guarantor may merge or consolidate with or into any other
Person; provided, however, that if the equity interests of such
Subsidiary have been pledged to the Administrative Agent as Collateral,
then such merger or consolidation shall not be permitted unless such
Subsidiary is the surviving entity of such merger or consolidation or
such merger or consolidation is approved in writing by the
Administrative Agent prior to the consummation thereof (such approval
not to be unreasonably withheld).
6.11.3 The Borrower or any Subsidiary may consummate any
merger or consolidation in connection with any Permitted Acquisition.
6.11.4 Any Person may merge into the Borrower, provided that
the Borrower shall be the continuing or surviving entity resulting from
such merger.
6.11.5 Any Subsidiary may liquidate or dissolve if the
Borrower determines in good faith that such liquidation or dissolution
is in the best interests of the Borrower and the Subsidiaries and is
not materially disadvantageous to the Lenders.
6.12. Sale of Assets. The Borrower will not, nor will it permit any
Subsidiary to, lease, sell or otherwise dispose of its Property (other
than cash or cash equivalents not constituting Cash Equivalent
Investments) to any other Person, except:
6.12.1 Sales or other dispositions of inventory in the
ordinary course of business.
6.12.2 A disposition or transfer of assets by a Subsidiary to
the Borrower, by the Borrower to a Subsidiary, by a Subsidiary to a
Subsidiary or by or to a Rabbi Trust or Rabbi Trust Subsidiary.
6.12.3 A disposition of obsolete, excess, damaged or worn-out
Property, Property no longer used or useful in the business of the
Borrower or its Subsidiaries or other assets in the ordinary course of
business of the Borrower or any Subsidiary.
6.12.4 Sales or liquidations of Cash Equivalent Investments.
6.12.5 Each of the Borrower and its Subsidiaries may grant
licenses, sublicenses, leases or subleases to other Persons not
materially interfering with the conduct of the business of the Borrower
or any of its Subsidiaries.
58
6.12.6 Restricted Payments permitted by Section 6.10.
6.12.7 Investments permitted by Section 6.13.
6.12.8 Liens permitted by Section 6.15.
6.12.9 Sale and Leaseback Transactions permitted by Section
6.14.4.
6.12.10 Sales of directors' qualifying shares or shares issued
to third parties to the extent necessary to satisfy any licensing
requirements under applicable law with respect to the Borrower's or any
of its Subsidiaries' businesses.
6.12.11 Any lease, sale or other disposition of its Property
that, together with all other Property of the Borrower and its
Subsidiaries previously leased, sold or disposed of (other than
dispositions otherwise permitted by this Section 6.12) pursuant to this
Section 6.12.11 during the then-current fiscal year of the Borrower do
not exceed an amount in the aggregate equal to 5% of the aggregate book
value of the Borrower's and its Subsidiaries' Property as of the end of
the immediately preceding fiscal year.
6.13. Investments and Acquisitions. The Borrower will not, nor will it
permit any Subsidiary to, make any Investments (including without limitation,
loans and advances to, and other Investments in, Subsidiaries), or commitments
therefor, or to create any Subsidiary or to become or remain a partner in any
partnership or joint venture, or to make any Acquisition of any Person, except:
6.13.1 Cash Equivalent Investments.
6.13.2 Existing Investments in Subsidiaries and other
Investments in existence on the Closing Date and described in Schedule
6.13.
6.13.3 Investments permitted by Section 6.14.5.
6.13.4 Investments by a Credit Party in another Credit Party
or in any newly formed or acquired Subsidiary so long as the newly
formed or acquired Subsidiary promptly becomes a Credit Party
thereafter.
6.13.5 Any Investment by a Credit Party in any Subsidiary
thereof that is not a Credit Party so long as, at the time of such
Investment, the aggregate of such Investment together with all
outstanding Investments pursuant to this Section 6.13.5 (net of any
return of (but not return on) such Investments), when taken together
with intercompany loans and advances outstanding pursuant to Section
6.14.6 (net of all outstanding intercompany loans and advances
outstanding pursuant to Section 6. 14.5(ii)), do not at such time
exceed $10,000,000 in the aggregate.
6.13.6 Investments permitted by Section 6.17.
6.13.7 Investments consisting of Contingent Obligations not
prohibited by Section 6.14.
59
6.13.8 Investments arising out of deposits and pledges
permitted by Section 6.15.
6.13.9 Investments received in connection with the bankruptcy or
reorganization of, or settlement of delinquent accounts and disputes with,
customers and suppliers.
6.13.10 Investments resulting from transactions permitted by Section
6.11. 6.13.11 Investments resulting from transactions permitted by Section 6.12.
6.13.12 Loans and advances to employees, officers and directors of the Borrower
and its Subsidiaries not to exceed in the aggregate outstanding at any time
under this Section 6.13.12 (x) $6,000,000 in respect of split dollar policies
and (y) $2,000,000 in respect of other loans and advances.
6.13.13 Payroll, travel and similar advances to cover matters that are
expected at the time of such advances ultimately to be treated as expenses for
accounting purposes and that are made in the ordinary course of business.
6.13.14 Investments resulting from stock, obligations or securities
received in settlement of debts created in the ordinary course of business and
owing to the Borrower or any Subsidiary or in satisfaction of judgments.
6.13.15 Investments in any Person consisting of the licensing of
intellectual property pursuant to joint ventures, strategic alliances or joint
marketing arrangements with such Person, in each case made in the ordinary
course of business.
6.13.16 [Intentionally Omitted]
6.13.17 Any Investment in respect of Permitted Stock Transactions.
6.13.18 Any Investment in or by a Rabbi Trust or a Rabbi Trust
Subsidiary.
6.13.19 Any Investment so long as (x) such Investment is made in the
ordinary course of business and is consistent with past practice and (y) at the
time of such Investment the aggregate amount of such Investment together with
the aggregate amount of all outstanding Investments (net of return of (but not
return on) such Investments) pursuant to this Section 6.13.19 does not exceed
$10,000,000.
6.13.20 Acquisitions meeting the following requirements or otherwise
approved by the Required Lenders (each such Acquisition constituting a
"Permitted Acquisition"):
(i) as of the date of the consummation of such Acquisition, no
Event of Default or Unmatured Event of Default shall have
occurred and be continuing or would result from such
Acquisition, and the representation and warranty contained in
Section 5.11 shall be true both before and after giving effect
to such Acquisition;
60
(ii) such Acquisition is consummated on a non-hostile basis
pursuant to a negotiated acquisition agreement approved by the
board of directors or other applicable governing body of the
seller or entity to be acquired;
(iii) the business to be acquired in such Acquisition is similar or
related to one or more of the lines of business in which the
Borrower and its Subsidiaries are engaged on the Closing Date;
(iv) as of the date of the consummation of such Acquisition, all
material governmental and corporate approvals required in
connection therewith shall have been obtained;
(v) at any time the Leverage Ratio, after giving pro forma effect
to the applicable Acquisition, exceeds 3.00 to 1.00, the
aggregate of the Purchase Price for such Acquisition and all
prior Acquisitions during the then current calendar year
pursuant to this Section 6.13.20 shall not exceed $100,000,000
for such calendar year;
(vi) within 45 days (or such longer period as is consented to by
the Administrative Agent, such consent not to be unreasonably
withheld) subsequent to the consummation of such Permitted
Acquisition if the Purchase Price for such Acquisition exceeds
$50,000,000, the Borrower shall have delivered to the
Administrative Agent a pro forma consolidated balance sheet,
income statement and cash flow statement of the Borrower and
its Subsidiaries (the "Acquisition Pro Forma"), based on the
Borrower's most recent financial statements delivered pursuant
to Section 6.1.1 and using historical financial statements for
the acquired entity provided by the seller(s) or which shall
be complete and shall fairly present, in all material
respects, the financial condition and results of operations
and cash flows of the Borrower and its Subsidiaries in
accordance with Agreement Accounting Principles, but taking
into account such Permitted Acquisition and the funding of all
Credit Extensions in connection therewith, and such
Acquisition Pro Forma shall reflect that, on a pro forma
basis, the Borrower would have been in compliance with the
financial covenants set forth in Sections 6.20 through 6.23
for the period of four fiscal quarters reflected in the
compliance certificate most recently delivered to the
Administrative Agent pursuant to Section 6.1.3 prior to the
consummation of such Permitted Acquisition (giving effect to
such Permitted Acquisition and all Credit Extensions funded in
connection therewith as if made on the first day of such
period); and
(vii) within 45 days (or such longer period as is consented to by
the Administrative Agent, such consent not to be unreasonably
withheld) subsequent to the date on which a Permitted
Acquisition is consummated if the Purchase Price for such
Acquisition exceeds $50,000,000, the Borrower shall deliver to
the Administrative Agent a documentation, information and
certification package in form and substance reasonably
acceptable to the Administrative Agent, including, without
limitation:
61
(A) a final version (with no amendments to be made thereto that
could reasonably be expected to be materially adverse to the
Lenders, without the approval of the Administrative Agent) of
the acquisition agreement for such Acquisition together with
drafts of the material schedules thereto;
(B) a final version (with no amendments to be made thereto that
could reasonably be expected to be materially adverse to the
Lenders, without the approval of the Administrative Agent) of
all documents, instruments and agreements with respect to any
Indebtedness to be incurred or assumed in connection with such
Acquisition; and
(C) such other documents or information as shall be reasonably
requested by the Administrative Agent in connection with such
Acquisition.
(viii) within 45 days (or such longer period as is consented to by
the Administrative Agent, such consent not to be unreasonably
withheld) subsequent to the date on which a Permitted
Acquisition is consummated, the Borrower shall deliver (or
shall cause the delivery) to the Administrative Agent and the
Administrative Agent all of the Collateral Documents necessary
for the perfection (to the extent required by the Collateral
Documents) of a first priority Lien (subject to Liens
permitted by Section 6.15) in all of the Property to be
acquired (including, as applicable, equity interests in the
Person being acquired and such Person's Subsidiaries required
to constitute Collateral in accordance with the Collateral
Documents), all in accordance with the requirements of Section
6.25, and in each case together with opinions of counsel in
form and substance reasonably acceptable to the Administrative
Agent. The Borrower shall also deliver (or shall cause the
delivery) to the Administrative Agent, in accordance with
Section 6.24, a supplement to the Guaranty Agreement if the
Permitted Acquisition is an Acquisition of equities and the
Person being acquired will be a Required Guarantor Subsidiary
that is not being merged with the Borrower or any other
Subsidiary.
(ix) Any Investment made by the Borrower to enter into or perform
its obligations in respect of Permitted Stock Transactions.
6.13.21 So long as no Event of Default or Unmatured Event of
Default exists at the time thereof or would result therefrom (after
giving pro forma effect thereto), any Investment.
6.14. Indebtedness. The Borrower will not, nor will it permit any
Subsidiary to, create, incur or suffer to exist any Indebtedness, except:
6.14.1 The Secured Obligations.
6.14.2 Indebtedness existing on the Closing Date and described
in Schedule 6.14 (and renewals, refinancings or extensions thereof on
non-pricing terms and conditions, taken as a whole, not materially less
favorable to the applicable obligor than such existing Indebtedness and
in a principal amount not in excess of that outstanding as of the date
of
62
such renewal, refinancing or extension plus the amount of any interest, premium
or penalties required to be paid thereon plus fees and expenses associated
therewith).
6.14.3 Indebtedness arising under Rate Management Transactions
permitted under Section 6.17.
6.14.4 Secured or unsecured purchase money Indebtedness (including
Capitalized Leases) and Indebtedness in respect of Sale and Leaseback
Transactions that is incurred by the Borrower or any of its Subsidiaries after
the Closing Date to finance the acquisition of assets used in its business, if
(1) the total of all such Indebtedness for the Borrower and its Subsidiaries
taken together incurred on or after the Closing Date pursuant to this Section
6.14.4 shall not exceed an aggregate principal amount of $10,000,000 at any one
time outstanding, (2) such Indebtedness when incurred shall not exceed the
purchase price of the asset(s) financed, (3) no such Indebtedness shall be
refinanced for a principal amount in excess of the principal balance outstanding
thereon at the time of such refinancing plus the amount of any interest, premium
or penalties required to be paid thereon plus fees and expenses associated
therewith, and (4) any Lien securing such Indebtedness is permitted under
Section 6.15 (such Indebtedness being referred to herein as "Permitted Purchase
Money Indebtedness").
6.14.5 Indebtedness arising from intercompany loans and advances made
by (i) any Credit Party to any other Credit Party and (ii) any Subsidiary that
is not a Credit Party to any Credit Party; provided that all such Indebtedness
subject to clause (ii) shall be expressly subordinated to the Secured
Obligations pursuant to subordination provisions reasonably acceptable to the
Administrative Agent.
6.14.6 Indebtedness arising from an intercompany loan or advance made
by any Credit Party to any Subsidiary that is not a Credit Party so long as, at
the time of such loan or advance, the aggregate of such loan or advance together
with all other intercompany loans and advances outstanding pursuant to this
Section 6.14.6 (net of all intercompany loans and advances outstanding pursuant
to Section 6.14. 5(ii)), when taken together with Investments outstanding
pursuant to Section 6.13.5 (net of any return of (but not any return on) such
Investments) do not exceed at such time $10,000,000 in the aggregate.
6.14.7 Contingent Obligations of the Borrower of any Indebtedness or
obligations of any Subsidiary permitted under this Section 6.14.
6.14.8 Contingent Obligations of any Subsidiary of the Borrower that is
a Guarantor with respect to any Indebtedness of the Borrower or any other
Subsidiary permitted under this Section 6.14.
6.14.9 Indebtedness of any Subsidiary of the Borrower at the time such
Subsidiary is merged or consolidated with or into the Borrower or any Subsidiary
and is not created in contemplation of such event.
6.14.10 Indebtedness arising from judgments or orders in circumstances
not constituting an Event of Default.
63
6.14.11 Indebtedness incurred under Financial Contracts
entered into in the ordinary course of financial management and not for
speculative purposes.
6.14.12 Indebtedness in respect of performance bonds, bankers'
acceptances and surety or appeal bonds provided by the Borrower and its
Subsidiaries in the ordinary course of their business.
6.14.13 Indebtedness arising from the agreements of the
Borrower or a Subsidiary providing for indemnification, adjustment of
purchase price or similar obligations, in each case incurred in
connection with the disposition of any business, assets or a Subsidiary
of the Borrower in accordance with the terms of this Agreement other
than guarantees of Indebtedness incurred by any Person acquiring all or
any portion of such business, assets or Subsidiary for the purpose of
financing such acquisition.
6.14.14 Indebtedness arising from the honoring by a bank or
other financial institution of a check, draft or similar instrument
drawn against insufficient funds in the ordinary course of business,
provided that such Indebtedness is extinguished within five Business
Days of its incurrence.
6.14.15 Obligations arising from or representing deferred
compensation to employees of the Borrower or its Subsidiaries that
constitute or are deemed to be Indebtedness under Agreement Accounting
Principles and that are incurred in the ordinary course of business.
6.14.16 Indebtedness incurred by a Guarantor, to the extent
that the proceeds of such Indebtedness are used to repay Indebtedness
under this Agreement.
6.14.17 Indebtedness in an aggregate amount not to exceed
$50,000,000 at any time arising under or in connection with letters of
credit, bank guarantees, banker's acceptances, surety bonds or similar
obligations issued in connection with worker's compensation claims or
laws, unemployment insurance, old age pensions, or other social
security or retirement benefits, or similar legislation.
6.14.18 Up to $200,000,000 in aggregate principal amount of
the Convertible Notes issued pursuant to the Convertible Note Offering
so long as no Event of Default or Unmatured Event of Default is
outstanding at the time of the issuance thereof or would result upon
the issuance thereof (giving pro forma effect thereto).
6.14.19 Loans and advances to or from any Rabbi Trust or Rabbi
Trust Subsidiary.
6.14.20 Additional unsecured Indebtedness of the Borrower or
any Subsidiary, so long as at the time such Indebtedness is incurred no
Event of Default or Unmatured Event of Default is outstanding or would
result therefrom (giving pro forma effect thereto).
6.15. Liens. The Borrower will not, nor will it permit any Subsidiary
to, create, incur, or suffer to exist any Lien in, of or on the Property of the
Borrower or any of its Subsidiaries, except:
64
6.15.1 Liens securing Secured Obligations.
6.15.2 Liens for taxes, assessments or governmental charges or levies
on its Property if the same shall not at the time be delinquent or thereafter
can be paid without penalty, or are being contested in good faith and by
appropriate proceedings and for which reserves, if any, required in accordance
with Agreement Accounting Principles shall have been set aside on its books.
6.15.3 Liens imposed by law, such as landlords', wage earners',
carriers', warehousemen's and mechanics' liens and other similar liens arising
in the ordinary course of business which secure payment of obligations not more
than forty-five (45) days past due or which are being contested in good faith by
appropriate proceedings and for which reserves, if any, required in accordance
with Agreement Accounting Principles shall have been set aside on its books.
6.15.4 Liens arising out of pledges or deposits under worker's
compensation laws, unemployment insurance, old age pensions, or other social
security or retirement benefits, or similar legislation.
6.15.5 Liens existing on the Closing Date and described in Schedule
6.15.
6.15.6 Deposits securing liability to insurance carriers under
insurance or self-insurance arrangements or Indebtedness permitted under Section
6.14.17.
6.15.7 Deposits to secure the performance of bids, contracts (other
than for borrowed money), leases, public or statutory obligations, surety and
appeal bonds, contested taxes, the payment of rent, performance bonds and other
obligations of a like nature incurred in the ordinary course of business.
6.15.8 Easements, reservations, rights-of-way, zoning, building and
other restrictions, survey exceptions and other similar encumbrances as to real
property of the Borrower and its Subsidiaries which customarily exist on
properties of corporations engaged in similar activities and similarly situated
and which do not materially interfere with the conduct of the business of the
Borrower or such Subsidiary conducted at the property subject thereto.
6.15.9 Purchase money Liens securing Permitted Purchase Money
Indebtedness (as defined in Section 6.14); provided, that such Liens shall not
apply to any property of the Borrower or its Subsidiaries other than that
purchased with the proceeds of such Permitted Purchase Money Indebtedness.
6.15.10 Liens existing on any asset of any Subsidiary of the Borrower
at the time such Subsidiary becomes a Subsidiary and not created in
contemplation of such event.
6.15.11 Liens on any asset securing Indebtedness incurred or assumed
for the purpose of financing or refinancing all or any part of the cost of
acquiring or constructing such asset; provided that such Lien attaches to such
asset concurrently with or within eighteen (18) months after the acquisition or
completion or construction thereof.
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6.15.12 Liens existing on any asset of any Subsidiary of the Borrower
at the time such Subsidiary is merged or consolidated with or into the Borrower
or any Subsidiary and not created in contemplation of such event.
6.15.13 Liens existing on any asset prior to the acquisition thereof by
the Borrower or any Subsidiary and not created in contemplation thereof;
provided that such Liens do not encumber any other property or assets.
6.15.14 Liens arising out of the refinancing, extension, renewal or
refunding of any Indebtedness secured by any Lien permitted under this Section
6.15; provided that (a) such Indebtedness is not secured by any additional
assets, and (b) the principal amount of such Indebtedness secured by any such
Lien is not increased, except to the extent such increase includes interest,
premiums, penalties, fees and expenses paid in respect of refinancing,
extending, renewing or refunding such Indebtedness.
6.15.15 Bankers' liens and rights of set off with respect to customary
depositary arrangements entered into in the ordinary course of business.
6.15.16 Liens on assets of any Subsidiary of any Credit Party in favor
of any Credit Party securing borrowings from such Credit Party, and Liens on
assets of a Rabbi Trust or Rabbi Trust Subsidiary.
6.15.17 Liens in favor of customs and revenue authorities which secure
payment of customs duties in connection with the importation of goods.
6.15.18 Liens arising out of Capitalized Leases or Operating Leases.
6.15.19 Licenses, sublicenses, leases or subleases granted to others in
the ordinary course of business that do not interfere in any material respect
with the business of the Borrower and its Subsidiaries.
6.15.20 Liens arising from judgments, awards, orders or attachments in
circumstances not constituting an Event of Default.
6.15.21 Liens affecting the interest of the landlord of any ground
lease.
6.15.22 Liens securing Indebtedness permitted by Section 6.14.14.
6.15.23 Liens issued in favor of surety bonds in existence on the
Closing Date and identified on Schedule 6.15.
6.15.24 Liens of any landlord arising under a real property lease to
the extent such Liens arise in the ordinary course of business and secure
obligations not more than forty-five (45) days past due or which are being
contested in good faith by appropriate proceedings and for which reserves, if
any, required in accordance with Agreement Accounting Principles shall have been
set aside on its books.
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6.15.25 Liens in favor of any Holder of Secured Obligations
securing Rate Management Obligations permitted under Section 6.17.
6.15.26 Liens deemed to exist in connection with Cash
Equivalent Investments of the type described in clause (v) of the
definition thereof.
6.15.27 Rights of recoupment and any other Liens, rights and
benefits of any governmental Third Party Payor with respect to
Governmental Receivables.
6.15.28 Any Lien so long as the aggregate amount of
Indebtedness then outstanding secured thereby and by all other
outstanding Liens incurred pursuant to this Section 6.15.28 does not
exceed 5% of the total consolidated stockholders equity of the Borrower
as of the end of the immediately preceding fiscal year.
6.16. Transactions with Affiliates. The Borrower will not, and will not
permit any Subsidiary to, enter into any transaction (including, without
limitation, the purchase or sale of any Property or service) with, or make any
payment or transfer to, any Affiliate (other than the Borrower and its
Subsidiaries) except (i) pursuant to the reasonable requirements of the
Borrower's or such Subsidiary's business and upon terms no less favorable to the
Borrower or such Subsidiary than the Borrower or such Subsidiary would obtain in
a comparable arm's-length transaction, (ii) transactions between or among the
Credit Parties not involving any other Affiliate, (iii) transactions between or
among Subsidiaries that are not Guarantors not involving any other Affiliate and
transactions by or with a Rabbi Trust or Rabbi Trust Subsidiary, (iv) the
Borrower and its Subsidiaries may make loans and advances to directors,
officers, and employees of the Borrower and its Subsidiaries in the ordinary
course of business, (v) the Borrower and its Subsidiaries may make payments in
respect of transactions required to be made pursuant to agreements or
arrangements in effect on the Closing Date and set forth on Schedule 6.16, (vi)
the Borrower and its Subsidiaries may enter into, make payments under, or issue
securities, stock options or similar rights pursuant to employment arrangements,
employee benefit plans, equity option plans, indemnification provisions and
other compensatory arrangements with directors, officers, and employees of the
Borrower and its Subsidiaries in the ordinary course of business, so long as
such payments and issuances otherwise comply with the terms of this Agreement,
(vii) the Borrower and its Subsidiaries may make Restricted Payments permitted
by Section 6.10, (viii) the Borrower and its Subsidiaries may enter into
transactions permitted by Section 6.11, 6.12, 6.13 or 6.14, and (ix) the making
of severance payments to directors, officers or employees of VITAS Healthcare
that are required pursuant to arrangements in effect prior to the date that the
Borrower acquired VITAS Healthcare.
6.17. Financial Contracts. The Borrower will not, nor will it permit
any Subsidiary to, enter into or remain liable upon any Rate Management
Transactions except for those entered into in the ordinary course of business
for bona fide hedging purposes and not for speculative purposes and Permitted
Stock Transactions.
6.18. Subsidiary Covenants. The Borrower will not, and will not permit
any Subsidiary to, create or otherwise cause to become effective any consensual
encumbrance or restriction of any kind on the ability of any Subsidiary (i) to
pay dividends or make any other distribution on its stock, (ii) to pay any
Indebtedness or other obligation owed to the Borrower or any other
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Subsidiary, (iii) to make loans or advances or other Investments in the Borrower
or any other Subsidiary, or (iv) to sell, transfer or otherwise convey any of
its property to the Borrower or any other Subsidiary, except (A) any restriction
existing under (1) the Loan Documents, (2) agreements disclosed in Schedule
6.18, and (3) agreements with respect to Indebtedness permitted by this
Agreement setting forth provisions described in clauses (i), (ii) and (iii)
above that are not materially more restrictive (as reasonably determined by the
Administrative Agent), taken as a whole, than those of the Senior Unsecured
Indenture Documents, (B) customary non-assignment, subletting or transfer
provisions in leases, licenses and other contracts entered into in the ordinary
course of business, (C) customary restrictions contained in purchase and sale
agreements limiting the transfer of the subject assets pending closing, (D) any
restriction or condition as required by applicable law, (E) any restriction
existing under agreements relating to assets acquired by the Borrower or a
Subsidiary in a transaction permitted hereby; provided that such agreements
existed at the time of such acquisition, were not put into place in anticipation
of such acquisition and are not applicable to any assets other than assets so
acquired, (F) any restriction existing under any agreement of a Person acquired
as a Subsidiary in a transaction permitted hereby; provided any such agreement
existed at the time of such acquisition, was not put into place in anticipation
of such acquisition and was not applicable to any Person or assets other than
the Person or assets so acquired, (G) agreements with respect to Indebtedness
secured by Liens permitted by Section 6.15 that restrict the ability to transfer
the assets securing such Indebtedness, (H) any encumbrance or restriction
pursuant to an agreement effecting a refinancing of Indebtedness incurred
pursuant to an agreement referred to in clause (A)(2)(E) or (F) of this covenant
or this clause (H) or contained in any amendment to an agreement referred to in
clause (A)(2)(E) or (F) of this covenant or this clause (H) and (I) any
encumbrance or restriction on assets of a Rabbi Trust or a Rabbi Trust
Subsidiary; provided, however, that the encumbrances and restrictions contained
in any such refinancing agreement or amendment, taken as a whole, are not
materially more restrictive than the encumbrances and restrictions contained in
such predecessor agreements (as reasonably determined by the Administrative
Agent).
6.19. Contingent Obligations. The Borrower will not, nor will it permit
any Subsidiary to, make or suffer to exist any Contingent Obligation in respect
of Indebtedness of another Person (including, without limitation, any Contingent
Obligation with respect to the obligations of a Subsidiary), except (i) by
endorsement of instruments for deposit or collection in the ordinary course of
business, (ii) the Reimbursement Obligations (iii) any Contingent Obligation in
respect of the Secured Obligations, (iv) any Indebtedness permitted by Section
6.14.
6.20. Leverage Ratio. The Borrower will not permit the ratio (the
"Leverage Ratio"), determined as of the end of each of its fiscal quarters set
forth below, of (i) Consolidated Funded Indebtedness of the Borrower to (ii)
Consolidated EBITDA for the then most-recently ended four fiscal quarters
(subject to the remainder of this Section 6.20) to be greater than the
applicable "Maximum Leverage Ratio" set forth below:
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Fiscal Quarter Ending Maximum Leverage Ratio
--------------------- ----------------------
As of the Closing Date and 3.75 to 1.00
each of June 30, 2007,
September 30, 2007,
December 31, 2007 and
March 31, 2008
Each fiscal quarter thereafter 3.50 to 1.00
6.21. Fixed Charge Coverage Ratio. The Borrower will not permit the
ratio (the "Fixed Charge Coverage Ratio"), determined as of the end of each of
its fiscal quarters for the then most-recently ended four fiscal quarters of (i)
Consolidated EBITDA minus Consolidated Capital Expenditures to (ii) Consolidated
Interest Expense plus Consolidated Current Maturities during such period
(including, without limitation, Capitalized Lease Obligations) plus cash
dividends paid on the equity interests of the Borrower during such period plus
expenses for cash income taxes paid during such period, all calculated for the
Borrower and its Subsidiaries on a consolidated basis, to be less than 1.50 to
1.00.
6.22. Minimum Consolidated Net Worth. The Borrower will not permit
Consolidated Net Worth at the end of any fiscal quarter to be less than (i) the
Closing Date Net Worth Amount as of the end of such fiscal quarter plus (ii) 50%
of Consolidated Net Income (if positive) earned in each fiscal quarter beginning
with the fiscal quarter ending June 30, 2007.
6.23. Operating Leases. The Borrower will not, nor will it permit any
Subsidiary to, enter into or remain liable upon any Operating Lease, synthetic
lease or tax ownership operating lease, except for Operating Leases for which
the Borrower's and its Subsidiaries' annual aggregate payment obligations in
respect of fixed lease payments do not exceed $30,000,000.
6.24. Guarantors. The Borrower shall cause each Required Guarantor
Subsidiary to guarantee pursuant to the Guaranty Agreement or supplement thereto
the Secured Obligations. In furtherance of the above, the Borrower shall
promptly (and in any event within forty-five (45) days thereof) (i) provide
written notice to the Administrative Agent upon any Person becoming a Required
Guarantor Subsidiary, setting forth information in reasonable detail describing
all of the assets of such Person, (ii) cause such Person to execute a supplement
to the Guaranty Agreement and such other Collateral Documents as are necessary
for the Borrower and its Required Guarantor Subsidiaries to comply with Section
6.25, (iii) cause the Applicable Pledge Percentage of the issued and outstanding
equity interests of such Person to be delivered to the Administrative Agent
(together with undated stock powers signed in blank, if applicable) and pledged
to the Administrative Agent pursuant to an appropriate pledge agreement(s) in
substantially the form of the Pledge and Security Agreement (or joinder or other
supplement thereto) and otherwise in form reasonably acceptable to the
Administrative Agent and (iv) deliver such other documentation as the
Administrative Agent may reasonably request in connection with the foregoing,
including, without limitation, certified resolutions and other authority
documents of such Person and, to the extent requested by the Administrative
Agent, favorable opinions of counsel to such Person (which shall cover, among
other things, the
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legality, validity, binding effect and enforceability of the documentation
referred to above), all in form, content and scope reasonably satisfactory to
the Administrative Agent.
6.25. Collateral. The Borrower will cause, and will cause each other
Credit Party to cause, such of its owned Property (but in any event excluding
real property) that constitutes Collateral pursuant to the Collateral Documents
to be subject at all times to Liens in favor of the Administrative Agent for the
benefit of the Holders of Secured Obligations, to secure the Secured Obligations
in accordance with the terms and conditions of the Collateral Documents, subject
in any case to Liens permitted by Section 6.15 hereof; provided, however, that
the Borrower and the other Credit Parties shall not be required to comply with
the terms of the Federal Assignment of Claims Act in connection with their
pledge of any Collateral to the Administrative Agent. The Pledge and Security
Agreement sets forth the types of Property required to be subject to such Liens
and the priority of such Liens. Without limiting the generality of the
foregoing, the Borrower will cause the Applicable Pledge Percentage of the
issued and outstanding equity interests of each Pledge Subsidiary directly owned
by the Borrower or any other Credit Party to be subject at all times to a first
priority, perfected Lien in favor of the Administrative Agent in accordance with
the terms and conditions of this Agreement and the Collateral Documents or such
other security documents as the Administrative Agent shall reasonably request,
in each case to the extent, and within such time period as is, reasonably
required by the Administrative Agent, subject in any case to Liens permitted by
Section 6.15. Notwithstanding the foregoing, (i) no Credit Party shall be
required to pledge (A) the equity interests of Roto-Rooter of Canada, Ltd., VNF,
or any Rabbi Trust or Rabbi Trust Subsidiary (B) more than 40% of the equity
interests of RR Plumbing Services Corporation, (C) more than 49% of the equity
interests of Complete Plumbing Services Inc., or (D) more than 80% of the equity
interests of Nurotoco of New Jersey, Inc.; provided, however, that, except to
the extent necessary to satisfy any licensing requirement under applicable law
with respect to the Borrower's or any Subsidiary's business, the Borrower will
not permit, nor will it permit any other Credit Party to, grant a security
interest in, pledge or deliver to any non-Credit Party those equity interests
that are not pledged or delivered to the Administrative Agent pursuant to this
Section 6.25; and (ii) no pledge agreement in respect of the equity interests of
a Foreign Subsidiary shall be required hereunder to the extent such pledge
thereunder is prohibited by applicable law or its counsel reasonably determines
that such pledge would not provide material credit support for the benefit of
the Holders of Secured Obligations pursuant to legally valid, binding and
enforceable pledge agreements.
6.26. Credit Parties' Asset Value. The Borrower will not permit, and
will not allow the Credit Parties to permit, the Credit Parties' Asset Value, as
determined as of the end of each of its fiscal quarters, to fall below
$700,000,000.
6.27. Prepayment of Senior Unsecured Notes. The Borrower shall fully
repay all amounts outstanding under and shall terminate the Senior Unsecured
Notes and other Senior Unsecured Indenture Documents within five Business Days
after the Closing Date.
6.28. Convertible Note Offering. Notwithstanding anything to the
contrary set forth herein, (i) so long as no Event of Default or Unmatured Event
of Default is then outstanding or would result therefrom, nothing in this
Agreement or the other Loan Documents shall prohibit the Borrower from
consummating the Convertible Note Offering, and (ii) nothing in this
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Agreement or the other Loan Documents shall prohibit the Borrower from
converting the Convertible Notes into cash and shares of the Borrower's capital
stock or other property or otherwise exchanging, transferring or issuing shares
of the Borrower's capital stock or other property in connection with the
Convertible Note Offering or making any required cash payments or deliveries of
property under or in connection with the Convertible Note Offering or otherwise
performing its obligations under the Convertible Notes or Permitted Stock
Transactions.
ARTICLE VII
EVENTS OF DEFAULT
The occurrence of any one or more of the following events shall
constitute an Event of Default:
7.1 Any representation or warranty made or deemed made by or on behalf
of the Borrower or any of its Subsidiaries to the Lenders or the Administrative
Agent under or in connection with this Agreement, any Credit Extension, or any
certificate or information delivered in connection with this Agreement or any
other Loan Document shall be false in any material respect on the date as of
which made or deemed made.
7.2 Nonpayment of (i) principal of any Loan when due, (ii) any
Reimbursement Obligation within one Business Day after the same becomes due, or
(iii) interest upon any Loan or any Commitment Fee, LC Fee or other Obligations
under any of the Loan Documents within five (5) Business Days after such
interest, fee or other Obligation becomes due.
7.3 The breach by the Borrower of any of the terms or provisions of
Section 6.2, 6.10, 6.11, 6.12, 6.13, 6.14, 6.15, 6.16, 6.17, 6.18, 6.19, 6.20,
6.21, 6.22, 6.23, 6.24, 6.25, 6.26, and 6.27.
7.4 The breach by the Borrower (other than a breach which constitutes
an Event of Default under another Section of this Article VII) of any of the
terms or provisions of (i) this Agreement or (ii) any other Loan Document
(beyond the applicable grace period with respect thereto, if any), in each case
which is not remedied within thirty (30) days after written notice thereof from
the Administrative Agent to the Borrower.
7.5 Failure of the Borrower or any of its Subsidiaries to pay when due
any Material Indebtedness (subject to any applicable grace period with respect
thereto, if any, set forth in the Material Indebtedness Agreement evidencing
such Material Indebtedness) which failure has not been (i) timely cured or (ii)
waived in writing by the requisite holders of such Material Indebtedness; or the
default by the Borrower or any of its Subsidiaries in the performance (beyond
the applicable grace period with respect thereto, if any) of any term, provision
or condition contained in any Material Indebtedness Agreement and such default
has not been (x) timely cured or (y) waived in writing by the requisite holders
of the Material Indebtedness in respect thereof, or any other event shall occur
or condition exist, the effect of which default, event or condition is to cause,
or to permit the holder(s) of such Material Indebtedness or the lender(s) under
any Material Indebtedness Agreement to cause, such Material Indebtedness to
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become due prior to its stated maturity or any commitment to lend under any
Material Indebtedness Agreement to be terminated prior to its stated expiration
date; or any Material Indebtedness of the Borrower or any of its Subsidiaries
shall be declared to be due and payable or required to be prepaid or repurchased
(other than by a regularly scheduled payment) prior to the stated maturity
thereof, in each case other than secured Indebtedness that becomes due as a
result of the voluntary sale or transfer of the Property securing such
Indebtedness; or the Borrower or any of its Subsidiaries shall not pay, or admit
in writing its inability to pay, its debts generally as they become due.
7.6 The Borrower or any of its Subsidiaries shall (i) have an order
for relief entered with respect to it under the Federal bankruptcy laws as now
or hereafter in effect, (ii) make an assignment for the benefit of creditors,
(iii) apply for, seek, consent to, or acquiesce in, the appointment of a
receiver, custodian, trustee, examiner, liquidator or similar official for it or
any Substantial Portion of its Property, (iv) institute any proceeding seeking
an order for relief under the Federal bankruptcy laws as now or hereafter in
effect or seeking to adjudicate it a bankrupt or insolvent, or seeking
dissolution, winding up, liquidation, reorganization, arrangement, adjustment or
composition of it or its debts under any law relating to bankruptcy, insolvency
or reorganization or relief of debtors or fail to file an answer or other
pleading denying the material allegations of any such proceeding filed against
it, or (v) take any corporate or partnership action to authorize or effect any
of the foregoing actions set forth in this Section 7.6.
7.7 Without the application, approval or consent of the Borrower or
any of its Subsidiaries, a receiver, trustee, examiner, liquidator or similar
official shall be appointed for the Borrower or any of its Subsidiaries or any
Substantial Portion of its Property, or a proceeding described in Section
7.6(iv) shall be instituted against the Borrower or any of its Subsidiaries and
such appointment continues undischarged or such proceeding continues undismissed
or unstayed for a period of sixty (60) consecutive days.
7.8 The Borrower or any of its Subsidiaries shall fail within thirty
(30) days to pay, bond or otherwise discharge one or more judgments or orders
for the payment of money in excess of $20,000,000 (or the equivalent thereof in
currencies other than Dollars) in the aggregate, which judgment(s), in any such
case, is/are not stayed on appeal or otherwise being appropriately contested in
good faith.
7.9 The Unfunded Liabilities of all Single Employer Plans shall exceed
$5,000,000 in the aggregate, or any Reportable Event shall occur in connection
with any Plan and such Reportable Event would reasonably be expected to have a
Material Adverse Effect.
7.10 Any Change of Control shall occur.
7.11 The Borrower or any other member of the Controlled Group shall
have been notified by the sponsor of a Multiemployer Plan that it has incurred,
pursuant to Section 4201 of ERISA, withdrawal liability to such Multiemployer
Plan in an amount which, when aggregated with all other amounts required to be
paid to Multiemployer Plans by the Borrower or any other member of the
Controlled Group as withdrawal liability (determined as of the date of such
notification), exceeds $5,000,000 or requires payments exceeding $5,000,000 per
annum.
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7.12 The Borrower or any other member of the Controlled Group shall
have been notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization or is being terminated, within the
meaning of Title IV of ERISA, if as a result of such reorganization or
termination the aggregate annual contributions of the Borrower and the other
members of the Controlled Group (taken as a whole) to all Multiemployer Plans
which are then in reorganization or being terminated have been or will be
increased, in the aggregate, over the annual amounts contributed to such
Multiemployer Plans for the respective plan years of such Multiemployer Plans
immediately preceding the plan year in which the reorganization or termination
occurs by an amount exceeding $5,000,000.
7.13 Other than with respect to environmental proceedings,
investigations, violations, or liabilities disclosed by the Borrower to the
Administrative Agent and the Lenders prior to the Closing Date, the Borrower or
any of its Subsidiaries shall (i) be the subject of any proceeding or
investigation pertaining to the release by the Borrower, any of its Subsidiaries
or any other Person of any toxic or hazardous waste or substance into the
environment, or (ii) violate any Environmental Law, which, in the case of an
event described in clause (i) or clause (ii), has resulted in liability to the
Borrower or any of its Subsidiaries in an amount equal to $5,000,000 or more,
which liability is not paid, bonded or otherwise discharged within forty-five
(45) days or which is not stayed on appeal and being appropriately contested in
good faith.
7.14 Any Loan Document shall fail to remain in full force or effect or
any action shall be taken by the Borrower to assert the invalidity or
unenforceability of, or which results in the invalidity or unenforceability of,
any Loan Document or any Lien in favor of the Administrative Agent under the
Loan Documents as to assets that are material to the Borrower and its
Subsidiaries taken as a whole, or such Lien shall not have the priority
contemplated by the Loan Documents, except (i) as a result of the sale or other
disposition of the applicable Collateral in a transaction permitted under the
Loan Documents or (ii) as a result of the Administrative Agent's failure to
maintain possession of any stock certificates, promissory notes or other
instruments delivered to it under any Loan Document or as a result of the
negligent or willful failure of the Administrative Agent to take such action as
is necessary to continue such Liens.
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1. Acceleration.
(i) If any Event of Default described in Section 7.6 or 7.7 occurs
with respect to the Borrower, the obligations of the Lenders
to make Loans hereunder and the obligation and power of the LC
Issuer to issue Facility LCs shall automatically terminate and
the Secured Obligations shall immediately become due and
payable without any election or action on the part of the
Administrative Agent, the LC Issuer or any Lender, and the
Borrower will be and become thereby unconditionally obligated,
without any further notice, act or demand, to pay the
Administrative Agent an amount in immediately available funds,
which funds shall be held in the Facility LC Collateral
Account, equal to the difference of (x) the amount of LC
Obligations at such time less (y) the amount or deposit in the
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Facility LC Collateral Account at such time which is free and
clear of all rights and claims of third parties and
has not been applied against the Secured Obligations
(the "Collateral Shortfall Amount"). If any other
Event of Default occurs, the Required Lenders (or the
Administrative Agent with the consent of the Required
Lenders) may (a) terminate or suspend the obligations
of the Lenders to make Loans hereunder and the
obligation and power of the LC Issuer to issue
Facility LCs, or declare the Secured Obligations to
be due and payable, or both, whereupon the Secured
Obligations shall become immediately due and payable,
without presentment, demand, protest or notice of any
kind, all of which the Borrower hereby expressly
waives and (b) upon notice to the Borrower and in
addition to the continuing right to demand payment of
all amounts payable under this Agreement, make demand
on the Borrower to pay, and the Borrower will
forthwith upon such demand and without any further
notice or act pay to the Administrative Agent the
Collateral Shortfall Amount which funds shall be
deposited in the Facility LC Collateral Account.
(ii) If at any time while any Event of Default is continuing, the
Administrative Agent determines that the Collateral Shortfall
Amount at such time is greater than zero, the Administrative
Agent may make demand on the Borrower to pay, and the Borrower
will, forthwith upon such demand and without any further
notice or act, pay to the Administrative Agent the Collateral
Shortfall Amount, which funds shall be deposited in the
Facility LC Collateral Account.
(iii) While an Event of Default is continuing, the Administrative
Agent may at any time or from time to time after funds are
deposited in the Facility LC Collateral Account, apply such
funds to the payment of the Secured Obligations in respect of
Facility LCs and any other amounts as shall from time to time
have become due and payable by the Borrower to the Lenders or
the LC Issuer under the Loan Documents.
(iv) At any time while any Event of Default is continuing, neither
the Borrower nor any Person claiming on behalf of or through
the Borrower shall have any right to withdraw any of the funds
held in the Facility LC Collateral Account. After all of the
Secured Obligations have been indefeasibly paid in full and
the Aggregate Revolving Loan Commitment and Aggregate Term
Loan Commitment have been terminated, any funds remaining in
the Facility LC Collateral Account shall be paid to the
Administrative Agent or paid to whomever may be legally
entitled thereto at such time.
(v) If, after acceleration of the maturity of the Obligations or
termination of the obligations of the Lenders to make Loans
and the obligation and power of the LC Issuer to issue
Facility LCs hereunder as a result of any Event of Default
(other than any Event of Default as described in Section 7.6
or 7.7 with respect to the Borrower) and before any judgment
or decree for the payment of the Obligations due shall have
been obtained or entered, the Required Lenders (in their sole
discretion) shall so direct, the Administrative Agent shall,
by notice to the Borrower, rescind and annul such acceleration
and/or termination.
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8.2. Amendments. Subject to the provisions of this Section 8.2, the
Required Lenders (or the Administrative Agent with the consent in writing of the
Required Lenders) and the Borrower may enter into agreements supplemental hereto
for the purpose of adding or modifying any provisions to the Loan Documents or
changing in any manner the rights of the Lenders or the Borrower hereunder or
thereunder or waiving any Event of Default hereunder or thereunder; provided,
however, that no such supplemental agreement shall, without the consent of each
Lender directly and adversely affected thereby:
8.2.1 Extend the Revolving Loan Termination Date, extend the
final maturity of any Revolving Loan or extend the expiry date of any
Facility LC to a date after the Revolving Loan Termination Date (except
as expressly permitted in Section 2.20.1), extend the final maturity
date of any Term Loan to a date after the Term Loan Maturity Date, or
postpone any regularly scheduled payment of principal of any Loan or
forgive all or any portion of the principal amount thereof, or any
Reimbursement Obligation related thereto, or reduce the rate or extend
the time of payment of interest or fees thereon or Reimbursement
Obligations related thereto (other than (x) a waiver of the application
of the default rate of interest pursuant to Section 2.11 hereof and (y)
any reduction of the amount of or any modification of the payment date
for the mandatory payments required under Section 2.2, in each case
which shall only require the approval of the Required Lenders);
8.2.2 Except pursuant to Section 2.5.3, increase the amount of
the Revolving Loan Commitment or Term Loan Commitment of any Lender
hereunder, or permit the Borrower to assign its rights or obligations
under this Agreement;
provided, further, that no such supplemental agreement shall, without the
consent of all of the Lenders:
8.2.3 Reduce the percentage specified in the definition of
Required Lenders or any other percentage of Lenders specified to be the
applicable percentage in this Agreement to act on specified matters or
amend the definition of "Pro Rata Share", "Revolving Loan Pro Rata
Share" or "Term Loan Pro Rata Share";
8.2.4 Amend Section 8.2, Section 11.1 or Section 11.2;
8.2.5 Other than in connection with a transaction
permitted under this Agreement, release all or substantially all of
the Collateral;
8.2.6 Other than in connection with a transaction permitted
under this Agreement, release all or substantially all of the
Guarantors from their obligations under the Guaranty Agreement or any
other agreement pursuant to which such Guarantors guarantee the
repayment of the Secured Obligations.
Notwithstanding the foregoing, no Lender's consent shall be required for any
amendment, modification or waiver if (i) by the terms of such amendment,
modification or waiver the Revolving Loan Commitment and the Term Loan
Commitment, as applicable, of such Lender shall terminate upon the effectiveness
of such amendment, modification or waiver and (ii) at the time such amendment,
modification or waiver becomes effective, such Lender receives payment
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in full of all of the Obligations (other than obligations to pay fees and
expenses with respect to which the Borrower has not received an invoice, Rate
Management Obligations, contingent indemnity obligations and other contingent
obligations) owing to it under the Loan Documents. No amendment of any provision
of this Agreement relating to the Administrative Agent shall be effective
without the written consent of the Administrative Agent. The Administrative
Agent may waive payment of the fee required under Section 12.3.3 without
obtaining the consent of any other party to this Agreement. No amendment of any
provision of this Agreement relating to the Swing Line Lender or any Swing Line
Loan shall be effective without the written consent of the Swing Line Lender. No
amendment of any provision of this Agreement relating to the LC Issuer shall be
effective without the written consent of the LC Issuer.
Notwithstanding the foregoing, this Agreement may be amended (or amended and
restated) with the written consent of the Required Lenders, the Administrative
Agent and the Borrower (a) to add one or more additional credit facilities to
this Agreement and to permit extensions of credit from time to time outstanding
thereunder and the accrued interest and fees in respect thereof to share ratably
in the benefits of this Agreement and the other Loan Documents with the Term
Loans and the Revolving Loans and the accrued interest and fees in respect
thereof and (b) to include appropriately the Lenders holding such credit
facilities in any determination of the Required Lenders.
Notwithstanding the foregoing, increases in Commitments pursuant to Section
2.5.3 shall be effected under this Agreement pursuant to an amendment (an
"Incremental Amendment") to this Agreement and, as appropriate, the other Loan
Documents, executed by the Borrower, each Lender agreeing to provide such
Commitment, if any, each Proposed New Lender, if any, and the Administrative
Agent. The Incremental Amendment may, without the consent of any other Lenders,
effect such amendments to this Agreement and the other Loan Documents as may be
necessary or appropriate, in the reasonable opinion of the Administrative Agent
and the Borrower, to effect the provisions of this Section.
8.3. Preservation of Rights. No delay or omission of the Lenders, the
LC Issuer or the Administrative Agent to exercise any right under the Loan
Documents shall impair such right or be construed to be a waiver of any Event of
Default or an acquiescence therein, and the making of a Credit Extension
notwithstanding the existence of an Event of Default or Unmatured Event of
Default or the inability of the Borrower to satisfy the conditions precedent to
such Credit Extension shall not constitute any waiver or acquiescence. Any
single or partial exercise of any such right shall not preclude other or further
exercise thereof or the exercise of any other right, and no waiver, amendment or
other variation of the terms, conditions or provisions of the Loan Documents
whatsoever shall be valid unless in writing signed by, or by the Administrative
Agent with the consent of, the requisite number of Lenders required pursuant to
Section 8.2, and then only to the extent in such writing specifically set forth.
All remedies contained in the Loan Documents or by law afforded shall be
cumulative and all shall be available to the Administrative Agent, the LC Issuer
and the Lenders until all of the Secured Obligations have been paid in full.
Except with respect to the exercise of setoff rights of any Lender, including
any LC Issuer, in accordance with the terms of this Agreement, the proceeds of
which are applied in accordance with this Agreement, each Lender agrees that it
will not take any action, nor institute any actions or proceedings, against the
Borrower or any other Credit Party, or with respect to any Loan Document,
without the prior written consent of the Required Lenders or, as
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may be provided in this Agreement or the other Loan Documents, with the consent
of the Administrative Agent or all of the Lenders, as the case may be.
ARTICLE IX
GENERAL PROVISIONS
9.1. Survival of Representations. All representations and warranties
of the Borrower contained in this Agreement shall survive the making of the
Credit Extensions herein contemplated.
9.2. Governmental Regulation. Anything contained in this Agreement to
the contrary notwithstanding, neither the LC Issuer nor any Lender shall be
obligated to extend credit to the Borrower in violation of any limitation or
prohibition provided by any applicable statute or regulation.
9.3. Headings. Section headings in the Loan Documents are for
convenience of reference only, and shall not govern the interpretation of any of
the provisions of the Loan Documents.
9.4. Entire Agreement. The Loan Documents embody the entire agreement
and understanding among the Borrower, the Administrative Agent, the LC Is suer
and the Lenders and supersede all prior agreements and understandings among the
Borrower, the Administrative Agent, the LC Issuer and the Lenders relating to
the subject matter thereof other than those contained in the fee letter
described in Section 10.13 which shall survive and remain in full force and
effect during the term of this Agreement.
9.5. Several Obligations; Benefits of this Agreement. The respective
obligations of the Lenders hereunder are several and not joint and no Lender
shall be the partner or agent of any other (except to the extent to which the
Administrative Agent is authorized to act as such). The failure of any Lender to
perform any of its obligations hereunder shall not relieve any other Lender from
any of its obligations hereunder. This Agreement shall not be construed so as to
confer any right or benefit upon any Person other than the parties to this
Agreement and their respective successors and assigns, provided, however, that
the parties hereto expressly agree that the Arranger shall enjoy the benefits of
the provisions of Sections 9.6, 9.10 and 10.11 to the extent specifically set
forth therein and shall have the right to enforce such provisions on its own
behalf and in its own name to the same extent as if it were a party to this
Agreement.
9.6. Expenses; Indemnification. (i) The Borrower shall reimburse the
Administrative Agent and the Arranger for any reasonable out-of-pocket costs and
expenses (including reasonable out-of-pocket attorneys' fees and out-of-pocket
expenses of and fees for other advisors and professionals engaged by the
Administrative Agent or the Arranger) paid or incurred by the Administrative
Agent or the Arranger in connection with the investigation, preparation,
negotiation, documentation, execution, delivery, syndication, distribution
(including, without limitation, via the internet), review, amendment,
modification and administration of the Loan Documents. The Borrower also agrees
to reimburse the Administrative Agent, the Arranger, the LC Issuer and the
Lenders for any reasonable out-of-pocket costs and expenses
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(including reasonable out-of-pocket attorneys' fees and expenses) paid or
incurred by the Administrative Agent, the Arranger, the LC Issuer or any Lender
in connection with the collection and enforcement of the Loan Documents.
Expenses being reimbursed by the Borrower under this Section include, without
limitation, costs and expenses incurred in connection with the Reports described
in the following sentence. The Borrower acknowledges that from time to time
JPMorgan Chase may prepare and may distribute to the Lenders (but shall have no
obligation or duty to prepare or to distribute to the Lenders) certain audit
reports (the "Reports") pertaining to the Borrower's assets for internal use by
JPMorgan Chase from information furnished to it by or on behalf of the Borrower,
after JPMorgan Chase has exercised its rights of inspection pursuant to this
Agreement.
(ii) The Borrower hereby further agrees to indemnify the
Administrative Agent, the Arranger, the LC Issuer, each Lender, their respective
affiliates, and each of their directors, officers and employees against all
losses, claims, damages, penalties, judgments, liabilities and related
reasonable out-of-pocket expenses (including, without limitation, all reasonable
out-of-pocket expenses of litigation or preparation therefor whether or not the
Administrative Agent, the Arranger, the LC Is suer, any Lender or any affiliate
is a party thereto, and all reasonable out-of-pocket attorneys' fees and
expenses) which any of them may pay or incur arising out of or relating to this
Agreement, the other Loan Documents, the transactions contemplated hereby or the
direct or indirect application or proposed application of the proceeds of any
Credit Extension hereunder except to the extent that they are determined in a
final non-appealable judgment by a court of competent jurisdiction to have
resulted from the gross negligence or willful misconduct of the party seeking
indemnification. The obligations of the Borrower under this Section 9.6 shall
survive the termination of this Agreement.
9.7. Numbers of Documents. All statements, notices, closing documents,
and requests hereunder shall be furnished to the Administrative Agent with
sufficient counterparts so that the Administrative Agent may furnish one to each
of the Lenders, to the extent that the Administrative Agent deems appropriate.
9.8. Accounting. Except as provided to the contrary herein, all
accounting terms used in the calculation of any financial covenant or test shall
be interpreted and all accounting determinations hereunder in the calculation of
any financial covenant or test shall be made in accordance with Agreement
Accounting Principles. If any changes in generally accepted accounting
principles are hereafter required or permitted and are adopted by the Borrower
or any of its Subsidiaries with the agreement of its independent certified
public accountants and such changes result in a change in the method of
calculation of any of the financial covenants, tests, restrictions or standards
herein or in the related definitions or terms used therein ("Accounting
Changes"), the parties hereto agree, at the Borrower's request, to enter into
negotiations, in good faith, in order to amend such provisions in a credit
neutral manner so as to reflect equitably such changes with the desired result
that the criteria for evaluating the Borrower's and its Subsidiaries' financial
condition shall be the same after such changes as if such changes had not been
made; provided, however, until such provisions are amended in a manner
reasonably satisfactory to the Administrative Agent and the Required Lenders, no
Accounting Change shall be given effect in such calculations. In the event such
amendment is entered into, all references in this Agreement to Agreement
Accounting Principles shall mean generally accepted accounting principles as of
the date of such amendment. Notwithstanding the foregoing, all financial
statements to be
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delivered by the Borrower pursuant to Section 6.1 shall be prepared in
accordance with generally accepted accounting principles in effect at such time.
9.9. Severability of Provisions. Any provision in any Loan Document
that is held to be inoperative, unenforceable, or invalid in any jurisdiction
shall, as to that jurisdiction, be inoperative, unenforceable, or invalid
without affecting the remaining provisions in that jurisdiction or the
operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are declared
to be severable.
9.10. Nonliability of Lenders. The relationship between the Borrower on
the one hand and the Lenders, the LC Is suer and the Administrative Agent on the
other hand shall be solely that of borrower and lender. Neither the
Administrative Agent, the Arranger, the LC Is suer nor any Lender shall have any
fiduciary responsibilities to the Borrower. Neither the Administrative Agent,
the Arranger, the LC Is suer nor any Lender undertakes any responsibility to the
Borrower to review or inform the Borrower of any matter in connection with any
phase of the Borrower's business or operations. The Borrower agrees that neither
the Administrative Agent, the Arranger, the LC Issuer nor any Lender shall have
liability to the Borrower (whether sounding in tort, contract or otherwise) for
losses suffered by the Borrower in connection with, arising out of, or in any
way related to, the transactions contemplated and the relationship established
by the Loan Documents, or any act, omission or event occurring in connection
therewith, unless it is determined in a final non-appealable judgment by a court
of competent jurisdiction that such losses resulted from the gross negligence or
willful misconduct of the party from which recovery is sought. Neither the
Administrative Agent, the Arranger, the LC Is suer nor any Lender shall have any
liability to the Borrower with respect to, and the Borrower hereby waives,
releases and agrees not to sue for, any special, indirect, consequential or
punitive damages suffered by the Borrower in connection with, arising out of, or
in any way related to the Loan Documents or the transactions contemplated
thereby.
9.11. Confidentiality. The Administrative Agent and each Lender agrees
to hold the "Information" (as defined below) which it may receive from the
Borrower in connection with this Agreement in confidence, except for disclosure
(i) on a confidential basis to its Affiliates and to any other party to this
Agreement, (ii) on a confidential basis to legal counsel, accountants, and other
professional advisors to such Lender, (iii) to regulatory officials as
requested, (iv) to any Person as required by law, regulation, or legal process,
(v) to any Person as required in connection with any legal proceeding to which
it is a party, (vi) subject to an agreement containing provisions substantially
the same as those of this Section, on a confidential basis to its direct or
indirect contractual counterparties in swap agreements or to legal counsel,
accountants and other professional advisors to such counterparties, and (vii)
permitted by Section 12.4. Without limiting Section 9.4, the Borrower agrees
that the terms of this Section 9.11 shall set forth the entire agreement between
the Borrower and each Lender (including the Administrative Agent) with respect
to any confidential information previously or hereafter received by such Lender
in connection with this Agreement, and this Section 9.11 shall supersede any and
all prior confidentiality agreements entered into by such Lender with respect to
such confidential information. For the purposes of this Section, "Information"
means all information received from the Borrower or any of its Subsidiaries
relating to the Borrower or any of its Subsidiaries or their respective
businesses, as the case may be, other than any such information that is
available to the Administrative Agent, the LC Issuer or any Lender on a
nonconfidential basis.
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EACH LENDER ACKNOWLEDGES THAT INFORMATION AS DEFINED IN THIS
SECTION 9.11 FURNISHED TO IT PURSUANT TO THIS AGREEMENT MAY INCLUDE MATERIAL
NON-PUBLIC INFORMATION CONCERNING THE BORROWER AND ITS AFFILIATES OR THEIR
RESPECTIVE SECURITIES, AND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE PROCEDURES
REGARDING THE USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT IT WILL HANDLE
SUCH MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE PROCEDURES AND
APPLICABLE LAW, INCLUDING FEDERAL AND STATE SECURITIES LAWS.
ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS
FURNISHED BY THE BORROWER OR THE ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE
COURSE OF ADMINISTERING THIS AGREEMENT WILL BE SYNDICATE-LEVEL INFORMATION,
WHICH MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION ABOUT THE BORROWER AND ITS
AFFILIATES, THE CREDIT PARTIES AND THEIR AFFILIATES OR ANY OF THEIR RESPECTIVE
SECURITIES. ACCORDINGLY, EACH LENDER REPRESENTS TO THE BORROWER AND THE
ADMINISTRATIVE AGENT THAT IT HAS IDENTIFIED IN AN ADMINISTRATIVE QUESTIONNAIRE
DELIVERED TO THE ADMINISTRATIVE AGENT A CREDIT CONTACT WHO MAY RECEIVE
INFORMATION THAT MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH
ITS COMPLIANCE PROCEDURES AND APPLICABLE LAW.
9.12. Lenders Not Utilizing Plan Assets. Each Lender represents and
warrants that none of the consideration used by such Lender to make its Credit
Extensions constitutes for any purpose of ERISA or Section 4975 of the Code
assets of any "plan" as defined in Section 3(3) of ERISA or Section 4975 of the
Code and the rights and interests of such Lender in and under the Loan Documents
shall not constitute such "plan assets" under ERISA.
9.13. Nonreliance. Each Lender hereby represents that it is not relying
on or looking to any margin stock (as defined in Regulation U) as collateral in
the extension or maintenance of the credit provided for herein.
9.14. Disclosure. The Borrower and each Lender, including the LC
Issuer, hereby acknowledge and agree that each Lender and/or its Affiliates from
time to time may hold investments in, make other loans to or have other
relationships with the Borrower and its Affiliates.
9.15. Performance of Obligations. The Borrower agrees that the
Administrative Agent may, but shall have no obligation to (i) after the
occurrence and during the continuance of an Event of Default, pay or discharge
taxes, liens, security interests or other encumbrances levied or placed on or
threatened against any Collateral and (ii) after the occurrence and during the
continuance of an Event of Default make any other payment or perform any act
required of the Borrower under any Loan Document or take any other action which
the Administrative Agent in its discretion deems necessary or desirable to
protect or preserve the Collateral, including, without limitation, any action to
(x) effect any repairs or obtain any insurance called for by the
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terms of any of the Loan Documents and to pay all or any part of the premiums
therefor and the costs thereof and (y) pay any rents payable by the Borrower
which are more than thirty (30) days past due, or as to which the landlord has
given notice of termination, under any lease. The Administrative Agent shall use
its best efforts to give the Borrower notice of any action taken under this
Section 9.15 prior to the taking of such action or promptly thereafter provided
the failure to give such notice shall not affect the Borrower's obligations in
respect thereof. The Borrower agrees to pay the Administrative Agent, upon
demand, the principal amount of all funds advanced by the Administrative Agent
under this Section 9.15 together with interest thereon at the rate from time to
time applicable to Floating Rate Loans from the date of such advance until the
outstanding principal balance thereof is paid in full. If the Borrower fails to
make payment in respect of any such advance under this Section 9.15 within one
(1) Business Day after the date the Borrower receives written demand therefor
from the Administrative Agent, the Administrative Agent shall promptly notify
each Lender and each Lender agrees that it shall thereupon make available to the
Administrative Agent, in Dollars in immediately available funds, the amount
equal to such Lender's Pro Rata Share of such advance. If such funds are not
made available to the Administrative Agent by such Lender within one (1)
Business Day after the Administrative Agent's demand therefor, the
Administrative Agent will be entitled to recover any such amount from such
Lender together with interest thereon at the Federal Funds Effective Rate for
each day during the period commencing on the date of such demand and ending on
the date such amount is received. The failure of any Lender to make available to
the Administrative Agent its Pro Rata Share of any such unreimbursed advance
under this Section 9.15 shall neither relieve any other Lender of its obligation
hereunder to make available to the Administrative Agent such other Lender's Pro
Rata Share of such advance on the date such payment is to be made nor increase
the obligation of any other Lender to make such payment to the Administrative
Agent. All outstanding principal of, and interest on, advances made under this
Section 9.15 shall constitute Obligations secured by the Collateral until paid
in full by the Borrower.
9.16. USA Patriot Act Notification. The following notification is
provided to the Borrower pursuant to Section 326 of the USA Patriot Act of 2001,
31 U.S.C. Section 5318:
IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT. To
help the government of the United States of America fight the funding of
terrorism and money laundering activities, Federal law requires all financial
institutions to obtain, verify, and record information that identifies each
Person that opens an account, including any deposit account, treasury management
account, loan, other extension of credit, or other financial services product.
Accordingly, when the Borrower opens an account, the Administrative Agent and
the Lenders will ask for the Borrower's name, tax identification number,
business address, and other information that will allow the Administrative Agent
and the Lenders to identify the Borrower. The Administrative Agent and the
Lenders may also ask to see the Borrower's legal organizational documents or
other identifying documents.
9.17. Subordination of Intercompany Indebtedness. The Borrower agrees
that any and all claims of the Borrower against any Guarantor with respect to
any "Intercompany Indebtedness" (as hereinafter defined) shall be subordinate
and subject in right of payment to the prior payment, in full and in cash, of
all Secured Obligations; provided that, and not in contravention of the
foregoing, unless an Event of Default has occurred and is continuing and the
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Borrower receives from the Administrative Agent a payment blockage notice
pursuant to this Section 9.17 that has not been withdrawn, the Borrower may make
loans to and receive payments in the ordinary course with respect to such
Intercompany Indebtedness from the Guarantors, to the extent permitted by the
terms of this Agreement and the other Loan Documents. Notwithstanding any right
of the Borrower to ask, demand, sue for, take or receive any payment from the
Guarantors, all rights, liens and security interests of the Borrower, whether
now or hereafter arising and howsoever existing, in any assets of any such
guarantor shall be and are subordinated to the rights of the Holders of Secured
Obligations in those assets. The Borrower shall not have any right to possession
of any such asset or to foreclose upon any such asset, whether by judicial
action or otherwise, unless and until all of the Secured Obligations (other than
obligations to pay fees and expenses with respect to which the Borrower has not
received an invoice, Rate Management Obligations, contingent indemnity
obligations, and other contingent obligations) shall have been fully paid and
satisfied (in cash). If all or any part of the assets of any such guarantor, or
the proceeds thereof, are subject to any distribution, division or application
to the creditors of such guarantor, whether partial or complete, voluntary or
involuntary, and whether by reason of liquidation, bankruptcy, arrangement,
receivership, assignment for the benefit of creditors or any other similar
action or proceeding, then, and in any such event (such events being herein
referred to as an "Insolvency Event"), any payment or distribution of any kind
or character, either in cash, securities or other property, which shall be
payable or deliverable upon or with respect to any Indebtedness of any
Guarantor, to the Borrower ("Intercompany Indebtedness") shall be paid or
delivered directly to the Administrative Agent for application to any of the
Secured Obligations, due or to become due, until such Secured Obligations (other
than obligations to pay fees and expenses with respect to which the Borrower has
not received an invoice, Rate Management Obligations, contingent indemnity
obligations, and other contingent obligations) shall have first been fully paid
and satisfied (in cash). Should any payment, distribution, security or
instrument or proceeds thereof be received by the Borrower upon or with respect
to the Intercompany Indebtedness after an Insolvency Event prior to the
satisfaction of all of the Secured Obligations (other than obligations to pay
fees and expenses with respect to which the Borrower has not received an
invoice, Rate Management Obligations, contingent indemnity obligations and other
contingent obligations), the Borrower shall receive and hold the same in trust,
as trustee, for the benefit of the Holders of Secured Obligations and shall
forthwith deliver the same to the Administrative Agent for application to any of
the Secured Obligations, in precisely the form received (except for the
endorsement or assignment of the Borrower where necessary), and, until so
delivered, the same shall be held in trust by the Borrower as the property of
the Administrative Agent. If the Borrower fails to make any such endorsement or
assignment to the Administrative Agent or any of its officers or employees are
irrevocably authorized to make the same. The Borrower agrees that until the
Secured Obligations (other than obligations to pay fees and expenses with
respect to which the Borrower has not received an invoice, Rate Management
Obligations, contingent indemnity obligations, and other contingent obligations)
have been paid in full (in cash) and satisfied, the Borrower will not assign or
transfer to any Person (other than the Agent) any claim the Borrower has or may
have against any Guarantor except as otherwise permitted by the Loan Documents.
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ARTICLE X
THE ADMINISTRATIVE AGENT
10.1. Appointment; Nature of Relationship. JPMorgan Chase is hereby
appointed by each of the Lenders as its contractual representative (herein
referred to as the "Administrative Agent") hereunder and under each other Loan
Document, and each of the Lenders irrevocably authorizes the Administrative
Agent to act as the contractual representative of such Lender with the rights
and duties expressly set forth herein and in the other Loan Documents. The
Administrative Agent agrees to act as such contractual representative upon the
express conditions contained in this Article X. Notwithstanding the use of the
defined term "Administrative Agent," it is expressly understood and agreed that
the Administrative Agent shall not have any fiduciary responsibilities to any of
the Holders of Secured Obligations by reason of this Agreement or any other Loan
Document and that the Administrative Agent is merely acting as the contractual
representative of the Lenders with only those duties as are expressly set forth
in this Agreement and the other Loan Documents. In its capacity as the Lenders'
contractual representative, the Administrative Agent (i) does not hereby assume
any fiduciary duties to any of the Holders of Secured Obligations, (ii) is a
"representative" of the Holders of Secured Obligations within the meaning of the
term "secured party" as defined in the New York Uniform Commercial Code and
(iii) is acting as an independent contractor, the rights and duties of which are
limited to those expressly set forth in this Agreement and the other Loan
Documents. Each of the Lenders, for itself and on behalf of its Affiliates as
Holders of Secured Obligations, hereby agrees to assert no claim against the
Administrative Agent on any agency theory or any other theory of liability for
breach of fiduciary duty, all of which claims each Holder of Secured Obligations
hereby waives.
10.2. Powers. The Administrative Agent shall have and may exercise such
powers under the Loan Documents as are specifically delegated to the
Administrative Agent by the terms of each thereof, together with such powers as
are reasonably incidental thereto. The Administrative Agent shall have no
implied duties or fiduciary duties to the Lenders, or any obligation to the
Lenders to take any action thereunder except any action specifically provided by
the Loan Documents to be taken by the Administrative Agent.
10.3. General Immunity. Neither the Administrative Agent nor any of its
directors, officers, agents or employees shall be liable to the Borrower, or any
Lender or Holder of Secured Obligations for any action taken or omitted to be
taken by it or them hereunder or under any other Loan Document or in connection
herewith or therewith except to the extent such action or inaction is determined
in a final, non-appealable judgment by a court of competent jurisdiction to have
arisen from the gross negligence or willful misconduct of such Person.
10.4. No Responsibility for Loans, Recitals, etc. Neither the
Administrative Agent nor any of its directors, officers, agents or employees
shall be responsible for or have any duty to ascertain, inquire into, or verify
(a) any statement, warranty or representation made in connection with any Loan
Document or any borrowing hereunder; (b) the performance or observance of any of
the covenants or agreements of any obligor under any Loan Document, including,
without limitation, any agreement by an obligor to furnish information directly
to each Lender; (c) the satisfaction of any condition specified in Article IV,
except receipt of items required to be
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delivered solely to the Administrative Agent; (d) the existence or possible
existence of any Event of Default or Unmatured Event of Default; (e) the
validity, enforceability, effectiveness, sufficiency or genuineness of any Loan
Document or any other instrument or writing furnished in connection therewith;
(f) the value, sufficiency, creation, perfection or priority of any Lien in any
Collateral; or (g) the financial condition of the Borrower or any guarantor of
any of the Obligations or of any of the Borrower's or any such guarantor's
respective Subsidiaries. The Administrative Agent shall have no duty to disclose
to the Lenders information that is not required to be furnished by the Borrower
to the Administrative Agent at such time, but is voluntarily furnished by the
Borrower to the Administrative Agent (either in its capacity as Administrative
Agent or in its individual capacity). Except as expressly set forth herein, the
Administrative Agent shall not have any duty to disclose, and shall not be
liable for the failure to disclose, any information relating to the Borrower or
any of its Subsidiaries that is communicated to or obtained by the
Administrative Agent in such capacity or any Affiliate thereof in any capacity.
10.5. Action on Instructions of Lenders. The Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting,
hereunder and under any other Loan Document in accordance with written
instructions signed by the Required Lenders (or all of the Lenders in the event
that and to the extent that this Agreement expressly requires such), and such
instructions and any action taken or failure to act pursuant thereto shall be
binding on all of the Lenders. The Lenders hereby acknowledge that the
Administrative Agent shall be under no duty to take any discretionary action
permitted to be taken by it pursuant to the provisions of this Agreement or any
other Loan Document unless it shall be requested in writing to do so by the
Required Lenders (or all of the Lenders in the event that and to the extent that
this Agreement expressly requires such). The Administrative Agent shall be fully
justified in failing or refusing to take any action hereunder and under any
other Loan Document unless it shall first be indemnified to its satisfaction by
the Lenders pro rata against any and all liability, cost and expense that it may
incur by reason of taking or continuing to take any such action.
10.6. Employment of Agents and Counsel. The Administrative Agent may
execute any of its duties as Administrative Agent hereunder and under any other
Loan Document by or through employees, agents, and attorneys-in-fact and shall
not be answerable to the Lenders, except as to money or securities received by
it or its authorized agents, for the default or misconduct of any such agents or
attorneys-in-fact selected by it with reasonable care. The Administrative Agent
shall be entitled to advice of counsel concerning the contractual arrangement
between the Administrative Agent and the Lenders and all matters pertaining to
the Administrative Agent's duties hereunder and under any other Loan Document.
10.7. Reliance on Documents; Counsel. The Administrative Agent shall be
entitled to rely upon any Note, notice, consent, certificate, affidavit, letter,
telegram, facsimile, telex, electronic mail message, statement, paper or
document believed by it to be genuine and correct and to have been signed or
sent by the proper person or persons, and, in respect to legal matters, upon the
opinion of counsel selected by the Administrative Agent, which counsel may be
employees of the Administrative Agent. For purposes of determining compliance
with the conditions specified in Sections 4.1 and 4.2, each Lender that has
signed this Agreement shall be deemed to have consented to, approved or accepted
or to be satisfied with, each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory
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to a Lender unless the Administrative Agent shall have received notice from such
Lender prior to the applicable date specifying its objection thereto.
10.8. Administrative Agent's Reimbursement and Indemnification. The
Lenders agree to reimburse and indemnify the Administrative Agent ratably in
proportion to the Lenders' Pro Rata Shares (i) for any amounts not reimbursed by
the Borrower for which the Administrative Agent is entitled to reimbursement by
the Borrower under the Loan Documents, (ii) for any other expenses incurred by
the Administrative Agent on behalf of the Lenders, in connection with the
preparation, execution, delivery, administration and enforcement of the Loan
Documents (including, without limitation, for any expenses incurred by the
Administrative Agent in connection with any dispute between the Administrative
Agent and any Lender or between two or more of the Lenders) and (iii) for any
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind and nature whatsoever which may be
imposed on, incurred by or asserted against the Administrative Agent in any way
relating to or arising out of the Loan Documents or any other document delivered
in connection therewith or the transactions contemplated thereby (including,
without limitation, for any such amounts incurred by or asserted against the
Administrative Agent in connection with any dispute between the Administrative
Agent and any Lender or between two or more of the Lenders), or the enforcement
of any of the terms of the Loan Documents or of any such other documents,
provided that (i) no Lender shall be liable for any of the foregoing to the
extent any of the foregoing is found in a final, non-appealable judgment by a
court of competent jurisdiction to have resulted from the gross negligence or
willful misconduct of the Administrative Agent and (ii) any indemnification
required pursuant to Section 3.5(vii) shall, notwithstanding the provisions of
this Section 10.8, be paid by the relevant Lender in accordance with the
provisions thereof. The obligations of the Lenders under this Section 10.8 shall
survive payment of the Secured Obligations and termination of this Agreement.
10.9. Notice of Event of Default. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Event of Default or
Unmatured Event of Default hereunder unless the Administrative Agent has
received written notice from a Lender or the Borrower referring to this
Agreement describing such Event of Default or Unmatured Event of Default and
stating that such notice is a "notice of default". In the event that the
Administrative Agent receives such a notice, the Administrative Agent shall give
prompt notice thereof to the Lenders.
10.10. Rights as a Lender. In the event the Administrative Agent is a
Lender, the Administrative Agent shall have the same rights and powers hereunder
and under any other Loan Document with respect to its Revolving Loan Commitment
and its Credit Extensions as any Lender and may exercise the same as though it
were not the Administrative Agent, and the term "Lender" or "Lenders" shall, at
any time when the Administrative Agent is a Lender, unless the context otherwise
indicates, include the Administrative Agent in its individual capacity. The
Administrative Agent and its Affiliates may accept deposits from, lend money to,
and generally engage in any kind of trust, debt, equity or other transaction, in
addition to those contemplated by this Agreement or any other Loan Document,
with the Borrower or any of its Subsidiaries in which the Borrower or such
Subsidiary is not restricted hereby from engaging with any other Person. The
Administrative Agent, in its individual capacity, is not obligated to remain a
Lender.
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10.11. Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Administrative Agent, the Arranger
or any other Lender and based on the financial statements prepared by the
Borrower and such other documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement and the
other Loan Documents. Each Lender also acknowledges that it will, independently
and without reliance upon the Administrative Agent, the Arranger or any other
Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under this Agreement and the other Loan Documents.
10.12. Successor Administrative Agent. The Administrative Agent may
resign at any time by giving written notice thereof to the Lenders and the
Borrower, such resignation to be effective upon the appointment of a successor
Administrative Agent or, if no successor Administrative Agent has been
appointed, forty-five (45) days after the retiring Administrative Agent gives
notice of its intention to resign. The Administrative Agent may not be removed
at any time without its prior written consent. Upon any resignation, the
Required Lenders shall have the right to appoint, on behalf of the Borrower and
the Lenders, a successor Administrative Agent reasonably acceptable to the
Borrower. If no successor Administrative Agent shall have been so appointed by
the Required Lenders within thirty (30) days after the resigning Administrative
Agent's giving notice of its intention to resign, then the resigning
Administrative Agent may appoint, on behalf of the Borrower and the Lenders, a
successor Administrative Agent reasonably acceptable to the Borrower.
Notwithstanding the previous sentence, the Administrative Agent may at any time
without the consent of the Borrower or any Lender, appoint any of its Affiliates
which is a commercial bank as a successor Administrative Agent hereunder. If the
Administrative Agent has resigned or been removed and no successor
Administrative Agent has been appointed, the Lenders may perform all the duties
of the Administrative Agent hereunder and the Borrower shall make all payments
in respect of the Obligations to the applicable Lender and for all other
purposes shall deal directly with the Lenders. No successor Administrative Agent
shall be deemed to be appointed hereunder until such successor Administrative
Agent has accepted the appointment. Any such successor Administrative Agent
shall be a commercial bank having capital and retained earnings of at least
$100,000,000. Upon the acceptance of any appointment as Administrative Agent
hereunder by a successor Administrative Agent, such successor Administrative
Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the resigning or removed Administrative Agent. Upon the
effectiveness of the resignation or removal of the Administrative Agent, the
resigning or removed Administrative Agent shall be discharged from its duties
and obligations hereunder and under the Loan Documents. After the effectiveness
of the resignation or removal of an Administrative Agent, the provisions of this
Article X shall continue in effect for the benefit of such Administrative Agent
in respect of any actions taken or omitted to be taken by it while it was acting
as the Administrative Agent hereunder and under the other Loan Documents. In the
event that there is a successor to the Administrative Agent by merger, or the
Administrative Agent assigns its duties and obligations to an Affiliate pursuant
to this Section 10.12, then the term "Prime Rate" as used in this Agreement
shall mean the prime rate, base rate or other analogous rate of the new
Administrative Agent.
10.13. Administrative Agent and Arranger Fees. The Borrower agrees to
pay to the Administrative Agent and the Arranger, for their respective accounts,
the fees agreed to by the
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Borrower, the Administrative Agent and the Arranger pursuant to that certain
letter agreement dated March 29, 2007, or as otherwise agreed from time to time.
10.14. Delegation to Affiliates. The Borrower and the Lenders agree
that the Administrative Agent may delegate any of its duties under this
Agreement to any of its Affiliates. Any such Affiliate (and such Affiliate's
directors, officers, agents and employees) which performs duties in connection
with this Agreement shall be entitled to the same benefits of the
indemnification, waiver and other protective provisions to which the
Administrative Agent is entitled under Articles IX and X.
10.15. Collateral Documents. (a) Each Lender authorizes the
Administrative Agent to enter into, on behalf of each such Lender, each of the
Collateral Documents to which it is a party, and to take all action contemplated
by each of such documents. Each Lender agrees that no Holder of Secured
Obligations (other than the Administrative Agent) shall have the right
individually to seek to realize upon the security granted by any Collateral
Document, it being understood and agreed that such rights and remedies may be
exercised solely by the Administrative Agent for the benefit of the Holders of
Secured Obligations.
(b) In the event that any Collateral is hereafter pledged by any Person
as collateral security for the Secured Obligations, the Administrative Agent is
hereby authorized to execute and deliver on behalf of the Holders of Secured
Obligations any Loan Documents necessary or appropriate to grant and perfect a
Lien on such Collateral in favor of the Administrative Agent.
(c) The Lenders hereby authorize the Administrative Agent, at its
option and in its discretion, to release any Lien granted to or held by the
Administrative Agent upon any Collateral (i) upon termination of the Revolving
Loan Commitments, Term Loan Commitments and payment and satisfaction of all of
the Obligations (other than obligations to pay fees and expenses with respect to
which the Borrower has not received an invoice, contingent indemnity
obligations, and Rate Management Obligations) at any time arising under or in
respect of this Agreement or the Loan Documents or the transactions contemplated
hereby or thereby; (ii) as permitted by, but only in accordance with, the terms
of the applicable Loan Document; or (iii) if approved, authorized or ratified in
writing by the Required Lenders, unless such release is required to be approved
by all of the Lenders hereunder. Upon request by the Administrative Agent at any
time, the Lenders will confirm in writing the Administrative Agent's authority
to release particular types or items of Collateral pursuant to this Section
10.15.
(d) Upon any sale or transfer of assets constituting Collateral which
is permitted pursuant to the terms of any Loan Document, or consented to in
writing by the Required Lenders or all of the Lenders, as applicable, the
security interest in such Collateral shall be automatically released. In
connection with any such release, the Administrative Agent shall (and is hereby
irrevocably authorized by the Lenders to) execute such documents as may be
necessary to evidence the release of the Liens granted to the Administrative
Agent for the benefit of the Holders of Secured Obligations herein or pursuant
hereto upon the Collateral that was sold or transferred; provided, however, that
(i) the Administrative Agent shall not be required to execute any such document
on terms which, in the Administrative Agent's opinion, would expose the
Administrative Agent to liability or create any obligation or entail any
consequence other than
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the release of such Liens without recourse or warranty, and (ii) such release
shall not in any manner discharge, affect or impair the Secured Obligations or
any Liens upon (or obligations of the Borrower or any Subsidiary in respect of)
all interests retained by the Borrower or any Subsidiary, including (without
limitation) the proceeds of the sale, all of which shall continue to constitute
part of the Collateral.
ARTICLE XI
SETOFF; RATABLE PAYMENTS
11.1. Setoff. In addition to, and without limitation of, any rights of
the Lenders under applicable law, if the Borrower becomes insolvent, however
evidenced, or any other Event of Default occurs, any and all deposits (including
all account balances, whether provisional or final and whether or not collected
or available) and any other Indebtedness at any time held or owing by any Lender
or any Affiliate of any Lender to or for the credit or account of the Borrower
may be offset and applied toward the payment of the Secured Obligations owing to
such Lender, whether or not the Secured Obligations, or any part thereof, shall
then be due.
11.2. Ratable Payments. If any Lender, whether by setoff or otherwise,
has payment made to it upon its Outstanding Revolving Credit Exposure or its
Term Loans (other than payments received pursuant to Section 3.1, 3.2, 3.4 or
3.5) in a greater proportion than that received by any other Lender, such Lender
agrees, promptly upon demand, to purchase a participation in the Aggregate
Outstanding Revolving Credit Exposure and Term Loans held by the other Lenders
so that after such purchase each Lender will hold its Pro Rata Share, Revolving
Loan Pro Rata Share and Term Loan Pro Rata Share. If any Lender, whether in
connection with setoff or amounts which might be subject to setoff or otherwise,
receives collateral or other protection for its Obligations or such amounts
which may be subject to setoff, such Lender agrees, promptly upon demand, to
take such action necessary such that all Lenders share in the benefits of such
collateral ratably in proportion to their respective Pro Rata Shares. In case
any such payment is disturbed by legal process, or otherwise, appropriate
further adjustments shall be made.
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1. Successors and Assigns. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrower, the
Administrative Agent and the Lenders and their respective successors and assigns
permitted hereby, except that (i) the Borrower shall not have the right to
assign its rights or obligations under the Loan Documents without the prior
written consent of each Lender, (ii) any assignment by any Lender must be made
in compliance with Section 12.3, and (iii) any transfer by Participation must be
made in compliance with Section 12.2. Any attempted assignment or transfer by
any party not made in compliance with this Section 12.1 shall be null and void,
unless such attempted assignment or transfer is treated as a participation in
accordance with Section 12.3.2. The parties to this Agreement acknowledge that
clause (ii) of this Section 12.1 relates only to absolute assignments and this
Section 12.1 does not prohibit assignments creating security interests,
including, without
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limitation, (x) any pledge or assignment by any Lender of all or any portion of
its rights under this Agreement and any Note to a Federal Reserve Bank, (y) in
the case of a Lender which is a Fund, any pledge or assignment of all or any
portion of its rights under this Agreement and any Note to its trustee in
support of its obligations to its trustee or (z) any pledge or assignment by any
Lender of all or any portion of its rights under this Agreement and any Note to
direct or indirect contractual counterparties in swap agreements relating to the
Loans; provided, however, that (i) no such pledge or assignment creating a
security interest shall release the transferor Lender from its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a party
hereto, (ii) the Lender making such pledge or assignment shall retain the sole
right to approve, without consent of any pledgee or assignee, any amendment,
modification or waiver of any provisions of the Loan Documents, and (iii) the
Borrower shall continue to deal solely and directly with such Lenders in
connection such Lenders' rights and obligations under the Loan Documents unless
and until the parties thereto have complied with the provisions of Section 12.3.
The Administrative Agent may treat the Person which made any Loan or which holds
any Note as the owner thereof for all purposes hereof unless and until such
Person complies with Section 12.3; provided, however, that the Administrative
Agent may in its discretion (but shall not be required to) follow instructions
from the Person which made any Loan or which holds any Note to direct payments
relating to such Loan or Note to another Person. Any assignee of the rights to
any Loan or any Note agrees by acceptance of such assignment to be bound by all
the terms and provisions of the Loan Documents. Any request, authority or
consent of any Person, who at the time of making such request or giving such
authority or consent is the owner of the rights to any Loan (whether or not a
Note has been issued in evidence thereof), shall be conclusive and binding on
any subsequent holder or assignee of the rights to such Loan.
12.2. Participations.
12.2.1 Permitted Participants; Effect. Any Lender may at any
time sell to one or more banks or other entities ("Participants")
participating interests in any Outstanding Revolving Credit Exposure of
such Lender, any Term Loans of such Lender, any Note held by such
Lender, any Revolving Loan Commitment of such Lender or any other
interest of such Lender under the Loan Documents. In the event of any
such sale by a Lender of participating interests to a Participant, such
Lender's obligations under the Loan Documents shall remain unchanged,
such Lender shall remain solely responsible to the other parties hereto
for the performance of such obligations, such Lender shall remain the
owner of its Outstanding Revolving Credit Exposure and Term Loans and
the holder of any Note issued to it in evidence thereof for all
purposes under the Loan Documents, all amounts payable by the Borrower
under this Agreement shall be determined as if such Lender had not sold
such participating interests, and the Borrower and the Administrative
Agent shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under the Loan
Documents.
12.2.2 Voting Rights. Each Lender shall retain the sole right
to approve, without the consent of any Participant, any amendment,
modification or waiver of any provision of the Loan Documents other
than any amendment, modification or waiver with respect to any Credit
Extension or Revolving Loan Commitment in which such Participant has an
interest which would require consent of all of the Lenders pursuant to
the terms of Section 8.2.
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12.2.3 Benefit of Certain Provisions. To the extent permitted by law,
the Borrower agrees that each Participant shall be deemed to have the right of
setoff provided in Section 11.1 in respect of its participating interest in
amounts owing under the Loan Documents to the same extent as if the amount of
its participating interest were owing directly to it as a Lender under the Loan
Documents, provided that each Lender shall retain the right of setoff provided
in Section 11.1 with respect to the amount of participating interests sold to
each Participant. The Lenders agree to share with each Participant, and each
Participant, by exercising the right of setoff provided in Section 11.1, agrees
to share with each Lender, any amount received pursuant to the exercise of its
right of setoff, such amounts to be shared in accordance with Section 11.2 as if
each Participant were a Lender. The Borrower further agrees that each
Participant shall be entitled to the benefits of Sections 3.1, 3.2, 3.4 and 3.5
to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to Section 12.3, provided that (i) a Participant shall not
be entitled to receive any greater payment under Section 3.1, 3.2 or 3.5 than
the Lender who sold the participating interest to such Participant would have
received had it retained such interest for its own account, unless the sale of
such interest to such Participant is made with the prior written consent of the
Borrower, and (ii) any Participant not incorporated under the laws of the United
States of America or any State thereof agrees to comply with the provisions of
Section 3.5 to the same extent as if it were a Lender.
12.3. Assignments.
12.3.1 Permitted Assignments. Any Lender may at any time assign to one
or more banks or other entities ("Purchasers") all or any part of its rights and
obligations under the Loan Documents. Such assignment shall be evidenced by an
agreement substantially in the form of Exhibit C or in such other form as may be
agreed to by the parties thereto (each such agreement, an "Assignment
Agreement"). Each such assignment with respect to a Purchaser which is not a
Lender or an Affiliate of a Lender or an Approved Fund shall either be in an
amount equal to the entire applicable Revolving Loan Commitment, Term Loan
Commitment and Outstanding Revolving Credit Exposure and/or Term Loans, as
applicable, of the assigning Lender or (unless each of the Borrower and the
Administrative Agent otherwise consents) be in an aggregate amount not less than
(x) $5,000,000 with respect to Revolving Loan Commitments and Outstanding
Revolving Credit Exposure and (y) $1,000,000 with respect to Term Loans. The
amount of the assignment shall be based on the Revolving Loan Commitment, Term
Loan Commitment, Outstanding Revolving Credit Exposure (if the Revolving Loan
Commitment has been terminated) and/or outstanding Term Loans (if the Term Loan
Commitment has been terminated), as applicable, subject to the assignment,
determined as of the date of such assignment or as of the "Trade Date," if the
"Trade Date" is specified in the Assignment Agreement.
12.3.2 Consents. The consent of the Borrower shall be required prior to
an assignment becoming effective unless the Purchaser is a Lender, an Affiliate
of a Lender or an Approved Fund; provided that the consent of the Borrower shall
not be required if (i) an Event of Default has occurred and is continuing or
(ii) if such assignment is in connection with the physical settlement of any
Lender's obligations to direct or indirect
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contractual counterparties in swap agreements relating to the Loans. The consent
of the Administrative Agent shall be required prior to an assignment becoming
effective unless such assignment is an assignment of all or a portion of the
Term Loans, in which case the Administrative Agent's consent shall not be
required if the Purchaser of such Term Loans (or any portion thereof) is a
Lender, an Affiliate of a Lender or an Approved Fund. The consent of the LC
Issuer shall be required prior to an assignment becoming effective unless such
assignment is an assignment of all or a portion of the Term Loans. Any consent
required under this Section 12.3.2 shall not be unreasonably withheld or
delayed.
12.3.3 Effect; Effective Date. Upon (i) delivery to the Administrative
Agent of an Assignment Agreement, together with any consents required by
Sections 12.3.1 and 12.3.2, and (ii) payment of a $3,500 fee to the
Administrative Agent for processing such assignment (unless such fee is waived
by the Administrative Agent), such assignment shall become effective on the
effective date specified in such assignment. The Assignment Agreement shall
contain a representation by the Purchaser to the effect that none of the
consideration used to make the purchase of the Revolving Loan Commitment and
Outstanding Revolving Credit Exposure and/or Term Loans, as applicable, under
the applicable Assignment Agreement constitutes "plan assets" as defined under
ERISA or Section 4975 of the Code and that the rights and interests of the
Purchaser in and under the Loan Documents will not be "plan assets" under ERISA
or Section 4975 of the Code. On and after the effective date of such assignment,
such Purchaser shall for all purposes be a Lender party to this Agreement and
any other Loan Document executed by or on behalf of the Lenders and shall have
all the rights and obligations of a Lender under the Loan Documents, to the same
extent as if it were an original party thereto, and the transferor Lender shall
be released with respect to the Revolving Loan Commitment and Outstanding
Revolving Credit Exposure and/or Term Loans, as applicable, assigned to such
Purchaser without any further consent or action by the Borrower, the Lenders or
the Administrative Agent. In the case of an assignment covering all of the
assigning Lender's rights and obligations under this Agreement, such Lender
shall cease to be a Lender hereunder but shall continue to be entitled to the
benefits of, and subject to, those provisions of this Agreement and the other
Loan Documents which survive payment of the Obligations and termination of the
applicable agreement. Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this Section 12.3
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 Section 12.2.
Upon the consummation of any assignment to a Purchaser pursuant to this Section
12.3.3, the transferor Lender, the Administrative Agent and the Borrower shall,
if the transferor Lender or the Purchaser desires that its Loans be evidenced by
Notes, make appropriate arrangements so that new Notes or, as appropriate,
replacement Notes are issued to such transferor Lender, if applicable, and new
Notes or, as appropriate, replacement Notes, are issued to such Purchaser, in
each case in principal amounts reflecting their respective Revolving Loan
Commitments (or, if the Revolving Loan Termination Date has occurred, their
respective Outstanding Revolving Credit Exposure) or Term Loan Commitments (or,
if the Term Loan Commitments have been terminated, outstanding Term Loans), as
applicable, as adjusted pursuant to such assignment.
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12.3.4 Register. The Administrative Agent, acting solely for
this purpose as an agent of the Borrower, shall maintain at one of its
offices in Chicago, Illinois a copy of each Assignment Agreement
delivered to it and a register for the recordation of the names and
addresses of the Lenders, and the Revolving Loan Commitments of, and
principal amounts of the Credit Extensions owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The
entries in the Register shall be conclusive, and the Borrower, the
Administrative Agent and the Lenders may treat each Person whose name
is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to
the contrary. The Register shall be available for inspection by the
Borrower at any reasonable time and from time to time upon reasonable
prior notice.
12.4. Dissemination of Information. The Borrower authorizes each Lender
to disclose to any Participant or Purchaser or any other Person acquiring an
interest in the Loan Documents by operation of law (each a "Transferee") and any
prospective Transferee any and all information in such Lender's possession
concerning the creditworthiness of the Borrower and its Subsidiaries, including
without limitation any information contained in any Reports; provided that each
Transferee and prospective Transferee agrees to be bound by Section 9.11 of this
Agreement. A Transferee, if it shall not be a Lender, shall deliver to the
Administrative Agent an administrative questionnaire in which such Transferee
designates one or more credit contacts to whom all syndicate-level information
(which may contain material non-public information about the Borrower and its
affiliates, the Credit Parties and their related parties or their respective
securities) will be made available and who may receive such information in
accordance with such Transferee's compliance procedures and applicable laws,
including Federal and state securities laws.
12.5. Tax Treatment. If any interest in any Loan Document is
transferred to any Transferee which is not incorporated under the laws of the
United States or any State thereof, the transferor Lender shall cause such
Transferee, concurrently with the effectiveness of such transfer, to comply with
the provisions of Section 3.5(iv).
ARTICLE XIII
NOTICES
13.1. Notices; Effectiveness; Electronic Communication
13.1.1 Notices Generally. Except in the case of notices
and other communications expressly permitted to be given by telephone
(and except as provided in Section 13.1.2 below), all notices and other
communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopier as follows:
(i) if to the Borrower, at its address or telecopier number set
forth on the signature page hereof;
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(ii) if to the Administrative Agent, at its address or telecopier
number set forth on the signature page hereof;
(iii) if to the LC Issuer, at its address or telecopier number set
forth on the signature page hereof;
(iv) if to a Lender, to it at its address (or telecopier number)
set forth in its Administrative Questionnaire.
Notices sent by hand or overnight courier service, or mailed by
certified or registered mail, shall be deemed to have been given when
received; notices sent by telecopier shall be deemed to have been given
when sent (except that, if not given during normal business hours for
the recipient, shall be deemed to have been given at the opening of
business on the next Business Day for the recipient). Notices delivered
through electronic communications to the extent provided in Section
13.1.2 below, shall be effective as provided in said Section 13.1.2.
13.1.2 Electronic Communications. Notices and other
communications to the Lenders and the LC Issuer hereunder may be
delivered or furnished by electronic communication (including e-mail
and internet or intranet websites) pursuant to procedures approved by
the Administrative Agent or as otherwise determined by the
Administrative Agent; provided that the foregoing shall not apply to
notices to any Lender or the LC Issuer pursuant to Article II if such
Lender or the LC Issuer, as applicable, has notified the Administrative
Agent that it is incapable of receiving notices under such Article by
electronic communication. The Administrative Agent or the Borrower may,
in its respective discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it or as it otherwise determines, provided that
such determination or approval may be limited to particular notices or
communications. Unless the Administrative Agent otherwise prescribes,
(i) notices and other communications sent to an e-mail address shall be
deemed received upon the sender's receipt of an acknowledgement from
the intended recipient (such as by the "return receipt requested"
function, as available, return e-mail or other written
acknowledgement), provided that if such notice or other communication
is not given during the normal business hours of the recipient, such
notice or communication shall be deemed to have been given at the
opening of business on the next Business Day for the recipient, and
(ii) notices or communications posted to an Internet or intranet
website shall be deemed received upon the deemed receipt by the
intended recipient at its e-mail address as described in the foregoing
clause (i) of notification that such notice or communication is
available and identifying the website address therefor.
13.2. Change of Address, Etc. Any party hereto may change its address
or telecopier number for notices and other communications hereunder by notice to
the other parties hereto.
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ARTICLE XIV
COUNTERPARTS; INTEGRATION; EFFECTIVENESS; ELECTRONIC EXECUTION
14.1. Counterparts; Effectiveness. This Agreement may be executed in
counterparts (and by different parties hereto in different counterparts), each
of which shall constitute an original, but all of which when taken together
shall constitute a single contract. Except as provided in Article IV, this
Agreement shall become effective when it shall have been executed by the
Borrower, the Administrative Agent, the LC Is suer and the Lenders and when the
Administrative Agent shall have received counterparts hereof which, when taken
together, bear the signatures of each of such parties hereto, and thereafter
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns. Delivery of an executed counterpart of a
signature page of this Agreement by telecopy shall be effective as delivery of a
manually executed counterpart of this Agreement.
14.2. Electronic Execution of Assignments. The words "execution,"
"signed," "signature," and words of like import in any Assignment Agreement
shall be deemed to include electronic signatures or the keeping of records in
electronic form, each of which shall be of the same legal effect, validity or
enforceability as a manually executed signature or the use of a paper-based
recordkeeping system, as the case may be, to the extent and as provided for in
any applicable law, including the Federal Electronic Signatures in Global and
National Commerce Act, or any other state laws based on the Uniform Electronic
Transactions Act.
ARTICLE XV
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
15.1. CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A
CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS (INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW BUT
OTHERWISE WITHOUT REGARD TO CONFLICTS OF LAW PROVISIONS OR PRINCIPLES) OF THE
STATE OF NEW YORK, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL
BANKS.
15.2. CONSENT TO JURISDICTION. THE BORROWER HEREBY IRREVOCABLY SUBMITS
TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR NEW YORK STATE
COURT SITTING IN THE BOROUGH OF MANHATTAN IN NEW YORK, NEW YORK IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENTS AND THE BORROWER
HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES
ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT,
ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN
INCONVENIENT FORUM. ANY JUDICIAL PROCEEDING BY THE BORROWER AGAINST THE
ADMINISTRATIVE AGENT, THE LC ISSUER,
94
ANY LENDER OR ANY HOLDER OF SECURED OBLIGATIONS OR ANY AFFILIATE OF THE
ADMINISTRATIVE AGENT, THE LC ISSUER, ANY LENDER OR ANY HOLDER OF SECURED
OBLIGATIONS INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT
OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT MAY BE BROUGHT IN A COURT IN
THE BOROUGH OF MANHATTAN IN NEW YORK, NEW YORK. NOTHING HEREIN SHALL LIMIT THE
RIGHT OF THE ADMINISTRATIVE AGENT, THE LC ISSUER, ANY LENDER OR ANY HOLDER OF
SECURED OBLIGATIONS TO BRING PROCEEDINGS AGAINST THE BORROWER OR LIMIT THE
RIGHTS OF THE BORROWER TO BRING PROCEEDINGS AGAINST SUCH OTHER PARTY IN THE
COURTS OF ANY OTHER JURISDICTION.
15.3. WAIVER OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE AGENT, THE
LC ISSUER, EACH LENDER, AND EACH OTHER HOLDER OF SECURED OBLIGATIONS HEREBY
WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY
WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT OR THE
RELATIONSHIP ESTABLISHED THEREUNDER.
The remainder of this page is intentionally blank.
95
IN WITNESS WHEREOF, the Borrower, the Lenders, the LC Issuer and the
Administrative Agent have executed this Agreement as of the date first above
written.
CHEMED CORPORATION
as Borrower
By: /s/ David P. Williams
--------------------------------------
Name: David P. Williams
Title: Vice President and Chief Financial
Officer
Address:
255 East 5th Street, Suite 2600
Cincinnati, Ohio 45202-4726
Attention: David P. Williams
Phone: (513) 762-6901
Fax: (513) 762-6713
SIGNATURE PAGE TO CREDIT AGREEMENT
IN WITNESS WHEREOF, the Borrower, the Lenders, the LC Issuer and the
Adrninistrstive Agent have executed this Agreement as of the date first above
written.
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION,
as Administrative Agent, as Swing Line Lender, as
LC Issuer and as a Lender
By: /s/ Thomas J. Reinhold
-------------------------------------
Name: Thomas J. Reinhold
Title: Senior Vice President
JPMorgan Chase Bank
JPMorgan Loan Services
10 S. Dearborn, Floor 7
Chicago, IL 60603
Attention: Leonida G. Mischke P
Phone: (312)385-7055
Fax: (312) 385-7096
SIGNATURE PAGE TO CREDIT AGREEMENT
CITIBANK,.N.A., a Lender and as a Syndication
Agent
By: /s/ Allen Fisher
---------------------------------
Name: ALLEN FISEIER
Title: VP
SIGNATURE PAGE TO CREDIT AGREEMENT
LASALLE BANK NATIONAL ASSOCIATION,
as a Lender and as a Syndication Agent
By: /s/ Shawna Elkus
--------------------------------
Name: Shawna Elkus
Title: Vice President
SIGNATURE PAGE TO CREDIT AGREEMENT
NATIONAL CITY BANK, as a Lender and as D
Documentation Agent
By: /s/ Joseph R. Netzel
--------------------------------
Name: Joseph R. Netzel
Title: Senior Vice President
SIGNATURE PAGE TO CREDIT AGREEMENT
CHARTER ONE BANK N.A., as a Lender
By: /s/ Clifford A. Mull
--------------------------------
Name: Clifford A. Mull
Title: Vice President
SIGNATURE PAGE TO CREDIT AGREEMENT
ALLIED IRISH BANK PLC as a Lender
By: /s/ Jerome Noto
-------------------------------
Name: Jerome Noto
Title: Vice President
By: /s/ Gregory J. Wiske
-----------------------------------
Name: Gregory J. Wiske
Title: Vice President
SIGNATURE PAGE TO CREDIT AGREEMENT
FIFTH THIRD BANK, as a Lender
By: /s/ Megan S. Heisel
-------------------------------
Name: Megan S. Heisel
Title: Vice President
SIGNATURE PAGE TO CREDIT AGREEMENT
THE HUNTINGTON NATIONAL BANK, as
Lender
By: /s/ Andres Franxman
-------------------------------
Name: Andrew Franxman
Title: Vice President
SIGNATURE PAGE TO CREDIT AGREEMENT
BMO CAPITAL MARKETS FINANCING, INC.
By: /s/ Jay G. Sepanski
-------------------------------
Name: Jay G. Sepanski
Title: Vice President
SIGNATURE PAGE TO CREDIT AGREEMENT
COMMITMENT SCHEDULE
Revolving Loan Commitments
Lender Amount of Revolving % of Aggregate Revolving
- ------ ------------------- ------------------------
Loan Commitment Loan Commitment
--------------- ---------------
JPMorgan Chase Bank, National $40,909,090.90 23.376623371%
Association
Citibank, N.A. $25,454,545.45 14.545454543%
LaSalle Bank National Association $25,454,545.45 14.545454543%
National City Bank $25,454,545.45 14.545454543%
Charter One N.A. $15,909,090.91 9.090909091%
BMO Capital Markets Financing, Inc. $15,909,090.91 9.090909091%
Allied Irish Banks PLC $6,818,181.83 3.896103903%
Fifth Third Bank $9,545,454.55 5.454545457%
The Huntington National Bank $9,545,454.55 5.454545457%
TOTAL $175,000,000.00 100%
TERM LOAN COMMITMENTS ON FOLLOWING PAGE
Term Loan Commitments
Lender Amount of Term Loan % of Aggregate Term
- ------ ------------------- -------------------
Commitment Loan Commitment
---------- ---------------
JPMorgan Chase Bank, National $27,272,727.27 27.272727270%
Association
Citibank, N.A. $14,545,454.55 14.545454550%
LaSalle Bank National Association $14,545,454.55 14.545454550%
National City Bank $14,545,454.55 14.545454550%
Charter One Bank N.A. $9,090,909.09 9.090909090%
BMO Capital Markets Financing, Inc. $9,090,909.09 9.090909090%
Fifth Third Bank $5,454,545.45 5.454545450%
The Huntington National Bank $5,454,545.45 5.454545450%
TOTAL $100,000,000.00 100%
PRICING SCHEDULE
- ---------------------------------------------------------------------------------------------------------------------------
APPLICABLE LEVEL I LEVEL II LEVEL III LEVEL IV LEVEL V LEVEL VI
MARGIN STATUS STATUS STATUS STATUS STATUS STATUS
- ---------------------------------------------------------------------------------------------------------------------------
Eurodollar 0.75% 0.875% 1.00% 1.25% 1.50% 1.75%
Rate
- ---------------------------------------------------------------------------------------------------------------------------
Floating 0% 0% 0% 0% 0.25% 0.50%
Rate
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
APPLICABLE LEVEL I EVEL II LEVEL III LEVEL IV LEVEL V LEVEL VI
FEE STATUS STATUS STATUS STATUS STATUS STATUS
RATE
- ---------------------------------------------------------------------------------------------------------------------------
Commitment 0.15% 0.175% 0.20% 0.25% 0.30% 0.35%
Fee
- ---------------------------------------------------------------------------------------------------------------------------
For the purposes of this Schedule, the following terms have the
following meanings, subject to the final paragraph of this Schedule:
"Financials" means the annual or quarterly financial statements of the
Borrower delivered pursuant to Section 6.1.
"Level I Status" exists at any date if, as of the last day of the
fiscal quarter of the Borrower referred to in the most recent Financials, the
Leverage Ratio is less than 1.00 to 1.00.
"Level II Status" exists at any date if, as of the last day of the
fiscal quarter of the Borrower referred to in the most recent Financials, the
Leverage Ratio is equal to or greater than 1.00 to 1.00 but less than 1.50 to
1.00.
"Level III Status" exists at any date if, as of the last day of the
fiscal quarter of the Borrower referred to in the most recent Financials, the
Leverage Ratio is equal to or greater than 1.50 to 1.00 but less than 2.00 to
1.00.
"Level IV Status" exists at any date if, as of the last day of the
fiscal quarter of the Borrower referred to in the most recent Financials, the
Leverage Ratio is greater than or equal to 2.00 to 1.00 but less than 2.50 to
1.00.
"Level V Status" exists at any date if, as of the last day of the
fiscal quarter of the Borrower referred to in the most recent Financials, the
Leverage Ratio is greater than or equal to 2.50 to 1.00 but less than 3.00 to
1.00.
"Level VI Status" exists at any date, if, as of the last day of the
fiscal quarter of the Borrower referred to in the most recent Financials, the
Leverage Ratio is greater than or equal to 3.00 to 1.00.
2
"Status" means either Level I Status, Level II Status, Level III
Status, Level IV Status, Level V Status or Level VI Status.
The Applicable Margin and Applicable Fee Rate shall be determined in
accordance with foregoing table based on the Borrower's Status as reflected in
the then most recent Financials. Adjustments, if any, to the Applicable Margin
or Applicable Fee Rate shall be effective five Business Days after the
Administrative Agent has received the applicable Financials. If the Borrower
fails to deliver the Financials to the Administrative Agent at the time required
pursuant to Section 6.1, then the Applicable Margin and Applicable Fee Rate
shall be the highest Applicable Margin and Applicable Fee Rate set forth in the
foregoing table until five days after such Financials are so delivered.
Notwithstanding the foregoing, Level II Status shall be in effect until
the Administrative Agent receives the Financials for the Borrower's fiscal
quarter ending on June 30, 2007 and adjustments to the Applicable Margin and
Applicable Fee Rate shall thereafter be effected in accordance with the
preceding paragraph.
3
Exhibit 10.02
EMPLOYMENT AGREEMENT
AGREEMENT made as of the 6th day of May, 2007 by and between Timothy S.
O'Toole, 789 Grandon Blvd, Ocean Club, Club Tower One, Unit 1005, Key Biscayne,
FL 33149 ("Employee"), and Chemed Corporation, a Delaware corporation (the
"Company").
WHEREAS, the Company has employed Employee and desires to continue to
employ Employee as a senior executive and Employee desires to work for the
Company or its subsidiaries in such capacity on the terms and conditions
hereinafter provided;
WHEREAS, Employee is a key senior executive of the Company with major
responsibilities for planning, directing, coordinating and controlling overall
corporate operations;
WHEREAS, in such capacity Employee will develop or have access to all or
substantially all of the business methods and confidential information relating
to the Company, including but not limited to, its financial performance and
results, its product formulae, its manufacturing organization and methods, its
product research and development policies and programs, its service techniques,
its purchasing organization and methods, its sales organization and methods, its
pricing of products, its market development and expansion plans, its personnel
policies and training and development programs, and its customer and supplier
relationships;
1
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements herein contained, the parties hereto agree as follows:
1. EMPLOYMENT
----------
1.1 Position and Duties.
(a) The Company agrees to employ Employee and Employee agrees to work for
the Company as a senior executive. Employee shall have such duties and authority
as are normally associated with his office. While employed hereunder, Employee
shall devote his full time, effort, skill and attention to the affairs of the
Company. During the term of his employment hereunder, Employee shall not render
any services to any other person that might be in competition with the Company
or any of its subsidiaries or affiliates or in conflict with his position as a
senior executive of the Company or his duty of undivided loyalty to the Company.
1.2 Term. Unless sooner terminated in accordance with the provisions
hereof, the term of employment shall commence on May 6, 2007 and shall continue
until May 5, 2009. This agreement shall automatically extend thereafter on each
anniversary of the commencement date for additional one-year periods unless
either party delivers written notice thirty days in advance of such anniversary
of the party's intent not to extend this agreement.
2. COMPENSATION
------------
2.1 Base Salary. While employed hereunder the Company shall pay Employee a
base salary at an annual rate of $504,500.00 or such higher amount or amounts as
the Company may from time to time approve. The base salary shall be due and
payable at the same times and intervals at which salary payments are made to
other senior executives.
2
2.2 Incentive Compensation. Employee will be entitled to participate in all
incentive compensation and bonus plans as such have been maintained by the
Company for its senior executives generally. The Employee's annual incentive
compensation will be payable, with respect to each calendar year, on or before
February 28 in the following year.
2.3 Employee Benefits. Employee shall be entitled to participate in those
"fringe" benefit plans which the Company provides for its executives generally.
Employee's participation in such plans will be in accordance with and subject to
the terms and provisions thereof.
2.4 Pension. Employee will continue to participate in Chemed's Excess
Benefit Plan in accordance with and subject to its provisions.
2.5 Miscellaneous.
(a) Company will pay or reimburse Employee for his reasonable business
expenses in accordance with Company policies.
(b) Employee will be entitled to paid vacation in accordance with current
Company policy. Employee will be entitled to payment for unused vacation time in
accordance with Company policy.
(c) Subject to 1.1(a) of this Agreement, compliance with applicable laws
relating to interlocking directorships, the Company's policies on conflicts of
interest and improper payments and accounting records contained in the Company's
3
"Policies on Business Ethics" and "Corporate Governance Principles" and to any
other current applicable Company policy, during the term of Employee's
employment hereunder, Employee will be permitted to accept election, and to
serve as, a director of other entities. Employee will be permitted to retain all
fees and other benefits resulting from his service as a director of any such
entity.
(d) Each party shall pay their own legal fees incurred in connection with
any enforcement of rights under this Agreement. All disputes arising hereunder
shall be subject to arbitration according to the rules of the American
Arbitration Association. The Company and Employee shall share equally in any
third party costs of such arbitration.
3. TERMINATION.
------------
3.1 Termination of Employment. The employment of Employee shall terminate
prior to the expiration of the term specified in 1.2 upon the occurrence of any
of the following prior to such time:
(a) The death of Employee;
(b) The termination of Employee's employment due to Employee's disability
pursuant to 3.2;
(c) The termination by the Company of Employee's employment for Cause
pursuant to 3.3;
(d) The retirement of Employee under a retirement plan of the Company; or
(e) The resignation of Employee.
4
The termination by the Company of Employee's employment hereunder for any
reason other than those specified in this ss.3.1 shall hereinafter be referred
to as a termination "Without Cause".
3.2 Disability. If, by reason of physical or mental disability, Employee is
unable to carry out his duties pursuant to this Agreement for four (4)
consecutive months, his services hereunder may be terminated by the Company upon
two (2) months' written notice to be given to Employee at any time after the
period of four (4) continuous months of disability and while such disability
continues. If, prior to the expiration of the two (2) months after the giving of
such notice, Employee shall recover from such disability and return to the
active discharge of his duties, then such notice shall be of no further force
and effect and Employee's employment shall continue as if such disability had
not occurred. If Employee shall not so recover from his disability and return to
his duties, then his services shall terminate at the expiration date of such two
(2) months' notice. During the period of Employee's disability and until the
expiration date of such two (2) months' notice, Employee shall continue to
receive all compensation and other benefits provided herein as if he had not
been disabled, at the time, in the amounts and in the manner provided herein. In
the event a dispute arises between Employee and the Company concerning
Employee's physical or mental ability to continue or return to the performance
of his duties as aforesaid, Employee shall submit to examination by a competent
physician mutually agreeable to both parties, and such physician's opinion as to
Employee's ability to so perform will be final and binding.
5
3.3 For Cause. The Company may, at any time by written notice to the
Employee, terminate his services hereunder for Cause. Such notice shall specify
the event or events and the actions or failure to act constituting Cause.
"Cause" shall mean, with respect to a Employee's termination of employment: (a)
the willful and repeated failure of the Employee to perform substantially the
Employee's duties with Company (other than any such failure resulting from
incapacity due to physical or mental illness); (b) the Employee's conviction of,
or plea of guilty or nolo contendere to, which through lapse of time or
otherwise is not subject to appeal, a felony which is materially and
demonstrably injurious to Company; or (c) the Employee's engagement in willful
gross misconduct or gross negligence in connection with his or her employment.
If the basis for discharge is pursuant to paragraph (c) above, Employee
shall have thirty (30) days from his receipt of the notice of termination for
Cause to cure, if curable, the actions or failure to act specified in such
notice and, in the event of any such cure within such period, such conduct shall
not constitute Cause hereunder.
3.4 Consequences of Termination.
(a) If Employee's employment hereunder shall terminate pursuant to any of
the provisions of this Article 3, his base salary and incentive compensation
referred to in 2.1 and 2.2 shall cease to accrue forthwith.
(b) If the Company shall terminate Employee's employment hereunder Without
Cause, the Company shall pay Employee a lump sum amount in cash on termination
equal to two and one-half times his then annual base salary plus a lump sum
6
amount in cash on termination equal to the product of: (i) the average amount of
the Employee's annual incentives under the Company's annual incentive plan paid
or payable for the last three full fiscal years prior to termination; and (ii) a
fraction, the numerator of which is the number of days in the fiscal year
through the date of termination and the denominator of which is 365. Employee
shall also be eligible to participate in the Company's welfare benefits plans
such as health insurance, life insurance, long-term care insurance and long-term
disability benefits plans for eighteen months following termination, at the then
current employee contribution rates; provided that if the Employee is precluded
from continuing his or her participation in any applicable plan, program, or
arrangement, the Employee shall be provided with the after-tax cost of
continuation of such coverage, including premiums under the Consolidated Omnibus
Budget Reconciliation Act of 1985, as amended, ("COBRA Premiums"), for the
Employee with respect to the benefits provided under such plan, program, or
arrangement, paid as either a lump sum payment or monthly as COBRA Premiums are
due, at the discretion of the Company. If the Employee becomes reemployed with
another employer and is eligible to receive health insurance, life insurance,
long-term care insurance or long-term disability coverage under another
employer-provided plan (regardless of whether the Employee elects such
coverage), the welfare benefits provided pursuant to this agreement shall be
secondary to those provided under such other plan.
(c) In the event that Employee's employment hereunder shall terminate
pursuant to any of the provisions of this Article 3, the rights of Employee
7
under any incentive compensation plan referred to in 2.2, under the executive or
employee benefit plans or arrangements referred to in 2.3 and 2.4, or otherwise
shall be determined, subject to this Article 3, in accordance with the terms and
provisions of such plans, arrangements and options applicable to an employee
whose employment has terminated in the manner that occurred, except that a
termination Without Cause shall be treated as a retirement under a retirement
plan of the Company for the purposes of the Company stock incentive plans.
(d) If the Employee's employment hereunder shall terminate pursuant to
3.1(a), (b), or (d), the Company shall pay Employee in lieu of any amounts that
may be due and payable under the Company's annual incentive plan for the fiscal
year of termination a lump sum amount in cash on termination equal to the
product of: (i) the average amount of the Employee's annual incentives under the
Company's annual incentive plan paid or payable for the last three full fiscal
years prior to termination; and (ii) a fraction, the numerator of which is the
number of days in the fiscal year through the date of termination and the
denominator of which is 365.
(e) If the Employee's employment hereunder shall terminate pursuant to
3.1(e) or if the Company shall terminate Employee's employment hereunder with
Cause pursuant to 3.1(c), Employee's annual incentive bonus shall then be
forfeited.
(f) Employee shall not be required to offset against amounts due from the
Company under this Article 3 for any salary, bonus or other benefits (other than
welfare benefits described above) received by Employee from a third-party, and
Employee shall be under no duty to mitigate by seeking or accepting another
position. Any amounts paid or benefits received under this agreement are
conditioned upon execution of a waiver of liability in favor of the Company
executed by Employee, in the form approved by the Company's counsel.
8
4. OTHER COVENANTS OF EMPLOYEE.
----------------------------
4.1 Employee shall have no right, title or interest in any reports,
studies, memoranda, correspondence, manuals, records, plans, or other written,
printed or otherwise recorded materials of any kind belonging to or in the
possession of the Company or its subsidiaries, or in any copies, pictures,
duplicates, facsimiles or other reproductions, recordings, abstracts or
summaries thereof and Employee will promptly surrender to the Company any such
materials (other than materials which have been published or otherwise have
lawfully been made available to the public generally) in his possession upon the
termination of his employment or any time prior thereto upon request of the
Company.
4.2 Without the prior written consent of the Company, Employee shall not at
any time (whether during or after his employment with the Company) use for his
own benefit or purposes or for the benefit or purposes of any other person,
firm, partnership, association, corporation or business organization, entity or
enterprise, or disclose (except in the performance of his duties hereunder) in
any manner to any person, firm, partnership, association, corporation or
business organization, entity or enterprise, any trade secret, or other
confidential or proprietary information, data, know-how or knowledge (including,
but not limited to, that relating to financial policies, product composition,
9
manufacturing organization and methods, research and development policies and
programs, service techniques, purchasing organization and methods, sales
organization and methods, product pricing, market development and expansion
plans, personnel policies and training and development programs, customer and
supplier relationships) belonging to, or relating to the affairs of, the Company
or its subsidiaries.
4.3 Employee shall promptly disclose to the Company (and to no one else)
all improvements, discoveries and inventions that may be of significance to the
Company or its subsidiaries made or conceived alone or in conjunction with
others (whether or not patentable, whether or not made or conceived at the
request of or upon the suggestion of the Company during or out of his usual
hours of work or in or about the premises of the Company or elsewhere) while in
the employ of the Company, or made or conceived within six months after the
termination of his employment by the Company, if resulting from, suggested by or
relating to such employment. All such improvements, discoveries and inventions
shall, to the extent that they are patentable, be the sole and exclusive
property of the Company and are hereby assigned to the Company. At the request
of the Company and at its cost and without liability to Employee, Employee shall
assist the Company, or any person or persons from time to time designated by it,
in obtaining the grant of patents in the United States and/or in such other
country or countries as may be designated by the Company covering such
improvements, discoveries and inventions and shall be connection therewith
execute such applications, statements or other documents, furnish such
information and data and take all such other action (including, but not limited
to, the giving of testimony) as the Company may from time to time request.
10
4.4 For a period of one year following Company's termination of Employee's
employment hereunder Without Cause, in the event Employee has agreed to accept
payment under Section 3.4(b) hereof: (i) Employee shall not directly, or
indirectly, as a stockholder owing beneficially or of record more than 5% of the
outstanding shares of any class of stock of any issuer, or as an officer,
director, employee, consultant, partner, joint venturer, proprietor, or
otherwise, engage in or become interested in any business that directly or
indirectly is in competition with the Company or any of its subsidiaries (or any
of their successors) as conducted at the time of Employee's termination, (ii)
Employee shall not, without the prior written consent of the Company, solicit or
hire or induce the termination of employment of any employee or other personnel
providing services to the Company, or any of its subsidiaries, for any business
activity, and (iii) Employee shall not, without the prior written consent of the
Company, solicit the business of any customer of the Company or any of its
subsidiaries (or any of their successors).
4.5 The obligations of Employee set forth in this Article 4 are in addition
to and not in limitation of any obligations which would otherwise exist as a
matter of law. The provisions of this Article 4 shall survive the termination of
Employee's employment hereunder.
11
5. CERTAIN REMEDIES
----------------
5.1 Breach by the Company. In the event that the Company shall fail, in any
material respect, to observe and perform its obligations hereunder, the Employee
may give written notice to the Company specifying the nature of such failure. If
within thirty (30) days after its receipt of such notice the Company shall not
have remedied such failure, the Employee shall have the right and option to
treat such failure as termination of his employment by the Company Without
Cause, to cease rendering services hereunder and thereafter to receive the
severance benefits and have the other rights and obligations provided for in
Article 3 hereof in the case of a termination by the Company Without Cause. The
remedy provided for in this ss.5.1 shall be in addition to and not in limitation
of any other remedies which would otherwise exist as a matter of law.
5.2 Breach by the Employee. Employee acknowledges and agrees that the
Company's remedy at law for any breach of any of Employee's obligations under
ss.ss.1.1(a), 4.1, 4.2, 4.3 and 4.4 would be inadequate, and agrees and consents
that temporary and permanent injunctive relief may be granted in any proceeding
that may be brought to enforce any provision of any such sections, without the
necessity of proof of actual damage.
6. GENERAL PROVISIONS
------------------
6.1 Representations and Warranties. Employee represents and warrants to the
Company that he is free to enter into this Agreement and that he has no prior or
other obligations or commitments of any kind to anyone that would in any way
hinder or interfere with his acceptance of, or the full, uninhibited and
faithful performance of, his employment hereunder or the exercise of his best
efforts as an employee of the Company.
12
6.2 Understandings; Amendments. Except as otherwise provided herein, this
Agreement sets forth the entire agreement and understanding of the parties
concerning the subject matter hereof and supersedes all prior agreements,
arrangements and understandings between Employee and the Company concerning such
subject matter. No representation, promise, inducement or statement of intention
has been made by or on behalf of either party hereto that is not set forth in
this Agreement or the documents referred to herein. This Agreement may not be
amended or modified except by a written instrument specifically referring to
this Agreement executed by the parties hereto.
6.3 Notices.
(a) Any notice or other communication required or permitted to be given
hereunder shall be in writing and may either be delivered personally to the
addressee or be mailed, registered mail, postage prepaid, as follows:
If to the Company:
Chemed Corporation
2600 Chemed Center
Cincinnati, OH 45202
Attn: President
with a copy to:
Secretary
Chemed Corporation
2600 Chemed Center
Cincinnati, OH 45202
13
If to Employee:
789 Grandon Blvd, Ocean Club
Club Tower One, Unit 1005
Key Biscayne, FL 33149
(b) Either party may change the address to which any such notices or
communications are to be directed to it by giving written notice to the other
party in the manner provided in the preceding paragraph (a).
6.4 Assignments; Binding Effect.
(a) Employee acknowledges that the services to be rendered by him are
unique and personal. Accordingly, Employee may not assign any of his rights or
delegate any of his duties or obligations under this Agreement. This Agreement
shall be binding upon, and to the extent herein permitted shall inure to the
benefit of, Employee's heirs, legatees and legal representatives.
(b) The Company may not assign this Agreement or its rights hereunder
except to a successor of all or substantially all of the business and assets of
the Company. This Agreement shall be binding upon, and shall inure to the
benefit of, the Company's successors and permitted assigns.
6.5 Severability. If any part of this Agreement shall be unenforceable
under applicable law, it shall not affect the remaining parts of this Agreement.
6.6 Waivers. The failure of either party hereto at any time or from time to
time to require performance of any of the other party's obligations under this
agreement shall in no manner affect the right to enforce any provision of this
Agreement at a subsequent time, and the waiver of any rights arising out of any
breach shall not be construed as a waiver of any rights arising out of any
subsequent breach.
14
6.7 Application of Section 409A of the Internal Revenue Code.
In the event that any payment or benefit to the Employee or for the
Employee's benefit paid or payable or distributed or distributable under this
Agreement ("Payment"), would be subject to the excise tax imposed by Section
409A of the Code, or any interest or penalties are incurred by the Employee with
respect to such excise tax (collectively, "Excise Tax"), the Employee will be
entitled to receive an additional payment ("Gross-Up Payment") in an amount such
that after payment by the Employee of all taxes (including any income or payroll
tax, interest or penalties imposed with respect to such taxes and the Excise
Tax, other than interest and penalties imposed by reason of the Employee's
failure to file timely a tax return or pay taxes shown due on the Employee's
return, and including any Excise Tax imposed upon the Gross-Up Payment), the
Employee retains an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Payments.
An initial determination as to whether and in what amount a Gross-Up
Payment is required will be made at the Company's expense by an accounting firm
of recognized national standing selected by the Company ("Accounting Firm"). The
Accounting Firm will provide its determination ("Determination"), together with
detailed supporting calculations and documentation, to the Company and the
Employee within five days of the Date of Termination, if applicable, or such
other time as requested by the Company or by the Employee (provided the Employee
reasonably believes that any of the Payments may be subject to the Excise Tax).
15
If the Accounting Firm determines that no Excise Tax is payable by the Employee
with respect to a Payment or Payments, it will furnish the Employee an opinion
reasonably acceptable to the Employee that no Excise Tax will be imposed. Within
10 days of the delivery of the Determination, the Employee will have the right
to dispute the Determination (the "Dispute"). The Gross-Up Payment, if any, as
determined pursuant to this Section will be paid by the Company to the Employee
within 5 days of the receipt of the Determination. The existence of the Dispute
will not in any way affect the Employee's right to receive the Gross-Up Payment
in accordance with the Determination. If there is no Dispute, the Determination
will be binding upon the Company and the Employee, subject to the following
paragraph.
As a result of uncertainty in the application of Section 409A of the Code,
it is possible that a Gross-Up Payment will be paid which should not be paid
("Excess Payment") or that a Gross-Up Payment which should be paid will not be
paid ("Underpayment"). An Underpayment will be deemed to have occurred (i) upon
notice to the Employee from any governmental taxing authority that the
Employee's tax liability (whether in respect of the Employee's current taxable
year or in respect of any prior taxable year) may be increased by reason of the
imposition of the Excise Tax on a Payment or Payments with respect to which the
Company has failed to make a sufficient Gross-Up Payment, (ii) upon a
determination by a court, (iii) by reason of a determination by the Company
(which will include the position taken by the Company on its federal income tax
return) or (iv) upon the resolution of the Dispute to the Employee's
satisfaction. If an Underpayment occurs, the Employee will promptly notify the
16
Company and the Company will promptly, but in any event at least 5 days prior to
the date on which the applicable government taxing authority has requested
payment, pay to the Employee an additional Gross-Up Payment equal to the amount
of the Underpayment plus any interest and penalties (other than interest and
penalties imposed by reason of the Employee's failure to file timely a tax
return or pay taxes shown due on the Employee's return) imposed on the
Underpayment.
An Excess Payment will be deemed to have occurred upon a Final
Determination (as hereinafter defined) that the Excise Tax will not be imposed
upon a Payment or Payments (or portion thereof) with respect to which the
Employee had previously received a Gross-Up Payment. A "Final Determination"
will be deemed to have occurred when the Employee has received from the
applicable government taxing authority a refund of taxes or other reduction in
the Employee's tax liability by reason of the Excise Payment and upon either (x)
the date a determination is made by, or an agreement is entered into with, the
applicable governmental taxing authority which finally binds the Employee and
such taxing authority, or if a claim is brought before a court, the date a final
determination has been made by such court and either all appeals have been
finally resolved or the time for all appeals has expired or (y) the statute of
limitations with respect to the Employee's applicable tax return has expired. If
an Excess Payment is determined to have been made, the Employee will pay to the
Company (but not less than 10 days after the determination of such Excess
Payment and written notice has been delivered to the Employee) the amount of the
Excess Payment plus interest at an annual rate equal to the Applicable Federal
17
Rate provided for in Section 1274(d) of the Code from the date the Gross-Up
Payment was paid until the date of repayment. The Employee will use reasonable
cooperative efforts at the request of the Company to assist in the determination
of the amount of any Excess Payment or Underpayment made to the Employee
pursuant to this Plan.
6.8 Governing Law. This Agreement, the rights and obligations hereunder,
and any related claims shall be governed by and construed in accordance with the
laws of the State of Ohio.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written hereinabove.
CHEMED CORPORATION
By: /s/ Kevin J. McNamara
------------------------------------
Kevin J. McNamara, President
and Chief Executive Officer
EMPLOYEE
/s/ Timothy S. O'Toole
----------------------------------------
Timothy S. O'Toole
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Exhibit 99.1
Chemed Corporation Announces Redemption of All 8-3/4% Senior Notes Due 2011
CINCINNATI--(BUSINESS WIRE)--May 7, 2007--Chemed Corporation ("Chemed")
(NYSE:CHE) announced today the completion on May 4, 2007, of its previously
announced redemption of the entire $150 million of its outstanding 8-3/4% Senior
Notes due 2011 ("Notes"). The redemption price was 104.375% of the principal
amount of the Notes together with accrued interest to the redemption date. The
redemption was funded with borrowings under Chemed's new credit facility, which
it entered into on May 2, 2007.
Listed on the New York Stock Exchange and headquartered in Cincinnati,
Ohio, Chemed Corporation (www.chemed.com) operates two wholly owned
subsidiaries: VITAS Healthcare and Roto-Rooter. VITAS is the nation's largest
provider of end-of-life hospice care and Roto-Rooter is the nation's leading
provider of plumbing and drain cleaning services.
Statements in this press release or in other Chemed communications may
relate to future events or Chemed's future performance. Such statements are
forward-looking statements and are based on present information Chemed has
related to its existing business circumstances. Investors are cautioned that
such forward-looking statements are subject to inherent risk that actual results
may differ materially from such forward-looking statements. Further, investors
are cautioned that Chemed does not assume any obligation to update
forward-looking statements based on unanticipated events or changed
expectations.
CONTACT: Chemed Corporation
David P. Williams, 513-762-6901