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ACCESS HEALTHCARE SERVICES, LLC | ACCESS THERAPEUTICS, INC | ALLION HEALTHCARE, INC | ATLAS RESPIRATORY SERVICES, INC | BIOMED KANSAS, INC | BIOMED PHARMACEUTICALS, INC | CIT HEALTHCARE LLC | MOMS PHARMACY, INC | NORTH AMERICAN HOME HEALTH SUPPLY, INC | ORIS HEALTH, INC | SPECIALTY PHARMACIES, INC. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
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EXHIBIT 10.1
CREDIT AND GUARANTY AGREEMENT
Dated as of April 4, 2008
ALLION
HEALTHCARE, INC.
BIOMED
HEALTHCARE, INC.
ACCESS
THERAPEUTICS, INC.
ATLAS
RESPIRATORY SERVICES, INC.
BIOMED
CALIFORNIA, INC.
BIOMED FLORIDA,
INC.
BIOMED KANSAS,
INC.
BIOMED PA,
INC.
BIOMED
PHARMACEUTICALS, INC.
BIOMED TEXAS,
INC.
ACCESS
HEALTHCARE SERVICES, LLC
MOMS PHARMACY
OF BROOKLYN, INC.
MOMS PHARMACY,
INC.
MOMS PHARMACY,
INC.
MAIL ORDER MEDS
OF FLORIDA, LLC
ORIS HEALTH,
INC.
NORTH AMERICAN
HOME HEALTH SUPPLY, INC.
MEDICINE MADE
EASY
SPECIALTY
PHARMACIES, INC.
Collectively,
as the Borrowers,
CIT HEALTHCARE
LLC,
as Administrative Agent, and
THE OTHER
LENDERS PARTY HERETO
Arranged
By:
CIT CAPITAL SECURITIES
LLC,
as Sole Lead Arranger and Book Runne r
1.01.... Defined
Terms....................................................................................................
1
1.02.... Other
Interpretive
Provisions.............................................................................
32
1.03.... Accounting
Terms.............................................................................................
33
1.04....
Rounding..........................................................................................................
33
1.05.... Times of
Day....................................................................................................
33
ARTICLE 2
.......... THE COMMITMENTS AND CREDIT
EXTENSIONS................................. 34
2.01....
Loans...............................................................................................................
34
2.02....
Borrowings, Conversions and Continuations of
Loans.............................,.......... 34
2.03....
[Reserved.].......................................................................................................
36
2.04....
[Reserved.].......................................................................................................
36
2.05....
Prepayments.....................................................................................................
36
2.06....
Termination or Reduction of Total Revolving
Commitments................................ 38
2.07.... Repayment
of
Loans.........................................................................................
38
2.08....
Interest.............................................................................................................
39
2.09....
Fees.................................................................................................................
39
2.10....
Computation of Interest and
Fees......................................................................
40
2.11.... Evidence
of
Debt..............................................................................................
40
2.12.... Payments
Generally...........................................................................................
40
2.13.... Sharing of
Payments..........................................................................................
42
2.14.... Handling
of Proceeds of Collateral; Cash Dominion; Revolving Loan
Account.... 43
ARTICLE
3 .......... TAXES, YIELD PROTECTION AND
ILLEGALITY.................................... 44
3.01....
Taxes................................................................................................................
44
3.02....
Illegality............................................................................................................
48
3.03.... Inability
to Determine
Rates...............................................................................
48
3.04.... Increased
Cost and Reduced Return; Capital
Adequacy.................................... 48
3.05.... Funding
Losses.................................................................................................
49
3.06.... Matters
Applicable to all Requests for
Compensation........................................
50
3.07....
Survival............................................................................................................
50
ARTICLE 4
.......... CONDITIONS PRECEDENT TO CREDIT
EXTENSIONS.......................... 50
4.01.... Conditions
of Initial Credit
Extension.................................................................
50
4.02.... Conditions
to all Credit
Extensions....................................................................
54
ARTICLE 5
.......... REPRESENTATIONS AND
WARRANTIES................................................
55
5.01.... Existence,
Qualification and
Power...................................................................
55
5.02....
Authorization; No
Contravention......................................................................
55
5.03....
Governmental Authorization; Other
Consents....................................................
56
5.04.... Binding
Effect...................................................................................................
56
5.05.... Financial
Statements; No Material Adverse
Effect............................................. 56
5.06....
Litigation..........................................................................................................
57
5.07.... No
Default.......................................................................................................
57
5.08.... Ownership
of Property;
Liens...........................................................................
57
5.09....
Environmental
Compliance................................................................................
57
5.10....
Insurance.........................................................................................................
58
5.11....
Taxes...............................................................................................................
58
5.12.... ERISA
Compliance..........................................................................................
59
5.13....
Subsidiaries......................................................................................................
59
5.14.... Margin
Regulations; Investment Company
Act..................................................
60
5.15....
Disclosure........................................................................................................
60
5.16.... Compliance
with
Laws.....................................................................................
60
5.17....
Intellectual Property; Licenses,
Etc....................................................................
61
5.18....
Broker’s
Fees..................................................................................................
62
5.19.... Labor
Matters..................................................................................................
62
5.20.... Business
Locations...........................................................................................
62
5.21.... Perfection
of Security Interests in the
Collateral.................................................
62
5.22....
Solvency..........................................................................................................
62
5.23....
Reserved..........................................................................................................
62
5.24....
Material
Contracts............................................................................................
62
5.25.... Patriot
Act.......................................................................................................
62
5.26.... Fraud and
Abuse..............................................................................................
63
5.27.... Licensing
and
Accreditation..............................................................................
63
5.28....
Reimbursement from Medical Reimbursement
Programs.................................... 63
5.29.... Medicare
and Medicaid Notices and Filings Related to Health Care
Business.... 64
ARTICLE 6
.......... AFFIRMATIVE
COVENANTS.....................................................................
64
6.01.... Financial
Statements.........................................................................................
64
6.02....
Certificates; Other
Information..........................................................................
65
6.03....
Notices............................................................................................................
66
6.04.... Payment of
Obligations.....................................................................................
67
6.05....
Preservation of Existence,
Etc...........................................................................
68
6.06....
Maintenance of
Properties................................................................................
68
6.07....
Maintenance of
Insurance.................................................................................
68
6.08.... Compliance
with
Laws.....................................................................................
69
6.09.... Books and
Records..........................................................................................
69
6.10.... Inspection
Rights..............................................................................................
70
6.11.... Use of
Proceeds...............................................................................................
70
6.12.... Additional
Subsidiaries.....................................................................................
70
6.13.... ERISA
Compliance..........................................................................................
71
6.14.... Pledged
Assets.................................................................................................
71
6.15.... Covenant
with Respect to Environmental
Matters..............................................
72
6.16....
Reserved..........................................................................................................
73
6.17.... Lenders
Meetings.............................................................................................
73
6.18.... Post
Closing
Covenants....................................................................................
73
6.19.... Interest
Rate
Protection....................................................................................
73
ARTICLE 7
.......... NEGATIVE
COVENANTS............................................................................
74
7.01....
Liens................................................................................................................
74
7.02....
Investments......................................................................................................
75
7.03....
Indebtedness....................................................................................................
76
7.04....
Fundamental
Changes.......................................................................................
77
7.05....
Dispositions......................................................................................................
78
7.06....
Restricted
Payments.........................................................................................
78
7.07.... Change in
Nature of
Business...........................................................................
79
7.08....
Transactions with Affiliates and
Insiders............................................................
79
7.09.... Burdensome
Agreements..................................................................................
79
7.10.... Use of
Proceeds...............................................................................................
79
7.11.... Amendments
of Certain
Agreements.................................................................
79
7.12....
Organization Documents; Fiscal Year; Legal Name, State of
Formation
and Form
of
Entity...........................................................................................
80
7.13.... Ownership
of
Subsidiaries................................................................................
80
7.14.... Sale and
Leaseback
Transactions.....................................................................
80
7.15....
[Reserved].......................................................................................................
80
7.16.... Account
Control Agreements; Bank
Accounts..................................................
80
ARTICLE
8 ......... FINANCIAL
COVENANTS..........................................................................
80
8.01.... Financial
Covenants..........................................................................................
81
ARTICLE
9.......... EVENTS OF DEFAULT AND REMEDIES...................
................................ 83
9.01.... Events of
Default..............................................................................................
83
9.02.... Remedies
Upon Event of
Default......................................................................
85
9.03....
[Reserved.]......................................................................................................
86
9.04....
Application of
Funds........................................................................................
86
ARTICLE
10 ........
GUARANTY..................................................................................................
87
10.01.. The
Guaranty...................................................................................................
87
10.02.. Obligations
Unconditional.................................................................................
87
10.03..
Reinstatement...................................................................................................
88
10.04..
Waivers...........................................................................................................
88
10.05..
Remedies.........................................................................................................
89
10.06..
Contribution by
Guarantors...............................................................................
90
10.07.. Guarantee
of Payment; Continuing
Guarantee....................................................
90
10.08..
Subordination of Other
Obligations...................................................................
90
ARTICLE
11 ........ THE ADMINISTRATIVE
AGENT.................................................................
91
11.01.. Appointment
and Authorization of Administrative
Agent.................................... 91
11.02.. Delegation
of
Duties.........................................................................................
91
11.03.. Liability
of Administrative
Agent........................................................................
91
11.04.. Reliance by
Administrative
Agent......................................................................
92
11.05.. Notice of
Default..............................................................................................
92
11.06.. Credit
Decision; Disclosure of Information by Administrative
Agent................... 92
11.07..
Indemnification of Administrative
Agent.............................................................
93
11.08..
Administrative Agent in its Individual
Capacity...................................................
93
11.09.. Successor
Administrative
Agent........................................................................
94
11.10..
Administrative Agent May File Proofs of
Claim.................................................
94
11.11.. Collateral
and Guaranty
Matters.......................................................................
95
11.12.. Other
Agents; Arrangers and
Managers............................................................
95
11.13.. Cooperation
of Loan
Parties.............................................................................
95
ARTICLE
12 ........
MISCELLANEOUS.......................................................................................
96
12.01.. Amendments,
Etc.............................................................................................
96
12.02.. Notices and
Other Communications; Facsimile
Copies...................................... 98
12.03.. No Waiver;
Cumulative
Remedies....................................................................
99
12.04.. Attorney
Costs,
Expenses.................................................................................
99
12.05..
Indemnification by the Loan
Parties...................................................................
99
12.06.. Payments
Set
Aside........................................................................................
100
12.07.. Successors
and
Assigns..................................................................................
101
12.08..
Confidentiality................................................................................................
105
12.09..
Set-off...........................................................................................................
106
12.10.. Interest
Rate
Limitation...................................................................................
107
12.11..
Counterparts..................................................................................................
107
12.12..
Integration......................................................................................................
107
12.13.. Survival of
Representations and
Warranties.....................................................
107
12.14..
Severability....................................................................................................
108
12.15.. Replacement
of
Lenders.................................................................................
108
12.16.. Governing
Law...............................................................................................
108
12.17.. Waiver of
Right to Trial by
Jury.......................................................................
109
12.18.. USA Patriot
Act
Notice..................................................................................
109
12.19..
Nonliability of
Lenders....................................................................................
109
ARTICLE
13........ appointment of THE Borrower representative; joint and
several liability of the
Borrowers.............................................................................................
......... 110
13.01.. Borrower
Representative................................................................................
110
13.02.. Joint and
Several Liability of
Borrowers..........................................................
110
SCHEDULES
EXHIBITS
CREDIT AND
GUARANTY AGREEMENT
This CREDIT AND
GUARANTY AGREEMENT is entered into as of April 4, 2008 among,
ALLION HEALTHCARE, INC., a Delaware corporation (“
Holdings ”), Biomed Healthcare, Inc., a
Delaware corporation, Access Therapeutics, Inc., a Delaware
corporation, Atlas Respiratory Services, Inc., a Delaware
corporation, Biomed California, Inc., a California corporation,
Biomed Florida, Inc., a Florida corporation, Biomed Kansas, Inc., a
Kansas corporation, Biomed Pa, Inc., a Pennsylvania corporation,
Biomed Pharmaceuticals, Inc., a Delaware corporation, Biomed Texas,
Inc., a Texas corporation, Access Healthcare Services, LLC, a
Pennsylvania limited liability company, Moms Pharmacy of Brooklyn,
Inc., a New York corporation, Moms Pharmacy, Inc., a California
corporation, Moms Pharmacy, Inc., a New York corporation, Mail
Order Meds of Florida, LLC, a Florida limited liability company,
Oris Health, Inc., a California corporation, North American Home
Health Supply, Inc., a California corporation, Medicine Made Easy,
a California corporation, Specialty PharmacIES, Inc., a Washington
corporation and such other Persons joined hereto as a Borrower from
time to time (each a “ Borrower ” and together with
Holdings, the “ Borrowers ”), the Guarantors (as
hereinafter defined) from time to time party hereto, the Lenders
(as hereinafter defined) from time to time party hereto, and CIT
HEALTHCARE LLC, as Administrative Agent.
The Borrowers have
requested that the Lenders provide $55,000,000 in credit facilities
for the purposes set forth herein and the Lenders are willing to do
so on the terms and conditions set forth herein.
In consideration
of the mutual covenants and agreements herein contained, the
parties hereto covenant and agree as follows:
ARTICLE 1
DEFINITIONS AND ACCOUNTING TERMS “
Accounts ” means all of the Loan
Parties’ present and future: (a) accounts (as
defined in the UCC); (b) instruments, documents, chattel paper
(including electronic chattel paper) (all as defined in the UCC);
(c) reserves and credit balances arising in connection with or
pursuant to this Agreement; (d) guaranties, (e) other
supporting obligations, payment intangibles and letter of credit
rights (all as defined in the UCC); (f) property, including
notes and deposits, of the Loan Parties’ account debtors
securing the obligations owed by such account debtors to the Loan
Parties; and (g) all proceeds of any of the
foregoing.
“
Acquisition ” by any Person,
means the acquisition by such Person, in a single transaction or in
a series of related transactions, of all or any substantial portion
of the Property of another Person or all or a portion of the
Capital Stock of another Person, in each case whether or not
involving a merger or consolidation with such other Person and
whether for cash, property, services, assumption of Indebtedness,
securities or otherwise.
“
Administrative Agent ” means CIT
Healthcare LLC in its capacity as administrative agent under any of
the Loan Documents, or any successor administrative
agent.
“
Administrative Agent’s Bank
Account ” means the Administrative Agent’s bank
account number 304909629, ABA No. 021000021 at JPMorgan Chase
Bank NA in New York, New York, Reference: Allion
Healthcare.
“
Administrative Agent’s Office ”
means the Administrative Agent’s address and, as appropriate,
account as set forth on Schedule 12.02 or such other address
or account as the Administrative Agent may from time to time notify
the Borrowers and the Lenders.
“
Administrative Questionnaire ”
means an Administrative Questionnaire in a form supplied by the
Administrative Agent.
“
Affiliate ” means, with respect
to any Person, another Person that directly, or indirectly through
one or more intermediaries, Controls or is controlled by or is
under common Control with the Person specified.
“
Agent-Related Persons ” means
the Administrative Agent, together with its Affiliates (including,
in the case of CIT Healthcare LLC in its capacity as the
Administrative Agent and CIT Capital Securities LLC in its capacity
as the Arranger), and its Approved Funds, and the officers,
directors, employees, agents, advisors, auditors and Controlling
Persons and attorneys-in-fact of such Persons and Affiliates;
provided, however, that no Agent-Related Person shall be an
Affiliate of the Borrowers or the Guarantors.
“
Aggregate Payments ” has the meaning
set forth in Section 10.06 .
“
Agreement ” means this Credit
and Guaranty Agreement, as amended, modified, restated,
supplemented and extended from time to time.
“
AmerisourceBergen Contract ”
means that certain supply agreement by and between Holdings and
AmerisourceBergen Drug Corporation dated September 15, 2003, as
amended from time to time.
“
AmerisourceBergen Subordination
Agreement ” means that certain Subordination Agreement
by and between AmerisourceBergen Drug Corporation and
Administrative Agent dated as of even date herewith.
“
Applicable Margin ” means the
following percentages per annum: 3.00% for Base Rate Loans
and 4.00% for LIBOR Loans.
“
Approved Fund ” means (i) any
Person (other than a natural person) engaged in making, purchasing,
holding, or investing in commercial loans and similar extensions of
credit and that is advised, administered, or managed by a Lender,
an Affiliate of a Lender (or an entity or an Affiliate of an entity
that administers, advises or manages a Lender); (ii) with respect
to any Lender that is an investment fund, any other investment fund
that invests in loans and that is advised, administered or managed
by the same investment advisor as such Lender or by an Affiliate of
such investment advisor; and (iii) any third party which provides
“warehouse financing” to a Person described in the
preceding clause (i) or (ii) (and any Person described in said
clause (i) or (ii) shall also be deemed an Approved Fund with
respect to such third party providing such warehouse
financing).
“
Arranger ” means CIT Capital
Securities LLC, in its capacity as sole lead arranger and book
runner.
“
Assignment and Assumption ” means an
Assignment and Assumption Agreement substantially in the form of
Exhibit D .
“
Attorney Costs ” means and
includes all fees, expenses and disbursements of any law firm or
other external counsel.
“
Attributable Indebtedness ”
means, on any date, in respect of any Capital Lease of any Person,
the capitalized amount thereof that would appear on a balance sheet
of such Person prepared as of such date in accordance with
GAAP.
“
Audited Pre-Closing Financial
Statements ” means, collectively, (i) the unaudited
consolidated balance sheet of Target and its Subsidiaries for the
Fiscal Year ended December 31, 2007, and the related consolidated
statements of income or operations, shareholders’ equity and
cash flows of Target and its Subsidiaries for such Fiscal Year,
including the notes thereto and (ii) the audited consolidated
balance sheet of Holdings and its Subsidiaries for the Fiscal Year
ended December 31, 2007, and the related consolidated statements of
income or operations, shareholders’ equity and cash flows of
Holdings and its Subsidiaries for such Fiscal Year, including the
notes thereto.
“
Availability Period ” means, with
respect to the Revolving Commitments, the period from and including
the Closing Date to the earliest of (a) the Revolving Loan
Maturity Date, (b) the date of termination of the Revolving
Commitments pursuant to Section 2.06 , and (c) the date
of termination of the commitment of each Lender to make Loans
pursuant to Section 9.02.
“
Bankruptcy Code ” means Title 11
of the United States Code entitled “Bankruptcy,” as now
and hereafter in effect, or any successor statute.
“
Base Rate ” means for any day a
fluctuating rate per annum equal to the higher of (a) the
Federal Funds Rate plus 1/2 of 1% or (b) the rate of interest
in effect for such day as publicly announced from time to time by
JPMorgan Chase Bank as its “prime rate” in effect for
such day. Any change in the “prime
rate” announced by JPMorgan Chase Bank shall take effect
without notice to the Borrowers at the opening of business on the
day specified as the effective date of change in the public
announcement or publication of such change. The Base Rate is
not necessarily the lowest rate of interest charged by Lenders in
connection with extensions of credit.
“
Base Rate Loan ” means a Loan
that accrues interest by reference to the Base Rate in accordance
with the terms of this Agreement.
“
Blocked Account ” means each bank
account that is established by the Borrowers pursuant to
Section 2.14(c) of this Agreement and subject to a
Blocked Account Agreement.
“
Blocked Account Agreement ”
means a three-party agreement in form and substance reasonably
satisfactory to the Administrative Agent among the Administrative
Agent, the applicable Borrowers and the bank that will maintain the
Blocked Account in which the Borrowers have issued Standing
Transfer Instructions.
“
Borrower Representative ” means
Holdings, in its capacity as the borrowing agent on behalf of
itself and the Borrowers.
“
Borrowers ” has the meaning
specified in the introductory paragraph hereto.
“
Borrowing ” means a borrowing
consisting of simultaneous Loans of the same Type and, in the case
of LIBOR Loans, having the same Interest Period made by the Lenders
pursuant to Sections 2.01 and 2.02.
“
Business Day ” means any day
other than a Saturday, Sunday or other day on which commercial
banks are authorized to close under the Laws of, or are in fact
closed in, the state where the Administrative Agent’s Office
is located and, if such day relates to any LIBOR Loan, means any
such day meeting the above requirements on which dealings in Dollar
deposits are conducted by and between banks in the London interbank
eurodollar market.
“
Businesses ” means, at any time,
a collective reference to the businesses operated by the Borrowers
and their Subsidiaries at such time.
“
Capital Expenditures ” means,
with respect to any Person, all expenditures which, in accordance
with GAAP, would be required to be capitalized and shown on the
balance sheet of such Person, including expenditures in respect of
Capital Leases.
“
Capital Lease ” means, with
respect to any Person, any lease of any property (whether real,
personal or mixed) by such Person as lessee which would, in
accordance with GAAP, be required to be accounted for as a capital
lease on the balance sheet of such Person.
“
Capital Stock ” means, with
respect to any Person, all of the shares of capital stock of (or
other ownership or profit interests in) such Person, all of the
warrants, options or other rights for the purchase or acquisition
from such Person of shares of capital stock of (or other ownership
or profit interests in) such person, all of the securities
convertible into or exchangeable for shares of capital stock of (or
other ownership or profit interests in) such Person or warrants,
rights or options for the purchase or acquisition from such Person
of such shares (or such other interests), and all of the other
ownership or profit interest in such Person (including partnership,
member or trust interests therein), whether voting or nonvoting,
and whether or not such shares, warrants, options, rights or other
interests are outstanding on any date of
determination.
“
Cash Control Period ” means the
period of time commencing upon the occurrence and continuation of
an Event of Default. For purposes of this Agreement, a Cash
Control Period shall be deemed to remain outstanding from the
initial date of any Cash Control Period until the earlier of
(a) the waiver of such Event of Default by the Required
Lenders, or (b) the Termination Date.
“
Cash Equivalents ” means, as at any
date, (a) securities issued or directly and fully guaranteed
or insured by the United States or any agency or instrumentality
thereof (provided that the full faith and credit of the United
States is pledged in support thereof) having maturities of not more
than twelve months from the date of acquisition, (b) Dollar
denominated time deposits and certificates of deposit of
(i) any Lender, (ii) any domestic commercial bank of
recognized standing having capital and surplus in excess of
$500,000,000 or (iii) any bank whose short term commercial
paper rating from S&P is at least A1 or the equivalent thereof
or from Moody’s is at least P1 or the equivalent thereof (any
such bank being an “ Approved Bank ”), in each
case with maturities of not more than 270 days from the date
of acquisition, (c) commercial paper and variable or fixed
rate notes issued by any Approved Bank (or by the parent company
thereof) or any variable rate notes issued by, or guaranteed by,
any domestic corporation rated A1 (or the equivalent thereof) or
better by S&P or P1 (or the equivalent thereof) or better by
Moody’s and maturing within six months of the date of
acquisition, (d) repurchase agreements entered into by any
Person with a bank or trust company (including any of the Lenders)
or recognized securities dealer having capital and surplus in
excess of $500,000,000 for direct obligations issued by or fully
guaranteed by the United States in which such Person shall have a
perfected first priority security interest (subject to no other
Liens) and having, on the date of purchase thereof, a fair market
value of at least 100% of the amount of the repurchase obligations
and (e) Investments, classified in accordance with GAAP as
current assets, in money market investment programs registered
under the Investment Company Act of 1940, as amended, which are
administered by reputable financial institutions having capital of
at least $500,000,000 and the portfolios of which are limited to
Investments of the character described in the foregoing
subdivisions (a) through (d).
“
Change of Control ” means, at
any time, (i) any Person (other than Raymond A. Mirra, who may own
more than 35% of the direct or indirect beneficial ownership on a
fully diluted basis of the voting and/or economic interest in the
Capital Stock of Holdings, so long as such ownership in excess of
24% is acquired in connection with Earnout Payments) or
“group” (within the meaning of Rules 13d 3 and 13d
5 under the Exchange Act) shall have acquired beneficial ownership
of thirty-five percent (35%) or more on a fully diluted basis of
the voting and/or economic interest in the Capital Stock of
Holdings, (ii) the majority of the seats (other than vacant
seats) on the board of directors (or similar governing body) of
Holdings cease to be occupied by Persons who are Incumbent
Directors; or (iii) Holdings shall cease to beneficially own
and control one hundred percent (100%), on a fully diluted basis,
of the economic and voting interests in the Capital Stock of any
Borrower or any Guarantor; or (iv) a “Change of
Control” or any term of similar effect, as defined in the
document governing any Subordinated Indebtedness of any Loan Party
or any Subsidiary thereof.
“
CIT Capital ” means CIT Capital
Securities, LLC, and its successors and assigns.
“
Closing Date ” means April 4,
2008.
“
CMS ” means the Centers for
Medicare and Medicaid Services of HHS and any successor thereof and
any predecessor thereof, including the United States Health Care
Financing Administration.
“
Collateral ” means,
collectively, all real and personal Property with respect to which
Liens in favor of the Administrative Agent are granted (or were
intended to be granted) pursuant to and in accordance with the
terms of the Collateral Documents.
“
Collateral Assignment of Agreement
” means that certain Collateral Assignment of Agreement and
Plan of Merger executed by each of the applicable Loan Parties in
favor of the Administrative Agent under and pursuant to which such
Loan Parties collaterally assign to the Administrative Agent all of
their rights and remedies to certain agreements, in each case as
amended, supplemented, modified, replaced, substituted for or
restated from time to time and all exhibits and schedules attached
thereto.
“
Collateral Documents ” means,
collectively, the Security Agreement, the Landlord Agreements, the
Collateral Assignment of Agreements, the Deposit Account Control
Agreements, the Deposit Account Restriction Agreements, the Blocked
Account Agreements and such other security documents as may be
executed and delivered by the Loan Parties pursuant to the terms of
Section 6.14 .
“
Commitment ” means, as to each Lender,
the Revolving Commitment and/or the Term Loan Commitment, as
applicable, set forth opposite such Lender’s name on
Schedule 2.01 or in the Register, as applicable, as the
same may be reduced or modified at any time and from time to time
pursuant to the terms hereof.
“
Compliance Certificate ” means a
certificate substantially in the form of Exhibit C
.
“
Concentration Account ” means
the bank account number 003922594898, ABA number 052001633 for ACH
and EFT transfer and ABA number 026009593 for wire transfers with
the account name Allion Healthcare, Inc., maintained by Borrower
Representative at Bank of America at 10 Light Street, Baltimore,
Maryland 21202 and subject to a Deposit Account Control
Agreement.
“
Consolidated Capital Expenditures ”
means, for any period, for Loan Parties and their Subsidiaries on a
consolidated basis, all Capital Expenditures, as determined in
accordance with GAAP; provided , however , that Consolidated
Capital Expenditures shall not include (a) expenditures made with
proceeds of any Involuntary Disposition to the extent such
expenditures are used to purchase Property that is the same as or
similar to the Property subject to such Involuntary Disposition or
(b) Permitted Acquisitions.
“
Consolidated EBITDA ” means, for any
period for the Consolidated Group on a consolidated basis (without
duplication), an amount equal to Consolidated Net Income for such
period plus the following to the extent deducted in calculating
such Consolidated Net Income: (a) Consolidated Interest
Charges for such period, (b) the provision for federal, state,
local and foreign income taxes payable by the Consolidated Group
for such period, (c) the amount of depreciation and
amortization expense for such period, (d) restructuring charges,
accruals or reserves related to the Target Merger, (e)
extraordinary losses, unusual or non-recurring charges, and
(f) all other non-recurring non-cash charges (including
non-cash stock or equity compensation) reasonably acceptable to
Administrative Agent and for which no cash outlay prior to the
Termination Date is foreseeable; and minus the following to
the extent included in calculating such Consolidated Net
Income: (w) Consolidated Interest Income,
(x) income tax credits (to the extent not netted from income
taxes payable), (y) any extraordinary, unusual or non-recurring
income or gains (including gains on the sale of assets outside the
ordinary course of business) and related tax effects thereon and
(z) all non-cash income, for the period of the four (4) Fiscal
Quarters ended on such date; provided, however, that such
calculation as of the Fiscal Quarter ending June 30, 2008 shall be
for the most recent fiscal quarterly period ending on such date on
a cumulative, annualized basis; such calculation as of the Fiscal
Quarter ending September 30, 2008 shall be for the two (2) most
recent fiscal quarterly periods ending on such date on a
cumulative, annualized basis; and such calculation as of the Fiscal
Quarter ending December 31, 2008 shall be for the three (3) most
recent fiscal quarterly periods ending on such date on a
cumulative, annualized basis.
“
Consolidated Fixed Charges ”
means, for any period for the Consolidated Group on a consolidated
basis, an amount equal to the sum of (a) the cash portion of
Consolidated Interest Charges for such period plus
(b) Consolidated Scheduled Funded Debt Payments for such
period plus (c) taxes paid in cash for such period, all as
determined in accordance with GAAP.
“
Consolidated Fixed Charges Coverage
Ratio ” means, as of any date of determination, the
ratio of (a) Consolidated EBITDA for the period of the four
(4) Fiscal Quarters ended on such date less Capital Expenditures
made in such period to (b) Consolidated Fixed Charges for the
period of four (4) Fiscal Quarters ended on such date; provided,
however, that such calculation as of the Fiscal Quarter ending June
30, 2008 shall be for the most recent fiscal quarterly period
ending on such date on a cumulative, annualized basis; such
calculation as of the Fiscal Quarter ending September 30, 2008
shall be for the two (2) most recent fiscal quarterly periods
ending on such date on a cumulative, annualized basis; and such
calculation as of the Fiscal Quarter ending December 31, 2008 shall
be for the three (3) most recent fiscal quarterly periods ending on
such date on a cumulative, annualized basis.
“
Consolidated Funded Indebtedness
” means Funded Indebtedness of Loan Parties and their
Subsidiaries on a consolidated basis determined in accordance with
GAAP.
“
Consolidated Group ” means the
Loan Parties and their Subsidiaries.
“
Consolidated Interest Charges ”
means, for any period, the interest expense (including any rent
expense for such period under Capital Leases that is treated as
interest in accordance with GAAP) of the Consolidated Group for
such period with respect to all outstanding Indebtedness of the
Consolidated Group (including all commissions, discounts and other
fees and charges owed with respect to letters of credit and
bankers’ acceptance financing and net costs under Hedge
Agreements in respect of interest rates to the extent such net
costs are allocable to such period in accordance with GAAP),
determined on a consolidated basis in accordance with
GAAP.
“
Consolidated Interest Income ”
means, for any period, the interest income of the Consolidated
Group for such period, determined on a consolidated basis in
accordance with GAAP.
“
Consolidated Net Income ” means, for
any period for the Consolidated Group on a consolidated basis, the
net income of the Consolidated Group for such period as determined
in accordance with GAAP; provided that there shall be
excluded (a) the income (or deficit) of any Person (other than
a Subsidiary of a Borrower) in which a Borrower or any of its
Subsidiaries has an ownership interest, except to the extent that
any such income is actually received by such Borrower or such
Subsidiary in the form of dividends or similar distributions,
(b) the undistributed earnings of any Subsidiary of the
Borrower to the extent that the declaration of payment or dividends
or similar distributions by such Subsidiary is not at the time
permitted by the terms of any Contractual Obligation, governing
document or Law applicable to such Subsidiary and (c) the
income (or deficit) of any Subsidiary of any Borrower which is not
a Guarantor.
“
Consolidated Scheduled Funded Debt Payments
” means, for any period for the Consolidated Group on a
consolidated basis, the sum of all scheduled payments of principal
on Consolidated Funded Indebtedness scheduled to be paid during
such period, as determined in accordance with GAAP. For
purposes of this definition, payments of principal scheduled to be
paid (a) shall be determined after giving effect to any
reduction of such scheduled payments resulting from the application
of any voluntary prepayments made during the applicable period,
(b) shall be deemed to include the Attributable Indebtedness
in respect of Capital Leases, Synthetic Leases and Sale and
Leaseback Transactions, (c) shall not include any mandatory
prepayments required pursuant to Section 2.05 , and (d)
shall be determined without giving effect to the Following Business
Day Convention.
“
Consolidated Senior Leverage Ratio
” means, as of any date of determination, the ratio of
(a) Consolidated Funded Indebtedness (other than Subordinated
Indebtedness) as of such date to (b) Consolidated
EBITDA.
“
Consolidated Total Leverage Ratio
” means, as of any date of determination, the ratio of
(a) Consolidated Funded Indebtedness as of such date (other
than Subordinated Indebtedness associated with the Qualified Seller
Notes) to (b) Consolidated EBITDA.
“
Contract Provider ” means any
Person or any employee, agent or subcontractor of such Person who
provides professional health care services under or pursuant to any
employment arrangement or contract with any Borrower or any
Subsidiary.
“
Contractual Obligation ” means,
as to any Person, any provision of any security issued by such
Person or of any agreement, instrument or other undertaking to
which such Person is a party or by which it or any of its Property
is bound.
“
Contributing Guarantors ” has the
meaning set forth in Section 10.06 .
“
Control ” means the possession,
directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or
otherwise. “ Controlling ” and “
Controlled ” have meanings correlative thereto.
Without limiting the generality of the foregoing, a Person shall be
deemed to be controlled by another Person if such other Person
possesses, directly or indirectly, power to vote 10% or more of the
securities having ordinary voting power for the election of
directors, managing general partners or the
equivalent.
“
Credit Extension ” means a
Borrowing.
“
Debt Issuance ” means the issuance of
any Indebtedness for borrowed money by any Loan Party other than
Indebtedness permitted under Section 7.03
.
“
Debtor Relief Laws ” means the
Bankruptcy Code, and all other liquidation, conservatorship,
bankruptcy, assignment for the benefit of creditors, moratorium,
rearrangement, receivership, insolvency, reorganization, or similar
debtor relief Laws of the United States or other applicable
jurisdictions from time to time in effect and affecting the rights
of creditors generally.
“
Default ” means any event or
condition that constitutes an Event of Default or that, with the
giving of any notice, the passage of time, or both, would be an
Event of Default.
“
Default Rate ” means when used with
respect to Obligations, an interest rate equal to (i) the Base
Rate plus (ii) the Applicable Margin, if any, applicable to
Base Rate Loans plus (iii) 2% per annum; provided ,
however , that with respect to a LIBOR Loan, the Default
Rate shall be an interest rate equal to the interest rate
(including any Applicable Margin) otherwise applicable to such Loan
plus 2% per annum, in all cases to the fullest extent permitted by
applicable Laws. Interest accruing at the Default Rate shall
be immediately payable upon demand.
“
Defaulting Lender ” means any
Lender that (a) has failed to fund any portion of the Loans
required to be funded by it hereunder within one (1) Business Day
of the date required to be funded by it hereunder, (b) has
otherwise failed to pay over to the Administrative Agent or any
other Lender any other amount required to be paid by it hereunder
within one (1) Business Day of the date when due, unless the
subject of a good faith dispute, or (c) has been deemed insolvent
or becomes the subject of a bankruptcy or insolvency proceeding
under any Debtor Relief Laws.
“
Deposit Account Control Agreement
” means an agreement among a Loan Party, a depository
institution, and the Administrative Agent, which agreement is in a
form reasonably acceptable to the Administrative Agent and which
provides the Administrative Agent with “control” (as
such term is used in Article 9 of the UCC) over the deposit
account(s) described therein, as the same may be amended, modified,
extended, restated, replaced, or supplemented from time to time,
and contains such other terms and conditions as Administrative
Agent may reasonably require, including as to any such agreement
pertaining to any deposit account, providing that such depository
institution shall wire, or otherwise transfer, in immediately
available funds, on a daily basis (or such other periodic basis
acceptable to Administrative Agent) to the Concentration Account
(or, at Administrative Agent’s option during a Cash Control
Period, to Administrative Agent’s Bank Account) all funds
received or deposited into such deposit account.
“
Deposit Account Restriction Agreement
” means an agreement among a Borrower, a depository
institution, and the Administrative Agent, which agreement is in a
form reasonably acceptable to the Administrative Agent covering
deposit accounts into which proceeds of Accounts from Governmental
Account Debtors are paid directly by the Governmental Account
Debtor, and which agreement contains such terms and conditions as
Administrative Agent may reasonably require, including a
requirement that such depository institution shall wire, or
otherwise transfer, in immediately available funds, on a daily
basis (or such other periodic basis acceptable to Administrative
Agent) to the Concentration Account (or, at Administrative
Agent’s option during a Cash Control Period, to
Administrative Agent’s Bank Account) all funds received or
deposited into such deposit account unless the applicable Borrower
shall otherwise instruct the bank in writing, subject to the
limitations set forth in the Deposit Account Restriction Agreement
and the other Loan Documents.
“
Disposition ” or “ Dispose
” means the sale, transfer, license, lease or other
disposition of any Property by any Loan Party or any Subsidiary
(including the Capital Stock of any Subsidiary), including any Sale
and Leaseback Transaction and including any sale, assignment,
transfer or other disposal, with or without recourse, of any notes
or accounts receivable or any rights and claims associated
therewith, but excluding (a) the sale, lease, license,
transfer or other disposition of inventory in the ordinary course
of business of the Loan Parties and their Subsidiaries,
(b) the sale, lease, license, transfer or other disposition of
machinery and equipment no longer used or useful in the conduct of
business of the Loan Parties and their Subsidiaries, (c) any
sale, lease, license, transfer or other disposition of Property by
any Loan Party or any Subsidiary to any other Loan Party,
(d) any Involuntary Disposition by any Loan Party or any
Subsidiary and (e) any license of any IP Rights by any Loan
Party or any Subsidiary in the ordinary course of
business.
“
Dollar ” and “ $ ”
mean lawful money of the United States.
“
Earnout Payment ” means any
payment (whether in the form of cash, stock or a note) of the
Earnout Payment Amount (as defined in the Target Merger
Agreement).
“
Environmental Laws ” means the
Comprehensive Environmental Response, Compensation and Liability
Act (42 U.S.C. § 9601, et seq .), the Hazardous Materials
Transportation Act (49 U.S.C. § 5101, et seq .), the
Resource Conservation and Recovery Act (42 U.S.C. § 6901,
et seq .), the Federal Clean Water Act (33 U.S.C. § 1251
et seq .), the Clean Air Act (42 U.S.C. § 7401 et seq .),
the Toxic Substances Control Act (15 U.S.C. § 2601 et seq
.), the Safe Drinking Water Act (42 U.S.C. § 300f to
300j-26 et seq .), the Oil Pollution Act of 1990 (33 U.S.C.
§ 2701 et seq .) and the Occupational Safety and Health
Act (29 U.S.C. § 651 et seq .), as such laws may
be amended or otherwise modified from time to time, and any other
federal, state, local, foreign and other applicable statutes, laws,
regulations, ordinances, rules, judgments, orders, decrees,
permits, concessions, grants, franchises, licenses, agreements or
governmental restrictions and common law relating to pollution, the
protection of the environment, natural resources, human health or
the release of any materials into the environment, including those
related to Hazardous Materials, hazardous substances or wastes,
indoor and outdoor air emissions, soil, groundwater, wastewater,
surface water, stormwater, wetlands, sediment and discharges of
wastewater to public treatment systems.
“
Environmental Liability ” means
any liability, contingent or otherwise (including any liability for
damages, losses, punitive damages, consequential damages, costs of
environmental investigation and remediation, fines, penalties,
indemnities or expenses (including all reasonable fees,
disbursements and expenses of counsel, experts and consultants)),
of the Borrowers or any Subsidiary directly or indirectly resulting
from or based upon (a) violation of any Environmental Law,
(b) the generation, use, handling, transportation, storage,
treatment or disposal of any Hazardous Materials, (c) exposure
to any Hazardous Materials, (d) the release or threatened
release of any Hazardous Materials into the environment or
(e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to
any of the foregoing.
“
Equity Issuance ” means any
issuance by any Loan Party or any Subsidiary thereof to any Person
of shares of its Capital Stock, other than any issuance of shares
of Capital Stock by Holdings (a) pursuant to the exercise of
options or warrants, (b) pursuant to the conversion of any debt
securities to equity or the conversion of any class equity
securities to any other class of equity securities, (c) as
consideration for or to finance a Permitted Acquisition and
(d) to officers and employees pursuant to employee benefit or
incentive plans or other similar arrangements. The term
“Equity Issuance” shall not be deemed to include any
Disposition.
“
ERISA ” means the Employee
Retirement Income Security Act of 1974 and any successor
thereto.
“
ERISA Affiliate ” means any
corporation, trade or business (whether or not incorporated) under
common control with a Borrower within the meaning of
Section 414(b) or (c) of the Internal Revenue Code (and
Sections 414(m) and (o) of the Internal Revenue Code for
purposes of provisions relating to Section 412 of the Internal
Revenue Code). Any former ERISA Affiliate of a Borrower or
any of its Subsidiaries shall continue to be considered an ERISA
Affiliate of a Borrower or any of its Subsidiaries within the
meaning of this definition with respect to the period such entity
was an ERISA Affiliate of a Borrower or any of its Subsidiaries and
with respect to liabilities arising after such period for which a
Borrower or any of its Subsidiaries could be liable under the
Internal Revenue Code or ERISA.
“
ERISA Event ” means (a) a
Reportable Event with respect to a Pension Plan; (b) a
withdrawal by a Borrower or any ERISA Affiliate from a Pension Plan
subject to Section 4063 of ERISA during a plan year in which
it was a substantial employer (as defined in Section 4001(a)(2) of
ERISA) or a cessation of operations that is treated as such a
withdrawal under Section 4062(e) of ERISA; (c) a complete or
partial withdrawal by a Borrower or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is in
reorganization or insolvency pursuant to Section 4241 or 4245 of
ERISA; (d) the filing of a notice of intent to terminate, the
treatment of a Plan amendment as a termination under Sections 4041
or 4041A of ERISA, or the commencement of proceedings by the PBGC
to terminate a Pension Plan or Multiemployer Plan; (e) an
event or condition which constitutes grounds under Section 4042 of
ERISA for the termination of, or the appointment of a trustee to
administer, any Pension Plan or Multiemployer Plan; or (f) the
imposition of any liability under Title IV of ERISA, other than for
PBGC premiums due but not delinquent under Section 4007 of
ERISA, upon a Borrower or any ERISA Affiliate; (g) the
occurrence of an act or omission which could give rise to the
imposition on a Borrower or any ERISA Affiliate of fines,
penalties, taxes or related charges under Chapter 43 of the
Internal Revenue Code or under Section 409,
Section 502(c), (i) or (l), or Section 4071 of ERISA in
respect of any Plan; (h) the assertion of a material claim
(other than routine claims for benefits) against any Plan other
than a Multiemployer Plan or the assets thereof, or against the
Borrowers or any ERISA Affiliate in connection with any Plan;
(i) receipt from the IRS of notice of the failure of any
Pension Plan (or any other Plan intended to be qualified under
Section 401(a) of the Internal Revenue Code) to qualify under
Section 401(a) of the Internal Revenue Code, or the failure of
any trust forming part of any Pension Plan to qualify for exemption
from taxation under Section 501(a) of the Internal Revenue
Code; (j) the imposition of a Lien pursuant to Section
401(a)(29) or 412(n) of the Internal Revenue Code or pursuant to
ERISA with respect to any Pension Plan; (k) the commencement
of any administrative investigation, audit or other administrative
proceeding by the Department of Labor, IRS or other Governmental
Authority, including any voluntary compliance submission through
the IRS’s Employee Plans Compliance Resolution System or the
Department of Labor’s Voluntary Fiduciary Correction Program;
or (l) the occurrence of a non-exempt “prohibited
transaction” within the meaning of Section 406 of ERISA
or Section 4975 of the Internal Revenue Code.
“
Eurodollar Reserve Percentage ”
the daily average during the preceding month of the aggregate
maximum reserve requirement (expressed as a decimal) then imposed
under Regulation D of the Board of Governors of the Federal Reserve
System (or any successor thereto) for “Eurocurrency
Liabilities” (as defined therein).
“
Event of Default ” has the meaning
specified in Section 9.01 .
“
Exchange Act ” means the
Securities Exchange Act of 1934, as amended.
“
Excluded Account ” means any
deposit account that is used solely for payment of payroll,
bonuses, other compensation and related expenses, and deposit
accounts that do not, in the aggregate, have a balance in excess of
$500,000 at any time.
“
Excluded Property ” means, with
respect to any Loan Party (a) any owned or leased real or
personal Property which is located outside of the United States
unless requested by the Required Lenders, (b) any leased Real
Property, (c) any personal Property (including motor vehicles)
in respect of which perfection of a Lien is not governed by the
UCC, unless requested by the Required Lenders, and (d) other
than Accounts, any lease, license or other asset over which the
granting of a security interest in such asset is prohibited by
contractual restrictions or applicable Law and would result in the
termination of such lease or license, but only to the extent that
(i) in the case of contractual restrictions after reasonable
efforts, consent from the relevant party or parties has not been
obtained and (ii) any such prohibition could not be rendered
ineffective pursuant to the UCC or any other applicable law
(including Debtor Relief Laws) or principles of
equity.
“
Exclusion Event ” means an event
or events resulting in the exclusion of any Borrower or any
Subsidiary or any of the Facilities from participation in any
Medical Reimbursement Program.
“
Existing Credit Agreement ”
means that certain Amended and Restated Financing Agreement by and
among CIT Healthcare LLC, as lender, and Target and certain of its
Affiliates, as borrowers, dated October 15, 2007 (as amended from
time to time).
“
Existing Seller Notes ” means,
collectively, the following unsecured promissory notes: (i) that
certain Promissory Note dated October 5, 2007 executed by Biomed
America, Inc. in favor of Raymond A. Mirra, Jr. in the principal
amount of $3,000,000, (ii) that certain Promissory Note dated
December 31, 2007 executed by Biomed America, Inc., Biomed
Pharmaceuticals, Inc., Biomed California, Inc., Biomed Florida,
Inc., Biomed Kansas, Inc., Biomed PA, Inc. and Biomed Texas, Inc.
in favor of RAM Capital Group, LLC, in the principal amount of
$218,535 and (iii) that certain Promissory Note dated September 30,
2006 executed by Apogenics Healthcare, Inc. in favor of RAM Capital
Group, LLC in the principal amount of $425,000.
“
Facilities ” means, at any time,
the facilities and real properties owned, leased, managed or
operated by any Loan Party or any Subsidiary, from which any Loan
Party or any Subsidiary provides or furnishes goods or
services.
“
Fair Share ” has the meaning set forth
in Section 10.06 .
“
Fair Share Contribution Amount ” has
the meaning set forth in Section 10.06 .
“
Federal Funds Rate ” means, for
any day, the rate per annum equal to the weighted average of the
rates on overnight federal funds transactions with members of the
Federal Reserve System arranged by federal funds brokers on such
day, as published by the Federal Reserve Bank on the Business Day
next succeeding such day; provided that (a) if such day is not
a Business Day, the Federal Funds Rate for such day shall be such
rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day, and (b) if no
such rate is so published on such next succeeding Business Day, the
Federal Funds Rate for such day shall be the average rate (rounded
upward, if necessary, to a whole multiple of 1/100 of 1%) charged
to CIT Healthcare on such day on such transactions as determined by
the Administrative Agent, in its sole discretion.
“
Fee Letter ” means the letter
agreement dated as of March 13, 2008 among the Borrowers, the
Administrative Agent and the Arranger.
“
Fiscal Quarter ” means a fiscal
quarter of any Fiscal Year.
“
Fiscal Year ” means the fiscal
year of Loan Parties and their Subsidiaries or Target, as
applicable, ending on December 31 of each calendar
year.
“
Following Business Day Convention
” means a contractual provision or provision of applicable
Laws pursuant to which a scheduled date for payment or performance
of an obligation, which date is not a Business Day, is extended to
the first following day that is a Business Day.
“
Foreign Lender ” has the meaning
specified in Section 3.01(f) .
“
FRB ” means the Board of
Governors of the Federal Reserve System of the United
States.
“
Funded Indebtedness ” means, as
to any Person at a particular time, without duplication, all of the
following, whether or not included as indebtedness or liabilities
in accordance with GAAP:
(a)
obligations for borrowed money, whether current or
long-term (including the Obligations and any Subordinated
Indebtedness) and all obligations of such Person evidenced by
bonds, debentures, notes, loan agreements or other similar
instruments;
(b)
all purchase money indebtedness;
(c)
the principal portion of all obligations under
conditional sale or other title retention agreements relating to
Property purchased by such Person (other than customary
reservations or retentions of title under agreements with suppliers
entered into in the ordinary course of business);
(d)
the maximum amount available to be drawn under
letters of credit (including standby and commercial),
bankers’ acceptances, bank guaranties, surety bonds and
similar instruments;
(e)
all obligations in respect of the deferred purchase
price of Property or services (other than trade accounts payable in
the ordinary course of business);
(f)
Attributable Indebtedness in respect of Capital
Leases;
(g)
all preferred stock or other equity interests
providing for mandatory redemptions sinking fund or like payments
prior to the Term Loan Maturity Date (except to the extent payable
in common stock);
(h)
all Funded Indebtedness of others secured by (or for
which the holder of such Funded Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on, or payable
out of the proceeds of production from, Property owned or acquired
by such Person, whether or not the obligations secured thereby have
been assumed; and
(i)
all Guarantees with respect to Funded Indebtedness
of the types specified in clauses (a) through (h) above
of another Person.
“
Funding Guarantor ” has the meaning set
forth in Section 10.06 .
“
GAAP ” means generally accepted
accounting principles in the United States set forth in the
opinions and pronouncements of the Accounting Principles Board and
the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards
Board, consistently applied and as in effect from time to
time.
“
Governmental Account Debtor ”
means an account debtor making payments under Medicare, Medicaid
and TRICARE and any other health care program operated by or
financed in whole or in part by any foreign or domestic federal,
state or local government.
“
Governmental Approvals ” means
any and all Permits of each Governmental Authority issued or
required under Laws applicable to the business of any Borrower or
any of its Subsidiaries or necessary in the sale, furnishing, or
delivery of goods or services under Laws applicable to the business
of any Borrower or any of its Subsidiaries.
“
Governmental Authority ” means
any nation or government, any state or other political subdivision
thereof, any agency, authority, instrumentality, regulatory body,
court, administrative tribunal, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to
government.
“
Governmental Reimbursement Program
Cost ” means with respect to and payable by the
Borrowers and their Subsidiaries the sum of:
(a)
amounts (including punitive and other similar
amounts) agreed to be paid or payable (i) in settlement of
claims or (ii) as a result of a final, non-appealable
judgment, award or similar order, in each case, relating to
participation in Medical Reimbursement Programs;
(b)
all final, non-appealable fines, penalties,
forfeitures or other amounts rendered pursuant to criminal
indictments or other criminal proceedings relating to participation
in Medical Reimbursement Programs; and
(c)
the amount of final, non-appealable recovery,
damages, awards, penalties, forfeitures or similar amounts rendered
in any litigation, suit, arbitration, investigation, review or
other legal or administrative proceeding of any kind relating to
participation in Medical Reimbursement Programs.
“
Guarantee ” means, as to any Person,
(a) any obligation, contingent or otherwise, of such Person
guaranteeing or having the economic effect of guaranteeing any
Indebtedness or other obligation payable or performable by another
Person (the “ primary obligor ”) in any manner,
whether directly or indirectly, and including any obligation of
such Person, direct or indirect, (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation, (ii) to purchase or lease
property, securities or services for the purpose of assuring the
obligee in respect of such Indebtedness or other obligation of the
payment or performance of such Indebtedness or other obligation,
(iii) to maintain working capital, equity capital or any other
financial statement condition or liquidity or level of income or
cash flow of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation, or
(iv) entered into for the purpose of assuring in any other
manner the obligee in respect of such Indebtedness or other
obligation of the payment or performance thereof or to protect such
obligee against loss in respect thereof (in whole or in part), or
(b) any Lien on any assets of such Person securing any
Indebtedness or other obligation of any other Person, whether or
not such Indebtedness or other obligation is assumed by such
Person. The amount of any Guarantee shall be deemed to be an
amount equal to the stated or determinable amount of the related
primary obligation, or portion thereof, in respect of which such
Guarantee is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof as determined
by the guaranteeing Person in good faith. The term
“Guarantee” as a verb has a corresponding
meaning.
“
Guaranteed Obligations ” has the
meaning set forth in Section 10.01 .
“
Guarantor ” means all future
direct or indirect Subsidiaries of Borrowers (unless such
Subsidiary is a Borrower).
“
Guaranty ” means the guaranty made by
each Guarantor in favor of the Administrative Agent, the Lenders
and the other Secured Parties pursuant to Article 10
.
“
HHS ” means the United States
Department of Health and Human Services and any successor
thereof.
“
HIPAA ” means the Health
Insurance Portability and Accountability Act of 1996, Pub. L.
104-191, Aug. 21, 1996, 110 Stat. 1936.
“
Hazardous Materials ” means all
explosive or radioactive substances or wastes and all hazardous or
toxic substances, wastes or other pollutants, including petroleum
or petroleum distillates, asbestos or asbestos-containing
materials, polychlorinated biphenyls, lead-based paint, toxic mold
or fungus, radon gas, infectious or medical wastes and all other
substances or wastes of any nature regulated pursuant to any
Environmental Law.
“
Healthcare Laws ” means all
federal and state laws applicable to the business of Borrower
regulating the provision of and payment for healthcare services,
including HIPAA, Section 1128B(b) of the Social Security Act, as
amended, 42 U.S.C. Section 1320a-7b (Criminal Penalties Involving
Medicare or State Health Care Programs), commonly referred to as
the “Federal Anti-Kickback Statute,” and Section 1877
of the Social Security Act, as amended, 42 U.S.C. Section 1395nn
(Prohibition Against Certain Referrals), commonly referred to as
“Stark Statute,” and all rules and regulations
promulgated thereunder, including the Medicare Regulations and the
Medicaid Regulations, the Federal Food, Drug & Cosmetic Act (21
U.S.C. §§ 301 et seq.) and the regulations
promulgated pursuant thereto, the Medicare Prescription Drug,
Improvement, and Modernization Act of 2003 (Pub. L. No. 108-173)
and the regulations promulgated pursuant thereto, and quality,
safety and accreditation standards and requirements of all
applicable state laws or regulatory bodies, and all rules and
regulations promulgated under any of the foregoing.
“
Healthcare Permit ” means a
Governmental Approval required under Healthcare Laws applicable to
the business of any Borrower or any of its Subsidiaries or
necessary in the sale, furnishing, or delivery of goods or services
under Healthcare Laws applicable to the business of any Borrower or
any of its Subsidiaries.
“
Hedge Agreement ” means (a) any
and all rate swap transactions, basis swaps, credit derivative
transactions, forward rate transactions, commodity swaps, commodity
options, forward commodity contracts, equity or equity index swaps
or options, bond or bond price or bond index swaps or options or
forward bond or forward bond price or forward bond index
transactions, interest rate options, forward foreign exchange
transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap
transactions, currency options, spot contracts, or any other
similar transactions or any combination of any of the foregoing
(including any options to enter into any of the foregoing), whether
or not any such transaction is governed by or subject to any master
agreement, and (b) any and all transactions of any kind, and
the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement
published by the International Swaps and Derivatives Association,
Inc., any International Foreign Exchange Master Agreement, or any
other master agreement (any such master agreement, together with
any related schedules, a “ Master Agreement ”),
including any such obligations or liabilities under any Master
Agreement.
“
Hedge Party ” means any Person
that is a counterparty to a Hedge Agreement with a Loan
Party.
“
Holdings ” has the meaning
specified in the introductory paragraph hereto.
“
Holdings Unadjusted 2007 EBITDA
” means EBITDA as defined in the annual unaudited financial
statements of Holdings for the fiscal year ending December 31,
2007, in the amount of $7,948,000.
“
Incumbent Directors ” means
those Persons who were members of the board of directors of
Holdings on the closing Date (it being acknowledged and agreed that
the two members of the board of directors of Holdings to be
appointed by the former stockholders of Target in connection with
the Target Merger are considered to be members of the board of
directors of Holdings as of the Closing Date); provided that any
Person who becomes a director after the Closing Date and whose
election or nomination for election was approved by a vote of at
least a majority of the then-current Incumbent Directors shall be
deemed to be an Incumbent Director.
“
Indebtedness ” means, as to any
Person at a particular time, without duplication, all of the
following, whether or not included as indebtedness or liabilities
in accordance with GAAP:
(a)
all Funded Indebtedness;
(b)
the Termination Value of any Secured Hedge
Agreement;
(c)
Synthetic Leases, Sale and Leaseback Transactions
and Securitization Transactions; and
(d)
all Guarantees with respect to outstanding
Indebtedness of the types specified in clauses (b) and (c)
above of any other Person.
“
Indemnified Liabilities ” has the
meaning set forth in Section 12.05 .
“
Indemnitees ” has the meaning set forth
in Section 12.05 .
“
Information ” has the meaning set forth
in Section 12.08(a) .
“
Interest Payment Date ” means
(a) as to any LIBOR Loan, the last day of each Interest Period
applicable to such LIBOR Loan and the Term Loan Maturity Date or
Revolving Loan Maturity Date (as applicable); provided ,
however , that if any Interest Period for a LIBOR Loan
exceeds three months, the respective dates that fall every three
months after the beginning of such Interest Period shall also be
Interest Payment Dates; and (b) as to any Base Rate Loan, the
last Business Day of each calendar month and the Revolving Loan
Maturity Date or Term Loan Maturity Date (as
applicable).
“
Interest Period ” means, as to each
LIBOR Loan, the period commencing on the date such LIBOR Loan is
disbursed or converted to or continued as a LIBOR Loan and ending
on the date one (1), two (2), three (3) or six (6) months
thereafter, as selected by the Borrower Representative in its Loan
Notice; provided that:
(a)
any Interest Period that would otherwise end on a
day that is not a Business Day shall be extended to the next
succeeding Business Day unless such Business Day falls in another
calendar month, in which case such Interest Period shall end on the
next preceding Business Day;
(b)
any Interest Period that begins on the last Business
Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of
such Interest Period) shall end on the last Business Day of the
calendar month at the end of such Interest Period; and
(c)
no Interest Period shall extend beyond the Term Loan
Maturity Date or Revolving Loan Maturity Date, as
applicable.
“
Interim Pre-Closing Financial
Statements ” means, collectively, (i) the
unaudited consolidated financial statements of the Target and its
Subsidiaries for the period commencing January 1, 2008 through and
including February 29, 2008 and the related consolidated statements
of income or operations, shareholders’ equity and cash flows,
for such period and (ii) the unaudited consolidated financial
statements of the Loan Parties and their Subsidiaries for the
period commencing January 1, 2008 through and including February
29, 2008 and the related consolidated statements of income or
operations, shareholders’ equity and cash flows, for such
period.
“
Internal Revenue Code ” means
the Internal Revenue Code of 1986.
“
Investment ” means, as to any
Person, any direct or indirect acquisition or investment by such
Person, whether by means of (a) the purchase or other
acquisition of any of the Capital Stock of another Person,
(b) a loan, advance or capital contribution to, Guarantee or
assumption of debt of, or purchase or other acquisition of any
other debt or equity participation or interest in, another Person,
or (c) an Acquisition. For purposes of covenant
compliance, the amount of any Investment shall be the amount
actually invested, without adjustment for subsequent increases or
decreases in the value of such Investment.
“
Involuntary Disposition ” means
any loss of, damage to or destruction of, or any condemnation or
other taking for public use of, any Property of any Loan
Party.
“
IP Rights ” has the meaning set forth
in Section 5.17 .
“
IRS ” means the United States
Internal Revenue Service.
“
Joinder Agreement ” means a joinder
agreement substantially in the form of Exhibit E executed and
delivered by a Subsidiary in accordance with the provisions of
Section 6.12 .
“
Landlord Agreement ” means any
agreement between the Administrative Agent and the landlord of Real
Property occupied by a Loan Party, as tenant, which agreement shall
be substantially in the form attached hereto as
Exhibit F (or such other form as is reasonably
satisfactory to the Administrative Agent), as amended,
supplemented, modified, replaced, substituted for or restated from
time to time and all exhibits and schedules attached
thereto.
“
Laws ” means, collectively, all
international, foreign, federal, state and local statutes,
treaties, rules, guidelines, regulations, ordinances, compacts,
codes and administrative or judicial precedents or authorities,
including the interpretation or administration thereof by any
Governmental Authority charged with the enforcement, interpretation
or administration thereof, and all applicable administrative
orders, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any Governmental Authority, in
each case whether or not having the force of law.
“
Lender ” means each Person
identified as a “Lender” on the signature pages hereto
and its successors and assigns.
“
Lender Parties ” has the meaning
specified in Section 12.07(g) .
“
Lender Securitization ” has the meaning
specified in Section 12.07(g) .
“
Lender Securitization Liabilities ” has
the meaning specified in Section 12.07(g) .
“
Lender Securitization Parties ” has the
meaning specified in Section 12.07(g) .
“
Lending Office ” means, as to
any Lender, the office or offices of such Lender described as such
in such Lender’s Administrative Questionnaire, or such other
office or offices as a Lender may from time to time notify the
Borrower Representative and the Administrative Agent.
“
LIBO Base Rate ” means, for any
Interest Period with respect to any LIBOR Loan:
(a)
the rate per annum equal to the rate determined by
the Administrative Agent to be the offered rate that appears on the
Bloomberg Screen BBAM (or any successor thereto) that displays an
average British Bankers Association Interest Settlement Rate for
deposits in Dollars (for delivery on the first day of such Interest
Period) with a term equivalent to such Interest Period, determined
as of approximately 11:00 a.m. (London time) two (2) Business
Days prior to the first day of such Interest Period,
or
(b)
if the rate referenced in the preceding
clause (a) does not appear on such page or service or such
page or service shall not be available, the rate per annum
equal to the rate determined by the Administrative Agent to be the
offered rate on such other page or other service that displays an
average British Bankers Association Interest Settlement Rate for
deposits in Dollars (for delivery on the first day of such Interest
Period) with a term equivalent to such Interest Period, determined
as of approximately 11:00 a.m. (London time) two (2) Business
Days prior to the first day of such Interest Period,
or
(c)
if the rates referenced in the preceding
clauses (a) and (b) are not available, the rate per annum
(rounded upward to the next 1/100th of 1%) determined by the
Administrative Agent as the rate of interest at which deposits in
Dollars for delivery on the first day of such Interest Period in
same day funds in the approximate amount of the LIBOR Loan being
made, continued or converted by JPMorgan Chase Bank and with a term
equivalent to such Interest Period would be offered by JPMorgan
Chase Bank’s London Branch to major banks in the London
interbank eurodollar market at their request at approximately
11:00 a.m. (London time) two (2) Business Days prior to the
first day of such Interest Period.
“
LIBO Rate ” means for any
Interest Period with respect to any LIBOR Loan, a rate per annum
determined by the Administrative Agent to be equal to the quotient
obtained by dividing (a) the LIBO Base Rate for such LIBOR
Loan for such Interest Period by (b) one minus the Eurodollar
Reserve Percentage for such LIBOR Loan for such Interest
Period.
“
LIBOR Loan ” means any Loan
which accrues interest by reference to the LIBO Rate plus the
Applicable Margin, in accordance with the terms of this
Agreement.
“
Lien ” means any mortgage,
pledge, hypothecation, collateral assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge, or preference,
priority or other security interest or preferential arrangement of
any kind or nature whatsoever (including any conditional sale or
other title retention agreement, and any financing lease having
substantially the same economic effect as any of the
foregoing).
“
Loan ” means an extension of credit by
a Lender to any Borrower under Article 2 in the form of
a Term Loan and/or a Revolving Loan.
“
Loan Documents ” means this
Agreement, each Note, each Joinder Agreement, each Collateral
Document, each Request for Credit Extension, each Compliance
Certificate, each Landlord Agreement, each Secured Hedge Agreement,
each Subordination Agreement and each other document, instrument or
agreement from time to time executed by any Loan Party or any
Subsidiary or any Responsible Officer thereof and delivered in
connection with the transactions contemplated by this
Agreement.
“
Loan Notice ” means a notice of
(a) a Borrowing of Revolving Loans, (b) a conversion of
Loans from one Type to the other pursuant to Section 2.02(a) ,
or (c) a continuation of LIBOR Loans pursuant to
Section 2.02(a) , which, if in writing, shall be substantially
in the form of Exhibit A-1
.
“
Loan Parties ” means,
collectively, each Borrower and each Guarantor a party
hereto.
“
Master Agreement ” has the
meaning set forth in the definition of “Hedge
Agreement.”
“
Material Adverse Effect ” means
(a) a material adverse change in, or a material adverse effect
upon, the operations, business, properties, assets, liabilities
(actual or contingent) or financial condition of the Loan Parties
and their Subsidiaries taken as a whole; (b) a material
impairment of the ability of any Loan Party to perform its
Obligations under any Loan Document to which it is a party (as
determined by the Administrative Agent in its reasonable
discretion); (c) a material adverse effect upon the legality,
validity, binding effect or enforceability against any Loan Party
of any Loan Document to which it is a party; or (d) a material
adverse effect on the validity, perfection or priority of a Lien in
favor of the Administrative Agent for the benefit of the Secured
Parties on any material portion of the Collateral or on the
aggregate value of the Collateral.
“
Material Contract ” means any
lease of real or personal property, contract or other arrangement
to which any Loan Party or any of its Subsidiaries is a party
(other than the Loan Documents), for which breach, nonperformance,
cancellation or failure to renew could reasonably be expected to
have a Material Adverse Effect.
“
Material Provider Agreement ”
means, at any time, any contract between one or more Borrowers and
a payor of Accounts that, in any consecutive 3-month period ending
at such time, accounts for more than 10% of the total Accounts of
the Borrowers.
“
Medicaid ” means that means-tested
entitlement program under Title XIX of the Social Security Act,
which provides federal grants to states for medical assistance
based on specific eligibility criteria, as set forth at
Section 1396, et seq . of Title 42 of the United States
Code, as amended, and any statute succeeding thereto.
“
Medicaid Provider Agreement ”
means an agreement entered into between a state agency or other
such entity administering the Medicaid program and a health care
provider or supplier under which the health care provider or
supplier agrees to provide items and services for Medicaid patients
in accordance with the terms of the agreement and Medicaid
Regulations.
“
Medicaid Regulations ” means,
collectively, (i) all federal statutes (whether set forth in
Title XIX of the Social Security Act or elsewhere) affecting the
medical assistance program established by Title XIX of the Social
Security Act and any statutes succeeding thereto; (ii) all
applicable provisions of all federal rules, regulations, manuals
and orders of all Governmental Authorities promulgated pursuant to
or in connection with the statutes described in clause (i)
above and all federal administrative, reimbursement and other
guidelines of all Governmental Authorities having the force of law
promulgated pursuant to or in connection with the statutes
described in clause (i) above; (iii) all state statutes
and plans for medical assistance enacted in connection with the
statutes and provisions described in clauses (i) and (ii)
above; and (iv) all applicable provisions of all rules,
regulations, manuals and orders of all Governmental Authorities
promulgated pursuant to or in connection with the statutes
described in clause (iii) above and all state administrative,
reimbursement and other guidelines of all Governmental Authorities
having the force of law promulgated pursuant to or in connection
with the statutes described in clause (ii) above, in each case
as may be amended, supplemented or otherwise modified from time to
time.
“
Medical Reimbursement Programs ”
means a collective reference to Medicare, Medicaid and TRICARE and
any other health care program operated by or financed in whole or
in part by any foreign or domestic federal, state or local
government and any other non-government funded third party payor
programs.
“
Medicare ” means that
government-sponsored entitlement program under Title XVIII of the
Social Security Act, which provides for a health insurance system
for eligible elderly and disabled individuals, as set forth at
Section 1395, et seq . of Title 42 of the United States
Code, as amended, and any statute succeeding thereto.
“
Medicare Provider Agreement ”
means an agreement entered into between CMS or other such entity
administering the Medicare program on behalf of CMS, and a health
care provider or supplier under which the health care provider or
supplier agrees to provide items and services for Medicare patients
in accordance with the terms of the agreement and Medicare
Regulations.
“
Medicare Regulations ” means,
collectively, all federal statutes (whether set forth in Title
XVIII of the Social Security Act or elsewhere) affecting the health
insurance program for the aged and disabled established by Title
XVIII of the Social Security Act and any statutes succeeding
thereto; together with all applicable provisions of all rules,
regulations, manuals and orders and administrative, reimbursement
and other guidelines having the force of law of all Governmental
Authorities (including CMS, the OIG, HHS, or any person succeeding
to the functions of any of the foregoing) promulgated pursuant to
or in connection with any of the foregoing having the force of law,
as each may be amended, supplemented or otherwise modified from
time to time.
“
Mirra Subordination Agreement ”
means that certain Subordination Agreement by and between Raymond
A. Mirra, Jr. and Administrative Agent dated as of even date
herewith.
“
Moody’s ” means
Moody’s Investors Service, Inc. and any successor
thereto.
“
Multiemployer Plan ” means any
employee benefit plan of the type described in
Sections 4001(a)(3) or 3(37) of ERISA that is sponsored or
maintained by any Borrower or any ERISA Affiliate or to which any
Borrower or any ERISA Affiliate makes or is obligated to make
contributions, or during the preceding six (6) plan years, has
made or been obligated to make contributions.
“
Net Cash Proceeds ” means the
aggregate cash and Cash Equivalents proceeds received by any Loan
Party or any Subsidiary in respect of any Disposition, Involuntary
Disposition, Equity Issuance, or Debt Issuance net of
(a) direct costs incurred in connection therewith (including
legal, accounting and investment banking fees, and sales
commissions), (b) taxes paid or payable as a result thereof
(after taking into account any available tax credits or deductions
and any tax sharing arrangements), and (c) the amount
necessary to retire any Indebtedness secured by a Permitted Lien on
the related Property; it being understood that “Net Cash
Proceeds” shall include any cash or Cash Equivalents received
upon the sale or other disposition of any non cash consideration
received by any Borrower or any Subsidiary in any Disposition,
Involuntary Disposition, Equity Issuance or Debt
Issuance.
“
New Seller Notes ” means,
collectively, those certain unsecured subordinated promissory notes
that may be issued by Holdings, from time to time to Target Owners
or Stockholders (as defined in the Target Merger Agreement) in
connection with the Earnout Payment.
“
Note ” or “ Notes ”
means each Term Note and/or each Revolving Note, individually or
collectively, as appropriate.
“
Obligations ” means all advances
to, and debts, liabilities, obligations, covenants and duties of,
any Loan Party arising under any Loan Document or otherwise with
respect to any Loan, whether direct or indirect (including those
acquired by assumption), absolute or contingent, due or to become
due, now existing or hereafter arising and including interest and
fees that accrue after the commencement by or against any Loan
Party or any Affiliate thereof of any proceeding under any Debtor
Relief Laws naming such Person as the debtor in such proceeding,
regardless of whether such interest and fees are allowed claims in
such proceeding. The foregoing shall also include any
obligations or liabilities of any Loan Party under any Secured
Hedge Agreement.
“
Obligee Guarantor ” has the meaning set
forth in Section 10.08 .
“
OFAC ” means The Office of
Foreign Assets Control of the U.S. Department of the
Treasury.
“
OIG ” means the Office of
Inspector General of HHS and any successor thereof.
“
Organization Documents ” means,
(a) with respect to any corporation, the, charter, certificate
or articles of incorporation and the bylaws (or equivalent or
comparable constitutive documents with respect to any non-U.S.
jurisdiction); (b) with respect to any limited liability
company, the certificate or articles of formation or organization
and operating agreement; and (c) with respect to any
partnership, joint venture, trust or other form of business entity,
the partnership, joint venture or other applicable agreement of
formation or organization and any agreement, instrument, filing or
notice with respect thereto filed in connection with its formation
or organization with the applicable Governmental Authority in the
jurisdiction of its formation or organization and, if applicable,
any certificate or articles of formation or organization of such
entity.
“
Other Taxes ” has the meaning set forth
in Section 3.01(b) .
“
Participant ” has the meaning set forth
in Section 12.07(d) .
“
Patriot Act ” has the meaning specified
in Section 5.25 .
“
PBGC ” means the Pension Benefit
Guaranty Corporation or any successor thereto.
“
Pension Plan ” means any Plan,
other than a Multiemployer Plan, that is subject to Title IV
of ERISA and is sponsored or maintained by any Borrower or any
ERISA Affiliate or to which any Borrower or any ERISA Affiliate
contributes or has an obligation to contribute, or in the case of a
multiple employer or other plan described in Section 4064(a)
of ERISA, has made contributions at any time during the immediately
preceding six (6) plan years.
“
Permit ” means any governmental
license, authorization, registration, permit, drug or device
authorization and approval, certificate, franchise, qualification,
accreditation, consent and approval required under any applicable
Law and required in order for any Person to carry on its business
as now conducted.
“
Permitted Acquisitions ” means (a)
Target Merger and (b) Investments consisting of an Acquisition by
any Loan Party or any Subsidiary, provided that (i) the
Property acquired (or the Property of the Person acquired) in such
Acquisition is used or useful in the same line of business (or
reasonably related thereto) as the Borrowers and their Subsidiaries
were engaged in on the Closing Date, (ii) the Administrative
Agent shall have received not less than twenty (20) days prior
notice of such Acquisition, which notice shall contain a summary,
in reasonable detail, of the material acquisition terms and
conditions, including the proposed price, and Borrowers’
projections prepared in connection with such Acquisition, and
(iii) at or prior to the closing of such Permitted
Acquisition, the Administrative Agent shall be granted a first
priority perfected Lien (subject to Permitted Liens) in the assets
and capital stock or other equity interests of such acquisition
target or Subsidiary and such acquisition target or Subsidiary
shall join this Agreement and the other Loan Documents as a Loan
Party pursuant to the terms of Section 6.12 ; and (iv) in
the case of an Acquisition of the Capital Stock of another Person,
the board of directors (or other comparable governing body) of such
other Person shall have duly approved such Acquisition,
(v) the Borrower Representative shall have delivered to the
Administrative Agent a Pro Forma Compliance Certificate
demonstrating that, upon giving effect to such Acquisition on a Pro
Forma Basis, the Loan Parties would be in compliance with the
financial covenants set forth in Article 8 as of the most recent
Fiscal Quarter for which the Borrowers have delivered financial
statements pursuant to Section 6.01(a) or
Section 6.01(b) , as applicable and no other Default
exists or would be caused by such Acquisition, (vi) the
representations and warranties made by the Loan Parties in each
Loan Document shall be true and correct in all material respects at
and as if made as of the date of such Acquisition (after giving
effect thereto) except to the extent such representations and
warranties expressly relate to an earlier date, (vii) if such
transaction involves the purchase of an interest in a partnership
between any Borrower (or a Subsidiary of any Borrower) as a general
partner and entities unaffiliated with such Borrower or such
Subsidiary as the other partners, such transaction shall be
effected by having such equity interest acquired by a corporate
holding company directly or indirectly wholly owned by such
Borrower newly formed for the sole purpose of effecting such
transaction, (viii) the Total Consideration paid by any Loan
Party or any Subsidiary pursuant to this clause for any
Acquisition (or any series of related Acquisitions) shall not
exceed $5,000,000, and (ix) the Total Consideration paid by
the Loan Parties and their Subsidiaries pursuant to this
clause for all Acquisitions occurring in any Fiscal Year shall
not exceed $7,500,000 and in the aggregate prior to the Term Loan
Maturity Date shall not exceed $15,000,000, and (x) the
business and assets acquired by a Loan Party, or in the case of a
joint venture, formed, in such Acquisition shall be free and clear
of all Liens (other than Permitted Liens).
“
Permitted Liens ” means, at any time,
Liens in respect of Property of the Loan Parties and their
Subsidiaries permitted to exist at such time pursuant to the terms
of Section 7.01 .
“
Person ” means any natural
person, corporation, limited liability company, trust, joint
venture, association, company, partnership, Governmental Authority
or other entity.
“
Plan ” means (i) any
“employee benefit plan” as defined in Section 3(3)
of ERISA which is or was sponsored, maintained or contributed to
by, or required to be contributed by the Borrowers, any of their
Subsidiaries or any of their respective ERISA Affiliates; and
(ii) all other employee benefit plans, programs, policies,
agreements or arrangements, including any deferred compensation
plan, incentive plan, bonus plan or arrangement, stock option plan,
stock purchase plan, stock award plan or other equity-based plan,
change in control agreement, retention, severance pay plan,
dependent care plan, sick leave, disability, death benefit, group
insurance, hospitalization, dental, life, any fund, trust or
arrangement providing health benefits including multiemployer
welfare arrangements, a multiple employer welfare fund or
arrangement, cafeteria plan, employee assistance program,
scholarship program, employment contract, retention incentive
agreement, termination agreement, severance agreement,
non-competition agreement, consulting agreement, confidentiality
agreement, vacation policy, employee loan, or other similar plan,
agreement or arrangement, whether written or oral, funded or
unfunded, or actual or contingent which is or was sponsored,
maintained or contributed to by, or required to be contributed by,
the Borrowers, any of their Subsidiaries or any of their respective
ERISA Affiliates.
“
Proceedings ” means any actual
or threatened civil, equitable or criminal proceeding litigation,
action, suit, claim, investigation (governmental or judicial or
otherwise), dispute indictment or prosecution, pleading, demand or
the imposition of any fine or penalty or similar
matter.
“
Pro Forma Adjusted EBITDA ”
means the sum of (i) Holdings Unadjusted 2007 EBITDA, plus, (ii) up
to $640,000 for the Medicaid audit settlement, plus (iii) up to
$600,000 for the impairment of long lived asset, plus (iv) up to
$1,500,000 for legal expenses related to Oris litigation, plus (v)
Target EBITDA.
“
Pro Forma Basis ” means, for purposes
of calculating the financial covenants in Article 8 , that any
Disposition, Involuntary Disposition, Restricted Payment or
Acquisition shall be deemed to have occurred as of the first day of
the four (4) Fiscal Quarter period most recently ended prior to the
date of such transaction for which the Borrowers have delivered
financial statements pursuant to Section 6.01(a) or
Section 6.01(b) . In connection with the foregoing,
(a) with respect to any Disposition or Involuntary
Disposition, (i) income statement and cash flow statement
items (whether positive or negative) attributable to the Property
disposed of shall be excluded to the extent relating to any period
occurring prior to the date of such transaction and
(ii) Indebtedness which is retired shall be excluded and
deemed to have been retired as of the first day of the applicable
period and (b) with respect to any Acquisition,
(i) income statement items attributable to the Person or
Property acquired shall be included to the extent relating to any
period applicable in such calculations to the extent (A) such
items are not otherwise included in such income statement items for
the Loan Parties and their Subsidiaries in accordance with GAAP or
in accordance with any defined terms set forth in
Section 1.01 and (B) such items are supported by
financial statements or other information reasonably satisfactory
to the Administrative Agent and (ii) any Indebtedness incurred
or assumed by any Loan Party or any Subsidiary (including the
Person or Property acquired) in connection with such transaction
and any Indebtedness of the Person or Property acquired which is
not retired in connection with such transaction (A) shall be
deemed to have been incurred as of the first day of the applicable
period and (B) if such Indebtedness has a floating or formula
rate, shall have an implied rate of interest for the applicable
period for purposes of this definition determined by utilizing the
rate which is or would be in effect with respect to such
Indebtedness as at the relevant date of determination.
“
Pro Forma Compliance Certificate ”
means a certificate of a Responsible Officer of the Borrower
Representative containing reasonably detailed calculations of the
financial covenants set forth in Article 8 as of the most recent
Fiscal Quarter end for which the Loan Parties have delivered
financial statements pursuant to Section 6.01(a) or
Section 6.01(b) after giving effect to the applicable
transaction on a Pro Forma Basis.
“
Pro Forma Consolidated Funded
Indebtedness ” means the sum of outstanding
obligations under (i) the Revolving Loans as of the Closing Date,
(ii) the Term Loan as of the Closing Date and (iii) the existing
notes payable of any Borrower (including the Target).
“
Pro Rata Share ” means, with respect to
any Lender at any time, (a) with respect to such
Lender’s Revolving Commitment, at any time, a fraction
(expressed as a percentage, carried out to the ninth decimal
place), the numerator of which is the amount of the Revolving
Commitment of such Lender at such time and the denominator of which
is the amount of the total Revolving Commitments at such time;
provided that if commitments of each Lender to make Revolving Loans
have been terminated pursuant to Section 9.02 , then the Pro Rata
Share of each Lender shall be determined based on the Pro Rata
Share of such Lender immediately prior to such termination and
after giving effect to any subsequent assignments made pursuant to
the terms hereof, and (b) with respect to the outstanding Term
Loan at any time, a fraction (expressed as a percentage, carried
out to the ninth decimal place), the numerator of which is the
principal amount of the outstanding Term Loan held by such Lender
at such time and the denominator of which is the aggregate
outstanding principal amount of the Term Loan held by all Term Loan
Lenders at such time. The initial Pro Rata Share of each
Lender is set forth opposite the name of such Lender on
Schedule 2.01 or in the Assignment and Assumption
pursuant to which such Lender becomes a party hereto, as
applicable.
“
Property ” means any interest of
any kind in any property or asset, whether real, personal or mixed,
or tangible or intangible, including Capital Stock.
“
Qualified Seller Notes ” means only
those New Seller Notes, which are deeply subordinated to the
Obligations under this Agreement and the other Loan Documents,
pursuant to terms and conditions of a Subordination Agreement
satisfactory to Administrative Agent, in its sole discretion, which
Subordination Agreement shall be in the form attached as Exhibit
G attached hereto.
“
RAM Subordination Agreement ”
means that certain Subordination Agreement by and between RAM
Capital Group, LLC and Administrative Agent dated as of even date
herewith.
“
Rating Agencies ” has the meaning set
forth in Section 12.08(a) .
“
Real Property ” means the real estate
listed on Schedule 5.20(a) , and any other real estate
owned or leased after the Closing Date.
“
Register ” has the meaning set forth in
Section 12.07(c) .
“
Registrar ” has the meaning set forth
in Section 12.07(c) .
“
Reportable Event ” means any of
the events set forth in Section 4043(c) of ERISA, other than
events for which the thirty-day notice period has been
waived.
“
Representatives ” has the meaning set
forth in Section 12.08(a) .
“
Request for Credit Extension ”
means with respect to a Borrowing, conversion or continuation
of Loans, a Loan Notice.
“
Required Lenders ” means, at any
time, Lenders holding in the aggregate more than fifty percent
(50%) of (a) the Revolving Commitments and the outstanding
Term Loan, or (b) if the Revolving Commitments have been
terminated, the aggregate Revolving Exposures and outstanding Term
Loan; provided, however, if there are two (2) or fewer Lenders,
“Required Lenders” shall mean all Lenders. The
Revolving Commitments (or, if the Revolving Commitments have
terminated, the aggregate Revolving Exposure) and the outstanding
Term Loan held or deemed held by any Defaulting Lender shall be
excluded for purposes of making a determination of Required
Lenders.
“
Required Revolving Lenders ”
means, at any time, Revolving Lenders holding in the aggregate more
than fifty percent (50%) of (a) the Revolving Commitments, or
(b) if the Revolving Commitments have been terminated, the
aggregate Revolving Exposures; provided, however, if there are two
(2) or fewer Revolving Lenders, “Required Revolving
Lenders” shall mean all Revolving Lenders. The
Revolving Commitments (or, if the Revolving Commitments have
terminated, the aggregate Revolving Exposure) held or deemed held
by any Defaulting Lender shall be excluded for purposes of making a
determination of Required Lenders.
“
Responsible Officer ” means the
chief executive officer, president, chief financial officer or
treasurer of a Loan Party. Any document delivered hereunder
that is executed by a Responsible Officer of a Loan Party shall be
conclusively presumed to have been authorized by all necessary
corporate, partnership and/or other action on the part of such Loan
Party and such Responsible Officer shall be conclusively presumed
to have acted on behalf of such Loan Party.
“
Restricted Payment ” means
(a) any dividend or other distribution, direct or indirect, on
account of any shares (or equivalent) of any class of Capital Stock
of any Loan Party or any of its Subsidiaries, now or hereafter
outstanding, (b) any redemption, retirement, sinking fund or
similar payment, purchase or other acquisition for value, direct or
indirect, of any shares (or equivalent) of any class of Capital
Stock of any Loan Party or any of its Subsidiaries, now or
hereafter outstanding, (c) any payment made to retire, or to
obtain the surrender of, any outstanding warrants, options or other
rights to acquire shares of any class of Capital Stock of any Loan
Party or any of its Subsidiaries, now or hereafter outstanding
(d) any payment or prepayment of principal of, premium, if
any, or interest on, redemption, purchase, retirement, defeasance,
sinking fund or similar payment with respect to, any Subordinated
Indebtedness of any Loan Party or any of its Subsidiaries,
including, without limitation, the Sellers Notes, and (e) the
payment by any Loan Party or any of its Subsidiaries of any
management, advisory or consulting fee to any Person or the payment
of any extraordinary salary, bonus or other form of compensation to
any Person who is directly or indirectly a significant partner,
shareholder, owner or executive officer of any such Person,
including, without limitation, pursuant to any management fee
agreements.
“
Revolving Availability ” means,
at any time, an amount equal to (a) the total Revolving
Commitments less (b) the total Revolving Exposures at such
time.
“
Revolving Commitment ” means, as to
each Lender, its obligation to make Revolving Loans to the
Borrowers pursuant to Section 2.01 in an aggregate principal
amount at any one time outstanding not to exceed the amount set
forth opposite such Lender’s name on
Schedule 2.01 or in the Assignment and Assumption
pursuant to which such Lender becomes a party hereto, as
applicable, as such amount may be adjusted from time to time in
accordance with this Agreement. The initial aggregate amount
of the Revolving Commitments is $20,000,000.
“
Revolving Exposure ” means, with
respect to any Lender at any time, the sum of the outstanding
principal amount of such Lender’s Revolving Loans at such
time.
“
Revolving Lenders ” means, as of
any date of determination, Lenders having a Revolving Commitment,
or after the Revolving Commitments have terminated, Lenders holding
any portion of the outstanding Revolving Loan.
“
Revolving Loan ” has the meaning
specified in Section 2.01(a) .
“
Revolving Loan Account ” means
the loan account on the Administrative Agent’s books, in the
name of the Borrower Representative on behalf of the Borrowers, in
which the Borrowers will be charged with all Obligations when due
or incurred by the Administrative Agent or any Lender.
“
Revolving Loan Maturity Date ”
means April 4, 2013.
“
Revolving Note ” has the meaning
specified in Section 2.11 .
“
S&P ” means
Standard & Poor’s Ratings Services, a division of
The McGraw Hill Companies, Inc. and any successor
thereto.
“
Sale and Leaseback Transaction ”
means, with respect to any Loan Party or any Subsidiary, any
arrangement, directly or indirectly, with any Person whereby such
Loan Party or such Subsidiary shall sell or transfer any property,
real or personal, used or useful in its business, whether now owned
or hereafter acquired, and thereafter rent or lease such property
or other property that it intends to use for substantially the same
purpose or purposes as the property being sold or
transferred.
“
SEC ” means the Securities and
Exchange Commission, or any Governmental Authority succeeding to
any of its principal functions.
“
Secured Hedge Agreement ” means
any Hedge Agreement required or permitted by this Agreement that is
entered into by and between a Loan Party and a Secured Hedge
Provider.
“
Secured Hedge Provider ” means
(i) the Administrative Agent or any of its Affiliates (or any
Person who was an Affiliate of the Administrative Agent at the time
such Person entered into a Secured Hedge Agreement), and (ii) any
other Lender or Affiliate of a Lender which is approved in writing
by the Administrative Agent as a Secured Hedge Provider, each in
their capacity as a counterparty to a Secured Hedge
Agreement.
“
Secured Parties ” means, collectively,
the Administrative Agent, the Arranger, the Lenders, and the
Secured Hedge Providers (solely for the purpose of
(i) identifying the Persons entitled to share in payments and
collections from the Collateral as more fully set forth in this
Agreement and the Collateral Documents, (ii) identifying the
beneficiaries of the guarantee provisions set forth in Articles 10
and 13 and (iii) Article 11 ).
“
Securitization Transaction ”
means any financing transaction or series of financing transactions
(including factoring arrangements) pursuant to which any Borrower
or any Subsidiary may sell, convey or otherwise transfer, or grant
a security interest in, accounts, payments, receivables, rights to
future lease payments or residuals or similar rights to payment to
a special purpose subsidiary or affiliate of any
Person.
“
Security Agreement ” means the
Security and Pledge Agreement dated as of the Closing Date executed
in favor of the Administrative Agent by each of the Loan Parties
which is a party thereto, as amended, modified and supplemented
from time to time.
“
Seller Notes ” means,
collectively, the Existing Seller Notes and the New Seller Notes,
and each individually referred to as a “Seller
Note”.
“
Social Security Act ” means the
Social Security Act of 1965 as set forth in Title 42 of the United
States Code, as amended, and any successor statute thereto, as
interpreted by the rules and regulations issued thereunder, in each
case as in effect from time to time.
“
Solvent ” means, with respect to
any Person on a particular date, that on such date (a) the
fair value of the assets of such Person exceed its liabilities,
including contingent liabilities, (b) the present fair
saleable value of the assets of such Person is not less than the
amount that will be required to pay the probable liabilities of
such Person or its debts as they become absolute and matured,
(c) the remaining capital of such Person is not unreasonably
small to conduct its business, and (d) such Person will not
have incurred debts and does not have the present intent to incur
debts, beyond its ability to pay such debts as they mature.
In computing the amount of contingent liabilities of any Person on
any date, such liabilities shall be computed at the amount that, in
the judgment of the Administrative Agent, in light of all facts and
circumstances existing at such time, represents the amount of such
liabilities that reasonably can be expected to become actual or
matured liabilities.
“
Standing Transfer Instructions ”
means those certain instructions from the Borrowers to each bank
that maintains a Blocked Account on behalf of the Borrowers which
instruct such bank to automatically transfer all deposits made in
any Blocked Account to the Concentration Account on a daily
basis.
“
Subordinated Indebtedness ”
means Indebtedness of any Loan Party that is subordinated to the
prior payment and satisfaction of the Obligations pursuant to a
Subordination Agreement.
“
Subordinated Indebtedness Documents
” means any agreement evidencing Subordinated Indebtedness
including the Seller Notes, the Subordination Agreements and all
security agreements, guaranty agreements and other documents,
agreements and instruments executed in connection
therewith.
“
Subordination Agreement(s) ”
means (a) an agreement (in form and substance reasonably
satisfactory to the Administrative Agent) among any Loan Party, a
subordinating creditor of such Loan Party and the Administrative
Agent, on behalf of the Secured Parties, pursuant to which
(i) the Subordinated Indebtedness is subordinated to the prior
payment and satisfaction of the Obligations and (ii) the
subordinating creditor agrees (A) not to require, accept or
maintain any Lien(s) on any assets of the Loan Parties and their
Subsidiaries, (B) not to bring any enforcement action of any kind
whatsoever against any Borrower, (C) not to initiate or join in any
bankruptcy or other insolvency proceeding against any Borrower, (D)
not to challenge or dispute the priority, validity or effectiveness
of the liens and security interest granted under this Agreement and
the Collateral Documents, and (E) to the extent any property or
assets of any Borrower are obtained by such subordinating creditor
in contravention of the terms of the Subordination Agreement, such
property and assets shall be held in trust for the benefit of
Administrative Agent and Lenders, (b) any note, indenture,
note purchase agreement or similar instrument or agreement,
pursuant to which the indebtedness evidenced thereby or issued
thereunder is subordinated to the Obligations by the express terms
of such note, indenture, note purchase agreement or similar
instrument or agreement, in each case in form and substance
reasonably satisfactory to the Administrative Agent and (c) the
AmerisourceBergen Subordination Agreement, the Mirra Subordination
Agreement and the RAM Subordination Agreement.
“
Subsidiary ” of a Person means a
corporation, partnership, limited liability company or other
business entity of which a majority of the shares of Capital Stock
having ordinary voting power for the election of directors or other
governing body (other than Capital Stock having such power only by
reason of the happening of a contingency) are at the time
beneficially owned, or the management of which is otherwise
controlled, directly, or indirectly through one or more
intermediaries, or both, by such Person. Unless otherwise
specified, all references herein to a “Subsidiary” or
to “Subsidiaries” shall refer to a Subsidiary or
Subsidiaries of the Loan Parties.
“
Synthetic Lease ” means any
synthetic lease, tax retention operating lease, off-balance sheet
loan or similar off-balance sheet financing arrangement whereby the
arrangement is considered borrowed money indebtedness for tax
purposes but is classified as an operating lease or does not
otherwise appear on a balance sheet under GAAP.
“
Target ” means, Biomed America,
Inc., a Delaware corporation
“
Target EBITDA ” means EBITDA of
Target as defined in that certain Quality of Earnings Due Diligence
Report prepared by BDO Seidman, LLP dated March 4, 2008, in the
amount of $10,081,000.
“
Target Merger ” means the merger
of Target, in, with and into Biomed Healthcare, Inc. under and
pursuant to the Target Merger Agreement.
“
Target Merger Agreement ” means
that certain Agreement and Plan of Merger dated as of March 13,
2008, by and among Biomed Healthcare, Inc., Holdings, Target and
Target Owner.
“
Target Merger Documents ” means
the Target Merger Agreement and each of the other documents,
instruments and agreements executed and delivered in connection
with the Target Merger.
“
Target Owner ” means Parallex,
LLC, a Delaware limited liability company.
“
Taxes ” has the meaning set forth in
Section 3.01(a) .
“
Term Loan ” has the meaning specified
in Section 2.01(b) .
“
Term Loan Commitment ” means, as to
each Lender, its obligation to make its portion of the Term Loan to
the Borrowers pursuant to Section 2.01(b) and the other terms
and conditions of this Agreement, in the principal amount set forth
opposite such Lender’s name on Schedule 2.01 , as
such amounts may be adjusted from time to time in accordance with
this Agreement. The initial aggregate amount of the Term Loan
Commitments is $35,000,000.
“
Term Loan Lender ” means, as of
any date of determination, any Lender holding a Term Loan
Commitment or any portion of the then-outstanding Term
Loan.
“
Term Loan Maturity Date ” means
April 4, 2013.
“
Term Note ” has the meaning set forth
in Section 2.11 .
“
Termination Date ” means the
date that (i) all Obligations (other than contingent
obligations in respect of Secured Hedge Agreements) have been fully
and indefeasibly paid in full and (ii) no commitments or other
obligations of any Lender to provide funds to the Borrowers remain
outstanding.
“
Termination Value ” means, in
respect of any one or more Hedge Agreements, after taking into
account the effect of any legally enforceable netting agreement
relating to such Hedge Agreements, (a) for any date on or after the
date such Hedge Agreements have been closed out and termination
value(s) determined in accordance therewith, such termination
value(s), and (b) for any date prior to the date referenced in
clause (a), the amount(s) determined as the mark-to-market value(s)
for such Hedge Agreements, as determined based upon one or more
mid-market or other readily available quotations provided by any
recognized dealer in such Hedge Agreements (which may include a
Lender or any Affiliate of a Lender).
“
Total Consideration ” means,
with respect to any Acquisition, all cash and non-cash
consideration, including the amount of Indebtedness assumed by the
buyer and the amount of Indebtedness evidenced by notes issued by
the buyer to the seller, the maximum amount payable in connection
with any deferred purchase price obligation (including, to the
extent it can be determined or reasonably estimated, any earn-out
obligation) and the value of any Capital Stock of any Loan Party
issued to the seller in connection with such
Acquisition.
“
TRICARE ” means the United
States Department of Defense health care program for service
families (including TRICARE Prime, TRICARE Extra and TRICARE
Standard), and any successor or predecessor thereof.
“
Type ” means, with respect to
any Loan, its character as a Base Rate Loan or a LIBOR
Loan.
“
UCC ” means the Uniform
Commercial Code as in effect in any applicable
jurisdiction.
“
Unfunded Pension Liability ”
means the excess of a Pension Plan’s benefit liabilities
under Section 4001(a)(16) of ERISA, over the current value of that
Pension Plan’s assets, determined in accordance with the
assumptions used for funding the Pension Plan pursuant to
Section 412 of the Internal Revenue Code for the applicable
plan year.
“
United States ” and “ U.S.
” mean the United States of America.
“
Wholly Owned Subsidiary ” means
any Person 100% of whose Capital Stock is at the time owned by a
Loan Party directly or indirectly through other Persons 100% of
whose Capital Stock is at the time owned, directly or indirectly,
by such a Loan Party.
(a)
The definitions of terms herein shall apply equally
to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words
“ include ,” “ includes
” and “ including ” shall be deemed to be
followed by the phrase “ without limitation .”
The word “ will ” shall be construed to have the same
meaning and effect as the word “ shall .” Unless
the context requires otherwise, (i) any definition of or
reference to any agreement, instrument or other document (including
any Organization Document) shall be construed as referring to such
agreement, instrument or other document as from time to time
amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set
forth herein or in any other Loan Document), (ii) any
reference herein to any Person shall be construed to include such
Person’s successors and assigns, (iii) the words “
herein ,” “ hereof ” and “ hereunder
,” and words of similar import when used in any Loan
Document, shall be construed to refer to such Loan Document in its
entirety and not to any particular provision thereof, (iv) all
references in a Loan Document to Articles, Sections, Exhibits and
Schedules shall be construed to refer to Articles and Sections of,
and Exhibits and Schedules to, the Loan Document in which such
references appear, (v) any reference to any law shall include
all statutory and regulatory provisions consolidating, amending,
replacing or interpreting such law and any reference to any law or
regulation shall, unless otherwise specified, refer to such law or
regulation as amended, modified or supplemented from time to time,
and (vi) the words “ asset ” and “
property ” shall be construed to have the same meaning
and effect and to refer to any and all real and personal property
and tangible and intangible assets and properties, including cash,
securities, accounts and contract rights.
(b)
In the computation of periods of time from a
specified date to a later specified date, the word
“from” means “from and including;” the
words “to” and “until” each mean “to
but excluding;” and the word “through” means
“to and including.”
(c)
Section headings herein and in the other Loan
Documents are included for convenience of reference only and shall
not affect the interpretation of this Agreement or any other Loan
Document.
(a)
Except as otherwise specifically prescribed herein,
all accounting terms not specifically or completely defined herein
shall be construed in conformity with, and all financial data
(including financial ratios and other financial calculations)
required to be submitted pursuant to this Agreement shall be
prepared in conformity with, GAAP applied on a consistent basis, as
in effect from time to time, applied in a manner consistent with
that used in preparing the Audited Pre-Closing Financial Statements
of the Borrowers.
(b)
Together with each Compliance Certificate, the
Borrower Representative will provide a written summary of any
changes in GAAP that materially impact the calculation of the
financial covenants in Article 8 contained in
such Compliance Certificate. If at any time any change in
GAAP would affect the computation of any financial ratio or
requirement set forth in any Loan Document, and any of the
Borrowers, the Administrative Agent or the Required Lenders shall
so request, the Administrative Agent, the Lenders and the Borrower
Representative on behalf of the Borrowers shall negotiate in good
faith to amend such ratio or requirement to preserve the original
intent thereof in light of such change in GAAP (subject to the
approval of the Required Lenders); provided that , until so
amended, (i) such ratio or requirement shall continue to be
computed in accordance with GAAP prior to such change therein and
(ii) the Borrower Representative shall provide to the
Administrative Agent and the Lenders financial statements and other
documents required under this Agreement or as reasonably requested
hereunder setting forth a reconciliation between calculations of
such ratio or requirement made before and after giving effect to
such change in GAAP.
(c)
Notwithstanding the above, the parties hereto
acknowledge and agree that all calculations of the financial
covenants in Article 8 (including for
purposes of determining compliance with such financial covenants)
shall be made on a Pro Forma Basis.
ARTICLE 2
THE COMMITMENTS AND CREDIT EXTENSIONS (a)
Revolving Loans .
Subject to the terms and conditions set forth herein, each
Revolving Lender severally agrees to make loans to the Borrower
Representative on behalf of the Borrowers (each such loan, a
“ Revolving Loan ”) in Dollars from time to time on any
Business Day during the Availability Period in an aggregate amount
not to exceed at any time outstanding the amount of such Revolving
Lender’s Revolving Commitment; provided , however , that
after giving effect to any Borrowing of Revolving Loans,
(i) the total Revolving Exposures shall not exceed the total
Revolving Commitments, and (ii) the Revolving Exposure of each
Revolving Lender shall not exceed such Revolving Lender’s
Revolving Commitment. Within the limits of each Revolving
Lender’s Revolving Commitment, and subject to the other terms
and conditions hereof, the Borrower Representative on behalf of the
Borrowers may borrow under this Section 2.01(a) , prepay under
Section 2.05 , and reborrow under this Section 2.01(a)
. The Revolving Loans may be Base Rate Loans or LIBOR Loans,
as further provided herein; provided, however, that all Borrowings
of Revolving Loans made on the Closing Date shall be made as Base
Rate Loans.
(b)
Term Loan . Subject to
the terms and conditions set forth herein, each Term Loan Lender
severally agrees to fund its Pro Rata Share of a term loan to the
Borrower Representative on behalf of the Borrowers (the “
Term Loan ”) on the Closing Date in an aggregate amount not
to exceed such Lender’s Term Loan Commitment; provided ,
however , that after giving effect to any Borrowing under the Term
Loan, the outstanding amount of the Term Loan shall not exceed the
total Term Loan Commitments less original issue discount in an
amount equal to .75%. Amounts repaid or prepaid on the Term
Loan may not be reborrowed. The Term Loan may consist of Base
Rate Loans or LIBOR Loans, as further provided herein; provided ,
however , all Borrowings of the Term Loan on the Closing Date shall
be Base Rate Loans.
(a)
Each Borrowing, each conversion of Loans from one
Type to the other, and each continuation of LIBOR Loans shall be
made upon the Borrower Representative’s irrevocable notice to
the Administrative Agent, which may be delivered by telephone or
e‑mail request (or such other means as may be agreed upon by
the Administrative Agent in its sole discretion). Each such
notice must be received by the Administrative Agent not later than
10:00 a.m. (i) three (3) Business Days prior to the
requested date of any Borrowing of, conversion to or continuation
of LIBOR Loans or of any conversion of LIBOR Loans to Base Rate
Loans, and (ii) one (1) Business Day prior to the requested
date of any Borrowing of Base Rate Loans (or any conversion to Base
Rate Loans). Each telephonic notice by the Borrower
Representative pursuant to this Section 2.02(a) must be confirmed promptly by
delivery to the Administrative Agent of a written Loan Notice,
appropriately completed and executed by a Responsible Officer of
the Borrower Representative. Each Borrowing of, conversion to
or continuation of LIBOR Loans shall be in a principal amount of
$500,000 or a whole multiple of $250,000 in excess thereof.
Each Borrowing of or conversion to Base Rate Loans shall be in a
principal amount of $500,000 or a whole multiple of $250,000 in
excess thereof. Each Loan Notice pursuant to this
Section 2.02(a) (whether telephonic or written) shall
specify (i) whether the Borrower Representative is requesting
a Borrowing, a conversion of Loans from one Type to the other, or a
continuation of LIBOR Loans, (ii) the requested date of the
Borrowing, conversion or continuation, as the case may be (which
shall be a Business Day), (iii) the principal amount of Loans
to be borrowed, converted or continued, (iv) the Type of Loans
to be borrowed or to which existing Loans are to be converted, and
(v) if applicable, the duration of the Interest Period with
respect thereto. If the Borrower Representative fails to
specify a Type of Loan in a Loan Notice or if the Borrower
Representative fails to give a timely notice requesting a
conversion or continuation, then the applicable Loans shall be made
as, or converted to, Base Rate Loans. Any such automatic
conversion to Base Rate Loans shall be effective as of the last day
of the Interest Period then in effect with respect to the
applicable LIBOR Loans. If the Borrower Representative
requests a Borrowing of, conversion to, or continuation of LIBOR
Loans in any such Loan Notice, but fails to specify an Interest
Period, it will be deemed to have specified an Interest Period of
one (1) month.
(b)
Following receipt of a Loan Notice, the
Administrative Agent shall promptly notify each Lender of the
amount of its Pro Rata Share of the applicable Loans, and if no
timely notice of a conversion or continuation is provided by the
Borrower Representative as required by Section 2.02(a) with respect to any continuation of a
Borrowing of a LIBOR Loan, the Administrative Agent shall notify
each Lender of the details of any automatic conversion of such
Borrowing of a LIBOR Loan to Base Rate Loans as described in the
preceding subsection. In the case of a Borrowing, each Lender
shall make the amount of its Loan available to the Administrative
Agent in immediately available funds at the Administrative
Agent’s Office not later than 11:00 a.m. on the Business
Day specified in the applicable Loan Notice. Upon
satisfaction of the conditions set forth in Section 4.02 (and,
if such Borrowing is the initial Credit Extension,
Section 4.01 ), the Administrative Agent shall make all
funds so received available to the Borrower Representative in like
funds as received by the Administrative Agent by wire transfer of
such funds, in each case in accordance with instructions provided
to (and reasonably acceptable to) the Administrative Agent by the
Borrower Representative.
(c)
Except as otherwise provided herein, a LIBOR Loan
may be continued or converted only on the last day of the Interest
Period for such LIBOR Loan. During the existence of a
Default, no Loans may be requested as, converted to or continued as
LIBOR Loans without the consent of the Administrative Agent or
Required Lenders, and the Administrative Agent or Required Lenders
may demand that any or all of the then outstanding LIBOR Loans be
converted immediately to Base Rate Loans.
(d)
the Administrative Agent shall promptly notify the
Borrower Representative and the Lenders of the interest rate
applicable to any Interest Period for LIBOR Loans upon
determination of such interest rate. The determination of the
LIBO Rate by the Administrative Agent shall be conclusive in the
absence of manifest error.
(e)
After giving effect to all Borrowings, all
conversions of Loans from one Type to the other, and all
continuations of Loans as the same Type, there shall not be more
than six (6) Interest Periods in effect with respect to outstanding
Loans.
(a)
Voluntary Prepayments of Loans.
(i)
Revolving Loans and Term Loan . Subject
to the limitations set forth in this Section 2.05(a) , the
Borrowers may, upon notice from the Borrowers to the Administrative
Agent, at any time or from time to time voluntarily prepay
Revolving Loans and the Term Loan in whole or in part without
premium or penalty; provided that (i) such notice must be
received by the Administrative Agent not later than 10:00 a.m.
(A) three (3) Business Days prior to any date of
prepayment of LIBOR Loans, and (B) one (1) Business Day prior
to the date of prepayment of Base Rate Loans; (ii) any such
prepayment of LIBOR Loans shall be in a principal amount of
$500,000 or a whole multiple of $250,000 in excess thereof (or, if
less, the entire principal amount thereof then outstanding);
(iii) any such prepayment of Base Rate Loans shall be in a
principal amount of $500,000 or a whole multiple of $250,000 in
excess thereof (or, if less, the entire principal amount thereof
then outstanding). Each such notice shall specify the date
and amount of such prepayment and the Type(s) of Loans to be
prepaid. The Administrative Agent will promptly notify each
Lender of its receipt of each such notice, and of the amount of
such Lender’s Pro Rata Share of such prepayment. If
such notice is delivered by the Borrowers, the Borrowers shall make
such prepayment and the payment amount specified in such notice
shall be due and payable on the date specified therein. Any
prepayment of a LIBOR Loan shall be accompanied by all accrued
interest thereon, together with any additional amounts required
pursuant to Section 3.05 . Notwithstanding the
foregoing, the Borrowers may not voluntarily prepay (i) any
Loans that are LIBOR Loans unless such Loans are prepaid at the end
of the applicable Interest Period or unless the Borrowers pay all
breakage costs associated with such prepayment as provided in
Section 3.05 hereof, and (ii) the Term Loan in part if
the outstanding principal balance of the Term Loan, after giving
effect to such prepayment, would be less than
$3,000,000.
(ii)
Application of Voluntary Prepayments of
Revolving Loans and Term Loan . Any voluntary prepayment of
the Term Loan shall be applied ratably to the remaining principal
amortization payments thereof. Prepayments of Revolving Loans
pursuant to this Section 2.05(a) shall not reduce the total
Revolving Commitments. Each such prepayment shall be applied
to the Loans of the applicable Lenders in accordance with their
respective Pro Rata Shares.
(b)
Mandatory Prepayments of Loans.
(i)
Total Revolving Exposure . If for any
reason the total Revolving Exposures at any time exceed the total
Revolving Commitments then in effect, the Borrowers shall
immediately prepay the Revolving Loans in an aggregate amount equal
to such excess (each such prepayment to be applied as set forth in
clause (vii) below).
(ii)
Dispositions and Involuntary Dispositions
. The Borrowers shall prepay the Loans as hereinafter
provided in an aggregate amount equal to 100% of the Net Cash
Proceeds of any Disposition or Involuntary Disposition (each such
prepayment to be applied as set forth in clause (vii)
below). Notwithstanding the foregoing, if at the time of the
receipt or application of such Net Cash Proceeds no Default or
Event of Default has occurred and is continuing and the Borrower
Representative delivers to the Administrative Agent a certificate,
executed by the Borrower Representative’s chief financial
officer, that it intends within one hundred eighty (180) days
after receipt thereof to use all of such Net Cash Proceeds either
to purchase assets used in the ordinary course of business of the
Borrowers and their Subsidiaries or to make Capital Expenditures,
the Borrower may use such Net Cash Proceeds in the manner set forth
in such certificate; provided , however , that, (A) such Net Cash
Proceeds shall either be deposited into a deposit account which is
subject to a Deposit Account Control Agreement or Deposit Account
Restriction Agreement or held in a Blocked Account until such time
as such Net Cash Proceeds are used to purchase such assets or to
make such Capital Expenditures or applied to the Obligations upon
the occurrence of any Event of Default, as the case may be,
(B) the aggregate amount of such Net Cash Proceeds so used and
not subject to prepayment under this clause (ii) of this
Section 2.05(b) shall not exceed $100,000 in any Fiscal Year,
(C) any such Net Cash Proceeds not so used or committed to
such use pursuant to a binding agreement within the period set
forth in such certificate shall, on the first Business Day
immediately following such period, be applied as a prepayment in
accordance with clause (vii) below and (D) any assets so
acquired shall be subject to the security interests under the
Collateral Documents in the same priority as the assets subject to
such Disposition or Involuntary Disposition.
(iii)
Equity Issuances . Immediately upon
receipt by any Loan Party or any Subsidiary of the Net Cash
Proceeds of any Equity Issuance, the Borrowers shall prepay the
Loans as hereinafter provided in an aggregate amount equal to 50%
of such Net Cash Proceeds (such prepayment to be applied as set
forth in clause (vii) below).
(iv)
Debt Issuances . Immediately upon
receipt by any Loan Party or any Subsidiary of the Net Cash
Proceeds of any Debt Issuance, the Borrowers shall prepay an
aggregate principal amount of Loans in an amount equal to one
hundred percent (100%) of all such Net Cash Proceeds (such
prepayment to be applied as set forth in clause (vii)
below).
(v)
Reserved .
(vi)
Reserved .
(vii)
Application of Mandatory Prepayments .
All amounts required to be paid pursuant to this
Section 2.05(b) shall be applied as follows:
(A)
with respect to all amounts prepaid pursuant to
Section 2.05(b)(i) , to the
Revolving Loans to the full extent thereof; and
(B)
with respect to all amounts prepaid pursuant to
Sections 2.05(b)(ii) through (iv) ,
first to the Term Loan (applied in inverse order of maturity to the
remaining principal amortization payments thereof), and
second to the Revolving Loans (without a corresponding
permanent reduction of the total Revolving
Commitments).
Within the parameters of the applications set forth
above, prepayments shall be applied first to Base Rate Loans and
then to LIBOR Loans in direct order of Interest Period
maturities. Prepayments of the Revolving Loans pursuant to
this Section 2.05(b) shall not reduce
the total Revolving Commitments. All prepayments under this
Section 2.05(b) shall be subject to Section 3.05 ,
but otherwise without premium or penalty, and shall be accompanied
by a payment of all interest accrued on the principal amount
prepaid through the date of prepayment.
(a)
The Borrowers may, upon prior written notice from
the Borrower Representative to the Administrative Agent, terminate
the total Revolving Commitments or from time to time permanently
reduce the total Revolving Commitments; provided , however, that (a) any such notice
shall be received by the Administrative Agent not later than
11:00 a.m. (i) ten (10) Business Days prior to the
date of termination or (ii) three (3) Business Days prior to the
date of reduction, (b) any such partial reduction shall be in
an aggregate amount of $250,000 or any whole multiple of $250,000
in excess thereof, and (c) after giving effect to any
reduction of the total Revolving Commitments, the total Revolving
Commitments shall not be less than the total Revolving
Exposures. The Administrative Agent will promptly notify the
Revolving Lenders of any such notice of termination or reduction of
the Revolving Commitments. Any reduction of the total
Revolving Commitments shall be applied to the Revolving Commitment
of each Lender according to its Pro Rata Share. All fees
accrued with respect thereto until the effective date of any
termination of the total Revolving Commitments shall be paid on the
effective date of such termination.
(a)
Revolving Loans . On the
Revolving Loan Maturity Date, the Borrowers shall repay to the
Administrative Agent for the ratable benefit of the Lenders on the
Revolving Loan Maturity Date the aggregate principal amount of all
Revolving Loans outstanding on such date.
(b)
Term Loan . The
Borrowers shall pay the principal amount of the Term Loan in
consecutive quarterly installments in the aggregate amounts set
forth below:
(a)
Subject to the provisions of subsection (b)
below, (i) each LIBOR Loan shall bear interest on the
outstanding principal amount thereof for each Interest Period at a
rate per annum equal to the sum of (A) the LIBO Rate for such
Interest Period plus (B) the Applicable
Margin; and (ii) each Base Rate Loan bear interest on the
outstanding principal amount thereof from the applicable borrowing
or conversion date at a rate per annum equal to the (A) Base
Rate plus (B) the Applicable Margin.
(b)
After the occurrence and during the continuation of
an Event of Default, the Borrowers shall pay interest on the
principal amount of all outstanding Obligations at a fluctuating
interest rate per annum at all times equal to the Default Rate to
the fullest extent permitted by applicable Laws.
(c)
Interest on each Loan shall be due and payable in
arrears on each Interest Payment Date applicable thereto and at
such other times as may be specified herein. Interest
hereunder shall be due and payable in accordance with the terms
hereof before and after judgment, and before and after the
commencement of any proceeding under any Debtor Relief
Law.
(a)
Unused Fee . The
Borrowers shall pay, or cause to be paid, to the Administrative
Agent for the account of each Revolving Lender in accordance with
its Pro Rata Share, an unused fee equal to the product of
(i) one half of one percent (0.5%) per annum times
(ii) the average daily amount by which the total Revolving
Commitments exceeds the sum of (y) the total outstanding
amount of Revolving Loans. The unused fee shall accrue at all
times during the Availability Period, including at any time during
which one or more of the conditions in Article 4 is not met, and
shall be due and payable monthly in arrears on the last day of each
month, commencing with the first such date to occur after the
Closing Date, and on the Revolving Loan Maturity
Date.
(b)
Other Fees . The
Borrowers shall pay, or cause to be paid, to the Arranger and the
Administrative Agent for their own respective accounts fees in the
amounts and at the times specified in the Fee Letter. Such
fees shall be fully earned when paid and shall be non-refundable
for any reason whatsoever.
2.11
Evidence of Debt
. The Credit Extensions
made by each Lender shall be evidenced by one or more accounts or
records maintained by such Lender and by the Administrative Agent
in the ordinary course of business. The accounts or records
maintained by the Administrative Agent and each Lender shall be
prima facie evidence of the amount of the Credit Extensions made by
the Lenders to the Borrowers and the interest and payments
thereon. Any failure to so record or any error in doing so
shall not, however, limit or otherwise affect the obligation of the
Borrowers hereunder to pay any amount owing with respect to the
Obligations. In the event of any conflict between the
accounts and records maintained by any Lender and the accounts and
records of the Administrative Agent in respect of such matters, the
accounts and records of the Administrative Agent shall control in
the absence of manifest error. Upon the request of any Lender
made through the Administrative Agent, the Borrowers shall execute
and deliver to such Lender (through the Administrative Agent) a
promissory note, which shall evidence such Lender’s Loans in
addition to such accounts or records. Each such promissory
note shall (i) in the case of Revolving Loans, be in the form
of Exhibit B-1 (a “ Revolving Note
”), and (ii), in the case of a Term Loan, be in the form of
Exhibit B-2 (a “ Term Note ”). Each
Lender may attach schedules to its Note and endorse thereon the
date, Type (if applicable), amount and maturity of its Loans and
payments with respect thereto, but any failure to do so shall not
limit or otherwise affect the Borrowers’ Obligations
hereunder.
(a)
All payments to be made by the Borrowers of
principal, interest, fees and other Obligations shall be absolute
and unconditional and shall be made without condition or deduction
for any counterclaim, defense, recoupment, setoff or
rescission. Except as otherwise expressly provided herein,
all payments by the Borrowers hereunder shall be made to the
Administrative Agent, for the account of the respective Lenders to
which such payment is owed, at the Administrative Agent’s
Office in Dollars and in immediately available funds not later than
12:00 p.m. New York time on the date specified herein.
The Administrative Agent will promptly distribute to each Lender
its Pro Rata Share (or other applicable share as provided herein)
of such payment in like funds as received by wire transfer to such
Lender’s Lending Office. All payments received by the
Administrative Agent after 12:00 p.m. New York time shall be
deemed received on the next succeeding Business Day and any
applicable interest or fee shall continue to accrue.
(b)
Subject to the definition of “Interest
Period”, if any payment to be made by the Borrowers shall
come due on a day other than a Business Day, payment shall be made
on the next following Business Day, and such extension of time
shall be reflected in computing interest or fees, as the case may
be.
(c)
Unless any Borrower or any Lender has notified the
Administrative Agent, prior to the date any payment is required to
be made by it to the Administrative Agent hereunder, that any
Borrower or such Lender, as the case may be, will not make such
payment, the Administrative Agent may assume that the Borrowers or
such Lender, as the case may be, has timely made such payment and
may (but shall not be so required to), in reliance thereon, make
available a corresponding amount to the Person entitled
thereto. If and to the extent that such payment was not in
fact made to the Administrative Agent in immediately available
funds, then:
(i)
if any Borrower failed to make such payment, each Lender shall
forthwith on demand repay to the Administrative Agent the portion
of such assumed payment that was made available to such Lender in
immediately available funds, together with interest thereon in
respect of each day from and including the date such amount was
made available by the Administrative Agent to such Lender to the
date such amount is repaid to the Administrative Agent in
immediately available funds at the Federal Funds Rate from time to
time in effect; and
(ii)
if any Lender failed to make such payment, such Lender shall
forthwith on demand pay to the Administrative Agent the amount
thereof in immediately available funds, together with interest
thereon for the period from the date such amount was made available
by the Administrative Agent to the Borrowers to the date such
amount is recovered by the Administrative Agent (the “
Compensation Period ”) at a rate per
annum equal to the Federal Funds Rate from time to time in
effect. If such Lender pays such amount to the Administrative
Agent, then such amount shall constitute such Lender’s Loan
included in the applicable Borrowing. If such Lender does not
pay such amount forthwith upon the Administrative Agent’s
demand therefor, the Administrative Agent may make a demand
therefor upon the Borrowers, and the Borrowers shall pay such
amount to the Administrative Agent, together with interest thereon
for the Compensation Period at a rate per annum equal to the rate
of interest applicable to the applicable Borrowing. Nothing
herein shall be deemed to relieve any Lender from its obligation to
fulfill its Revolving Commitment or to prejudice any rights which
the Administrative Agent or the Borrowers may have against any
Lender as a result of any default by such Lender
hereunder.
(iii)
In the event that any Lender fails to make available to the
Administrative Agent such Lender’s Pro Rata Share of any
Borrowing by the Borrowers in accordance with the provisions of
Section 2.02 hereof, and the Borrowers do not
repay to the Administrative Agent such Lender’s Pro Rata
Share of the Borrowing within three (3) Business Days after such
Borrowing, the Administrative Agent shall have the right to recover
such Lender’s Pro Rata Share of the Borrowing directly from
such Lender, together with interest thereon from the date of the
Borrowing at the rate per annum applicable to such Borrowing.
In addition, until the Agent recovers such amount, (x) such Lender
shall not be entitled to receive any payments under Sections 2.05 ,
2.07 or 2.08 hereof, and (y) for purposes of voting on or
consenting to other matters with respect to this Agreement or the
other Loan Documents, such Lender’s Commitment shall be
deemed to be zero and such Lender shall not be considered to be a
Lender.
A notice of the
Administrative Agent to any Lender or the Borrower Representative
with respect to any amount owing under this subsection (c) shall be
conclusive, absent manifest error.
(d)
The obligations of the Lenders hereunder to make
Loans are several and not joint. The failure of any Lender to
make any Loan or to fund any such participation on any date
required hereunder shall not relieve any other Lender of its
corresponding obligation to do so on such date, and no Lender shall
be responsible for the failure of any other Lender to so make its
Loan or purchase its participation.
(a)
Collection of Accounts and
Other Proceeds . The Borrowers, at their expense, will
enforce and collect payments and other amounts owing on all
Accounts in the ordinary course of the Borrowers’ business
subject to the terms hereof. Each Borrower shall execute with
each applicable depository institution a Deposit Account Control
Agreement and such other agreements related to each bank account of
Borrowers (except as set forth below) as the Administrative Agent
may require. Each Borrower shall, within sixty (60) days
after the Closing Date, execute with each applicable depository
institution a Deposit Account Restriction Agreement and such other
agreements related to each bank account of Borrowers for which
collections of Accounts from a Governmental Account Debtor are held
as Administrative Agent may require. Upon receipt of any
payment on an Account or other proceeds of the sale of Collateral,
including checks, cash, receipts from credit card sales and
receipts, notes or other instruments or property with respect to
any Collateral, each Borrower shall deposit such proceeds directly
into a bank account of such Borrower which is subject to a Deposit
Account Control Agreement or Deposit Account Restriction Agreement,
as applicable within three (3) Business
Days.
(b)
Transfer of Funds .
Funds on deposit in a bank account of Borrower shall be transferred
on a daily basis to the Concentration Account (or, at the
Administrative Agent’s option during a Cash Control Period,
to the Administrative Agent’s Bank Account) pursuant to the
terms of a Deposit Account Control Agreement or Deposit Account
Restriction Agreement, as applicable. During a Cash Control
Period, the Administrative Agent shall have the right, at the
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