<PAGE>
EXHIBIT 10.16
EXECUTION COPY
CREDIT AGREEMENT
DATED AS OF DECEMBER 31, 2003
AMONG
RES-CARE, INC.,
THE LENDERS FROM TIME TO TIME PARTIES HERETO
BANK ONE, NA (MAIN OFFICE CHICAGO),
AS ADMINISTRATIVE AGENT
MERRILL LYNCH CAPITAL AND NATIONAL CITY BANK OF KENTUCKY
AS SYNDICATION AGENTS
AND
GENERAL ELECTRIC CAPITAL CORPORATION
AS DOCUMENTATION AGENT
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BANC ONE CAPITAL MARKETS, INC.,
AS LEAD ARRANGER AND SOLE BOOK RUNNER
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SIDLEY AUSTIN BROWN & WOOD LLP
Bank One Plaza
10 South Dearborn Street
Chicago, Illinois 60603
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS....................................................................
1
1.1.
Certain Defined
Terms........................................................................
1
1.2.
Plural
Forms.................................................................................
24
ARTICLE II
THE
CREDITS....................................................................
24
2.1.
Revolving Loan Commitments and Term Loan
Commitments......................................... 24
2.2.
Required Payments;
Termination...............................................................
25
2.3.
Ratable Loans; Types of
Advances.............................................................
26
2.4.
Swing Line
Loans.............................................................................
27
2.5.
Commitment Fee; Aggregate Revolving Loan
Commitment.......................................... 28
2.6.
Minimum Amount of Each
Advance...............................................................
29
2.7.
Optional Principal
Payments..................................................................
29
2.8.
Method of Selecting Types and Interest Periods for New
Advances.....................................................................................
29
2.9.
Conversion and Continuation of Outstanding Advances; No
Conversion or Continuation of Eurodollar Advances After
Default.............................. 30
2.10.
Changes in Interest Rate,
etc................................................................
30
2.11.
Rates Applicable After
Default...............................................................
31
2.12.
Method of
Payment............................................................................
31
2.13.
Noteless Agreement; Evidence of
Indebtedness.................................................
32
2.14.
Telephonic
Notices...........................................................................
32
2.15.
Interest Payment Dates; Interest and Fee
Basis............................................... 33
2.16.
Notification of Advances, Interest Rates, Prepayments
and Revolving Loan Commitment Reductions; Availability of
Loans.............................. 33
2.17.
Lending
Installations........................................................................
33
2.18.
Non-Receipt of Funds by the Administrative
Agent............................................. 34
2.19.
Replacement of
Lender........................................................................
34
2.20.
Facility
LCs.................................................................................
35
ARTICLE III
YIELD PROTECTION;
TAXES........................................................
39
3.1.
Yield
Protection.............................................................................
39
3.2.
Changes in Capital Adequacy
Regulations......................................................
40
3.3.
Availability of Types of
Advances............................................................
41
3.4.
Funding
Indemnification......................................................................
41
3.5.
Taxes........................................................................................
41
3.6.
Lender Statements; Survival of
Indemnity.....................................................
44
3.7.
Alternative Lending
Installation.............................................................
44
ARTICLE IV
CONDITIONS
PRECEDENT...........................................................
44
4.1.
Initial Credit
Extension.....................................................................
44
4.2.
Each Credit
Extension........................................................................
47
ARTICLE V
REPRESENTATIONS AND
WARRANTIES.................................................
47
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5.1.
Existence and
Standing.......................................................................
47
5.2.
Authorization and
Validity...................................................................
47
5.3.
No Conflict; Government
Consent..............................................................
48
5.4.
Financial
Statements.........................................................................
48
5.5.
Material Adverse
Change......................................................................
48
5.6.
Taxes........................................................................................
48
5.7.
Litigation and Contingent
Obligations........................................................
49
5.8.
Subsidiaries.................................................................................
49
5.9.
ERISA........................................................................................
49
5.10.
Accuracy of
Information......................................................................
49
5.11.
Regulation
U.................................................................................
49
5.12. Material
Agreements..........................................................................
50
5.13.
Compliance With
Laws.........................................................................
50
5.14.
Ownership of
Properties......................................................................
50
5.15. Plan
Assets; Prohibited
Transactions.........................................................
50
5.16.
Environmental
Matters........................................................................
50
5.17.
Investment Company
Act.......................................................................
50
5.18.
Public Utility Holding Company
Act...........................................................
51
5.19.
Insurance....................................................................................
51
5.20. No
Default or Unmatured
Default..............................................................
51
5.21.
Reportable
Transaction.......................................................................
51
5.22. SDN
List
Designation.........................................................................
51
ARTICLE VI
COVENANTS......................................................................
51
6.1.
Financial
Reporting..........................................................................
51
6.2.
Use of
Proceeds..............................................................................
53
6.3.
Notice of
Default............................................................................
54
6.4.
Conduct of
Business..........................................................................
54
6.5.
Taxes........................................................................................
54
6.6.
Insurance....................................................................................
54
6.7.
Compliance with
Laws.........................................................................
54
6.8.
Maintenance of
Properties....................................................................
55
6.9.
Inspection; Keeping of Books and
Records.....................................................
55
6.10.
Restricted
Payments..........................................................................
55
6.11.
Merger.......................................................................................
55
6.12. Sale
of
Assets...............................................................................
56
6.13.
Investments and
Acquisitions.................................................................
56
6.14.
Indebtedness.................................................................................
58
6.15.
Liens........................................................................................
60
6.16.
Affiliates...................................................................................
61
6.17.
Financial
Contracts..........................................................................
62
6.18.
Subsidiary
Covenants.........................................................................
62
6.19.
Contingent
Obligations.......................................................................
62
6.20.
Amendments to Subordinated Note
Documents....................................................
62
6.21.
Leverage
Ratio...............................................................................
63
6.22.
Fixed Charge Coverage
Ratio..................................................................
64
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6.23.
Minimum Consolidated Net
Worth...............................................................
64
6.24.
Capital
Expenditures.........................................................................
64
6.25.
Rentals......................................................................................
65
6.26.
Guarantors...................................................................................
65
6.27.
Collateral...................................................................................
65
6.28. Sale
and Leaseback
Transactions..............................................................
66
6.29.
Replacement of Transitional Letters of
Credit................................................ 66
6.30.
Insurance and Condemnation
Proceeds..........................................................
66
ARTICLE VII
DEFAULTS.......................................................................
67
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND
REMEDIES................................. 69
8.1.
Acceleration.................................................................................
69
8.2.
Amendments...................................................................................
71
8.3.
Preservation of
Rights.......................................................................
72
ARTICLE IX
GENERAL
PROVISIONS.............................................................
72
9.1.
Survival of
Representations..................................................................
72
9.2.
Governmental
Regulation......................................................................
72
9.3.
Headings.....................................................................................
72
9.4.
Entire
Agreement.............................................................................
72
9.5.
Several Obligations; Benefits of this
Agreement..............................................
72
9.6.
Expenses;
Indemnification....................................................................
73
9.7.
Numbers of
Documents.........................................................................
73
9.8.
Accounting...................................................................................
74
9.9.
Severability of
Provisions...................................................................
74
9.10.
Nonliability of
Lenders......................................................................
74
9.11.
Confidentiality..............................................................................
75
9.12.
Lenders Not Utilizing Plan
Assets............................................................
75
9.13.
Nonreliance..................................................................................
75
9.14.
Disclosure...................................................................................
75
9.15.
Performance of
Obligations...................................................................
75
9.16. USA
Patriot Act
Notification.................................................................
76
ARTICLE X
THE ADMINISTRATIVE
AGENT.......................................................
77
10.1.
Appointment; Nature of
Relationship..........................................................
77
10.2.
Powers.......................................................................................
77
10.3.
General
Immunity.............................................................................
77
10.4. No
Responsibility for Loans, Recitals,
etc................................................... 77
10.5.
Action on Instructions of
Lenders............................................................
78
10.6.
Employment of Agents and
Counsel.............................................................
78
10.7.
Reliance on Documents;
Counsel...............................................................
78
10.8.
Administrative Agent's Reimbursement and
Indemnification..................................... 79
10.9.
Notice of
Default............................................................................
79
10.10. Rights as
a
Lender...........................................................................
79
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10.11. Lender
Credit
Decision.......................................................................
79
10.12. Successor
Administrative
Agent...............................................................
80
10.13.
Administrative Agent and Arranger
Fees.......................................................
81
10.14. Delegation
to
Affiliates.....................................................................
81
10.15. Collateral
Documents.........................................................................
81
ARTICLE XI
SETOFF; RATABLE
PAYMENTS.......................................................
82
11.1.
Setoff.......................................................................................
82
11.2.
Ratable
Payments.............................................................................
82
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS;
PARTICIPATIONS.............................. 83
12.1.
Successors and
Assigns.......................................................................
83
12.2.
Participations...............................................................................
83
12.3.
Assignments..................................................................................
84
12.4.
Dissemination of
Information.................................................................
86
12.5. Tax
Treatment................................................................................
86
ARTICLE XIII
NOTICES........................................................................
86
13.1.
Notices; Effectiveness; Electronic
Communication.............................................
86
13.2.
Change of Address,
Etc.......................................................................
87
ARTICLE XIV
COUNTERPARTS; INTEGRATION; EFFECTIVENESS;
ELECTRONIC
EXECUTION...........................................................
87
14.1.
Counterparts;
Effectiveness..................................................................
87
14.2.
Electronic Execution of
Assignments..........................................................
88
ARTICLE XV
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF
JURY
TRIAL.....................................................................
88
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SCHEDULES
Commitment Schedule
Pricing Schedule
Schedule 2.20
-
Transitional Letters of Credit
Schedule 4.1.1
-
Omitted Governmental Certificates
Schedule 5.8
-
Subsidiaries
Schedule 5.12
-
Material Agreements
Schedule 6.12.4
-
Contemplated Dispositions of Assets
Schedule 6.13.2
-
Existing Investments
Schedule 6.13.7
-
Contemplated Investments
Schedule 6.13.8
-
Existing Advances and Loans to Employees, etc.
Schedule 6.14.2
-
Existing Indebtedness
Schedule 6.14.4
-
Contemplated Indebtedness
Schedule 6.15.5
-
Existing Liens
Schedule 6.27
-
Mortgaged Properties
EXHIBITS
Exhibit A -
Form of
Borrower's Counsel's Opinion
Exhibit B -
Form of
Compliance Certificate
Exhibit C -
Form of
Assignment and Assumption Agreement
Exhibit D -
Form of
Loan/Credit Related Money Transfer Instruction
Exhibit E-1 - Form of
Promissory Note for Term Loan (if requested)
Exhibit E-2 - Form of
Promissory Note for Revolving Loan (if requested)
Exhibit F -
Officer's
Certificate
Exhibit G -
List of
Closing Documents
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Exhibit H -
Form of
Borrowing Base Certificate
ii
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CREDIT AGREEMENT
This Credit Agreement, dated as of December 31, 2003, is entered
into
by and among Res-Care, Inc., a Kentucky
corporation, the Lenders, the LC Issuer,
Bank One, NA, a national banking
association having its principal office in
Chicago, Illinois, as Administrative Agent,
Merrill Lynch Capital and National
City Bank of Kentucky as Syndication Agents
and General Electric Capital
Corporation as Documentation Agent. The
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1.
Certain Defined Terms. As used in this Agreement:
"Account Debtor" means the account debtor or obligor with respect
to
any of the Receivables and includes,
without limitation, co-makers, indorsers,
guarantors, pledgors, hypothecators,
mortgagors, and any other Person who
agrees, conditionally or otherwise, to
furnish assurance against loss on any
Receivable.
"Accounting Changes" is defined in Section 9.8 hereof.
"Acquisition" means any transaction, or any series of related
transactions, consummated on or after the
Closing Date, by which the Borrower or
any of its Subsidiaries (i) acquires any
going business or all or substantially
all of the assets of any firm, corporation
or limited liability company, or
division thereof, whether through purchase
of assets, merger or otherwise or
(ii) directly or indirectly acquires (in
one transaction or as the most recent
transaction in a series of transactions) at
least a majority (in number of
votes) of the securities of a corporation
which have ordinary voting power for
the election of directors (other than
securities having such power only by
reason of the happening of a contingency)
or a majority (by percentage of voting
power) of the outstanding ownership
interests of a partnership or limited
liability company of any Person.
"Administrative Agent" means Bank One in its capacity as
contractual
representative of the Lenders pursuant to
Article X, and not in its individual
capacity as a Lender, as Administrative
Agent, and any successor Agent appointed
pursuant to Article X.
"Adjusted Available Aggregate Revolving Loan Commitment" means, at
any
time, the lesser of (i) Aggregate Revolving
Loan Commitment and (ii) the
Borrowing Base, in each case as then in
effect.
"Advance" means a borrowing hereunder consisting of the
aggregate
amount of several Revolving Loans or Term
Loans, as the case may be (i) made by
some or all of the Lenders on the same
Borrowing Date, or (ii) converted or
continued by the Lenders on the same date
of conversion or continuation,
consisting, in either case, of the
aggregate amount of the several Loans of the
same Type and, in the case of Eurodollar
Loans, for the same Interest Period.
The term "Advance" shall include Swing Line
Loans unless otherwise expressly
provided.
"Affiliate" of any Person means any other Person directly or
indirectly
controlling, controlled by or under common
control with such Person. A Person
shall be deemed to control
<PAGE>
another Person if the controlling Person
possesses, directly or indirectly, the
power to direct or cause the direction of
the management or policies of the
controlled Person, whether through
ownership of voting securities, by contract
or otherwise.
"Aggregate Outstanding Revolving Credit Exposure" means, at any
time,
the aggregate of the Outstanding Revolving
Credit Exposure of all the Lenders.
"Aggregate Revolving Loan Commitment" means the aggregate of
the
Revolving Loan Commitments of all the
Lenders, as may be increased or reduced
from time to time pursuant to the terms
hereof. The initial Aggregate Revolving
Loan Commitment is One Hundred Million and
00/100 Dollars ($100,000,000).
"Aggregate Term Loan Commitment" means the aggregate of the Term
Loan
Commitments of all the Lenders, as may be
reduced from time to time pursuant
hereto. The initial Aggregate Term Loan
Commitment is Thirty Five Million and
00/100 Dollars ($35,000,000).
"Agreement" means this Credit Agreement, as it may be amended,
restated, supplemented or otherwise
modified and as in effect from time to time.
"Agreement Accounting Principles" means generally accepted
accounting
principles as in effect in the United
States from time to time, applied in a
manner consistent with that used in
preparing the financial statements of the
Borrower referred to in Section 5.4.
"Alternate Base Rate" means, for any day, a rate of interest per
annum
equal to the higher of (i) the Prime Rate
for such day and (ii) the sum of the
Federal Funds Effective Rate for such day
plus 1/2% per annum.
"Applicable Fee Rate" means, with respect to the Commitment Fee at
any
time, the percentage rate per annum which
is applicable at such time with
respect to such fee as set forth in the
Pricing Schedule.
"Applicable Margin" means, with respect to Advances of any Type at
any
time, the percentage rate per annum which
is applicable at such time with
respect to Advances of such Type as set
forth in the Pricing Schedule.
"Applicable Pledge Percentage" means 100%, but 65% in the case of
a
pledge of Capital Stock of a Foreign
Subsidiary to the extent a 100% pledge
would cause a Deemed Dividend Problem or
Financial Assistance Problem.
"Approved Fund" means any Fund that is administered or managed by
(a) a
Lender, (b) an Affiliate of a Lender or (c)
an entity or an Affiliate of an
entity that administers or manages a
Lender.
"Arranger" means Banc One Capital Markets, Inc., a Delaware
corporation, and its successors, in its
capacity as Lead Arranger and Sole Book
Runner.
2
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"Article" means an article of this Agreement unless another
document is
specifically referenced.
"Asset Sale" means, with respect to the Borrower or any Subsidiary,
the
sale, lease, conveyance, disposition or
other transfer by such Person of any of
its assets (including by way of a
sale-leaseback transaction, and including the
sale or other transfer of any of the
capital stock or other equity interests of
any Subsidiary of such Person) with a book
value in excess of $50,000 to any
Person other than the Borrower or any of
its wholly-owned Subsidiaries other
than (i) the sale of inventory in the
ordinary course of business, (ii) the sale
or other disposition of any obsolete,
excess, damaged or worn-out Equipment
disposed of in the ordinary course of
business, (iii) leases of assets in the
ordinary course of business consistent with
past practice and (iv) transfers
consisting of Restricted Payments permitted
under 6.10, Investments permitted
under 6.13 and Liens permitted under
Section 6.15.
"Assignment Agreement" is defined in Section 12.3.1.
"Authorized Officer" means any of the President and Chief
Executive
Officer, Chief Financial Officer, Treasurer
or Controller of the Borrower, or
such other officer of the Borrower as may
be designated by the Borrower in
writing to the Administrative Agent from
time to time, acting singly.
"Available Aggregate Revolving Loan Commitment" means, at any time,
the
Aggregate Revolving Loan Commitment then in
effect minus the Aggregate
Outstanding Revolving Credit Exposure at
such time.
"Available Aggregate Term Loan Commitment" means, at any time,
the
Aggregate Term Loan Commitment then in
effect minus the aggregate outstanding
principal amount of Term Loans at such
time.
"Bank One" means Bank One, NA, a national banking association
having
its principal office in Chicago, Illinois,
in its individual capacity, and its
successors.
"Borrower" means Res-Care, Inc., a Kentucky corporation, and
its
permitted successors and assigns
(including, without limitation, a debtor in
possession on its behalf).
"Borrowing Base" means, as of any date of calculation, an amount,
as
set forth on the most current Borrowing
Base Certificate delivered to the
Administrative Agent, equal to up to
eighty-five percent (85%) of Eligible
Receivables.
"Borrowing Base Certificate" means a certificate, in substantially
the
form of Exhibit H hereto, setting forth the
Borrowing Base and the component
calculations thereof.
"Borrowing Date" means a date on which an Advance is made
hereunder.
"Borrowing Notice" is defined in Section 2.8.
"Business Day" means (i) with respect to any borrowing, payment or
rate
selection of Eurodollar Advances, a day
(other than a Saturday or Sunday) on
which banks generally are
3
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open in Chicago, Illinois for the conduct
of substantially all of their
commercial lending activities, interbank
wire transfers can be made on the
Fedwire system and dealings in Dollars are
carried on in the London interbank
market and (ii) for all other purposes, a
day (other than a Saturday or Sunday)
on which banks generally are open in
Chicago, Illinois for the conduct of
substantially all of their commercial
lending activities and interbank wire
transfers can be made on the Fedwire
system.
"CapEx Base Amount" means (i) $17,500,000 during the Borrower's
2004
fiscal year, (ii) $18,500,000 during the
Borrower's 2005 fiscal year, (iii)
$19,500,000 during the Borrower's 2006
fiscal year and (iv) $20,500,000 during
each fiscal year thereafter.
"Capital Expenditures" means, without duplication, any expenditures
for
any purchase or other acquisition of any
asset which would be classified as a
fixed or capital asset on a consolidated
balance sheet of the Borrower and its
Subsidiaries prepared in accordance with
Agreement Accounting Principles.
"Capitalized Lease" of a Person means any lease of Property by
such
Person as lessee which would be capitalized
on a balance sheet of such Person
prepared in accordance with Agreement
Accounting Principles.
"Capitalized Lease Obligations" of a Person means the amount of
the
obligations of such Person under
Capitalized Leases which would be shown as a
liability on a balance sheet of such Person
prepared in accordance with
Agreement Accounting Principles.
"Cash Equivalent Investments" means (i) obligations of, or
fully
guaranteed by, the United States of America
maturing within 12 months from the
date of investment, (ii) commercial paper
rated A-1 or better by S&P or P-1 or
better by Moody's, (iii) demand deposit
accounts maintained in the ordinary
course of business, and (iv) certificates
of deposit issued by and time deposits
with commercial banks (whether domestic or
foreign).
"Change of Control" means (i) the acquisition by any Person, or two
or
more Persons acting in concert, of
beneficial ownership (within the meaning of
Rule 13d-3 of the Securities and Exchange
Commission under the Securities
Exchange Act of 1934) of 35% or more of the
outstanding shares of voting stock
of the Borrower or (ii) the majority of the
Board of Directors of the Borrower
fails to consist of Continuing
Directors.
"Closing Date" means December 31, 2003.
"Code" means the Internal Revenue Code of 1986, as amended,
reformed or
otherwise modified from time to time, and
any rule or regulation issued
thereunder.
"Collateral" means all property and interests in property now owned
or
hereafter acquired by the Borrower or any
of its Domestic Subsidiaries in or
upon which a security interest, lien or
mortgage is granted to the
Administrative Agent, for the benefit of
the Holders of Secured Obligations,
whether under the Pledge and Security
Agreement, under any of the other
Collateral Documents or under any of the
other Loan Documents.
4
<PAGE>
"Collateral Documents" means all agreements, instruments and
documents
executed in connection with this Agreement
that are intended to create or
evidence Liens to secure the Secured
Obligations, including, without limitation,
the Pledge and Security Agreement, the
Intellectual Property Security
Agreements, the Mortgages and all other
security agreements, mortgages, deeds of
trust, loan agreements, notes, guarantees,
subordination agreements, pledges,
powers of attorney, consents, assignments,
contracts, fee letters, notices,
leases, financing statements and all other
written matter whether heretofore,
now, or hereafter executed by the Borrower
or any of its Subsidiaries and
delivered to the Administrative Agent.
"Collateral Shortfall Amount" is defined in Section 8.1.
"Commitment Fee" is defined in Section 2.5.1.
"Commitment Schedule" means the Schedule identifying each
Lender's
Revolving Loan Commitment and Term Loan
Commitment as of the Closing Date
attached hereto and identified as such.
"Consolidated Capital Expenditures" means, with reference to
any
period, the Capital Expenditures of the
Borrower and its Subsidiaries calculated
on a consolidated basis for such
period.
"Consolidated Current Maturities" means, with reference to any
period,
all payments of principal and interest due
within twelve (12) calendar months on
and after the last day of such period with
respect to all Consolidated
Indebtedness (other than Indebtedness under
the Convertible Subordinated Notes)
of the Borrower and its Subsidiaries.
"Consolidated EBITDA" means Consolidated Net Income plus, to the
extent
deducted from revenues in determining
Consolidated Net Income, (i) Consolidated
Interest Expense, (ii) expense for taxes
paid or accrued, (iii) depreciation,
(iv) amortization and (v) to the extent
reasonably approved by the
Administrative Agent, any extraordinary
non-cash or nonrecurring non-cash
charges or losses incurred other than in
the ordinary course of business
including but not limited to losses
resulting from redemptions or repayments of
Indebtedness (including without limitation
in connection with the repayment of
the Indebtedness under the Existing Credit
Agreement and otherwise in connection
with the Refinancing), minus, to the extent
included in Consolidated Net Income,
(a) interest income and (b) any
extraordinary non-cash or nonrecurring non-cash
gains realized other than in the ordinary
course of business, including but not
limited to gains resulting from redemptions
of Indebtedness, all calculated for
the Borrower and its Subsidiaries on a
consolidated basis. For purposes of
determining Consolidated EBITDA, any
non-cash income associated with the
write-up of goodwill pursuant to FASB no.
142 shall be subtracted from
Consolidated Net Income and any non-cash
expense associated with the write-down
of goodwill pursuant to FASB no. 142 shall
be added back to Consolidated Net
Income.
"Consolidated Funded Indebtedness" means, at any time, with respect
to
any Person, the sum of, without
duplication, (i) the aggregate Dollar amount of
Consolidated Indebtedness owing by such
Person or for which such Person is
liable which has actually been funded and
is outstanding at such time, whether
or not such amount is due or payable at
such time, plus (ii) the
5
<PAGE>
aggregate stated or face amount of all
Letters of Credit at such time for which
such Person is the account party or is
otherwise liable plus (iii) the aggregate
amount of Capitalized Lease Obligations
owing by such Person or for which such
Person is otherwise liable, plus (iv) the
aggregate of all amounts (to the
extent aggregating in excess of $1,000,000)
owing by such Person or for which
such Person is otherwise liable with
respect to final and non-appealable
judgments or settlements arising in
connection with trials, arbitrations,
mediations, litigation or other forums for
dispute resolution.
"Consolidated Indebtedness" means at any time, with respect to
any
Person, the Indebtedness of such Person and
its Subsidiaries calculated on a
consolidated basis as of such time.
"Consolidated Interest Expense" means, with reference to any
period,
the interest expense of the Borrower and
its Subsidiaries calculated on a
consolidated basis for such period, in
accordance with Agreement Accounting
Principles.
"Consolidated Net Funded Indebtedness" means, at any time, with
respect
to any Person, Consolidated Funded
Indebtedness, minus, so long as Revolving
Loans in an aggregate principal amount not
in excess of $2,000,000 are then
outstanding, cash and Cash Equivalent
Investments maintained by the Borrower at
such time.
"Consolidated Net Income" means, with reference to any period, the
net
income (or loss) of the Borrower and its
Subsidiaries calculated on a
consolidated basis for such period in
accordance with Agreement Accounting
Principles.
"Consolidated Net Worth" means at any time, with respect to any
Person,
the consolidated stockholders' equity of
such Person and its Subsidiaries
calculated on a consolidated basis in
accordance with Agreement Accounting
Principles.
"Consolidated Rentals" means, with reference to any period, the
Rentals
of the Borrower and its Subsidiaries
calculated on a consolidated basis for such
period in accordance with Agreement
Accounting Principles.
"Contingent Obligation" of a Person means any agreement,
undertaking or
arrangement by which such Person
guarantees, endorses, contingently agrees to
purchase or provide funds for the payment
of, or otherwise becomes or is
contingently liable upon, the obligation or
liability of any other Person, or
agrees to maintain the net worth or working
capital or other financial condition
of any other Person, excluding
indemnification obligations incurred in the
ordinary course of business or in
connection with transactions that are not
prohibited by this Agreement.
"Continuing Director" means, with respect to any Person as of any
date
of determination, any member of the board
of directors of such Person who (i)
was a member of such board of directors on
the Closing Date, or (ii) was
nominated for election or elected to such
board of directors with the approval
of the required majority of the Continuing
Directors who were members of such
board at the time of such nomination or
election; provided that any individual
who is so elected or nominated in
connection with a merger, consolidation,
acquisition or similar transaction shall
not be a Continuing Director unless
such individual was a Continuing
Director
6
<PAGE>
prior thereto or such individual was
elected in connection with a Permitted
Acquisition or any other acquisition
consented to hereunder.
"Controlled Group" means all members of a controlled group of
corporations or other business entities and
all trades or businesses (whether or
not incorporated) under common control
which, together with the Borrower or any
of its Subsidiaries, are treated as a
single employer under Section 414 of the
Code.
"Conversion/Continuation Notice" is defined in Section 2.9.
"Convertible Subordinated Notes" means those certain 5.9%
Convertible
Subordinated Notes issued by the Borrower
pursuant to and in connection with the
Convertible Subordinated Note
Documents.
"Convertible Subordinated Note Documents" means the Convertible
Subordinated Notes and that certain
Statement of Additional Terms and Conditions
dated as of March 12, 1998.
"Credit Extension" means the making of an Advance or the issuance
of a
Facility LC hereunder.
"Credit Extension Date" means the Borrowing Date for an Advance or
the
issuance date for a Facility LC.
"Credit Party" means, at any time, any of the Borrower and any
Person
which is a Guarantor at such time.
"Deemed Dividend Problem" means, with respect to any Foreign
Subsidiary, such Foreign Subsidiary's
accumulated and undistributed earnings and
profits being deemed to be repatriated to
the Borrower or the applicable parent
Domestic Subsidiary for U.S. federal income
tax purposes and the effect of such
repatriation causing adverse tax
consequences to the Borrower or such parent
Domestic Subsidiary, in each case as
determined by the Borrower in its
commercially reasonable judgment acting in
good faith and in consultation with
its legal and tax advisors.
"Default" means an event described in Article VII.
"Disqualified Stock" means any capital stock or other equity
interest
that, by its terms (or by the terms of any
security into which it is convertible
or for which it is exchangeable), or upon
the happening of any event, matures or
is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise,
or redeemable at the option of the holder
thereof, in whole or in part, on or
prior to the date that is 91 days after the
later of the (i) the Revolving Loan
Termination Date and (ii) the Term Loan
Maturity Date.
"Documentation Agent" means General Electric Capital Corporation in
its
capacity as documentation agent for the
credit transaction evidenced by this
Agreement.
"Dollar", "dollar" and "$" means the lawful currency of the
United
States of America.
7
<PAGE>
"Domestic Subsidiary" means any Subsidiary of any Person
organized
under the laws of a jurisdiction located in
the United States of America.
"Eligible Receivables" means Receivables created by (a) the
Borrower
and (b) any Domestic Subsidiary which is a
Guarantor, in each case in the
ordinary course of its business arising out
of the sale of goods or rendition of
services by the Borrower or such
Subsidiaries, which Receivables are and at all
times shall continue to meet the following
requirements:
(a) are not
Receivables that have been identified as greater than
one hundred twenty (120) days on the
accounts receivable aging report furnished
to the Administrative Agent pursuant to
Section 6.1.8;
(b) are not
Receivables with respect to which the Account Debtor
is a director, officer, employee,
Subsidiary or Affiliate of the Borrower or any
Subsidiary;
(c) are not
Receivables originated by a Foreign Subsidiary or
Receivables with respect to which the
Account Debtor is not a resident of, or
domiciled in, the United States of America
unless the Account Debtor has
supplied the Borrower or applicable
Domestic Subsidiary with an irrevocable
letter of credit, issued by a financial
institution satisfactory to the
Administrative Agent, sufficient to cover
such Receivable in form and substance
satisfactory to the Administrative
Agent;
(d)
Receivables not denominated in Dollars;
(e)
Receivables that are subject to any dispute, contra-account,
defense, offset or counterclaim, volume
rebate or advertising or other
allowance, in each case of which the
Borrower or applicable Domestic Subsidiary
has been given notification, provided that
if any portion of any such
Receivables are not subject to any dispute,
contra-account, defense, offset,
counterclaim, volume rebate or advertising
or other allowance and the payment of
such portion is not being withheld or
delayed or otherwise affected in any
manner due to the portion that is subject
to such dispute, contra-account,
defense, offset, counterclaim, volume
rebate or advertising or other allowance,
then such portion which is not subject to
any dispute, contra-account, defense,
offset, counterclaim, volume rebate or
advertising or other allowance shall not
be excluded from Eligible Receivables
because of this clause (e);
(f) are
Receivables (other than Health Care Receivables) with
respect to which the Administrative Agent,
for the benefit of the Holders of
Secured Obligations, has a first and valid
fully perfected and enforceable
security interest;
(g) are not
Receivables with respect to which the Account Debtor
is the subject of a bankruptcy or similar
insolvency proceeding or has made an
assignment for the benefit of creditors or
whose assets have been conveyed to a
receiver, trustee or assignee for the
benefit of creditors;
(h) are not
Receivables which are Health Care Receivables unless
such Receivables are subject to (i)
procedures for cash management and (ii)
perfection under the UCC, in each case in a
manner satisfactory to the
Administrative Agent in its reasonable
discretion (the Administrative Agent
hereby agreeing that, as of the Closing
Date, cash management procedures
8
<PAGE>
in existence on the Closing Date (assuming
the requirement under Section 6.27
for control agreements and blocked account
agreements is timely satisfied) are
acceptable to the Administrative Agent and
Health Care Receivables are subject
to perfection under the UCC);
(i) are not
Receivables with respect to which the Borrower or
applicable Subsidiary has not yet shipped
the applicable goods or performed the
applicable service;
(j) are not
Receivables that are reconciliation items;
(k)
are not
Receivables subject to any Lien (other than Liens in
favor of the Administrative Agent for the
benefit of the Holders of Secured
Obligations) or the inventory, goods,
property, services or other consideration
of which any such Receivable constitutes
proceeds is subject to any such Lien;
(l) are not
Receivables evidenced by a promissory note or other
similar instrument unless such note or
instrument is pledged to the
Administrative Agent, for the benefit of
the Holders of Secured Obligations, on
terms satisfactory to the Administrative
Agent;
(m) are not
Receivables that are consigned or otherwise assigned
to any Person for collection or otherwise;
and
(n) are not
Receivables (other than Health Care Receivables and
other Receivables from Governmental
Authorities) in respect of which the
creation of a Lien in favor of the
Administrative Agent for the benefit of the
Holders of Secured Obligations is
prohibited.
Notwithstanding anything in this Agreement
to the contrary, the Administrative
Agent shall have the continuing right, to
be reasonably exercised, to require
Borrower and each Domestic Subsidiary to
comply with the Federal Assignment of
Claims Act or any comparable state or local
government statute or regulation
with respect to any Receivables with
respect to which the Account Debtor is any
federal governmental authority or the
United States of America, or, in either
case, any department, agency or
instrumentality thereof.
"Equipment" means all of the Borrower's and each Subsidiary's
present
and future (i) equipment, including,
without limitation, machinery,
manufacturing, distribution, data
processing and office equipment, assembly
systems, tools, molds, dies, fixtures,
appliances, furniture, furnishings,
vehicles, vessels, aircraft, aircraft
engines, and trade fixtures, (ii) other
tangible personal property (other than
inventory), and (iii) any and all
accessions, parts and appurtenances
attached to any of the foregoing or used in
connection therewith, and any substitutions
therefor and replacements, products
and proceeds thereof.
"Environmental Laws" means any and all federal, state, local
and
foreign statutes, laws, judicial decisions,
regulations, ordinances, rules,
judgments, orders, decrees, plans,
injunctions, permits, concessions, grants,
franchises, licenses, agreements and other
governmental restrictions relating to
(i) the protection of the environment, (ii)
the effect of the environment on
human health, (iii) emissions, discharges
or releases of pollutants,
contaminants, hazardous substances or
wastes into surface water, ground water or
land, or (iv) the manufacture, processing,
distribution, use, treatment,
storage, disposal, transport or handling of
pollutants, contaminants, hazardous
substances or wastes or the clean-up or
other remediation thereof.
9
<PAGE>
"ERISA" means the Employee Retirement Income Security Act of 1974,
as
amended from time to time, and any rules or
regulations promulgated thereunder.
"Eurodollar Advance" means an Advance which, except as
otherwise
provided in Section 2.11, bears interest at
the applicable Eurodollar Rate.
"Eurodollar Base Rate" means, with respect to a Eurodollar Advance
for
the relevant Interest Period, the rate per
annum equal to the applicable British
Bankers' Association LIBOR rate for
deposits in Dollars as reported by any
generally recognized financial information
service as of 11:00 a.m. (London
time) two (2) Business Days prior to the
first day of such Interest Period, and
having a maturity equal to such Interest
Period, provided that, if no such
British Bankers' Association LIBOR rate is
available to the Administrative
Agent, the applicable Eurodollar Base Rate
for the relevant Interest Period
shall instead be the rate determined by the
Administrative Agent to be the rate
at which Bank One or one of its affiliate
banks offers to place deposits in
Dollars with first-class banks in the
London interbank market at approximately
11:00 a.m. (London time) two (2) Business
Days prior to the first day of such
Interest Period, in the approximate amount
of Bank One's relevant Eurodollar
Loan and having a maturity equal to such
Interest Period.
"Eurodollar Loan" means a Revolving Loan which, except as
otherwise
provided in Section 2.11, bears interest at
the applicable Eurodollar Rate.
"Eurodollar Rate" means, with respect to a Eurodollar Advance for
the
relevant Interest Period, the sum of (i)
the quotient of (a) the Eurodollar Base
Rate applicable to such Interest Period,
divided by (b) one minus the Reserve
Requirement (expressed as a decimal)
applicable to such Interest Period, plus
(ii) the Applicable Margin then in effect,
changing as and when the Applicable
Margin changes.
"Event of Loss" means, with respect to any Property, any of the
following: (i) any loss, destruction or
damage of such Property or (ii) any
condemnation, seizure, or taking, by
exercise of the power of eminent domain or
otherwise, of such Property, or
confiscation of such Property or the requisition
of the use of such Property by any
Governmental Authority.
"Excluded Taxes" means, in the case of each Lender or
applicable
Lending Installation and the Administrative
Agent, taxes imposed on its overall
net income, and franchise taxes imposed on
it.
"Exhibit" refers to an exhibit to this Agreement, unless
another
document is specifically referenced.
"Existing Credit Agreement" means that certain Credit and
Security
Agreement dated as of November 15, 2001
between the Borrower, certain of its
subsidiaries, the lenders party thereto and
National City Bank of Kentucky as
administrative agent, as the same has been
amended or supplemented prior to the
Closing Date.
"Facility" means each facility, program, group home and training
center
now or hereafter owned, leased, operated
and/or managed by any of the Borrower
or its Subsidiaries.
10
<PAGE>
"Facility LC" is defined in Section 2.20.1.
"Facility LC Application" is defined in Section 2.20.3.
"Facility LC Collateral Account" is defined in Section 2.20.11.
"Federal Funds Effective Rate" means, for any day, an interest 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 for
such day (or, if such day is not a
Business Day, for the immediately preceding
Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not
so published for any day which is a
Business Day, the average of the quotations
at approximately 10:00 a.m.
(Louisville, Kentucky time) on such day on
such transactions received by the
Administrative Agent from three Federal
funds brokers of recognized standing
selected by the Administrative Agent in its
sole discretion.
"Financial Contract" of a Person means (i) any exchange-traded
or
over-the-counter futures, forward, swap or
option contract or other financial
instrument with similar characteristics or
(ii) any Rate Management Transaction.
"Financial Assistance Problem" means, with respect to any
Foreign
Subsidiary, the inability of such Foreign
Subsidiary to become a Subsidiary
Guarantor or to permit its Capital Stock
from being pledged pursuant to a pledge
agreement on account of legal or financial
limitations imposed by the
jurisdiction of organization of such
Foreign Subsidiary or other relevant
jurisdictions having authority over such
Foreign Subsidiary, in each case as
determined by the Borrower in its
commercially reasonable judgment acting in
good faith and in consultation with its
legal and tax advisors
"Financing" means, with respect to any Person, (i) the issuance or
sale
by such Person of any equity interests in
such Person other than the issuance of
any stock options in consideration for
services or the issuance of stock by such
Person pursuant to the exercise of any
option granted in consideration for
services, or (ii) the issuance or sale by
such Person of any Indebtedness other
than Indebtedness permitted under Sections
6.14.1 through 6.14.13; provided,
however, that the foregoing clause (ii)
shall not permit the incurrence by the
Borrower or any Subsidiary of any
Indebtedness if such incurrence is not
otherwise permitted by Section 6.14.
"FIRREA" means the Financial Institutions Reform, Recovery, and
Enforcement Act of 1989, as amended,
modified or supplemented from time to time
"First Tier Foreign Subsidiary" means each Foreign Subsidiary
with
respect to which any one or more of the
Borrower and its Domestic Subsidiaries
directly owns or controls more than 50% of
such Foreign Subsidiary's issued and
outstanding equity interests.
"Floating Rate" means, for any day, a rate per annum equal to the
sum
of (i) the Alternate Base Rate for such
day, changing when and as the Alternate
Base Rate changes plus (ii) the Applicable
Margin then in effect, changing as
and when the Applicable Margin changes.
"Floating Rate Advance" means an Advance which, except as
otherwise
provided in Section 2.11, bears interest at
the Floating Rate.
11
<PAGE>
"Floating Rate Loan" means a Loan which, except as otherwise
provided
in Section 2.11, bears interest at the
Floating Rate.
"Foreign Subsidiary" means any Subsidiary of any which is not a
Domestic Subsidiary of such Person.
"Fund" means any
Person (other than a natural person) that is (or will
be) engaged in making, purchasing, holding
or otherwise investing in commercial
loans and similar extensions of credit in
the ordinary course of its business.
"Governmental Authority" means any nation or government, any
foreign,
federal, state, local or other political
subdivision thereof and any entity
exercising executive, legislative,
judicial, regulatory or administrative
functions of or pertaining to
government.
"Guarantor"
means each Subsidiary of the Borrower which is a party to
the Guaranty Agreement, including each
Subsidiary of the Borrower which becomes
a party to the Guaranty Agreement pursuant
to a joinder or other supplement
thereto.
"Guaranty Agreement" means the Guaranty Agreement, dated as of
the
Closing Date, made by the Guarantors in
favor of the Administrative Agent for
the benefit of the Holders of Secured
Obligations, as the same may be amended,
restated, supplemented or otherwise
modified from time to time.
"Healthcare Event" means the occurrence of any of the following
with
respect to any one or more Facilities which
results in a Material Adverse
Effect: (i) the revocation, denial,
suspension or non-renewal of any license,
certificate or permit required to operate
Facilities (other than Facilities
managed by the Borrower or any Subsidiary
of the Borrower on behalf of a Person
other than the Borrower or any Subsidiary
thereof), with any appeal having been
taken and denied, provided that, during any
such appeal period the Facility at
issue is able to operate; (ii) the
termination or suspension of the provider
agreements under Medicare Law or Medicaid
Law or any other agreement or contract
with any Official Body or private payor
with respect to Facilities (other than
Facilities managed by the Borrower or any
Subsidiary of the Borrower on behalf
of a Person other than the Borrower or
Subsidiary thereof); (iii) the
involuntary receivership or involuntary
management by any applicable Official
Body of Facilities (other than Facilities
managed by the Borrower or any
Subsidiary of a Borrower on behalf of a
Person other than the Borrower or any
Subsidiary thereof); (iv) the imposition by
any applicable Official Body with
respect to Facilities (other than
Facilities managed by the Borrower or any
Subsidiary of a Borrower on behalf of a
Person other than the Borrower or any
Subsidiary thereof) of administrative holds
or similar restrictions or
limitations on the admission of patients or
residents (but only for so long as
such holds, restrictions or limitations
shall be in effect); (v) the
interruption or cessation of payments or
reimbursement by any applicable
Official Body or private payor, with
respect to Facilities (other than
Facilities managed by the Borrower or any
Subsidiary of the Borrower on behalf
of a Person other than the Borrower or any
Subsidiary thereof), but only for so
long as such interruption or cessation is
in effect; (vi) the cash payment in
any fiscal year by any one or more of the
Borrower or any of its Subsidiaries of
any recoupment or demand for recoupment by
any applicable Official Body or (vii)
the inability of
12
<PAGE>
the Borrower or any Subsidiary thereof to
obtain adequate professional liability
insurance, as determined by the
Administrative Agent in its reasonable
discretion.
"Health Care Receivable" shall mean a Receivable where the payor is
the
United States of America, a State, county
or municipality, or any agency or
instrumentality thereof which is obligated
by to make payment with respect to
Medicare, Medicaid or other Receivables
representing amounts owing under any
other program established by federal,
State, county, municipal or other local
law which requires that payments for
healthcare services be made to the provider
of such services in order to comply with
any applicable "anti-assignment"
provisions, provider agreement or federal,
State, county, municipal or other
local law, rule or regulation.
"Holders of
Secured Obligations" means the holders of the Secured
Obligations from time to time and shall
refer to (i) each Lender in respect of
its Loans, (ii) the LC Issuer in respect of
Reimbursement Obligations, (iii) the
Administrative Agent, the Lenders and the
LC Issuer in respect of all other
present and future obligations and
liabilities of the Borrower or any of its
Domestic Subsidiaries of every type and
description arising under or in
connection with this Agreement or any other
Loan Document, (iii) each Lender (or
affiliate thereof), in respect of all Rate
Management Obligations of the
Borrower to such Lender (or such affiliate)
as exchange party or counterparty
under any Rate Management Transaction, and
(iv) their respective successors,
transferees and assigns.
"Indebtedness" of a Person means, at any time, without
duplication,
such Person's (excluding in all cases
accounts payable and accrued expenses
arising in the ordinary course of such
Person's business) (i) obligations for
borrowed money, (ii) obligations
representing the deferred purchase price of
Property or services, (iii) obligations,
whether or not assumed, secured by
Liens or payable out of the proceeds or
production from Property now or
hereafter owned or acquired by such Person,
(iv) obligations which are evidenced
by notes, bonds, debentures, acceptances,
or other instruments, (v) obligations
to purchase securities or other Property
arising out of or in connection with
the sale of the same or substantially
similar securities or Property, (vi)
Capitalized Lease Obligations, (vii)
Contingent Obligations of such Person,
(viii) reimbursement obligations under
Letters of Credit, bankers' acceptances,
surety bonds and similar instruments, (ix)
Off-Balance Sheet Liabilities, (x)
Net Mark-to-Market Exposure under Rate
Management Transactions and other
Financial Contracts, (xi) Rate Management
Obligations and (xii) any other
obligation for borrowed money which in
accordance with Agreement Accounting
Principles would be shown as a liability on
the consolidated balance sheet of
such Person.
"Intellectual Property Security Agreements" means the
intellectual
property security agreements as any Credit
Party may from time to time make in
favor of the Administrative Agent for the
benefit of the Holders of Secured
Obligations, in each case as the same may
be amended, restated, supplemented or
otherwise modified from time to time.
"Interest Period" means, with respect to a Eurodollar Advance, a
period
of one, two, three or six months,
commencing on a Business Day selected by the
Borrower pursuant to this Agreement. Such
Interest Period shall end on but
exclude the day which corresponds
numerically to such date one, two, three or
six months thereafter, provided, however,
that if there is no such numerically
corresponding day in such next, second,
third or sixth succeeding month,
13
<PAGE>
such Interest Period shall end on the last
Business Day of such next, second,
third or sixth succeeding month. If an
Interest Period would otherwise end on a
day which is not a Business Day, such
Interest Period shall end on the next
succeeding Business Day, provided, however,
that if said next succeeding
Business Day falls in a new calendar month,
such Interest Period shall end on
the immediately preceding Business Day.
"Investment" of a Person means any loan, advance (other than
commission, travel and similar advances to
officers, employees and independent
contractors made in the ordinary course of
business), extension of credit (other
than Receivables arising in the ordinary
course of business) or contribution of
capital by such Person; stocks, bonds,
mutual funds, partnership interests,
notes, debentures or other securities owned
by such Person; any deposit accounts
and certificate of deposit owned by such
Person; and structured notes,
derivative financial instruments and other
similar instruments or contracts
owned by such Person.
"LC Fee" is defined in Section 2.20.4.
"LC Issuer" means Bank One (or any subsidiary or affiliate of Bank
One
designated by Bank One) in its capacity as
issuer of Facility LCs hereunder;
provided that National City Bank of
Kentucky in its capacity solely as an issuer
of the Transitional Letters of Credit shall
also be deemed to be a LC Issuer.
"LC Obligations" means, at any time, the sum, without duplication,
of
(i) the aggregate undrawn stated amount
under all Facility LCs outstanding at
such time plus (ii) the aggregate unpaid
amount at such time of all
Reimbursement Obligations.
"LC Payment Date" is defined in Section 2.20.5.
"Lenders" means the lending institutions listed on the signature
pages
of this Agreement and their respective
successors and assigns. Unless otherwise
specified, the term "Lenders" includes the
Swing Line Lender and the LC Issuer.
"Lending Installation" means, with respect to a Lender or the
Administrative Agent, the office, branch,
subsidiary or affiliate of such Lender
or the Administrative Agent listed on the
signature pages hereof or on the
administrative information sheets provided
to the Administrative Agent in
connection herewith or on a Schedule or
otherwise selected by such Lender or the
Administrative Agent pursuant to Section
2.17.
"Letter of Credit" of a Person means a letter of credit or
similar
instrument which is issued upon the
application of such Person or upon which
such Person is an account party or for
which such Person is in any way liable.
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, collateral assignment,
deposit arrangement, encumbrance or
preference, priority or other security
agreement (including, without limitation,
the interest of a vendor or lessor under
any conditional sale, Capitalized Lease
or other title retention agreement).
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<PAGE>
"Loan" means, with respect to a Lender, such Lender's loan made
pursuant to Article II (or any conversion
or continuation thereof), whether
constituting a Term Loan, Revolving Loan or
a Swing Line Loan.
"Loan Documents" means this Agreement, the Facility LC
Applications,
the Collateral Documents, the Guaranty
Agreement and all other documents,
instruments, notes (including any Notes
issued pursuant to Section 2.13 (if
requested)) and agreements executed in
connection herewith or therewith or
contemplated hereby or thereby, as the same
may be amended, restated or
otherwise modified and in effect from time
to time.
"Material Adverse Effect" means a material adverse effect on (i)
the
business, Property, condition (financial or
otherwise), operations or
performance or prospects of the Borrower,
or the Borrower and its Subsidiaries
taken as a whole, (ii) the ability of the
Borrower or any Material Subsidiary to
perform its obligations under the Loan
Documents, or (iii) the validity or
enforceability of any of the Loan Documents
or the rights or remedies of the
Administrative Agent, the LC Issuer or the
Lenders thereunder.
"Material Indebtedness" means any Indebtedness in an
outstanding
principal amount of $5,000,000 or more in
the aggregate (or the equivalent
thereof in any currency other than
Dollars).
"Material Indebtedness Agreement" means any agreement under which
any
Material Indebtedness was created or is
governed or which provides for the
incurrence of Indebtedness in an amount
which would constitute Material
Indebtedness (whether or not an amount of
Indebtedness constituting Material
Indebtedness is outstanding
thereunder).
"Material Subsidiary" means a Subsidiary with revenues greater than
2%
of net consolidated revenues of the
Borrower.
"Medicaid" means the medical assistance program established by
Title
XIX of the Social Security Act (42. U.S.C.
Section 1396 ET SEQ.) and any
successor or similar statutes, as in effect
from time to time.
"Medicaid Law" means collectively, Medicaid and Medicaid
Regulations.
"Medicaid Regulations" means, collectively, (a) all federal
statutes
(whether set forth in Title XIX of the
Social Security Act or elsewhere)
affecting Medicaid, (b) all applicable
provisions of all federal rules,
regulations, manuals and orders of
governmental authorities promulgated pursuant
to or in connection with the statutes
described in clause (a) above having the
force of law 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 (a) above, including all
programs operated under waivers granted
from requirements of Title XIX of the
Social Security Act and its implementing
regulations, (c) all state statutes and
plans for medical assistance enacted in
connection with the statutes and
provisions described in clauses (a) and (b)
above, and (d) 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 (c) above having the force of law
and all state administrative,
reimbursement and other guidelines of all
governmental authorities having the
15
<PAGE>
force of law promulgated pursuant to or in
connection with the statutes
described in clause (c) above, in each case
as in effect from time to time.
"Medicare" means the health insurance program for the aged and
disabled
established by Title XVIII of the Social
Security Act (42 U.S.C. Section 1395 ET
SEQ.) and any successor or similar statutes
as in effect from time to time.
"Medicare Law" means collectively, Medicare and Medicare
Regulations
"Medicare Regulations" shall mean, collectively, all federal
statutes
(whether set forth in Title XVIII of the
Social Security Act or elsewhere)
affecting Medicare, together with all
applicable provisions of all rules,
regulations, manuals and orders and
administrative, reimbursement and other
guidelines having the force of law of all
governmental authorities (including,
without limitation, Health and Human
Services ("HHS"), Health Care Finance
Administration, the Office of the Inspector
General for HHS, or any Person
succeeding the functions of any of the
foregoing) promulgated pursuant to or in
connection with any of the foregoing having
the force of law, in each case as in
effect from time to time.
"Modify" and "Modification" are defined in Section 2.20.1.
"Moody's" means Moody's Investors Services, Inc. and any
successor
thereto.
"Mortgage" means each of those certain mortgages and deeds of
trust
dated as of the Closing Date and such other
mortgages and deeds of trust as are
entered into by the Credit Parties pursuant
hereto or in connection herewith, in
each case as amended, restated,
supplemented or otherwise modified from time to
time.
"Mortgage Instruments" means such title reports, title
insurance,
opinions of counsel, surveys, appraisals
and environmental reports as are
requested by, and in form and substance
reasonably acceptable to, the
Administrative Agent from time to time.
"Mortgaged Properties" means the real Property identified and
described
on Schedule 6.27.
"Multiemployer Plan" means a multiemployer plan, as defined in
Section
4001(a)(3) of ERISA, which is covered by
Title IV of ERISA and to which the
Borrower or any member of the Controlled
Group is obligated to make
contributions.
"Net Cash Proceeds" means, (1) with respect to any Asset Sale or
any
Financing by any Person, (a) cash (freely
convertible into Dollars) received by
such Person or any Subsidiary of such
Person from such Asset Sale (including
cash received as consideration for the
assumption or incurrence of liabilities
incurred in connection with or in
anticipation of such Asset Sale) or such
Financing, after (i) provision for all
income or other taxes measured by or
resulting from such sale of Property, (ii)
payment of all reasonable brokerage
commissions and other fees and expenses
related to such sale of Property or
Financing, and (iii) all amounts used to
repay Indebtedness secured by a Lien on
any asset disposed of in such Asset Sale
which is or may be required (by the
express terms of the instrument governing
such Indebtedness) to be repaid in
connection with such Asset Sale (including
payments made to obtain or avoid the
need for
16
<PAGE>
the consent of any holder of such
Indebtedness) or Financing and (2) with
respect to an Event of Loss of a Person,
cash (freely convertible in Dollars)
received by or for such Person's account,
net of (i) reasonable direct costs or
expenses incurred in connection with such
Event of Loss (including without
limitation reasonable costs and expenses
(including attorneys' and other
professionals' fees)) incurred in
investigating or recovering such cash and
reasonable reserves associated therewith in
accordance with Agreement Accounting
Principles and (ii) amounts required to
repay principal of, premium if any, and
interest on any Indebtedness or statutory
or other obligations secured by any
Lien on the property (or portion thereof)
so damaged or taken (other than the
Secured Obligations) which is required to
be and is repaid in connection with
such Event of Loss.
"Net
Mark-to-Market Exposure" of a Person means, as of any date of
determination, the excess (if any) of all
unrealized losses over all unrealized
profits of such Person arising from Rate
Management Transactions. "Unrealized
losses" means the fair market value of the
cost to such Person of replacing such
Rate Management Transaction as of the date
of determination (assuming the Rate
Management Transaction were to be
terminated as of that date), and "unrealized
profits" means the fair market value of the
gain to such Person of replacing
such Rate Management Transaction as of the
date of determination (assuming such
Rate Management Transaction were to be
terminated as of that date).
"Non-U.S. Lender" is defined in Section 3.5(iv).
"Note" is defined in Section 2.13.
"Obligations" means all Loans, all Reimbursement Obligations,
advances,
debts, liabilities, obligations, covenants
and duties owing by the Borrower to
the Administrative Agent, any Lender, the
Swing Line Lender, the LC Issuer, the
Arranger, any affiliate of the
Administrative Agent, any Lender, the Swing Line
Lender, the LC Issuer or the Arranger, or
any indemnitee under the provisions of
Section 9.6 or any other provisions of the
Loan Documents, in each case of any
kind or nature, present or future, arising
under this Agreement or any other
Loan Document, whether or not evidenced by
any note, guaranty or other
instrument, whether or not for the payment
of money, whether arising by reason
of an extension of credit, loan, foreign
exchange risk, guaranty,
indemnification, or in any other manner,
whether direct or indirect (including
those acquired by assignment), absolute or
contingent, due or to become due, now
existing or hereafter arising and however
acquired. The term includes, without
limitation, all interest, charges,
expenses, fees, attorneys' fees and
disbursements, paralegals' fees (in each
case whether or not allowed), and any
other sum chargeable to the Borrower or any
of its Subsidiaries under this
Agreement or any other Loan Document.
"Off-Balance Sheet Liability" of a Person means the principal
component
of (i) any repurchase obligation or
liability of such Person with respect to
Receivables or notes receivable sold by
such Person, (ii) any liability under
any so-called "synthetic lease" or "tax
ownership operating lease" transaction
entered into by such Person, or (iii) any
obligation arising with respect to any
other transaction which is the functional
equivalent of or takes the place of
borrowing but which does not constitute a
liability on the consolidated balance
sheets of such Person, but excluding from
this clause (iii) all Operating
Leases.
17
<PAGE>
"Official Body" shall mean any national, federal, state, local or
other
government or political subdivision or any
agency, authority, board, bureau,
central bank, commission, department or
instrumentality of either, or any court,
tribunal, grand jury or arbitrator, in each
case whether foreign or domestic.
"Operating Lease" of a Person means any lease of Property (other
than a
Capitalized Lease) by such Person as lessee
which has an original term
(including any required renewals and any
renewals effective at the option of the
lessor) of one year or more.
"Other Taxes" is defined in Section 3.5(ii).
"Outstanding Revolving Credit Exposure" means, as to any Lender at
any
time, the sum of (i) the aggregate
principal amount of its Revolving Loans
outstanding at such time, plus (ii) an
amount equal to its ratable obligation to
purchase participations in the aggregate
principal amount of Swing Line Loans
outstanding at such time, plus (iii) an
amount equal to its ratable obligation
to purchase participations in the LC
Obligations at such time.
"Participants" is defined in Section 12.2.1.
"Payment Date" means the last day of each March, June, September
and
December, the Revolving Loan Termination
Date and the Term Loan Maturity Date.
"PBGC" means the Pension Benefit Guaranty Corporation, or any
successor
thereto.
"Permitted Acquisition" is defined in Section 6.13.9.
"Person" means any natural person, corporation, firm, joint
venture,
partnership, limited liability company,
association, enterprise, trust or other
entity or organization, or any government
or political subdivision or any
agency, department or instrumentality
thereof.
"Plan" means an employee pension benefit plan, excluding any
Multiemployer Plan, which is covered by
Title IV of ERISA or subject to the
minimum funding standards under Section 412
of the Code as to which the Borrower
or any member of the Controlled Group may
have any liability.
"Pledge and Security Agreement" means that certain Pledge and
Security
Agreement, dated as of the Closing Date, by
and between the Credit Parties and
the Administrative Agent for the benefit of
the Holders of Secured Obligations,
as the same may be amended, restated,
supplemented, or otherwise modified from
time to time.
"Pledge Subsidiary" means each Domestic Subsidiary and First
Tier
Foreign Subsidiary.
"Pricing Schedule" means the Schedule identifying the Applicable
Margin
and Applicable Fee Rate attached hereto and
identified as such.
"Prime Rate" means a
rate per annum equal to the prime rate of interest
announced from time to time by Bank One or
its parent (which is not necessarily
the lowest rate charged to any customer),
changing when and as said prime rate
changes.
18
<PAGE>
"Property" of a Person means any and all property, whether
real,
personal, tangible, intangible, or mixed,
of such Person, or other assets owned,
leased or operated by such Person.
"Pro Rata Share" means, with respect to any Lender, the
percentage
obtained by dividing (i) the sum of such
Lender's Revolving Loan Commitment and
Term Loans at such time by (ii) the sum of
the Aggregate Revolving Loan
Commitment and the aggregate amount of all
of the Term Loans at such time;
provided, however, if all of the Revolving
Loan Commitments and Term Loan
Commitments are terminated pursuant to the
terms of this Agreement, then "Pro
Rata Share" means the percentage obtained
by dividing (a) the sum of such
Lender's Outstanding Revolving Credit
Exposure and outstanding Term Loans at
such time by (b) the sum of the Aggregate
Outstanding Revolving Credit Exposure
and the aggregate outstanding amount of all
Term Loans at such time.
"Purchase Price" means the total consideration payable in
connection
with any Acquisition, including, without
limitation, any portion of the
consideration payable in cash, all
Indebtedness, liabilities and contingent
obligations incurred or assumed in
connection with such Acquisition and all
consulting fees or fees for a covenant not
to compete, including without
limitation the value of any capital stock
or other equity interests of the
Borrower or any Subsidiary issued as
consideration for such Acquisition.
"Purchasers" is defined in Section 12.3.1.
"Rate Management Obligations" of a Person means any and all
obligations
of such Person, whether absolute or
contingent and howsoever and whensoever
created, arising, evidenced or acquired
(including all renewals, extensions and
modifications thereof and substitutions
therefor), under (i) any and all Rate
Management Transactions, and (ii) any and
all cancellations, buy backs,
reversals, terminations or assignments of
any Rate Management Transactions.
"Rate Management Transaction" means any transaction (including
an
agreement with respect thereto) now
existing or hereafter entered by the
Borrower or a Subsidiary which is a rate
swap, basis swap, forward rate
transaction, commodity swap, commodity
option, equity or equity index swap,
equity or equity index option, bond option,
interest rate option, foreign
exchange transaction, cap transaction,
floor transaction, collar transaction,
forward transaction, currency swap
transaction, cross-currency rate swap
transaction, currency option or any other
similar transaction (including any
option with respect to any of these
transactions) or any combination thereof,
whether linked to one or more interest
rates, foreign currencies, commodity
prices, equity prices or other financial
measures.
"Receivable(s)" means and includes all of the Borrower's and
each
Subsidiary's presently existing and
hereafter arising or acquired accounts,
accounts receivable, and all present and
future rights of the Borrower or such
Subsidiary to payment for goods sold or
leased or for services rendered (except
those evidenced by instruments or chattel
paper), whether or not they have been
earned by performance, and all rights in
any merchandise or goods which any of
the same may represent, and all rights,
title, security and guarantees with
respect to each of the foregoing,
including, without limitation, any right of
stoppage in transit.
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<PAGE>
"Refinanced Indebtedness" means the Indebtedness under the
Borrower's
6% Convertible Subordinated Notes and the
Indebtedness under the Convertible
Subordinated Notes.
"Refinancing" means the transactions pursuant to which the
Refinanced
Indebtedness is repaid in full and the
notes evidencing such Indebtedness are
fully redeemed.
"Regulation D" means Regulation D of the Board of Governors of
the
Federal Reserve System as from time to time
in effect and any successor thereto
or other regulation or official
interpretation of said Board of Governors
relating to reserve requirements applicable
to member banks of the Federal
Reserve System.
"Regulation U" means Regulation U of the Board of Governors of
the
Federal Reserve System as from time to time
in effect and any successor or other
regulation or official interpretation of
said Board of Governors relating to the
extension of credit by banks, non-banks and
non-broker lenders for the purpose
of purchasing or carrying margin stocks
applicable to member banks of the
Federal Reserve System.
"Regulation X" means Regulation X of the Board of Governors of
the
Federal Reserve System as from time to time
in effect and any successor or other
regulation or official interpretation of
said Board of Governors relating to the
extension of credit by foreign lenders for
the purpose of purchasing or carrying
margin stock (as defined therein).
"Reimbursement Obligations" means, at any time, the aggregate of
all
obligations of the Borrower then
outstanding under Section 2.20 to reimburse the
LC Issuer for amounts paid by the LC Issuer
in respect of any one or more
drawings under Facility LCs.
"Rentals" of a Person means the aggregate fixed amounts payable
(excluding taxes, insurance premiums and
expenses for repairs or maintenance) by
such Person under any Operating Lease.
"Rentals Maximum Amount" means (i) $47,500,000 during the
Borrower's
2004 fiscal year, (ii) $50,000,000 during
the Borrower's 2005 fiscal year, (iii)
$52,500,000 during the Borrower's 2006
fiscal year and (iv) $55,000,000 during
each fiscal year thereafter.
"Reportable Event" means a reportable event as defined in Section
4043
of ERISA and the regulations issued under
such section, with respect to a Plan
subject to Title IV of ERISA, excluding,
however, such events as to which the
PBGC has by regulation waived the
requirement of Section 4043(a) of ERISA that
it be notified within 30 days of the
occurrence of such event, provided,
however, that a failure to meet the minimum
funding standard of Section 412 of
the Code and of Section 302 of ERISA shall
be a Reportable Event regardless of
the issuance of any such waiver of the
notice requirement in accordance with
either Section 4043(a) of ERISA or Section
412(d) of the Code.
"Reports" is defined in Section 9.6.
"Required Lenders" means any of three (3) or more Lenders in
the
aggregate having more than 50% of the sum
of the Aggregate Revolving Loan
Commitment and the Aggregate Term Loan
Commitment (or, if all of the Revolving
Loan Commitments and Term Loan
20
<PAGE>
Commitments are terminated pursuant to the
terms of this Agreement, the
Aggregate Outstanding Revolving Credit
Exposure and aggregate outstanding
principal amount of Term Loans at such
time).
"Reserve Requirement" means, with respect to an Interest Period,
the
maximum aggregate reserve requirement
(including all basic, supplemental,
marginal and other reserves) which is
imposed under Regulation D on
"Eurocurrency liabilities" (as defined in
Regulation D).
"Restricted Payment" means (i) any dividend or other
distribution,
direct or indirect, on account of any
equity interests of the Borrower now or
hereafter outstanding, except a dividend
payable solely in the Borrower's
capital stock (other than Disqualified
Stock) or in options, warrants or other
rights to purchase such capital stock, (ii)
any redemption, retirement, purchase
or other acquisition for value, direct or
indirect, of any equity interests of
the Borrower or any of its Subsidiaries now
or hereafter outstanding, other than
in exchange for, or out of the proceeds of,
the substantially concurrent sale
(other than to a Subsidiary of the
Borrower) of other equity interests of the
Borrower (other than Disqualified Stock),
and (iii) any redemption, purchase,
retirement, defeasance, prepayment or other
acquisition for value, direct or
indirect, of any of the Convertible
Subordinated Notes (other than at a
discount) or the Senior Unsecured Notes
prior to the stated maturity thereof.
"Revolving Loan" means, with respect to a Lender, such Lender's
loan
made pursuant to its commitment to lend set
forth in Section 2.1.1 (and any
conversion or continuation thereof).
"Revolving Loan Commitment" means, for each Lender, including
without
limitation, each LC Issuer, such Lender's
obligation to make Revolving Loans to,
and participate in Facility LCs issued upon
the application of, the Borrower in
an aggregate amount not exceeding the
amount set forth for such Lender on the
Commitment Schedule or in any Assignment
Agreement delivered pursuant to Section
12.3, as such amount may be modified from
time to time pursuant to the terms
hereof.
"Revolving Loan Pro Rata Share" means, with respect to any Lender,
the
percentage obtained by dividing (i) such
Lender's Revolving Loan Commitment at
such time by (ii) the Aggregate Revolving
Loan Commitment at such time;
provided, however, if all of the Revolving
Loan Commitments are terminated
pursuant to the terms of this Agreement,
then "Revolving Loan Pro Rata Share"
means the percentage obtained by dividing
(a) such Lender's Outstanding
Revolving Credit Exposure at such time by
(b) the Aggregate Outstanding
Revolving Credit Exposure at such time.
"Revolving Loan Termination Date" means the earlier of (a) January
15,
2008, and (b) the date of termination in
whole of the Aggregate Revolving Loan
Commitment pursuant to Section 2.2 hereof
or the Revolving Loan Commitments
pursuant to Section 8.1 hereof.
"S&P" means Standard and Poor's Ratings Services, a division of
The
McGraw-Hill Companies, Inc., and any
successor thereto.
"Sale and Leaseback Transaction" means any sale or other transfer
of
Property by any Person with the intent to
lease such Property as lessee,
consummated after the Closing Date.
21
<PAGE>
"Schedule" refers to a specific schedule to this Agreement,
unless
another document is specifically
referenced.
"Section" means a numbered section of this Agreement, unless
another
document is specifically referenced.
"Secured Obligations" means, collectively, (i) the Obligations and
(ii)
all Rate Management Obligations owing in
connection with Rate Management
Transactions to any Lender or any affiliate
of any Lender.
"Senior Unsecured Notes" means those certain 10 5/8% Senior
Unsecured
Notes issued by the Borrower pursuant to
and in connection with the Senior
Unsecured Note Documents.
"Senior Unsecured Note Documents" means the Indenture dated
November
15, 2001, as amended through the date
hereof, among the Borrower, the guarantors
named therein, and Wells Fargo Bank
Minnesota, National Association, successor
to National City Bank, and the Senior
Unsecured Notes.
"Single Employer Plan" means a Plan maintained by the Borrower or
any
member of the Controlled Group for
employees of the Borrower or any member of
the Controlled Group.
"Subordinated Notes" means the Senior Unsecured Notes and the
Convertible Subordinated Notes.
"Subordinated Note Documents" means the Senior Unsecured Note
Documents
and the Convertible Subordinated Note
Documents.
"Subsidiary" of a Person means (i) any corporation more than 50% of
the
outstanding securities having ordinary
voting power of which shall at the time
be owned or controlled, directly or
indirectly, by such Person or by one or more
of its Subsidiaries or by such Person and
one or more of its Subsidiaries, or
(ii) any partnership, limited liability
company, association, joint venture or
similar business organization more than 50%
of the ownership interests having
ordinary voting power of which shall at the
time be so owned or controlled.
Unless otherwise expressly provided, all
references herein to a "Subsidiary"
shall mean a Subsidiary of the
Borrower.
"Substantial Portion" means, with respect to the Property of
the
Borrower and its Subsidiaries, Property
which represents more than 5% of the
consolidated tangible assets of the
Borrower and its Subsidiaries or Property
which is responsible for more than 5% of
the consolidated net revenues of the
Borrower and its Subsidiaries, in each
case, as would be shown in the
consolidated financial statements of the
Borrower and its Subsidiaries as at the
beginning of the twelve-month period ending
with the month in which such
determination is made (or if financial
statements have not been delivered
hereunder for that month which begins the
twelve-month period, then the
financial statements delivered hereunder
for the quarter ending immediately
prior to that month).
"Swing Line Borrowing Notice" is defined in Section 2.4.2.
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<PAGE>
"Swing Line Commitment" means the obligation of the Swing Line
Lender
to make Swing Line Loans up to a maximum
principal amount of $5,000,000 at any
one time outstanding.
"Swing Line Lender" means Bank One.
"Swing Line Loan" means a Loan made available to the Borrower by
the
Swing Line Lender pursuant to Section
2.4.
"Syndication Agents" means each of Merrill Lynch Capital and
National
City Bank of Kentucky in its capacity as
syndication agent for the credit
transaction evidenced by this
Agreement.
"Taxes" means any and all present or future taxes, duties,
levies,
imposts, deductions, charges or
withholdings, and any and all liabilities with
respect to the foregoing, but excluding
Excluded Taxes and Other Taxes.
"Term Loan" and "Term Loans" are defined in Section 2.1.2.
"Term Loan Commitment" means, as to each Lender, its obligation to
make
Term Loans to the Borrower pursuant to
Section 2.1.2 in an aggregate principal
amount set forth for such Lender on the
Commitment Schedule.
"Transferee" is defined in Section 12.4.
"Transitional Letters of Credit" is defined in Section 2.20.1.
"Transitional Letters of Credit Documents" means the letter of
credit
applications and reimbursement agreements,
in each case as amended from time to
time, entered into by the Borrower or any
Subsidiary in connection with the
Transitional Letters of Credit.
"Term Loan Maturity Date" means the earlier of (i) January 15, 2008
and
(ii) the Revolving Loan Termination
Date.
"Term Loan Pro Rata Share" means, with respect to any Lender,
the
percentage obtained by dividing (a) such
Lender's Term Loans at such time by (b)
the aggregate amount of all of the Term
Loans at such time.
"Type" means, with respect to any Advance, its nature as a
Floating
Rate Advance or a Eurodollar Advance and
with respect to any Loan, its nature as
a Floating Rate Loan or a Eurodollar
Loan.
"UCC" means the Uniform Commercial Code as in effect from time to
time
in the Commonwealth of Kentucky.
"Unfunded Liabilities" means the amount (if any) by which the
present
value of all vested and unvested accrued
benefits under each Single Employer
Plan subject to Title IV of ERISA exceeds
the fair market value of all such
Plan's assets allocable to such benefits,
all
23
<PAGE>
determined as of the then most recent
valuation date for such Plan for which a
valuation report is available, using
actuarial assumptions for funding purposes
as set forth in such report.
"Unmatured Default" means an event which but for the lapse of time
or
the giving of notice, or both, would
constitute a Default, which has not been
waived in writing by, or on behalf of, the
Required Lenders.
"Wholly-Owned Subsidiary" of a Person means (i) any Subsidiary all
of
the outstanding voting securities of which
shall at the time be owned or
controlled, directly or indirectly, by such
Person or one or more Wholly-Owned
Subsidiaries of such Person, or by such
Person and one or more Wholly-Owned
Subsidiaries of such Person, or (ii) any
partnership, limited liability company,
association, joint venture or similar
business organization 100% of the
ownership interests having ordinary voting
power of which shall at the time be
so owned or controlled.
1.2.
Plural Forms. The foregoing definitions shall be equally
applicable to both the singular and plural
forms of the defined terms.
ARTICLE II
THE CREDITS
2.1.
Revolving Loan Commitments and Term Loan Commitments.
2.1.1 Revolving Loans. From and including the Closing Date and
prior to the Revolving Loan Termination Date, upon the satisfaction
of
the conditions precedent set forth in Section 4.1 and 4.2, as
applicable, each Lender severally and not jointly agrees, on the
terms
and conditions set forth in this Agreement, to (i) make Revolving
Loans
to the Borrower from time to time and (ii) participate in Facility
LCs
issued upon the request of the Borrower, in each case in an amount
not
to exceed in the aggregate at any one time outstanding of its
Revolving
Loan Pro Rata Share of the Available Aggregate Revolving Loan
Commitment; provided that at no time shall the Aggregate
Outstanding
Revolving Credit Exposure hereunder exceed the Adjusted
Available
Aggregate Revolving Loan Commitment. Subject to the terms of
this
Agreement, the Borrower may borrow, repay and reborrow Revolving
Loans
at any time prior to the Revolving Loan Termination Date. The
commitment of each Lender to lend hereunder shall automatically
expire
on the Revolving Loan Termination Date. The LC Issuer will
issue
Facility LCs hereunder on the terms and conditions set forth in
Section
2.20.
2.1.2 Term Loans. Each Lender severally and not jointly agrees
to make term loans, in Dollars and in no more than three (3)
Advances,
to the Borrower on the Closing Date and, subject to the terms
and
conditions hereof, thereafter in an aggregate amount equal to
such
Lender's Term Loan Commitment (each such loan being referred to
herein
individually as a "Term Loan" and collectively as the "Term
Loans");
provided that (i) the initial Term Loans made hereunder shall
not
exceed an aggregate principal amount of $22,000,000 and may only
be
used to redeem in full the Borrower's 6% Convertible
Subordinated
Notes, to repay in full the Indebtedness thereunder and to pay
costs
and expenses incurred by the Borrower in connection therewith, (ii)
not
more than an
24
<PAGE>
additional $6,500,000 in aggregate principal amount of Term
Loans may be made to the Borrower during the period commencing
on the Closing Date and ending on March 15, 2005 so long as
the proceeds of such Term Loans are used solely to redeem (but
not in any event pursuant to a notice to redeem all of the
Convertible Subordinated Notes prior to March 15, 2005)
certain of the Convertible Subordinated Notes, to repay a
portion of the Indebtedness thereunder and to pay costs and
expenses incurred by the Borrower in connection therewith and
(iii) not more than an additional $6,500,000 in aggregate
principal amount of Term Loans may be made to the Borrower
during the period commencing on January 1, 2005 and ending on
March 15, 2005 so long as the proceeds of such Term Loans are
used solely to redeem (but not in any event pursuant to a
notice to redeem all of the Convertible Subordinated Notes
prior to March 15, 2005) certain of the Convertible
Subordinated Notes, to repay a portion of the Indebtedness
thereunder and to pay costs and expenses incurred by the
Borrower in connection therewith. The unpaid principal balance
of the Term Loans shall be repaid in sixteen (16) consecutive
quarterly principal installments, payable on or before the
last Business Day of each fiscal quarter of the Borrower,
commencing on March 31, 2004, and continuing thereafter until
the Term Loan Maturity Date, and the Term Loans shall be
permanently reduced by the amount of each installment on the
date payment thereof is made hereunder. Each such installment
shall be in an amount equal to $875,000; provided that,
notwithstanding the foregoing, the final installment on the
Term Loan Maturity Date shall be in the amount of the then
outstanding principal balance of the Term Loans. In addition,
notwithstanding the immediately preceding sentence, the then
outstanding principal balance of the Term Loans, if any, shall
be due and
payable on the Term Loan Maturity Date. No
installment of any Term Loan shall be reborrowed once repaid
and the principal amount of each Term Loan shall permanently
reduce by such amount the Term Loan Commitment of each Lender
and the Aggregate Term Loan Commitment. In addition to the
scheduled payments on the Term Loans, the Borrower (a) may
make the voluntary prepayments described in Section 2.7 for
credit against the scheduled payments on the Term Loans
pursuant to Section 2.7 and (b) shall make the mandatory
prepayments prescribed in Section 2.2 for credit against the
scheduled payments on the Term Loans pursuant to Section 2.2.
Each Lender's Term Loan Commitment and the Aggregate Term Loan
Commitment shall be zero after March 15, 2005.
2.2. Required Payments; Termination. (a) Any outstanding
Revolving Loans shall be paid in full by the Borrower on the
Revolving
Loan Termination Date, any outstanding Term Loans shall be paid in
full
by the Borrower on the Term Loan Maturity Date, and all other
unpaid
Secured Obligations shall be paid in full by the Borrower on the
later
of the Revolving Loan Termination Date and the Term Loan Maturity
Date.
In addition, if at any time the Aggregate Outstanding Revolving
Credit
Exposure hereunder exceeds the Adjusted Available Aggregate
Revolving
Loan Commitment, the Borrower shall immediately (i) repay
outstanding
Revolving Loans and (ii) upon repayment in full of the Revolving
Loans,
cash collateralize the outstanding LC Obligations by depositing
funds
in the Facility LC Collateral Account, in an aggregate amount equal
to
such excess. Notwithstanding the termination of the Revolving
Loan
Commitments under this Agreement on the Revolving Loan
Termination
Date, until all of the Obligations (other than contingent
indemnity
obligations) shall have been fully paid and satisfied and all
financing
arrangements among the Borrower and the Lenders hereunder and under
the
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other Loan Documents shall have been terminated, all of the rights
and
remedies under this Agreement and the other Loan Documents
shall
survive.
(b) Asset
Sales and Casualty Events. Upon (1) the
consummation of any Asset Sale (other than
sales permitted under Sections
6.12.1, 6.12.2, 6.12.3, or, solely with
respect to real Property which is not a
Mortgaged Property, 6.12.4) by the Borrower
or any Subsidiary or (2) the
Borrower or any Subsidiary suffering an
Event of Loss, in each case within ten
(10) Business Days after the Borrower's or
any of its Subsidiaries' receipt of
any Net Cash Proceeds (or conversion to
cash of non-cash proceeds (whether
principal or interest and including
securities, release of escrow arrangements))
received from any such Asset Sale or Event
of Loss, the Borrower shall make a
mandatory prepayment of the Term Loans,
subject to the provisions governing the
application of payments set forth in
Section 2.2(d), in an amount equal to one
hundred percent (100%) of such Net Cash
Proceeds. Notwithstanding the foregoing,
Net Cash Proceeds of Asset Sales or Events
of Loss, (i) with respect to which
the Borrower shall have given the
Administrative Agent written notice of its
intention to repair or replace the Property
subject to any such Asset Sale or
Event of Loss or invest such Net Cash
Proceeds in the purchase of assets (other
than securities, unless those securities
represent equity interests in an entity
that becomes a Guarantor) to be used by one
or more of the Borrower or the
Guarantors in their businesses within one
year following such Event of Loss, or
(ii) if not so utilized to repair or
replace or to invest if such Net Cash
Proceeds do not exceed $2,000,000 in the
aggregate, shall not be subject to the
provisions of the first sentence of this
Section 2.2(b) unless and to the extent
that such applicable period shall have
expired without such repair or
replacement having been made.
(c)
Financings. Upon the consummation of any Financing by
the Borrower or any Subsidiary of the
Borrower, within three (3) Business Days
after the Borrower's or any of its
Subsidiaries' receipt of any Net Cash
Proceeds, the Borrower shall make a
mandatory prepayment of the Term Loans,
subject to the provisions governing the
application of payments set forth in
Section 2.2(d), in an amount equal to one
hundred percent (100%) of such Net
Cash Proceeds.
(d)
Application of Designated Prepayments. Each mandatory
prepayment required by clauses (b) and (c)
of this Section 2.2 shall be referred
to herein as a "Designated Prepayment."
Designated Prepayments shall be applied
to repay the Term Loans in the inverse
order of maturity. Designated Prepayments
of Term Loans shall first be applied to
Floating Rate Loans and to any
Eurodollar Rate Loans maturing on such date
and then to subsequently maturing
Eurodollar Rate Loans in order of maturity.
Notwithstanding the foregoing, so
long as no Default has occurred and is then
continuing and at the Company's
option, the Administrative Agent shall hold
all Designated Prepayments to be
applied to Eurodollar Rate Loans in escrow
for the benefit of the Lenders and
shall release such amounts upon the
expiration of the Interest Periods
applicable to any such Eurodollar Rate
Loans being prepaid (it being understood
and agreed that interest shall continue to
accrue on the Obligations until such
time as such prepayments are released from
escrow and applied to reduce the
Obligations).
2.3.
Ratable Loans; Types of Advances. (a) Each Advance hereunder
(other than a Swing Line Loan) shall
consist of Loans made from the several
Lenders ratably in proportion to
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the ratio that their respective Revolving
Loan Pro Rata Share or Term Loan Pro
Rata Share, as applicable.
(b) The
Advances may be Floating Rate Advances or
Eurodollar Advances, or a combination
thereof, selected by the Borrower in
accordance with Sections 2.8 and 2.9, or
Swing Line Loans selected by the
Borrower in accordance with Section
2.4.
2.4.
Swing Line Loans.
2.4.1
Amount of Swing Line Loans. Upon the satisfaction of
the conditions precedent set forth in Section 4.2 and, if such
Swing
Line Loan is to be made on the date of the initial Credit
Extension
hereunder, the satisfaction of the conditions precedent set forth
in
Section 4.1 as well, from and including the date of this Agreement
and
prior to the Revolving Loan Termination Date, the Swing Line
Lender
agrees, on the terms and conditions set forth in this Agreement,
to
make Swing Line Loans to the Borrower from time to time in an
aggregate
principal amount not to exceed the Swing Line Commitment, provided
that
the Aggregate Outstanding Revolving Credit Exposure shall not at
any
time exceed the Adjusted Available Aggregate Revolving Loan
Commitment,
and provided further that at no time shall the sum of (i) the
Swing
Line Lender's Pro Rata Share of the Swing Line Loans then
outstanding,
plus (ii) the outstanding Revolving Loans made by the Swing Line
Lender
pursuant to Section 2.1 (including its participation in any
Facility
LCs), exceed the Swing Line Lender's Revolving Loan Commitment at
such
time. Subject to the terms of this Agreement, the Borrower may
borrow,
repay and reborrow Swing Line Loans at any time prior to the
Revolving
Loan Termination Date.
2.4.2
Borrowing Notice. The Borrower shall deliver to the
Administrative Agent and the Swing Line Lender irrevocable notice
(a
"Swing Line Borrowing Notice") not later than 12:00 noon
(Louisville,
Kentucky time) on the Borrowing Date of each Swing Line Loan,
specifying (i) the applicable Borrowing Date (which date shall be
a
Business Day), and
(ii) the aggregate amount of the requested Swing
Line Loan which shall be an amount not less than $100,000. The
Swing
Line Loans shall bear interest at the Floating Rate or at such
other
rate as is agreed upon by the Borrower and the Swing Line
Lender.
2.4.3
Making of Swing Line Loans. Promptly after receipt of
a Swing Line Borrowing Notice, the Administrative Agent shall
notify
each Lender by fax or other similar form of transmission, of
the
requested Swing Line Loan. Not later than 2:00 p.m.
(Louisville,
Kentucky time) on the applicable Borrowing Date, the Swing Line
Lender
shall make available the Swing Line Loan, in funds immediately
available in Chicago,
to the Administrative Agent at its address
specified pursuant to Article XIII. The Administrative Agent
will
promptly make the funds so received from the Swing Line Lender
available to the Borrower on the Borrowing Date at the
Administrative
Agent's aforesaid address.
2.4.4
Repayment of Swing Line Loans. Each Swing Line Loan
shall be paid in full by the Borrower on or before the fifth
(5th)
Business Day after the Borrowing Date for such Swing Line Loan.
In
addition, the Swing Line Lender (i) may at any time in its sole
discretion with respect to any outstanding Swing Line Loan, or
(ii)
shall, on the fifth
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(5th) Business Day after the Borrowing Date of any Swing Line
Loan,
require each Lender (including the Swing Line Lender) to make a
Revolving Loan in the amount of such Lender's Pro Rata Share of
such
Swing Line
Loan (including, without limitation, any interest accrued
and unpaid thereon), for the purpose of repaying such Swing Line
Loan.
Not later than 1:00 p.m. (Louisville, Kentucky time) on the date of
any
notice received pursuant to this Section 2.4.4, each Lender shall
make
available its required Revolving Loan, in funds immediately
available
in Chicago to the Administrative Agent at its address specified
pursuant to Article XIII. Revolving Loans made pursuant to this
Section
2.4.4 shall initially be Floating Rate Loans and thereafter may
be
continued as Floating Rate Loans or converted into Eurodollar Loans
in
the manner provided in Section 2.9 and subject to the other
conditions
and limitations set forth in Article II. Unless a Lender shall
have
notified the Swing Line Lender, prior to its making any Swing
Line
Loan, that any applicable condition precedent set forth in Sections
4.1
or 4.2 had not been
satisfied, such Lender's obligation to make
Revolving Loans pursuant to this Section 2.4.4 to repay Swing
Line
Loans shall be unconditional, continuing, irrevocable and absolute
and
shall not be affected by any circumstances, including, without
limitation, (a) any set-off, counterclaim, recoupment, defense or
other
right which such Lender may have against the Swing Line Lender or
any
other Person, (b) the occurrence or continuance of a Default or
Unmatured Default, (c) any adverse change in the condition
(financial
or otherwise) of the Borrower, or (d) any other circumstances,
happening or event whatsoever. In the event that any Lender fails
to
make payment to the Administrative Agent of any amount due under
this
Section 2.4.4, the Administrative Agent shall be entitled to
receive,
retain and apply against such obligation the principal and
interest
otherwise payable to such Lender hereunder until the
Administrative
Agent receives such payment from such Lender or such obligation
is
otherwise fully satisfied. In addition to the foregoing, if for
any
reason any Lender fails to make payment to the Administrative Agent
of
any amount due under this Section 2.4.4, such Lender shall be
deemed,
at the option of the Administrative Agent, to have unconditionally
and
irrevocably purchased from the Swing Line Lender, without recourse
or
warranty, an undivided interest and participation in the
applicable
Swing Line Loan in the amount of such Revolving Loan, and such
interest
and participation may be recovered from such Lender together
with
interest thereon at the Federal Funds Effective Rate for each
day
during the period commencing on the date of demand and ending on
the
date such amount is received. On the Revolving Loan Termination
Date,
the Borrower shall repay in full the outstanding principal balance
of
the Swing Line Loans.
2.5.
Commitment Fee; Aggregate Revolving Loan Commitment.
2.5.1
Commitment Fee. The Borrower shall pay to the
Administrative Agent, for the account of the Lenders in accordance
with
their Pro Rata Shares, from and after the Closing Date until the
date
on which the Aggregate Revolving Loan Commitment shall be
terminated in
whole, a commitment fee (the "Commitment Fee") accruing at the rate
of
the then Applicable Fee Rate on the sum of (i) the Available
Aggregate
Revolving Loan Commitment in effect from time to time (excluding
from
the calculation thereof, the Swing Line Loans) and (ii) the
Available
Aggregate Term Loan Commitment. All such Commitment Fees
payable
hereunder shall be payable quarterly in arrears on each Payment
Date.
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2.5.2
Reductions in Aggregate Revolving Loan Commitment.
The Borrower may permanently reduce the Aggregate Revolving
Loan
Commitment in whole, or in part, ratably among the Lenders in
the
minimum amount of $5,000,000 (and in multiples of $1,000,000 in
excess
thereof), upon at least three (3) Business Days' written notice to
the
Administrative Agent, which notice shall specify the amount of any
such
reduction, provided, however, that the amount of the Aggregate
Revolving Loan Commitment may not be reduced below the
Aggregate
Outstanding Revolving Credit Exposure. All accrued Commitment
Fees
shall be payable on the effective date of any termination of
the
obligations of the Lenders to make Credit Extensions hereunder and
on
the final date upon which all Loans are repaid.
2.6.
Minimum Amount of Each Advance. Each Eurodollar Advance shall
be in the minimum amount of $2,000,000 (and
in multiples of $500,000 if in
excess thereof), and each Floating Rate
Advance (other than an Advance to repay
Swing Line Loans) shall be in the minimum
amount of $1,000,000 (and in multiples
of $250,000 if in excess thereof),
provided, however, that any Floating Rate
Advance may be in the amount of the
Adjusted Available Aggregate Revolving Loan
Commitment.
2.7.
Optional Principal Payments. The Borrower may from time to
time pay, without penalty or premium, all
outstanding Floating Rate Advances
(other than Swing Line Loans), or any
portion of the outstanding Floating Rate
Advances (other than Swing Line Loans), in
a minimum aggregate amount of
$500,000 or any integral multiple of
$100,000 in excess thereof, with notice to
the Administrative Agent by 11:00 a.m.
(Louisville, Kentucky time) on the date
of repayment. The Borrower may at any time
pay, without penalty or premium, all
outstanding Swing Line Loans, or, in a
minimum amount of $100,000 and increments
of $50,000 in excess thereof, any portion
of the outstanding Swing Line Loans,
with notice to the Administrative Agent and
the Swing Line Lender by 11:00 a.m.
(Louisville, Kentucky time) on the date of
repayment. The Borrower may from time
to time pay, subject to the payment of any
funding indemnification amounts
required by Section 3.4 but without penalty
or premium, all outstanding
Eurodollar Advances, or, in a minimum
aggregate amount of $1,000,000 or any
integral multiple of $500,000 in excess
thereof, any portion of the outstanding
Eurodollar Advances upon three (3) Business
Days' prior notice to the
Administrative Agent.
2.8.
Method of Selecting Types and Interest Periods for New
Advances. The Borrower shall select the
Type of Advance and, in the case of each
Eurodollar Advance, the Interest Period
applicable thereto from time to time;
provided that there shall be no more than 8
Interest Periods in effect with
respect to all of the Loans at any time,
unless such limit has been waived by
the Administrative Agent in its sole
discretion. The Borrower shall give the
Administrative Agent irrevocable notice (a
"Borrowing Notice") not later than
10:00 a.m. (Louisville, Kentucky time) at
least one Business Day before the
Borrowing Date of each Floating Rate
Advance (other than a Swing Line Loan) and
three Business Days before the Borrowing
Date for each Eurodollar Advance,
specifying:
(i) the
Borrowing Date, which shall be a Business Day, of such
Advance,
(ii)
the aggregate amount of such Advance,
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<PAGE>
(iii) the
Type of Advance selected, and
(iv)
in the case of each Eurodollar Advance, the Interest Period
applicable thereto.
Not later than 1:00 p.m. (Louisville,
Kentucky time) on each Borrowing Date,
each Lender shall make available its Loan
or Loans in Federal or other funds
immediately available in Chicago to the
Administrative Agent at its address
specified pursuant to Article XIII. The
Administrative Agent will promptly make
the funds so received from the Lenders
available to the Borrower at the
Administrative Agent's aforesaid
address.
2.9.
Conversion and Continuation of Outstanding Advances; No
Conversion or Continuation of Eurodollar
Advances After Default. Floating Rate
Advances (other than Swing Line Advances)
shall continue as Floating Rate
Advances unless and until such Floating
Rate Advances are converted into
Eurodollar Advances pursuant to this
Section 2.9 or are repaid in accordance
with Section 2.7. Each Eurodollar Advance
shall continue as a Eurodollar Advance
until the end of the then applicable
Interest Period therefor, at which time
such Eurodollar Advance shall be
automatically converted into a Floating Rate
Advance unless (x) such Eurodollar Advance
is or was repaid in accordance with
Section 2.7 or (y) the Borrower shall have
given the Administrative Agent a
Conversion/Continuation Notice (as defined
below) requesting that, at the end of
such Interest Period, such Eurodollar
Advance continue as a Eurodollar Advance
for the same or another Interest Period.
Subject to the terms of Section 2.6,
the Borrower may elect from time to time to
convert all or any part of an
Advance of any Type (other than a Swing
Line Advance) into any other Type or
Types of Advances; provided that any
conversion of any Eurodollar Advance shall
be made on, and only on, the last day of
the Interest Period applicable thereto.
Notwithstanding anything to the contrary
contained in this Section 2.9, during
the continuance of a Default or an
Unmatured Default, the Administrative Agent
may (or shall at the direction of the
Required Lenders), by notice to the
Borrower, declare that no Advance may be
made, converted or continued as a
Eurodollar Advance. The Borrower shall give
the Administrative Agent irrevocable
notice (a "Conversion/Continuation Notice")
of each conversion of an Advance or
continuation of a Eurodollar Advance not
later than 10:00 a.m. (Louisville,
Kentucky time) at least one (1) Business
Day, in the case of a conversion into a
Floating Rate Advance, or three (3)
Business Days, in the case of a conversion
into or continuation of a Eurodollar
Advance, prior to the date of the requested
conversion or continuation, specifying:
(i) the
requested date, which shall be a Business Day, of such
conversion or continuation,
(ii)
the aggregate amount and Type of the Advance which is to be
converted or continued, and
(iii) the
amount of such Advance which is to be converted into or
continued as a Eurodollar Advance and the duration of the
Interest Period applicable thereto.
2.10.
Changes in Interest Rate, etc. Each Floating Rate Advance
(other than a Swing Line Advance) shall
bear interest on the outstanding
principal amount thereof, for each day from
and including the date such Advance
is made or is automatically converted from
a Eurodollar
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Advance into a Floating Rate Advance
pursuant to Section 2.9, to but excluding
the date it is paid or is converted into a
Eurodollar Advance pursuant to
Section 2.9 hereof, at a rate per annum
equal to the Floating Rate for such day.
Each Swing Line Loan shall bear interest on
the outstanding principal amount
thereof, for each day from and including
the day such Swing Line Loan is made to
but excluding the date it is fully paid at
a rate per annum equal to the
Floating Rate for such day. Changes in the
rate of interest on that portion of
any Advance maintained as a Floating Rate
Advance will take effect
simultaneously with each change in the
Alternate Base Rate. Each Eurodollar
Advance shall bear interest on the
outstanding principal amount thereof from and
including the first day of the Interest
Period applicable thereto to (but not
including) the last day of such Interest
Period at the interest rate determined
by the Administrative Agent as applicable
to such Eurodollar Advance based upon
the Borrower's selections under Sections
2.8 and 2.9 and otherwise in accordance
with the terms hereof. No Interest Period
in respect of any Revolving Loan may
end after the Revolving Loan Termination
Date. No Interest Period in respect of
any Term Loan may end after the Term Loan
Maturity Date.
2.11.
Rates Applicable After Default. During the continuance of a
Default (including the Borrower's failure
to pay any Loan at maturity) the
Required Lenders may, at their option, by
notice to the Borrower (which notice
may be revoked at the option of the
Required Lenders notwithstanding any
provision of Section 8.2 requiring
unanimous consent of the Lenders to changes
in interest rates), declare that (i) each
Eurodollar Advance shall bear interest
for the remainder of the applicable
Interest Period at the rate otherwise
applicable to such Interest Period plus 2%
per annum, (ii) each Floating Rate
Advance shall bear interest at a rate per
annum equal to the Floating Rate in
effect from time to time plus 2% per annum,
and (iii) the LC Fee shall be
increased by 2% per annum; provided that,
during the continuance of a Default
under Section 7.6 or 7.7, the interest
rates set forth in clauses (i) and (ii)
above and the increase in the LC Fee set
forth in clause (iii) above shall be
applicable to all Credit Extensions,
Advances, fees and other Obligations
hereunder without any election or action on
the part of the Administrative Agent
or any Lender.
2.12.
Method of Payment. All payments of the Obligations hereunder
shall be made, without setoff, deduction,
or counterclaim, in immediately
available funds to the Administrative Agent
at the Administrative Agent's
address specified pursuant to Article XIII,
or at any other Lending Installation
of the Administrative Agent specified in
writing by the Administrative Agent to
the Borrower, by 12:00 noon (Louisville,
Kentucky time) on the date when due and
shall (except with respect to repayments of
Swing Line Loans, and except in the
case of Reimbursement Obligations for which
the LC Issuer has not been fully
indemnified by the Lenders, or as otherwise
specifically required hereunder) be
applied ratably by the Administrative Agent
among the Lenders. Each payment
delivered to the Administrative Agent for
the account of any Lender shall be
delivered promptly by the Administrative
Agent to such Lender in the same type
of funds that the Administrative Agent
received at its address specified
pursuant to Article XIII or at any Lending
Installation specified in a notice
received by the Administrative Agent from
such Lender. The Administrative Agent
is hereby authorized to charge the account
of the Borrower maintained with Bank
One for each payment of the Obligations as
it becomes due hereunder. Each
reference to the Administrative Agent in
this Section 2.12 shall also be deemed
to refer, and shall apply equally, to the
LC Issuer in the case of payments
required to be made by the Borrower to the
LC Issuer pursuant to Section 2.20.6.
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2.13.
Noteless Agreement; Evidence of Indebtedness.
(i) Each
Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of
the Borrower to such Lender resulting from each Loan made by
such Lender from time to time, including the amounts of
principal and interest payable and paid to such Lender from
time to time hereunder.
(ii)
The Administrative Agent shall also maintain accounts in which
it will record (a) the date and the amount of each Loan made
hereunder, the Type thereof and the Interest Period (in the
case of a Eurodollar Advance) with respect thereto, (b) the
amount of any principal or interest due and payable or to
become due and payable from the Borrower to each Lender
hereunder, (c) the original stated amount of each Facility LC
and the amount of LC Obligations outstanding at any time, (d)
the effective date and amount of each Assignment Agreement
delivered to and accepted by it and the parties thereto
pursuant to Section 12.3, (e) the amount of any sum received
by the Administrative Agent hereunder from the Borrower and
each Lender's share thereof, and (f) all other appropriate
debits and credits as provided in this Agreement, including,
without limitation, all fees, charges, expenses and interest.
(iii) The
entries maintained in the accounts maintained pursuant to
paragraphs (i) and (ii) above shall be prima facie evidence of
the existence and amounts of the Obligations therein recorded;
provided, however, that the failure of the Administrative
Agent or any Lender to maintain such accounts or any error
therein shall not in any manner affect the obligation of the
Borrower to repay the Obligations in accordance with their
terms.
(iv)
Any Lender may request that its Term Loans, Revolving Loans
or, in the case of the Swing Line Lender, the Swing Line
Loans, be evidenced by promissory notes (the "Notes") in
substantially the form of Exhibit E-1 or E-2, with appropriate
changes for notes evidencing Swing Line Loans. In such event,
the Borrower shall prepare, execute and deliver to such Lender
such Note(s) payable to the order of such Lender. Thereafter,
the Loans evidenced by such Note(s) and interest thereon shall
at all times (prior to any assignment pursuant to Section
12.3) be represented by one or more Notes payable to the order
of the payee named therein, except to the extent that any such
Lender subsequently returns any such Note(s) for cancellation
and requests that such Loans once again be evidenced as
described in paragraphs (i) and (ii) above.
2.14.
Telephonic Notices. The Borrower hereby authorizes the Lenders
and the Administrative Agent to extend,
convert or continue Advances, effect
selections of Types of Advances and to
transfer funds based on telephonic
notices made by any person or persons the
Administrative Agent or any Lender in
good faith believes to be acting on behalf
of the Borrower, it being understood
that the foregoing authorization is
specifically intended to allow Borrowing
Notices and Conversion/Continuation Notices
to be given telephonically. The
Borrower agrees to deliver promptly to the
Administrative Agent a written
confirmation, signed
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by an Authorized Officer, if such
confirmation is requested by the
Administrative Agent or any Lender, of each
telephonic notice. If the written
confirmation differs in any material
respect from the action taken by the
Administrative Agent and the Lenders, the
records of the Administrative Agent
and the Lenders shall govern absent
manifest error.
2.15.
Interest Payment Dates; Interest and Fee Basis. Interest
accrued on each Floating Rate Advance shall
be payable in arrears on each
Payment Date, commencing with the first
such date to occur after the Closing
Date, on any date on which the Floating
Rate Advance is prepaid, whether due to
acceleration or otherwise, and at maturity.
Interest accrued on that portion of
the outstanding principal amount of any
Floating Rate Advance converted into a
Eurodollar Advance on a day other than a
Payment Date shall be payable on the
date of conversion. Interest accrued on
each Eurodollar Advance shall be payable
on the last day of its applicable Interest
Period, on any date on which the
Eurodollar Advance is prepaid, whether by
acceleration or otherwise, and at
maturity. Interest accrued on each
Eurodollar Advance having an Interest Period
longer than three months shall also be
payable on the last day of each
three-month interval during such Interest
Period. Interest on Eurodollar
Advances, LC Fees and all other fees
hereunder shall be calculated for actual
days elapsed on the basis of a 360-day
year. Interest on Floating Rate Advances
shall be calculated for actual days elapsed
on the basis of a 365/366-day year.
Interest shall be payable for the day an
Advance is made but not for the day of
any payment on the amount paid if payment
is received prior to 12:00 noon
(Louisville, Kentucky time) at the place of
payment. If any payment of principal
of or interest on an Advance, any fees or
any other amounts payable to the
Administrative Agent or any Lender
hereunder shall become due on a day which is
not a Business Day, such payment shall be
made on the next succeeding Business
Day and, in the case of a principal
payment, such extension of time shall be
included in computing interest, fees and
commissions in connection with such
payment.
2.16.
Notification of Advances, Interest Rates, Prepayments and
Revolving Loan Commitment Reductions;
Availability of Loans. Promptly after
receipt thereof, the Administrative Agent
will notify each Lender of the
contents of each Aggregate Revolving Loan
Commitment reduction notice, Borrowing
Notice, Swing Line Borrowing Notice,
Conversion/Continuation Notice, and
repayment notice received by it hereunder.
Promptly after notice from the LC
Issuer, the Administrative Agent will
notify each Lender of the contents of each
request for issuance of a Facility LC
hereunder. The Administrative Agent will
notify the Borrower and each Lender of the
interest rate applicable to each
Eurodollar Advance promptly upon
determination of such interest rate and will
give the Borrower and each Lender prompt
notice of each change in the Alternate
Base Rate. Not later than 1:00 p.m.
(Louisville, Kentucky time) on each
Borrowing Date, each Lender shall make
available its Revolving Loan or Revolving
Loans in funds immediately available in
Chicago to the Administrative Agent at
its address specified pursuant to Article
XIII. The Administrative Agent will
promptly make the funds so received from
the Lenders available to the Borrower
at the Administrative Agent's aforesaid
address.
2.17.
Lending Installations. Each Lender may book its Loans and its
participation in any LC Obligations and the
LC Issuer may book the Facility LCs
at any Lending Installation selected by
such Lender or the LC Issuer, as
applicable, and may change its Lending
Installation from time to time. All terms
of this Agreement shall apply to any such
Lending Installation and the Loans,
Facility LCs, participations in LC
Obligations and any Notes issued hereunder
shall
33
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be deemed held by each Lender or the LC
Issuer, as applicable, for the benefit
of any such Lending Installation. Each
Lender and the LC Issuer may, by written
notice to the Administrative Agent and the
Borrower in accordance with Article
XIII, designate replacement or additional
Lending Installations through which
Loans will be made by it or Facility LCs
will be issued by it and for whose
account Loan payments or payments with
respect to Facility LCs are to be made.
2.18.
Non-Receipt of Funds by the Administrative Agent. Unless the
Borrower or a Lender, as the case may be,
notifies the Administrative Agent
prior to the date on which it is scheduled
to make payment to the Administrative
Agent of (i) in the case of a Lender, the
proceeds of a Loan or (ii) in the case
of the Borrower, a payment of principal,
interest or fees to the Administrative
Agent for the account of the Lenders, that
it does not intend to make such
payment, the Administrative Agent may
assume that such payment has been made.
The Administrative Agent may, but shall not
be obligated to, make the amount of
such payment available to the intended
recipient in reliance upon such
assumption. If such Lender or the Borrower,
as the case may be, has not in fact
made such payment to the Administrative
Agent, the recipient of such payment
shall, on demand by the Administrative
Agent, repay to the Administrative Agent
the amount so made available together with
interest thereon in respect of each
day during the period commencing on the
date such amount was so made available
by the Administrative Agent until the date
the Administrative Agent recovers
such amount at a rate per annum equal to
(x) in the case of payment by a Lender,
the Federal Funds Effective Rate for such
day for the first three days and,
thereafter, the interest rate applicable to
the relevant Loan or (y) in the case
of payment by the Borrower, the interest
rate applicable to the relevant Loan.
2.19.
Replacement of Lender. If the Borrower is required pursuant to
Section 3.1, 3.2 or 3.5 to make any
additional payment to any Lender or if any
Lender's obligation to make or continue, or
to convert Floating Rate Advances
into, Eurodollar Advances shall be
suspended pursuant to Section 3.3 (any Lender
so affected an "Affected Lender"), the
Borrower may elect, if such amounts
continue to be charged or such suspension
is still effective, to terminate or
replace the Revolving Loan Commitment, Term
Loan Commitment and Loans of such
Affected Lender, provided that no Default
or Unmatured Default shall have
occurred and be continuing at the time of
such termination or replacement, and
provided further that, concurrently with
such termination or replacement, (i) if
the Affected Lender is being replaced,
another bank or other entity which is
reasonably satisfactory to the Borrower and
the Administrative Agent shall
agree, as of such date, to purchase for
cash the Outstanding Revolving Credit
Exposure and Term Loans of the Affected
Lender pursuant to an Assignment
Agreement substantially in the form of
Exhibit C and to become a Lender for all
purposes under this Agreement and to assume
all obligations of the Affected
Lender to be terminated as of such date and
to comply with the requirements of
Section 12.3 applicable to assignments, and
(ii) the Borrower shall pay to such
Affected Lender in immediately available
funds on the day of such replacement
(A) all interest, fees and other amoun
