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<PAGE>
EXHIBIT 99.1
SECOND AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
DATED AS OF APRIL 22, 2005
AMONG
AMSURG CORP.
AS BORROWER
AND
SUNTRUST BANK
AS ADMINISTRATIVE AGENT AND LENDER
AND
THE OTHER LENDERS FROM
TIME TO TIME MADE A PARTY HERETO
--------------------------------------------------------------------------------
SUNTRUST ROBINSON HUMPHREY
A DIVISION OF SUNTRUST CAPITAL MARKETS, INC.
AS LEAD ARRANGER AND BOOK MANAGER
<PAGE>
TABLE OF CONTENTS
<Table>
<Caption>
PAGE
<S> <C>
ARTICLE I DEFINITIONS;
CONSTRUCTION........................................................................1
Section 1.1
Definitions.............................................................................1
Section 1.2 Accounting Terms and
Determination.....................................................15
Section 1.3 Terms
Generally........................................................................15
ARTICLE II AMOUNT AND TERMS OF THE
COMMITMENTS.............................................................15
Section 2.1 General Description of
Facility........................................................15
Section 2.2 Revolving
Loans........................................................................16
Section 2.3 Procedure for
Borrowings...............................................................16
Section 2.4 Funding of
Borrowings..................................................................16
Section 2.5 Interest
Elections.....................................................................17
Section 2.6 Optional and Mandatory Reductions and Termination of
Commitments.......................18
Section 2.7 Repayment of
Loans.....................................................................18
Section 2.8 Evidence of
Indebtedness...............................................................18
Section 2.9
Prepayments............................................................................19
Section 2.10 Interest on
Loans......................................................................19
Section 2.11
Fees...................................................................................20
Section 2.12 Computation of Interest and
Fees.......................................................21
Section 2.13 Inability to Determine Interest
Rates..................................................21
Section 2.14
Illegality.............................................................................21
Section 2.15 Increased
Costs........................................................................22
Section 2.16 Funding
Indemnity......................................................................22
Section 2.17
Taxes..................................................................................23
Section 2.18 Payments Generally; Pro Rata Treatment; Sharing of
Set-offs............................24
Section 2.19 Mitigation of Obligations; Replacement of
Lenders......................................25
Section 2.20 Letters of
Credit......................................................................25
Section 2.21 Increase of Revolving Commitments; Additional
Lenders..................................29
ARTICLE III CONDITIONS PRECEDENT TO
LOANS...................................................................30
Section 3.1 Conditions To
Effectiveness............................................................30
Section 3.2 Each Credit
Event......................................................................31
Section 3.3 Delivery of
Documents..................................................................32
</Table>
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TABLE OF CONTENTS
(continued)
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ARTICLE IV REPRESENTATIONS AND
WARRANTIES..................................................................32
Section 4.1 Existence;
Power.......................................................................32
Section 4.2 Organizational Power;
Authorization....................................................32
Section 4.3 Governmental Approvals; No
Conflicts...................................................32
Section 4.4 Financial
Statements...................................................................33
Section 4.5 Litigation and Environmental
Matters...................................................33
Section 4.6 Compliance with Laws and
Agreements....................................................33
Section 4.7 Investment Company Act,
Etc............................................................33
Section 4.8
Taxes..................................................................................33
Section 4.9 Margin
Regulations.....................................................................33
Section 4.10
ERISA..................................................................................34
Section 4.11 Ownership of
Property..................................................................34
Section 4.12
Disclosure.............................................................................34
Section 4.13 Labor
Relations........................................................................34
Section 4.14
Subsidiaries...........................................................................34
Section 4.15 Personal Holding Company; Subchapter
S.................................................34
Section 4.16
Solvency...............................................................................34
Section 4.17
Capital................................................................................35
ARTICLE V AFFIRMATIVE
COVENANTS...........................................................................35
Section 5.1 Financial Statements and Other
Information.............................................35
Section 5.2 Notices of Material
Events.............................................................36
Section 5.3 Existence; Conduct of
Business.........................................................37
Section 5.4 Compliance with Laws,
Etc..............................................................37
Section 5.5 Payment of
Obligations.................................................................37
Section 5.6 Books and
Records......................................................................37
Section 5.7 Visitation, Inspection,
Etc............................................................37
Section 5.8 Maintenance of Properties;
Insurance...................................................37
Section 5.9 Use of
Proceeds........................................................................37
Section 5.10 Additional
Subsidiaries................................................................38
Section 5.11 Intercompany Loans and Third Party
Notes...............................................38
ARTICLE VI FINANCIAL
COVENANTS.............................................................................39
Section 6.1 Leverage
Ratio.........................................................................39
Section 6.2 Consolidated Total Funded Debt to Capitalization
Ratio.................................39
</Table>
ii
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TABLE OF CONTENTS
(continued)
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PAGE
<S> <C>
Section 6.3 Fixed Charge Coverage
Ratio............................................................39
Section 6.4 Consolidated Net
Worth.................................................................39
ARTICLE VII NEGATIVE
COVENANTS..............................................................................39
Section 7.1
Indebtedness...........................................................................39
Section 7.2 Negative
Pledge........................................................................40
Section 7.3 Fundamental
Changes....................................................................40
Section 7.4 Investments, Loans,
Etc................................................................41
Section 7.5 Restricted
Payments....................................................................41
Section 7.6 Sale of
Assets.........................................................................41
Section 7.7 Transactions with
Affiliates...........................................................42
Section 7.8 Restrictive
Agreements.................................................................42
Section 7.9 Sale and Leaseback
Transactions........................................................42
Section 7.10 Hedging
Agreements.....................................................................42
Section 7.11 Amendment to Material
Documents........................................................43
Section 7.12 Accounting
Changes.....................................................................43
Section 7.13
Acquisitions...........................................................................43
Section 7.14
Subsidiaries...........................................................................44
ARTICLE VIII EVENTS OF
DEFAULT...............................................................................44
Section 8.1 Events of
Default......................................................................44
ARTICLE IX THE ADMINISTRATIVE
AGENT........................................................................46
Section 9.1 Appointment of Administrative
Agent....................................................46
Section 9.2 Nature of Duties of Administrative
Agent...............................................46
Section 9.3 Lack of Reliance on the Administrative
Agent...........................................47
Section 9.4 Certain Rights of the Administrative
Agent.............................................47
Section 9.5 Reliance by Administrative
Agent.......................................................47
Section 9.6 The Administrative Agent in its Individual
Capacity....................................47
Section 9.7 Successor Administrative
Agent.........................................................48
ARTICLE X
MISCELLANEOUS...................................................................................48
Section 10.1
Notices................................................................................48
Section 10.2 Waiver;
Amendments.....................................................................50
Section 10.3 Expenses;
Indemnification..............................................................50
Section 10.4 Successors and
Assigns.................................................................52
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iii
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TABLE OF CONTENTS
(continued)
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Section 10.5 Governing Law; Jurisdiction; Consent to Service of
Process.............................53
Section 10.6 WAIVER OF JURY
TRIAL...................................................................54
Section 10.7 Right of
Setoff........................................................................54
Section 10.8 Counterparts;
Integration..............................................................54
Section 10.9
Survival...............................................................................55
Section 10.10
Severability...........................................................................55
Section 10.11
Confidentiality........................................................................55
Section 10.12 Interest Rate
Limitation...............................................................55
</Table>
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<PAGE>
EXHIBITS AND SCHEDULES
<Table>
<S> <C>
EXHIBITS
Exhibit A - Revolving Credit Note
Exhibit B - Assignment and Acceptance
Exhibit C - Subsidiary Guarantee Agreement
Exhibit D - Indemnity, Subrogation and Contribution
Agreement
Exhibit E - Acquisition Approval Letter
Exhibit F - Acquisition Informational Package
Exhibit G - Acquisition Pro Forma
Exhibit H - 2005 Master Amendment to Security Documents
SCHEDULES
Schedule 1.1 Revolving Commitments
Schedule 2.3 - Notice of Borrowing
Schedule 2.5 - Form of Continuation/Conversion
Schedule 3.1(b)(v) - Form of Secretary's Certificate
Schedule 3.1(b)(vii) - Opinion Letter
Schedule 4.5 - Litigation and Environmental Matters
Schedule 4.14 - Subsidiaries
Schedule 5.1(c) - Compliance Certificate
Schedule 7.1 - Outstanding Indebtedness
Schedule 7.2 - Existing Liens
Schedule 7.4 - Existing Investments
</Table>
v
<PAGE>
SECOND AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
THIS SECOND AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
(this
"Agreement") is made and entered into as of April 22, 2005, by
and among AMSURG
CORP., a Tennessee corporation (the "Borrower"), the several
banks and other
financial institutions from time to time party hereto (the
"Lenders"), and
SUNTRUST BANK, in its capacity as Administrative Agent for the
Lenders (the
"Administrative Agent" or "Agent").
1. Borrower and certain lenders entered into an Amended and
Restated
Credit Agreement dated as of May 5, 2000, as amended by that
certain First
Amendment to Amended and Restated Revolving Credit Agreement
dated June 22,
2001, as further amended by that certain Second Amendment to
Amended and
Restated Revolving Credit Agreement dated February 5, 2003, as
further amended
by that certain Third Amendment to Amended and Restated
Revolving Credit
Agreement dated March 4, 2003, and as further amended by that
certain Fourth
Amendment to Amended and Restated Revolving Credit Agreement
dated March 10,
2004 (as amended, herein referred to as the "2000 Credit
Agreement").
2. The Borrower desires that the credit available to Borrower
under the
2000 Credit Agreement be increased and that other lenders be
involved in making
credit available to the Borrower.
3. The Borrower further desires to amend and restate the 2000
Credit
Agreement as provided herein, and desires that the Lenders,
defined herein,
establish a $150,000,000 revolving credit facility available to
Borrower.
4. Subject to the terms and conditions of this Agreement, the
Lenders
severally, to the extent of their respective Commitments, are
willing to
establish the requested revolving credit facility.
NOW, THEREFORE, in consideration of the premises and the
mutual
covenants herein contained, the Loan Agreement is amended and
restated as set
forth herein and the Borrower, the Lenders and the
Administrative Agent agree as
follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
SECTION 1.1 Definitions. In addition to the other terms defined
herein,
the following terms used herein shall have the meanings herein
specified (to be
equally applicable to both the singular and plural forms of the
terms defined):
"2000 ASSIGNMENT AND SECURITY AGREEMENTS" shall mean those
certain
Assignment and Security Agreements dated May 5, 2000 whereby
Borrower (a)
assigned to Administrative Agent any and all documents executed
in connection
with all Intercompany Loans and Third Party Notes existing as of
May 5, 2000
(except as specifically excluded under the terms of the 2000
Credit Agreement),
including without limitation any notes, loan agreements,
security agreements,
guaranties, and financing statements, and (b) pledged to
Administrative Agent
any and all collateral pledged in connection therewith, as
amended by the 2005
Master Amendment to Security Documents, and as such may be
further amended
and/or restated from time.
"2000 CREDIT AGREEMENT" shall have such meaning as set forth in
the
recitals.
"2000 PLEDGE AGREEMENT" shall mean that certain Pledge and
Security
Agreement dated May 5, 2000 whereby the Borrower and each of its
Wholly Owned
Subsidiaries existing as of such date pledged and granted to the
Administrative
Agent a first perfected security interest in the interest of
Borrower or each
such Wholly
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<PAGE>
Owned Subsidiary in the Subsidiaries described therein and all
partnership
interests, limited liability company interests, distributions,
payments, general
intangibles, accounts, and other tangible and intangible
property arising out of
or in connection with each such Subsidiary, subject to certain
limitations
contained in the 2000 Credit Agreement, as amended by that
certain 2005 Master
Amendment to Security Documents, and as such may be further
amended and/or
restated in the future.
"2000 STOCK PLEDGE AGREEMENT" shall mean that certain Stock
Pledge
Agreement dated May 5, 2000 whereby Borrower pledged to
Administrative Agent all
of the stock it held as of such date in the Subsidiaries
described therein, as
amended by the 2005 Master Amendment to the Security Documents,
and as such may
be further amended and/or restated from time to time.
"2005 MASTER AMENDMENT TO SECURITY DOCUMENTS" shall mean that
certain
Master Amendment to Security Documents, in the form of Exhibit H
attached
hereto, executed by Borrower and Administrative Agent, on behalf
of the Lenders,
of even date herewith, whereby the description of the secured
indebtedness set
forth in the Security Documents executed as of the Closing Date
is amended to
describe this Agreement and the other Loan Documents.
"ACQUISITION" shall mean the acquisition by Borrower of a
controlling
ownership interest in any existing ambulatory surgery center(s)
through the
formation of a Subsidiary.
"ACQUISITION APPROVAL LETTER" shall mean a letter executed by
Borrower,
Administrative Agent and the Required Lenders pursuant to
Section 7.13(c) in the
form of Exhibit E.
"ACQUISITION INFORMATION PACKAGE" shall mean information
delivered by
Borrower to Administrative Agent and Lenders pursuant to Section
7.13 in the
form of Exhibit F.
"ACQUISITION PRO FORMA" shall mean a pro forma statement in the
form of
and containing the information shown on Exhibit G hereto.
"ADJUSTED EBITDA" shall mean EBITDA calculated on an
annualized
trailing six (6) month basis and it shall include the pro forma
EBITDA of any
Acquisition annualized from the date of acquisition for a period
not to exceed
six (6) months so long as the calculation thereof is done in a
manner reasonably
calculated to comply with GAAP and such calculation is detailed
in the
supporting calculations to the covenant compliance certificate
as detailed and
measured to the Administrative Agent's reasonable
satisfaction.
"ADJUSTED LIBOR RATE" shall mean, with respect to each Interest
Period
for a Eurodollar Borrowing, the rate per annum obtained by
dividing (i) LIBOR
for such Interest Period by (ii) a percentage equal to 1.00
minus the Eurodollar
Reserve Percentage.
"ADMINISTRATIVE AGENT" or "AGENT" shall have the meaning
assigned to
such term in the opening paragraph hereof and any successor
appointed pursuant
to the provisions of Section 9.7 herein.
"ADMINISTRATIVE QUESTIONNAIRE" shall mean, with respect to each
Lender,
an administrative questionnaire in the form prepared by the
Administrative Agent
and submitted to the Administrative Agent duly completed by such
Lender.
"AFFILIATE" shall mean, as to any Person, any other Person
that
directly, or indirectly through one or more intermediaries,
Controls, is
Controlled by, or is under common Control with, such Person.
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<PAGE>
"AGGREGATE REVOLVING COMMITMENTS" shall mean the sum of the
Revolving
Commitments of all Lenders at any time outstanding. On the
Closing Date, the
Aggregate Revolving Commitments equal $150,000,000.
"AGREEMENT" shall mean this Second Amended and Restated
Credit
Agreement (including all exhibits hereto), as the same may be
amended, modified,
or supplemented from time to time.
"APPLICABLE LENDING OFFICE" shall mean, for each Lender and for
each
Type of Loan, the "Lending Office" of such Lender (or an
Affiliate of such
Lender) designated for such Type of Loan in the Administrative
Questionnaire
submitted by such Lender or such other office of such Lender (or
an Affiliate of
such Lender) as such Lender may from time to time specify to the
Administrative
Agent and the Borrower as the office by which its Loans of such
Type are to be
made and maintained.
"APPLICABLE MARGIN" shall mean with respect to the Letter of
Credit
Fee, the Commitment Fee and all Revolving Loans outstanding on
any date, the
number of basis points per annum determined by reference to the
applicable
Leverage Ratio in effect on such date in accordance with the
table set forth
below, provided, that a change in the Applicable Margin
resulting from a change
in the Leverage Ratio shall be effective on the second Business
Day after which
the Borrower is required to deliver the financial statements
required by Section
5.1(a) or (b) and the compliance certificate required by Section
5.1 (c);
provided further, that if at any time the Borrower shall have
failed to deliver
such financial statements and such certificate, the Applicable
Margin shall be
at the highest level until such time as such financial
statements and
certificate are delivered, at which time the Applicable Margin
shall be
determined as provided above.
<Table>
<Caption>
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Level 1 Level 2 Level 3 Level 4 Level 5
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<S> <C> <C> <C> <C> <C>
Leverage Ratio Less than Greater than Greater than Greater than
Greater than
0.75x or equal to or equal to or equal to or equal to
0.75x and Less 1.25x and Less 1.75x and Less 2.25x
than 1.25x than 1.75x than 2.25x
--------------------------------------------------------------------------------------------------------------------------
Applicable Margin 75 100 125 150 175
for Eurodollar
Loans and Letter basis basis points basis points basis points
basis points
of Credit Fee points
--------------------------------------------------------------------------------------------------------------------------
Applicable Margin 0 0 25 50 75
for Base Rate
Loans basis basis points basis points basis points basis
points
points
--------------------------------------------------------------------------------------------------------------------------
Commitment Fee 25 25 37.5 37.5 37.5
basis basis points basis points basis points basis points
points
--------------------------------------------------------------------------------------------------------------------------
</Table>
"ARRANGER" shall mean SunTrust Robinson Humphrey, a division
of
SunTrust Capital Markets, Inc.
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<PAGE>
"ASSIGNMENT AND ACCEPTANCE" shall mean an assignment and
acceptance
entered into by a Lender and an assignee (with the consent of
any party whose
consent is required by Section 10.4(b)) and accepted by the
Administrative
Agent, in the form of Exhibit B attached hereto or any other
form approved by
the Administrative Agent.
"AVAILABILITY PERIOD" shall mean the period from the Closing
Date to
the Maturity Date.
"BASE RATE" shall mean the higher of (i) the per annum rate
which the
Administrative Agent publicly announces from time to time to be
its prime
lending rate, as in effect from time to time, and (ii) the
Federal Funds Rate,
as in effect from time to time; plus one-half of one percent
(0.50%). The
Administrative Agent's prime lending rate is a reference rate
and does not
necessarily represent the lowest or best rate charged to
customers. The
Administrative Agent may make commercial loans or other loans at
rates of
interest at, above or below the Administrative Agent's prime
lending rate. Each
change in the Administrative Agent's prime lending rate shall be
effective from
and including the date such change is publicly announced as
being effective.
"BASE RATE BORROWING" shall mean a Borrowing with interest
accruing on
said Borrowing at the Base Rate, as elected by Borrower.
"BASE RATE LOAN" shall mean a Loan with interest accruing on
said Loan
at the Base Rate, as elected by Borrower.
"BORROWER" shall have the meaning in the introductory paragraph
hereof.
"BORROWING" shall mean a borrowing made pursuant to the
Revolving Loan.
"BUSINESS DAY" shall mean (i) any day other than a Saturday,
Sunday or
other day on which commercial banks in Atlanta, Georgia are
authorized or
required by law to close and (ii) if such day relates to a
Borrowing of, a
payment or prepayment of principal or interest on, a conversion
of or into, or
an Interest Period for, a Eurodollar Loan or a notice with
respect to any of the
foregoing, any day on which dealings in Dollars are carried on
in the London
interbank market.
"CAPITAL EXPENDITURES" shall mean for any period, without
duplication,
(a) the additions to property, plant and equipment and other
capital
expenditures of the Borrower and its Subsidiaries that are (or
would be) set
forth as capital expenditures on a consolidated statement of
cash flows of the
Borrower for such period prepared in accordance with GAAP and
(b) Capital Lease
Obligations incurred by the Borrower and its Subsidiaries during
such period.
"CAPITAL LEASE OBLIGATIONS" of any Person shall mean all
obligations of
such Person to pay rent or other amounts under any lease (or
other arrangement
conveying the right to use) real or personal property, or a
combination thereof,
which obligations are required to be classified and accounted
for as capital
leases on a balance sheet of such Person under GAAP, and the
amount of such
obligations shall be the capitalized amount thereof determined
in accordance
with GAAP.
"CAPITALIZATION" means Borrower's total consolidated
Indebtedness plus
an amount equal to Borrower's Consolidated Net Worth.
"CHANGE IN CONTROL" means the occurrence of (i) any Person or
two or
more Persons acting in concert acquiring beneficial ownership
(within the
meaning of Rule 13d-3 of the Securities and Exchange Commission
under the
Securities Exchange Act of 1934, as amended), directly or
indirectly, of
securities of Borrower (or other securities convertible into
such securities)
representing 40% or more of the combined voting power of all
-4-
<PAGE>
securities of Borrower entitled to vote in the election of
directors; or (ii)
individuals who at the beginning of this Agreement were
directors of Borrower
ceasing for any reason to constitute a majority of the Board of
Directors of
Borrower unless the Persons replacing such individuals were
nominated by the
Board of Directors of Borrower; or (iii) any Person or two or
more Persons
acting in concert acquiring by contract or otherwise, or
entering into a
contract or arrangement which upon consummation will result in
its or their
acquisition of, or control over, securities of Borrower (or
other securities
convertible into such securities) representing 40% or more of
the combined
voting power of all securities of Borrower entitled to vote in
the election of
directors.
"CHANGE IN LAW" shall mean (i) the adoption of any applicable
law, rule
or regulation after the date of this Agreement, (ii) any change
in any
applicable law, rule or regulation, or any change in the
interpretation or
application thereof, by any Governmental Authority after the
date of this
Agreement, or (iii) compliance by any Lender (or its Applicable
Lending Office)
(or for purposes of Section 2.15(b), by such Lender's holding
company, if
applicable) with any request, guideline or directive (whether or
not having the
force of law) of any Governmental Authority made or issued after
the date of
this Agreement.
"CLOSING DATE" shall mean the date on which the conditions
precedent
set forth in Section 3.1 have been satisfied or waived in
accordance with
Section 10.2.
"CODE" shall mean the Internal Revenue Code of 1986, as amended
and in
effect from time to time.
"COMMITMENT FEE" shall have the same meaning set forth in
Section
2.11(b).
"CONSOLIDATED INTEREST EXPENSE" shall mean, for the Borrower and
its
Subsidiaries for any period determined on a consolidated basis
in accordance
with GAAP, the sum of (i) total cash interest expense, including
without
limitation the interest component of any payments in respect of
Capital Lease
Obligations capitalized or expensed during such period (whether
or not actually
paid during such period) plus (ii) the net amount payable (or
minus the net
amount receivable) under Hedging Agreements during such period
(whether or not
actually paid or received during such period).
"CONSOLIDATED LEASE EXPENSE" shall mean, for any period, the
aggregate
amount of fixed and contingent rentals payable by the Borrower
and its
Subsidiaries with respect to leases of real and personal
property (excluding
Capital Lease Obligations) determined on a consolidated basis in
accordance with
GAAP for such period.
"CONSOLIDATED NET INCOME" shall mean, for any period, the net
income
(or loss) of the Borrower and its Subsidiaries for such period
determined on a
consolidated basis in accordance with GAAP, but excluding
therefrom (to the
extent otherwise included therein) any gains attributable to
write-ups of
assets.
"CONSOLIDATED NET WORTH" shall mean, as of any date, (a) the
total
assets of the Borrower and its Subsidiaries that would be
reflected as such on
the Borrower's consolidated balance sheet as of such date
prepared in accordance
with GAAP, minus (b) the sum of (i) the total liabilities of the
Borrower and
its Subsidiaries that would be reflected on the Borrower's
consolidated balance
sheet as of such date prepared in accordance with GAAP, (ii)
Minority Interest,
and (iii) the amount of any write-up in the book value of any
assets resulting
from a revaluation thereof or any write-up in excess of the cost
of such assets
acquired reflected on the consolidated balance sheet of the
Borrower as of such
date prepared in accordance with GAAP.
"CONSOLIDATED TOTAL FUNDED DEBT" shall mean, with respect to
the
Borrower and its Subsidiaries, all Indebtedness which by its
terms or by the
terms of any instrument or agreement relating thereto matures,
or which is
otherwise payable or unpaid, one year or more from, or is
directly or indirectly
renewable or extendable at the option of the Borrower and/or its
Subsidiaries,
as applicable, to a date one year or more (including an option
of the Borrower
and/or its Subsidiaries, as applicable, under a revolving credit
or similar
-5-
<PAGE>
agreement obligating the lender or lenders to extend credit over
a period of one
year or more) from, the date of the creation thereof, provided
that Consolidated
Total Funded Debt shall include, as at any date of
determination, any portion of
such Indebtedness outstanding on such date which matures on
demand or within one
year from such date (whether by sinking fund, other required
prepayment, or
final payment at maturity) and shall also include all
Indebtedness of the
Borrower for money under a line of credit, guidance line,
revolving credit,
bankers acceptance facility or similar arrangement for borrowed
money,
including, without limitation, all unpaid drawings under letters
of credit and
unreimbursed amounts pursuant to letter of credit reimbursement
agreements,
regardless of the maturity date thereof.
"CONTROL" shall mean the power, directly or indirectly, either
to (i)
vote 10% or more of securities having ordinary voting power for
the election of
directors (or persons performing similar functions) of a Person
or (ii) direct
or cause the direction of the management and policies of a
Person, whether
through the ability to exercise voting power, by contract or
otherwise. The
terms "Controlling", "Controlled by", and "under common Control
with" have
meanings correlative thereto.
"DEFAULT" shall mean any condition or event that, with the
giving of
notice or the lapse of time or both, would constitute an Event
of Default.
"DEFAULT INTEREST" shall have the meaning set forth in Section
2.10(b).
"DEVELOPED CENTER INFORMATION PACKAGE" shall mean such
information
delivered pursuant to Section 5.1(f) hereof setting forth
information on
Borrower's developed surgery centers all in a format reasonably
acceptable to
the Administrative Agent.
"DOLLAR(S)" and the sign "$" shall mean lawful money of the
United
States of America.
"EBITDA" shall mean, for the Borrower and its Subsidiaries on
a
consolidated basis for any period, an amount equal to the sum of
Consolidated
Net Income for such period plus, without duplication, and to the
extent deducted
in computing Consolidated Net Income for such period, the sum of
(a) income
taxes, (b) Consolidated Interest Expense, and (c) depreciation
and amortization
expense, determined in accordance with GAAP; provided, however,
with respect to
any Person that became a Subsidiary of, or was merged with or
consolidated into,
the Borrower or any Wholly Owned Subsidiary during such period,
"EBITDA" shall
also include the EBITDA of such Person during such period and
prior to the date
of such acquisition, merger or consolidation.
"ENVIRONMENTAL LAWS" shall mean all laws, rules, regulations,
codes,
ordinances, orders, decrees, judgments, injunctions, notices or
binding
agreements issued, promulgated or entered into by or with any
Governmental
Authority, relating in any way to the environment, preservation
or reclamation
of natural resources, or the management, Release or threatened
Release of any
Hazardous Material.
"ENVIRONMENTAL LIABILITY" shall mean any liability, contingent
or
otherwise (including any liability for damages, costs of
environmental
investigation and remediation, costs of administrative
oversight, fines, natural
resource damages, penalties or indemnities), of the Borrower or
any Subsidiary
directly or indirectly resulting from or based upon (a) any
actual or alleged
violation of any Environmental Law, (b) the generation, use,
handling,
transportation, storage, treatment or disposal of any Hazardous
Materials, (c)
any actual or alleged exposure to any Hazardous Materials, (d)
the Release or
threatened Release of any Hazardous Materials or (e) any
contract, agreement or
other consensual arrangement pursuant to which liability is
assumed or imposed
with respect to any of the foregoing.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974,
as amended from time to time, and any successor statute.
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"ERISA AFFILIATE" shall mean any trade or business (whether or
not
incorporated), which, together with the Borrower, is treated as
a single
employer under Section 414(b) or (c) of the Code or, solely for
the purposes of
Section 302 of ERISA and Section 412 of the Code, is treated as
a single
employer under Section 414 of the Code.
"ERISA EVENT" shall mean (a) any "reportable event", as defined
in
Section 4043 of ERISA or the regulations issued thereunder with
respect to a
Plan (other than an event for which the 30-day notice period is
waived); (b) the
existence with respect to any Plan of an "accumulated funding
deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA),
whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or
Section 303(d)
of ERISA of an application for a waiver of the minimum funding
standard with
respect to any Plan; (d) the incurrence by the Borrower or any
of its ERISA
Affiliates of any liability under Title IV of ERISA with respect
to the
termination of any Plan; (e) the receipt by the Borrower or any
ERISA Affiliate
from the PBGC or a plan administrator appointed by the PBGC of
any notice
relating to an intention to terminate any Plan or Plans or to
appoint a trustee
to administer any Plan; (f) the incurrence by the Borrower or
any of its ERISA
Affiliates of any liability with respect to the withdrawal or
partial withdrawal
from any Plan or Multiemployer Plan; or (g) the receipt by the
Borrower or any
ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan from the
Borrower or any ERISA Affiliate of any notice, concerning the
imposition of
Withdrawal Liability or a determination that a Multiemployer
Plan is, or is
expected to be, insolvent or in reorganization, within the
meaning of Title IV
of ERISA.
"EURODOLLAR" when used in reference to any Loan or Borrowing,
refers to
whether such Loan, or the Loans comprising such Borrowing, bears
interest at a
rate determined by reference to the Adjusted LIBO Rate.
"EURODOLLAR BORROWING" shall mean a Borrowing with interest
accruing on
said Borrowing at the Adjusted LIBO Rate, as elected by
Borrower.
"EURODOLLAR LOAN" shall mean a Loan with interest accruing on
said Loan
at the Adjusted LIBO Rate, as elected by Borrower.
"EURODOLLAR RESERVE PERCENTAGE" shall mean the aggregate of the
maximum
reserve percentages (including, without limitation, any
emergency, supplemental,
special or other marginal reserves) expressed as a decimal
(rounded upwards to
the next 1/100th of 1%) in effect on any day to which the
Administrative Agent
is subject with respect to the Adjusted LIBO Rate pursuant to
regulations issued
by the Board of Governors of the Federal Reserve System (or any
Governmental
Authority succeeding to any of its principal functions) with
respect to
eurocurrency funding (currently referred to as "eurocurrency
liabilities" under
Regulation D). Eurodollar Loans shall be deemed to constitute
eurocurrency
funding and to be subject to such reserve requirements without
benefit of or
credit for proration, exemptions or offsets that may be
available from time to
time to any Lender under Regulation D. The Eurodollar Reserve
Percentage shall
be adjusted automatically on and as of the effective date of any
change in any
reserve percentage.
"EVENT OF DEFAULT" shall have the meaning provided in Article
VIII.
"EXCLUDED TAXES" shall mean with respect to the Administrative
Agent,
any Lender, or any other recipient of any payment to be made by
or on account of
any obligation of the Borrower hereunder, (a) income, franchise,
or other taxes
imposed on (or measured by) its net income by the United States
of America or
any other Governmental Authority, or by the jurisdiction under
the laws of which
such recipient is organized or in which its principal office is
located or, in
the case of any Lender, in which its applicable lending office
is located, and
(b) any branch profits taxes imposed by the United States of
America or any
similar tax imposed by any other jurisdiction in which the
Borrower is located.
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"FEDERAL FUNDS RATE" shall mean, for any day, the rate per
annum
(rounded upwards, if necessary, to the next 1/100th of 1%) equal
to the weighted
average of the rates on overnight Federal funds transactions
with member banks
of the Federal Reserve System arranged by Federal funds brokers,
as published by
the Federal Reserve Bank of New York on the next succeeding
Business Day or if
such rate is not so published for any Business Day, the Federal
Funds Rate for
such day shall be the average rounded upwards, if necessary, to
the next 1/100th
of 1% of the quotations for such day on such transactions
received by the
Administrative Agent from three (3) Federal funds brokers of
recognized standing
selected by the Administrative Agent.
"GAAP" shall mean generally accepted accounting principles in
the
United States applied on a consistent basis and subject to the
terms of Section
1.2.
"GOVERNMENTAL AUTHORITY" shall mean the government of the United
States
of America, any other nation or any political subdivision
thereof, whether state
or local, and any agency, authority, instrumentality, regulatory
body, court,
central bank or other entity exercising executive, legislative,
judicial,
taxing, regulatory or administrative powers or functions of or
pertaining to
government.
"GUARANTEE" of or by any Person (the "guarantor") shall mean
any
obligation, contingent or otherwise, of the guarantor
guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other
obligation of any
other Person (the "primary obligor") in any manner, whether
directly or
indirectly and including any obligation, direct or indirect, of
the guarantor
(a) to purchase or pay (or advance or supply funds for the
purchase or payment
of) such Indebtedness or other obligation or to purchase (or to
advance or
supply funds for the purchase of) any security for the payment
thereof, (b) to
purchase or lease property, securities or services for the
purpose of assuring
the owner of such Indebtedness or other obligation of the
payment thereof, (c)
to maintain working capital, equity capital or any other
financial statement
condition or liquidity of the primary obligor so as to enable
the primary
obligor to pay such Indebtedness or other obligation or (d) as
an account party
in respect of any letter of credit or letter of guaranty issued
in support of
such Indebtedness or obligation; provided, that the term
"Guarantee" shall not
include endorsements for collection or deposits in the ordinary
course of
business. The amount of any Guarantee shall be deemed to be an
amount equal to
the stated or determinable amount of the primary obligation in
respect of which
Guarantee is made or, if not so stated or determinable, the
maximum reasonably
anticipated liability in respect thereof (assuming such Person
is required to
perform thereunder) as determined by such Person in good faith.
The term
"Guarantee" used as a verb has a corresponding meaning.
"HAZARDOUS MATERIALS" means all explosive or radioactive
substances or
wastes and all hazardous or toxic substances, wastes or other
pollutants,
including petroleum or petroleum distillates, asbestos or
asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or
medical wastes
and all other substances or wastes of any nature regulated
pursuant to any
Environmental Law.
"HEDGING AGREEMENTS" shall mean interest rate swap, cap or
collar
agreements, interest rate future or option contracts, currency
swap agreements,
currency future or option contracts, commodity agreements and
other similar
agreements or arrangements designed to protect against
fluctuations in interest
rates, currency values or commodity values.
"INDEBTEDNESS" of any Person shall mean, without duplication (i)
all
obligations of such Person for borrowed money, (ii) all
obligations of such
Person evidenced by bonds, debentures, notes or other similar
instruments, (iii)
all obligations of such Person in respect of the deferred
purchase price of
property or services (other than trade payables incurred in the
ordinary course
of business; provided, that for purposes of Section 8.1(f),
trade payables
overdue by more than 120 days shall be included in this
definition (except to
the extent that any of such trade payables are being disputed in
good faith and
by appropriate measures), (iv) all obligations of such Person
under any
conditional sale or other title retention agreement(s) relating
to property
acquired by such Person, (v) all Capital Lease Obligations of
such Person, (vi)
all obligations, contingent or
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<PAGE>
otherwise, of such Person in respect of letters of credit,
acceptances or
similar extensions of credit, (vii) all Guarantees of such
Person of the type of
Indebtedness described in clauses (i) through (vi) above,
excluding Guarantees
of shareholders' equity or capital stock or surplus or general
contingency or
deferred tax reserves, (viii) all Indebtedness of a third party
secured by any
Lien on property owned by such Person, whether or not such
Indebtedness has been
assumed by such Person, (ix) all obligations of such Person,
contingent or
otherwise, to purchase, redeem, retire or otherwise acquire for
value any common
stock of such Person, (x) any obligation under a Hedging
Agreement or foreign
exchange agreement, (xi) Off-Balance Sheet Liabilities, and
(xii) any obligation
under asset securitization vehicles; and (xiii) any other
obligation or
liability which is required by GAAP to be shown as a liability
on a consolidated
balance sheet of the Borrower and its Subsidiaries (other than
reserves required
by GAAP).
"INDEMNIFIED TAXES" shall mean Taxes relating to the
indebtedness
evidenced hereby, all Loans made hereunder, and all payments to
be made by
Borrower hereunder, other than Excluded Taxes.
"INDEMNITY AND CONTRIBUTION AGREEMENT" shall mean that certain
Amended
and Restated Indemnity, Subrogation and Contribution Agreement
of even date
herewith, substantially in the form of Exhibit D, among the
Borrower, the Wholly
Owned Subsidiaries and the Administrative Agent.
"INFORMATION MEMORANDUM" shall mean the Confidential
Information
Memorandum dated April, 2005 relating to the Borrower, its
Subsidiaries, and the
transactions contemplated by this Agreement and the other Loan
Documents.
"INTERCOMPANY LOAN" shall mean any loan from the Borrower or any
Wholly
Owned Subsidiary to any Subsidiary.
"INTEREST PERIOD" shall mean, with respect to any Eurodollar
Borrowing,
a period of one, two, three or six months; provided that:
(i) the initial Interest Period for such Borrowing shall
commence on the date of such Borrowing (including the date of
any
conversion from a Borrowing of another Type) and each Interest
Period
occurring thereafter in respect of such Borrowing shall commence
on the
day on which the next preceding Interest Period expires;
(ii) if any Interest Period would otherwise end on a day
other
than a Business Day, such Interest Period shall be extended to
the next
succeeding Business Day, unless, in the case of a Eurodollar
Borrowing,
such Business Day falls in another calendar month, in which case
such
Interest Period would end on the next preceding Business
Day;
(iii) any Interest Period in respect of a Eurodollar
Borrowing
which begins on the last Business Day of a calendar month or on
a day
for which there is no numerically corresponding day in the
calendar
month at the end of such Interest Period shall end on the last
Business
Day of such calendar month; and
(iv) no Interest Period may extend beyond the Maturity Date.
"ISSUING BANK" shall mean SunTrust Bank or any other Lender,
each in
its capacity as an issuer of Letters of Credit pursuant to
Section 2.20.
"LC COMMITMENT" shall mean that portion of the Aggregate
Revolving
Commitments that may be used by the Borrower for the issuance of
Letters of
Credit, which portion is in an aggregate face amount equal to
$10,000,000.
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"LC DISBURSEMENT" shall mean a payment made by the Issuing
Bank
pursuant to a Letter of Credit.
"LC DOCUMENTS" shall mean the Letters of Credit and all
applications,
agreements and instruments relating to the Letters of
Credit.
"LC EXPOSURE" shall mean, at any time, the sum of (i) the
aggregate
undrawn amount of all outstanding Letters of Credit at such
time, plus (ii) the
aggregate amount of all LC Disbursements that have not been
reimbursed by or on
behalf of the Borrower at such time. The LC Exposure of any
Lender shall be its
Pro Rata Share of the total LC Exposure at such time.
"LENDERS" shall have the meaning assigned to such term in the
opening
paragraph of this Agreement.
"LETTER OF CREDIT" shall mean any letter of credit issued
pursuant to
Section 2.20 by the Issuing Bank for the account of the Borrower
pursuant to the
LC Commitment.
"LETTER OF CREDIT FEE" shall mean the same meaning as set forth
in
Section 2.11(c).
"LEVERAGE RATIO" shall mean, the ratio of (i) Consolidated Total
Funded
Debt to (ii) Adjusted EBITDA, as determined as of the end of
each calendar
quarter.
"LIBOR" shall mean for any Interest Period the offered rates
for
deposits in Dollars for a period equal to such Interest Period
appearing on the
Telerate Page 3750 as of 11:00 a.m. (London Time) on the day
that is two (2)
Business Days prior to the Interest Period.
"LIEN" shall mean any mortgage, pledge, security interest,
lien
(statutory or otherwise), charge, encumbrance, hypothecation,
assignment,
deposit arrangement, or other arrangement having the practical
effect of the
foregoing or any preference, priority or other security
agreement or
preferential arrangement of any kind or nature whatsoever
(including any
conditional sale or other title retention agreement and any
capital lease having
the same economic effect as any of the foregoing).
"LOAN DOCUMENTS" shall mean, collectively, this Agreement, the
Notes,
the LC Documents, all Notices of Borrowing, the Subsidiary
Guarantee Agreement,
the Indemnity and Contribution Agreement, the Security
Documents, and any and
all other instruments, agreements, documents and writings
executed in connection
with any of the foregoing.
"LOAN PARTIES" shall mean the Borrower and the Wholly Owned
Subsidiaries.
"LOANS" shall mean all Revolving Loans.
"MATERIAL ADVERSE EFFECT" shall mean, with respect to any event,
act,
condition or occurrence of whatever nature (including any
adverse determination
in any litigation, arbitration, or governmental investigation or
proceeding),
whether singularly or in conjunction with any other event or
events, act or
acts, condition or conditions, occurrence or occurrences whether
or not related,
a material adverse change in, or a material adverse effect on,
(i) the business,
results of operations, financial condition, assets, liabilities
or prospects of
the Borrower and of the Borrower and its Subsidiaries taken as a
whole, (ii) the
ability of the Loan Parties to perform any of their respective
obligations under
the Loan Documents, (iii) the rights and remedies of the
Administrative Agent,
the Issuing Bank, and the Lenders under any of the Loan
Documents or (iv) the
legality, validity or enforceability of any of the Loan
Documents.
"MATERIAL INDEBTEDNESS" shall mean Indebtedness (other than the
Loans
and Letters of Credit) or obligations in respect of one or more
Hedging
Agreements, of any one or more of the Borrower and the
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<PAGE>
Subsidiaries in an aggregate principal amount exceeding
$500,000. For purposes
of determining Material Indebtedness, the "principal amount" of
the obligations
of the Borrower or any Subsidiary in respect to any Hedging
Agreement at any
time shall be the maximum aggregate amount (giving effect to any
netting
agreements) that the Borrower or such Subsidiary would be
required to pay if
such Hedging Agreement were terminated at such time.
"MATURITY DATE" shall mean the earliest of (i) April 22, 2010,
(ii) the
date on which the Revolving Commitments are terminated pursuant
to Section 2.6,
and (iii) the date on which all amounts outstanding under this
Agreement have
been declared or have automatically become due and payable.
"MINORITY INTEREST" means that amount depicted from time to time
on
Borrower's most current consolidated balance sheet as "Minority
Interest" so
long as such is calculated on a consistent basis and in
accordance with GAAP.
"MOODY'S" shall mean Moody's Investors Service, Inc.
"MULTIEMPLOYER PLAN" shall have the meaning set forth in
Section
4001(a)(3) of ERISA.
"NOTES" shall mean the Revolving Credit Notes.
"NOTICE OF CONVERSION/CONTINUATION" shall mean the notice given
by the
Borrower to the Administrative Agent in respect of the
conversion or
continuation of an outstanding Borrowing as provided in Section
2.5(b) hereof.
"NOTICE OF BORROWING" shall have the meaning as set forth in
Section
2.3.
"OBLIGATIONS" shall mean all amounts owing by the Borrower to
the
Administrative Agent, the Issuing Bank, or any Lender pursuant
to or in
connection with this Agreement or any other Loan Document,
including without
limitation, all principal, interest (including any interest
accruing after the
filing of any petition in bankruptcy or the commencement of any
insolvency,
reorganization or like proceeding relating to the Borrower,
whether or not a
claim for post-filing or post-petition interest is allowed in
such proceeding),
all reimbursement obligations, fees, expenses, indemnification
and reimbursement
payments, costs and expenses (including all reasonable fees and
expenses of
counsel to the Administrative Agent and any Lender incurred
pursuant to this
Agreement or any other Loan Document), whether direct or
indirect, absolute or
contingent, liquidated or unliquidated, now existing or
hereafter arising
hereunder or thereunder, together with all renewals, extensions,
modifications
or refinancings thereof.
"OFF-BALANCE SHEET LIABILITIES" of any Person shall mean (i)
any
repurchase obligation or liability of such Person with respect
to accounts or
notes receivable sold by such Person, (ii) any liability of such
Person under
any sale and leaseback transactions which do not create a
liability on the
balance sheet of such Person, (iii) any liability of such Person
under any
so-called "synthetic" lease transaction or (iv) 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 balance
sheet of such Person.
"OTHER TAXES" shall mean any and all present or future stamp
or
documentary taxes or any other excise or property taxes, charges
or similar
levies arising from any payment made hereunder or from the
execution, delivery
or enforcement of, or otherwise with respect to, this Agreement
or any other
Loan Document, but specifically excluding all Excluded
Taxes.
"PARTICIPANT" shall have the meaning set forth in Section
10.4(c).
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<PAGE>
"PAYMENT OFFICE" shall mean the office of the Administrative
Agent
located at 25 Park Place, N.E., Atlanta, Georgia 30303, or such
other location
as to which the Administrative Agent shall have given written
notice to the
Borrower and the other Lenders.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
referred to
and defined in ERISA, and any successor entity performing
similar functions.
"PERMITTED ENCUMBRANCES" shall mean
(i) Liens imposed by law for taxes not yet due or which are
being contested in good faith by appropriate proceedings and
with
respect to which adequate reserves are being maintained in
accordance
with GAAP;
(ii) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other Liens imposed by
law
created in the ordinary course of business for amounts not yet
due or
which are being contested in good faith by appropriate
proceedings and
with respect to which adequate reserves are being maintained
in
accordance with GAAP;
(iii) pledges and deposits made in the ordinary course of
business in compliance with workers' compensation,
unemployment
insurance and other social security laws or regulations;
(iv) deposits to secure the performance of bids, trade
contracts, leases, statutory obligations, surety and appeal
bonds,
performance bonds and other obligations of a like nature, in
each case
in the ordinary course of business;
(v) judgment and attachment liens not giving rise to an
Event
of Default or Liens created by or existing from any litigation
or legal
proceeding that are currently being contested in good faith
by
appropriate proceedings and with respect to which adequate
reserves are
being maintained in accordance with GAAP; and
(vi) easements, zoning restrictions, restrictive covenants,
rights-of-way and similar encumbrances on real property imposed
by law
or arising in the ordinary course of business that do not secure
any
monetary obligations and do not materially detract from the
value of
the affected property or materially interfere with the ordinary
conduct
of business of the Borrower and its Subsidiaries taken as a
whole;
provided, that the term "Permitted Encumbrances" shall not
include any Lien
securing Indebtedness.
"PERMITTED INVESTMENTS" shall mean:
(i) direct obligations of, or obligations the principal of
and
interest on which are unconditionally guaranteed by, the United
States
(or by any agency thereof to the extent such obligations are
backed by
the full faith and credit of the United States), in each case
maturing
within one year from the date of acquisition thereof;
(ii) commercial paper having the highest rating, at the time
of acquisition thereof, of S&P or Moody's and in either case
maturing
within six months from the date of acquisition thereof;
(iii) certificates of deposit, bankers' acceptances and time
deposits maturing within 180 days of the date of acquisition
thereof
issued or guaranteed by or placed with, and money market
deposit
accounts issued or offered by, any domestic office of any
commercial
bank organized under the
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<PAGE>
laws of the United States or any state thereof which has a
combined
capital and surplus and undivided profits of not less than
$1,000,000,000;
(iv) fully collateralized repurchase agreements with a term
of
not more than 30 days for securities described in clause (i)
above and
entered into with a financial institution satisfying the
criteria
described in clause (iii) above;
(v) mutual funds investing solely in any one or more of the
Permitted Investments described in clauses (i) through (iv)
above; and
(vi) funds held in the grantor trust properly established by
Borrower (which shall be subject to the claims of Lenders and
general
creditors of Borrower) for the non-qualified deferred
compensation plan
adopted by Borrower entitled the AmSurg Supplemental
Executive
Retirement Savings Plan (the "RABBI TRUST"), provided that the
funds in
the Rabbi Trust must be invested solely in any one or more of
the
Permitted Investments described in clauses (i) through (v)
above.
"PERSON" shall mean any individual, partnership, firm,
corporation,
association, joint venture, limited liability company, trust or
other entity, or
any Governmental Authority.
"PLAN" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of
ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which
the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would
under Section
4069 of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of
ERISA.
"PRO RATA SHARE" shall mean, with respect to any Lender at any
time, a
percentage, the numerator of which shall be the sum of such
Lender's Revolving
Commitment and the denominator of which shall be the sum of all
Lenders'
Revolving Commitments; or if the Revolving Commitments have been
terminated or
expired or if the Loans have been declared to be due and
payable, a percentage,
the numerator of which shall be the sum of such Lender's
Revolving Credit
Exposure and the denominator of which shall be the sum of the
aggregate
Revolving Credit Exposure.
"REGULATION D" shall mean Regulation D of the Board of Governors
of the
Federal Reserve System, as the same may be in effect from time
to time, and any
successor regulations.
"RELATED PARTIES" shall mean, with respect to any specified
Person,
such Person's Affiliates and the respective directors, officers,
employees,
agents and advisors of such Person and such Person's
Affiliates.
"RELEASE" means any release, spill, emission, leaking,
dumping,
injection, pouring, deposit, disposal, discharge, dispersal,
leaching or
migration of any Hazardous Materials into the environment
(including ambient
air, surface water, groundwater, land surface or subsurface
strata) or within
any building, structure, facility or fixture.
"REQUIRED LENDERS" shall mean, at any time, Lenders holding 51%
or more
of the aggregate outstanding Revolving Credit Exposures at such
time; or if the
Lenders have no Revolving Credit Exposure, then Lenders holding
51% or more of
the Aggregate Revolving Commitments.
"RESPONSIBLE OFFICER" shall mean any of the president, the
chief
executive officer, the chief operating officer, the chief
financial officer, the
treasurer or a vice president of the Borrower or such other
representative of
the Borrower as may be designated in writing by any one of the
foregoing with
the consent of the Administrative Agent; and, with respect to
the financial
covenants only, the chief financial officer or the treasurer of
the Borrower.
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"RESTRICTED PAYMENT" shall have the meaning set forth in Section
7.5.
"REVOLVING COMMITMENT" shall mean, with respect to each Lender,
the
obligation of such Lender to make Revolving Loans to the
Borrower and to
participate in Letters of Credit in an aggregate principal
amount not exceeding
the amount set forth with respect to such Lender on the Schedule
1.1, or in the
case of a Person becoming a Lender after the Closing Date, the
amount of the
assigned "Revolving Commitment" as provided in the Assignment
and Acceptance
Agreement executed by such Person as an assignee, as the same
may be changed
pursuant to terms hereof.
"REVOLVING CREDIT EXPOSURE" shall mean, with respect to any
Lender at
any time, the sum of the outstanding principal amount of such
Lender's Revolving
Loans, and such Lender's LC Exposure.
"REVOLVING CREDIT NOTE" shall mean a promissory note of the
Borrower
payable to the order of a Lender in the principal amount of such
Lender's
Revolving Commitment, in substantially the form of Exhibit
A.
"REVOLVING LOAN" shall mean a loan made by a Lender to the
Borrower
under its Revolving Commitment, which may either be a Base Rate
Loan or a
Eurodollar Loan.
"S&P" shall mean Standard & Poor's.
"SECURITY DOCUMENTS" shall mean the 2000 Assignment and
Security
Agreements, the 2000 Stock Pledge Agreement, the 2000 Pledge
Agreement, the 2005
Master Amendment to Security Documents, and the security
documents executed
after May 5, 2000 in accordance with Sections 5.10 and 5.11 of
the 2000 Credit
Agreement (all as described in more detail in the 2005 Master
Amendment to
Security Documents), along with all UCC financing statements
filed in connection
with any of the foregoing and any additional documentation
delivered pursuant to
or executed in connection with the foregoing. On a going forward
basis, the
defined term "Security Documents" shall include all security
documents delivered
in accordance with Sections 5.10 and 5.11 hereof, along with all
additional
documentation delivered pursuant to or executed in connection
with such security
documents.
"SUBSIDIARY" shall mean any corporation, partnership,
limited
partnership, joint venture, limited liability company,
association or other
entity of which securities or other ownership interests
representing more than
50% of the equity or more than 50% of the ordinary voting power,
or in the case
of a partnership, more than 50% of the general partnership
interests are owned,
Controlled or held by Borrower, and shall include the Wholly
Owned Subsidiaries;
provided that AmSurg-Las Vegas, LLC shall not be included within
this definition
of Subsidiary.
"SUBSIDIARY GUARANTEE AGREEMENT" shall mean that certain Amended
and
Restated Subsidiary Guarantee Agreement of even date herewith,
substantially in
the form of Exhibit C, made by the Wholly Owned Subsidiaries in
favor of the
Administrative Agent for the benefit of the Lenders.
"TAXES" shall mean any and all present or future taxes,
levies,
imposts, duties, deductions, charges or withholdings imposed by
any Governmental
Authority.
"THIRD PARTY NOTES" shall mean promissory notes and similar
instruments
issued by any Person and held by the Borrower or any Wholly
Owned Subsidiary,
including, without limitation, promissory notes issued by the
purchaser of any
asset sold by the Borrower or any Wholly Owned Subsidiary.
"TYPE" shall mean the distinction between a Base Rate Loan or
Borrowing
and a Eurodollar Loan or Borrowing.
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"WHOLLY OWNED SUBSIDIARY" shall mean any corporation,
partnership,
joint venture, limited liability company, association or other
entity of which
securities or other ownership interests representing 100% of the
equity or 100%
of the ordinary voting power, or in the case of a partnership,
more 100% of the
general partnership interests are owned, Controlled or held by
Borrower;
provided that AmSurg-Las Vegas, LLC shall not be included within
this definition
of Wholly Owned Subsidiary.
"WITHDRAWAL LIABILITY" shall mean liability to a Multiemployer
Plan as
a result of a complete or partial withdrawal from such
Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of
ERISA.
SECTION 1.2 Accounting Terms and Determination. Unless
otherwise
defined or specified herein, all accounting terms used herein
shall be
interpreted, all accounting determinations hereunder shall be
made, and all
financial statements required to be delivered hereunder shall be
prepared, in
accordance with GAAP as in effect from time to time, applied on
a basis
consistent (except for such changes approved by the Borrower's
independent
public accountants) with the most recent audited consolidated
financial
statement of the Borrower delivered pursuant to Section 5.1(a);
provided, that
if the Borrower notifies the Administrative Agent that the
Borrower wishes to
amend any covenant in Article VI to eliminate the effect of any
change in GAAP
on the operation of such covenant (or if the Administrative
Agent notifies the
Borrower that the Required Lenders wish to amend Article VI for
such purpose),
then the Borrower's compliance with such covenant shall be
determined on the
basis of GAAP in effect immediately before the relevant change
in GAAP became
effective, until either such notice is withdrawn or such
covenant is amended in
a manner satisfactory to the Borrower and the Required
Lenders.
SECTION 1.3 Terms Generally. The definitions of terms herein
shall
apply equally to the singular and plural forms of the terms
defined. Whenever
the context may require, any pronoun shall include the
corresponding masculine,
feminine and neuter forms. The words "include", "includes" and
"including" shall
be deemed to be followed by the phrase "without limitation". The
word "will"
shall be construed to have the same meaning and effect as the
word "shall". In
the computation of periods of time from a specified date to a
later specified
date, the word "from" means "from and including" and the word
"to" means "to but
excluding". Unless the context requires otherwise (i) any
definition of or
reference to any agreement, instrument or other document herein
shall be
construed as referring to such agreement, instrument or other
document as it was
originally executed or as it may from time to time be amended,
supplemented or
otherwise modified (subject to any restrictions on such
amendments, supplements
or modifications set forth herein), (ii) any reference herein to
any Person
shall be construed to include such Person's successors and
permitted assigns,
(iii) the words "hereof", "herein" and "hereunder" and words of
similar import
shall be construed to refer to this Agreement as a whole and not
to any
particular provision hereof, (iv) all references to Articles,
Sections, Exhibits
and Schedules shall be construed to refer to Articles, Sections,
Exhibits and
Schedules to this Agreement and (v) all references to a specific
time shall be
construed to refer to the time in the city and state of the
Administrative
Agent's principal office, unless otherwise indicated.
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENTS
SECTION 2.1 General Description of Facility.
(a) Facility. Subject to and upon the terms and conditions
herein set forth, (i) the Lenders hereby establish in favor of
the
Borrower a revolving credit facility pursuant to which the
Lenders
severally agree (to the extent of each Lender's Pro Rata Share
up to
such Lender's Revolving Commitment) to make Revolving Loans to
the
Borrower in accordance with Section 2.2, (ii) the Issuing Bank
agrees
to issue Letters of Credit in accordance with Section 2.20; and
(iii)
each Lender agrees to purchase a participation interest in the
Letters
of Credit pursuant to the terms and conditions
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contained herein; provided that in no event shall the
aggregate
principal amount of all outstanding Revolving Loans and the LC
Exposure
exceed at any time the Aggregate Revolving Commitments from time
to
time in effect.
(b) Collateral and Guarantees. The Obligations described
herein shall be secured by the following:
(i) a lien and perfected security interest in all of
the property and collateral described in the Security
Documents (including without limitation future Security
Documents delivered pursuant to Sections 5.10 and 5.11
hereof), as amended from time to time;
(ii) all deposit accounts, monies, and items of value
of Borrower or the Wholly Owned Subsidiaries now or
hereafter
placed in possession of Administrative Agent or any of the
Lenders;
(iii) all other Property of Borrower presently and/or
subsequently pledged or delivered to Administrative Agent to
secure all or a portion of the Indebtedness; and
(iv) the Subsidiary Guarantee Agreement, as amended
from time to time.
SECTION 2.2 Revolving Loans. Subject to the terms and conditions
set
forth herein, each Lender severally agrees to make Revolving
Loans to the
Borrower, from time to time during the Availability Period, in
an aggregate
principal amount outstanding at any time that will not result in
(a) such
Lender's Revolving Credit Exposure exceeding such Lender's
Revolving Commitment
or (b) the sum of the aggregate Revolving Credit Exposures of
all Lenders
exceeding the Aggregate Revolving Commitments. During the
Availability Period,
the Borrower shall be entitled to borrow, repay and reborrow
Revolving Loans in
accordance with the terms and conditions of this Agreement;
provided that the
Borrower may not borrow or reborrow should there exist a Default
or Event of
Default; and provided that at no time shall there be more than
six (6)
Eurodollar Loans outstanding.
SECTION 2.3 Procedure for Borrowings. The Borrower shall give
the
Administrative Agent written notice (or telephonic notice
promptly confirmed in
writing) of each Borrowing substantially in the form of Schedule
2.3 attached
hereto (a "Notice of Borrowing") (x) prior to 11:00 a.m.
(Eastern Time) on the
requested date of each Base Rate Borrowing and (y) prior to
11:00 a.m. (Eastern
Time) three (3) Business Days prior to the requested date of
each Eurodollar
Borrowing. Each Notice of Borrowing shall be irrevocable and
shall specify: (i)
the aggregate principal amount of such Borrowing, (ii) the date
of such
Borrowing (which shall be a Business Day), and (iii) in the case
of a Eurodollar
Borrowing, the duration of the initial Interest Period
applicable thereto
(subject to the provisions of the definition of Interest
Period). Each Borrowing
shall consist entirely of Base Rate Loans or Eurodollar Loans,
as the Borrower
may request. The aggregate principal amount of each Eurodollar
Borrowing shall
be not less than $500,000 and in integral multiples of $100,000,
and the
aggregate principal amount of each Base Rate Borrowing shall not
be less than
$100,000 and in integral multiples of $100,000. At no time shall
the total
number of Eurodollar Borrowings outstanding at any time exceed
six (6). Promptly
following the receipt of a Notice of Borrowing in accordance
herewith, the
Administrative Agent shall advise each Lender of the details
thereof and the
amount of such Lender's Revolving Loan to be made as part of the
requested
Borrowing.
SECTION 2.4 Funding of Borrowings.
(a) Each Lender will make available each Loan to be made by
it
hereunder on the proposed date thereof by wire transfer in
immediately
available funds by 1:00 p.m. (Eastern Time) to the
Administrative Agent
at the Payment Office. The Administrative Agent will make such
Loans
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available to the Borrower by promptly crediting the amounts that
it
receives, in like funds by the close of business on such
proposed date,
to an account maintained by the Borrower with the Administrative
Agent
or at the Borrower's option, by effecting a wire transfer of
such
amounts to an account designated by the Borrower to the
Administrative
Agent.
(b) Unless the Administrative Agent shall have been notified
by any Lender prior to 5:00 p.m. (Eastern Time) one (1) Business
Day
prior to the date of a Borrowing in which such Lender is
participating
that such Lender will not make available to the Administrative
Agent
such Lender's share of such Borrowing, the Administrative Agent
may
assume that such Lender has made such amount available to
the
Administrative Agent on such date, and the Administrative Agent,
in
reliance on such assumption, may make available to the Borrower
on such
date a corresponding amount. If such corresponding amount is not
in
fact made available to the Administrative Agent by such Lender
on the
date of such Borrowing, the Administrative Agent shall be
entitled to
recover such corresponding amount on demand from such Lender
together
with interest at the Federal Funds Rate for up to two (2) days
and
thereafter at the rate specified for such Borrowing. If such
Lender
does not pay such corresponding amount forthwith upon the
Administrative Agent's demand therefore, the Administrative
Agent shall
promptly notify the Borrower, and the Borrower shall immediately
pay
such corresponding amount to the Administrative Agent together
with
interest at the rate specified for such Borrowing. Nothing in
this
subsection shall be deemed to relieve any Lender from its
obligation to
fund its Pro Rata Share of any Borrowing hereunder or to
prejudice any
rights which the Borrower may have against any Lender as a
result of
any default by such Lender hereunder.
(c) All Borrowings shall be made by the Lenders on the basis
of their respective Pro Rata Shares. No Lender shall be
responsible for
any default by any other Lender in its obligations hereunder,
and each
Lender shall be obligated to make its Loans provided to be made
by it
hereunder, regardless of the failure of any other Lender to make
its
Loans hereunder.
SECTION 2.5 Interest Elections.
(a) Each Borrowing shall be either a Eurodollar Borrowing or
a
Base Rate Borrowing, as specified by Borrower in the applicable
Notice
of Borrowing, and in the case of a Eurodollar Borrowing, shall
have an
initial Interest Period as specified in such Notice of
Borrowing.
Thereafter, the Borrower may elect to convert such Borrowing,
and in
the case of a Eurodollar Borrowing, may elect Interest
Periods
therefore, all as provided in this Section. The Borrower may
elect
different options with respect to different portions of the
affected
Borrowing, in which case each such portion shall be allocated
ratably
among the Lenders holding Loans comprising such Borrowing, and
the
Loans comprising each such portion shall be considered a
separate
Borrowing.
(b) To make an election pursuant to this Section, the
Borrower
shall give the Administrative Agent prior written notice in the
form of
Schedule 2.5 (or telephonic notice promptly confirmed in
writing) of
each Borrowing (a "Notice of Conversion/Continuation") that is
to be
converted or continued, as the case may be, (x) prior to 11:00
a.m.
(Eastern Time) on the requested date of a conversion into a Base
Rate
Borrowing and (y) prior to 11:00 a.m. (Eastern Time) three (3)
Business
Days prior to a continuation of or conversion into a
Eurodollar
Borrowing. Each such Notice of Conversion/Continuation shall
be
irrevocable and shall specify (i) the Borrowing to which such
Notice of
Continuation/Conversion applies and if different options are
being
elected with respect to different portions thereof, the
portions
thereof that are to be allocated to each resulting Borrowing (in
which
case the information to be specified pursuant to clauses (iii)
and (iv)
shall be specified for each resulting Borrowing); (ii) the
effective
date of the election made pursuant to such Notice of
Continuation/Conversion, which shall be a Business Day, (iii)
whether
the resulting Borrowing is to be a Base Rate Borrowing or a
Eurodollar
Borrowing; and (iv) if the resulting Borrowing is to be a
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Eurodollar Borrowing, the Interest Period applicable thereto
after
giving effect to such election, which shall be a period
contemplated by
the definition of "Interest Period". If any such Notice of
Continuation/Conversion requests a Eurodollar Borrowing but does
not
specify an Interest Period, the Borrower shall be deemed to
have
selected an Interest Period of one (1) month. The principal
amount of
any resulting Borrowing shall satisfy the minimum borrowing
amount for
Eurodollar Borrowings and Base Rate Borrowings set forth in
Section
2.3.
(c) If, on the expiration of any Interest Period in respect
of
any Eurodollar Borrowing, the Borrower shall have failed to
deliver a
Notice of Conversion/ Continuation, then, unless such Borrowing
is
repaid as provided herein, the Borrower shall be deemed to have
elected
to convert such Borrowing to a Base Rate Borrowing. No Borrowing
may be
converted into, or continued as, a Eurodollar Borrowing if a
Default or
an Event of Default exists. No conversion of any Eurodollar
Loans shall
be permitted except on the last day of the Interest Period in
respect
thereof.
(d) Upon receipt of any Notice of Conversion/Continuation,
the
Administrative Agent shall promptly notify each Lender of the
details
thereof and of such Lender's portion of each resulting
Borrowing.
SECTION 2.6 Optional and Mandatory Reductions and Termination
of
Commitments.
(a) Unless previously terminated, all Revolving Commitments
shall terminate on the Maturity Date.
(b) Upon at least three (3) Business Days' prior written
notice (or telephonic notice promptly confirmed in writing) to
the
Administrative Agent (which notice shall be irrevocable), the
Borrower
may reduce the Aggregate Revolving Commitments in part or
terminate the
Aggregate Revolving Commitments in whole; provided that (i) any
partial
reduction shall apply to reduce proportionately and permanently
the
Revolving Commitment of each Lender, (ii) any partial
reduction
pursuant to this Section 2.6 shall be in an amount of at
least
$1,000,000 and any larger multiple of $500,000, and (iii) no
such
reduction shall be permitted which would reduce the Aggregate
Revolving
Commitments to an amount less than the outstanding Revolving
Credit
Exposures of all Lenders. Any such reduction in the Aggregate
Revolving
Commitments shall result in a proportionate reduction (rounded
to the
next lowest integral multiple of $100,000) in the LC
Commitment.
(c) The Borrower shall reduce the Aggregate Revolving
Commitments by an amount equal to fifty percent (50%) from the
net
proceeds received by the Borrower and any of its Subsidiaries
from the
sale or other disposition by the Borrower and any of its
Subsidiaries
of any assets in which $15,000,000 or more in consideration is
given or
exchanged or the fair market value of such assets exceeds
$15,000,000,
provided that such reduction shall be made in a manner
calculated to
the greatest extent possible to avoid the Borrower's having
liability
under Section 2.16 hereunder. For the purpose hereof, the
consideration
given or exchanged shall include the sum of (i) all cash paid
and/or
Indebtedness assumed, plus (ii) the principal amount of any
promissory
notes given, plus (iii) the value of any stock or other property
given
or transferred in connection therewith.
SECTION 2.7 Repayment of Loans. The outstanding principal amount
of all
Revolving Loans shall be due and payable (together with accrued
and unpaid
interest thereon) on the Maturity Date.
SECTION 2.8 Evidence of Indebtedness.
(a) Each Lender shall maintain in accordance with its usual
practice appropriate records evidencing the indebtedness of
the
Borrower to such Lender resulting from each Loan made by
such
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Lender from time to time, including the amounts of principal
and
interest payable thereon and paid to such Lender from time to
time
under this Agreement. The Administrative Agent shall
maintain
appropriate records in which shall be recorded (iv) the
Revolving
Commitment of each Lender, (v) the amount of each Loan made
hereunder
by each Lender, along with the Type and the Interest Period
applicable
thereto, (vi) the date of each continuation thereof pursuant to
Section
2.5, (vii) the date of each conversion of all or a portion
thereof
pursuant to Section 2.5, (viii) the date and amount of any
principal or
interest due and payable or to become due and payable from the
Borrower
to each Lender hereunder in respect of such Loans and (ix) both
the
date and amount of any sum received by the Administrative
Agent
hereunder from the Borrower in respect of the Loans and each
Lender's
Pro Rata Share thereof. The entries made in such records shall
be prima
facie evidence of the existence and amounts of the obligations
of the
Borrower therein recorded; provided, that the failure or delay
of any
Lender or the Administrative Agent in maintaining or making
entries
into any such record or any error therein shall not in any
manner
affect the obligation of the Borrower to repay the Loans
(both
principal and unpaid accrued interest) of such Lender in
accordance
with the terms of this Agreement.
(b) The Borrower agrees that it will execute and deliver to
each Lender a Revolving Credit Note payable to the order of
such
Lender.
SECTION 2.9 Prepayments.
(a) Optional Prepayments. The Borrower shall have the right
at
any time and from time to time to prepay any Borrowing, in whole
or in
part, without premium or penalty, by giving irrevocable written
notice
(or telephonic notice promptly confirmed in writing) to the
Administrative Agent no later than three (3) Business Days prior
to any
such prepayment. Each such notice shall be irrevocable and
shall
specify the proposed date of such prepayment and the principal
amount
of each Borrowing or portion thereof to be prepaid. Upon receipt
of any
such notice, the Administrative Agent shall promptly notify
each
affected Lender of the contents thereof and of such Lender's Pro
Rata
Share of any such prepayment. If such notice is given, the
aggregate
amount specified in such notice shall be due and payable on the
date
designated in such notice, together with accrued interest to
such date
on the amount so prepaid in accordance with Section 2.10;
provided,
that if a Eurodollar Borrowing is prepaid on a date other than
the last
day of an Interest Period applicable thereto, the Borrower shall
also
pay all amounts required pursuant to Section 2.16. Each
partial
prepayment of any Loan shall not be less than $500,000 or a
larger
multiple of $100,000. Each prepayment of a Borrowing shall be
applied
ratably to the Loans comprising such Borrowing.
(b) Mandatory Prepayments. The Borrower shall be required to
make mandatory principal prepayments of the Revolving Loans in
an
amount equal to (i) 100% of the net cash proceeds in excess
of
$2,000,000 received by the Borrower and any of its Subsidiaries
from
any sale or other disposition by the Borrower and any of its
Subsidiaries of any assets, and (ii) 100% of net cash proceeds
received
from the issuance, sale, or disposition of the Borrower's
capital stock
(common, preferred, or special), any equity offering or debt
issuance.
SECTION 2.10 Interest on Loans.
(a) The Borrower shall pay interest on each Base Rate Loan
at
the Base Rate in effect from time to time and on each Eurodollar
Loan
at the Adjusted LIBO Rate for the applicable Interest Period in
effect
for such Loan, plus, in each case, the Applicable Margin in
effect from
time to time.
(b) While an Event of Default exists or after acceleration,
at
the option of the Required Lenders, the Borrower shall pay
interest
("Default Interest"): (i) with respect to all Eurodollar Loans
at the
rate otherwise applicable for the then-current Interest Period
plus an
additional 2% per annum until
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the last day of such Interest Period, and thereafter, at the
Base Rate,
plus the Applicable Margin plus two percent (2%) per annum, and
(ii)
with respect to Base Rate Loans, at the Base Rate plus the
Applicable
Margin, plus two percent (2%) per annum.
(c) Interest on the principal amount of all Loans shall
accrue
from and including the date such Loans are made to but excluding
the
date of any repayment thereof. Interest on all outstanding Base
Rate
Loans shall be payable monthly in arrears on the last day of
each
calendar month and on the Maturity Date. Interest on all
outstanding
Eurodollar Loans shall be payable on the last day of each
Interest
Period applicable thereto, and, in the case of any Eurodollar
Loans
having an Interest Period in excess of three months or 90
days,
respectively, on each day which occurs every three months or 90
days,
as the case may be, after the initial date of such Interest
Period, and
on the Maturity Date. Interest on any Loan which is converted or
which
is repaid or prepaid shall be payable on the date of such
conversion or
on the date of any such repayment or prepayment (on the amount
repaid
or prepaid) thereof. All Default Interest shall be payable on
demand.
Borrower must make all interest payments prior to 1:00 p.m.
(Eastern
Time) on the applicable due date in immediately available funds,
free
and clear of all defenses, set-offs, counterclaims, or
withholdings or
deductions for taxes.
(d) The Administrative Agent shall determine each interest
rate applicable to the Loans hereunder and shall promptly notify
the
Borrower and the Lenders of such rate in writing (or by
telephone,
promptly confirmed in writing). Any such determination shall
be
conclusive and binding for all purposes, absent manifest
error.
SECTION 2.11 Fees.
(a) Fee Letter. On or before the Closing Date, Borrower
shall
pay to the Administrative Agent and Arranger those fees set
forth in
that certain Fee Letter dated March 21, 2005 and executed by
Borrower,
Administrative Agent and Arranger.
(b) Commitment Fee. The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a commitment
fee
(the "COMMITMENT FEE"), which shall accrue at the Applicable
Margin for
Commitment Fee on the average daily, unused portion of the
Revolving
Commitment of such Lender during the Availability Period.
Accrued
Commitment Fees shall be payable to the Administrative Agent
(for
distribution to the Lenders) in arrears on the last day of each
March,
June, September and December of each year and on the Maturity
Date,
commencing on the first such date after the Closing Date.
The
Commitment Fee shall be calculated on the basis of a year of
360-days
for the actual number of days in each year. For the purpose of
this
paragraph, the "unused portion of the Revolving Commitment"
shall mean
the aggregate Revolving Commitment less an amount equal to
all
outstanding Revolving Loans, less an amount equal to the LC
Exposure.
(c) Letter of Credit Fees. The Borrower agrees to pay (i) to
the Administrative Agent, for the account of each Lender, a
letter of
credit fee (the "LETTER OF CREDIT FEE") with respect to its
participation in each Letter of Credit, which shall accrue at
the
Applicable Margin for Eurodollar Loans then in effect on the
average
daily amount of such Lender's LC Exposure (excluding any
portion
thereof attributable to unreimbursed LC Disbursements)
attributable to
such Letter of Credit during the period from and including the
date of
issuance of such Letter of Credit to but excluding the date on
which
such Letter expires or is drawn in full (including without
limitation
any LC Exposure that remains outstanding after the Maturity
Date) and
(ii) to the Issuing Bank for its own account a facing fee, which
shall
accrue at the rate of 12.5 basis points per annum on the average
daily
amount of the LC Exposure (excluding any portion thereof
attributable
to unreimbursed LC Disbursements) during the Availability Period
(or
until the date that such Letter of Credit is irrevocably
canceled,
whichever is
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later), as well as the Issuing Bank's standard fees with respect
to
issuance, amendment, renewal or extension of any Letter of
Credit or
processing of drawings thereunder.
SECTION 2.12 Computation of Interest and Fees.
(a) Fees and Eurodollar Loans. All computations of interest
on
Eurodollar Loans and fees hereunder shall be made on the basis
of a
year of 360 days for the actual number of days (including the
first day
but excluding the last day) occurring in the period for which
such
interest or fees are payable (to the extent computed on the
basis of
days elapsed). Each determination by the Administrative Agent of
an
interest amount or fee hereunder shall be made in good faith
and,
except for manifest error, shall be final, conclusive and
binding for
all purposes.
(b) Base Rate Loans. All computations of interest on Base
Rate
Loans hereunder shall be made on the basis of a year of 365 days
for
the actual number of days (including the first day but excluding
the
last day) occurring in the period for which such interest is
payable
(to the extent computed on the basis of days elapsed). Each
determination by the Administrative Agent of an interest
amount
hereunder shall be made in good faith and, except for manifest
error,
shall be final, conclusive and binding for all purposes.
SECTION 2.13 Inability to Determine Interest Rates. If prior to
the
commencement of any Interest Period for any Eurodollar
Borrowing,
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower)
that,
by reason of circumstances affecting the relevant interbank
market,
adequate means do not exist for ascertaining LIBOR for such
Interest
Period, or
(b) the Administrative Agent shall have received notice from
the Required Lenders that the Adjusted LIBO Rate does not
adequately
and fairly reflect the cost to such Lenders (or Lender, as the
case may
be) of making, funding or maintaining their (or its, as the case
may
be) Eurodollar Loans for such Interest Period,
the Administrative Agent shall give written notice (or
telephonic notice,
promptly confirmed in writing) to the Borrower and to the
Lenders as soon as
practicable thereafter. In the case of Eurodollar Loans, until
the
Administrative Agent shall notify the Borrower and the Lenders
that the
circumstances giving rise to such notice no longer exist, (i)
the obligations of
the Lenders to make Eurodollar Loans or to continue or convert
outstanding Loans
as or into Eurodollar Loans shall be suspended and (ii) all such
affected Loans
shall be converted into Base Rate Loans on the last day of the
then current
Interest Period applicable thereto unless the Borrower prepays
such Loans in
accordance with this Agreement. Unless the Borrower notifies the
Administrative
Agent at least one (1) Business Day before the date of any
Eurodollar Borrowing
for which a Notice of Borrowing has previously been given that
it elects not to
borrow on such date, then such Borrowing shall be made as a Base
Rate Borrowing.
SECTION 2.14 Illegality. If any Change in Law shall make it
unlawful or
impossible for any Lender to make, maintain or fund any
Eurodollar Loan and such
Lender shall so notify the Administrative Agent, the
Administrative Agent shall
promptly give notice thereof to the Borrower and the other
Lenders, whereupon
until such Lender notifies the Administrative Agent and the
Borrower that the
circumstances giving rise to such suspension no longer exist,
the obligation of
such Lender to make Eurodollar Loans, or to continue or convert
outstanding
Loans as or into Eurodollar Loans, shall be suspended. In the
case of the making
of a Eurodollar Borrowing, such Lender's Revolving Loan shall be
made as a Base
Rate Loan as part of the same Borrowing for the same Interest
Period and if the
affected Eurodollar Loan is then outstanding, such Loan shall be
converted to a
Base Rate Loan either (i) on the last day of the then current
Interest Period
applicable to such
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Eurodollar Loan if such Lender may lawfully continue to maintain
such Loan to
such date or (ii) immediately if such Lender shall determine
that it may not
lawfully continue to maintain such Eurodollar Loan to such date.
Notwithstanding
the foregoing, the affected Lender shall, prior to giving such
notice to the
Administrative Agent, designate a different Applicable Lending
Office if such
designation would avoid the need for giving such notice and if
such designation
would not otherwise be disadvantageous to such Lender in the
good faith exercise
of its discretion.
SECTION 2.15 Increased Costs.
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve,
special deposit or similar requirement that is not otherwise
included in the determination of the Adjusted LIBO Rate
hereunder against assets of, deposits with or for the
account
of, or credit extended by, any Lender (except any such
reserve
requirement reflected in the Adjusted LIBO Rate); or
(ii) impose on any Lender or the eurodollar interbank
market any other condition affecting this Agreement, or any
Letter of Credit, or any Eurodollar Loans made by such
Lender;
and the result of the foregoing is to increase the cost to such
Lender of
making, converting into, continuing or maintaining a Eurodollar
Loan or to
increase the cost to such Lender to reduce the amount received
or receivable by
such Lender hereunder (whether of principal, interest or any
other amount), then
the Borrower shall promptly pay, upon written notice from and
demand by such
Lender on the Borrower (with a copy of such notice and demand to
the
Administrative Agent), to the Administrative Agent for the
account of such
Lender, within five (5) Business Days after the date of such
notice and demand,
additional amount or amounts sufficient to compensate such
Lender for such
additional costs incurred or reduction suffered.
(b) If any Lender shall have determined that on or after the
date of this Agreement any Change in Law regarding capital
requirements
has or would have the effect of reducing the rate of return on
such
Lender's capital (or on the capital of such Lender's parent
corporation) as a consequence of its obligations hereunder to a
level
below that which such Lender or such Lender's parent corporation
could
have achieved but for such Change in Law (taking into
consideration
such Lender's policies or the policies of such Lender's
parent
corporation with respect to capital adequacy) then, from time to
time,
within ten (10) Business Days after receipt by the Borrower of
written
demand by such Lender (with a copy thereof to the
Administrative
Agent), the Borrower shall pay to such Lender such additional
amounts
as will compensate such Lender or such Lender's parent
corporation for
any such reduction suffered.
(c) A certificate of a Lender setting forth the amount or
amounts necessary to compensate such Lender or such Lender's
parent
corporation, as the case may be, specified in paragraph (a) or
(b) of
this Section shall be delivered to the Borrower (with a copy to
the
Administrative Agent) and shall be conclusive, absent manifest
error.
The Borrower shall pay any such Lender such amount or amounts
within 10
days after receipt thereof.
(d) Failure or delay on the part of any Lender to demand
compensation pursuant to this Section shall not constitute a
waiver of
such Lender's right to demand such compensation.
SECTION 2.16 Funding Indemnity. In the event of (a) the payment
of any
principal of a Eurodollar Loan other than on the last day of the
Interest Period
applicable thereto (including as a result of an Event of
Default), (b) the
conversion or continuation of a Eurodollar Loan other than on
the last day of
the Interest
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Period applicable thereto, or (c) the failure by the Borrower to
borrow, repay,
convert or continue any Eurodollar Loan on the date specified in
any applicable
notice (regardless of whether such notice is withdrawn or
revoked), then, in any
such event, the Borrower shall compensate each Lender, within
five (5) Business
Days after written demand from such Lender, for any loss, cost
or expense
attributable to such event. In the case of a Eurodollar Loan,
such loss, cost or
expense shall be deemed to include an amount determined by such
Lender to be the
excess, if any, of (A) the amount of interest that would have
accrued on the
principal amount of such Eurodollar Loan if such event had not
occurred at the
Adjusted LIBO Rate applicable to such Eurodollar Loan for the
period from the
date of such event to the last day of the then current Interest
Period therefore
(or in the case of a failure to borrow, convert or continue, for
the period that
would have been the Interest Period for such Eurodollar Loan)
over (B) the
amount of interest that would accrue on the principal amount of
such Eurodollar
Loan for the same period if the Adjusted LIBO Rate were set on
the date such
Eurodollar Loan was prepaid or converted or the date on which
the Borrower
failed to borrow, convert or continue such Eurodollar Loan. A
certificate as to
any additional amount payable under this Section 2.16 submitted
to the Borrower
by any Lender shall be conclusive, absent manifest error.
SECTION 2.17 Taxes.
(a) Any and all payments by or on account of any obligation
of
the Borrower hereunder shall be made free and clear of and
without
deduction for any Indemnified Taxes or Other Taxes; provided,
that if
the Borrower shall be required to deduct any Indemnified Taxes
or Other
Taxes from such payments, then (i) the sum payable shall be
increased
as necessary so that after making all required deductions
(including
deductions applicable to additional sums payable under this
Section)
the Administrative Agent, the Issuing Bank, or any Lender shall
receive
an amount equal to the sum it would have received had no
such
deductions been made, (ii) the Borrower shall make such
deductions and
(iii) the Borrower shall pay the full amount deducted to the
relevant
Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to
the
relevant Governmental Authority in accordance with applicable
law.
(c) The Borrower shall indemnify the Administrative Agent,
the
Issuing Bank, and each Lender within five (5) Business Days
after
written demand therefore, for the full amount of any Indemnified
Taxes
or Other Taxes paid by the Administrative Agent, the Issuing
Bank, or
such Lender on or with respect to any payment by or on account
of any
obligation of the Borrower hereunder (including Indemnified
Taxes or
Other Taxes imposed or asserted on or attributable to amounts
payable
under this Section) and any penalties, interest and reasonable
expenses
arising therefrom or with respect thereto, whether or not
such
Indemnified Taxes or Other Taxes were correctly or legally
imposed or
asserted by the relevant Governmental Authority. A certificate
as to
the amount of such payment or liability delivered to the
Borrower by a
Lender, the Issuing Bank, or by the Administrative Agent on its
own
behalf or on behalf of a Lender or the Issuing Bank, shall
be
conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by the Borrower to a Governmental
Authority, the
Borrower shall deliver to the Administrative Agent the original
or a
certified copy of a receipt issued by such Governmental
Authority
evidencing such payment, a copy of the return reporting such
payment or
other evidence of such payment reasonably satisfactory to
the
Administrative Agent.
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SECTION 2.18 Payments Generally; Pro Rata Treatment; Sharing
of
Set-offs.
(a) The Borrower shall make each payment required to be made
by it hereunder (whether of principal, interest, or fees or
reimbursement of LC Disbursements or of amounts payable under
Section
2.15, 2.16 or 2.17, or otherwise) prior to 1:00 p.m. (Eastern
Time), on
the date when due, in immediately available funds, without
set-off or
counterclaim. Any amounts received after such time on any date
may, in
the discretion of the Administrative Agent, be deemed to have
been
received on the next succeeding Business Day for purposes of
calculating interest thereon. All such payments shall be made to
the
Administrative Agent or to the Issuing Bank at the Payment
Office,
except that payments pursuant to Sections 2.15, 2.16 and 2.17
and 10.3
shall be made directly to the Persons entitled thereto. The
Administrative Agent shall distribute any such payments received
by it
for the account of any other Person to the appropriate
recipient
promptly following receipt thereof. If any payment hereunder
shall be
due on a day that is not a Business Day, the date for payment
shall be
extended to the next succeeding Business Day, and, in the case
of any
payment accruing interest, interest thereon shall be made
payable for
the period of such extension. All payments hereunder shall be
made in
Dollars.
(b) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts
of
principal, unreimbursed LC Disbursements, interest and fees then
due
hereunder, such funds shall be applied (i) first, towards
payment of
interest and fees then due hereunder, ratably among the
parties
entitled thereto in accordance with the amounts of interest and
fees
then due to such parties, and (ii) second, towards payment of
principal
and unreimbursed LC Disbursements then due hereunder, ratably
among the
parties entitled thereto in accordance with the amounts of
principal
and unreimbursed LC Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off
or
counterclaim or otherwise, obtain payment in respect of any
principal
of or interest on any of its Revolving Loans or participations
in LC
Disbursements that would result in such Lender receiving payment
of a
greater proportion of the aggregate amount of its Revolving
Loans and
participations in LC Disbursements and accrued interest thereon
than
the proportion received by any other Lender, then the Lender
receiving
such greater proportion shall purchase (for cash at face
value)
participations in the Revolving Loans and participations in
LC
Disbursements of other Lenders to the extent necessary so that
the
benefit of all such payments shall be shared by the Lenders
ratably in
accordance with the aggregate amount of principal of and
accrued
interest on their respective Revolving Loans; provided, that (i)
if any
such participations are purchased and all or any portion of the
payment
giving rise thereto is recovered, such participations shall
be
rescinded and the purchase price restored to the extent of
such
recovery, without interest, and (ii) the provisions of this
paragraph
shall not be construed to apply to any payment made by the
Borrower
pursuant to and in accordance with the express terms of this
Agreement
or any payment obtained by a Lender as consideration for the
assignment
of or sale of a participation in any of its Loans or
participations of
LC Disbursements to any assignee or participant, other than to
the
Borrower or any Subsidiary or Affiliate thereof (as to which
the
provisions of this paragraph shall apply). The Borrower consents
to the
foregoing and agrees, to the extent it may effectively do so
under
applicable law, that any Lender acquiring a participation
pursuant to
the foregoing arrangements may exercise against the Borrower
rights of
set-off and counterclaim with respect to such participation as
fully as
if such Lender were a direct creditor of the Borrower in the
amount of
such participation.
(d) Unless the Administrative Agent shall have received
notice
from the Borrower prior to the date on which any payment is due
to the
Administrative Agent for the account of the Lenders or the
Issuing Bank
hereunder that the Borrower will not make such payment, the
Administrative Agent may assume that the Borrower has made such
payment
on such date in accordance herewith and may, in reliance upon
such
assumption, distribute to the Lenders or the Issuing Bank the
amount or
amounts
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<PAGE>
due. In such event, if the Borrower has not in fact made such
payment,
then each of the Lenders or the Issuing Bank severally agrees to
repay
to the Administrative Agent forthwith on demand the amount
so
distributed to such Lender or the Issuing Bank with interest
thereon,
for each day from and including the date such amount is
distributed to
it to but excluding the date of payment to the Administrative
Agent, at
the greater of the Federal Funds Effective Rate and a rate
determined
by the Administrative Agent in accordance with banking industry
rules
on interbank compensation.
(e) If any Lender shall fail to make any payment required to
be made by it pursuant to Section 2.18(d) or 10.3(d), then
the
Administrative Agent may, in its discretion (notwithstanding
any
contrary provision hereof), apply any amounts thereafter
received by
the Administrative Agent for the account of such Lender to
satisfy such
Lender's obligations under such Sections until all such
unsatisfied
obligations are fully paid.
SECTION 2.19 Mitigation of Obligations; Replacement of Lenders.
If any
Lender requests compensation under Section 2.15, or if the
Borrower is required
to pay any additional amount to any Lender or any Governmental
Authority for the
account of any Lender pursuant to Section 2.17, then such Lender
shall use
reasonable efforts to designate a different lending office for
funding or
booking its Loans hereunder or to assign its rights and
obligations hereunder to
another of its offices, branches or affiliates, if, in the sole
judgment of such
Lender, such designation or assignment (iv) would eliminate or
reduce amounts
payable under Section 2.15 or Section 2.17, as the case may be,
in the future
and (v) would not subject such Lender to any unreimbursed cost
or expense and
would not otherwise be disadvantageous to such Lender. The
Borrower hereby
agrees to pay all costs and expenses incurred by any Lender in
connection with
such designation or assignment.
SECTION 2.20 Letters of Credit.
(a) During the Availability Period, the Issuing Bank, in
reliance upon the agreements of the other Lenders pursuant to
Section
2.20(d), agrees to issue, at the request of the Borrower,
Letters of
Credit for the account of the Borrower on the terms and
conditions
hereinafter set forth; provided that (i) each Letter of Credit
shall
expire on the earlier of (A) the date one year after the date
of
issuance of such Letter of Credit (or in the case of any renewal
or
extension thereof, one year after such renewal or extension) and
(B)
the date that is five (5) Business Days prior to the Maturity
Date;
(ii) each Letter of Credit shall be in a stated amount of at
least
$100,000; and (iii) the Borrower may not request any Letter of
Credit,
if, after giving effect to such issuance (A) the aggregate LC
Exposure
would exceed the LC Commitment or (B) the aggregate LC Exposure,
plus
the aggregate outstanding Revolving Loans of all Lenders would
exceed
the Aggregate Revolving Commitments. Upon the issuance of each
Letter
of Credit each Lender shall be deemed to, and hereby irrevocably
and
unconditionally agrees to, purchase from the Issuing Bank
without
recourse a participation in such Letter of Credit equal to
such
Lender's Pro Rata Share of the aggregate amount available to be
drawn
under such Letter of Credit. Each issuance of a Letter of Credit
shall
be deemed to utilize the Revolving Commitment of each Lender by
an
amount equal to the amount of such participation.
(b) To request the issuance of a Letter of Credit (or any
amendment, renewal or extension of an outstanding Letter of
Credit),
the Borrower shall give the Issuing Bank and the Administrative
Agent
irrevocable written notice at least three (3) Business Days
prior to
the requested date of such issuance specifying the date (which
shall be
a Business Day) such Letter of Credit is to be issued (or
amended,
extended or renewed, as the case may be), the expiration date of
such
Letter of Credit, the amount of such Letter of Credit, the name
and
address of the beneficiary thereof and such other information as
shall
be necessary to prepare, amend, renew or extend such Letter of
Credit.
In addition to the satisfaction of the conditions in Article
III, the
issuance of such Letter of Credit (or any amendment which
increases the
amount of such Letter of Credit) will be subject to the
further
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<PAGE>
conditions that such Letter of Credit shall be in such form and
contain
such terms as the Issuing Bank shall approve and that the
Borrower
shall have executed and delivered any additional
applications,
agreements and instruments relating to such Letter of Credit as
the
Issuing Bank shall reasonably require; provided, that in the
event of
any conflict between such applications, agreements or
instruments and
this Agreement, the terms of this Agreement shall control.
(c) At least two (2) Business Days prior to the issuance of
any Letter of Credit, the Issuing Bank will confirm with the
Administrative Agent (by telephone or in writing) that the
Administrative Agent has received such notice and if not, the
Issuing
Bank will provide the Administrative Agent with a copy thereof.
Unless
the Issuing Bank has received notice from the Administrative
Agent on
or before the Business Day immediately preceding the date the
Issuing
Bank is to issue the requested Letter of Credit directing the
Issuing
Bank not to issue the Letter of Credit because such issuance is
not
then permitted hereunder because of the limitations set forth
in
Section 2.20(a) or that one or more conditions specified in
Article III
are not then satisfied, then, subject to the terms and
conditions
hereof, the Issuing Bank shall, on the requested date, issue
such
Letter of Credit in accordance with the Issuing Bank's usual
and
customary business practices.
(d) The Issuing Bank shall examine all documents purporting
to
represent a demand for payment under a Letter of Credit
promptly
following its receipt thereof. The Issuing Bank shall notify
the
Borrower and the Administrative Agent of such demand for payment
and
whether the Issuing Bank has made or will make a LC
Disbursement
thereunder; provided, that any failure to give or delay in
giving such
notice shall not relieve the Borrower of its obligation to
reimburse
the Issuing Bank and the Lenders with respect to such LC
Disbursement.
The Borrower shall be irrevocably and unconditionally obligated
to
reimburse the Issuing Bank for any LC Disbursements paid by the
Issuing
Bank in respect of such drawing, without presentment, demand or
other
formalities of any kind. Unless the Borrower shall have notified
the
Issuing Bank and the Administrative Agent prior to 11:00 a.m.
(Eastern
Time) on the Business Day immediately prior to the date on which
such
drawing is honored that the Borrower intends to reimburse the
Issuing
Bank for the amount of such drawing in funds other than from
the
proceeds of Revolving Loans, the Borrower shall be deemed to
have
timely given a Notice of Borrowing to the Administrative
Agent
requesting the Lenders to make a Base Rate Borrowing on the date
on
which such drawing is honored in an exact amount due to the
Issuing
Bank; provided that for purposes solely of such Borrowing,
the
conditions precedents set forth in Section 3.2 hereof shall not
be
applicable. The Administrative Agent shall notify the Lenders of
such
Borrowing in accordance with Section 2.3, and each Lender shall
make
the proceeds of its Base Rate Loan included in such Borrowing
available
to the Administrative Agent for the account of the Issuing Bank
in
accordance with Section 2.4. The proceeds of such Borrowing
shall be
applied directly by the Administrative Agent to reimburse the
Issuing
Bank for such LC Disbursement.
(e) If for any reason a Base Rate Borrowing may not be (as
determined in the sole discretion of the Administrative Agent),
or is
not, made in accordance with the foregoing provisions, then each
Lender
(other than the Issuing Bank) shall be obligated to fund the
participation that such Lender purchased pursuant to subsection
(a) in
an amount equal to its Pro Rata Share of such LC Disbursement on
and as
of the date which such Base Rate Borrowing should have occurred.
Each
Lender's obligation to fund its participation shall be absolute
and
unconditional and shall not be affected by any circumstance,
including
without limitation (i) any setoff, counterclaim, recoupment,
defense or
other right that such Lender or any other Person may have
against the
Issuing Bank or any other Person for any reason whatsoever, (ii)
the
existence of a Default or an Event of Default or the termination
of the
Aggregate Revolving Commitments, (iii) any adverse change in
the
condition (financial or otherwise) of the Borrower or any of
its
Subsidiaries, (iv) any breach of this Agreement by the Borrower
or any
other Lender, (v) any amendment, renewal or extension of any
Letter of
Credit or (vi) any other circumstance, happening or event
whatsoever,
whether or not similar to any of the
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<PAGE>
foregoing. On the date that such participation is required to
be
funded, each Lender shall promptly transfer, in immediately
available
funds, the amount of its participation to the Administrative
Agent for
the account of the Issuing Bank. Whenever, at any time after
the
Issuing Bank has received from any such Lender the funds for
its
participation in a LC Disbursement, the Issuing Bank (or the
Administrative Agent on its behalf) receives any payment on
account
thereof, the Administrative Agent or the Issuing Bank, as the
case may
be, will distribute to such Lender its Pro Rata Share of such
payment;
provided, that if such payment is required to be returned for
any
reason to the Borrower or to a trustee, receiver, liquidator,
custodian
or similar official in any bankruptcy proceeding, such Lender
will
return to the Administrative Agent or the Issuing Bank any
portion
thereof previously distributed by the Administrative Agent or
the
Issuing Bank to it.
(f) To the extent that any Lender shall fail to pay any
amount
required to be paid pursuant to paragraph (d) of this Section
2.20 on
the due date therefore, such Lender shall pay interest to the
Issuing
Bank (through the Administrative Agent) on such amount from such
due
date to the date such payment is made at a rate per annum equal
to the
Federal Funds Rate; provided that if such Lender shall fail to
make
such payment to the Issuing Bank within three (3) Business Days
of such
due date, then, retroactively to the due date, such Lender shall
be
obligated to pay interest on such amount at the Default
Rate.
(g) If any Event of Default shall occur and be continuing,
on
the Business Day that the Borrower receives notice from the
Administrative Agent or the Required Lenders demanding the
deposit of
cash collateral pursuant to this paragraph, the Borrower shall
deposit
in an account with the Administrative Agent, in the name of
the
Administrative Agent and for the benefit of the Lenders, an
amount in
cash equal to the LC Exposure as of such date plus any accrued
and
unpaid interest thereon; provided, that the obligation to
deposit such
cash collateral shall become effective immediately, and such
deposit
shall become immediately due and payable, without demand or
notice of
any kind, upon the occurrence of any Event of Default with
respect to
the Borrower described in clause (g) or (h) of Section 8.1.
Such
deposit shall be held by the Administrative Agent as collateral
for the
payment and performance of the obligations of the Borrower under
this
Agreement. The Administrative Agent shall have exclusive
dominion and
control, including the exclusive right of withdrawal, over
such
account. Other than any interest earned on the investment of
such
deposits, which investments shall be made at the option and
sole
discretion of the Administrative Agent and at the Borrower's
risk and
expense, such deposits shall not bear interest. Interest and
profits,
if any, on such investments shall accumulate in such account.
Moneys in
such account shall applied by the Administrative Agent to
reimburse the
Issuing Bank for LC Disbursements for which it had not been
reimbursed
and to the extent so applied, shall be held for the satisfaction
of the
reimbursement obligations of the Borrower for the LC Exposure at
such
time or, if the maturity of the Loans has been accelerated, with
the
consent of the Required Lenders, be applied to satisfy other
obligations of the Borrower under this Agreement. If the
Borrower is
required to provide an amount of cash collateral hereunder as a
result
of the occurrence of an Event of Default, such amount (to the
extent
not so applied as aforesaid) shall be returned to the Borrower
within
three (3) Business Days after all Events of Default have been
cured or
waived.
(h) Promptly following the end of each fiscal quarter, the
Issuing Bank shall deliver (through the Administrative Agent) to
each
Lender and the Borrower a report describing the aggregate
Letters of
Credit outstanding at the end of such fiscal quarter. Upon the
request
of any Lender from time to time, the Issuing Bank shall deliver
to such
Lender any other information reasonably requested by such Lender
with
respect to each Letter of Credit then outstanding.
(i) The Borrower's obligation to reimburse LC Disbursements
hereunder shall be absolute, unconditional and irrevocable and
shall be
performed strictly in accordance with the terms of
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this Agreement under all circumstances whatsoever and
irrespective of
any of the following circumstances:
(i) Any lack of validity or enforceability of any
Letter of Credit or this Agreement;
(ii) The existence of any claim, set-off, defense or
other right which the Borrower or any Subsidiary or
Affiliate
of the Borrower may have at any time against a beneficiary
or
any transferee of any Letter of Credit (or any Persons or
entities for whom any such beneficiary or transferee may be
acting), any Lender (including the Issuing Bank) or any
other
Person, whether in connection with this Agreement or the
Letter of Credit or any document related hereto or thereto
or
any unrelated transaction;
(iii) Any draft or other document presented under a
Letter of Credit proving to be forged, fraudulent or invalid
in any respect or any statement therein being untrue or
inaccurate in any respect;
(iv) Payment by the Issuing Bank under a Letter of
Credit against presentation of a draft or other document to
the Issuing Bank that does not comply with the terms of such
Letter of Credit;
(v) Any other event or circumstance whatsoever,
whether or not similar to any of the foregoing, that might,
but for the provisions of this Section, constitute a legal
or
equitable discharge of, or provide a right of setoff
against,
the Borrower's obligations hereunder; or
(vi) The existence of a Default or an Event of
Default.
Neither the Administrative Agent, the Issuing Bank, the Lenders
nor any Related
Party of any of the foregoing shall have any liability or
responsibility by
reason of or in connection with the issuance or transfer of any
Letter of Credit
or any payment or failure to make any payment thereunder
(irrespective of any of
the circumstances referred to above), or any error, omission,
interruption, loss
or delay in transmission or delivery of any draft, notice or
other communication
under or relating to any Letter of Credit (including any
document required to
make a drawing thereunder), any error in interpretation of
technical terms or
any consequence arising from causes beyond the control of the
Issuing Bank;
provided, that the foregoing shall not be construed to excuse
the Issuing Bank
from liability to the Borrower to the extent of any direct
damages (as opposed
to consequential damages, claims in respect of which are hereby
waived by the
Borrower to the extent permitted by applicable law) suffered by
the Borrower
that are caused by the Issuing Bank's failure to exercise care
when determining
whether drafts or other documents presented under a Letter of
Credit comply with
the terms thereof. The parties hereto expressly agree, that in
the absence of
gross negligence or willful misconduct on the part of the
Issuing Bank (as
finally determined by a court of competent jurisdiction), the
Issuing Bank shall
be deemed to have exercised care in each such determination. In
furtherance of
the foregoing and without limiting the generality thereof, the
parties agree
that, with respect to documents presented that appear on their
face to be in
substantial compliance with the terms of a Letter of Credit, the
Issuing Bank
may, in its sole discretion, either accept and make payment upon
such documents
without responsibility for further investigation, regardless of
any notice or
information to the contrary, or refuse to accept and make
payment upon such
documents if such documents are not in strict compliance with
the terms of such
Letter of Credit.
(j) Each Letter of Credit shall be subject to the Uniform
Customs and Practices for Documentary Credits (1993
Revision),
International Chamber of Commerce Publication No. 500, as
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the same may be amended from time to time, and, to the extent
not
inconsistent therewith, the governing law of this Agreement set
forth
in Section 10.5.
SECTION 2.21 Increase of Revolving Commitments; Additional
Lenders.
(a) So long as no Default or Event of Default has occurred
and
is continuing, Borrower may, from time to time during the term
of this
Agreement, upon prior notice to the Administrative Agent (which
shall
promptly notify each Lender following its receipt thereof),
propose to
increase the Aggregate Revolving Commitments from $150,000,000
up to an
aggregate amount that would not exceed $200,000,000 (the amount
of any
such increase referred to herein as the "ADDITIONAL
COMMITMENT
AMOUNt"). Each Lender shall have the right for a period of ten
(10)
Business Days following receipt of such notice to elect by
written
notice to the Borrower and the Administrative Agent to increase
its
Revolving Commitment by a principal amount equal to its Pro Rata
Share
of the Additional Commitment Amount. No Lender shall have
any
obligation to increase its Revolving Commitment and any decision
by a
Lender to increase its Revolving Commitment shall be made in its
sole
discretion independently from any other Lender. Any Lender which
does
not respond within such ten (10) Business Day period shall be
deemed to
have advised the Administrative Agent and the Borrower that it
elected
not to increase its Revolving Commitment.
(b) If any one or more Lenders shall elect not to increase
its
Revolving Commitment pursuant to subsection (a) of this Section
(each a
"NON-CONSENTING LENDER"), the Administrative Agent shall,
promptly
after the end of such ten (10) Business Day period or promptly
after
the date the Administrative Agent shall have received all
written
responses from the Lenders, whichever shall occur first, notify
all
other Lenders (the "CONSENTING LENDERS") of the amount of
the
Additional Commitment Amount that remains unsubscribed (the
"UNSUBSCRIBED AMOUNT"). Each such Consenting Lender shall have
the
right for a period of five (5) Business Days following receipt
of such
notice to elect by written notice to the Borrower and the
Administrative Agent to increase its Revolving Commitment by
a
principal amount up to the remaining Unsubscribed Amount. The
sum of
the increases in the Revolving Commitments of the Consenting
Lenders
pursuant to subsections (a) and (b) of this Section shall not in
the
aggregate exceed the Additional Commitment Amount; provided that
if
accepted by the Borrower, and subject to the right of any
Consenting
Lender to promptly revoke its prior election to increase its
Revolving
Commitment in such event, such increases in the Revolving
Commitments
of the Consenting Lenders may exceed the Unsubscribed Amount
(but shall
in no event cause the Aggregate Revolving Commitments in effect
to
exceed $200,000,000). If the sum of the additional increases in
the
Revolving Commitments of the Consenting Lenders pursuant to
this
subsection (b) exceeds the Unsubscribed Amount, or any greater
amount
accepted by the Borrower as provided in the immediately
preceding
sentence, then the additional increases in Revolving
Commitmen
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