<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) May 13, 1999
---------------------
ALLIANCE IMAGING, INC.
------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 0-16334 33-0239910
------------------------ ---------------------- -------------------
(State or Other Jurisdiction (Commission File Number) (I.R.S. Employer
of Incorporation) Identification No.)
1065 North PacifiCenter Drive,
Suite 200
Anaheim, California 92806
-------------------------------
(Address of principal executive
offices including Zip Code)
(714) 688-7100
------------------------------
(Registrant's telephone number,
including area code)
N.A.
-------------------------------------------------------------
(Former name or former address, if changed since last report)
1
<PAGE>
Item 2. Acquisition or Disposition of Assets.
On May 13, 1999, a wholly owned subsidiary of Alliance Imaging, Inc.
(the "Company") consummated the transactions contemplated by the
Agreement and Plan of Merger (the "Merger Agreement"), pursuant to
which the Company acquired (the "Acquisition") all of the outstanding
common stock of Three Rivers Holding Corp. ("Three Rivers"). Three
Rivers is the surviving corporation. Each share of Three Rivers common
stock was converted into the right to receive 4.9 shares of the
Company's common stock. A copy of the Merger Agreement is incorporated
herein by reference and is filed as EXHIBIT 2 hereto. The Company
received a fairness opinion from J.P. Morgan Securities Inc., which is
attached hereto as EXHIBIT 99.1.
This event is the subject of press releases issued by the Company on
April 14, 1999 and May 14, 1999, which are filed as EXHIBITS 99.2 and
99.3 hereto and are incorporated herein by reference.
In connection with the transaction, the Company (i) amended and
restated its senior bank credit facility to add a new $70,000,000 term
loan, (ii) supplemented the indenture governing its 9 5/8% Senior
Subordinated Notes due 2005 and Floating Interest Rate Subordinated
Term Securities due 2005 (the "Indenture") to add Three Rivers Holding
Corp., SMT Health Services Inc. and their subsidiaries as guarantors
and (iii) amended the Registration Rights Agreement with Newport
Investment LLC ("Newport") to add certain Newport affiliates thereto
and to provide registration rights for the shares of the Company's
common stock issued to such affiliates in the merger. A copy of the
Credit Agreement is attached hereto as EXHIBIT 99.4, a copy of the
Fifth Supplemental Indenture is attached hereto as EXHIBIT 99.5 and a
copy of Amendment No. 1 to the Registration Rights Agreement is
attached hereto as EXHIBIT 99.6 and each of such documents are
incorporated herein by reference.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
a. Financial Statements of Business Acquired. Financial Statements are
not included herein and shall be filed on or before July 27, 1999.
b. Pro Forma Financial Information. Pro forma financial information is
not included herein and shall be filed on or before July 27, 1999.
c. Exhibits
Exhibit Reference
No.
2. Agreement and Plan of Merger dated Incorporated herein by reference
April 14, 1999, between the Company to Exhibit 2 to the Form 8-K
and Three Rivers filed by the Company on April
15, 1999
99.1 Fairness Opinion of J.P. Morgan Filed herewith
2
<PAGE>
Securities Inc. dated April 14, 1999
99.2 Press Release dated April 14, 1999 Incorporated herein by
reference to Exhibit 2 to the
Form 8-K filed by the Company on
April 15, 1999
99.3 Press Release dated May 14, 1999 Filed herewith
99.4 Amended and Restated Credit Filed herewith
Agreement dated May 13, among the
Company, Various Lending
Institutions, Salomon Brothers Holding
Company Inc and Bankers Trust
Company
99.5 Fifth Supplemental Indenture between Filed herewith
the Company, various subsidiaries of
the Company and IBJ Whitehall Bank
& Trust Company dated May 13, 1999
99.6. Amendment No. 1 dated May 13, 1999 Filed herewith
to the Registration Rights Agreement
dated December 18, 1997 between the
Company and Newport
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
ALLIANCE IMAGING, INC.
(Registrant)
Dated May 24, 1999 By: /s/ Richard N. Zehner
-----------------------------
Name: Richard N. Zehner
Title: Chairman and Chief
Executive Officer
3
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
- ----------- -----------
99.1 Fairness Opinion of J.P. Morgan Securities Inc. dated
April 14, 1999
99.3 Press Release dated May 14, 1999
99.4 Amended and Restated Credit Agreement dated May 13,
among the Company, Various Lending Institutions,
Salomon Brothers Holding Company Inc and Bankers Trust
Company
99.5 Fifth Supplemental Indenture between the Company,
various subsidiaries of the Company and IBJ Whitehall
Bank & Trust Company dated May 13, 1999
99.6 Amendment No. 1 dated May 13, 1999 to the Registration
Rights Agreement dated December 18, 1997 between the
Company and Newport
<PAGE>
EXHIBIT 99.1
[LETTERHEAD OF JPMORGAN]
April 14, 1999
Special Committee of the Board of Directors
Board of Directors
Alliance Imaging, Inc.
1065 North Pacificenter Drive, Suite 200
Anaheim, CA 92806
Attention: Anthony R. Ignaczak
Mark D. Klein
Gentlemen:
You have requested our opinion as to the fairness, from a financial point of
view, to Alliance Imaging, Inc. (the "Company") and its stockholders (other than
Apollo Management and its affiliates) of the consideration to be paid by the
Company in connection with the proposed merger (the "Merger") of the Company
with Three Rivers Holding Corp. (the "Target"), the parent company of SMT Health
Services Inc. ("SMT"). Pursuant to the Agreement and Plan of Merger, dated as of
April 14, 1999 (the "Agreement"), among the Company and the Target, a
corporation to be formed by the Company ("Acquisition Sub") will merge with and
into the Target, and each share of common stock, $0.01 par value, of the Target
issued and outstanding at the effective time of the Merger (other than shares
held by Dissenting Stockholders (as defined in the Agreement)) shall be
exchanged and converted into the right to receive 4.9 shares of common stock,
$.01 par value (the "Company Common Stock"), of the Company.
In arriving at our opinion, we have reviewed (i) the Agreement; (ii) certain
publicly available information concerning the business of the Company and SMT
and of certain other companies engaged in businesses comparable to those of
the Company and SMT, and the reported market prices for certain other companies'
securities deemed comparable; (iii) publicly available terms of certain
transactions involving companies comparable to the Company and SMT and the
consideration received for such companies; (iv) current and historical market
prices of the Company Common Stock; (v) the audited financial statements of the
Company and SMT for the fiscal years ended December 31, 1998, 1997 and 1996;
(vi) certain internal financial analyses and forecasts prepared by the Company
and SMT and their respective managements; and (vii) the terms of certain other
business combinations that we deemed relevant.
In addition, we have held discussions with certain members of the management of
the Company and SMT and with SMT's outside auditors with respect to certain
aspects of the Merger, the past and current business operations of the Company
and SMT, the financial condition and future prospects and operations of the
Company and SMT, the effects of the
<PAGE>
[LETTERHEAD OF JPMORGAN]
- 2 -
Merger on the financial condition and future prospects of the Company, and
certain other matters we considered necessary or appropriate to our inquiry. We
have visited certain facilities of the Company and SMT, and reviewed such other
financial studies and analyses and considered such other information as we
deemed appropriate for the purposes of this opinion.
In giving our opinion, we have relied upon and assumed, without independent
verification, the accuracy and completeness of all information that was publicly
available or was furnished to us by the Company and SMT or otherwise reviewed by
us, and we have not assumed any responsibility or liability therefor. We have
not conducted any valuation or appraisal of any assets or liablilities, nor have
any such valuation or appraisals been provided to us. In relying on financial
analyses and forecasts provided to us, we have assumed that they have been
reasonably prepared based on assumptions reflecting the best currently available
estimates and judgments by management as to the expected future results of
operations and financial condition of the Company and SMT to which such analysis
or forecasts relate. We have also assumed that the Merger will have the tax
consequences described in discussions with, and materials furnished to us by,
representatives of the Company, and that the other transactions contemplated by
the Agreement will be consummated as described in the Agreement. We have relied
as to all legal matters relevant to rendering our opinion upon the advice of
counsel.
Our opinion is necessarily based on economic, market and other conditions as in
effect on, and the information made available to us as of, the date hereof. It
should be understood that subsequent developments may affect this opinion and
that we do not have any obligation to update, revise or reaffirm this opinion.
We are expressing no opinion herein as to the price at which the Company Common
Stock will trade at any future time.
We have acted as financial advisor to the Special Committee of the Board of
Directors of the Company with respect to the proposed Merger and will receive a
fee from the Company for our services. Please be advised that we have no other
financial advisory or other relationships with the Company. As you are aware,
J.P. Morgan Securities Inc. and its affiliates maintain an ongoing relationship
with Apollo Management. In the ordinary course of their businesses, J.P. Morgan
Securities Inc. and its affiliates may actively trade the debt and equity
securities of the Company for their own account or for the accounts of customers
and, accordingly, they may at any time hold long or short positions in such
securities.
On the basis of and subject to the foregoing, it is our opinion as of the date
hereof that the consideration to be paid by the Company in the proposed Merger
is fair, from a financial point of view, to the Company and its stockholders
(other than Apollo Management and its affiliates).
<PAGE>
[LETTERHEAD OF J.P. MORGAN]
- 3-
This letter is provided to the Special Committee of the Board of Directors and
the Board of Directors of the Company in connection with and for the purposes of
their evaluation of the Merger. This opinion does not constitute a
recommendation to any stockholder of the Company as to how such stockholder
should vote with respect to the Merger.
Very truly yours,
J.P. MORGAN SECURITIES INC.
By: /s/ David Deming
-----------------------------
Name: David Deming
Title: Managing Director
<PAGE>
EXHIBIT 99.3
=====================
---------------------
Alliance Imaging, Inc.
NEWS RELEASE
Alliance Imaging, Inc. The Financial Relations Board
Kenneth S. Ord Karen Taylor -- General Information
Executive Vice President Moira Conlon -- Analyst Contact
Chief Financial Officer (310) 442-0599
(714) 688-7100
www.allianceimaging.com
ALLIANCE IMAGING ACQUIRES
SMT HEALTH SERVICES INC.
ANAHEIM, CA (May 14, 1999) -- Alliance Imaging, Inc. ("Alliance")
(Nasdaq:SCAN), the nation's largest provider of hospital-based fixed-site and
mobile magnetic resonance imaging ("MRI") and computed tomography ("CT")
services, announced that it has consummated the acquisition of Three Rivers
Holding Corp., the parent corporation of SMT Health Services Inc., ("SMT") in a
stock-for-stock merger. SMT is a regional mobile MRI provider with 35 mobile MRI
systems serving 144 customers in 10 states. As a result of the acquisition,
Alliance operates over 285 MRI systems nationwide, and provides several other
outsourced healthcare services, including CT, nuclear medicine and lithotripsy.
As part of the transaction, Alliance issued approximately 1,644,000
shares of stock and refinanced $62.0 million of SMT's bank indebtedness, which
Alliance financed with a new bank term loan. SMT will continue to operate as an
indirect subsidiary of Alliance and SMT's existing equipment indebtedness of
approximately $4.4 million will continue as obligations of SMT.
Alliance Imaging, Inc., an affiliate of Apollo Management, L.P., is a
leading provider of comprehensive diagnostic imaging and therapeutic services to
hospitals and other healthcare providers. Services are provided on either a
mobile, shared-user basis or on a full-time single-user basis. For more
information about Alliance Imaging, Inc. via facsimile, call 1-800-PRO-INFO and
dial client code "SCAN".
<PAGE>
EXHIBIT 99.4
- --------------------------------------------------------------------------------
CREDIT AGREEMENT
among
ALLIANCE IMAGING, INC.,
VARIOUS LENDING INSTITUTIONS,
SALOMON BROTHERS HOLDING COMPANY INC,
AS SYNDICATION AGENT,
and
BANKERS TRUST COMPANY,
AS ADMINISTRATIVE AGENT
________________________________
Dated as of December 18, 1997
and
Amended and Restated as of March 12, 1998
and
Amended and Restated as of September 24, 1998
and
Amended and Restated as of May 13, 1999
________________________________
- --------------------------------------------------------------------------------
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TABLE OF CONTENTS
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SECTION 1. Amount and Terms of Credit.................................................... 1
1.01 Commitments.................................................................... 1
1.02 Minimum Borrowing Amounts, etc................................................. 6
1.03 Notice of Borrowing............................................................ 6
1.04 Disbursement of Funds.......................................................... 7
1.05 Notes.......................................................................... 8
1.06 Conversions.................................................................... 10
1.07 Pro Rata Borrowings............................................................ 11
1.08 Interest....................................................................... 11
1.09 Interest Periods............................................................... 12
1.10 Increased Costs; Illegality; etc............................................... 13
1.11 Compensation................................................................... 16
1.12 Change of Lending Office....................................................... 16
1.13 Replacement of Banks........................................................... 16
SECTION 2. Letters of Credit............................................................. 18
2.01 Letters of Credit.............................................................. 18
2.02 Letter of Credit Requests...................................................... 20
2.03 Letter of Credit Participations................................................ 20
2.04 Agreement to Repay Letter of Credit Drawings................................... 22
2.05 Increased Costs................................................................ 23
SECTION 3. Fees; Commitments............................................................. 24
3.01 Fees........................................................................... 24
3.02 Voluntary Termination or Reduction of Total Unutilized Commitment.............. 25
3.03 Mandatory Reduction of Commitments............................................. 26
SECTION 4. Payments...................................................................... 27
4.01 Voluntary Prepayments.......................................................... 27
4.02 Mandatory Repayments and Commitment Reductions................................. 28
4.03 Method and Place of Payment.................................................... 37
4.04 Net Payments................................................................... 37
SECTION 5. Conditions Precedent to Third Restatement Effective Date...................... 40
5.01 Execution of Agreement; Notes.................................................. 40
5.02 Officer's Certificate.......................................................... 40
5.03 Opinions of Counsel............................................................ 40
5.04 Corporate Documents; Proceedings............................................... 41
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5.05 Adverse Change, etc............................................................ 41
5.06 Litigation..................................................................... 42
5.07 Approvals...................................................................... 42
5.08 Second Amended and Restated Credit Agreement; etc.............................. 42
5.09. Consummation of SMT Merger.................................................... 43
5.10 Refinancing.................................................................... 43
5.11 Security Documents; etc........................................................ 44
5.12 Subsidiaries Guaranty.......................................................... 45
5.13 Employee Benefit Plans; Shareholders' Agreements; Management Agreements;
Employment Agreements; Collective Bargaining Agreements; Existing
Indebtedness Agreements; Material Contracts; Tax Allocation Agreements......... 45
5.14 Consent Letter................................................................. 48
5.15 Solvency Certificate; Insurance Certificates................................... 48
5.16 New Pro Forma Balance Sheet; Projections....................................... 48
5.17 Payment of Fees................................................................ 49
SECTION 6. Conditions Precedent to All Credit Events..................................... 49
6.01 No Default; Representations and Warranties..................................... 49
6.02 Notice of Borrowing; Letter of Credit Request.................................. 49
6.03 Compliance With Senior Subordinated Notes Indenture............................ 49
SECTION 7. Representations and Warranties................................................ 50
7.01 Company Status................................................................. 50
7.02 Company Power and Authority.................................................... 50
7.03 No Violation................................................................... 51
7.04 Litigation..................................................................... 51
7.05 Use of Proceeds; Margin Regulations............................................ 51
7.06 Governmental Approvals......................................................... 52
7.07 Investment Company Act......................................................... 52
7.08 Public Utility Holding Company Act............................................. 52
7.09 True and Complete Disclosure................................................... 52
7.10 Financial Condition; Financial Statements...................................... 52
7.11 Security Interests............................................................. 54
7.12 Compliance with ERISA.......................................................... 55
7.13 Capitalization................................................................. 55
7.14 Subsidiaries................................................................... 56
7.15 Intellectual Property, etc..................................................... 56
7.16 Compliance with Statutes, etc.................................................. 56
7.17 Environmental Matters.......................................................... 56
7.18 Properties..................................................................... 57
7.19 Labor Relations................................................................ 57
7.20 Tax Returns and Payments....................................................... 58
7.21 Existing Indebtedness.......................................................... 58
7.22 Insurance...................................................................... 58
</TABLE>
(ii)
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7.23 Representations and Warranties in Other Documents.............................. 58
7.24 Original Transaction, MTI Transaction, ASHS Transaction and Transaction........ 59
7.26 Subordination.................................................................. 59
7.27 Year 2000 Compliance........................................................... 59
SECTION 8. Affirmative Covenants......................................................... 60
8.01 Information Covenants.......................................................... 60
8.02 Books, Records and Inspections................................................. 64
8.03 Insurance...................................................................... 64
8.04 Payment of Taxes............................................................... 65
8.05 Corporate Franchises........................................................... 65
8.06 Compliance with Statutes; etc.................................................. 65
8.07 Compliance with Environmental Laws............................................. 65
8.08 ERISA.......................................................................... 66
8.09 Good Repair.................................................................... 67
8.10 End of Fiscal Years; Fiscal Quarters........................................... 67
8.11 Additional Security; Further Assurances........................................ 67
8.12 Foreign Subsidiaries Security.................................................. 68
8.13 Use of Proceeds................................................................ 69
8.14 Permitted Acquisitions......................................................... 69
8.15 Maintenance of Company Separateness............................................ 71
8.16 Performance of Obligations..................................................... 71
8.17 Year 2000 Compliance........................................................... 71
SECTION 9. Negative Covenants............................................................ 71
9.01 Changes in Business............................................................ 71
9.02 Consolidation; Merger; Sale or Purchase of Assets; etc......................... 72
9.03 Liens.......................................................................... 75
9.04 Indebtedness................................................................... 77
9.05 Advances; Investments; Loans................................................... 79
9.06 Dividends; etc................................................................. 81
9.07 Transactions with Affiliates................................................... 83
9.08 Consolidated Fixed Charge Coverage Ratio....................................... 83
9.09 Minimum Consolidated EBITDA.................................................... 84
9.10 Consolidated Interest Coverage Ratio........................................... 85
9.11 Adjusted Total Leverage Ratio.................................................. 86
9.13 Limitation on Issuance of Capital Stock........................................ 88
9.14 Limitation on Certain Restrictions on Subsidiaries............................. 89
9.15 Limitation on the Creation of Subsidiaries and Joint Ventures.................. 90
9.16 Designated Senior Debt......................................................... 91
SECTION 10. Events of Default............................................................ 91
10.01 Payments...................................................................... 91
10.02 Representations, etc.......................................................... 91
</TABLE>
(iii)
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10.03 Covenants..................................................................... 91
10.04 Default Under Other Agreements................................................ 91
10.05 Bankruptcy, etc............................................................... 92
10.06 ERISA......................................................................... 92
10.07 Security Documents............................................................ 93
10.08 Subsidiaries Guaranty......................................................... 93
10.09 Judgments..................................................................... 93
10.10 Ownership..................................................................... 93
SECTION 11. Definitions.................................................................. 94
SECTION 12. The Agents................................................................... 134
12.01 Appointment................................................................... 134
12.02 Delegation of Duties.......................................................... 134
12.03 Exculpatory Provisions........................................................ 134
12.04 Reliance by Agents............................................................ 135
12.05 Notice of Default............................................................. 135
12.06 Nonreliance on Agents and Other Banks......................................... 136
12.07 Indemnification............................................................... 136
12.08 Agents in their Individual Capacities......................................... 137
12.09 Holders....................................................................... 137
12.10 Resignation of the Agents..................................................... 137
SECTION 13. Miscellaneous................................................................ 138
13.01 Payment of Expenses, etc...................................................... 138
13.02 Right of Setoff............................................................... 139
13.03 Notices....................................................................... 139
13.04 Benefit of Agreement.......................................................... 139
13.05 No Waiver; Remedies Cumulative................................................ 141
13.06 Payments Pro Rata............................................................. 142
13.07 Calculations; Computations.................................................... 142
13.08 Governing Law; Submission to Jurisdiction; Venue.............................. 143
13.09 Counterparts.................................................................. 144
13.10 Effectiveness................................................................. 144
13.11 Headings Descriptive.......................................................... 144
13.12 Amendment or Waiver; etc...................................................... 144
13.13 Survival...................................................................... 146
13.14 Domicile of Loans and Commitments............................................. 146
13.15 Confidentiality............................................................... 146
13.16 Waiver of Jury Trial.......................................................... 146
13.17 Register...................................................................... 147
13.18 Limitation on Additional Amounts, etc......................................... 147
13.19 Post-Closing Actions.......................................................... 147
13.20 Additions of New Banks........................................................ 149
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(v)
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Page
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SCHEDULE I List of Banks and Commitments
SCHEDULE II Bank Addresses
SCHEDULE III Real Properties
SCHEDULE IV Scheduled Existing Indebtedness
SCHEDULE V Pension Plans
SCHEDULE VI Scheduled Existing Investments
SCHEDULE VII Subsidiaries
SCHEDULE VIII Insurance
SCHEDULE IX Existing Liens
SCHEDULE X Capitalization
SCHEDULE XI Existing Letters of Credit
SCHEDULE XII Healthcare Units
SCHEDULE XIII Litigation
EXHIBIT A - Form of Notice of Borrowing
EXHIBIT B-1 - Form of Tranche A Term Note
EXHIBIT B-2 - Form of Tranche B Term Note
EXHIBIT B-3 - Form of Tranche C Term Note
EXHIBIT B-4 - Form of Tranche D Term Note
EXHIBIT B-5 - Form of Revolving Note
EXHIBIT B-6 - Form of Swingline Note
EXHIBIT C - Form of Letter of Credit Request
EXHIBIT D - Form of Section 4.04(b)(ii) Certificate
EXHIBIT E-1 - Form of Opinion of O'Sullivan Graev & Karabell, LLP,
special counsel to the Credit Parties
EXHIBIT E-2 - Form of Russell Phillips, Esq., General Counsel of
the Borrower
EXHIBIT F - Form of Officers' Certificate
EXHIBIT G - Form of Pledge Agreement
EXHIBIT H - Form of Security Agreement
EXHIBIT I - Form of Subsidiaries Guaranty
EXHIBIT J - Form of Consent Letter
EXHIBIT K - Form of Solvency Certificate
EXHIBIT L - Form of Assignment and Assumption Agreement
EXHIBIT M - Form of Intercompany Note
EXHIBIT N - Form of Shareholder Subordinated Note
(v)
<PAGE>
CREDIT AGREEMENT, dated as of December 18, 1997 and amended and
restated as of March 12, 1998 and amended and restated as of September 24, 1998
and amended and restated as of May 13, 1999, among ALLIANCE IMAGING, INC., a
Delaware corporation (the "Borrower"), the lenders from time to time party
hereto (each, a "Bank" and, collectively, the "Banks"), SALOMON BROTHERS HOLDING
COMPANY INC, as Syndication Agent (in such capacity, the "Syndication Agent"),
and BANKERS TRUST COMPANY, as Administrative Agent (in such capacity, the
"Administrative Agent", and together with the Syndication Agent, each an
"Agent", and collectively, the "Agents"). Unless otherwise defined herein, all
capitalized terms used herein and defined in Section 11 are used herein as so
defined.
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Borrower, the Existing Banks and Bankers Trust Company,
as Agent, are parties to a Credit Agreement, dated as of December 18, 1997 and
amended and restated as of March 12, 1998 and amended and restated as of
September 24, 1998 (as so amended and restated and as the same has been further
amended, modified or supplemented to, but not including, the Third Restatement
Effective Date, the "Second Amended and Restated Credit Agreement"); and
WHEREAS, the parties hereto wish to amend and restate the Second
Amended and Restated Credit Agreement in the form of this Agreement to, inter
-----
alia, permit the Additional Revolver Refinancing, the SMT Merger, the SMT
- ----
Refinancing and the financing therefor on the terms and subject to the
conditions provided herein and make available to the Borrower the respective
credit facilities provided for herein;
NOW, THEREFORE, the parties hereto agree that the Second Amended and
Restated Credit Agreement shall be and hereby is amended and restated in its
entirety as follows:
SECTION 1. Amount and Terms of Credit.
1.01 Commitments. (a) Subject to and upon the terms and conditions
-----------
set forth herein, each Existing Tranche A Term Loan Bank severally agrees to
continue, on the Third Restatement Effective Date, the Existing Tranche A Term
Loans made by such Existing Tranche A Term Loan Bank to the Borrower pursuant to
the Original Credit Agreement and the First Amended and Restated Credit
Agreement and outstanding on the Third Restatement Effective Date (immediately
prior to giving effect thereto) (such Existing Tranche A Term Loans continued as
provided above, the "Tranche A Term Loans"), which Tranche A Term Loans:
(i) shall be denominated in U.S. Dollars;
(ii) except as hereafter provided, shall, at the option of the
Borrower, be continued and maintained as, and/or converted into, Base Rate
Loans or Eurodollar Loans, provided that except as otherwise specifically
--------
provided in Section 1.10(b), all Tranche A Term Loans made as part of the
same Borrowing shall at all times consist of Tranche A Term Loans of the
same Type; and
<PAGE>
(iii) shall not exceed for any Existing Tranche A Term Loan Bank, in
initial principal amount, that amount which equals the aggregate
outstanding principal amount of the Existing Tranche A Term Loans, if any,
made by such Existing Tranche A Term Loan Bank and outstanding on the Third
Restatement Effective Date (immediately prior to giving effect thereto) as
set forth on Schedule I hereto.
Once repaid, Tranche A Term Loans incurred hereunder may not be reborrowed.
(b) Subject to and upon the terms and conditions herein set forth,
each RL Bank severally agrees, at any time and from time to time on and after
the Original Effective Date and prior to the Revolving Loan Maturity Date, to
make a revolving loan or revolving loans (each, a "Revolving Loan" and,
collectively, the "Revolving Loans") to the Borrower, which Revolving Loans:
(i) shall be denominated in U.S. Dollars;
(ii) shall, at the option of the Borrower, be incurred and
maintained as, and/or converted into, Base Rate Loans or Eurodollar Loans,
provided that except as otherwise specifically provided in Section
--------
1.10(b), all Revolving Loans made as part of the same Borrowing shall at
all times be of the same Type;
(iii) may be repaid and reborrowed in accordance with the
provisions hereof;
(iv) shall not exceed for any Bank at any time outstanding that
aggregate principal amount which, when added to the product of (x) such
Bank's Adjusted RL Percentage and (y) the sum of (I) the aggregate amount
of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which
are repaid with the proceeds of, and simultaneously with the incurrence of,
the respective incurrence of Revolving Loans) at such time and (II) the
aggregate principal amount of all Swingline Loans (exclusive of Swingline
Loans which are repaid with the proceeds of, and simultaneously with the
incurrence of, the respective incurrence of Revolving Loans) then
outstanding, equals the Revolving Loan Commitment of such Bank at such
time; and
(v) shall not exceed for all Banks at any time outstanding that
aggregate principal amount which, when added to (x) the aggregate amount of
all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are
repaid with the proceeds of, and simultaneously with the incurrence of, the
respective incurrence of Revolving Loans) at such time and (y) the
aggregate principal amount of all Swingline Loans (exclusive of Swingline
Loans which are repaid with the proceeds of, and simultaneously with the
incurrence of, the respective incurrence of Revolving Loans) then
outstanding, exceeds an amount equal to the Total Revolving Loan Commitment
then in effect.
(c) Subject to and upon the terms and conditions herein set forth,
BTCo in its individual capacity agrees to make at any time and from time to time
on and after the Third Restatement Effective Date and prior to the Swingline
Expiry Date, a loan or loans to the
-2-
<PAGE>
Borrower (each, a "Swingline Loan" and, collectively, the "Swingline Loans"),
which Swingline Loans:
(i) shall be denominated in U.S. Dollars;
(ii) shall be made and maintained as Base Rate Loans;
(iii) may be repaid and reborrowed in accordance with the provisions
hereof;
(iv) shall not exceed in aggregate principal amount at any time
outstanding, when combined with the aggregate principal amount of (x) all
Revolving Loans made by Non-Defaulting Banks then outstanding and (y) the
aggregate amount of all the Letter of Credit Outstandings at such time, an
amount equal to the Adjusted Total Revolving Loan Commitment at such time
(after giving effect to any changes thereto on such date); and
(v) shall not exceed in aggregate principal amount at any time
outstanding the Maximum Swingline Amount.
Notwithstanding anything contained in this Section 1.01(c), (i) BTCo shall not
be obligated to make any Swingline Loans at a time when a Bank Default exists
unless BTCo has entered into arrangements satisfactory to it and the Borrower to
eliminate BTCo's risk with respect to the Defaulting Bank's or Banks'
participation in such Swingline Loans, including by cash collateralizing such
Defaulting Bank's or Banks' RL Percentage of the outstanding Swingline Loans and
(ii) BTCo will not make a Swingline Loan after it has received written notice
from the Borrower or the Required Banks stating that a Default or an Event of
Default exists until such time as BTCo shall have received a written notice of
(i) rescission of such notice from the party or parties originally delivering
the same or (ii) a waiver of such Default or Event of Default from the Required
Banks.
(d) On any Business Day, BTCo may, in its sole discretion, give
notice to the RL Banks that its outstanding Swingline Loans shall be funded with
a Borrowing of Revolving Loans (provided that each such notice shall be deemed
--------
to have been automatically given upon the occurrence of a Default or an Event of
Default under Section 10.05 or upon the exercise of any of the remedies provided
in the last paragraph of Section 10), in which case a Borrowing of Revolving
Loans constituting Base Rate Loans (each such Borrowing, a "Mandatory
Borrowing") shall be made on the immediately succeeding Business Day by all RL
Banks pro rata based on each RL Bank's Adjusted RL Percentage, and the proceeds
--- ----
thereof shall be applied directly to repay BTCo for such outstanding Swingline
Loans. Each RL Bank hereby irrevocably agrees to make Base Rate Loans upon one
Business Day's notice pursuant to each Mandatory Borrowing in the amount and in
the manner specified in the preceding sentence and on the date specified in
writing by BTCo notwithstanding (i) that the amount of the Mandatory Borrowing
may not comply with the Minimum Borrowing Amount otherwise required hereunder,
(ii) whether any conditions specified in Section 5 or 6 are then satisfied,
(iii) whether a Default or an Event of Default has occurred and is continuing,
(iv) the date of such Mandatory Borrowing and (v) the amount of the Total
Revolving Loan Commitment or the Adjusted Total Revolving Loan Commitment at
such time. In the event that any Mandatory Borrowing cannot for any reason be
made on the date
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<PAGE>
otherwise required above (including, without limitation, as a result of the
commencement of a proceeding under the Bankruptcy Code in respect of the
Borrower), each RL Bank (other than BTCo) hereby agrees that it shall forthwith
purchase from BTCo (without recourse or warranty) such assignment of the
outstanding Swingline Loans as shall be necessary to cause the RL Banks to share
in such Swingline Loans ratably based upon their respective Adjusted RL
Percentages (determined before giving effect to any termination of the Revolving
Loan Commitments pursuant to the last paragraph of Section 10), provided that
--------
(x) all interest payable on the Swingline Loans shall be for the account of BTCo
until the date the respective assignment is purchased and, to the extent
attributable to the purchased assignment, shall be payable to the RL Bank
purchasing same from and after such date of purchase (or, if earlier, from the
date on which the Mandatory Borrowing would otherwise have occurred, so long as
the payments required by following clause (y) have in fact been made) and (y) at
the time any purchase of assignments pursuant to this sentence is actually made,
the purchasing RL Bank shall be required to pay BTCo interest on the principal
amount of assignment purchased for each day from and including the day upon
which the Mandatory Borrowing would otherwise have occurred to but excluding the
date of payment for such assignment, at the rate otherwise applicable to
Revolving Loans maintained as Base Rate Loans hereunder for each day thereafter.
(e) Subject to and upon the terms and conditions set forth herein,
each Existing Tranche B Term Loan Bank severally agrees to continue, on the
Third Restatement Effective Date, the Existing Tranche B Term Loans made by such
Existing Tranche B Term Loan Bank to the Borrower pursuant to the First Amended
and Restated Credit Agreement and outstanding on the Third Restatement Effective
Date (immediately prior to giving effect thereto) (such Existing Tranche B Term
Loans continued as provided above, the "Tranche B Term Loans"), which Tranche B
Term Loans:
(i) shall be denominated in U.S. Dollars;
(ii) except as hereafter provided, shall, at the option of the
Borrower, be continued and maintained as, and/or converted into, Base Rate
Loans or Eurodollar Loans, provided that except as otherwise specifically
--------
provided in Section 1.10(b), all Tranche B Term Loans made as part of the
same Borrowing shall at all times consist of Tranche B Term Loans of the
same Type; and
(iii) shall not exceed for any Existing Tranche B Term Loan Bank, in
initial principal amount, that amount which equals the aggregate
outstanding principal amount of the Existing Tranche B Term Loans, if any,
made by such Existing Tranche B Term Loan Bank and outstanding on the Third
Restatement Effective Date (immediately prior to giving effect thereto) as
set forth on Schedule I hereto.
Once repaid, Tranche B Term Loans incurred hereunder may not be reborrowed.
(f) Subject to and upon the terms and conditions set forth herein,
each Existing Tranche C Term Loan Bank severally agrees to continue, on the
Third Restatement Effective Date, the Existing Tranche C Term Loans made by such
Existing Tranche C Term Loan Bank to the Borrower pursuant to the Second Amended
and Restated Credit Agreement and outstanding
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<PAGE>
on the Third Restatement Effective Date (immediately prior to giving effect
thereto) (such Existing Tranche C Term Loans continued as provided above, the
"Tranche C Term Loans"), which Tranche C Term Loans:
(i) shall be denominated in U.S. Dollars;
(ii) except as hereafter provided, shall, at the option of the
Borrower, be continued and maintained as, and/or converted into, Base Rate
Loans or Eurodollar Loans, provided that except as otherwise specifically
--------
provided in Section 1.10(b), all Tranche C Term Loans made as part of the
same Borrowing shall at all times consist of Tranche C Term Loans of the
same Type; and
(iii) shall not exceed for any Existing Tranche C Term Loan Bank, in
initial principal amount, that amount which equals the aggregate
outstanding principal amount of the Existing Tranche C Term Loans, if any,
made by such Existing Tranche C Term Loan Bank and outstanding on the Third
Restatement Effective Date (immediately prior to giving effect thereto) as
set forth on Schedule I hereto.
Once repaid, Tranche C Term Loans incurred hereunder may not be reborrowed.
(g) Subject to and upon the terms and conditions set forth herein,
each Bank with a Tranche D Term Loan Commitment severally agrees to make, on the
Third Restatement Effective Date, a term loan or term loans (each, a "Tranche D
Term Loan" and, collectively, the "Tranche D Term Loans") to the Borrower, which
Tranche D Term Loans:
(i) shall be denominated in U.S. Dollars;
(ii) except as hereafter provided, shall, at the option of the
Borrower, be incurred and maintained as, and/or converted into, Base Rate
Loans or Eurodollar Loans, provided that (x) except as otherwise
--------
specifically provided in Section 1.10(b), all Tranche D Term Loans made as
part of the same Borrowing shall at all times consist of Tranche D Term
Loans of the same Type and (y) unless the Agents have determined that the
Syndication Date has occurred (at which time this clause (y) shall no
longer be applicable), no more than three Borrowings of Tranche D Term
Loans to be maintained as Eurodollar Loans may be incurred prior to the
90th day after the Third Restatement Effective Date (or, if later, the last
day of the Interest Period applicable to the third Borrowing of Eurodollar
Loans referred to below), each of which Borrowings of Eurodollar Loans may
only have an Interest Period of one month, and the first of which
Borrowings may only be made on, or within five Business Days after, the
Third Restatement Effective Date, the second of which Borrowings may only
be made on the last day of the Interest Period of the first such Borrowing
and the third of which Borrowings may only be made on the last day of the
Interest Period of the second such Borrowing; and
(iii) shall not exceed for any Bank, in initial principal amount,
that amount which equals the Tranche D Term Loan Commitment of such Bank as
in effect on the Third
-5-
<PAGE>
Restatement Effective Date (before giving effect to any reduction thereto
on such date pursuant to Section 3.03(b)).
Once repaid, Tranche D Term Loans incurred hereunder may not be reborrowed.
1.02 Minimum Borrowing Amounts, etc. The aggregate principal amount
-------------------------------
of each Borrowing of Loans under a respective Tranche shall not be less than the
Minimum Borrowing Amount applicable to such Tranche, provided that Mandatory
--------
Borrowings shall be made in the amounts required by Section 1.01(d). More than
one Borrowing may be incurred on any day, provided that at no time shall there
--------
be outstanding more than nine Borrowings of Eurodollar Loans.
1.03 Notice of Borrowing. (a) Whenever the Borrower desires to make
-------------------
a Borrowing of Loans hereunder (excluding Borrowings of Swingline Loans and
Mandatory Borrowings), it shall give the Administrative Agent at its Notice
Office, prior to 12:00 Noon (New York time), at least three Business Days' prior
written notice (or telephonic notice promptly confirmed in writing) of each
Borrowing of Eurodollar Loans and at least one Business Day's prior written
notice (or telephonic notice promptly confirmed in writing) of each Borrowing of
Base Rate Loans to be made hereunder. Each such notice (each, a "Notice of
Borrowing") shall, except as otherwise expressly provided in Section 1.10, be
irrevocable, and, in the case of each written notice and each confirmation of
telephonic notice, shall be given by an Authorized Officer of the Borrower in
the form of Exhibit A, appropriately completed to specify: (i) the aggregate
principal amount of the Loans to be made pursuant to such Borrowing, (ii) the
date of such Borrowing (which shall be a Business Day), (iii) whether the
respective Borrowing shall consist of Tranche A Term Loans, Tranche B Term
Loans, Tranche C Term Loans, Tranche D Term Loans or Revolving Loans, (iv)
whether the respective Borrowing shall consist of Base Rate Loans or, to the
extent permitted hereunder, Eurodollar Loans and, if Eurodollar Loans, the
Interest Period to be initially applicable thereto and (v) in the case of a
Borrowing of Revolving Loans the proceeds of which are to be utilized to
finance, in whole or in part, the purchase price of a Permitted Acquisition, (x)
a reference to the officer's certificate, if any, delivered in accordance with
Section 8.14, (y) the aggregate principal amount of such Revolving Loans to be
utilized in connection with such Permitted Acquisition and (z) the Total
Unutilized Revolving Loan Commitment then in effect after giving effect to the
respective Permitted Acquisition (and all payments to be made in connection
therewith). The Administrative Agent shall promptly give each Bank which is
required to make Loans of the Tranche specified in the respective Notice of
Borrowing, written notice (or telephonic notice promptly confirmed in writing)
of each proposed Borrowing, of such Bank's proportionate share thereof and of
the other matters required by the immediately preceding sentence to be specified
in the Notice of Borrowing.
(b) (i) Whenever the Borrower desires to incur Swingline Loans
hereunder, it shall give BTCo not later than 12:00 Noon (New York time) on the
day such Swingline Loan is to be made, written notice (or telephonic notice
promptly confirmed in writing) of each Swingline Loan to be made hereunder.
Each such notice shall be irrevocable and shall specify in each case (x) the
date of such Borrowing (which shall be a Business Day) and (y) the aggregate
principal amount of the Swingline Loan to be made pursuant to such Borrowing.
-6-
<PAGE>
(ii) Mandatory Borrowings shall be made upon the notice (or deemed
notice) specified in Section 1.01(d), with the Borrower irrevocably agreeing, by
its incurrence of any Swingline Loan, to the making of Mandatory Borrowings as
set forth in such Section 1.01(d).
(c) Without in any way limiting the obligation of the Borrower to
confirm in writing any telephonic notice permitted to be given hereunder, the
Administrative Agent or BTCo (in the case of a Borrowing of Swingline Loans) or
the Letter of Credit Issuer (in the case of the issuance of Letters of Credit),
as the case may be, may prior to receipt of written confirmation act without
liability upon the basis of such telephonic notice, believed by the
Administrative Agent, BTCo or the Letter of Credit Issuer, as the case may be,
in good faith to be from an Authorized Officer of the Borrower. In each such
case, the Administrative Agent's, BTCo's or the respective Letter of Credit
Issuer's, as the case may be, record of the terms of such telephonic notice
shall be conclusive evidence of the contents of such notice, absent manifest
error.
1.04 Disbursement of Funds. (a) Not later than 1:00 P.M. (New York
---------------------
time) on the date specified in each Notice of Borrowing (or (x) in the case of
Swingline Loans, not later than 2:00 P.M. (New York time) on the date specified
in Section 1.03(b)(i) or (y) in the case of Mandatory Borrowings, not later than
12:00 Noon (New York time) on the date specified in Section 1.01(d)), each Bank
with a Commitment of the respective Tranche will make available its pro rata
--- ----
share (determined in accordance with Section 1.07), if any, of each Borrowing
requested to be made on such date (or in the case of Swingline Loans, BTCo shall
make available the full amount thereof) in the manner provided below. All
amounts shall be made available to the Administrative Agent in U.S. Dollars and
in immediately available funds at the Payment Office and the Administrative
Agent promptly will make available to the Borrower by depositing to its account
at the Payment Office the aggregate of the amounts so made available in the type
of funds received. Unless the Administrative Agent shall have been notified by
any Bank prior to the date of Borrowing that such Bank does not intend to make
available to the Administrative Agent its portion of the Borrowing or Borrowings
to be made on such date, the Administrative Agent may assume that such Bank has
made such amount available to the Administrative Agent on such date of
Borrowing, and the Administrative Agent, in reliance upon such assumption, may
(in its sole discretion and without any obligation to do so) make available to
the Borrower a corresponding amount. If such corresponding amount is not in
fact made available to the Administrative Agent by such Bank and the
Administrative Agent has made available same to the Borrower, the Administrative
Agent shall be entitled to recover such corresponding amount on demand from such
Bank. If such Bank does not pay such corresponding amount forthwith upon the
Administrative Agent's demand therefor, the Administrative Agent shall promptly
notify the Borrower, and the Borrower shall immediately pay such corresponding
amount to the Administrative Agent. The Administrative Agent shall also be
entitled to recover on demand from such Bank or the Borrower, as the case may
be, interest on such corresponding amount in respect of each day from the date
such corresponding amount was made available by the Administrative Agent to the
Borrower to the date such corresponding amount is recovered by the
Administrative Agent, at a rate per annum equal to (x) if paid by such Bank, the
overnight Federal Funds Rate or (y) if paid by the Borrower, the then applicable
rate of interest, calculated in accordance with Section 1.08.
-7-
<PAGE>
(b) Nothing in this Agreement shall be deemed to relieve any Bank
from its obligation to fulfill its commitments hereunder or to prejudice any
rights which the Borrower may have against any Bank as a result of any default
by such Bank hereunder.
1.05 Notes. (a) The Borrower's obligation to pay the principal of,
-----
and interest on, all the Loans made to it by each Bank shall be set forth on the
Register maintained by the Administrative Agent pursuant to Section 13.17 and,
subject to the provisions of Section 1.05(i), shall be evidenced (i) if Tranche
A Term Loans, by a promissory note substantially in the form of Exhibit B-1 with
blanks appropriately completed in conformity herewith (each, a "Tranche A Term
Note" and, collectively, the "Tranche A Term Notes"), (ii) if Tranche B Term
Loans, by a promissory note substantially in the form of Exhibit B-2 with blanks
appropriately completed in conformity herewith (each, a "Tranche B Term Note"
and, collectively, the "Tranche B Term Notes"), (iii) if Tranche C Term Loans,
by a promissory note substantially in the form of Exhibit B-3 with blanks
appropriately completed in conformity herewith (each, a "Tranche C Term Note"
and, collectively, the "Tranche C Term Notes"), (iv) if Tranche D Term Loans, by
a promissory note substantially in the form of Exhibit B-4 with blanks
appropriately completed in conformity herewith (each, a "Tranche D Term Note"
and, collectively, the "Tranche D Term Notes"), (v) if Revolving Loans, by a
promissory note substantially in the form of Exhibit B-5 with blanks
appropriately completed in conformity herewith (each, a "Revolving Note" and,
collectively, the "Revolving Notes") and (vi) if Swingline Loans, by a
promissory note substantially in the form of Exhibit B-6 with blanks
appropriately completed in conformity herewith (the "Swingline Note").
(b) The Tranche A Term Note issued to each Bank with outstanding
Tranche A Term Loans shall (i) be executed by the Borrower, (ii) be payable to
such Bank or its registered assigns and be dated the Third Restatement Effective
Date (or, in the case of any Tranche A Term Note issued after the Third
Restatement Effective Date, the date of issuance thereof), (iii) be in a stated
principal amount equal to the principal amount of the Tranche A Term Loans
continued by such Bank on the Third Restatement Effective Date (or, in the case
of any Tranche A Term Note issued after the Third Restatement Effective Date, in
a stated principal amount equal to the outstanding principal amount of the
Tranche A Term Loan of such Bank on the date of the issuance thereof) and be
payable in the principal amount of Tranche A Term Loans evidenced thereby from
time to time, (iv) mature on the Tranche A Term Loan Maturity Date, (v) bear
interest as provided in the appropriate clause of Section 1.08 in respect of the
Base Rate Loans and Eurodollar Loans, as the case may be, evidenced thereby,
(vi) be subject to voluntary repayment as provided in Section 4.01 and mandatory
repayment as provided in Section 4.02 and (vii) be entitled to the benefits of
this Agreement and the other Credit Documents.
(c) The Tranche B Term Note issued to each Bank with outstanding
Tranche B Term Loans shall (i) be executed by the Borrower, (ii) be payable to
such Bank or its registered assigns and be dated the Third Restatement Effective
Date (or, in the case of any Tranche B Term Note issued after the Third
Restatement Effective Date, the date of issuance thereof), (iii) be in a stated
principal amount equal to the principal amount of the Tranche B Term Loans
continued by such Bank on the Third Restatement Effective Date (or, in the case
of any Tranche B Term Note issued after the Third Restatement Effective Date, in
a stated principal amount equal to the outstanding principal amount of the
Tranche B Term Loan of such Bank on the date
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<PAGE>
of the issuance thereof) and be payable in the principal amount of Tranche B
Term Loans evidenced thereby from time to time, (iv) mature on the Tranche B
Term Loan Maturity Date, (v) bear interest as provided in the appropriate clause
of Section 1.08 in respect of the Base Rate Loans and Eurodollar Loans, as the
case may be, evidenced thereby, (vi) be subject to voluntary repayment as
provided in Section 4.01 and mandatory repayment as provided in Section 4.02 and
(vii) be entitled to the benefits of this Agreement and the other Credit
Documents.
(d) The Tranche C Term Note issued to each Bank with outstanding
Tranche C Term Loans shall (i) be executed by the Borrower, (ii) be payable to
such Bank or its registered assigns and be dated the Third Restatement Effective
Date (or, in the case of any Tranche C Term Note issued after the Third
Restatement Effective Date, the date of issuance thereof), (iii) be in a stated
principal amount equal to the Tranche C Term Loans continued by such Bank on the
Third Restatement Effective Date (or, in the case of any Tranche C Term Note
issued after the Third Restatement Effective Date, in a stated principal amount
equal to the outstanding principal amount of the Tranche C Term Loan of such
Bank on the date of the issuance thereof) and be payable in the principal amount
of Tranche C Term Loans evidenced thereby from time to time, (iv) mature on the
Tranche C Term Loan Maturity Date, (v) bear interest as provided in the
appropriate clause of Section 1.08 in respect of the Base Rate Loans and
Eurodollar Loans, as the case may be, evidenced thereby, (vi) be subject to
voluntary repayment as provided in Section 4.01 and mandatory repayment as
provided in Section 4.02 and (vii) be entitled to the benefits of this Agreement
and the other Credit Documents.
(e) The Tranche D Term Note issued to each Bank with a Tranche D Term
Loan Commitment and/or outstanding Tranche D Term Loans shall (i) be executed by
the Borrower, (ii) be payable to such Bank or its registered assigns and be
dated the Third Restatement Effective Date (or, in the case of any Tranche D
Term Note issued after the Third Restatement Effective Date, the date of
issuance thereof), (iii) be in a stated principal amount equal to the Tranche D
Term Loan Commitment of such Bank on the Third Restatement Effective Date (or,
in the case of any Tranche D Term Note issued after the Third Restatement
Effective Date, in a stated principal amount equal to the outstanding principal
amount of the Tranche D Term Loan of such Bank on the date of the issuance
thereof) and be payable in the principal amount of Tranche D Term Loans
evidenced thereby from time to time, (iv) mature on the Tranche D Term Loan
Maturity Date, (v) bear interest as provided in the appropriate clause of
Section 1.08 in respect of the Base Rate Loans and Eurodollar Loans, as the case
may be, evidenced thereby, (vi) be subject to voluntary repayment as provided in
Section 4.01 and mandatory repayment as provided in Section 4.02 and (vii) be
entitled to the benefits of this Agreement and the other Credit Documents.
(f) The Revolving Note issued to each RL Bank shall (i) be executed
by the Borrower, (ii) be payable to such RL Bank or its registered assigns and
be dated the Third Restatement Effective Date (or, in the case of any Revolving
Note issued after the Third Restatement Effective Date, the date of issuance
thereof), (iii) be in a stated principal amount equal to the Revolving Loan
Commitment of such RL Bank and be payable in the principal amount of the
outstanding Revolving Loans evidenced thereby, (iv) mature on the Revolving Loan
Maturity Date, (v) bear interest as provided in the appropriate clause of
Section 1.08 in respect of the Base Rate Loans and Eurodollar Loans, as the case
may be, evidenced thereby, (vi)
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<PAGE>
be subject to voluntary prepayment as provided in Section 4.01 and mandatory
repayment as provided in Section 4.02 and (vii) be entitled to the benefits of
this Agreement and the other Credit Documents.
(g) The Swingline Note issued to BTCo shall (i) be executed by the
Borrower, (ii) be payable to BTCo or its registered assigns and be dated the
Third Restatement Effective Date, (iii) be in a stated principal amount equal to
the Maximum Swingline Amount and be payable in the principal amount of the
outstanding Swingline Loans evidenced thereby, (iv) mature on the Swingline
Expiry Date, (v) bear interest as provided in Section 1.08 in respect of the
Base Rate Loans evidenced thereby, (vi) be subject to voluntary prepayment as
provided in Section 4.01 and mandatory repayment as provided in Section 4.02 and
(vii) be entitled to the benefits of this Agreement and the other Credit
Documents.
(h) Each Bank will note on its internal records the amount of each
Loan made by it and each payment in respect thereof and will prior to any
transfer of any of its Notes endorse on the reverse side thereof the outstanding
principal amount of Loans evidenced thereby. Failure to make any such notation
or any error in such notation shall not affect the Borrower's obligations in
respect of such Loans.
(i) Notwithstanding anything to the contrary contained above or
elsewhere in this Agreement, Notes shall only be delivered to Banks which at any
time specifically request the delivery of such Notes. No failure of any Bank to
request or obtain a Note evidencing its Loans to the Borrower shall affect or in
any manner impair the obligations of the Borrower to pay the Loans (and all
related Obligations) which would otherwise be evidenced thereby in accordance
with the requirements of this Agreement, and shall not in any way affect the
security or guaranties therefor provided pursuant to the various Credit
Documents. Any Bank which does not have a Note evidencing its outstanding Loans
shall in no event be required to make the notations otherwise described in
preceding clause (h). At any time when any Bank requests the delivery of a Note
to evidence any of its Loans, the Borrower shall promptly execute and deliver to
the respective Bank the requested Note in the appropriate amount or amounts to
evidence such Loans.
1.06 Conversions. The Borrower shall have the option to convert on
-----------
any Business Day occurring on or after the Third Restatement Effective Date, all
or a portion at least equal to the applicable Minimum Borrowing Amount of the
outstanding principal amount of Loans (other than Swingline Loans, which shall
at all times be maintained as Base Rate Loans) made pursuant to one or more
Borrowings of one or more Types of Loans under a single Tranche into a Borrowing
or Borrowings of another Type of Loan under such Tranche; provided that (i)
--------
except as otherwise provided in Section 1.10(b) or unless the Borrower pays all
breakage costs and other amounts owing to each Bank pursuant to Section 1.11
concurrently with any such conversion, Eurodollar Loans may be converted into
Base Rate Loans only on the last day of an Interest Period applicable to the
Loans being converted, and no partial conversion of a Borrowing of Eurodollar
Loans shall reduce the outstanding principal amount of the Eurodollar Loans made
pursuant to such Borrowing to less than the Minimum Borrowing Amount applicable
thereto, (ii) unless the Required Lenders otherwise agree, Base Rate Loans may
only be converted into Eurodollar Loans if no Default or Event of Default is in
existence on the date of the conversion,
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<PAGE>
(iii) unless the Agents have determined that the Syndication Date has occurred
(at which time this clause (iii) shall no longer be applicable), prior to the
90th day after the Third Restatement Effective Date, Tranche D Term Loans
maintained as Base Rate Loans may not be converted into Eurodollar Loans unless
any such conversion is effective on the first day of the first, second or third
Interest Period referred to in clause (y) of Section 1.01(g)(ii) and so long as
such conversion does not result in a greater number of Borrowings of Eurodollar
Loans prior to the 90th day after the Third Restatement Effective Date as are
permitted under Section 1.01(g)(ii) and (iv) Borrowings of Eurodollar Loans
resulting from this Section 1.06 shall be limited in number as provided in
Section 1.02. Each such conversion shall be effected by the Borrower by giving
the Administrative Agent at its Notice Office, prior to 11:00 A.M. (New York
time), at least three Business Days' (or one Business Day's in the case of a
conversion into Base Rate Loans) prior written notice (or telephonic notice
promptly confirmed in writing) (each, a "Notice of Conversion") specifying the
Loans to be so converted, the Borrowing(s) pursuant to which the Loans were made
and, if to be converted into a Borrowing of Eurodollar Loans, the Interest
Period to be initially applicable thereto. The Administrative Agent shall give
each Bank prompt notice of any such proposed conversion affecting any of its
Loans. Upon any such conversion, the proceeds thereof will be deemed to be
applied directly on the day of such conversion to prepay the outstanding
principal amount of the Loans being converted.
1.07 Pro Rata Borrowings. All Borrowings of Tranche A Term Loans,
-------------------
Tranche B Term Loans, Tranche C Term Loans, Tranche D Term Loans and Revolving
Loans under this Agreement shall be incurred by the Borrower from the Banks pro
---
rata on the basis of such Banks' Tranche A Term Loan Borrowing Amounts, Tranche
- ----
B Term Loan Borrowing Amounts, Tranche C Term Loan Borrowing Amounts, Tranche D
Term Loan Commitments or Revolving Loan Commitments, as the case may be, in each
case as in effect on the date of the respective Borrowing; provided that all
--------
Borrowings of Revolving Loans made pursuant to a Mandatory Borrowing shall be
incurred from the RL Banks pro rata on the basis of their respective Adjusted RL
--- ----
Percentages. It is understood that no Bank shall be responsible for any default
by any other Bank of its obligation to make Loans hereunder and that each Bank
shall be obligated to make the Loans to be made by it hereunder, regardless of
the failure of any other Bank to fulfill its commitments hereunder.
1.08 Interest. (a) The unpaid principal amount of each Base Rate
--------
Loan shall bear interest from the date of the Borrowing thereof until the
earlier of (i) the maturity (whether by acceleration or otherwise) of such Base
Rate Loan and (ii) the conversion of such Base Rate Loan to a Eurodollar Loan
pursuant to Section 1.06, at a rate per annum which shall at all times be the
relevant Applicable Margin plus the Base Rate, each as in effect from time to
----
time.
(b) The unpaid principal amount of each Eurodollar Loan shall bear
interest from the date of the Borrowing thereof until the earlier of (i) the
maturity (whether by acceleration or otherwise) of such Eurodollar Loan and (ii)
the conversion of such Eurodollar Loan to a Base Rate Loan pursuant to Section
1.06, 1.09 or 1.10(b), as applicable, at a rate per annum which shall at all
times be the relevant Applicable Margin plus the Eurodollar Rate for such
----
Interest Period, each as in effect from time to time.
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<PAGE>
(c) Overdue principal and, to the extent permitted by law, overdue
interest in respect of each Loan shall bear interest at a rate per annum equal
to the greater of (x) the rate which is 2% in excess of the rate borne by the
respective such Loans immediately prior to the respective payment default and
(y) the rate which is 2% in excess of the rate otherwise applicable to Base Rate
Loans from time to time. Interest which accrues under this Section 1.08(c)
shall be payable on demand.
(d) Interest shall accrue from and including the date of any
Borrowing to but excluding the date of any repayment thereof and shall be
payable (i) in respect of each Base Rate Loan, quarterly in arrears on each
Quarterly Payment Date, (ii) in respect of each Eurodollar Loan, on (x) the date
of any conversion into a Base Rate Loan pursuant to Section 1.06, 1.09 or
1.10(b), as applicable (on the amount converted) and (y) the last day of each
Interest Period applicable thereto and, in the case of an Interest Period in
excess of three months, on each date occurring at three month intervals after
the first day of such Interest Period and (iii) in respect of each Loan, on (x)
the date of any prepayment or repayment thereof (on the amount prepaid or
repaid), (y) at maturity (whether by acceleration or otherwise) and (z) after
such maturity, on demand.
(e) All computations of interest hereunder shall be made in
accordance with Section 13.07(b).
(f) Upon each Interest Determination Date, the Administrative Agent
shall determine the Eurodollar Rate for the respective Interest Period or
Interest Periods and shall promptly notify the Borrower and the Banks thereof.
Each such determination shall, absent manifest error, be final and conclusive
and binding on all parties hereto.
1.09 Interest Periods. At the time the Borrower gives a Notice of
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Borrowing or Notice of Conversion in respect of the making of, or conversion
into, a Borrowing of Eurodollar Loans (in the case of the initial Interest
Period applicable thereto) or prior to 11:00 A.M. (New York time) on the third
Business Day prior to the expiration of an Interest Period applicable to a
Borrowing of Eurodollar Loans (in the case of any subsequent Interest Period),
the Borrower shall have the right to elect by giving the Administrative Agent
written notice (or telephonic notice promptly confirmed in writing) of the
Interest Period applicable to such Borrowing, which Interest Period shall, at
the option of the Borrower (but otherwise subject to clause (y) of the proviso
to Section 1.01(g)(ii) and clause (iii) of the proviso to Section 1.06), be a
one, two, three or six month period. Notwithstanding anything to the contrary
contained above:
(i) all Eurodollar Loans comprising a Borrowing shall at all times
have the same Interest Period;
(ii) the initial Interest Period for any Borrowing of Eurodollar
Loans shall commence on the date of such Borrowing (including the date of
any conversion from a Borrowing of Base Rate Loans) and each Interest
Period occurring thereafter in respect of such Borrowing shall commence on
the day on which the next preceding Interest Period applicable thereto
expires;
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<PAGE>
(iii) if any Interest Period for any Borrowing of Eurodollar Loans
begins on a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period, such Interest Period
shall end on the last Business Day of such calendar month;
(iv) if any Interest Period would otherwise expire on a day which
is not a Business Day, such Interest Period shall expire on the next
succeeding Business Day, provided that if any Interest Period for any
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Borrowing of Eurodollar Loans would otherwise expire on a day which is not
a Business Day but is a day of the month after which no further Business
Day occurs in such month, such Interest Period shall expire on the next
preceding Business Day;
(v) no Interest Period for a Borrowing under a Tranche shall be
selected which would extend beyond the respective Maturity Date for such
Tranche;
(vi) no Interest Period may be elected at any time when a Default
or an Event of Default is then in existence;
(vii) no Interest Period in respect of any Borrowing of Revolving
Loans shall be elected which extends beyond any date upon which a Scheduled
Commitment Reduction will be required to be made under Section 3.03(c) if
the aggregate principal amount of such Revolving Loans which have Interest
Periods which will expire after such date, when added to the Stated Amount
of all Letters of Credit which by their terms expire after such date, will
be in excess of the Total Revolving Loan Commitment as the same will be in
effect after giving effect to the respective Scheduled Commitment
Reduction; and
(viii) no Interest Period in respect of any Borrowing of Tranche A
Term Loans, Tranche B Term Loans, Tranche C Term Loans or Tranche D Term
Loans shall be elected which extends beyond any date upon which a Scheduled
Repayment of such Tranche of Term Loans will be required to be made under
Section 4.02(b) if, after giving effect to the election of such Interest
Period, the aggregate principal amount of such Tranche A Term Loans,
Tranche B Term Loans, Tranche C Term Loans or Tranche D Term Loans, as the
case may be, which have Interest Periods which will expire after such date
will be in excess of the aggregate principal amount of such Tranche A Term
Loans, Tranche B Term Loans, Tranche C Term Loans or Tranche D Term Loans,
as the case may be, then outstanding less the aggregate amount of such
required Scheduled Repayment.
If upon the expiration of any Interest Period applicable to a
Borrowing of Eurodollar Loans, the Borrower has failed to elect, or is not
permitted to elect, a new Interest Period to be applicable to the respective
Borrowing of Eurodollar Loans as provided above, the Borrower shall be deemed to
have elected to convert such Borrowing into a Borrowing of Base Rate Loans
effective as of the expiration date of such current Interest Period.
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<PAGE>
1.10 Increased Costs; Illegality; etc. (a) In the event that (x) in
---------------------------------
the case of clause (i) below, the Administrative Agent or (y) in the case of
clauses (ii) and (iii) below, any Bank, shall have determined (which
determination shall, absent manifest error, be final and conclusive and binding
upon all parties hereto):
(i) on any Interest Determination Date, that, by reason of any
changes arising after the Third Restatement Effective Date affecting the
interbank Eurodollar market, adequate and fair means do not exist for
ascertaining the applicable interest rate on the basis provided for in the
definition of Eurodollar Rate; or
(ii) at any time, that such Bank shall incur increased costs or
reductions in the amounts received or receivable hereunder with respect to
any Eurodollar Loans because of (x) any change since the Third Restatement
Effective Date in any applicable law, governmental rule, regulation,
guideline, order or request (whether or not having the force of law), or in
the interpretation or administration thereof and including the introduction
of any new law or governmental rule, regulation, guideline, order or
request, such as, for example, but not limited to, (A) a change in the
basis of taxation of payment to any Bank of the principal of or interest on
such Eurodollar Loans or any other amounts payable hereunder (except for
changes with respect to any tax imposed on, or determined by reference to,
the net income, net profits or capital (including branch profits tax) of
such Bank or any franchise tax based on the net income or net profits of
such Bank pursuant to the laws of the jurisdiction in which such Bank is
organized, or in which such Bank's principal office or applicable lending
office is located or any subdivision thereof or therein), or (B) a change
in official reserve requirements, but, in all events, excluding reserves
required under Regulation D to the extent included in the computation of
the Eurodollar Rate and/or (y) other circumstances affecting such Bank, the
interbank Eurodollar market or the position of such Bank in such market; or
(iii) at any time since the Third Restatement Effective Date, that
the making or continuance of any Eurodollar Loan has become unlawful by
compliance by such Bank with any law, governmental rule, regulation,
guideline or order (or would conflict with any governmental rule,
regulation, guideline, request or order not having the force of law but
with which such Bank customarily complies even though the failure to comply
therewith would not be unlawful), or has become impracticable as a result
of a contingency occurring after the Third Restatement Effective Date which
materially and adversely affects the interbank Eurodollar market;
then, and in any such event, such Bank (or the Administrative Agent in the case
of clause (i) above) shall promptly give notice (by telephone confirmed in
writing) to the Borrower and (except in the case of clause (i)) to the
Administrative Agent of such determination (which notice the Administrative
Agent shall promptly transmit to each of the other Banks). Thereafter, (x) in
the case of clause (i) above, Eurodollar Loans shall no longer be available
until such time as the Administrative Agent notifies the Borrower and the Banks
that the circumstances giving rise to such notice by the Administrative Agent no
longer exist, and any Notice of Borrowing or Notice of Conversion given by the
Borrower with respect to Eurodollar Loans which have not yet been incurred
(including by way of conversion) shall be deemed rescinded by the Borrower, (y)
in the
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<PAGE>
case of clause (ii) above, the Borrower agrees, subject to the provisions of
Section 13.18 (to the extent applicable), to pay to such Bank, upon written
demand therefor, such additional amounts (in the form of an increased rate of,
or a different method of calculating, interest or otherwise as such Bank in its
sole discretion shall determine) as shall be required to compensate such Bank
for such increased costs or reductions in amounts received or receivable
hereunder but without duplication of any payments due under Section 4.04 (a
written notice as to the additional amounts owed to such Bank, showing in
reasonable detail the basis for the calculation thereof, submitted to the
Borrower by such Bank shall, absent manifest error, be final and conclusive and
binding upon all parties hereto, although the failure to give any such notice
shall not release or diminish any of the Borrower's obligations to pay
additional amounts pursuant to this Section 1.10(a) upon the subsequent receipt
of such notice) and (z) in the case of clause (iii) above, the Borrower shall
take one of the actions specified in Section 1.10(b) as promptly as possible
and, in any event, within the time period required by law.
(b) At any time that any Eurodollar Loan is affected by the
circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may (and
in the case of a Eurodollar Loan affected pursuant to Section 1.10(a)(iii), the
Borrower shall) either (i) if the affected Eurodollar Loan is then being made
pursuant to a Borrowing, cancel said Borrowing by giving the Administrative
Agent telephonic notice (confirmed promptly in writing) thereof on the same date
that the Borrower was notified by a Bank pursuant to Section 1.10(a)(ii) or
(iii)), or (ii) if the affected Eurodollar Loan is then outstanding, upon at
least three Business Days' notice to the Administrative Agent, require the
affected Bank to convert each such Eurodollar Loan into a Base Rate Loan (which
conversion, in the case of the circumstance described in Section 1.10(a)(iii),
shall occur no later than the last day of the Interest Period then applicable to
such Eurodollar Loan or such earlier day as shall be required by applicable
law); provided that if more than one Bank is affected at any time, then all
--------
affected Banks must be treated the same pursuant to this Section 1.10(b).
(c) If any Bank shall have determined that after the Third
Restatement Effective Date, the adoption or effectiveness of any applicable law,
rule or regulation regarding capital adequacy, or any change therein, or any
change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by such Bank or any corporation
controlling such Bank with any request or directive regarding capital adequacy
(whether or not having the force of law) of any such authority, central bank or
comparable agency, has or would have the effect of reducing the rate of return
on such Bank's or such other corporation's capital or assets as a consequence of
such Bank's Commitment or Commitments hereunder or its obligations hereunder to
a level below that which such Bank or such other corporation could have achieved
but for such adoption, effectiveness, change or compliance (taking into
consideration such Bank's or such other corporation's policies with respect to
capital adequacy), then from time to time, upon written demand by such Bank
(with a copy to the Administrative Agent), accompanied by the notice referred to
in the last sentence of this clause (c), the Borrower agrees, subject to the
provisions of Section 13.18 (to the extent applicable), to pay to such Bank such
additional amount or amounts as will compensate such Bank or such other
corporation for such reduction in the rate of return to such Bank or such other
corporation. Each Bank, upon determining in good faith that any additional
amounts will be payable pursuant to this Section 1.10(c), will give prompt
written
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<PAGE>
notice thereof to the Borrower (a copy of which shall be sent by such Bank to
the Administrative Agent), which notice shall set forth in reasonable detail the
basis of the calculation of such additional amounts, although the failure to
give any such notice shall not release or diminish the Borrower's obligations to
pay additional amounts pursuant to this Section 1.10(c) upon the subsequent
receipt of such notice. A Bank's reasonable good faith determination of
compensation owing under this Section 1.10(c) shall, absent manifest error, be
final and conclusive and binding on all the parties hereto.
1.11 Compensation. The Borrower agrees, subject to the provisions of
------------
Section 13.18 (to the extent applicable), to compensate each Bank, promptly upon
its written request (which request shall set forth in reasonable detail the
basis for requesting such compensation), for all losses, expenses and
liabilities (including, without limitation, any loss, expense or liability
incurred by reason of the liquidation or reemployment of deposits or other funds
required by such Bank to fund its Eurodollar Loans) which such Bank may sustain:
(i) if for any reason (other than a default by such Bank or any Agent) a
Borrowing of, or conversion from or into, Eurodollar Loans does not occur on a
date specified therefor in a Notice of Borrowing or Notice of Conversion given
by the Borrower (whether or not withdrawn by the Borrower or deemed withdrawn
pursuant to Section 1.10(a)); (ii) if any repayment (including any repayment
made pursuant to Section 4.01 or 4.02 or as a result of an acceleration of the
Loans pursuant to Section 10 or as a result of the replacement of a Bank
pursuant to Section 1.13 or 13.12(b)) or conversion of any Eurodollar Loans of
the Borrower occurs on a date which is not the last day of an Interest Period
applicable thereto; (iii) if any prepayment of any Eurodollar Loans is not made
on any date specified in a notice of prepayment given by the Borrower; or (iv)
as a consequence of (x) any other default by the Borrower to repay its
Eurodollar Loans when required by the terms of this Agreement or (y) an election
made by the Borrower pursuant to Section 1.10(b). Each Bank's calculation of the
amount of compensation owing pursuant to this Section 1.11 shall be made in good
faith. A Bank's basis for requesting compensation pursuant to this Section 1.11
and a Bank's calculation of the amount thereof, shall, absent manifest error, be
final and conclusive and binding on all parties hereto.
1.12 Change of Lending Office. Each Bank agrees that, upon the
------------------------
occurrence of any event giving rise to the operation of Section 1.10(a)(ii) or
(iii), 1.10(c), 2.05 or 4.04 with respect to such Bank, it will, if requested by
the Borrower, use reasonable efforts (subject to overall policy considerations
of such Bank) to designate another lending office for any Loans or Letters of
Credit affected by such event; provided that such designation is made on such
--------
terms that, in the sole judgment of such Bank, such Bank and its lending office
suffer no economic, legal or regulatory disadvantage, with the object of
avoiding the consequences of the event giving rise to the operation of any such
Section. Nothing in this Section 1.12 shall affect or postpone any of the
obligations of the Borrower or the right of any Bank provided in Section 1.10,
2.05 or 4.04.
1.13 Replacement of Banks. (x) If any Bank becomes a Defaulting
--------------------
Bank, (y) upon the occurrence of any event giving rise to the operation of
Section 1.10(a)(ii) or (iii), Section 1.10(c), Section 2.05 or Section 4.04 with
respect to any Bank which results in such Bank charging to the Borrower
increased costs in a material amount in excess of those being generally charged
by the other Banks or (z) in the case of a refusal by a Bank to consent to a
proposed
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<PAGE>
change, waiver, discharge or termination with respect to this Agreement which
has been approved by the Required Banks as provided in Section 13.12(b), the
Borrower shall have the right, in accordance with Section 13.04(b), if no
Default or Event of Default then exists or would exist after giving effect to
such replacement, to replace such Bank (the "Replaced Bank") with one or more
other Eligible Transferee or Transferees, none of whom shall constitute a
Defaulting Bank at the time of such replacement (collectively, the "Replacement
Bank") and each of whom shall be reasonably acceptable to the Administrative
Agent or, at the option of the Borrower, to replace only (a) the Revolving Loan
Commitment (and outstandings pursuant thereto) of the Replaced Bank with an
identical Revolving Loan Commitment provided by the Replacement Bank or (b) in
the case of a replacement as provided in Section 13.12(b) where the consent of
the respective Bank is required with respect to less than all Tranches of its
Loans or Commitments, the Commitments and/or outstanding Loans of such Bank in
respect of each Tranche where the consent of such Bank would otherwise be
individually required, with identical Commitments and/or Loans of the respective
Tranche provided by the Replacement Bank; provided that:
--------
(i) at the time of any replacement pursuant to this Section 1.13, the
Replacement Bank shall enter into one or more Assignment and Assumption
Agreements pursuant to Section 13.04(b) (and with all fees payable pursuant
to said Section 13.04(b) to be paid by the Replacement Bank) pursuant to
which the Replacement Bank shall acquire all of the Commitments and
outstanding Loans (or, in the case of the replacement of only (a) the
Revolving Loan Commitment, the Revolving Loan Commitment and outstanding
Revolving Loans and participations in Letter of Credit Outstandings and/or
(b) the outstanding Term Loans of any Tranche, the outstanding Term Loans
of the respective Tranche or Tranches) of, and in each case (except for the
replacement of only the outstanding Term Loans of any or all Tranches of
Term Loans of the respective Bank) participations in Letters of Credit by,
the Replaced Bank and, in connection therewith, shall pay to (x) the
Replaced Bank in respect thereof an amount equal to the sum of (A) an
amount equal to the principal of, and all accrued interest on, all
outstanding Loans (or of the Loans of the respective Tranche or Tranches
being replaced) of the Replaced Bank, (B) an amount equal to all Unpaid
Drawings (unless there are no Unpaid Drawings with respect to the Tranche
being replaced) that have been funded by (and not reimbursed to) such
Replaced Bank, together with all then unpaid interest with respect thereto
at such time and (C) an amount equal to all accrued, but theretofore
unpaid, Fees owing to the Replaced Bank (but only with respect to the
relevant Tranche, in the case of the replacement of less than all Tranches
of Loans then held by the respective Replaced Bank) pursuant to Section
3.01, (y) except in the case of the replacement of only the outstanding
Term Loans of any or all Tranches of Term Loans of a Replaced Bank, each
Letter of Credit Issuer an amount equal to such Replaced Bank's Adjusted RL
Percentage of any Unpaid Drawing relating to Letters of Credit issued by
such Letter of Credit Issuer (which at such time remains an Unpaid Drawing)
to the extent such amount was not theretofore funded by such Replaced Bank
and (z) in the case of any replacement of Revolving Loan Commitments, BTCo
an amount equal to such Replaced Bank's Adjusted RL Percentage of any
Mandatory Borrowing to the extent such amount was not theretofore funded by
such Replaced Bank; and
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<PAGE>
(ii) all obligations of the Borrower then owing to the Replaced Bank
(other than those (a) specifically described in clause (i) above in respect
of which the assignment purchase price has been, or is concurrently being,
paid, but including all amounts, if any, owing under Section 1.11 or (b)
relating to any Tranche of Loans and/or Commitments of the respective
Replaced Bank which will remain outstanding after giving effect to the
respective replacement) shall be paid in full to such Replaced Bank
concurrently with such replacement.
Upon the execution of the respective Assignment and Assumption Agreements, the
payment of amounts referred to in clauses (i) and (ii) above, recordation of the
assignment on the Register by the Administrative Agent pursuant to Section 13.17
and, if so requested by the Replacement Bank, delivery to the Replacement Bank
of the appropriate Note or Notes executed by the Borrower, (x) the Replacement
Bank shall become a Bank hereunder and, unless the respective Replaced Bank
continues to have outstanding Term Loans and/or a Revolving Loan Commitment
hereunder, the Replaced Bank shall cease to constitute a Bank hereunder, except
with respect to indemnification provisions under this Agreement (including,
without limitation, Sections 1.10, 1.11, 2.05, 4.04, 13.01 and 13.06), which
shall survive as to such Replaced Bank and (y) except in the case of the
replacement of only outstanding Term Loans, the Adjusted RL Percentages of the
Banks shall be automatically adjusted at such time to give effect to such
replacement.
SECTION 2. Letters of Credit.
2.01 Letters of Credit. (a) Subject to and upon the terms and
-----------------
conditions herein set forth, the Borrower may request a Letter of Credit Issuer
at any time and from time to time on or after the Third Restatement Effective
Date and prior to the tenth Business Day (or the 30th day in the case of Trade
Letters of Credit) preceding the Revolving Loan Maturity Date to issue, (x) for
the account of the Borrower and for the benefit of any holder (or any trustee,
agent or other similar representative for any such holders) of L/C Supportable
Indebtedness, irrevocable sight standby letters of credit in a form customarily
used by such Letter of Credit Issuer or in such other form as has been approved
by such Letter of Credit Issuer (each such standby letter of credit, a "Standby
Letter of Credit") in support of such L/C Supportable Indebtedness and (y) for
the account of the Borrower and for the benefit of sellers of goods to the
Borrower or any Subsidiary Guarantor in the ordinary course of business,
irrevocable sight trade letters of credit in a form customarily used by such
Letter of Credit Issuer or in such other form as has been approved by such
Letter of Credit Issuer (each such trade letter of credit, a "Trade Letter of
Credit", and each such Standby Letter of Credit and Trade Letter of Credit, a
"Letter of Credit" and, collectively, the "Letters of Credit").
(b) Subject to and upon the terms and conditions set forth herein,
each Letter of Credit Issuer hereby agrees that it will, at any time and from
time to time on and after the Third Restatement Effective Date and prior to the
tenth Business Day (or the 30th day in the case of Trade Letters of Credit)
preceding the Revolving Loan Maturity Date, following its receipt of the
respective Letter of Credit Request, issue for the account of the Borrower one
or more Letters of Credit, (x) in the case of Trade Letters of Credit, in
support of trade obligations of the Borrower or any Subsidiary Guarantor that
arise in the ordinary course of business or (y) in the case of
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<PAGE>
Standby Letters of Credit, in support of such L/C Supportable Indebtedness as is
permitted to remain outstanding hereunder. Notwithstanding the foregoing, no
Letter of Credit Issuer shall be under any obligation to issue any Letter of
Credit if at the time of such issuance:
(i) any order, judgment or decree of any governmental authority or
arbitrator shall purport by its terms to enjoin or restrain such Letter of
Credit Issuer from issuing such Letter of Credit or any requirement of law
applicable to such Letter of Credit Issuer or any request or directive
(whether or not having the force of law) from any governmental authority
with jurisdiction over such Letter of Credit Issuer shall prohibit, or
request that such Letter of Credit Issuer refrain from, the issuance of
letters of credit generally or such Letter of Credit in particular or shall
impose upon such Letter of Credit Issuer with respect to such Letter of
Credit any restriction or reserve or capital requirement (for which such
Letter of Credit Issuer is not otherwise compensated) not in effect on the
date hereof, or any unreimbursed loss, cost or expense which was not
applicable, in effect or known to such Letter of Credit Issuer as of the
date hereof and which such Letter of Credit Issuer in good faith deems
material to it; or
(ii) such Letter of Credit Issuer shall have received written
notice from the Borrower or the Required Banks prior to the issuance of
such Letter of Credit of the type described in clause (vi) of Section
2.01(c) or the last sentence of Section 2.02(b).
(c) Notwithstanding the foregoing, (i) no Letter of Credit shall be
issued the Stated Amount of which, when added to the Letter of Credit
Outstandings (exclusive of Unpaid Drawings which are repaid on the date of, and
prior to the issuance of, the respective Letter of Credit) at such time, would
exceed either (x) $15,000,000 or (y) when added to the aggregate principal
amount of all Revolving Loans made by the Non-Defaulting Banks and then
outstanding and all Swingline Loans then outstanding, the Adjusted Total
Revolving Loan Commitment at such time; (ii) (x) each Standby Letter of Credit
shall have an expiry date occurring not later than one year after such Standby
Letter of Credit's date of issuance, provided that any such Standby Letter of
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Credit may be extendable for successive periods of up to one year, but not
beyond the tenth Business Day preceding the Revolving Loan Maturity Date, on
terms acceptable to the Letter of Credit Issuer and (y) each Trade Letter of
Credit shall have an expiry date occurring not later than 180 days after such
Trade Letter of Credit's date of issuance; (iii) (x) no Standby Letter of Credit
shall have an expiry date occurring later than the tenth Business Day preceding
the Revolving Loan Maturity Date and (y) no Trade Letter of Credit shall have an
expiry date occurring later than 30 days prior to the Revolving Loan Maturity
Date; (iv) each Letter of Credit shall be denominated in U.S. Dollars; (v) the
Stated Amount of each Letter of Credit shall not be less than $100,000 or such
lesser amount as is acceptable to the respective Letter of Credit Issuer; and
(vi) no Letter of Credit Issuer will issue any Letter of Credit after it has
received written notice from the Borrower or the Required Banks stating that a
Default or an Event of Default exists until such time as such Letter of Credit
Issuer shall have received a written notice of (x) rescission of such notice
from the party or parties originally delivering the same or (y) a waiver of such
Default or Event of Default by the Required Banks.
(d) Notwithstanding the foregoing, in the event a Bank Default
exists, no Letter of Credit Issuer shall be required to issue any Letter of
Credit unless the respective Letter of
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Credit Issuer has entered into arrangements satisfactory to it and the Borrower
to eliminate such Letter of Credit Issuer's risk with respect to the
participation in Letters of Credit of the Defaulting Bank or Banks, including by
cash collateralizing such Defaulting Bank's or Banks' Adjusted RL Percentage of
the Letter of Credit Outstandings, as the case may be.
(e) Schedule XI hereto contains a description of all letters of
credit issued pursuant to the First Amended and Restated Credit Agreement and
the Second Amended and Restated Credit Agreement and outstanding on the Third
Restatement Effective Date. Each such letter of credit, including any extension
or renewal thereof (each, as amended from time to time in accordance with the
terms hereof and thereof, an "Existing Letter of Credit") shall constitute a
"Letter of Credit" for all purposes of this Agreement, issued, for purposes of
Section 2.03(a), on the Third Restatement Effective Date. In addition, each
letter of credit designated as a "Standby Letter of Credit" or "Trade Letter of
Credit" on Schedule XI shall constitute a "Standby Letter of Credit" or "Trade
Letter of Credit"
2.02 Letter of Credit Requests. (a) Whenever the Borrower desires
-------------------------
that a Letter of Credit be issued, the Borrower shall give the Administrative
Agent and the respective Letter of Credit Issuer written notice thereof prior to
12:00 Noon (New York time) at least five Business Days (or such shorter period
as may be acceptable to the respective Letter of Credit Issuer) prior to the
proposed date of issuance (which shall be a Business Day) which written notice
shall be in the form of Exhibit C (each, a "Letter of Credit Request"). Each
Letter of Credit Request shall include any other documents as such Letter of
Credit Issuer customarily requires in connection therewith.
(b) The making of each Letter of Credit Request shall be deemed to be
a representation and warranty by the Borrower that such Letter of Credit may be
issued in accordance with, and it will not violate the requirements of, Section
2.01(c). Unless the respective Letter of Credit Issuer has received notice from
any Agent or the Required Banks before it issues a Letter of Credit that one or
more of the applicable conditions specified in Section 5 or 6, as the case may
be, are not then satisfied, or that the issuance of such Letter of Credit would
violate Section 2.01(c), then such Letter of Credit Issuer may issue the
requested Letter of Credit for the account of the Borrower in accordance with
such Letter of Credit Issuer's usual and customary practice.
2.03 Letter of Credit Participations. (a) Immediately upon the
-------------------------------
issuance by a Letter of Credit Issuer of any Letter of Credit, such Letter of
Credit Issuer shall be deemed to have sold and transferred to each other RL
Bank, and each such RL Bank (each, a "Participant") shall be deemed irrevocably
and unconditionally to have purchased and received from such Letter of Credit
Issuer, without recourse or warranty, an undivided interest and participation,
to the extent of such Participant's Adjusted RL Percentage, in such Letter of
Credit, each substitute Letter of Credit, each drawing made thereunder and the
obligations of the Borrower under this Agreement with respect thereto (although
Letter of Credit Fees shall be payable directly to the Administrative Agent for
the account of the RL Banks as provided in Section 3.01(b) and the Participants
shall have no right to receive any portion of any Facing Fees with respect to
such Letters of Credit) and any security therefor or guaranty pertaining
thereto. Upon any change in the Revolving Loan Commitments or the Adjusted RL
Percentages of the RL Banks pursuant to Section 1.13 or 13.04(b) or as a result
of a Bank Default, it is hereby agreed that, with respect to
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all outstanding Letters of Credit and Unpaid Drawings with respect thereto,
there shall be an automatic adjustment to the participations pursuant to this
Section 2.03 to reflect the new Adjusted RL Percentages of the assigning and
assignee Bank or of all RL Banks, as the case may be.
(b) In determining whether to pay under any Letter of Credit, no
Letter of Credit Issuer shall have any obligation relative to the Participants
other than to determine that any documents required to be delivered under such
Letter of Credit have been delivered and that they appear to substantially
comply on their face with the requirements of such Letter of Credit. Any action
taken or omitted to be taken by any Letter of Credit Issuer under or in
connection with any Letter of Credit issued by it if taken or omitted in the
absence of gross negligence or willful misconduct, shall not create for such
Letter of Credit Issuer any resulting liability.
(c) In the event that any Letter of Credit Issuer makes any payment
under any Letter of Credit issued by it and the Borrower shall not have
reimbursed such amount in full to the Letter of Credit Issuer pursuant to
Section 2.04(a), such Letter of Credit Issuer shall promptly notify the
Administrative Agent, and the Administrative Agent shall promptly notify each
Participant of such failure, and each such Participant shall promptly and
unconditionally pay to the Administrative Agent for the account of such Letter
of Credit Issuer, the amount of such Participant's Adjusted RL Percentage of
such payment in U.S. Dollars and in same day funds. If the Administrative Agent
so notifies any Participant required to fund a payment under a Letter of Credit
prior to 11:00 A.M. (New York time) on any Business Day, such Participant shall
make available to the Administrative Agent at the Payment Office for the account
of the respective Letter of Credit Issuer such Participant's Adjusted RL
Percentage of the amount of such payment on such Business Day in same day funds
(and, to the extent such notice is given after 11:00 A.M. (New York time) on any
Business Day, such Participant shall make such payment on the immediately
following Business Day). If and to the extent such Participant shall not have
so made its Adjusted RL Percentage of the amount of such payment available to
the Administrative Agent for the account of the respective Letter of Credit
Issuer, such Participant agrees to pay to the Administrative Agent for the
account of such Letter of Credit Issuer, forthwith on demand such amount,
together with interest thereon, for each day from such date until the date such
amount is paid to the Administrative Agent for the account of the Letter of
Credit Issuer at the overnight Federal Funds Rate. The failure of any
Participant to make available to the Administrative Agent for the account of the
respective Letter of Credit Issuer its Adjusted RL Percentage of any payment
under any Letter of Credit issued by it shall not relieve any other Participant
of its obligation hereunder to make available to the Administrative Agent for
the account of such Letter of Credit Issuer its applicable Adjusted RL
Percentage of any payment under any such Letter of Credit on the date required,
as specified above, but no Participant shall be responsible for the failure of
any other Participant to make available to the Administrative Agent for the
account of such Letter of Credit Issuer such other Participant's Adjusted RL
Percentage of any such payment.
(d) Whenever any Letter of Credit Issuer receives a payment of a
reimbursement obligation as to which the Administrative Agent has received for
the account of such Letter of Credit Issuer any payments from the Participants
pursuant to clause (c) above, such Letter of Credit Issuer shall pay to the
Administrative Agent and the Administrative Agent shall promptly
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<PAGE>
pay to each Participant which has paid its Adjusted RL Percentage thereof, in
U.S. Dollars and in same day funds, an amount equal to such Participant's
Adjusted RL Percentage of the principal amount thereof and interest thereon
accruing after the purchase of the respective participations.
(e) Each Letter of Credit Issuer shall, promptly after each issuance
of, or amendment or modification to, a Standby Letter of Credit issued by it,
give the Administrative Agent, each Participant and the Borrower written notice
of the issuance of, or amendment or modification to, such Standby Letter of
Credit. The Administrative Agent shall, upon request from any Participant,
furnish to such Participant copies of each such Standby Letter of Credit and
each such amendment or modification thereto.
(f) Each Letter of Credit Issuer (other than BTCo) shall deliver to
the Administrative Agent, promptly on the first Business Day of each week, by
facsimile transmission, the aggregate daily Stated Amount available to be drawn
under the outstanding Trade Letters of Credit issued by such Letter of Credit
Issuer for the previous week. The Administrative Agent shall, within 10 days
after the last Business Day of each calendar month, deliver to each Participant
a report setting forth for such preceding calendar month the aggregate daily
Stated Amount available to be drawn under all outstanding Trade Letters of
Credit during such calendar month.
(g) The obligations of the Participants to make payments to the
Administrative Agent for the account of the respective Letter of Credit Issuer
with respect to Letters of Credit issued by it shall be irrevocable and not
subject to counterclaim, set-off or other defense or any other qualification or
exception whatsoever and shall be made in accordance with the terms and
conditions of this Agreement under all circumstances, including, without
limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or
any of the other Credit Documents;
(ii) the existence of any claim, set-off, defense or other right
which the Borrower or any of its Subsidiaries may have at any time against
a beneficiary named in a Letter of Credit, any transferee of any Letter of
Credit (or any Person for whom any such transferee may be acting), any
Agent, any Letter of Credit Issuer, any Bank, or other Person, whether in
connection with this Agreement, any Letter of Credit, the transactions
contemplated herein or any unrelated transactions (including any underlying
transaction between the Borrower or any of its Subsidiaries and the
beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or other document presented under the
Letter of Credit proving to be forged, fraudulent, invalid or insufficient
in any respect or any statement therein being untrue or inaccurate in any
respect;
(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Credit
Documents; or
(v) the occurrence of any Default or Event of Default.
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2.04 Agreement to Repay Letter of Credit Drawings. (a) The Borrower
--------------------------------------------
hereby agrees to reimburse each Letter of Credit Issuer, by making payment to
the Administrative Agent in immediately available funds at the Payment Office,
for any payment or disbursement made by such Letter of Credit Issuer under any
Letter of Credit issued by it (each such amount so paid or disbursed until
reimbursed, an "Unpaid Drawing") immediately after, and in any event on the date
of such payment or disbursement, with interest on the amount so paid or
disbursed by such Letter of Credit Issuer, to the extent not reimbursed prior to
1:00 P.M. (New York time) on the date of such payment or disbursement, from and
including the date paid or disbursed to but not including the date such Letter
of Credit Issuer is reimbursed therefor at a rate per annum which shall be the
then Applicable Margin for Revolving Loans maintained as Base Rate Loans plus
the Base Rate, each as in effect from time to time (plus an additional 2% per
annum if not reimbursed by the third Business Day after the date of such payment
or disbursement), such interest also to be payable on demand; provided, that it
--------
is understood and agreed, however, that the notices referred to above in this
clause (a) shall not be required to be given if a Default or an Event of Default
under such Section 10.05 shall have occurred and be continuing (in which case
the Unpaid Drawings shall be due and payable immediately without presentment,
demand, protest or notice of any kind (all of which are hereby waived by each
Credit Party) and shall bear interest at a rate per annum which shall be (x)
until the third Business Day following the respective Drawing, the Applicable
Margin for Revolving Loans maintained as Base Rate Loans plus the Base Rate,
each as in effect from time to time, and (y) at all times on and after the third
Business Day following the respective Drawing, the rate per annum specified in
preceding clause (x) plus 2%). Each Letter of Credit Issuer shall provide the
Borrower prompt notice of any payment or disbursement made by it under any
Letter of Credit issued by it, although the failure of, or delay in, giving any
such notice shall not release or diminish the obligations of the Borrower under
this Section 2.04(a) or under any other Section of this Agreement.
(b) The Borrower's obligation under this Section 2.04 to reimburse
the respective Letter of Credit Issuer with respect to drawings on Letters of
Credit (including, in each case, interest thereon) shall be absolute and
unconditional under any and all circumstances and irrespective of any setoff,
counterclaim or defense to payment which the Borrower or any of its Subsidiaries
may have or have had against such Letter of Credit Issuer, any Agent or any
Bank, including, without limitation, any defense based upon the failure of any
drawing under a Letter of Credit issued by it to conform to the terms of the
Letter of Credit or any nonapplication or misapplication by the beneficiary of
the proceeds of such drawing; provided, however, that the Borrower shall not be
-------- -------
obligated to reimburse such Letter of Credit Issuer for any wrongful payment
made by such Letter of Credit Issuer under a Letter of Credit issued by it as a
result of acts or omissions constituting willful misconduct or gross negligence
on the part of such Letter of Credit Issuer as determined by a court of
competent jurisdiction.
2.05 Increased Costs. If after the Third Restatement Effective Date,
---------------
any Letter of Credit Issuer or any Participant determines that the adoption or
effectiveness of any applicable law, rule or regulation, order, guideline or
request or any change therein, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by any Letter of Credit Issuer or any Participant with any request or directive
(whether or not having the force of law) by any such authority, central bank or
comparable agency shall either (i) impose,
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modify or make applicable any reserve, deposit, capital adequacy or similar
requirement against Letters of Credit issued by such Letter of Credit Issuer or
such Participant's participation therein (except as contemplated by Section
4.04), or (ii) impose on any Letter of Credit Issuer or any Participant any
other conditions directly or indirectly affecting this Agreement, any Letter of
Credit or such Participant's participation therein; and the result of any of the
foregoing is to increase the cost to such Letter of Credit Issuer or such
Participant of issuing, maintaining or participating in any Letter of Credit, or
to reduce the amount of any sum received or receivable by such Letter of Credit
Issuer or such Participant hereunder or reduce the rate of return on its capital
with respect to Letters of Credit, then, upon written demand to the Borrower by
such Letter of Credit Issuer or such Participant (a copy of which notice shall
be sent by such Letter of Credit Issuer or such Participant to the
Administrative Agent), accompanied by the certificate described in the last
sentence of this Section 2.05, the Borrower agrees, subject to the provisions of
Section 13.18 (to the extent applicable), to pay to such Letter of Credit Issuer
or such Participant such additional amount or amounts as will compensate such
Letter of Credit Issuer or such Participant for such increased cost or
reduction. A certificate submitted to the Borrower by such Letter of Credit
Issuer or such Participant, as the case may be (a copy of which certificate
shall be sent by such Letter of Credit Issuer or such Participant to the
Administrative Agent), setting forth in reasonable detail the basis for the
determination of such additional amount or amounts necessary to compensate such
Letter of Credit Issuer or such Participant as aforesaid shall be final and
conclusive and binding on the Borrower absent manifest error, although the
failure to deliver any such certificate shall not release or diminish the
Borrower's obligations to pay additional amounts pursuant to this Section 2.05
upon subsequent receipt of such certificate.
SECTION 3. Fees; Commitments.
3.01 Fees. (a) The Borrower shall pay to the Administrative Agent
----
for distribution to each Non-Defaulting Bank with a Revolving Loan Commitment, a
commitment fee (the "RL Commitment Fee") for the period from the Original
Effective Date to but not including the Revolving Loan Maturity Date (or such
earlier date as the Total Revolving Loan Commitment shall have been terminated),
computed at a rate for each day equal to the Applicable RL Commitment Fee
Percentage then in effect on the daily average Unutilized Revolving Loan
Commitment of such Non-Defaulting Bank. Accrued RL Commitment Fees shall be due
and payable quarterly in arrears on each Quarterly Payment Date and on the
Revolving Loan Maturity Date (or such earlier date upon which the Total
Revolving Loan Commitment is terminated).
(b) The Borrower shall pay to the Administrative Agent for pro rata
--- ----
distribution to each Non-Defaulting Bank with a Revolving Loan Commitment (based
on their respective Adjusted RL Percentages), a fee in respect of each Letter of
Credit (the "Letter of Credit Fee") computed at a rate per annum equal to the
Applicable Margin for Revolving Loans maintained as Eurodollar Loans then in
effect on the daily Stated Amount of such Letter of Credit. Accrued Letter of
Credit Fees shall be due and payable quarterly in arrears on each Quarterly
Payment Date and upon the first day on or after the termination of the Total
Revolving Loan Commitment upon which no Letters of Credit remain outstanding.
(c) The Borrower shall pay to each Letter of Credit Issuer a fee in
respect of each Letter of Credit issued by such Letter of Credit Issuer (the
"Facing Fee") computed at the rate of
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1/4 of 1% per annum on the daily Stated Amount of such Letter of Credit;
provided that in no event shall the annual Facing Fee with respect to each
- --------
Letter of Credit be less than $500; it being agreed that (x) on the date of
issuance of any Letter of Credit and on each anniversary thereof prior to the
termination of such Letter of Credit, if $500 will exceed the amount of Facing
Fees that will accrue with respect to such Letter of Credit for the immediately
succeeding 12-month period, the full $500 shall be payable on the date of
issuance of such Letter of Credit and on each such anniversary thereof prior to
the termination of such Letter of Credit and (y) if on the date of the
termination of any Letter of Credit, $500 actually exceeds the amount of Facing
Fees paid or payable with respect to such Letter of Credit for the period
beginning on the date of the issuance thereof (or if the respective Letter of
Credit has been outstanding for more than one year, the date of the last
anniversary of the issuance thereof occurring prior to the termination of such
Letter of Credit) and ending on the date of the termination thereof, an amount
equal to such excess shall be paid as additional Facing Fees with respect to
such Letter of Credit on the next date upon which Facing Fees are payable in
accordance with the immediately succeeding sentence. Except as provided in the
immediately preceding sentence, accrued Facing Fees shall be due and payable
quarterly in arrears on each Quarterly Payment Date and upon the first day on or
after the termination of the Total Revolving Loan Commitment upon which no
Letters of Credit remain outstanding.
(d) The Borrower shall pay directly to each Letter of Credit Issuer
upon each issuance of, payment under, and/or amendment of, a Letter of Credit
issued by such Letter of Credit Issuer such amount as shall at the time of such
issuance, payment or amendment be the administrative charge which such Letter of
Credit Issuer is customarily charging for issuances of, payments under or
amendments of, letters of credit issued by it.
(e) The Borrower shall pay to each Agent, for its own account, such
other fees as may be agreed to in writing from time to time between the Borrower
and such Agent, when and as due.
(f) All computations of Fees shall be made in accordance with Section
13.07(b).
3.02 Voluntary Termination or Reduction of Total Unutilized
------------------------------------------------------
Commitment. (a) Upon at least three Business Days' prior notice to the
- ----------
Administrative Agent at its Notice Office (which notice the Administrative Agent
shall promptly transmit to each of the Banks), the Borrower shall have the
right, without premium or penalty, to terminate or partially reduce the Total
Unutilized Revolving Loan Commitment, provided that (w) any such termination or
--------
partial reduction shall apply to proportionately and permanently reduce the
Revolving Loan Commitment, as the case may be, of each Bank with such a
Commitment, (x) any partial reduction pursuant to this Section 3.02(a) shall be
in integral multiples of $1,000,000, (y) no reduction to the Total Unutilized
Revolving Loan Commitment shall be in an amount which would cause the Revolving
Loan Commitment of any RL Bank to be reduced (as required by the preceding
clause (w)) by an amount which exceeds the remainder of (A) the Unutilized
Revolving Loan Commitment of such RL Bank as in effect immediately before giving
effect to such reduction minus (B) such RL Bank's Adjusted RL Percentage of the
aggregate principal amount of Swingline Loans then outstanding and (z) any
partial reduction to the Total Revolving Loan Commitment pursuant to this
Section 3.02(a) shall apply to reduce the then remaining Scheduled
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<PAGE>
Commitment Reductions in direct order of maturity (based upon the then remaining
amount of each such Scheduled Commitment Reduction after giving effect to all
prior reductions thereto).
(b) In the event of certain refusals by a Bank to consent to certain
proposed changes, waivers, discharges or terminations with respect to this
Agreement which have been approved by the Required Banks as provided in Section
13.12(b), the Borrower shall have the right, subject to obtaining the consents
required by Section 13.12(b), upon five Business Days' prior written notice to
the Administrative Agent at its Notice Office (which notice the Administrative
Agent shall promptly transmit to each of the Banks), to terminate the entire
Revolving Loan Commitment of such Bank, so long as all Loans, together with
accrued and unpaid interest, Fees and all other amounts, owing to such Bank
(including all amounts, if any, owing pursuant to Section 1.11 but excluding
amounts owing in respect of any Tranche of Term Loans maintained by such Bank,
if such Term Loans are not being repaid pursuant to Section 13.12(b)) are repaid
concurrently with the effectiveness of such termination (at which time Schedule
I shall be deemed modified to reflect such changed amounts) and at such time,
unless the respective Bank continues to have outstanding Loans or Commitments of
any Tranche hereunder, such Bank shall no longer constitute a "Bank" for
purposes of this Agreement, except with respect to indemnifications under this
Agreement (including, without limitation, Sections 1.10, 1.11, 2.05, 4.04, 13.01
and 13.06), which shall survive as to such repaid Bank. Unless otherwise
specifically agreed in writing by the Required Banks, any reduction to the Total
Revolving Loan Commitment pursuant to this Section 3.02(b) shall apply to reduce
the Scheduled Commitment Reductions on a pro rata basis (based upon the then
--- ----
remaining amount of each such Scheduled Commitment Reduction after giving effect
to all prior reductions thereto).
3.03 Mandatory Reduction of Commitments. (a) The Total Tranche D
----------------------------------
Term Loan Commitment (and the Tranche D Term Loan Commitment of each Bank with
such a Commitment) shall terminate in its entirety on May 30, 1999 and the
Second Amended and Restated Credit Agreement shall continue in effect unless the
Third Restatement Effective Date has occurred on or before such date.
(b) In addition to any other mandatory commitment reductions pursuant
to this Section 3.03, the Total Tranche D Term Loan Commitment (and the Tranche
D Term Loan Commitment of each Bank with such a Commitment) shall terminate in
its entirety on the Third Restatement Effective Date (after giving effect to the
making of Tranche D Term Loans on such date).
(c) In addition to any other mandatory commitment reductions pursuant
to this Section 3.03, the Total Revolving Loan Commitment shall be permanently
reduced on each date set forth below (each, a "Scheduled Commitment Reduction
Date"), by the amount set forth opposite such Scheduled Commitment Reduction
Date (each such reduction, as the same may be reduced as provided in Sections
3.02 and 3.03(f), a "Scheduled Commitment Reduction"):
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Scheduled Commitment
Reduction Date Amount
-------------------- ------
December 18, 2001 $40.0 million
December 18, 2002 $40.0 million
(d) In addition to any other mandatory commitment reductions pursuant
to this Section 3.03, the Total Revolving Loan Commitment (and the Revolving
Loan Commitment of each RL Bank) shall terminate in its entirety on the
Revolving Loan Maturity Date.
(e) In addition to any other mandatory commitment reductions pursuant
to this Section 3.03, the Total Revolving Loan Commitment shall be reduced from
time to time to the extent required by Section 4.02.
(f) Any amount required to be applied to reduce the Total Revolving
Loan Commitment pursuant to this Section 3.03 (or pursuant to Section 4.02)
shall be applied to reduce the then remaining Scheduled Commitment Reductions
pro rata based upon the then remaining amount of such Scheduled Commitment
- --- ----
Reductions after giving effect to all prior reductions thereto.
(g) Each reduction to the Total Tranche D Term Loan Commitment or
Total Revolving Loan Commitment pursuant to this Section 3.03 (or pursuant to
Section 4.02) shall be applied proportionately to reduce the Tranche D Term Loan
Commitment or the Revolving Loan Commitment, as the case may be, of each Bank
with such a Commitment.
SECTION 4. Payments.
--------
4.01 Voluntary Prepayments. The Borrower shall have the right to
---------------------
prepay the Loans, and the right to allocate such prepayments to Revolving Loans,
Swingline Loans, Tranche A Term Loans, Tranche B Term Loans, Tranche C Term
Loans and/or Tranche D Term Loans as the Borrower elects, in whole or in part,
without premium or penalty except as otherwise provided in this Agreement, from
time to time on the following terms and conditions:
(i) the Borrower shall give the Administrative Agent at its Notice
Office written notice (or telephonic notice promptly confirmed in writing)
of its intent to prepay the Loans, whether such Loans are Tranche A Term
Loans, Tranche B Term Loans, Tranche C Term Loans, Tranche D Term Loans,
Revolving Loans or Swingline Loans, the amount of such prepayment, the
Types of Loans to be repaid and (in the case of Eurodollar Loans) the
specific Borrowing(s) pursuant to which made, which notice (I) shall be
given by the Borrower prior to 12:00 Noon (New York time) (x) at least one
Business Day prior to the date of such prepayment in the case of Base Rate
Loans, (y) on the date of such prepayment in the case of Swingline Loans
and (z) at least three Business Days prior to the date of such prepayment
in the case of Eurodollar Loans and (II) shall, except in the case of
Swingline Loans, promptly be transmitted by the Administrative Agent to
each of the Banks;
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(ii) each prepayment (other than prepayments in full of (x) all
outstanding Base Rate Loans or (y) any outstanding Borrowing of Eurodollar
Loans) shall be in an aggregate principal amount of at least (x)
$1,000,000, in the case of Eurodollar Loans, (y) $500,000, in the case of
Revolving Loans and Term Loans maintained as Base Rate Loans and (z)
$100,000, in the case of Swingline Loans and, in each case, if greater, in
integral multiples of $100,000, provided that no partial prepayment of
--------
Eurodollar Loans made pursuant to a Borrowing shall reduce the aggregate
principal amount of the Eurodollar Loans outstanding pursuant to such
Borrowing to an amount less than the Minimum Borrowing Amount applicable
thereto;
(iii) at the time of any prepayment of Eurodollar Loans pursuant to
this Section 4.01 on any date other than the last day of the Interest
Period applicable thereto, the Borrower shall pay the amounts required
pursuant to Section 1.11;
(iv) except as provided in clause (v) below, each prepayment in
respect of any Loans made pursuant to a Borrowing shall be applied pro rata
--- ----
among such Loans, provided, that at the Borrower's election in connection
--------
with any prepayment of Revolving Loans pursuant to this Section 4.01, such
prepayment shall not be applied to any Revolving Loans of a Defaulting
Bank;
(v) in the event of certain refusals by a Bank to consent to
certain proposed changes, waivers, discharges or terminations with respect
to this Agreement which have been approved by the Required Banks as
provided in Section 13.12(b), the Borrower may, upon five Business Days'
prior written notice to the Administrative Agent at its Notice Office
(which notice the Administrative Agent shall promptly transmit to each of
the Banks), repay all Loans of such Bank (including all amounts, if any,
owing pursuant to Section 1.11), together with accrued and unpaid interest,
Fees and all other amounts then owing to such Bank (or owing to such Bank
with respect to each Tranche which gave rise to the need to obtain such
Bank's individual consent) in accordance with said Section 13.12(b), so
long as (A) in the case of the repayment of Revolving Loans of any Bank
pursuant to this clause (v), the Revolving Loan Commitment of such Bank is
terminated concurrently with such repayment (at which time Schedule I shall
be deemed modified to reflect the changed Revolving Loan Commitments) and
(B) the consents required by Section 13.12(b) in connection with the
repayment pursuant to this clause (v) shall have been obtained;
(vi) each prepayment of Term Loans pursuant to this Section 4.01
(except as provided in preceding clause (v)) shall be applied to the
Tranche A Term Loans, the Tranche B Term Loans, the Tranche C Term Loans
and the Tranche D Term Loans on a pro rata basis (based upon the then
--- ----
outstanding principal amount of Tranche A Term Loans, Tranche B Term Loans,
Tranche C Term Loans and the Tranche D Term Loans); and
(vii) each prepayment of principal of Tranche A Term Loans, Tranche
B Term Loans, Tranche C Term Loans and Tranche D Term Loans pursuant to
this Section 4.01 shall be applied to reduce the then remaining Scheduled
Repayments of the respective
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Tranche in direct order of maturity (based upon the then remaining
principal amounts of the Scheduled Repayments of the respective Tranche
after giving effect to all prior reductions thereto).
4.02 Mandatory Repayments and Commitment Reductions. (a) (i) If on
----------------------------------------------
any date the sum of (x) the aggregate outstanding principal amount of Revolving
Loans made by Non-Defaulting Banks and Swingline Loans (after giving effect to
all other repayments thereof on such date) and (y) the Letter of Credit
Outstandings on such date exceeds the Adjusted Total Revolving Loan Commitment
as then in effect, the Borrower shall repay on such date the principal of
Swingline Loans, and if no Swingline Loans are or remain outstanding, the
principal of Revolving Loans of Non-Defaulting Banks in an aggregate amount
equal to such excess. If, after giving effect to the prepayment of all
outstanding Swingline Loans and all outstanding Revolving Loans of Non-
Defaulting Banks, the aggregate amount of Letter of Credit Outstandings exceeds
the Adjusted Total Revolving Loan Commitment as then in effect, the Borrower
shall pay to the Administrative Agent at the Payment Office on such date an
amount in cash and/or Cash Equivalents equal to such excess (up to the aggregate
amount of Letter of Credit Outstandings at such time) and the Administrative
Agent shall hold such payment as security for the obligations of the Borrower to
Non-Defaulting Banks hereunder pursuant to a cash collateral agreement to be
entered into in form and substance reasonably satisfactory to the Administrative
Agent.
(ii) On any date on which the aggregate outstanding principal amount
of the Revolving Loans made by any Defaulting Bank exceeds the Revolving Loan
Commitment of such Defaulting Bank, the Borrower shall prepay on such date
principal of Revolving Loans of such Defaulting Bank in an amount equal to such
excess.
(b) (i) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date set forth below, the
Borrower shall be required to repay that principal amount of Tranche A Term
Loans, to the extent then outstanding, as is set forth opposite such date (each
such repayment, as the same may be reduced as provided in Sections 4.01 and
4.02(h), a "Tranche A Term Loan Scheduled Repayment"):
Tranche A Scheduled Repayment Date Amount
- ---------------------------------- ------
June 30, 1999 $175,000
September 30, 1999 $175,000
December 31, 1999 $175,000
March 31, 2000 $175,000
June 30, 2000 $175,000
September 30, 2000 $175,000
December 31, 2000 $175,000
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Tranche A Scheduled Repayment Date Amount
- ---------------------------------- ------
March 31, 2001 $175,000
June 30, 2001 $175,000
September 30, 2001 $175,000
December 31, 2001 $175,000
March 31, 2002 $175,000
June 30, 2002 $175,000
September 30, 2002 $175,000
December 31, 2002 $175,000
March 31, 2003 $175,000
June 30, 2003 $175,000
Tranche A Term Loan Maturity Date $66,150,000
-----------
(ii) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date set forth below, the
Borrower shall be required to repay that principal amount of Tranche B Term
Loans, to the extent then outstanding, as is set forth opposite such date (each
such repayment, as the same may be reduced as provided in Sections 4.01 and
4.02(h), a "Tranche B Term Loan Scheduled Repayment"):
Tranche B Scheduled Repayment Date Amount
- ---------------------------------- ------
June 30, 1999 $125,000
September 30, 1999 $125,000
December 31, 1999 $125,000
March 31, 2000 $125,000
June 30, 2000 $125,000
September 30, 2000 $125,000
December 31, 2000 $125,000
March 31, 2001 $125,000
June 30, 2001 $125,000
September 30, 2001 $125,000
December 31, 2001 $125,000
March 31, 2002 $125,000
June 30, 2002 $125,000
September 30, 2002 $125,000
December 31, 2002 $125,000
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Tranche B Scheduled Repayment Date Amount
- ---------------------------------- ------
March 31, 2003 $125,000
June 30, 2003 $125,000
September 30, 2003 $125,000
December 31, 2003 $125,000
March 31, 2004 $125,000
Tranche B Term Loan Maturity Date $46,875,000
-----------
(iii) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date set forth below, the
Borrower shall be required to repay that principal amount of Tranche C Term
Loans, to the extent then outstanding, as is set forth opposite such date (each
such repayment, as the same may be reduced as provided in Sections 4.01 and
4.02(h), a "Tranche C Term Loan Scheduled Repayment"):
Tranche C Scheduled Repayment Date Amount
- ---------------------------------- ------
June 30, 1999 $212,500
September 30, 1999 $212,500
December 31, 1999 $212,500
March 31, 2000 $212,500
June 30, 2000 $212,500
September 30, 2000 $212,500
December 31, 2000 $212,500
March 31, 2001 $212,500
June 30, 2001 $212,500
September 30, 2001 $212,500
December 31, 2001 $212,500
March 31, 2002 $212,500
June 30, 2002 $212,500
September 30, 2002 $212,500
December 31, 2002 $212,500
March 31, 2003 $212,500
June 30, 2003 $212,500
September 30, 2003 $212,500
December 31, 2003 $212,500
March 31, 2004 $212,500
June 30, 2004 $212,500
September 30, 2004 $212,500
Tranche C Term Loan Maturity Date $80,112,500
-----------
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<PAGE>
(iv) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date set forth below, the
Borrower shall be required to repay that principal amount of Tranche D Term
Loans, to the extent then outstanding, as is set forth opposite such date (each
such repayment, as the same may be reduced as provided in Sections 4.01 and
4.02(h), a "Tranche D Term Loan Scheduled Repayment"):
Tranche D Scheduled Repayment Date Amount
- ---------------------------------- ------
September 30, 1999 $175,000
December 31, 1999 $175,000
March 31, 2000 $175,000
June 30, 2000 $175,000
September 30, 2000 $175,000
December 31, 2000 $175,000
March 31, 2001 $175,000
June 30, 2001 $175,000
September 30, 2001 $175,000
December 31, 2001 $175,000
March 31, 2002 $175,000
June 30, 2002 $175,000
September 30, 2002 $175,000
December 31, 2002 $175,000
March 31, 2003 $175,000
June 30, 2003 $175,000
September 30, 2003 $175,000
December 31, 2003 $175,000
March 31, 2004 $175,000
June 30, 2004 $175,000
September 30, 2004 $175,000
December 31, 2004 $175,000
March 31, 2005 $175,000
Tranche D Term Loan Maturity Date $65,975,000
-----------
(c) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date on or after the Original
Effective Date upon which the Borrower or any of its Subsidiaries receives Net
Sale Proceeds from any Asset Sale, an amount equal to the Applicable Prepayment
Percentage of the Net Sale Proceeds from such Asset Sale shall be applied as a
mandatory repayment and/or commitment reduction in accordance with the
requirements of Sections 4.02(h) and (i); provided that (I) (x) with respect to
--------
any such Net Sale Proceeds received by the Borrower or any of its Subsidiaries
in connection with a Healthcare Unit Replacement, such Net Sale Proceeds shall
not give rise to a mandatory repayment (and/or
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commitment reduction, as the case may be) on such date to the extent that no
Default or Event of Default then exists and the Borrower delivers a certificate
to the Administrative Agent on or prior to such date stating that (i) an amount
equal to such Net Sale Proceeds has been used to purchase a replacement
Healthcare Unit within 180 days prior to the date of receipt of such Net Sale
Proceeds or (ii) such Net Sale Proceeds shall be used to purchase a replacement
Healthcare Unit within 180 days following the date of receipt of such Net Sale
Proceeds (which certificate shall set forth the amount of the proceeds so
expended or the estimates of the proceeds to be so expended, as the case may be)
and (y) in the case of any Healthcare Unit Replacement for which no replacement
Healthcare Unit has been purchased prior to the disposition of the Healthcare
Unit to be replaced pursuant to such Healthcare Unit Replacement, if all or any
portion of such Net Sale Proceeds referred to in preceding clause (x)(ii) are
not so used within such 180-day period, such remaining portion shall be applied
on the last day of such period as a mandatory repayment and/or commitment
reduction as provided above (without giving effect to the proviso hereto) and
(II) (x) with respect to no more than $2,500,000 in the aggregate of such Net
Sale Proceeds received by the Borrower or its Subsidiaries in any fiscal year of
the Borrower, such Net Sale Proceeds shall not give rise to a mandatory
repayment (and/or commitment reduction, as the case may be) on such date to the
extent that no Default or Event of Default then exists and the Borrower delivers
a certificate to the Administrative Agent on or prior to such date stating that
such Net Sale Proceeds shall be used or contractually committed to be used to
purchase assets used or to be used in the businesses permitted pursuant to
Section 9.01 (including, without limitation (but only to the extent permitted by
Section 9.02), the purchase of the capital stock of a Person engaged in such
businesses) within 270 days following the date of receipt of such Net Sale
Proceeds from such Asset Sale (which certificate shall set forth the estimates
of the proceeds to be so expended) and (y) (i) if all or any portion of such Net
Sale Proceeds are not so used (or contractually committed to be used) within
such 270-day period, such remaining portion shall be applied on the last day of
such period as a mandatory repayment and/or commitment reduction as provided
above (without giving effect to the proviso hereto) and (ii) if all or any
portion of such Net Sale Proceeds are not so used within such 270-day period
referred to in clause (i) of this clause (II)(y) because such amount is
contractually committed to be used and subsequent to such date such contract is
terminated or expires without such portion being so used, such remaining portion
shall be applied on the date of such termination or expiration as a mandatory
repayment and/or commitment reduction as provided above (without giving effect
to the proviso hereto).
(d) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date on or after the Original
Effective Date on which the Borrower or any of its Subsidiaries receives any
cash proceeds from any incurrence of Indebtedness (other than Indebtedness
permitted to be incurred pursuant to Section 9.04 as in effect on the Third
Restatement Effective Date) or issuance of Preferred Stock (other than (x)
Disqualified Preferred Stock to the extent the proceeds therefrom are used to
effect Permitted Acquisitions, (y) Qualified Preferred Stock and (z) PIK
Preferred Stock issued on the Original Effective Date in accordance with the
requirements of Section 5.08 of the Original Credit Agreement) by the Borrower
or any of its Subsidiaries, an amount equal to the Applicable Prepayment
Percentage of the Net Cash Proceeds of the respective incurrence of Indebtedness
shall be applied as a mandatory repayment and/or commitment reduction in
accordance with the requirements of Sections 4.02(h) and (i).
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<PAGE>
(e) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date on or after the Original
Effective Date on which the Borrower or any of its Subsidiaries receives any
cash proceeds from any sale or issuance of Qualified Preferred Stock or common
equity of (or cash capital contributions to) the Borrower or any of its
Subsidiaries (other than proceeds received from (v) the Common Equity Issuance,
(w) issuances of Borrower Common Stock to management of the Borrower and its
Subsidiaries (including as a result of the exercise of any options with respect
thereto) in an aggregate amount not to exceed $2,500,000 in any fiscal year of
the Borrower, (x) equity contributions to any Subsidiary of the Borrower made by
the Borrower or any other Subsidiary of the Borrower, (y) any issuance of
Qualified Preferred Stock or Borrower Common Stock to the extent the proceeds
therefrom are used to effect Permitted Acquisitions and (z) additional issuances
of Borrower Common Stock and Qualified Preferred Stock, to the extent that the
aggregate proceeds excluded pursuant to this clause (z) (and clause (z) of
Section 4.02(e) of each of the Original Credit Agreement, the First Amended and
Restated Credit Agreement and the Second Amendment and Restated Credit
Agreement) after the Original Effective Date do not exceed $2,500,000), an
amount equal to the Applicable Prepayment Percentage of the Net Cash Proceeds of
the respective equity issuance or capital contribution shall be applied as a
mandatory repayment and/or commitment reduction in accordance with the
requirements of Sections 4.02(h) and (i); provided that Net Cash Proceeds
--------
received by the Borrower from additional sales or issuances of Borrower Common
Stock or Qualified Preferred Stock shall not be required to be applied as a
mandatory repayment (and/or commitment reduction, as the case may be) on the
date of receipt thereof, to the extent that (x) no Default or Event of Default
then exists and (y) the Borrower delivers a certificate to the Administrative
Agent on or prior to such date stating that such Net Cash Proceeds shall be used
or contractually committed to be used to make Capital Expenditures (including,
without limitation, Permitted Acquisitions) within 270 days following the date
of receipt of such Net Cash Proceeds (which certificate shall set forth the
estimates of the proceeds to be so expended), and provided further, that (i) if
----------------
all or any portion of such Net Cash Proceeds are not so used (or contractually
committed to be used) within such 270-day period, such remaining portion shall
be applied on the last day of such period as a mandatory repayment and/or
commitment reduction as provided above and (ii) if all or any portion of such
Net Cash Proceeds are not so used within such 270-day period referred to in
clause (i) above because such amount is contractually committed to be used and
subsequent to such date such contract is terminated or expires without such
portion being so used, such remaining portion shall be applied on the date of
such termination or expiration as a mandatory repayment and/or commitment
reduction as provided above.
(f) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, within 10 days following each date on
or after the Original Effective Date on which the Borrower or any of its
Subsidiaries receives any proceeds from any Recovery Event (other than proceeds
from Recovery Events in an amount less than $1,000,000 per Recovery Event), an
amount equal to 100% of the proceeds of such Recovery Event (net of reasonable
costs (including, without limitation, legal costs and expenses) and taxes
incurred in connection with such Recovery Event and the amount of such proceeds
required to be used to repay any Indebtedness (other than Indebtedness of the
Banks pursuant to this Agreement) which is secured by the respective assets
subject to such Recovery Event) shall be applied as a
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<PAGE>
mandatory repayment and/or commitment reduction in accordance with the
requirements of Sections 4.02(h) and (i); provided that (x) so long as no
--------
Default or Event of Default then exists and such proceeds do not exceed
$2,500,000, such proceeds shall not be required to be so applied on such date to
the extent that an Authorized Officer of the Borrower has delivered a
certificate to the Administrative Agent on or prior to such date stating that
such proceeds shall be used or shall be committed to be used to replace or
restore any properties or assets in respect of which such proceeds were paid
within 360 days following the date of such Recovery Event (which certificate
shall set forth the estimates of the proceeds to be so expended) and (y) so long
as no Default or Event of Default then exists and to the extent that (a) the
amount of such proceeds exceeds $2,500,000, (b) the amount of such proceeds,
together with other cash available to the Borrower and its Subsidiaries and
permitted to be spent by them on Capital Expenditures during the relevant
period, equals at least 100% of the cost of replacement or restoration of the
properties or assets in respect of which such proceeds were paid as determined
by the Borrower and as supported by such estimates or bids from contractors or
subcontractors or such other supporting information as the Administrative Agent
may reasonably accept, (c) an Authorized Officer of the Borrower has delivered
to the Administrative Agent a certificate on or prior to the date the
application would otherwise be required pursuant to this Section 4.02(f) in the
form described in clause (x) above and also certifying its determination as
required by preceding clause (b) and certifying the sufficiency of business
interruption insurance as required by succeeding clause (d), and (d) an
Authorized Officer of the Borrower has delivered to the Administrative Agent
such evidence as the Administrative Agent may reasonably request in form and
substance reasonably satisfactory to the Administrative Agent establishing that
the Borrower has sufficient business interruption insurance and that the
Borrower will receive payment thereunder in such amounts and at such times as
are necessary to satisfy all obligations and expenses of the Borrower
(including, without limitation, all debt service requirements, including
pursuant to this Agreement), without any delay or extension thereof, for the
period from the date of the respective casualty, condemnation or other event
giving rise to the Recovery Event and continuing through the completion of the
replacement or restoration of respective properties or assets, then the entire
amount of the proceeds of such Recovery Event and not just the portion in excess
of $2,500,000 shall be deposited with the Administrative Agent pursuant to a
cash collateral arrangement reasonably satisfactory to the Administrative Agent
whereby such proceeds shall be disbursed to the Borrower from time to time as
needed to pay or reimburse the Borrower or such Subsidiary actual costs incurred
by it in connection with the replacement or restoration of the respective
properties or assets (pursuant to such certification requirements as may be
established by the Administrative Agent), provided further, that at any time
----------------
while an Event of Default has occurred and is continuing, the Required Banks may
direct the Administrative Agent (in which case the Administrative Agent shall,
and is hereby authorized by the Borrower to, follow said directions) to apply
any or all proceeds then on deposit in such collateral account to the repayment
of Obligations hereunder in the same manner as proceeds would be applied
pursuant to the Security Agreement, and provided further, that if all or any
----------------
portion of such proceeds not required to be applied as a mandatory repayment
and/or commitment reduction pursuant to the second preceding proviso (whether
pursuant to clause (x) or (y) thereof) are either (A) not so used or committed
to be so used within 360 days after the date of the respective Recovery Event or
(B) if committed to be used within 360 days after the date of receipt of such
net proceeds and not so used within 18 months after the date of respective
Recovery Event then, in either such case, such
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<PAGE>
remaining portion not used or committed to be used in the case of preceding
clause (A) and not used in the case of preceding clause (B) shall be applied on
the date occurring 360 days after the date of the respective Recovery Event in
the case of clause (A) above or the date occurring 18 months after the date of
the respective Recovery Event in the case of clause (B) above as a mandatory
repayment and/or commitment reduction in accordance with the requirements of
Sections 4.02(h) and (i).
(g) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each Excess Cash Flow Payment Date,
an amount equal to the Applicable Excess Cash Flow Percentage of the Adjusted
Excess Cash Flow for the relevant Excess Cash Flow Payment Period shall be
applied as a mandatory repayment and/or commitment reduction in accordance with
the requirements of Sections 4.02(h) and (i).
(h) Each amount required to be applied pursuant to Sections 4.02(c),
(d), (e), (f) and (g) in accordance with this Section 4.02(h) shall be applied
(i) first, to repay the outstanding principal amount of Term Loans, with each
such amount required to be applied to repay outstanding Term Loans to be applied
pro rata to each Tranche of Term Loans based upon the then remaining principal
- --- ----
amounts of the respective Tranches (with each Tranche of Term Loans to be
allocated that percentage of the amount to be applied as is equal to a fraction
(expressed as a percentage) the numerator of which is equal to the then
outstanding principal amount of such Tranche of Term Loans and the denominator
of which is equal to the then outstanding principal amount of all Term Loans),
(ii) second, to the extent in excess of the amounts required to be applied
pursuant to preceding clause (i), to reduce the Total Revolving Loan Commitment
(it being understood and agreed that (x) the amount of any reduction to the
Total Revolving Loan Commitment as provided in immediately preceding clause (ii)
shall be deemed to be an application of proceeds for purposes of this Section
4.02(h) even though cash is not actually applied and (y) in connection with any
such reduction to the Total Revolving Loan Commitment, any cash received by the
Borrower or such Subsidiary in connection with the event giving rise to such
reduction will be retained by such Person except to the extent that such cash is
otherwise required to be applied as provided in Section 4.02(a) as a result of
such reduction to the Total Revolving Loan Commitment). All repayments or
commitment reductions, as the case may be, of (x) outstanding Term Loans, on the
one hand and (y) Revolving Loan Commitments, on the other hand, pursuant to
Sections 4.02(c), (d), (e), (f) or (g) shall be applied to reduce the then
remaining Scheduled Repayments of the respective Tranche of Term Loans (in the
case of preceding clause (x)) or Scheduled Commitment Reductions (in the case of
preceding clause (y)), on a pro rata basis (based upon the then remaining
--- ----
Scheduled Repayments of the respective Tranche or Scheduled Commitment
Reductions, as the case may be, after giving effect to all prior reductions
thereto).
(i) With respect to each repayment of Loans required by this Section
4.02, the Borrower may designate the Types of Loans of the respective Tranche
which are to be repaid and, in the case of Eurodollar Loans, the specific
Borrowing or Borrowings of the respective Tranche pursuant to which made,
provided that: (i) repayments of Eurodollar Loans pursuant to this Section 4.02
- --------
may only be made on the last day of an Interest Period applicable thereto unless
(x) all Eurodollar Loans of the respective Tranche with Interest Periods ending
on such date of required repayment and all Base Rate Loans of the respective
Tranche have been paid in full
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<PAGE>
and/or (y) concurrently with such repayment, the Borrower pays all breakage
costs and other amounts owing to each Bank pursuant to Section 1.11; (ii) if any
repayment of Eurodollar Loans made pursuant to a single Borrowing shall reduce
the outstanding Eurodollar Loans made pursuant to such Borrowing to an amount
less than the Minimum Borrowing Amount applicable thereto, such Borrowing shall
be converted at the end of the then current Interest Period into a Borrowing of
Base Rate Loans; and (iii) each repayment of any Tranche of Loans made pursuant
to a Borrowing shall be applied pro rata among such Tranche of Loans. In the
--- ----
absence of a designation by the Borrower as described in the preceding sentence,
the Administrative Agent shall, subject to the above, make such designation in
its sole discretion with a view, but no obligation, to minimize breakage costs
owing under Section 1.11. Notwithstanding the foregoing provisions of this
Section 4.02, if at any time the mandatory repayment of Loans pursuant to
Section 4.02(c), (d), (e), (f) or (g) would result, after giving effect to the
procedures set forth in this clause (i) above, in the Borrower incurring
breakage costs under Section 1.11 as a result of Eurodollar Loans being repaid
other than on the last day of an Interest Period applicable thereto (any such
Eurodollar Loans, "Affected Loans"), the Borrower may elect, by written notice
to the Administrative Agent, to have the provisions of the following sentence be
applicable. At the time any Affected Loans are otherwise required to be prepaid
the Borrower may elect to deposit 100% (or such lesser percentage elected by the
Borrower as not being repaid) of the principal amounts that otherwise would have
been paid in respect of the Affected Loans with the Administrative Agent to be
held as security for the obligations of the Borrower hereunder pursuant to a
cash collateral agreement to be entered into in form and substance satisfactory
to the Administrative Agent, with such cash collateral to be released from such
cash collateral account (and applied to repay the principal amount of such
Eurodollar Loans) upon each occurrence thereafter of the last day of an Interest
Period applicable to Eurodollar Loans of the respective Tranche (or such earlier
date or dates as shall be requested by the Borrower), with the amount to be so
released and applied on the last day of each Interest Period to be the amount of
such Eurodollar Loans to which such Interest Period applies (or, if less, the
amount remaining in such cash collateral account).
(j) Notwithstanding anything to the contrary contained elsewhere in
this Agreement, (i) all then outstanding Swingline Loans shall be repaid in full
on the Swingline Expiry Date and (ii) all other then outstanding Loans shall be
repaid in full on the respective Maturity Date for such Loans.
4.03 Method and Place of Payment. Except as otherwise specifically
---------------------------
provided herein, all payments under this Agreement or any Note shall be made to
the Administrative Agent for the ratable account of the Bank or Banks entitled
thereto not later than 12:00 Noon (New York time) on the date when due and shall
be made in immediately available funds and in U.S. Dollars at the Payment
Office. Any payments under this Agreement or under any Note which are made
later than 12:00 Noon (New York time) shall be deemed to have been made on the
next succeeding Business Day. Whenever any payment to be made hereunder or
under any Note shall be stated to be due on a day which is not a Business Day,
the due date thereof shall be extended to the next succeeding Business Day and,
with respect to payments of principal, interest shall be payable during such
extension at the applicable rate in effect immediately prior to such extension.
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<PAGE>
4.04 Net Payments. (a) All payments made by the Borrower hereunder
------------
or under any Note will be made without setoff, counterclaim or other defense.
Except as provided in Section 4.04(b), all such payments will be made free and
clear of, and without deduction or withholding for, any present or future taxes,
levies, imposts, duties, fees, assessments or other charges of whatever nature
now or hereafter imposed by any jurisdiction or by any political subdivision or
taxing authority thereof or therein with respect to such payments (but
excluding, except as provided in the second succeeding sentence, any tax imposed
on or measured by the net income, net profits or capital (including branch
profits tax) of a Bank pursuant to the laws of the jurisdiction in which it is
organized or the jurisdiction in which the principal office or applicable
lending office of such Bank is located or any subdivision thereof or therein)
and all interest, penalties or similar liabilities with respect to such
nonexcluded taxes, levies, imposts, duties, fees, assessments or other charges
(all such nonexcluded taxes, levies, imposts, duties, fees, assessments or other
charges being referred to collectively as "Taxes"). If any Taxes are so levied
or imposed, the Borrower agrees to pay the full amount of such Taxes, and such
additional amounts as may be necessary so that every payment of all amounts due
under this Agreement or under any Note, after withholding or deduction for or on
account of any Taxes, will not be less than the amount provided for herein or in
such Note. If any amounts are payable in respect of Taxes pursuant to the
preceding sentence, the Borrower agrees to reimburse each Bank, upon the written
request of such Bank, for taxes imposed on or measured by the net income, net
profits or capital (including branch profits tax) of such Bank pursuant to the
laws of the jurisdiction in which such Bank is organized or in which the
principal office or applicable lending office of such Bank is located or under
the laws of any political subdivision or taxing authority of any such
jurisdiction in which such Bank is organized or in which the principal office or
applicable lending office of such Bank is located and for any withholding of
taxes as such Bank shall determine are payable by, or withheld from, such Bank
in respect of such amounts so paid to or on behalf of such Bank pursuant to the
preceding sentence and in respect of any amounts paid to or on behalf of such
Bank pursuant to this sentence. The Borrower will furnish to the Administrative
Agent within 45 days after the date the payment of any Taxes is due pursuant to
applicable law certified copies of tax receipts evidencing such payment by the
Borrower. The Borrower agrees to indemnify and hold harmless each Bank, and
reimburse such Bank upon its written request, for the amount of any Taxes so
levied or imposed and paid by such Bank.
(b) Each Bank party to this Agreement on the Third Restatement
Effective Date hereby represents that, as of the Third Restatement Effective
Date, all payments of principal, interest, and fees to be made to it by the
Borrower pursuant to this Agreement will be totally exempt from withholding of
United States federal tax. Each Bank that is not a United States person (as
such term is defined in Section 7701(a)(30) of the Code) for U.S. Federal income
tax purposes agrees to deliver to the Borrower and the Administrative Agent on
or prior to the Original Effective Date (or the First Restatement Effective
Date, the Second Restatement Effective Date or the Third Restatement Effective
Date in the case of any Bank that first becomes a party hereto on the First
Restatement Effective Date, the Second Restatement Effective Date or the Third
Restatement Effective Date, as the case may be), or in the case of a Bank that
is an assignee or transferee of an interest under this Agreement pursuant to
Section 1.13 or 13.04 (unless the respective Bank was already a Bank hereunder
immediately prior to such assignment or transfer), on the date of such
assignment or transfer to such Bank, (i) two accurate and
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<PAGE>
complete original signed copies of Internal Revenue Service Form W-8ECI or W-
8BEN (with respect to a complete exemption under an income tax treaty) (or
successor forms or, in the case of any delivery prior to the Third Restatement
Effective Date, predecessor form) certifying to such Bank's entitlement to a
complete exemption from United States withholding tax with respect to payments
to be made under this Agreement and under any Note, or (ii) if the Bank is not a
"bank" within the meaning of Section 881(c)(3)(A) of the Code and cannot deliver
either Internal Revenue Service Form W-8ECI or W-8BEN (with respect to a
complete exemption under an income tax treaty) (or, in the case of any delivery
prior to the Third Restatement Effective Date, predecessor form) pursuant to
clause (i) above, (x) a certificate substantially in the form of Exhibit D (any
such certificate, a "Section 4.04(b)(ii) Certificate") and (y) two accurate and
complete original signed copies of Internal Revenue Service Form W-8BEN with
respect to the portfolio interest exemption (or successor form or, in the case
of any delivery prior to the Third Restatement Effective Date, predecessor form)
certifying to such Bank's entitlement as of such date to a complete exemption
from United States withholding tax with respect to payments of interest to be
made under this Agreement and under any Note. In addition, each Bank agrees that
from time to time after the Third Restatement Effective Date, when a lapse in
time or change in circumstances renders the previous certification obsolete or
inaccurate in any material respect, it will deliver to the Borrower and the
Administrative Agent two new accurate and complete original signed copies of
Internal Revenue Service Form W-8ECI, Form W-8BEN (with respect to the benefits
of an income tax treaty), Form W-8BEN (with respect to the benefits of an income
tax treaty), Form W-8BEN (with respect to the portfolio interest exemption) and
a Section 4.04(b)(ii) Certificate, as the case may be, and such other forms as
may be required in order to confirm or establish the entitlement of such Bank to
a continued exemption from or reduction in United States withholding tax with
respect to payments under this Agreement and any Note, or it shall immediately
notify the Borrower and the Administrative Agent of its inability to deliver any
such Form or Certificate in which case such Bank shall not be required to
deliver any such Form or Certificate pursuant to this Section 4.04(b).
Notwithstanding anything to the contrary contained in Section 4.04(a), but
subject to Section 13.04(b) and the immediately succeeding sentence, (x) the
Borrower shall be entitled, to the extent it is required to do so by law, to
deduct or withhold income or similar taxes imposed by the United States (or any
political subdivision or taxing authority thereof or therein) from interest,
fees or other amounts payable hereunder for the account of any Bank which is not
a United States person (as such term is defined in Section 7701(a)(30) of the
Code) for U.S. Federal income tax purposes to the extent that such Bank has not
provided to the Borrower U.S. Internal Revenue Service Forms that establish a
complete exemption from such deduction or withholding and (y) the Borrower shall
not be obligated pursuant to Section 4.04(a) hereof to gross-up payments to be
made to a Bank in respect of income or similar taxes imposed by the United
States if (I) such Bank has not provided to the Borrower the Internal Revenue
Service Forms required to be provided to the Borrower pursuant to this Section
4.04(b) or (II) in the case of a payment, other than interest, to a Bank
described in clause (ii) above, to the extent that such Forms do not establish a
complete exemption from withholding of such taxes. Notwithstanding anything to
the contrary contained in the preceding sentence or elsewhere in this Section
4.04 and except as set forth in Section 13.04(b), the Borrower agrees to pay
additional amounts and to indemnify each Bank in the manner set forth in Section
4.04(a) (without regard to the identity of the jurisdiction requiring the
deduction or withholding) in respect of any Taxes deducted or withheld by them
as described in
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<PAGE>
the immediately preceding sentence as a result of any changes after the Third
Restatement Effective Date in any applicable law, treaty, governmental rule,
regulation, guideline or order, or in the interpretation thereof, relating to
the deducting or withholding of such Taxes (or, if later, the date such Bank
became party to this Agreement). The Borrower shall not be required to pay any
additional amounts or indemnification under Section 4.04(a) to any Bank to the
extent that the obligation to pay such additional amounts or indemnification
would not have arisen but for the representation set forth in the first sentence
of Section 4.04(b) above made by the Bank not being true.
(c) If the Borrower pays any additional amount under this Section
4.04 to a Bank and such Bank determines in its sole discretion that it has
actually received or realized in connection therewith any refund or any
reduction of, or credit against, its Tax liabilities in or with respect to the
taxable year in which the additional amount is paid, such Bank shall pay to the
Borrower an amount that the Bank shall, in its sole discretion, determine is
equal to the net benefit, after tax, which was obtained by the Bank in such year
as a consequence of such refund, reduction or credit.
(d) Each Bank shall use reasonable efforts (consistent with legal and
regulatory restrictions and subject to overall policy considerations of such
Bank) (i) to file any certificate or document or to furnish any information as
reasonably requested by the Borrower pursuant to any applicable treaty, law or
regulation or (ii) to designate a different applicable lending office of such
Bank, if the making of such filing or the furnishing of such information or the
designation of such other lending office would avoid the need for or reduce the
amount of any additional amounts payable by the Borrower and would not, in the
sole discretion of such Bank, be disadvantageous to such Bank.
(e) The provisions of this Section 4.04 are subject to the provisions
of Section 13.18 (to the extent applicable).
SECTION 5. Conditions Precedent to Third Restatement Effective Date.
--------------------------------------------------------
The occurrence of the Third Restatement Effective Date pursuant to Section
13.10, and the obligation of each Bank to continue and/or make Loans hereunder,
and the obligation of the Letter of Credit Issuer to issue Letters of Credit
hereunder, in each case on the Third Restatement Effective Date, are subject at
the time of the occurrence of the Third Restatement Effective Date to the
satisfaction of the following conditions:
5.01 Execution of Agreement; Notes. On or prior to the Third
-----------------------------
Restatement Effective Date, (i) this Agreement shall have been executed and
delivered as provided in Section 13.10 and (ii) there shall have been delivered
to the Administrative Agent for the account of each Bank which has requested the
same the appropriate Tranche A Term Note, Tranche B Term Note, Tranche C Term
Note, Tranche D Term Note and Revolving Note and to BTCo if so requested, the
Swingline Note, in each case executed by the Borrower and in the amount,
maturity and as otherwise provided herein.
5.02 Officer's Certificate. On the Third Restatement Effective Date,
---------------------
the Administrative Agent shall have received a certificate dated such date
signed by an appropriate
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officer of the Borrower stating that all of the applicable conditions set forth
in Sections 5.04 through 5.10, inclusive, and 6.01 (other than such conditions
that are subject to the satisfaction of the Agents and/or the Required Banks),
have been satisfied on such date.
5.03 Opinions of Counsel. On the Third Restatement Effective Date,
-------------------
the Administrative Agent shall have received opinions, addressed to each Agent,
the Collateral Agent and each of the Banks and dated the Third Restatement
Effective Date, from (i) O'Sullivan Graev & Karabell, LLP, special counsel to
the Credit Parties, which opinion shall cover the relevant matters contained in
Exhibit E-1 and such other matters incident to the transactions contemplated
herein as the Agents and the Required Banks may reasonably request and be in
form and substance reasonably satisfactory to the Agents and the Required Banks,
(ii) Russell Phillips, Esq., General Counsel of the Borrower, which opinion
shall cover the relevant matters contained in Exhibit E-2 and such other matters
incident to the transactions contemplated herein as the Agents and the Required
Banks may reasonably request and be in form and substance reasonably
satisfactory to the Agents and the Required Banks, and (iii) local counsel to
the Credit Parties and/or the Agents reasonably satisfactory to the Agents,
which opinions (x) shall be addressed to each Agent, the Collateral Agent and
each of the Banks and be dated the Third Restatement Effective Date, (y) shall
cover the perfection of the security interests granted pursuant to the Security
Documents and such other matters incident to the transactions contemplated
herein as the Agents may reasonably request and (z) shall be in form and
substance reasonably satisfactory to the Agents.
5.04 Corporate Documents; Proceedings. (a) On the Third Restatement
--------------------------------
Effective Date, the Administrative Agent shall have received from the Borrower
and each New Credit Party a certificate, dated the Third Restatement Effective
Date, signed by the chairman, a vice-chairman, the president or any vice-
president of such New Credit Party and attested to by the secretary or any
assistant secretary of such New Credit Party, in the form of Exhibit F with
appropriate insertions, together with copies of the certificate of
incorporation, by-laws or equivalent organizational documents of such New Credit
Party and the resolutions of such New Credit Party referred to in such
certificate and all of the foregoing (including each such certificate of
incorporation, by-laws or other organizational document) shall be reasonably
satisfactory to the Agents.
(b) On the Third Restatement Effective Date, the Administrative Agent
shall have received a certificate from each Credit Party (other than the New
Credit Parties) (x) certifying that there were no changes, or providing the text
of any changes, to the certificate of incorporation, by-laws or equivalent
organizational documents of such Credit Party as delivered pursuant to Section
5.04 of each of the Original Credit Agreement, the First Amended and Restated
Credit Agreement and the Second Amended and Restated Credit Agreement, (y) to
the effect that such Credit Party is in good standing in its respective state of
organization and in those states where such Credit Party conducts business and
(z) providing the resolutions adopted by such Credit Party with respect to the
actions contemplated by this Agreement (including, without limitation, with
respect to the SMT Merger, the amendment and restatement of this Agreement, and
the obligations of such Credit Party with respect to the increased extensions of
credit pursuant hereto), and all of the foregoing shall be acceptable to the
Agents.
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(c) On the Third Restatement Effective Date, all Company and legal
proceedings and all instruments and agreements in connection with the
transactions contemplated by this Agreement and the other Documents shall be
reasonably satisfactory in form and substance to the Agents, and the
Administrative Agent shall have received all information and copies of all
certificates, documents and papers, including good standing certificates, bring-
down certificates and any other records of Company proceedings and governmental
approvals, if any, which either Agent reasonably may have requested in
connection therewith, such documents and papers, where appropriate, to be
certified by proper Company or governmental authorities.
5.05 Adverse Change, etc. (a) On the Third Restatement Effective
--------------------
Date, since December 31, 1998, nothing shall have occurred which (i) the
Required Banks or either Agent shall reasonably determine has had, or could
reasonably be expected to have, a material adverse effect on the rights or
remedies of the Banks or the Agents or on the ability of any Credit Party to
perform its obligations to them hereunder or under any other Credit Document or
(ii) has had a material adverse effect on the Transaction or a Material Adverse
Effect.
(b) On the Third Restatement Effective Date, there shall not have
occurred and be continuing any material adverse change to the syndication market
for credit facilities similar in nature to this Agreement and there shall not
have occurred and be continuing a material disruption or a material adverse
change in financial, banking or capital markets that would have a material
adverse effect on the syndication, in each case as determined by the Agents in
their reasonable discretion.
5.06 Litigation. On the Third Restatement Effective Date, there
----------
shall be no actions, suits, proceedings or investigations pending or threatened
(x) with respect to this Agreement or any other Document (except as set forth on
Schedule XIII) or the Transaction, (y) with respect to any Existing Indebtedness
or (z) which either Agent or the Required Banks shall determine could reasonably
be expected to have (i) a Material Adverse Effect or (ii) a material adverse
effect on the Transaction, the rights or remedies of the Banks or the Agents
hereunder or under any other Credit Document or on the ability of any Credit
Party to perform its respective obligations to the Banks or the Agents hereunder
or under any other Credit Document.
5.07 Approvals. On or prior to the Third Restatement Effective Date,
---------
(i) all necessary governmental (domestic and foreign), regulatory and third
party approvals in connection with any Existing Indebtedness, the Transaction ,
the transactions contemplated by the Documents and otherwise referred to herein
or therein shall have been obtained and remain in full force and effect and
evidence thereof shall have been provided to the Administrative Agent and (ii)
all applicable waiting periods shall have expired without any action being taken
by any competent authority which restrains, prevents or imposes materially
adverse conditions upon the consummation of the Transaction, the making of the
Loans and the transactions contemplated by the Documents or otherwise referred
to herein or therein. Additionally, there shall not exist any judgment, order,
injunction or other restraint issued or filed or a hearing seeking injunctive
relief or other restraint pending or notified prohibiting or imposing materially
adverse conditions upon, or materially delaying, or making economically
unfeasible, the consummation of the Transaction or the making of the Loans.
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5.08 Second Amended and Restated Credit Agreement; etc.. On the
---------------------------------------------------
Third Restatement Effective Date (after giving effect to the incurrence of Loans
on such date), (i) all outstanding Swingline Loans shall be repaid in full, (ii)
BTCo shall have received payment in full of all amounts (including any accrued
and unpaid interest and fees) then due and owing to it under the Second Amended
and Restated Credit Agreement in respect of its Swingline Loans being repaid,
(iii) all accrued interest on all outstanding extensions of credit pursuant to
the Second Amended and Restated Credit Agreement, and all regularly accruing
fees pursuant to the Second Amended and Restated Credit Agreement, shall be paid
in full on, and through, the Third Restatement Effective Date (whether or not
same would otherwise then be due and payable pursuant to the Second Amended and
Restated Credit Agreement) and (iv) the Administrative Agent shall have received
evidence in form, scope and substance satisfactory to it that the matters set
forth in this Section 5.08 have been satisfied on such date.
5.09. Consummation of SMT Merger. On or prior to the Third
--------------------------
Restatement Effective Date, (i) there shall have been delivered to the
Administrative Agent a true and correct copy of the SMT Merger Agreement,
certified as such by an appropriate officer of the Borrower, and the SMT Merger
Documents, and all terms and conditions thereof, shall be in form and substance
satisfactory to the Agents, (ii) the SMT Merger, including all of the terms and
conditions thereof, shall have been duly approved by the requisite boards of
directors and (if required by applicable law) the requisite shareholders of the
Borrower, SMT Acquisition Corp. and SMT and all SMT Merger Documents shall have
been duly executed and delivered by the parties thereto and be in full force and
effect, (iii) the representations and warranties set forth in the SMT Merger
Documents shall be true and correct in all material respects as if made on and
as of the Third Restatement Effective Date, (iv) each of the conditions
precedent to the consummation of the SMT Merger as set forth in the SMT Merger
Documents shall have been satisfied, and not waived except with the consent of
each Agent and the Required Banks, to the satisfaction of each Agent and the
Required Banks, (v) all Liens or Indebtedness to be incurred or assumed in
connection with the SMT Merger shall otherwise be permitted under this Agreement
(including, without limitation, Sections 9.01 and 9.04), and (vi) the SMT Merger
shall have been consummated in accordance with the SMT Merger Documents and all
applicable law.
5.10 Refinancing. (a) On the Third Restatement Effective Date and
-----------
concurrently with the incurrence of Tranche D Term Loans on such date, (i)
approximately $62,043,571 of Indebtedness of SMT and its Subsidiaries under the
Existing SMT Credit Agreement shall have been repaid in full, together with all
fees and other amounts owing thereunder (the "SMT Refinanced Indebtedness"),
(ii) all commitments under the Existing SMT Credit Agreement shall have been
terminated and (iii) all outstanding letters of credit under the Existing SMT
Credit Agreement shall have been terminated or incorporated as Letters of Credit
hereunder as contemplated by Section 2.01(e).
(b) On the Third Restatement Effective Date and concurrently with the
incurrence of Loans on such date, all security interests in respect of, and
Liens securing, the SMT Refinanced Indebtedness shall have been terminated and
released, and the Administrative Agent shall have received all such releases as
may have been requested by the Administrative Agent, which releases shall be in
form and substance satisfactory to the Agents and the Required Banks.
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Without limiting the foregoing, there shall have been delivered to the
Administrative Agent (x) proper termination statements (Form UCC-3 or the
appropriate equivalent) for filing under the UCC of each jurisdiction where a
financing statement (Form UCC-1 or the appropriate equivalent) was filed with
respect to SMT and its Subsidiaries in connection with the security interests
created with respect to the SMT Refinanced Indebtedness and the documentation
related thereto, (y) terminations or reassignments of any security interest in,
or Lien on, any patents, trademarks, copyrights, or similar interests of SMT and
its Subsidiaries on which filings have been made and (z) terminations of all
mortgages, leasehold mortgages and deeds of trust created with respect to
property of SMT and its Subsidiaries, in each case, to secure the obligations
under the SMT Refinanced Indebtedness, all of which shall be in form and
substance satisfactory to the Agents and the Required Banks.
(c) On the Third Restatement Effective Date and after giving effect
to the Transaction and the incurrence of Loans on the Third Restatement
Effective Date, the Borrower and its Subsidiaries shall have no Indebtedness or
Preferred Stock outstanding other than (i) the Loans, (ii) the Senior
Subordinated Notes, (iii) the PIK Preferred Stock and (iv) certain other
indebtedness existing on the Third Restatement Effective Date as listed on
Schedule IV in an aggregate outstanding principal amount not to exceed
$40,000,000 (with the Indebtedness at any time listed on Schedule IV being
herein called the "Scheduled Existing Indebtedness" and the Scheduled Existing
Indebtedness, together with the Senior Subordinated Notes, being herein called
the "Existing Indebtedness"). On and as of the Third Restatement Effective
Date, all of the Existing Indebtedness shall remain outstanding after giving
effect to the Transaction and the incurrence of Loans on such date without any
default or event of default existing thereunder or arising as a result thereof
(except to the extent (x) amended or waived by the parties thereto on terms and
conditions satisfactory to the Agents and the Required Banks or (y) the
aggregate principal amount of the Scheduled Existing Indebtedness subject or
giving rise to a default or event of default does not exceed $3,000,000), and
there shall not be any amendments or modifications to the Existing Indebtedness
Agreements other than as requested or approved by the Agents or the Required
Banks.
(d) The Administrative Agent shall have received evidence in form,
scope and substance satisfactory to the Agents and the Required Banks that the
matters set forth in this Section 5.10 have been satisfied on the Third
Restatement Effective Date.
5.11 Security Documents; etc. (a) On the Third Restatement
------------------------
Effective Date, each of the Credit Parties shall have duly authorized, executed
and delivered an Amended and Restated Pledge Agreement in the form of Exhibit G
(as so amended and restated and as the same may be further amended, amended and
restated, modified and/or supplemented from time to time in accordance with the
terms thereof and hereof, the "Pledge Agreement") and shall have delivered to
the Collateral Agent, as pledgee thereunder, (x) all of the Pledged Securities
referred to therein then owned by such Credit Parties and required to be pledged
pursuant to the terms thereof, endorsed in blank in the case of promissory notes
or accompanied by executed and undated stock powers in the case of capital stock
and (y) such other evidence that all other actions necessary or, in the
reasonable opinion of the Collateral Agent, desirable, to perfect the security
interests purported to be created by the Pledge Agreement have been taken, and
the Pledge Agreement shall be in full force and effect.
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(b) On the Third Restatement Effective Date, each of the Credit
Parties shall have duly authorized, executed and delivered an Amended and
Restated Security Agreement in the form of Exhibit H (as so amended and restated
and as the same may be further amended, amended and restated, modified and/or
supplemented from time to time in accordance with the terms thereof and hereof,
the "Security Agreement") covering all of the Security Agreement Collateral,
together with the following:
(i) executed copies of Financing Statements (Form UCC-1) or
appropriate local equivalent in appropriate form for filing under the UCC
or appropriate local equivalent of each jurisdiction as may be necessary
or, in the reasonable opinion of the Collateral Agent, desirable to perfect
the security interests purported to be created by the Security Agreement;
(ii) certified copies of Requests for Information or Copies (Form
UCC-11), or equivalent reports, each of a recent date listing all effective
financing statements that name SMT and its Subsidiaries as debtor and that
are filed in the jurisdictions referred to in clause (i) above, together
with copies of such financing statements (none of which shall cover the
Collateral except (x) those with respect to which appropriate termination
statements executed by the secured lender thereunder have been delivered to
the Collateral Agent and (y) to the extent evidencing Permitted Liens);
(iii) evidence of the completion of all other recordings and filings
of, or with respect to, the Security Agreement as may be necessary or, in
the reasonable opinion of the Collateral Agent, desirable, to perfect the
security interests purported to be created by the Security Agreement; and
(iv) evidence that all other actions necessary or, in the
reasonable opinion of the Collateral Agent, desirable, to perfect the
security interests purported to be created by the Security Agreement have
been taken;
and the Security Agreement shall be in full force and effect.
5.12 Subsidiaries Guaranty. On the Third Restatement Effective Date,
---------------------
each Subsidiary Guarantor shall have duly authorized, executed and delivered an
Amended and Restated Subsidiaries Guaranty in the form of Exhibit I (as so
amended and restated and as the same may be further amended, amended and
restated, modified and/or supplemented from time to time in accordance with the
terms thereof and hereof, the "Subsidiaries Guaranty"), and the Subsidiaries
Guaranty shall be in full force and effect.
5.13 Employee Benefit Plans; Shareholders' Agreements; Management
------------------------------------------------------------
Agreements; Employment Agreements; Collective Bargaining Agreements; Existing
- -----------------------------------------------------------------------------
Indebtedness Agreements; Material Contracts; Tax Allocation Agreements. (a) On
- ----------------------------------------------------------------------
the Third Restatement Effective Date, there shall have been delivered to the
Administrative Agent on its request true and correct copies, certified as true
and complete by an appropriate officer of the Borrower of the following
documents (in each case except to the extent already delivered or made available
for review by the Administrative Agent on or prior to the Second Restatement
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Effective Date), in each case as same will be in effect on the Third Restatement
Effective Date after the consummation of the Transaction:
(i) all Plans (and for each Plan that is required to file an
annual report on Internal Revenue Service Form 5500-series, a copy of the
most recent such report (including, to the extent required, the related
financial and actuarial statements and opinions and other supporting
statements, certifications, schedules and information), and for each Plan
that is a "single-employer plan", as defined in Section 4001(a)(15) of
ERISA, the most recently prepared actuarial valuation therefor) and any
other "employee benefit plans", as defined in Section 3(3) of ERISA, and
any other material agreements, plans or arrangements, with or for the
benefit of current or former employees of the Borrower or any of its
Subsidiaries or any ERISA Affiliate (provided that the foregoing shall
apply in the case of any multiemployer plan, as defined in 4001(a)(3) of
ERISA, only to the extent that any document described therein is in the
possession of the Borrower or any Subsidiary of the Borrower or any ERISA
Affiliate or reasonably available thereto from the sponsor or trustee of
any such plan) (collectively, together with any agreements, plans or
arrangements referred to in Section 5.12(i) of the Original Credit
Agreement, Section 5.13(a)(i) of the First Amended and Restated Credit
Agreement and Sections 5A.11(a)(i) and 5B.11 of the Second Amended and
Restated Credit Agreement and any amendments thereto referred to in Section
5.13(b), Section 5.13(b) of the First Amended and Restated Credit Agreement
and Section 5A.11(b) of the Second Amended and Restated Credit Agreement,
the "Employee Benefit Plans");
(ii) all agreements (including, without limitation, shareholders'
agreements, subscription agreements and registration rights agreements)
entered into by the Borrower or any of its Subsidiaries governing the terms
and relative rights of its capital stock and any agreements entered into by
shareholders relating to any such entity with respect to its capital stock
(collectively, together with any agreements referred to in Section 5.12(ii)
of the Original Credit Agreement, Section 5.13(a)(ii) of the First Amended
and Restated Credit Agreement and Sections 5A.11(a)(ii) and 5B.11 of the
Second Amended and Restated Credit Agreement and any amendments thereto
referred to in Section 5.13(b), Section 5.13(b) of the First Amended and
Restated Credit Agreement and Section 5A.11(b) of the Second Amended and
Restated Credit Agreement, the "Shareholders' Agreements");
(iii) all material agreements (other than Employment Agreements)
with members of, or with respect to, the management of the Borrower or any
of its Subsidiaries after giving effect to the Transaction (collectively,
together with any agreements referred to in Section 5.12(iii) of the
Original Credit Agreement, Section 5.13(a)(iii) of the First Amended and
Restated Credit Agreement and Sections 5A.11(a)(iii) and 5B.11 of the
Second Amended and Restated Credit Agreement and any amendments thereto
referred to in Section 5.13(b), Section 5.13(b) of the First Amended and
Restated Credit Agreement and Section 5A.11(b) of the Second Amended and
Restated Credit Agreement, the "Management Agreements");
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<PAGE>
(iv) any material employment agreements entered into by the
Borrower or any of its Subsidiaries after giving effect to the Transaction
(collectively, together with any agreements referred to in Section 5.12(iv)
of the Original Credit Agreement, Section 5.13(a)(iv) of the First Amended
and Restated Credit Agreement and Sections 5A.11(a)(iv) and 5B.11 of the
Second Amended and Restated Credit Agreement and any amendments thereto
referred to in Section 5.13(b), Section 5.13(b) of the First Amended and
Restated Credit Agreement and Section 5A.11(b) of the Second Amended and
Restated Credit Agreement, the "Employment Agreements");
(v) all collective bargaining agreements applying or relating to
any employee of the Borrower or any of its Subsidiaries after giving effect
to the Transaction (collectively, together with any agreements referred to
in Section 5.12(v) of the Original Credit Agreement, Section 5.13(a)(v) of
the First Amended and Restated Credit Agreement and Sections 5A.11(a)(v)
and 5B.11 of the Second Amended and Restated Credit Agreement and any
amendments thereto referred to in Section 5.13(b), Section 5.13(b) of the
First Amended and Restated Credit Agreement and Section 5A.11(b) of the
Second Amended and Restated Credit Agreement, the "Collective Bargaining
Agreements");
(vi) all agreements evidencing or relating to Existing Indebtedness
of the Borrower or any of its Subsidiaries after giving effect to the SMT
Refinancing (collectively, together with any agreements referred to in
Section 5.12(vi) of the Original Credit Agreement, Section 5.13(a)(vi) of
the First Amended and Restated Credit Agreement and Sections 5A.11(a)(vi)
and 5B.11 of the Second Amended and Restated Credit Agreement and any
amendments thereto referred to in Section 5.13(b), Section 5.13(b) of the
First Amended and Restated Credit Agreement and Section 5A.11(b) of the
Second Amended and Restated Credit Agreement, the "Existing Indebtedness
Agreements");
(vii) all other material contracts and licenses (other than
certificates of need) of the Borrower and any of its Subsidiaries after
giving effect to the Transaction (collectively, together with any
agreements referred to in Section 5.12(vii) of the Original Credit
Agreement, Section 5.13(a)(vii) of the First Amended and Restated Credit
Agreement and Sections 5A.11(a)(vii) and 5B.11 of the Second Amended and
Restated Credit Agreement and any amendments thereto referred to in Section
5.13(b), Section 5.13(b) of the First Amended and Restated Credit Agreement
and Section 5A.11(b) of the Second Amended and Restated Credit Agreement,
the "Material Contracts"); and
(viii) any tax sharing or tax allocation agreements entered into by
the Borrower or any of its Subsidiaries (collectively, together with any
agreements referred to in Section 5.12(viii) of the Original Credit
Agreement, Section 5.13(a)(viii) of the First Amended and Restated Credit
Agreement and Sections 5A.11(a)(viii) and 5B.11 of the Second Amended and
Restated Credit Agreement and any amendments thereto referred to in Section
5.13(b), Section 5.13(b) of the First Amended and Restated Credit Agreement
and Section 5A.11(b) of the Second Amended and Restated Credit Agreement,
the "Tax Allocation Agreements");
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all of which Employee Benefit Plans, Shareholders' Agreements, Management
Agreements, Employment Agreements, Collective Bargaining Agreements, Existing
Indebtedness Agreements, Material Contracts and Tax Allocation Agreements shall
be in form and substance satisfactory to the Agents and the Required Banks and
shall be in full force and effect.
(b) On or prior to the Third Restatement Effective Date, the
Administrative Agent shall have received (i) a certification from the
appropriate officer of the Borrower that all agreements and plans referenced in
Section 5.12 of the Original Credit Agreement, Section 5.13 of the First Amended
and Restated Credit Agreement and Sections 5A.11 and 5B.11 of the Second Amended
and Restated Credit Agreement, previously delivered (or made available) to the
Administrative Agent by each Credit Party, remain in full force and effect (or
specifying which of such agreements and plans do not remain in full force and
effect) and (ii) any amendments to the agreements and plans referred to in
Section 5.12 of the Original Credit Agreement, Section 5.13 of the First Amended
and Restated Credit Agreement and Sections 5A.11 and 5B.11 of the Second Amended
and Restated Credit Agreement.
5.14 Consent Letter. On the Third Restatement Effective Date, the
--------------
Administrative Agent shall have received a letter from CT Corporation System,
presently located at 1633 Broadway, New York, New York 10019, substantially in
the form of Exhibit J, indicating its consent to its appointment by the Borrower
and each Subsidiary Guarantor as its agent to receive service of process as
specified in Section 13.08 or the Subsidiaries Guaranty, as the case may be.
5.15 Solvency Certificate; Insurance Certificates. On or before the
--------------------------------------------
Third Restatement Effective Date, the Administrative Agent shall have received:
(a) a solvency certificate in the form of Exhibit K from the chief
financial officer of the Borrower, dated the Third Restatement Effective
Date, and supporting the conclusion that, after giving effect to the
Transaction and the incurrence of all financings contemplated herein, the
Borrower (on a stand-alone basis) and the Borrower and its Subsidiaries (on
a consolidated basis), in each case, are not insolvent and will not be
rendered insolvent by the indebtedness incurred in connection herewith,
will not be left with unreasonably small capital with which to engage in
its or their respective businesses and will not have incurred debts beyond
its or their ability to pay such debts as they mature and become due; and
(b) evidence of insurance complying with the requirements of Section
8.03 for the business and properties of the Borrower and its Subsidiaries
(including, without limitation, SMT), in scope, form and substance
reasonably satisfactory to the Agents and the Required Banks and naming the
Collateral Agent as an additional insured and/or loss payee, and stating
that such insurance shall not be terminated without at least 30 days' prior
written notice by the insurer to the Collateral Agent.
5.16 New Pro Forma Balance Sheet; Projections. (a) On or prior to
----------------------------------------
the Third Restatement Effective Date, there shall have been delivered to the
Administrative Agent an unaudited pro forma consolidated balance sheet of the
--- -----
Borrower and its Subsidiaries as of March 31, 1999 and, after giving effect to
the Original Transaction, the MTI Transaction, the ASHS
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Transaction, the Transaction and the incurrence of all Indebtedness (including
the Loans and the Senior Subordinated Notes) contemplated herein (the "New Pro
---
Forma Balance Sheet"), together with a related funds flow statement, which New
- -----
Pro Forma Balance Sheet and funds flow statement shall be reasonably
- --- -----
satisfactory to the Agents and the Required Banks.
(b) On or prior to the Third Restatement Effective Date, there shall
have been delivered to the Administrative Agent detailed projected consolidated
financial statements of the Borrower and its Subsidiaries certified by the chief
financial officer or chief operating officer of the Borrower for the five fiscal
years ended after the Third Restatement Effective Date (the "Projections"),
which Projections (x) shall reflect the forecasted consolidated financial
conditions and income and expenses of the Borrower and its Subsidiaries after
giving effect to the Original Transaction, the MTI Transaction, the ASHS
Transaction, the Transaction and the related financing thereof and the other
transactions contemplated hereby and (y) shall be reasonably satisfactory in
form and substance to the Agents and the Required Banks.
5.17 Payment of Fees. On the Third Restatement Effective Date, all
---------------
costs, fees and expenses, and all other compensation due to the Agents or the
Banks (including, without limitation, reasonable legal fees and expenses) shall
have been paid to the extent due.
SECTION 6. Conditions Precedent to All Credit Events. The obligation
-----------------------------------------
of each Bank to make Loans (including Loans made on the Third Restatement
Effective Date but excluding Mandatory Borrowings made thereafter, which shall
be made as provided in Section 1.01(d)), and the obligation of a Letter of
Credit Issuer to issue any Letter of Credit, is subject, at the time of each
such Credit Event (except as hereinafter indicated), to the satisfaction of the
following conditions:
6.01 No Default; Representations and Warranties. At the time of each
------------------------------------------
such Credit Event and also after giving effect thereto (i) there shall exist no
Default or Event of Default and (ii) all representations and warranties
contained herein or in any other Credit Document shall be true and correct in
all material respects with the same effect as though such representations and
warranties had been made on the date of such Credit Event (it being understood
and agreed that any representation or warranty which by its terms is made as of
a specified date shall be required to be true and correct in all material
respects only as of such specified date).
6.02 Notice of Borrowing; Letter of Credit Request. (a) Prior to
---------------------------------------------
the making of each Loan (excluding Swingline Loans and Mandatory Borrowings),
the Administrative Agent shall have received a Notice of Borrowing meeting the
requirements of Section 1.03(a). Prior to the making of any Swingline Loan,
BTCo shall have received the notice required by Section 1.03(b)(i).
(b) Prior to the issuance of each Letter of Credit, the
Administrative Agent and the respective Letter of Credit Issuer shall have
received a Letter of Credit Request meeting the requirements of Section 2.02(a).
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6.03 Compliance With Senior Subordinated Notes Indenture. At the
----------------------------------------------------
time of each such Credit Event (so long as any Senior Subordinated Note remains
outstanding), (i) each Credit Event shall comply with the requirements Section
4.4 of the Senior Subordinated Notes Indenture and all other applicable
covenants contained therein, (ii) the Borrower shall have delivered to the
Administrative Agent an officer's certificate signed by an appropriate officer
of the Borrower (which certificate may be incorporated into the applicable
Notice of Borrowing), in form and substance satisfactory to the Agents, (i)
establishing that such Credit Event does not violate the terms of the Senior
Subordinated Notes Indenture and (ii) containing a representation and warranty
that the Indebtedness incurred pursuant to such Credit Event constitutes "Senior
Debt" and "Designated Senior Debt" under the Senior Subordinated Notes
Indenture, which officer's certificate shall be accompanied by financial
calculations (in form and substance reasonably satisfactory to the Agents)
establishing compliance with a Consolidated Fixed Charge Coverage Ratio (as
defined in the Senior Subordinated Notes Indenture) of greater than 1.75:1.0
(after giving effect to the respective Credit Event) as required by the proviso
to Section 4.4 of the Senior Subordinated Notes Indenture and (iii) if requested
by any Agent or the Required Banks (which request may only be made by such Agent
or the Required Banks if such Agent or the Required Banks, as the case may be,
has or have reasonable doubts as to the compliance by the Borrower with the
applicable requirements of the Senior Subordinated Notes Indenture after giving
effect to the respective such Credit Event), the Banks shall have received an
opinion of counsel (which opinion shall be reasonably satisfactory to the
respective Agent or Required Banks requesting same) as may be reasonably
requested to assure the Banks that the requirements of this Section 6.03 and
Section 4.4 of the Senior Subordinated Notes Indenture are satisfied and that
the Indebtedness incurred pursuant to such Credit Event constitutes "Senior
Debt" and "Designated Senior Debt" thereunder.
The occurrence of the Third Restatement Effective Date and the
acceptance of the benefits or proceeds of each Credit Event shall constitute a
representation and warranty by the Borrower to each of the Agents and each of
the Banks that all the conditions specified in Section 5 and in this Section 6
and applicable to such Credit Event (other than such conditions that are subject
to the satisfaction of the Agents and/or the Required Banks) exist as of that
time. All of the Notes, certificates, legal opinions and other documents and
papers referred to in Section 5 and in this Section 6, unless otherwise
specified, shall be delivered to the Administrative Agent at the Notice Office
for the account of each of the Banks and, except for the Notes, in sufficient
counterparts or copies for each of the Banks and shall be in form and substance
satisfactory to the Banks.
SECTION 7. Representations and Warranties. In order to induce the
------------------------------
Banks to enter into this Agreement and to make the Loans and issue and/or
participate in the Letters of Credit provided for herein, the Borrower makes the
following representations and warranties with the Banks, in each case after
giving effect to the Transaction, all of which shall survive the execution and
delivery of this Agreement, the making of the Loans and the issuance of the
Letters of Credit (with the occurrence of the Third Restatement Effective Date
and each Credit Event on or after the Third Restatement Effective Date being
deemed to constitute a representation and warranty that the matters specified in
this Section 7 are true and correct in all material respects on and as of the
date of the Third Restatement Effective Date and on the date of each such Credit
Event, unless stated to relate to a specified date in which case such
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representations and warranties shall be true and correct in all material
respects as of such specified date):
7.01 Company Status. Each of the Borrower and each of its
--------------
Subsidiaries (i) is a duly organized and validly existing Company in good
standing under the laws of the jurisdiction of its organization, (ii) has the
Company power and authority to own its property and assets and to transact the
business in which it is engaged and presently proposes to engage and (iii) is
duly qualified and is authorized to do business and is in good standing in all
jurisdictions where it is required to be so qualified and where the failure to
be so qualified would have a Material Adverse Effect.
7.02 Company Power and Authority. Each Credit Party has the Company
---------------------------
power and authority to execute, deliver and carry out the terms and provisions
of the Documents to which it is a party and has taken all necessary Company
action to authorize the execution, delivery and performance of the Documents to
which it is a party. Each Credit Party has duly executed and delivered each
Document to which it is a party and each such Document constitutes the legal,
valid and binding obligation of such Credit Party enforceable in accordance with
its terms, except to the extent that the enforceability thereof may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
generally affecting creditors' rights and by equitable principles (regardless of
whether enforcement is sought in equity or at law).
7.03 No Violation. Neither the execution, delivery or performance by
------------
any Credit Party of the Documents to which it is a party, nor compliance by any
Credit Party with the terms and provisions thereof, nor the consummation of the
transactions contemplated herein or therein, (i) will contravene any material
provision of any applicable law, statute, rule or regulation, or any order,
writ, injunction or decree of any court or governmental instrumentality, (ii)
will conflict or be inconsistent with or result in any breach of, any of the
terms, covenants, conditions or provisions of, or constitute a default under, or
(other than pursuant to the Security Documents) result in the creation or
imposition of (or the obligation to create or impose) any Lien upon any of the
property or assets of the Borrower or any of its Subsidiaries pursuant to the
terms of any indenture, mortgage, deed of trust, loan agreement, credit
agreement or any other material agreement or instrument to which the Borrower or
any of its Subsidiaries is a party or by which it or any of its property or
assets are bound or to which it may be subject (including, without limitation,
the Existing Indebtedness (except, in the case of Scheduled Existing
Indebtedness, to the extent the aggregate principal amount thereof subject or
giving rise to a default or event of default does not exceed $3,000,000)) or
(iii) will violate any provision of the certificate of incorporation, by-laws,
certificate of partnership, partnership agreement, certificate of limited
liability company, limited liability company agreement or equivalent
organizational document, as the case may be, of the Borrower or any of its
Subsidiaries.
7.04 Litigation. There are no actions, suits, proceedings or
----------
investigations pending or threatened (i) with respect to any Credit Document,
(ii) with respect to the Original Transaction, the MTI Transaction, the ASHS
Transaction, the Transaction or any other Document that could reasonably be
expected to have a Material Adverse Effect or (iii) with respect to the Borrower
or any of its Subsidiaries (x) that are likely to have a Material Adverse
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Effect or (y) that could reasonably be expected to have a material adverse
effect on the rights or remedies of the Agents or the Banks or on the ability of
any Credit Party to perform its respective obligations to the Agents or the
Banks hereunder and under the other Credit Documents to which it is, or will be,
a party. Additionally, there does not exist any judgment, order or injunction
prohibiting or imposing material adverse conditions upon the occurrence of any
Credit Event.
7.05 Use of Proceeds; Margin Regulations. (a) The proceeds of all
-----------------------------------
Tranche D Term Loans shall be utilized by the Borrower (i) on the Third
Restatement Effective Date to finance the SMT Refinancing, (ii) within three
Business Days following the Third Restatement Effective Date to finance the
Additional Revolver Financing and (iii) promptly upon receipt of the relevant
invoices therefor, to pay fees and expenses incurred in connection with the
Transaction.
(b) The proceeds of all Revolving Loans and Swingline Loans shall be
utilized for the general corporate and working capital purposes of the Borrower
and its Subsidiaries (including, but not limited to, Permitted Acquisitions and
the prepayment of Scheduled Existing Indebtedness and purchases of the Senior
Subordinated Notes in accordance with the terms of Section 9.12(ii) but
excluding, in any event, the Transaction).
(c) Neither the making of any Loan, nor the use of the proceeds
thereof, nor the occurrence of any other Credit Event, will violate or be
inconsistent with the provisions of Regulation T, U or X of the Board of
Governors of the Federal Reserve System and no part of any Credit Event (or the
proceeds thereof) will be used to purchase or carry any Margin Stock or to
extend credit for the purpose of purchasing or carrying any Margin Stock.
7.06 Governmental Approvals. Except as may have been obtained or
----------------------
made on or prior to the Third Restatement Effective Date (and which remain in
full force and effect on the Third Restatement Effective Date), no order,
consent, approval, license, authorization or validation of, or filing, recording
or registration with, or exemption by, any foreign or domestic governmental or
public body or authority, or any subdivision thereof, is required to authorize
or is required in connection with (i) the execution, delivery and performance of
any Document or (ii) the legality, validity, binding effect or enforceability of
any Document.
7.07 Investment Company Act. Neither the Borrower nor any of its
----------------------
Subsidiaries is an "investment company" or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act of 1940,
as amended.
7.08 Public Utility Holding Company Act. Neither the Borrower nor
----------------------------------
any of its Subsidiaries is a "holding company", or a "subsidiary company" of a
"holding company", or an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company", within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
7.09 True and Complete Disclosure. All factual information (taken as
----------------------------
a whole) heretofore or contemporaneously furnished by or on behalf of the
Borrower or any of its Subsidiaries in writing to any Agent or any Bank
(including, without limitation, all information contained in the Documents) for
purposes of or in connection with this Agreement or any
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<PAGE>
transaction contemplated herein or therein is, and all other such factual
information (taken as a whole) hereafter furnished by or on behalf of any such
Persons in writing to any Agent or any Bank will be, true and accurate in all
material respects on the date as of which such information is dated or certified
and not incomplete by omitting to state any material fact necessary to make such
information (taken as a whole) not misleading at such time in light of the
circumstances under which such information was provided. The Projections and pro
forma financial information contained in such materials are based on good faith
estimates and assumptions believed by the Borrower to be reasonable at the time
made, it being recognized by the Banks that such projections of future events
are not to be viewed as facts and that actual results during the period or
periods covered by any such projection may differ from the projected results
contained therein.
7.10 Financial Condition; Financial Statements. (a) On and as of
-----------------------------------------
the Second Restatement Effective Date, the ASHS Acquisition Date and the Third
Restatement Effective Date, on a pro forma basis after giving effect to the
--- -----
Original Transaction, the MTI Transaction, the Revolver Refinancing, the ASHS
Transaction and/or the Transaction (to the extent the respective such
transaction was consummated on or prior to such relevant date), and to all
Indebtedness (including the Loans and the Senior Subordinated Notes) incurred,
and to be incurred, and Liens created, and to be created, by each Credit Party
in connection therewith, with respect to the Borrower (on a stand-alone basis)
and the Borrower and its Subsidiaries (on a consolidated basis) (x) the sum of
the assets, at a fair valuation, of the Borrower (on a stand-alone basis) and
the Borrower and its Subsidiaries (on a consolidated basis) will exceed its or
their debts, (y) it has or they have not incurred nor intended to, nor believes
or believe that it or they will, incur debts beyond its or their ability to pay
such debts as such debts mature and (z) it or they will have sufficient capital
with which to conduct its or their business. For purposes of this Section 7.10,
"debt" means any liability on a claim, and "claim" means (i) right to payment,
whether or not such a right is reduced to judgment, liquidated, unliquidated,
fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable,
secured or unsecured or (ii) right to an equitable remedy for breach of
performance if such breach gives rise to a payment, whether or not such right to
an equitable remedy is reduced to judgment, fixed, contingent, matured,
unmatured, disputed, undisputed, secured or unsecured.
(b) (I) (i) The consolidated balance sheets of the Borrower at
December 31, 1996, December 31, 1997, December 31, 1998, and March 31, 1999, and
the related statements of income and cash flows and changes in shareholders'
equity of the Borrower for the fiscal years or three-month period, as the case
may be, ended as of said dates and (ii) the Original Pro Forma Balance Sheet, in
--- -----
each case furnished to each Existing Bank prior to the ASHS Acquisition Date
pursuant to Section 5B.16 of the Second Amended and Restated Credit Agreement,
present fairly in all material respects the consolidated financial condition of
the Borrower at the dates of said financial statements and the results for the
periods covered thereby (or, in the case of the Original Pro Forma Balance
--- -----
Sheet, presents a good faith estimate of the consolidated pro forma financial
--- -----
condition of the Borrower (after giving effect to the Original Transaction, the
MTI Transaction and the ASHS Transaction at the date thereof), subject, in the
case of unaudited financial statements, to normal year-end adjustments. All
such financial statements (other than the aforesaid Original Pro Forma Balance
--- -----
Sheet) have been prepared in accordance with GAAP consistently applied except to
the extent provided in the notes to said financial statements and
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<PAGE>
subject, in the case of the three-month statements, to normal year-end audit
adjustments (all of which are of a recurring nature and none of which,
individually or in the aggregate, would be material) and the absence of
footnotes.
(II) The consolidated balance sheets of SMT and its Subsidiaries at
December 31, 1996, December 31, 1997, December 31, 1998, and March 31, 1999, and
the related statements of income and cash flows and changes in shareholders'
equity of SMT for the fiscal years or three-month period, as the case may be,
ended as of said dates, in each case furnished to the Banks prior to the Third
Restatement Effective Date, present fairly in all material respects the
consolidated financial condition of SMT and its Subsidiaries at the dates of
said financial statements and the results for the periods covered thereby,
subject, in the case of unaudited financial statements, to normal year-end
adjustments. All of such financial statements have been prepared in accordance
with GAAP consistently applied except to the extent provided in the notes to
said financial statements and subject, in the case of the three-month
statements, to normal year-end audit adjustments (all of which are of a
recurring nature and none of which, individually or in the aggregate, would be
material) and the absence of footnotes.
(III) The New Pro Forma Balance Sheet furnished to each Bank prior to
--- -----
the Third Restatement Effective Date pursuant to Section 5.16 presents a good
faith estimate of the consolidated pro forma financial condition of the Borrower
--- -----
(after giving effect to the Transaction).
(c) Since December 31, 1998 (but after giving effect to the Original
Transaction, the MTI Transaction, the ASHS Transaction and the Transaction as if
same had occurred prior thereto), nothing has occurred that has had or could
reasonably be expected to have a Material Adverse Effect.
(d) Except as fully reflected in the financial statements described
in Section 7.10(b) and the Indebtedness incurred under this Agreement and the
Senior Subordinated Notes, (i) there were as of the Second Restatement Effective
Date, the ASHS Acquisition Date and the Third Restatement Effective Date (and
after giving effect to any Loans made on each such date), no liabilities or
obligations (excluding current obligations incurred in the ordinary course of
business and commitments to purchase Healthcare Units) with respect to the
Borrower or any of its Subsidiaries (including, in the event this representation
is made as of the Third Restatement Effective Date, SMT and its Subsidiaries) of
any nature whatsoever (whether absolute, accrued, contingent or otherwise and
whether or not due) which, either individually or in the aggregate, could
reasonably be expected to be material to the Borrower and its Subsidiaries taken
as a whole or the Borrower (including, in the event this representation is made
as of the Third Restatement Effective Date, SMT and its Subsidiaries) and (ii)
the Borrower does not know of any basis for the assertion against the Borrower
or any of its Subsidiaries of any such liability or obligation which, either
individually or in the aggregate, are or would be reasonably likely to have, a
Material Adverse Effect.
(e) On and as of the Third Restatement Effective Date, the
Projections, which reflect the forecasted consolidated financial conditions and
income and expenses of the Borrower and its Subsidiaries after giving effect to
the Original Transaction, the MTI Transaction, the
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<PAGE>
ASHS Transaction and the Transaction (including the projected results of SMT and
its Subsidiaries) have been prepared on a basis consistent with the financial
statements referred to in Section 7.10(b), and are based on good faith estimates
and assumptions made by the management of the Borrower, which assumptions such
management believed were reasonable on the Third Restatement Effective Date. On
the Third Restatement Effective Date, such management believed that the
Projections were reasonable and attainable. There is no fact known to the
Borrower or any of its Subsidiaries which could reasonably be expected to have a
Material Adverse Effect, which has not been disclosed herein or in such other
documents, certificates and statements furnished to the Banks for use in
connection with the transactions contemplated hereby.
7.11 Security Interests. On and after the Third Restatement
------------------
Effective Date, each of the Security Documents creates (or after the execution
and delivery thereof will create), as security for the Obligations, a valid and
enforceable perfected security interest in and Lien on all of the Collateral
subject thereto, superior to and prior to the rights of all third Persons, and
subject to no other Liens (except that (i) the Security Agreement Collateral may
be subject to Permitted Liens relating thereto and (ii) the Pledge Agreement
Collateral may be subject to the Liens described in clauses (a) and (e) of
Section 9.03), in favor of the Collateral Agent. No filings or recordings are
required in order to perfect the security interests created under any Security
Document except for filings or recordings required in connection with any such
Security Document which shall have been made on or prior to the Third
Restatement Effective Date as contemplated by Section 5.11 or as contemplated by
Sections 8.11, 8.12, 9.15 and 13.19.
7.12 Compliance with ERISA. Schedule V sets forth each Plan; each
---------------------
Plan (and each related trust, insurance contract or fund) is in substantial
compliance with its terms and with all applicable laws, including without
limitation ERISA and the Code; each Plan (and each related trust, if any) which
is intended to be qualified under Section 401(a) of the Code has received a
determination letter from the Internal Revenue Service to the effect that it
meets the requirements of Sections 401(a) and 501(a) of the Code; no Reportable
Event has occurred; no Plan which is a multiemployer plan (as defined in Section
4001(a)(3) of ERISA) is insolvent or in reorganization; no Plan has an Unfunded
Current Liability; no Plan which is subject to Section 412 of the Code or
Section 302 of ERISA has an accumulated funding deficiency, within the meaning
of such sections of the Code or ERISA, or has applied for or received a waiver
of an accumulated funding deficiency or an extension of any amortization period,
within the meaning of Section 412 of the Code or Section 303 or 304 of ERISA;
all contributions required to be made with respect to a Plan have been timely
made; neither the Borrower nor any Subsidiary of the Borrower nor any ERISA
Affiliate has incurred any material liability (including any indirect,
contingent or secondary liability) to or on account of a Plan pursuant to
Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of
ERISA or Section 401(a)(29), 4971 or 4975 of the Code or expects to incur any
such liability under any of the foregoing sections with respect to any Plan; no
condition exists which presents a material risk to the Borrower or any
Subsidiary of the Borrower or any ERISA Affiliate of incurring a liability to or
on account of a Plan pursuant to the foregoing provisions of ERISA and the Code;
no proceedings have been instituted to terminate or appoint a trustee to
administer any Plan which is subject to Title IV of ERISA; no action, suit,
proceeding, hearing, audit or investigation with respect to the administration,
operation or the investment of assets of any Plan (other than routine claims for
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benefits) is pending, expected or threatened; using actuarial assumptions and
computation methods consistent with Part 1 of subtitle E of Title IV of ERISA,
the aggregate liabilities of the Borrower and its Subsidiaries and its ERISA
Affiliates to all Plans which are multiemployer plans (as defined in Section
4001(a)(3) of ERISA) in the event of a complete withdrawal therefrom, as of the
close of the most recent fiscal year of each such Plan ended prior to the date
of the most recent Credit Event, would not exceed $50,000; each group health
plan (as defined in Section 607(1) of ERISA or Section 4980B(g)(2) of the Code)
which covers or has covered employees or former employees of the Borrower, any
Subsidiary of the Borrower or any ERISA Affiliate has at all times been operated
in compliance with the provisions of Part 6 of subtitle B of Title I of ERISA
and Section 4980B of the Code; no lien imposed under the Code or ERISA on the
assets of the Borrower or any Subsidiary of the Borrower or any ERISA Affiliate
exists or is likely to arise on account of any Plan; and the Borrower and its
Subsidiaries may cease contributions to or terminate any employee benefit plan
maintained by any of them without incurring any material liability.
7.13 Capitalization. On the Third Restatement Effective Date and
--------------
after giving effect to the Original Transaction, the MTI Transaction, the ASHS
Transaction and the Transaction, the authorized capital stock of the Borrower
shall consist of (i) 10,000,000 shares of common stock, $.01 par value per share
(such authorized shares of common stock, together with any subsequently
authorized shares of common stock of the Borrower, the "Borrower Common Stock"),
5,749,551 of which shares shall be issued and outstanding and (ii) 500,000
shares of PIK Preferred Stock, 300,000 of which shares shall be designated the
"Series F Preferred Stock", of which 150,000 shares shall be issued and
outstanding. All such outstanding shares have been duly and validly issued, are
fully paid and nonassessable and have been issued free of preemptive rights.
Except as set forth on Schedule X hereto, as of the Third Restatement Effective
Date, the Borrower does not have outstanding any securities convertible into or
exchangeable for its capital stock or outstanding any rights to subscribe for or
to purchase, or any options for the purchase of, or any agreements providing for
the issuance (contingent or otherwise) of, or any calls, commitments or claims
of any character relating to, its capital stock.
7.14 Subsidiaries. (a) Prior to the consummation of the
------------
Transaction, SMT Acquisition Corp. has no Subsidiaries.
(b) On and as of the Third Restatement Effective Date and after
giving effect to the Original Transaction, the MTI Transaction, the ASHS
Transaction and the Transaction, the Borrower has no Subsidiaries other than
those Subsidiaries listed on Schedule VII. Schedule VII correctly sets forth,
as of the Third Restatement Effective Date and after giving effect to the
Original Transaction, the MTI Transaction, the ASHS Transaction and the
Transaction, the percentage ownership (direct and indirect) of the Borrower in
each class of capital stock or other equity interests of each of its
Subsidiaries and also identifies direct owner thereof. All outstanding shares
of capital stock of each Subsidiary of the Borrower have been duly and validly
issued, are fully paid and non-assessable and have been issued free of
preemptive rights. No Subsidiary of the Borrower has outstanding any securities
convertible into or exchangeable for its capital stock or outstanding any right
to subscribe for or to purchase, or any options or warrants for the purchase of,
or any agreement providing for the issuance (contingent or
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otherwise) of or any calls, commitments or claims of any character relating to,
its capital stock or any stock appreciation or similar rights.
7.15 Intellectual Property, etc. Each of the Borrower and each of
---------------------------
its Subsidiaries owns all patents, trademarks, permits, service marks, trade
names, technology copyrights, licenses, franchises and formulas, or other rights
with respect to the foregoing, and has obtained assignments of all leases and
other rights of whatever nature, and has in full force and effect all
accreditations and certifications, reasonably necessary for the conduct of its
business, without any known conflict with the rights of others which, or the
failure to obtain which, as the case may be, would result in a Material Adverse
Effect.
7.16 Compliance with Statutes, etc. Each of the Borrower and each of
------------------------------
its Subsidiaries is in compliance with all applicable statutes, regulations,
rules and orders of, and all applicable restrictions imposed by, all
governmental bodies, domestic or foreign, in respect of the conduct of its
business and the ownership of its property, except such non-compliance as is not
likely to, individually or in the aggregate, have a Material Adverse Effect.
7.17 Environmental Matters. (a) Each of the Borrower and each of
---------------------
its Subsidiaries has complied with, and on the date of each Credit Event is in
compliance with, all applicable Environmental Laws and the requirements of any
permits issued under such Environmental Laws and neither the Borrower nor any of
its Subsidiaries is liable for any material penalties, fines or forfeitures for
failure to comply with any of the foregoing. There are no pending or past or, to
the best knowledge of the Borrower after due inquiry, threatened Environmental
Claims against the Borrower or any of its Subsidiaries or any Real Property
owned or operated by the Borrower or any of its Subsidiaries. There are no
facts, circumstances, conditions or occurrences on any Real Property owned or
operated by the Borrower or any of its Subsidiaries or on any property adjoining
or in the vicinity of any such Real Property that would reasonably be expected
(i) to form the basis of an Environmental Claim against the Borrower or any of
its Subsidiaries or any such Real Property or (ii) to cause any such Real
Property to be subject to any restrictions on the ownership, occupancy, use or
transferability of such Real Property by the Borrower or any of its Subsidiaries
under any applicable Environmental Law.
(b) Hazardous Materials have not at any time been generated, used,
treated or stored on, or transported to or from, any Real Property owned or
operated by the Borrower or any of its Subsidiaries except in compliance with
all applicable Environmental Laws and reasonably required in connection with the
operation, use and maintenance of such Real Property by the Borrower's or such
Subsidiary's business. Hazardous Materials have not at any time been Released
on or from any Real Property owned or operated by the Borrower or any of its
Subsidiaries. There are not now any underground storage tanks located on any
Real Property owned or operated by the Borrower or any of its Subsidiaries.
(c) Notwithstanding anything to the contrary in this Section 7.17,
the representations made in this Section 7.17 shall only be untrue if the
aggregate effect of all conditions, failures, noncompliances, Environmental
Claims, Releases and presence of underground storage tanks, in each case of the
types described above, would reasonably be expected to have a Material Adverse
Effect.
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7.18 Properties. All Real Property owned by the Borrower or any of
----------
its Subsidiaries and all material Leaseholds leased by the Borrower or any of
its Subsidiaries, in each case as of the Third Restatement Effective Date and
after giving effect to the Original Transaction, the MTI Transaction, the ASHS
Transaction and the Transaction, and the nature of the interest therein, is
correctly set forth in Schedule III. Schedule XII correctly sets forth in all
material respects a list of the Healthcare Units owned or leased by the Borrower
and its Subsidiaries as of the Third Restatement Effective Date. Each of the
Borrower and each of its Subsidiaries has good and marketable title to, or a
validly subsisting leasehold interest in, all material properties owned or
leased by it, including all Real Property reflected in Schedule III and in the
financial statements (including the Original Pro Forma Balance Sheet and the New
--- -----
Pro Forma Balance Sheet) referred to in Section 7.10(b) (except such properties
- --- -----
sold in the ordinary course of business since the dates of the respective
financial statements referred to therein), free and clear of all Liens, other
than Permitted Liens.
7.19 Labor Relations. Neither the Borrower nor any of its
---------------
Subsidiaries is engaged in any unfair labor practice that could reasonably be
expected to have a Material Adverse Effect. There is (i) no unfair labor
practice complaint pending against the Borrower or any of its Subsidiaries or
threatened against any of them, before the National Labor Relations Board, and
no grievance or arbitration proceeding arising out of or under any collective
bargaining agreement is so pending against the Borrower or any of its
Subsidiaries or threatened against any of them, (ii) no strike, labor dispute,
slowdown or stoppage pending against the Borrower or any of its Subsidiaries or
threatened against the Borrower or any of its Subsidiaries and (iii) no union
representation question existing with respect to the employees of the Borrower
or any of its Subsidiaries and no union organizing activities are taking place,
except (with respect to any matter specified in clause (i), (ii) or (iii) above,
either individually or in the aggregate) such as is not reasonably likely to
have a Material Adverse Effect.
7.20 Tax Returns and Payments. Each of the Borrower and each of its
------------------------
Subsidiaries has filed all federal income tax returns and all other material tax
returns, domestic and foreign, required to be filed by it and has paid all
material taxes and assessments payable by it which have become due, except for
those contested in good faith and adequately disclosed and fully provided for on
the financial statements of the Borrower and its Subsidiaries in accordance with
generally accepted accounting principles. Each of the Borrower and each of its
Subsidiaries has at all times paid, or have provided adequate reserves (in the
good faith judgment of the management of the Borrower) for the payment of, all
federal, state and foreign income taxes applicable for all prior fiscal years
and for the current fiscal year to date. There is no material action, suit,
proceeding, investigation, audit, or claim now pending or, to the knowledge of
the Borrower or any of its Subsidiaries, threatened by any authority regarding
any taxes relating to the Borrower or any of its Subsidiaries. Neither the
Borrower nor any of its Subsidiaries has entered into an agreement or waiver or
been requested to enter into an agreement or waiver extending any statute of
limitations relating to the payment or collection of taxes of the Borrower or
any of its Subsidiaries, or is aware of any circumstances that would cause the
taxable years or other taxable periods of the Borrower or any of its
Subsidiaries not to be subject to the normally applicable statute of
limitations.
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7.21 Existing Indebtedness. Schedule IV sets forth a true and
---------------------
complete list of all Scheduled Existing Indebtedness of the Borrower and its
Subsidiaries as of the Third Restatement Effective Date after giving effect to
the Original Transaction, the MTI Transaction, the ASHS Transaction and the
Transaction, in each case showing the aggregate principal amount thereof and the
name of the respective borrower and any other entity which directly or
indirectly guaranteed such debt.
7.22 Insurance. Set forth on Schedule VIII hereto is a true, correct
---------
and complete summary of all insurance carried by each Credit Party on and as of
the Third Restatement Effective Date, with the amounts insured set forth
therein.
7.23 Representations and Warranties in Other Documents. All
-------------------------------------------------
representations and warranties set forth in the other Documents were true and
correct in all material respects at the time as of which such representations
and warranties were made (or deemed made) and shall be true and correct in all
material respects as of the Third Restatement Effective Date as if such
representations or warranties were made on and as of such date, unless stated to
relate to a different specified date, in which case such representations or
warranties shall be true and correct in all material respects as of such
specified date.
7.24 Original Transaction, MTI Transaction, ASHS Transaction and
-----------------------------------------------------------
Transaction. At the time of consummation thereof, each component of the
- -----------
Original Transaction, the MTI Transaction, the ASHS Transaction and the
Transaction shall have been consummated in accordance with the terms of the
relevant Documents therefor and all applicable laws. At the time of
consummation thereof, all consents and approvals of, and filings and
registrations with, and all other actions in respect of, all governmental
agencies, authorities or instrumentalities required in order to make or
consummate each component of the Original Transaction, the MTI Transaction, the
ASHS Transaction and the Transaction in accordance with the terms of the
relevant Documents therefor and all applicable laws have been obtained, given,
filed or taken and are or will be in full force and effect (or effective
judicial relief with respect thereto has been obtained). All applicable waiting
periods with respect thereto have or, prior to the time when required, will
have, expired without, in all such cases, any action being taken by any
competent authority which restrains, prevents, or imposes material adverse
conditions upon the Original Transaction, the MTI Transaction, the ASHS
Transaction or the Transaction. Additionally, at the time of the consummation
or occurrence thereof, as the case may be, there does not exist any judgment,
order or injunction prohibiting or imposing material adverse conditions upon any
element of the Original Transaction, the MTI Transaction, the ASHS Transaction,
the Transaction, the occurrence of any Credit Event, or the performance by the
Borrower and its Subsidiaries of their respective obligations under the
Documents and all applicable laws.
7.25 Special Purpose Corporation. SMT Acquisition Corp. was formed
---------------------------
to effect the Transaction. Prior to the consummation of the Transaction, SMT
Acquisition Corp. had no significant assets or liabilities (other than those
liabilities under the SMT Merger Documents and such other liabilities arising in
connection with the Transaction).
7.26 Subordination. The subordination provisions contained in the
-------------
Senior Subordinated Notes Documents and, on and after the execution and delivery
thereof, each of the
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agreements or instruments relating to Permitted Subordinated Refinancing
Indebtedness, the Shareholder Subordinated Notes and Permitted Subordinated
Indebtedness are enforceable against the Borrower, the Subsidiary Guarantors and
the holders of such Indebtedness, except to the extent that the enforceability
thereof may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws generally affecting creditors' rights and by
equitable principles (regardless of whether enforcement is sought in equity or
at law), and all Obligations hereunder and the obligations of the Credit Parties
under the other Credit Documents (including, without limitation, the
Subsidiaries Guaranty) are within the definitions of "Senior Debt" (or in the
case of the obligations of a Subsidiary Guarantor, "Guarantor Senior Debt"),
"Senior Indebtedness" (or in the case of the obligations of a Subsidiary
Guarantor, "Guarantor Senior Indebtedness"), "Designated Senior Debt" and
"Designated Senior Indebtedness", as applicable, included in such subordination
provisions.
7.27 Year 2000 Compliance. All Information Systems and Equipment are
--------------------
either Year 2000 Compliant, or any reprogramming, remediation or any other
corrective action, including the internal testing of all such Information
Systems and Equipment, will be completed by September 30, 1999, except insofar
as the failure to do so will not result in a Material Adverse Effect. Further,
to the extent that such reprogramming/remediation and testing action is
required, the cost thereof, as well as the cost of the reasonably foreseeable
consequences of failure to become Year 2000 Compliant, to the Borrower and its
Subsidiaries (including, without limitation, reprogramming errors and the
failure of other systems or equipment) will not result in a Default, an Event of
Default or a Material Adverse Effect.
SECTION 8. Affirmative Covenants. The Borrower hereby covenants and
---------------------
agrees that as of the Third Restatement Effective Date and thereafter for so
long as this Agreement is in effect and until the Total Commitment has
terminated, no Letters of Credit or Notes are outstanding and the Loans and
Unpaid Drawings, together with interest, Fees and all other Obligations (other
than any indemnities described in Section 13.13 which are not then due and
payable) incurred hereunder, are paid in full:
8.01 Information Covenants. The Borrower will furnish to each Bank:
---------------------
(a) Monthly Reports. Within 30 days after the end of each fiscal
---------------
month of the Borrower, the consolidated balance sheet of the Borrower and
its Subsidiaries as at the end of such fiscal month and the related
consolidated statements of income for such fiscal month and for the elapsed
portion of the fiscal year ended with the last day of such fiscal month, in
each case setting forth comparative figures for the corresponding fiscal
month in the prior fiscal year and comparable budgeted figures for such
fiscal month as set forth in the respective budget delivered pursuant to
Section 8.01(d), all of which shall be certified by the chief financial
officer or other Authorized Officer of the Borrower, subject to normal
year-end audit adjustments and the absence of footnotes.
(b) Quarterly Financial Statements. Within 45 days after the close
------------------------------
of the first three quarterly accounting periods in each fiscal year of the
Borrower, (i) the consolidated balance sheet of the Borrower and its
Subsidiaries as at the end of such quarterly accounting period and the
related consolidated statements of income and retained
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earnings and of cash flows for such quarterly accounting period and for the
elapsed portion of the fiscal year ended with the last day of such
quarterly accounting period and the budgeted figures for such quarterly
period as set forth in the respective budget delivered pursuant to Section
8.01(d) and (ii) management's discussion and analysis of the most important
operational and financial developments during such quarterly period, all of
which shall be in reasonable detail and certified by the chief financial
officer or other Authorized Officer of the Borrower that they fairly
present in all material respects the financial condition of the Borrower
and its Subsidiaries as of the dates indicated and the results of their
operations and changes in their cash flows for the periods indicated,
subject to normal year-end audit adjustments and the absence of footnotes.
(c) Annual Financial Statements. Within 90 days after the close of
---------------------------
each fiscal year of the Borrower, the consolidated balance sheet of the
Borrower and its Subsidiaries as at the end of such fiscal year and the
related consolidated statements of income and retained earnings and of cash
flows for such fiscal year and setting forth comparative consolidated
figures for the preceding fiscal year and comparable budgeted figures for
such fiscal year as set forth in the respective budget delivered pursuant
to Section 8.01(d) and (except for such comparable budgeted figures)
certified by Ernst & Young, LLP or such other independent certified public
accountants of recognized national standing as shall be reasonably
acceptable to the Administrative Agent, in each case to the effect that
such statements fairly present in all material respects the financial
condition of the Borrower and its Subsidiaries as of the dates indicated
and the results of their operations and changes in financial position for
the periods indicated in conformity with GAAP applied on a basis consistent
with prior years, together with a certificate of such accounting firm
stating that in the course of its regular audit of the business of the
Borrower and its Subsidiaries, which audit was conducted in accordance with
generally accepted auditing standards, no Default or Event of Default which
has occurred and is continuing has come to their attention or, if such a
Default or an Event of Default has come to their attention, a statement as
to the nature thereof.
(d) Budgets, etc. Not more than 60 days after the commencement of
-------------
each fiscal year of the Borrower, consolidated budgets of the Borrower and
its Subsidiaries (x) in reasonable detail for each of the twelve months of
such fiscal year and (y) in summary form for each of the five fiscal years
immediately following such fiscal year, in each case as customarily
prepared by management for its internal use setting forth, with appropriate
discussion, the principal assumptions upon which such budgets are based.
Together with each delivery of financial statements pursuant to Sections
8.01(a), (b) and (c), a comparison of the current year to date financial
results against the budgets required to be submitted pursuant to this
clause (d) shall be presented.
(e) Officer's Certificates. At the time of the delivery of the
----------------------
financial statements provided for in Sections 8.01(a), (b) and (c), a
certificate of the chief financial officer or other Authorized Officer of
the Borrower to the effect that no Default or Event of Default exists or,
if any Default or Event of Default does exist, specifying the nature and
extent thereof, which certificate shall, if delivered in connection with
the financial statements in respect of a period ending on the last day of a
fiscal quarter or fiscal year of the Borrower,
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set forth (x) the calculations required to establish whether the Borrower
and its Subsidiaries were in compliance with the provisions of Sections
3.03, 4.02, 9.02, 9.04(d), (g) and (j), 9.05(a), (g), (l) and (q) and 9.08
through and including 9.11 as at the end of such fiscal quarter or year, as
the case may be, and (y) the calculation of the Total Leverage Ratio, the
Adjusted Total Leverage Ratio and the Adjusted Senior Leverage Ratio as at
the last day of the respective fiscal quarter or fiscal year of the
Borrower, as the case may be. In addition, at the time of the delivery of
the financial statements provided for in Section 8.01(c), a certificate of
the chief financial officer or other Authorized Officer of the Borrower
setting forth (in reasonable detail) the amount of, and calculations
required to establish the amount of, Adjusted Excess Cash Flow for the
Excess Cash Flow Payment Period ending on the last day of the respective
fiscal year.
(f) Notice of Default or Litigation. Promptly, and in any event
-------------------------------
within three Business Days after an officer of the Borrower or any of its
Subsidiaries obtains actual knowledge thereof, notice of (i) the occurrence
of any event which constitutes a Default or an Event of Default, which
notice shall specify the nature and period of existence thereof and what
action the Borrower proposes to take with respect thereto, (ii) any
litigation or proceeding pending or threatened (x) against the Borrower or
any of its Subsidiaries which could reasonably be expected to have a
Material Adverse Effect, (y) with respect to any material Indebtedness of
the Borrower or any of its Subsidiaries or (z) with respect to any Document
(other than such Documents referred to in clause (viii) of the definition
thereof), (iii) any governmental investigation pending or threatened
against the Borrower or any of its Subsidiaries and (iv) any other event
which could reasonably be expected to have a Material Adverse Effect.
(g) Auditors' Reports. Promptly upon receipt thereof, a copy of each
-----------------
report or "management letter" submitted to the Borrower or any of its
Subsidiaries by its independent accountants in connection with any annual,
interim or special audit made by them of the books of the Borrower or any
of its Subsidiaries and the management's non-privileged responses thereto.
(h) Environmental Matters. Promptly after an officer of the Borrower
---------------------
or any of its Subsidiaries obtains actual knowledge of any of the following
(but only to the extent that any of the following, either individually or
in the aggregate, could reasonably be expected to (x) have a Material
Adverse Effect or (y) result in a remedial cost to the Borrower or any of
its Subsidiaries in excess of $300,000), written notice of:
(i) any pending or threatened Environmental Claim against the
Borrower or any of its Subsidiaries or any Real Property owned or
operated by the Borrower or any of its Subsidiaries;
(ii) any condition or occurrence on any Real Property owned or
operated by the Borrower or any of its Subsidiaries that (x) results
in noncompliance by the Borrower or any of its Subsidiaries with any
applicable Environmental Law or (y) could reasonably be anticipated to
form the basis of an Environmental Claim against the Borrower or any
of its Subsidiaries or any such Real Property;
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<PAGE>
(iii) any condition or occurrence on any Real Property owned or
operated by the Borrower or any of its Subsidiaries that could
reasonably be anticipated to cause such Real Property to be subject to
any restrictions on the ownership, occupancy, use or transferability
by the Borrower or such Subsidiary, as the case may be, of its
interest in such Real Property under any Environmental Law; and
(iv) the taking of any removal or remedial action in response
to the actual or alleged presence of any Hazardous Material on any
Real Property owned or operated by the Borrower or any of its
Subsidiaries.
All such notices shall describe in reasonable detail the nature of the
claim, investigation, condition, occurrence or removal or remedial action
and the Borrower's response or proposed response thereto. In addition, the
Borrower agrees to provide the Banks with copies of all material
communications by the Borrower or any of its Subsidiaries with any Person,
government or governmental agency relating to Environmental Laws or to any
of the matters set forth in clauses (i)-(iv) above, and such detailed
reports relating to any of the matters set forth in clauses (i)-(iv) above
as may reasonably be requested by the Administrative Agent or the Required
Banks.
(i) Annual Meetings with Banks. At the request of the Administrative
--------------------------
Agent, the Borrower shall within 120 days after the close of each of its
fiscal years, hold a meeting (at a mutually agreeable location and time)
open to all of the Banks at which meeting shall be reviewed the financial
results of the previous fiscal year and the financial condition of the
Borrower and its Subsidiaries and the budgets presented for the current
fiscal year of the Borrower and its Subsidiaries.
(j) Notice of Commitment Reductions and Mandatory Repayments. On or
--------------------------------------------------------
prior to the date of any reduction to the Total Revolving Loan Commitment
or any mandatory repayment of outstanding Term Loans pursuant to any of
Sections 4.02(c) through (g), inclusive, the Borrower shall provide written
notice of the amount of the respective reduction or repayment, as the case
may be, to the Total Revolving Loan Commitment or the outstanding Term
Loans, as applicable, and the calculation thereof (in reasonable detail).
(k) Special Reports Relating to Healthcare Units. At the time of the
--------------------------------------------
delivery of the financial statements for the first and third fiscal
quarters of the Borrower provided for in Section 8.01(b), a schedule of all
of the Healthcare Units owned or leased by the Borrower or any of its
Subsidiaries as of the fiscal quarter most recently ended, which schedule
shall specify (i) whether the respective Healthcare Unit is leased or owned
by the Borrower or such Subsidiary, (ii) the state in which the respective
Healthcare Unit is registered or titled (if such Healthcare Unit is
required to be registered or titled under applicable law), (iii) if the
respective Healthcare Unit is required to be registered or titled under
applicable law, whether a security interest has been recorded on the
certificate of title for such Healthcare Unit in favor of the Collateral
Agent for the benefit of the Secured Creditors, (iv) if the respective
Healthcare Unit is required to be registered or titled under applicable
law, whether the certificate of title for such Healthcare Unit (as
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modified to reflect the security interest in favor of the Collateral Agent)
has been reregistered with the appropriate state governmental agency (and,
if not, the date by which such reregistration must be accomplished in
accordance with the terms of the Security Agreement), (v) the date of the
acquisition of each new Healthcare Unit acquired on or after the Second
Restatement Effective Date, and (vi) each Healthcare Unit listed thereon
acquired since the date of the delivery of the previous schedule pursuant
to this Section 8.01(k).
(l) Other Information. Promptly upon transmission thereof, copies of
-----------------
any filings and registrations with, and reports to, the SEC by the Borrower
or any of its Subsidiaries and copies of all financial statements, proxy
statements, notices and reports as the Borrower or any of its Subsidiaries
shall send generally to analysts and the holders of their capital stock
(including, in the case of the Borrower, PIK Preferred Stock) or of the
Senior Subordinated Notes or any Permitted Debt in their capacity as such
holders (to the extent not theretofore delivered to the Banks pursuant to
this Agreement) and, with reasonable promptness, such other information or
documents (financial or otherwise) as any Agent on its own behalf or on
behalf of the Required Banks may reasonably request from time to time.
8.02 Books, Records and Inspections. The Borrower will, and will
------------------------------
cause each of its Subsidiaries to, keep proper books of record and account in
which full, true and correct entries in conformity with GAAP and all
requirements of law shall be made of all dealings and transactions in relation
to its business and activities. The Borrower will, and will cause each of its
Subsidiaries to, permit, upon reasonable prior notice to the chief financial
officer or other Authorized Officer of the Borrower, officers and designated
representatives of the Agents or the Required Banks to visit and inspect under
the guidance of officers of the Borrower any of the properties or assets of the
Borrower and any of its Subsidiaries in whomsoever's possession, and to examine
the books of account of the Borrower and any of its Subsidiaries and discuss the
affairs, finances and accounts of the Borrower and of any of its Subsidiaries
with, and be advised as to the same by, their officers and independent
accountants, all at such reasonable times and intervals and to such reasonable
extent as any Agent or the Required Banks may desire.
8.03 Insurance. (a) The Borrower will, and will cause each of its
---------
Subsidiaries to (i) maintain, with financially sound and reputable insurance
companies, insurance on all its property in at least such amounts and against at
least such risks as is consistent and in accordance with industry practice and
(ii) furnish to each Agent and each of the Banks, upon request, full information
as to the insurance carried. In addition to the requirements of the immediately
preceding sentence, the Borrower will at all times cause insurance of the types
described in Schedule VIII to be maintained (with the same scope of coverage as
that described in Schedule VIII) at levels which are consistent with its
practices immediately before the Third Restatement Effective Date, taking into
account the age and fair market value of equipment. Such insurance shall
include physical damage insurance on all real and personal property (whether now
owned or hereafter acquired) on an all risk basis and business interruption
insurance. The provisions of this Section 8.03 shall be deemed supplemental to,
but not duplicative of, the provisions of any Security Documents that require
the maintenance of insurance.
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(b) The Borrower will, and will cause each of its Subsidiaries to, at
all times keep the respective property of the Borrower and its Subsidiaries
(except real or personal property leased or financed through third parties in
accordance with this Agreement) insured in favor of the Collateral Agent, and
all policies or certificates with respect to such insurance (and any other
insurance maintained by, or on behalf of, the Borrower or any Subsidiary of the
Borrower) (i) shall be endorsed to the Collateral Agent's satisfaction for the
benefit of the Collateral Agent (including, without limitation, by naming the
Collateral Agent as certificate holder, mortgagee and loss payee with respect to
real property, certificate holder and loss payee with respect to personal
property, additional insured with respect to general liability and umbrella
liability coverage and certificate holder with respect to workers' compensation
insurance), (ii) shall state that such insurance policies shall not be canceled
or materially changed without at least 30 days' prior written notice thereof by
the respective insurer to the Collateral Agent and (iii) shall be deposited with
the Collateral Agent.
(c) If the Borrower or any of its Subsidiaries shall fail to maintain
all insurance in accordance with this Section 8.03, or if the Borrower or any of
its Subsidiaries shall fail to so name the Collateral Agent as an additional
insured, mortgagee or loss payee, as the case may be, or so deposit all
certificates with respect thereto, the Administrative Agent and/or the
Collateral Agent shall have the right (but shall be under no obligation),
following written notice to the Borrower, to procure such insurance, and the
Credit Parties agree to jointly and severally reimburse the Administrative Agent
or the Collateral Agent, as the case may be, for all costs and expenses of
procuring such insurance.
8.04 Payment of Taxes. The Borrower will pay and discharge, and will
----------------
cause each of its Subsidiaries to pay and discharge, all taxes, assessments and
governmental charges or levies imposed upon it or upon its income or profits, or
upon any properties belonging to it, prior to the date on which penalties attach
thereto, and all lawful claims for sums that have become due and payable which,
if unpaid, might become a Lien not otherwise permitted under Section 9.03(a);
provided that neither the Borrower nor any of its Subsidiaries shall be required
- --------
to pay any such tax, assessment, charge, levy or claim which is being contested
in good faith and by proper proceedings if it has maintained adequate reserves
with respect thereto in accordance with GAAP.
8.05 Corporate Franchises. The Borrower will do, and will cause each
--------------------
of its Subsidiaries to do, or cause to be done, all things necessary to preserve
and keep in full force and effect its existence and its material rights,
franchises, authority to do business, licenses, certifications, accreditations
and patents, except for rights, franchises, authority to do business, licenses,
certifications, accreditations and patents the loss of which (individually and
in the aggregate) could not reasonably be expected to have a Material Adverse
Effect; provided, however, that any transaction permitted by Section 9.02 will
-------- -------
not constitute a breach of this Section 8.05.
8.06 Compliance with Statutes; etc. The Borrower will, and will
------------------------------
cause each of its Subsidiaries to, comply with all applicable statutes,
regulations and orders of, and all applicable restrictions imposed by, all
governmental bodies, domestic or foreign, in respect of the conduct of its
business and the ownership of its property, except for such noncompliance as
would not
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have a Material Adverse Effect or a material adverse effect on the ability of
any Credit Party to perform its obligations under any Credit Document to which
it is a party.
8.07 Compliance with Environmental Laws. (a) (i) The Borrower will
----------------------------------
comply, and will cause each of its Subsidiaries to comply, in all material
respects with all Environmental Laws applicable to the ownership or use of its
Real Property now or hereafter owned or operated by the Borrower or any of its
Subsidiaries, will promptly pay or cause to be paid all costs and expenses
incurred in connection with such compliance, and will keep or cause to be kept
all such Real Property free and clear of any Liens imposed pursuant to such
Environmental Laws and (ii) neither the Borrower nor any of its Subsidiaries
will generate, use, treat, store, Release or dispose of, or permit the
generation, use, treatment, storage, release or disposal of, Hazardous Materials
on any Real Property owned or operated by the Borrower or any of its
Subsidiaries, or transport or permit the transportation of Hazardous Materials
to or from any such Real Property, unless the failure to comply with the
requirements specified in clause (i) or (ii) above, either individually or in
the aggregate, would not reasonably be expected to have a Material Adverse
Effect. If the Borrower or any of its Subsidiaries, or any tenant or occupant
of any Real Property owned or operated by the Borrower or any of its
Subsidiaries, cause or permit any intentional or unintentional act or omission
resulting in the presence or Release of any Hazardous Material (except in
compliance with applicable Environmental Laws), the Borrower agrees to
undertake, and/or to cause any of its Subsidiaries, tenants or occupants to
undertake, at their sole expense, any clean up, removal, remedial or other
action required pursuant to Environmental Laws to remove and clean up any
Hazardous Materials from any Real Property except where the failure to do so
would not reasonably be expected to have a Material Adverse Effect; provided
--------
that neither the Borrower nor any of its Subsidiaries shall be required to
comply with any such order or directive which is being contested in good faith
and by proper proceedings so long as it has maintained adequate reserves with
respect to such compliance to the extent required in accordance with GAAP.
(b) At the written request of the Administrative Agent or the
Required Banks, which request shall specify in reasonable detail the basis
therefor, at any time and from time to time, the Borrower will provide, at its
sole cost and expense, an environmental site assessment report concerning any
Real Property now or hereafter owned or operated by the Borrower or any of its
Subsidiaries, prepared by an environmental consulting firm approved by the
Administrative Agent, addressing the matters in clause (i), (ii) or (iii) below
which gives rise to such request (or, in the case of a request pursuant to
following clause (i), addressing such matter as may be requested by the
Administrative Agent or the Required Banks) and estimating the range of the
potential costs of any removal, remedial or other corrective action in
connection with any such matter, provided that in no event shall such request be
made unless (i) an Event of Default has occurred and is continuing, (ii) the
Banks receive notice under Section 8.01(h) for any event for which notice is
required to be delivered for any such Real Property or (iii) the Administrative
Agent or the Required Banks reasonably believe that there was a breach of any
representation, warranty or covenant contained in Section 7.17 or 8.07(a). If
the Borrower fails to provide the same within 60 days after such request was
made, the Administrative Agent may order the same, and the Borrower shall grant
and hereby grants, to the Administrative Agent and the Banks and their agents
access to such Real Property and specifically grants, the Administrative Agent
and
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the Banks and their agents an irrevocable non-exclusive license, subject to the
rights of tenants, to undertake such an assessment, all at the Borrower's
expense.
8.08 ERISA. As soon as possible and, in any event, within ten days
-----
after the Borrower, any Subsidiary of the Borrower or any ERISA Affiliate knows
or has reason to know of the occurrence of any of the following, the Borrower
will deliver to each of the Banks a certificate of the chief financial officer
of the Borrower setting forth the full details as to such occurrence and the
action, if any, that the Borrower, such Subsidiary or such ERISA Affiliate is
required or proposes to take, together with any notices required or proposed to
be given to or filed with or by the Borrower, the Subsidiary, the ERISA
Affiliate, the PBGC, a Plan participant or the Plan administrator with respect
thereto: that a Reportable Event has occurred (except to the extent that the
Borrower has previously delivered to the Banks a certificate and notices (if
any) concerning such event pursuant to the next clause hereof); that a
contributing sponsor (as defined in Section 4001(a)(13) of ERISA) of a Plan
subject to Title IV of ERISA is subject to the advance reporting requirement of
PBGC Regulation Section 4043.61 (without regard to subparagraph (b)(1) thereof),
and an event described in subsection .62, .63, .64, .65, .66, .67 or .68 of PBGC
Regulation Section 4043 is reasonably expected to occur within the following 30
days; that an accumulated funding deficiency, within the meaning of Section 412
of the Code or Section 302 of ERISA, has been incurred or an application may be
or has been made for a waiver or modification of the minimum funding standard
(including any required installment payments) or an extension of any
amortization period under Section 412 of the Code or Section 303 or 304 of ERISA
with respect to a Plan; that any contribution required to be made with respect
to a Plan has not been timely made; that a Plan has been or may be terminated,
reorganized, partitioned or declared insolvent under Title IV of ERISA; that a
Plan has an Unfunded Current Liability; that proceedings may be or have been
instituted to terminate or appoint a trustee to administer a Plan which is
subject to Title IV of ERISA; that a proceeding has been instituted pursuant to
Section 515 of ERISA to collect a delinquent contribution to a Plan; that the
Borrower, any Subsidiary of the Borrower or any ERISA Affiliate will or may
incur any liability (including any indirect, contingent, or secondary liability)
to or on account of the termination of or withdrawal from a Plan under Section
4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or with respect to a Plan
under Section 401(a)(29), 4971, 4975 or 4980 of the Code or Section 409 or
502(i) or 502(l) of ERISA or with respect to a group health plan (as defined in
Section 607(1) of ERISA or Section 4980B(g)(2) of the Code) under Section 4980B
of the Code; or that the Borrower or any Subsidiary of the Borrower may incur
any material liability pursuant to any employee welfare benefit plan (as defined
in Section 3(1) of ERISA) that provides benefits to retired employees or other
former employees (other than as required by Section 601 of ERISA) or any Plan.
The Borrower will deliver to each of the Banks (i) a complete copy of the annual
report (on Internal Revenue Service Form 5500-series) of each Plan (including,
to the extent required, the related financial and actuarial statements and
opinions and other supporting statements, certifications, schedules and
information) required to be filed with the Internal Revenue Service and (ii)
copies of any records, documents or other information that must be furnished to
the PBGC with respect to any Plan pursuant to Section 4010 of ERISA. In
addition to any certificates or notices delivered to the Banks pursuant to the
first sentence hereof, copies of annual reports and any records, documents or
other information required to be furnished to the PBGC, and any material notices
received by the Borrower, any Subsidiary of the Borrower or any ERISA Affiliate
with
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respect to any Plan shall be delivered to the Banks no later than ten days after
the date such report has been filed with the Internal Revenue Service or such
records, documents and/or information has been furnished to the PBGC or such
notice has been received by the Borrower, such Subsidiary or such ERISA
Affiliate, as applicable.
8.09 Good Repair. The Borrower will, and will cause each of its
-----------
Subsidiaries to, ensure that its material properties and equipment used in its
business are kept in good repair, working order and condition, ordinary wear and
tear excepted, and that from time to time there are made in such properties and
equipment all needful and proper repairs, renewals, replacements, extensions,
additions, betterments and improvements thereto, to the extent and in the manner
useful or customary for companies in similar businesses.
8.10 End of Fiscal Years; Fiscal Quarters. The Borrower will, for
------------------------------------
financial reporting purposes, cause (i) each of its, and each of its
Subsidiaries', fiscal years to end on December 31 of each year and (ii) each of
its, and each of its Subsidiaries', fiscal quarters to end on March 31, June 30,
September 30 and December 31 of each year.
8.11 Additional Security; Further Assurances. (a) The Borrower
---------------------------------------
will, and will cause each of its Wholly-Owned Domestic Subsidiaries (and to the
extent Section 8.12 is operative, each of its Wholly-Owned Foreign Subsidiaries)
to, grant to the Collateral Agent security interests and mortgages in such
assets and real property of the Borrower and its Wholly-Owned Subsidiaries as
are not covered by the original Security Documents, and as may be requested from
time to time by the Administrative Agent or the Required Banks (collectively,
the "Additional Security Documents"). All such security interests and mortgages
shall be granted pursuant to documentation reasonably satisfactory in form and
substance to the Collateral Agent and shall constitute valid and enforceable
perfected security interests and mortgages superior to and prior to the rights
of all third Persons and subject to no other Liens except for Permitted Liens.
The Additional Security Documents or instruments related thereto shall have been
duly recorded or filed in such manner and in such places as are required by law
to establish, perfect, preserve and protect the Liens in favor of the Collateral
Agent required to be granted pursuant to the Additional Security Documents and
all taxes, fees and other charges payable in connection therewith shall have
been paid in full.
(b) The Borrower will, and will cause each of its Wholly-Owned
Subsidiaries to, at the expense of the Borrower, make, execute, endorse,
acknowledge, file and/or deliver to the Collateral Agent from time to time such
vouchers, invoices, schedules, confirmatory assignments, conveyances, financing
statements, transfer endorsements, powers of attorney, certificates, real
property surveys, reports and other assurances or instruments and take such
further steps relating to the Collateral covered by any of the Security
Documents as the Collateral Agent may reasonably require (including, without
limitation, reregistering the certificate of title of any mobile Healthcare Unit
in any state in which such Healthcare Unit primarily operates, to the extent the
Collateral Agent determines, in its reasonable discretion, that such action is
required to ensure the perfection of its security interest in such Collateral).
Furthermore, the Borrower shall cause to be delivered to the Collateral Agent
such opinions of counsel, title insurance and other related documents as may be
reasonably requested by the Collateral Agent to assure itself that this Section
8.11 has been complied with.
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(c) Each of the Credit Parties agrees that each action required above
by this Section 8.11 shall be completed as soon as possible, but in no event
later than 90 days after such action is either requested to be taken by the
Administrative Agent, the Collateral Agent or the Required Banks or required to
be taken by the Borrower and its Subsidiaries pursuant to the terms of this
Section 8.11.
8.12 Foreign Subsidiaries Security. If following a change in the
-----------------------------
relevant sections of the Code or the regulations, rules, rulings, notices or
other official pronouncements issued or promulgated thereunder, counsel for the
Borrower reasonably acceptable to the Administrative Agent does not within 30
days after a request from the Administrative Agent or the Required Banks deliver
evidence, in form and substance mutually satisfactory to the Administrative
Agent and the Borrower, with respect to any Wholly-Owned Foreign Subsidiary of
the Borrower which has not already had all of its stock pledged pursuant to the
Pledge Agreement that (i) a pledge of more than 66-2/3% of the total combined
voting power of all classes of capital stock of such Foreign Subsidiary entitled
to vote, (ii) the entering into by such Foreign Subsidiary of a security
agreement in substantially the form of the Security Agreement, (iii) the
entering into by such Foreign Subsidiary of a pledge agreement in substantially
the form of the Pledge Agreement and (iv) the entering into by such Foreign
Subsidiary of a guaranty in substantially the form of the Subsidiaries Guaranty,
in any such case could reasonably be expected to cause (I) the undistributed
earnings of such Foreign Subsidiary as determined for Federal income tax
purposes to be treated as a deemed dividend to such Foreign Subsidiary's United
States parent for Federal income tax purposes or (II) other material adverse
Federal income tax consequences to the Credit Parties, then in the case of a
failure to deliver the evidence described in clause (i) above, that portion of
such Foreign Subsidiary's outstanding capital stock so issued by such Foreign
Subsidiary, in each case not theretofore pledged pursuant to the Pledge
Agreement, shall be pledged to the Collateral Agent for the benefit of the
Secured Creditors pursuant to the Pledge Agreement (or another pledge agreement
in substantially similar form, if needed), and in the case of a failure to
deliver the evidence described in clause (ii) or (iii) above, such Foreign
Subsidiary shall execute and deliver the Security Agreement (or another security
agreement in substantially similar form, if needed) or the Pledge Agreement (or
another pledge agreement in substantially similar form, if needed), as the case
may be, granting the Secured Creditors a security interest in all of such
Foreign Subsidiary's assets or the capital stock and promissory notes owned by
such Foreign Subsidiary, as the case may be, and securing the obligations of the
Borrower under the Credit Documents and under any Interest Rate Protection
Agreement or Other Hedging Agreement and, in the event the Subsidiaries Guaranty
shall have been executed by such Foreign Subsidiary, the obligations of such
Foreign Subsidiary thereunder, and in the case of a failure to deliver the
evidence described in clause (iv) above, such Foreign Subsidiary shall execute
and deliver the Subsidiaries Guaranty (or another guaranty in substantially
similar form, if needed), guaranteeing the obligations of the Borrower under the
Credit Documents and under any Interest Rate Protection Agreement or Other
Hedging Agreement, in each case to the extent that the entering into of such
Security Agreement, Pledge Agreement or Subsidiaries Guaranty (or substantially
similar document) is permitted by the laws of the respective foreign
jurisdiction and with all documents delivered pursuant to this Section 8.12 to
be in form and substance reasonably satisfactory to the Administrative Agent
and/or the Collateral Agent.
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8.13 Use of Proceeds. All proceeds of the Loans shall be used as
---------------
provided in Section 7.05.
8.14 Permitted Acquisitions. (a) Subject to the provisions of this
----------------------
Section 8.14 and the requirements contained in the definition of Permitted
Acquisition, the Borrower and any of its Wholly-Owned Domestic Subsidiaries may
from time to time effect Permitted Acquisitions, so long as (in each case except
to the extent the Required Banks otherwise specifically agree in writing in the
case of a specific Permitted Acquisition): (i) no Default or Event of Default
shall be in existence at the time of the consummation of the proposed Permitted
Acquisition or immediately after giving effect thereto; (ii) the Borrower shall
have given the Administrative Agent and the Banks at least 5 Business Days'
prior written notice of any Permitted Acquisition; (iii) calculations are made
by the Borrower of compliance with the covenants contained in Sections 9.08,
9.09, 9.10 and 9.11 (in the case of Section 9.11, giving effect to the last
sentence appearing therein) for the period of four (except in the case of any
determination of Consolidated EBITDA for purposes of such Sections, which shall
be measured on a two-quarter annualized basis as provided in the definition
thereof) consecutive fiscal quarters (taken as one accounting period) most
recently ended prior to the date of such Permitted Acquisition (each, a
"Calculation Period"), on a Pro Forma Basis as if the respective Permitted
--- -----
Acquisition (as well as all other Permitted Acquisitions theretofore consummated
after the first day of such Calculation Period) had occurred on the first day of
such Calculation Period, and such recalculations shall show that such financial
covenants would have been complied with if the Permitted Acquisition had
occurred on the first day of such Calculation Period (for this purpose, if the
first day of the respective Calculation Period occurs prior to the Second
Restatement Effective Date or the Third Restatement Effective Date, calculated
as if the covenants contained in said Sections 9.08, 9.09, 9.10 and 9.11 (in the
case of Section 9.11, giving effect to the last sentence appearing therein) had
been applicable from the first day of the Calculation Period); (iv) based on
good faith projections prepared by the Borrower for the period from the date of
the consummation of the Permitted Acquisition to the date which is one year
thereafter, the level of financial performance measured by the covenants set
forth in Sections 9.08, 9.09, 9.10 and 9.11 (in the case of Section 9.11, giving
effect to the last sentence appearing therein) shall be better than or equal to
such level as would be required to provide that no Default or Event of Default
would exist under the financial covenants contained in Sections 9.08, 9.09, 9.10
and 9.11 (in the case of Section 9.11, giving effect to the last sentence
appearing therein) of this Agreement as compliance with such covenants would be
required through the date which is one year from the date of the consummation of
the respective Permitted Acquisition; (v) calculations are made by the Borrower
demonstrating compliance with an Adjusted Senior Leverage Ratio not to exceed
3.0:1.0 on the last day of the relevant Calculation Period, on a Pro Forma Basis
--- -----
as if the respective Permitted Acquisition (as well as all other Permitted
Acquisitions theretofore consummated after the first day of such Calculation
Period) had occurred on the first day of such Calculation Period; (vi) all
representations and warranties contained herein and in the other Credit
Documents shall be true and correct in all material respects with the same
effect as though such representations and warranties had been made on and as of
the date of such Permitted Acquisition (both before and after giving effect
thereto), unless stated to relate to a specific earlier date, in which case such
representations and warranties shall be true and correct in all material
respects as of such earlier date; (vii) the Borrower
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provides to the Administrative Agent and the Banks as soon as available but not
later than 5 Business Days after the execution thereof, a copy of any executed
purchase agreement or similar agreement with respect to such Permitted
Acquisition; (viii) after giving effect to such Permitted Acquisition and the
payment of all post-closing purchase price adjustments required (in the good
faith determination of the Borrower) in connection with such Permitted
Acquisition (and all other Permitted Acquisitions for which such purchase price
adjustments may be required to be made) and all capital expenditures (and the
financing thereof) reasonably anticipated by the Borrower to be made in the
business acquired pursuant to such Permitted Acquisition within the 90-day
period (such period for any Permitted Acquisition, a "Post-Closing Period")
following such Permitted Acquisition (and in the businesses acquired pursuant to
all other Permitted Acquisitions with Post-Closing Periods ended during the
Post-Closing Period of such Permitted Acquisition), the Total Unutilized
Revolving Loan Commitment shall equal or exceed $10,000,000; and (ix) the
Borrower shall have delivered to the Administrative Agent an officer's
certificate executed by an Authorized Officer of the Borrower, certifying to the
best of his knowledge, compliance with the requirements of preceding clauses (i)
through (vi), inclusive, and (viii) and containing the calculations required by
the preceding clauses (iii), (iv), (v) and (viii).
(b) At the time of each Permitted Acquisition involving the creation
or acquisition of a Subsidiary, or the acquisition of capital stock or other
equity interest of any Person, the capital stock or other equity interests
thereof created or acquired in connection with such Permitted Acquisition shall
be pledged for the benefit of the Secured Creditors pursuant to the Pledge
Agreement in accordance with the requirements of Section 9.15.
(c) The Borrower shall cause each Subsidiary which is formed to
effect, or is acquired pursuant to, a Permitted Acquisition to comply with, and
to execute and deliver, all of the documentation required by, Sections 8.11 and
9.15, to the satisfaction of the Administrative Agent.
(d) The consummation of each Permitted Acquisition shall be deemed to
be a representation and warranty by the Borrower that the certifications by the
Borrower (or by one or more of its Authorized Officers) pursuant to Section
8.14(a) are true and correct and that all conditions thereto have been satisfied
and that same is permitted in accordance with the terms of this Agreement, which
representation and warranty shall be deemed to be a representation and warranty
for all purposes hereunder, including, without limitation, Sections 6 and 10.
8.15 Maintenance of Company Separateness. The Borrower will, and
-----------------------------------
will cause each of its Subsidiaries to, satisfy customary Company formalities,
including, as applicable, the holding of regular board of directors' and
shareholders' meetings or action by directors or shareholders without a meeting
and the maintenance of Company offices and records. Neither the Borrower nor
any of its Subsidiaries shall take any action, or conduct its affairs in a
manner, which is likely to result in the Company existence of the Borrower or
any of its Subsidiaries being ignored, or in the assets and liabilities of the
Borrower or any of its Subsidiaries being substantively consolidated with those
of any other such Person in a bankruptcy, reorganization or other insolvency
proceeding.
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8.16 Performance of Obligations. The Borrower will, and will cause
--------------------------
each of its Subsidiaries to, perform all of its obligations under the terms of
each mortgage, deed of trust, indenture, loan agreement or credit agreement and
each other material agreement, contract or instrument by which it is bound,
except such non-performances as could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
8.17 Year 2000 Compliance. The Borrower will ensure that its
--------------------
Information Systems and Equipment are at all times after January 1, 1999 Year
2000 Compliant, except insofar as the failure to do so will not result in a
Material Adverse Effect, and shall notify the Administrative Agent and any Bank
promptly upon detecting any material failure of the Information Systems and
Equipment to be Year 2000 Compliant. In addition, the Borrower shall provide
the Administrative Agent and any Bank with such information about its year 2000
computer readiness (including, without limitation, information as to contingency
plans, budgets and testing results) as the Administrative Agent or such Bank
shall reasonably request.
8.18 Additional Revolver Refinancing, etc. (a) Within 3 Business
------------------------------------
Days following the Third Restatement Effective Date, the Borrower shall have
repaid approximately $6,000,000 of outstanding Revolving Loans with the proceeds
of Tranche D Term Loans in accordance with the requirements of Section 4.01.
(b) Promptly upon receipt of the relevant invoices therefor, the
Borrower shall use the proceeds of Tranche D Term Loans to pay fees and expenses
incurred in connection with the Transaction.
SECTION 9. Negative Covenants. The Borrower hereby covenants and
------------------
agrees that as of the Third Restatement Effective Date and thereafter for so
long as this Agreement is in effect and until the Total Commitment has
terminated, no Letters of Credit or Notes are outstanding and the Loans,
together with interest, Fees and all other Obligations (other than any
indemnities described in Section 13.13 which are not then due and payable)
incurred hereunder, are paid in full:
9.01 Changes in Business. (a) The Borrower and its Subsidiaries
-------------------
will not engage in any business other than a Permitted Business.
(b) Notwithstanding the foregoing or anything to the contrary
contained in this Agreement, the Borrower will not permit any Excluded
Subsidiary to engage in any significant business or to own assets with an
aggregate value in excess of $50,000 (or an account receivable not to exceed
$400,000 in the case of Epic/Alliance of Texas, Inc.).
9.02 Consolidation; Merger; Sale or Purchase of Assets; etc. The
-------------------------------------------------------
Borrower will not, and will not permit any of its Subsidiaries to, wind up,
liquidate or dissolve its affairs or enter into any transaction of merger or
consolidation, or convey, sell, lease or otherwise dispose of all or any part of
its property or assets (other than inventory in the ordinary course of
business), or enter into any sale-leaseback transactions, or purchase or
otherwise acquire (in one or a series of related transactions) any part of the
property or assets (other than purchases or other acquisitions of inventory,
materials, general intangibles and equipment in the ordinary course of
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business) of any Person or agree to do any of the foregoing at any future time,
except that the following shall be permitted:
(a) the Borrower and its Subsidiaries may, as lessee, enter into
operating leases in the ordinary course of business with respect to real or
personal property;
(b) Capital Expenditures (including payments in respect of
Capitalized Lease Obligations entered into after the Original Effective
Date, but excluding Capital Expenditures which may arise as a result of the
purchase of any capital stock or equity interests in any other Person or by
means of a purchase of assets constituting a business, division or product
line of any Person, which expenditures may only be made pursuant to
Permitted Acquisitions effected in accordance with the relevant provisions
of this Agreement) by the Borrower and its Subsidiaries shall be permitted
so long as same do not cause a violation of any of the other provisions of
this Agreement;
(c) Investments permitted pursuant to Section 9.05 and the
liquidation of Cash Equivalents in the ordinary course of business;
(d) the Borrower and any of its Subsidiaries may sell or otherwise
dispose of assets (excluding capital stock of, or other equity interests
in, Subsidiaries and Joint Ventures and Healthcare Units) which, in the
reasonable opinion of such Person, are obsolete, uneconomic or no longer
useful in the conduct of such Person's business, provided that except with
--------
respect to asset dispositions or transfers arising out of, or in connection
with, the events described in clauses (i) and (ii) of the definition of
Recovery Event, (w) each such sale or disposition shall be for an amount at
least equal to the fair market value thereof (as determined in good faith
by senior management of the Borrower), (x) each such sale or disposition
(I) results in consideration at least 80% of which (taking the amount of
cash, the principal amount of any promissory notes and assumed Indebtedness
and the fair market value, as determined by the Borrower in good faith, of
any other non-cash consideration) shall be in the form of cash (for
purposes of this clause (I) treating as cash consideration the principal
amount of Indebtedness for borrowed money and the Capitalized Lease
Obligations assumed by the respective purchaser of assets) or (II) in the
case of an asset or assets subject to Capitalized Lease Obligations,
results in the assumption of all of the Capitalized Lease Obligations of
the Borrower or such Subsidiary in respect of such asset by the purchaser
thereof, (y) the aggregate Net Sale Proceeds from all assets sold or
otherwise disposed of pursuant to this clause (d), when added to the
aggregate amount of all Capitalized Lease Obligations assigned in
connection with all assets sold or otherwise disposed of pursuant to this
clause (d), shall not exceed $2,500,000 in the aggregate in any fiscal year
of the Borrower and (z) the Net Sale Proceeds therefrom are either applied
to repay Term Loans (or reduce the Total Revolving Loan Commitment) as
provided in Section 4.02(c) or reinvested in replacement assets or retained
to the extent permitted by Section 4.02(c) and/or the other relevant
provisions of this Agreement;
(e) any Subsidiary of the Borrower may transfer assets to the
Borrower or to any Subsidiary Guarantor, so long as any security interests
granted to the Collateral Agent for
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the benefit of the Secured Creditors pursuant to the Security Documents in
the assets so transferred shall remain in full force and effect and
perfected (to at least the same extent as in effect immediately prior to
such transfer);
(f) any Subsidiary of the Borrower may merge with and into, or be
dissolved or liquidated into, the Borrower, so long as (i) the Borrower is
the surviving corporation of any such merger, dissolution or liquidation
and (ii) any security interests granted to the Collateral Agent for the
benefit of the Secured Creditors pursuant to the Security Documents in the
assets of such Subsidiary shall remain in full force and effect and
perfected (to at least the same extent as in effect immediately prior to
such merger, dissolution or liquidation);
(g) any Subsidiary of the Borrower may merge with and into, or be
dissolved or liquidated into, any Subsidiary Guarantor, so long as (i) such
Subsidiary Guarantor is the surviving corporation of any such merger,
dissolution or liquidation and (ii) any security interests granted to the
Collateral Agent for the benefit of the Secured Creditors pursuant to the
Security Documents in the assets of such Subsidiary shall remain in full
force and effect and perfected (to at least the same extent as in effect
immediately prior to such merger, dissolution or liquidation);
(h) the Borrower and its Wholly-Owned Domestic Subsidiaries shall be
permitted to make Permitted Acquisitions, so long as such Permitted
Acquisitions are effected in accordance with the requirements of Section
8.14;
(i) the SMT Merger shall be permitted in accordance with the
requirements of this Agreement;
(j) the Borrower and its Subsidiaries may, in the ordinary course of
business, license patents, trademarks, copyrights and know-how to or from
third Persons or one another, so long as each such license is permitted to
be assigned pursuant to the Security Agreement (to the extent that a
security interest in such patents, trademarks, copyrights and know-how is
granted thereunder) and does not otherwise prohibit the granting of a Lien
by the Borrower or any of its Subsidiaries pursuant to the Security
Agreement in the intellectual property covered by such license;
(k) the Borrower or any of its Subsidiaries may effect Permitted
Sale-Leaseback Transactions in accordance with the definition thereof;
provided that the aggregate amount of all proceeds received by the Borrower
--------
and its Subsidiaries from all Permitted Sale-Leaseback Transactions
consummated on and after the Third Restatement Effective Date shall not
exceed $15,000,000;
(l) the Borrower and any of its Subsidiaries may sell Healthcare
Units which, in the reasonable opinion of such Person, are obsolete,
uneconomic or no longer useful in the conduct of such Person's business or
otherwise require upgrading, provided that (i) any such sale shall be for
--------
an amount at least equal to the fair market value thereof (as determined in
good faith by senior management of the Borrower), (ii) such sale (x)
results
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in consideration at least 80% of which (taking the amount of cash, the
principal amount of any promissory notes and the fair market value, as
determined by the Borrower in good faith, of any other consideration) shall
be in the form of cash or (y) results in the assumption of all of the
Capitalized Lease Obligations of the Borrower or such Subsidiary in respect
of such Healthcare Unit by the purchaser thereof, (iii) the Net Sale
Proceeds from, or the amount of Capitalized Lease Obligations assigned in
connection with, any such sale, when added to the aggregate Net Sale
Proceeds received from, and the aggregate amount of all Capitalized Lease
Obligations assigned in connection with, all other Healthcare Units sold
pursuant to this clause (l) after the Third Restatement Effective Date,
shall not exceed $25,000,000 and (iv) any Net Sale Proceeds from any such
sale are applied to repay Term Loans (or reduce the Total Revolving Loan
Commitment) as provided in Section 4.02(c) or reinvested in replacement
assets or retained to the extent permitted by Section 4.02(c) and/or the
other relevant provisions of this Agreement;
(m) the Borrower and any of its Subsidiaries may effect Healthcare
Unit Replacements, provided that (i) any disposition of a Healthcare Unit
--------
pursuant to a Healthcare Unit Replacement shall be for an amount (including
any credits towards the purchase of a replacement mobile Healthcare Unit)
at least equal to the fair market value thereof (as determined in good
faith by senior management of the Borrower) and (ii) the Net Sale Proceeds
from any such disposition are applied to repay Term Loans (or reduce the
Total Revolving Loan Commitment) as provided in Section 4.02(c) or
reinvested in replacement Healthcare Units or retained to the extent
permitted by Section 4.02(c);
(n) the Borrower and any of its Subsidiaries may sell or otherwise
dispose of the capital stock of, or other equity interests in, any of their
respective Subsidiaries and Joint Ventures which, in the reasonable opinion
of such Person, are uneconomic or no longer useful in the conduct of such
Person's business, provided that (w) each such sale or disposition shall be
--------
for an amount at least equal to the fair market value thereof (as
determined in good faith by senior management of the Borrower), (x) each
such sale results in consideration at least 80% of which (taking the amount
of cash, the principal amount of any promissory notes and assumed
Indebtedness and the fair market value, as determined by the Borrower in
good faith, of any other non-cash consideration) shall be in the form of
cash (for purposes of this clause (x) treating as cash consideration the
amount of any trade payables and the principal amount of Indebtedness for
borrowed money assumed by the respective purchaser of assets), (y) the
aggregate Net Sale Proceeds of all assets sold or otherwise disposed of
pursuant to this clause (n) after the Third Restatement Effective Date
shall not exceed $15,000,000 in the aggregate and (z) the Net Sale Proceeds
therefrom are either applied to repay Term Loans (or reduce the Total
Revolving Loan Commitment) as provided in Section 4.02(c) or reinvested in
replacement assets or retained to the extent permitted by Section 4.02(c)
and/or the other relevant provisions of this Agreement;
(o) the Borrower and its Subsidiaries may enter into agreements to
effect acquisitions and dispositions of stock or assets, so long as the
respective transaction is permitted pursuant to the other provisions of
this Section 9.02; provided that the Borrower and its Subsidiaries may
--------
enter into agreements to effect acquisitions and dispositions of capital
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stock or assets in transactions not permitted by the provisions of this
Section 9.02 at the time the respective agreement is entered into, so long
as in the case of each such agreement, such agreement shall be expressly
conditioned upon obtaining the requisite consent of the Required Banks
under this Agreement or the repayment of all obligations hereunder as a
condition precedent to the consummation of the respective transaction and,
if for any reason the transaction is not consummated because of failure to
obtain such consent or repay such obligations, the aggregate liability of
the Borrower and its Subsidiaries under any such agreement shall not exceed
$4,000,000; and
(p) the Borrower and any of its Subsidiaries may sell or discount, in
each case without recourse, accounts receivables arising in the ordinary
course of business, but only in connection with the compromise or
collection thereof.
To the extent the Required Banks waive the provisions of this Section 9.02 with
respect to the sale or other disposition of any Collateral, or any Collateral is
sold or otherwise disposed of as permitted by this Section 9.02, such Collateral
(unless transferred to the Borrower or a Subsidiary thereof) shall be sold or
otherwise disposed of free and clear of the Liens created by the Security
Documents and the Administrative Agent shall take such actions (including,
without limitation, directing the Collateral Agent to take such actions) as are
appropriate in connection therewith.
9.03 Liens. The Borrower will not, and will not permit any of its
-----
Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with
respect to any property or assets of any kind (real or personal, tangible or
intangible) of the Borrower or any of its Subsidiaries, whether now owned or
hereafter acquired, or sell any such property or assets subject to an
understanding or agreement, contingent or otherwise, to repurchase such property
or assets (including sales of accounts receivable or notes with recourse to the
Borrower or any of its Subsidiaries) or assign any right to receive income,
except for the following (collectively, the "Permitted Liens"):
(a) inchoate Liens for taxes, assessments or governmental charges or
levies not yet due and payable or Liens for taxes, assessments or
governmental charges or levies being contested in good faith and by
appropriate proceedings for which adequate reserves have been established
in accordance with GAAP;
(b) Liens in respect of property or assets of the Borrower or any of
its Subsidiaries imposed by law which were incurred in the ordinary course
of business and which have not arisen to secure Indebtedness for borrowed
money, such as carriers', warehousemen's and mechanics' Liens, statutory
landlord's Liens, and other similar Liens arising in the ordinary course of
business, and which either (x) do not in the aggregate materially detract
from the value of such property or assets or materially impair the use
thereof in the operation of the business of the Borrower or any of its
Subsidiaries or (y) are being contested in good faith by appropriate
proceedings, which proceedings have the effect of preventing the forfeiture
or sale of the property or asset subject to such Lien;
(c) Liens created by or pursuant to this Agreement and the Security
Documents;
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<PAGE>
(d) Liens in existence on the Third Restatement Effective Date which
are listed, and the property subject thereto described, in Schedule IX,
without giving effect to any extensions or renewals thereof;
(e) Liens arising from judgments, decrees or attachments in
circumstances not constituting an Event of Default under Section 10.09,
provided that the amount of cash and property (determined on a fair market
--------
value basis) deposited or delivered to secure the respective judgment or
decree or subject to attachment shall not exceed $2,500,000 at any time;
(f) Liens (other than any Lien imposed by ERISA) (x) incurred or
deposits made in the ordinary course of business of the Borrower and its
Subsidiaries in connection with workers' compensation, unemployment
insurance and other types of social security, (y) to secure the performance
by the Borrower and its Subsidiaries of tenders, statutory obligations
(other than excise taxes), surety, stay, customs and appeal bonds,
statutory bonds, bids, leases, government contracts, trade contracts,
performance and return of money bonds and other similar obligations
(exclusive of obligations for the payment of borrowed money) or (z) to
secure the performance by the Borrower and its Subsidiaries of leases of
Real Property, to the extent incurred or made in the ordinary course of
business consistent with past practices, provided that the aggregate amount
--------
of deposits at any time pursuant to sub-clauses (y) and (z) shall not
exceed $4,000,000 in the aggregate;
(g) licenses, sublicenses, leases or subleases granted to third
Persons in the ordinary course of business not interfering in any material
respect with the business of the Borrower or any of its Subsidiaries;
(h) easements, rights-of-way, restrictions, minor defects or
irregularities in title and other similar charges or encumbrances, in each
case not securing Indebtedness and not interfering in any material respect
with the ordinary conduct of the business of the Borrower or any of its
Subsidiaries;
(i) Liens arising from precautionary UCC financing statements
regarding operating leases;
(j) Liens created pursuant to Capital Leases permitted pursuant to
Section 9.04(d), provided that (x) such Liens only serve to secure the
--------
payment of Indebtedness arising under such Capitalized Lease Obligation
(and other Indebtedness permitted by Section 9.04(d) and incurred from the
same Person as such Indebtedness) and (y) the Lien encumbering the asset
giving rise to the Capitalized Lease Obligation does not encumber any other
asset of the Borrower or any of its Subsidiaries (other than other assets
subject to Capitalized Lease Obligations and/or Indebtedness incurred
pursuant to Section 9.04(d), in each case owing to the same Person as such
Capitalized Lease Obligation);
(k) Permitted Encumbrances;
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(l) Liens arising pursuant to purchase money mortgages or security
interests securing Indebtedness representing the purchase price (or
financing of the purchase price within 90 days after the respective
purchase) of assets acquired after the Original Effective Date, provided
--------
that (i) any such Liens attach only to the assets so purchased, upgrades
thereon and, if the asset so purchased is an upgrade, the original asset
itself (and such other assets financed by the same financing source), (ii)
the Indebtedness (other than Indebtedness incurred from the same financing
source to purchase other assets and excluding Indebtedness representing
obligations to pay installation and delivery charges for the property so
purchased) secured by any such Lien does not exceed 100%, nor is less than
80%, of the lesser of the fair market value or the purchase price of the
property being purchased at the time of the incurrence of such Indebtedness
and (iii) the Indebtedness secured thereby is permitted to be incurred
pursuant to Section 9.04(d); and
(m) Liens on property or assets acquired pursuant to a Permitted
Acquisition, or on property or assets of a Subsidiary of the Borrower in
existence at the time such Subsidiary is acquired pursuant to a Permitted
Acquisition, provided that (i) any Indebtedness that is secured by such
--------
Liens is permitted to exist under Section 9.04(d), and (ii) such Liens are
not incurred in connection with, or in contemplation or anticipation of,
such Permitted Acquisition and do not attach to any other asset of the
Borrower or any of its Subsidiaries.
9.04 Indebtedness. The Borrower will not, and will not permit any of
------------
its Subsidiaries to, contract, create, incur, assume or suffer to exist any
Indebtedness, except:
(a) Indebtedness incurred pursuant to this Agreement and the other
Credit Documents;
(b) Scheduled Existing Indebtedness outstanding on the Third
Restatement Effective Date and listed on Schedule IV (as reduced by any
repayments thereof after the Third Restatement Effective Date), without
giving effect to any subsequent extension, renewal or refinancing thereof;
(c) Indebtedness under Interest Rate Protection Agreements entered
into to protect the Borrower against fluctuations in interest rates in
respect of the Indebtedness otherwise permitted under this Agreement;
(d) (x) Indebtedness of a Subsidiary acquired pursuant to a Permitted
Acquisition (or Indebtedness assumed at the time of a Permitted Acquisition
of an asset securing such Indebtedness) (the "Permitted Acquired Debt"), so
long as (i) such Indebtedness was not incurred in connection with, or in
anticipation or contemplation of, such Permitted Acquisition and (ii) such
Indebtedness does not constitute debt
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for borrowed money (except to the extent such Indebtedness cannot be repaid
in accordance with its terms at the time of its assumption pursuant to such
Permitted Acquisition and the aggregate principal amount of all such
Indebtedness for borrowed money permitted pursuant to this parenthetical
does not exceed $20,000,000), it being understood and agreed that
Capitalized Lease Obligations and purchase money Indebtedness shall not
constitute debt for borrowed money for purposes of this clause (ii) and (y)
Capitalized Lease Obligations and Indebtedness of the Borrower and its
Subsidiaries representing purchase money Indebtedness secured by Liens
permitted pursuant to Section 9.03(l), provided that the sum of (I) the
--------
aggregate principal amount of all Permitted Acquired Debt at any time
outstanding plus (II) the aggregate amount of Capitalized Lease
----
Obligations incurred on and after the Third Restatement Effective Date and
outstanding at any time (including Indebtedness evidenced by Capitalized
Lease Obligations arising from Permitted Sale-Leaseback Transactions but
excluding any Capitalized Lease Obligations independently permitted by
Section 9.04(b)) plus (III) the aggregate principal amount of all such
----
purchase money Indebtedness incurred on and after the Third Restatement
Effective Date and outstanding at any time, shall not exceed $40,000,000;
(e) Indebtedness constituting Intercompany Loans to the extent
permitted by Section 9.05(f);
(f) Permitted Subordinated Refinancing Indebtedness, so long as no
Default or Event of Default is in existence at the time of any incurrence
thereof and immediately after giving effect thereto;
(g) unsecured Indebtedness of the Borrower and the Subsidiary
Guarantors incurred under the Senior Subordinated Notes and the other
Senior Subordinated Note Documents in an aggregate principal amount not to
exceed $185,000,000 less the amount of any repayments of principal thereof
----
after the Original Effective Date;
(h) indebtedness of the Borrower or any of its Subsidiaries which may
be deemed to exist in connection with agreements providing for
indemnification, purchase price adjustments and similar obligations in
connection with acquisitions or sales of assets and/or businesses effected
in accordance with the requirements of this Agreement (so long as any such
obligations are those of the Person making the respective acquisition or
sale, and, except as permitted by Section 9.04(i)(z), are not guaranteed by
any other Person);
(i) Contingent Obligations of (x) the Borrower or any of its
Subsidiaries as a guarantor of the lessee under any lease pursuant to which
the Borrower or any of its Wholly-Owned Subsidiaries is the lessee so long
as such lease is otherwise permitted hereunder, (y) the Borrower or any of
its Subsidiaries as a guarantor of any Capitalized Lease Obligation to
which a Joint Venture is a party or any contract entered into by such Joint
Venture in the ordinary course of business; provided that the maximum
--------
liability of the Borrower or any of its Subsidiaries in respect of any
obligations as described pursuant to preceding clause (y) is permitted as
an Investment on such date pursuant to the requirements of Section 9.05(l)
and (z) the Borrower as a guarantor of Indebtedness of any of its
Subsidiaries which may be deemed to exist pursuant to acquisition
agreements entered into in connection with Permitted Acquisitions
(including any obligation to pay the purchase price therefor and any
indemnification, purchase price adjustment and similar obligations);
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<PAGE>
(j) Permitted Subordinated Indebtedness incurred in accordance with
the requirements of the definition thereof and additional unsecured
Indebtedness of the Borrower and its Subsidiaries not otherwise permitted
pursuant to this Section 9.04, so long as the aggregate principal amount of
all Indebtedness permitted by this clause (j), when added to the aggregate
liquidation preference for all Disqualified Preferred Stock issued after
the Third Restatement Effective Date pursuant to Section 9.13(c), does not
exceed $20,000,000 at any time outstanding; and
(k) Indebtedness of the Borrower under the Shareholder Subordinated
Notes issued in accordance with the terms of Section 9.06(ii).
9.05 Advances; Investments; Loans. The Borrower will not, and will
----------------------------
not permit any of its Subsidiaries to, lend money or extend credit or make
advances to any Person, or purchase or acquire any stock, obligations or
securities of, or any other interest in, or make any capital contribution to,
any other Person, or purchase or own a futures contract or otherwise become
liable for the purchase or sale of currency or other commodities at a future
date in the nature of a futures contract, or hold any cash or Cash Equivalents
(any of the foregoing, an "Investment"), except:
(a) the Borrower and its Subsidiaries may invest in cash and Cash
Equivalents, provided that during any time that Revolving Loans or
--------
Swingline Loans are outstanding the aggregate amount of cash and Cash
Equivalents held by the Borrower and its Subsidiaries shall not exceed
$10,000,000 for any period of three consecutive Business Days;
(b) the Borrower and its Subsidiaries may acquire and hold
receivables owing to it, if created or acquired in the ordinary course of
business and payable or dischargeable in accordance with customary trade
terms (including the dating of receivables) of the Borrower or such
Subsidiary;
(c) the Borrower and its Subsidiaries may acquire and own investments
(including debt obligations and equity securities) received in connection
with the bankruptcy or reorganization of suppliers and customers and in
settlement of delinquent obligations of, and other disputes with, customers
and suppliers arising in the ordinary course of business;
(d) Interest Rate Protection Agreements entered into in compliance
with Section 9.04(c) shall be permitted;
(e) advances, loans and investments in existence on the Original
Effective Date and listed on Schedule VI shall be permitted, without giving
effect to any additions thereto or replacements thereof;
(f) the Borrower may make intercompany loans and advances to any
Subsidiary Guarantor, and any Subsidiary Guarantor may make intercompany
loans and advances to the Borrower or any other Subsidiary Guarantor
(collectively, "Intercompany Loans"),
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<PAGE>
provided that (x) each Intercompany Loan shall be evidenced by an
--------
Intercompany Note and (y) each such Intercompany Note shall be pledged to
the Collateral Agent pursuant to the Pledge Agreement;
(g) loans and advances by the Borrower and its Subsidiaries to
employees of the Borrower and its Subsidiaries in connection with
relocations, purchases by such employees of Borrower Common Stock or
options or similar rights to purchase Borrower Common Stock and other
ordinary course of business purposes shall be permitted, so long as the
aggregate principal amount thereof at any time outstanding (determined
without regard to any write-downs or write-offs of such loans and advances)
shall not exceed $2,500,000;
(h) the Borrower may acquire and hold obligations of one or more
officers or other employees of the Borrower or its Subsidiaries in
connection with such officers' or employees' acquisition of shares of
Borrower Common Stock, so long as no cash is actually advanced by the
Borrower or any of its Subsidiaries to such officers or employees in
connection with the acquisition of any such obligations;
(i) the SMT Merger shall be permitted;
(j) the Borrower and any of its Wholly-Owned Domestic Subsidiaries
may make Permitted Acquisitions in accordance with the relevant
requirements of Section 8.14 and the component definitions as used therein;
(k) the Borrower and its Subsidiaries may own the capital stock of
their respective Subsidiaries created or acquired in accordance with the
terms of this Agreement (so long as all amounts invested in such
Subsidiaries are independently permitted under another provision of this
Section 9.05);
(l) so long as no Default or Event of Default exists or would exist
immediately after giving effect to the respective Investment, the Borrower
shall be permitted to make Investments in any Joint Venture on any date in
an amount not to exceed the Available JV Basket Amount on such date (after
giving effect to all prior and contemporaneous adjustments thereto, except
as a result of such Investment), it being understood and agreed that (i)
any such Investment may be in the form of a contribution of a Healthcare
Unit or Units to such Joint Venture and (ii) to the extent the Borrower or
one or more other Credit Parties (after the respective Investment has been
made) receives a cash return from the respective Joint Venture of amounts
previously invested pursuant to this clause (l) (which cash return may be
made by way of repayment of principal in the case of loans and cash equity
returns (whether as a distribution, dividend or redemption) in the case of
equity investments), then the amount of such return of investment shall,
upon the Administrative Agent's receipt of a certification of the amount of
the return of investment from an Authorized Officer, apply to increase the
Available JV Basket Amount, provided that the aggregate amount of increases
--------
to the Available JV Basket Amount described above shall not exceed the
amount of returned investment and, in no event, shall the amount of the
increases made to the Available JV Basket Amount in respect of any
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<PAGE>
Investment exceed the amount previously invested pursuant to this clause
(l) (or clause (l) of Section 9.05 of any of the Original Credit Agreement,
the First Amended and Restated Credit Agreement or the Second Amended and
Restated Credit Agreement); and
(m) the Borrower and its Subsidiaries may receive and hold promissory
notes and other non-cash consideration received in connection with any
asset sale permitted by Section 9.02(d);
(n) the Borrower and its Subsidiaries may convey, lease, license,
sell or otherwise transfer or acquire assets and properties to the extent
permitted by Sections 9.02(e), (f) and (g);
(o) the Borrower and any Subsidiary Guarantor may make cash equity
contributions to any (other) Subsidiary Guarantor;
(p) the Borrower and its Subsidiaries may make advances in the form
of a prepayment of expenses, so long as such expenses were incurred in the
ordinary course of business and are being paid in accordance with customary
trade terms of the Borrower or such Subsidiary; and
(q) in addition to investments permitted by clauses (a) through (p)
of this Section 9.05, the Borrower and its Subsidiaries may make additional
loans, advances and Investments to or in a Person not an Affiliate in an
aggregate amount for all loans, advances and Investments made pursuant to
this clause (q) (determined without regard to any write-downs or write-offs
thereof), net of cash repayments of principal in the case of loans, sale
proceeds in the case of Investments in the form of debt instruments and
cash equity returns (whether as a distribution, dividend, redemption or
sale) in the case of equity investments, not to exceed $15,000,000.
9.06 Dividends; etc. The Borrower will not, and will not permit any
---------------
of its Subsidiaries to, declare or pay any dividends (other than dividends
payable solely in common stock of the Borrower or any such Subsidiary, as the
case may be) or return any capital to, its stockholders or authorize or make any
other distribution, payment or delivery of property or cash to its stockholders
as such, or redeem, retire, purchase or otherwise acquire, directly or
indirectly, for a consideration, any shares of any class of its capital stock,
now or hereafter outstanding (or any warrants for or options or stock
appreciation rights in respect of any of such shares), or set aside any funds
for any of the foregoing purposes, and the Borrower will not permit any of its
Subsidiaries to purchase or otherwise acquire for consideration any shares of
any class of the capital stock of the Borrower or any other Subsidiary, as the
case may be, now or hereafter outstanding (or any options or warrants or stock
appreciation rights issued by such Person with respect to its capital stock)
(all of the foregoing "Dividends"), except that:
(i) any Subsidiary of the Borrower may pay Dividends to the
Borrower or any Wholly-Owned Subsidiary of the Borrower;
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<PAGE>
(ii) the Borrower may redeem or purchase shares of Borrower Common
Stock or options to purchase Borrower Common Stock, as the case may be,
held by former employees of the Borrower or any of its Subsidiaries
following the termination of their employment (by death, disability or
otherwise) provided that (x) the only consideration paid by the Borrower in
--------
respect of such redemptions and/or purchases shall be cash, forgiveness of
liabilities and/or Shareholder Subordinated Notes, (y) the sum of (A) the
aggregate amount paid by the Borrower in cash in respect of all such
redemptions and/or purchases, plus (B) the aggregate amount of liabilities
so forgiven and (C) the aggregate amount of all cash principal and interest
payments made on Shareholder Subordinated Notes, in each case after the
Third Restatement Effective Date, shall not exceed $5,000,000, and (z) at
the time of any cash payment or forgiveness of liabilities permitted to be
made pursuant to this Section 9.06(ii), including any cash payment under a
Shareholder Subordinated Note, no Default or Event of Default shall then
exist or result therefrom;
(iii) so long as no Default or Event of Default exists or would
result therefrom, the Borrower may pay regularly accruing cash Dividends on
Disqualified Preferred Stock (excluding in any event PIK Preferred Stock)
issued pursuant to Section 9.13(c), with such Dividends to be paid in
accordance with the terms of the respective certificate of designation
therefor;
(iv) any Subsidiary of the Borrower that is not a Wholly-Owned
Subsidiary may pay cash Dividends to its shareholders or partners
generally, so long as the Borrower or its respective Subsidiary which owns
the equity interest or interests in the Subsidiary paying such Dividends
receives at least its proportionate share thereof (based upon its relative
holdings of equity interests in the Subsidiary paying such Dividends and
taking into account the relative preferences, if any, of the various
classes of equity interests in such Subsidiary or the terms of any
agreements applicable thereto);
(v) the Borrower may pay regularly accruing Dividends with respect
to the PIK Preferred Stock (whether outstanding on the Third Restatement
Effective Date or issued thereafter pursuant to the following clause (x))
(x) through the issuance of additional shares of PIK Preferred Stock (but
not in cash) and (y) at any time after the PIK Trigger Date and so long as
no Default or Event of Default then exists or would result therefrom, in
cash, in any such case in accordance with the terms of the documentation
governing the same;
(vi) the Borrower may pay regularly accruing Dividends with respect
to Qualified Preferred Stock through the issuance of additional shares of
Qualified Preferred Stock (but not in cash) in accordance with the terms of
the documentation governing the same; and
(vii) the Borrower may redeem PIK Preferred Stock with the net
proceeds (after giving effect to the application of Net Cash Proceeds
required by clause (y) below) of any issuance of Borrower Common Stock
pursuant to a Qualified IPO in accordance with the terms of the PIK
Preferred Stock Documents, so long as (x) no Default or Event of
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<PAGE>
Default then exists or would result therefrom and (y) the Net Cash Proceeds
from any such issuance of Borrower Common Stock are first applied to repay
Term Loans and/or reduce the Total Revolving Loan Commitment to the extent
required by Section 4.02(e).
9.07 Transactions with Affiliates. The Borrower will not, and will
----------------------------
not permit any of its Subsidiaries to, enter into any transaction or series of
transactions with any Affiliate of the Borrower or any of its Subsidiaries other
than on terms and conditions substantially as favorable to the Borrower or such
Subsidiary as would be reasonably expected to be obtainable by the Borrower or
such Subsidiary at the time in a comparable arm's-length transaction with a
Person other than an Affiliate; provided that the following shall in any event
--------
be permitted: (i) the Transaction; (ii) intercompany transactions among the
Borrower and its Subsidiaries to the extent expressly permitted by Sections
9.02, 9.04, 9.05 and 9.06 shall be permitted; (iii) so long as no Default or
Event of Default is then in existence or would result therefrom, the payment, on
a quarterly basis, of management fees to Apollo Group in an aggregate amount not
to exceed (x) $125,000 in any fiscal quarter of the Borrower pursuant to, and in
accordance with the terms of, the Apollo/Alliance Management Agreement and (y)
$62,500 in any fiscal quarter of the Borrower pursuant to, and in accordance
with the terms of, the Apollo/SMT Management Agreement, provided that if during
--------
any fiscal quarter of the Borrower, a Default or Event of Default is in
existence and such management fees cannot be paid as provided above, such fees
shall continue to accrue and may be paid at such time as all Defaults and Events
of Default have been cured or waived and so long as no Default or Event of
Default will exist immediately after giving effect to the payment thereof; (iv)
customary fees to non-officer directors of the Borrower and its Subsidiaries;
(v) the Borrower and its Subsidiaries may enter into employment arrangements
with respect to the procurement of services with their respective officers and
employees in the ordinary course of business; (vi) the reimbursement of Apollo
Group for its reasonable out-of-pocket expenses incurred in connection with
performing management services to the Borrower and its Subsidiaries or in
connection with the Transaction; (vii) so long as no Default or Event of Default
is then in existence or would result therefrom, the payment to Apollo Group of
merger advisory fees for each Permitted Acquisition in an amount not to exceed
1% of the fair market value of the business or assets acquired pursuant to such
Permitted Acquisition (determined in good faith by senior management of the
Borrower); and (viii) the payment of consulting or other fees to the Borrower by
any of its Subsidiaries in the ordinary course of business. In no event shall
any management, consulting or similar fee be paid or payable by the Borrower or
any of its Subsidiaries to any Affiliate or Apollo Group or any of its
Affiliates, except as specifically provided in this Section 9.07.
9.08 Consolidated Fixed Charge Coverage Ratio. The Borrower will not
----------------------------------------
permit the Consolidated Fixed Charge Coverage Ratio for any Test Period ending
on the last day of a fiscal quarter of the Borrower specified below to be less
than the ratio set forth opposite such fiscal quarter below:
Fiscal Quarter Ended Ratio
-------------------- -----
June 30, 1999 0.75:1.00
September 30, 1999 0.80:1.00
December 31, 1999 0.85:1.00
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March 31, 2000 0.90:1.00
June 30, 2000 0.95:1.00
September 30, 2000 0.95:1.00
December 31, 2000 1.00:1.00
March 31, 2001 1.10:1.00
June 30, 2001 1.10:1.00
September 30, 2001 1.10:1.00
December 31, 2001 1.10:1.00
March 31, 2002 1.10:1.00
June 30, 2002 1.10:1.00
September 30, 2002 1.10:1.00
December 31, 2002 1.10:1.00
March 31, 2003 1.10:1.00
June 30, 2003 1.10:1.00
September 30, 2003 1.10:1.00
December 31, 2003 1.10:1.00
March 31, 2004 1.10:1.00
June 30, 2004 1.10:1.00
September 30, 2004 1.10:1.00
December 31, 2004 1.10:1.00
March 31, 2005 1.10:1.00
9.09 Minimum Consolidated EBITDA. The Borrower will not permit
---------------------------
Consolidated EBITDA (determined after giving effect to the proviso to the
definition thereof) for any Test Period ending on the last day of any fiscal
quarter of the Borrower specified below to be less than the respective amount
set forth opposite such fiscal quarter below:
Fiscal Quarter Ended Amount
-------------------- ------
June 30, 1999 $70,000,000
September 30, 1999 $70,000,000
December 31, 1999 $72,500,000
March 31, 2000 $75,000,000
June 30, 2000 $77,500,000
September 30, 2000 $77,500,000
December 31, 2000 $80,000,000
March 31, 2001 $80,000,000
June 30, 2001 $82,500,000
September 30, 2001 $82,500,000
December 31, 2001 $85,000,000
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March 31, 2002 $85,000,000
June 30, 2002 $87,500,000
September 30, 2002 $87,500,000
December 31, 2002 $90,000,000
March 31, 2003 $90,000,000
June 30, 2003 $90,000,000
September 30, 2003 $90,000,000
December 31, 2003 $90,000,000
March 31, 2004 $90,000,000
June 30, 2004 $90,000,000
September 30, 2004 $90,000,000
December 31, 2004 $90,000,000
March 31, 2005 $90,000,000
9.10 Consolidated Interest Coverage Ratio. The Borrower will not
------------------------------------
permit the Consolidated Interest Coverage Ratio for any Test Period ending on
the last day of any fiscal quarter of the Borrower specified below to be less
than the ratio set forth opposite such fiscal quarter below:
Fiscal Quarter Ended Ratio
-------------------- -----
June 30, 1999 1.95:1.00
September 30, 1999 1.95:1.00
December 31, 1999 2.00:1.00
March 31, 2000 2.10:1.00
June 30, 2000 2.15:1.00
September 30, 2000 2.20:1.00
December 31, 2000 2.25:1.00
March 31, 2001 2.30:1.00
June 30, 2001 2.35:1.00
September 30, 2001 2.40:1.00
December 31, 2001 2.45:1.00
March 31, 2002 2.50:1.00
June 30, 2002 2.55:1.00
September 30, 2002 2.60:1.00
December 31, 2002 2.65:1.00
March 31, 2003 2.65:1.00
June 30, 2003 2.65:1.00
September 30, 2003 2.65:1.00
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December 31, 2003 2.65:1.00
March 31, 2004 2.65:1.00
June 30, 2004 2.65:1.00
September 30, 2004 2.65:1.00
December 31, 2004 2.65:1.00
March 31, 2005 2.65:1.00
9.11 Adjusted Total Leverage Ratio. The Borrower will not permit the
-----------------------------
Adjusted Total Leverage Ratio on the last day of any fiscal quarter specified
below to exceed the respective ratio set forth opposite such fiscal quarter
below:
Fiscal Quarter Ended Ratio
-------------------- -----
June 30, 1999 5.00:1.00
September 30, 1999 5.00:1.00
December 31, 1999 4.75:1.00
March 31, 2000 4.75:1.00
June 30, 2000 4.50:1.00
September 30, 2000 4.50:1.00
December 31, 2000 4.25:1.00
March 31, 2001 4.25:1.00
June 30, 2001 4.00:1.00
September 30, 2001 4.00:1.00
December 31, 2001 4.00:1.00
March 31, 2002 4.00:1.00
June 30, 2002 3.75:1.00
September 30, 2002 3.75:1.00
December 31, 2002 3.75:1.00
March 31, 2003 3.75:1.00
June 30, 2003 3.75:1.00
September 30, 2003 3.75:1.00
December 31, 2003 3.75:1.00
March 31, 2004 3.75:1.00
June 30, 2004 3.75:1.00
September 30, 2004 3.75:1.00
December 31, 2004 3.75:1.00
March 31, 2005 3.75:1.00
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Notwithstanding anything contrary contained above or elsewhere in this
Agreement, (i) all calculations of compliance with this Section 9.11 shall be
made on a Pro Forma Basis and (ii) in no event shall the Adjusted Total Leverage
--- -----
Ratio be greater than the Maximum Permitted Acquisition Leverage Ratio upon the
consummation of, and after giving effect on a Pro Forma Basis to, any Permitted
--- -----
Acquisition.
9.12 Limitation on Voluntary Payments and Modifications of
-----------------------------------------------------
Indebtedness; Modifications of Certificate of Incorporation, By-Laws and Certain
- --------------------------------------------------------------------------------
Other Agreements; Issuances of Capital Stock; etc. The Borrower will not, and
- --------------------------------------------------
will not permit any of its Subsidiaries to:
(i) amend or modify, or permit the amendment or modification of,
any provision of any Shareholder Subordinated Note, any Senior Subordinated
Notes Document, any Scheduled Existing Indebtedness, any PIK Preferred
Stock Document or, after the incurrence or issuance thereof, any Qualified
Preferred Stock, any Disqualified Preferred Stock or Permitted Debt or of
any agreement (including, without limitation, any purchase agreement,
indenture, loan agreement, security agreement or certificate of
designation) relating thereto in a manner that could reasonably be expected
to in any way be adverse to the interests of the Banks;
(ii) make (or give any notice in respect of) any voluntary or
optional payment or prepayment on or redemption, repurchase or acquisition
for value of (including, without limitation, by way of depositing with the
trustee with respect thereto or any other Person money or securities before
due for the purpose of paying when due), or any prepayment or redemption as
a result of any asset sale, change of control or similar event of, any
Senior Subordinated Notes, any Scheduled Existing Indebtedness, any
Permitted Subordinated Refinancing Indebtedness, any Permitted Subordinated
Indebtedness or any PIK Preferred Stock; provided that, so long as no
--------
Default or Event of Default then exists or would result therefrom, (x)
Senior Subordinated Notes may be refinanced with Permitted Subordinated
Refinancing Indebtedness, (y) the Borrower may repurchase Senior
Subordinated Notes on the open-market in an aggregate principal amount for
all purchases made after the Original Effective Date pursuant to this
clause (y) (and clause (y) of Section 9.12 of each of the Original Credit
Agreement, the First Amended and Restated Credit Agreement and the Second
Amended and Restated Credit Agreement) not to exceed $25,000,000, so long
as the Adjusted Total Leverage Ratio is less than 4.00:1.00 on the last day
of the Test Period most recently ended prior to the consummation of the
respective repurchase (as set forth in the officer's certificate most
recently delivered pursuant to Section 8.01(e)) and (z) the Borrower and
its Subsidiaries may make payments and prepayments in connection with
Scheduled Existing Indebtedness;
(iii) make (or give any notice in respect of) any principal or
interest payment on, or any redemption or acquisition for value of, any
Shareholder Subordinated Note, except to the extent permitted by Section
9.06(ii); or
(iv) amend, modify or change in any way adverse to the interests of
the Banks in any material respect any Tax Allocation Agreement, any
Management Agreement, any
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Original Transaction Document (excluding the Original Credit Agreement),
any MTI Transaction Document (excluding the First Amended and Restated
Credit Agreement), any ASHS Transaction Document (excluding the Second
Amended and Restated Credit Agreement), any SMT Merger Document, its
certificate of incorporation (including, without limitation, by the filing
or modification of any certificate of designation other than any
certificates of designation relating to Qualified Preferred Stock or
Disqualified Preferred Stock issued as permitted herein), by-laws,
certificate of partnership, partnership agreement, certificate of limited
liability company, limited liability company agreement or any agreement
entered into by it, with respect to its capital stock or other equity
interest (including any Shareholders' Agreement), or enter into any new Tax
Allocation Agreement, Management Agreement or agreement with respect to its
capital stock or other equity interest which could reasonably be expected
to in any way be adverse to the interests of the Banks or, in the case of
any Management Agreement, which involves the payment by the Borrower or any
of its Subsidiaries of any amount which could give rise to a violation of
this Agreement; provided that the foregoing clause shall not restrict the
--------
ability of the Borrower and its Subsidiaries to amend their respective
certificates of incorporation to authorize the issuance of capital stock
otherwise permitted to be issued pursuant to the terms of this Agreement.
9.13 Limitation on Issuance of Capital Stock. (a) The Borrower will
---------------------------------------
not, and will not permit any of its Subsidiaries to, issue (i) any Preferred
Stock (other than (x) the issuance of shares of PIK Preferred Stock in payment
of regularly accruing dividends on theretofore outstanding shares of PIK
Preferred Stock and (y) Preferred Stock issued pursuant to clauses (c) and (d)
below) or any options, warrants or rights to purchase Preferred Stock or (ii)
any redeemable common stock unless, in either case, the issuance thereof is, and
all terms thereof are, satisfactory to the Required Banks in their sole
discretion.
(b) The Borrower shall not permit any of its Subsidiaries to issue
any capital stock (including by way of sales of treasury stock) or any options
or warrants to purchase, or securities convertible into, capital stock, except
(i) for transfers and replacements of then outstanding shares of capital stock,
(ii) for stock splits, stock dividends and additional issuances which do not
decrease the percentage ownership of the Borrower or any of its Subsidiaries in
any class of the capital stock of such Subsidiaries, (iii) to qualify directors
to the extent required by applicable law and (iv) Subsidiaries formed after the
Third Restatement Effective Date pursuant to Section 9.15 may issue capital
stock in accordance with the requirements of Section 9.15. All capital stock
issued in accordance with this Section 9.13(b) shall, to the extent required by
the Pledge Agreement, be delivered to the Collateral Agent for pledge pursuant
to the Pledge Agreement.
(c) The Borrower may issue Disqualified Preferred Stock so long as
(i) no Default or Event of Default then exists or would exist immediately after
giving effect to the respective issuance, (ii) the aggregate liquidation
preference for all Disqualified Preferred Stock issued after the Third
Restatement Effective Date pursuant to this Section 9.13(c) shall not exceed,
when combined with the aggregate principal amount of all then outstanding
Indebtedness permitted by Section 9.04(j), $20,000,000, (iii) with respect to
each issue of Disqualified Preferred Stock, the gross cash proceeds therefrom
(or in the case of Disqualified Preferred Stock directly issued as
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consideration for a Permitted Acquisition, the fair market value thereof (as
determined in good faith by the Borrower) of the assets received therefor) shall
not exceed the liquidation preference thereof at the time of issuance, (iv)
calculations are made by the Borrower of compliance with the covenants contained
in Sections 9.08 through 9.11 for the Calculation Period most recently ended
prior to the date of the respective issuance of Disqualified Preferred Stock, on
a Pro Forma Basis after giving effect to the respective issuance of
--- -----
Disqualified Preferred Stock, and such calculations shall show that such
financial covenants would have been complied with if such issuance of
Disqualified Preferred Stock had been consummated on the first day of the
respective Calculation Period, and (v) the Borrower shall furnish to the
Administrative Agent a certificate by an Authorized Officer of the Borrower
certifying to the best of his or her knowledge as to compliance with the
requirements of this Section 9.13(c) and containing the pro forma calculations
--- -----
required by the preceding clause (iv).
(d) The Borrower may issue Qualified Preferred Stock (x) in payment
of regularly accruing dividends on theretofore outstanding shares of Qualified
Preferred Stock as contemplated by Section 9.06(vi) and (y) so long as, with
respect to each other issue of Qualified Preferred Stock, the Borrower receives
reasonably equivalent consideration (as determined in good faith by the
Borrower).
9.14 Limitation on Certain Restrictions on Subsidiaries. (a) The
--------------------------------------------------
Borrower will not, and will not permit any of its Subsidiaries to, directly or
indirectly, create or otherwise cause or suffer to exist or become effective,
any encumbrance or restriction on the ability of any such Subsidiary to (x) pay
dividends or make any other distributions on its capital stock or any other
interest or participation in its profits owned by the Borrower or any Subsidiary
of the Borrower, or pay any Indebtedness owed to the Borrower or a Subsidiary of
the Borrower, (y) make loans or advances to the Borrower or any Subsidiary of
the Borrower or (z) transfer any of its properties or assets to the Borrower or
any of its Subsidiaries, except for such encumbrances or restrictions existing
under or by reason of (i) applicable law, (ii) this Agreement and the other
Credit Documents, (iii) the provisions contained in the Scheduled Existing
Indebtedness, (iv) the Senior Subordinated Notes Documents, (v) customary
provisions restricting subletting or assignment of any lease governing a
leasehold interest of the Borrower or a Subsidiary of the Borrower, (vi)
customary provisions restricting assignment of any contract entered into by the
Borrower or any Subsidiary of the Borrower in the ordinary course of business,
(vii) any agreement or instrument governing Permitted Acquired Debt, which
encumbrance or restriction is not applicable to any Person or the properties or
assets of any Person, other than the Person or the properties or assets of the
Person acquired pursuant to the respective Permitted Acquisition and so long as
the respective encumbrances or restrictions were not created (or made more
restrictive) in connection with or in anticipation of the respective Permitted
Acquisition, (viii) restrictions applicable to any Joint Venture that is a
Subsidiary existing at the time of the acquisition thereof as a result of an
Investment pursuant to Section 9.05 or a Permitted Acquisition effected in
accordance with Section 8.14; provided that the restrictions applicable to the
--------
respective such Joint Venture are not made worse, or more burdensome, from the
perspective of the Borrower and its Subsidiaries, than those as in effect
immediately before giving effect to the consummation of the respective
Investment or Permitted Acquisition, (ix) any restriction or encumbrance with
respect to a Subsidiary imposed pursuant to an agreement which has been entered
into for the sale or disposition of all or substantially all of the capital
stock or assets of such Subsidiary, so long as such
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sale or disposition of all or substantially all of the capital stock or assets
of such Subsidiary is permitted under this Agreement, and (x) the documentation
governing Permitted Debt (other than Permitted Acquired Debt).
(b) The Borrower will not, and will not permit any of its
Subsidiaries to, directly or indirectly agree to any consensual encumbrance or
restriction on the ability of any Non-Subsidiary Joint Venture to (x) pay
dividends or make other distributions on its capital stock or other interests or
participations in its profits owned by the Borrower or any Subsidiary of the
Borrower or (y) make loans or advances to the Borrower or any Subsidiary of the
Borrower, except for such encumbrances or restrictions existing under or by
reason of (i) applicable law, (ii) this Agreement and the other Credit
Documents, (iii) customary provisions restricting subletting or assignment of
any lease governing a leasehold interest of such Non-Subsidiary Joint Venture,
(iv) the Senior Subordinated Note Documents, (v) customary provisions
restricting assignment of any contract entered into by such Non-Subsidiary Joint
Venture in the ordinary course of business, (vi) normal restrictions (as
determined in good faith by the Borrower) applicable to any Non-Subsidiary Joint
Venture at the time of the establishment thereof (so long as not in connection
with a Permitted Acquisition), (vii) restrictions applicable to any Non-
Subsidiary Joint Venture existing at the time of the acquisition thereof as a
result of an Investment pursuant to Section 9.05 or a Permitted Acquisition
effected in accordance with Section 8.14; provided that the restrictions
--------
applicable to the respective Non-Subsidiary Joint Venture are not made worse, or
more burdensome, from the perspective of the Borrower and its Subsidiaries, than
those as in effect immediately before giving effect to the consummation of the
respective Investment or Permitted Acquisition and (viii) the documentation
governing Permitted Debt (other than Permitted Acquired Debt).
9.15 Limitation on the Creation of Subsidiaries and Joint Ventures.
-------------------------------------------------------------
(a) Notwithstanding anything to the contrary contained in this Agreement, the
Borrower will not, and will not permit any of its Subsidiaries to, establish,
create or acquire after the Third Restatement Effective Date any Subsidiary
(other than Joint Ventures permitted to be established in accordance with the
requirements of Section 9.05(l)); provided that the (A) Borrower and its Wholly-
--------
Owned Subsidiaries shall be permitted to establish or create Wholly-Owned
Subsidiaries so long as, in each case, (i) at least 10 days' prior written
notice thereof is given to the Administrative Agent (or such shorter period of
time as is acceptable to the Administrative Agent), (ii) the capital stock or
other equity interests of such new Subsidiary is promptly pledged pursuant to,
and to the extent required by, this Agreement and the Pledge Agreement and the
certificates, if any, representing such stock or other equity interests,
together with appropriate powers duly executed in blank, are delivered to the
Collateral Agent, (iii) such new Subsidiary (other than a Foreign Subsidiary
except to the extent otherwise required pursuant to Section 8.12) promptly
executes a counterpart of the Subsidiaries Guaranty, the Pledge Agreement and
the Security Agreement, and (iv) to the extent requested by the Administrative
Agent or the Required Banks, such new Subsidiary takes all actions required
pursuant to Section 8.11 and (B) Subsidiaries may be acquired pursuant to
Permitted Acquisitions so long as, in each such case (i) with respect to each
Wholly-Owned Subsidiary acquired pursuant to a Permitted Acquisition, the
actions specified in preceding clause (A) shall be taken and (ii) with respect
to each Subsidiary which is not a Wholly-Owned Subsidiary and is acquired
pursuant to a Permitted Acquisition, all capital stock or other equity interests
thereof owned by any Credit Party shall be pledged
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pursuant to (and to the extent required by) the Pledge Agreement. In addition,
each new Subsidiary that is required to execute any Credit Document shall
execute and deliver, or cause to be executed and delivered, all other relevant
documentation of the type described in Section 5 as such new Subsidiary would
have had to deliver if such new Subsidiary were a New Credit Party on the Third
Restatement Effective Date.
(b) The Borrower will not, and will not permit any of its
Subsidiaries to, enter into any Joint Ventures, except to the extent permitted
by Section 9.05(l).
9.16 Designated Senior Debt. The Borrower shall not designate any
----------------------
Indebtedness as "Designated Senior Debt" or "Designated Senior Indebtedness" (as
defined in the Senior Subordinated Notes Indenture or, on and after the
execution and delivery thereof, any agreement relating to any Permitted
Subordinated Indebtedness or Permitted Subordinated Refinancing Indebtedness, as
applicable) other than the Obligations and the obligations of the Credit Parties
under the other Credit Documents.
SECTION 10. Events of Default. Upon the occurrence of any of the
-----------------
following specified events (each, an "Event of Default"):
10.01 Payments. The Borrower shall (i) default in the payment when
--------
due of any principal of the Loans or (ii) default, and such default shall
continue for three or more Business Days, in the payment when due of any Unpaid
Drawing, any interest on the Loans or any Fees or any other amounts owing
hereunder or under any other Credit Document; or
10.02 Representations, etc. Any representation, warranty or
---------------------
statement made by any Credit Party herein or in any other Credit Document or in
any statement or certificate delivered pursuant hereto or thereto shall prove to
be untrue in any material respect on the date as of which made or deemed made;
or
10.03 Covenants. Any Credit Party shall (a) default in the due
---------
performance or observance by it of any term, covenant or agreement contained in
Sections 8.01(f)(i), 8.10, 8.13, 8.14 or 9, or (b) default in the due
performance or observance by it of any term, covenant or agreement (other than
those referred to in Section 10.01, 10.02 or clause (a) of this Section 10.03)
contained in this Agreement and such default shall continue unremedied for a
period of at least 30 days after notice to the defaulting party by the
Administrative Agent or the Required Banks; or
10.04 Default Under Other Agreements. (a) The Borrower or any of
------------------------------
its Subsidiaries shall (i) default in any payment with respect to any
Indebtedness (other than the Obligations) beyond the period of grace, if any,
provided in the instrument or agreement under which Indebtedness was created or
(ii) default in the observance or performance of any agreement or condition
relating to any such Indebtedness or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event shall occur or
condition exist, the effect of which default or other event or condition is to
cause, or to permit the holder or holders of such Indebtedness (or a trustee or
agent on behalf of such holder or holders) to cause (determined without regard
to whether any notice is required), any such Indebtedness to become
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due prior to its stated maturity; or (b) any Indebtedness (other than the
Obligations) of the Borrower or any of its Subsidiaries shall be declared to be
due and payable, or shall be required to be prepaid other than by a regularly
scheduled required prepayment or as a mandatory prepayment (unless such required
prepayment or mandatory prepayment results from a default thereunder or an event
of the type that constitutes an Event of Default), prior to the stated maturity
thereof; provided that it shall not constitute an Event of Default pursuant to
--------
clause (a) or (b) of this Section 10.04 unless the principal amount of any one
issue of such Indebtedness, or the aggregate amount of all such Indebtedness
referred to in clauses (a) and (b) above, exceeds $4,500,000 at any one time; or
10.05 Bankruptcy, etc. The Borrower or any of its Subsidiaries shall
----------------
commence a voluntary case concerning itself under Title 11 of the United States
Code entitled "Bankruptcy", as now or hereafter in effect, or any successor
thereto (the "Bankruptcy Code"); or an involuntary case is commenced against the
Borrower or any of its Subsidiaries and the petition is not controverted within
20 days, or is not dismissed within 60 days, after commencement of the case; or
a custodian (as defined in the Bankruptcy Code) is appointed for, or takes
charge of, all or substantially all of the property of the Borrower or any of
its Subsidiaries; or the Borrower or any of its Subsidiaries commences any other
proceeding under any reorganization, arrangement, adjustment of debt, relief of
debtors, dissolution, insolvency or liquidation or similar law of any
jurisdiction whether now or hereafter in effect relating to the Borrower or any
of its Subsidiaries; or there is commenced against the Borrower or any of its
Subsidiaries any such proceeding which remains undismissed for a period of 60
days; or the Borrower or any of its Subsidiaries is adjudicated insolvent or
bankrupt; or any order of relief or other order approving any such case or
proceeding is entered; or the Borrower or any of its Subsidiaries suffers any
appointment of any custodian or the like for it or any substantial part of its
property to continue undischarged or unstayed for a period of 60 days; or the
Borrower or any of its Subsidiaries makes a general assignment for the benefit
of creditors; or any corporate action is taken by the Borrower or any of its
Subsidiaries for the purpose of effecting any of the foregoing; or
10.06 ERISA. (a) Any Plan shall fail to satisfy the minimum funding
-----
standard required for any plan year or part thereof under Section 412 of the
Code or Section 302 of ERISA or a waiver of such standard or extension of any
amortization period is sought or granted under Section 412 of the Code or
Section 303 or 304 of ERISA, a Reportable Event shall have occurred, a
contributing sponsor (as defined in Section 4001(a)(13) of ERISA) of the Plan
subject to Title IV of ERISA shall be subject to the advance reporting
requirement of PBGC Regulation Section 4043.61 (without regard to subparagraph
(b)(1) thereof) and an event described in subsection .62, .63, .64, .65, .66,
.67 or .68 of PBGC Regulation Section 4043 shall be reasonably expected to occur
within the following 30 days, any Plan which is subject to Title IV of ERISA
shall have had or is likely to have a trustee appointed to administer such Plan,
any Plan which is subject to Title IV of ERISA is, shall have been or is likely
to be terminated or to be the subject of termination proceedings under ERISA,
any Plan shall have an Unfunded Current Liability, a contribution required to be
made with respect to a Plan has not been timely made, the Borrower or any
Subsidiary of the Borrower or any ERISA Affiliate has incurred or is likely to
incur any liability to or on account of a Plan under Section 409, 502(i),
502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or Section
401(a)(29), 4971 or 4975 of the Code or on account of a group health plan (as
defined in Section 607(1) of ERISA or Section
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<PAGE>
4980B(g)(2) of the Code) under Section 4980B of the Code, or the Borrower or any
Subsidiary of the Borrower has incurred or is likely to incur liabilities
pursuant to one or more employee welfare benefit plans (as defined in Section
3(1) of ERISA) that provide benefits to retired employees or other former
employees (other than as required by Section 601 of ERISA) or Plans; (b) there
shall result from any such event or events the imposition of a lien, the
granting of a security interest, or a liability or a material risk of incurring
a liability; and (c) such lien, security interest or liability, individually,
and/or in the aggregate, in the opinion of the Required Banks, has had, or could
reasonably be expected to have, a Material Adverse Effect; or
10.07 Security Documents. (a) Any Security Document shall cease to
------------------
be in full force and effect, or shall cease to give the Collateral Agent the
Liens, rights, powers and privileges purported to be created thereby in favor of
the Collateral Agent, superior to and prior to the rights of all third Persons
(except as permitted by Section 9.03), and subject to no other Liens (except as
permitted by Section 9.03), or (b) any Credit Party shall default in the due
performance or observance of any term, covenant or agreement on its part to be
performed or observed pursuant to any such Security Document and such default
shall continue beyond any cure or grace period specifically applicable thereto
pursuant to the terms of any such Security Document; or
10.08 Subsidiaries Guaranty. The Subsidiaries Guaranty or any
---------------------
provision thereof shall cease to be in full force and effect, or any Subsidiary
Guarantor or any Person acting by or on behalf of such Subsidiary Guarantor
shall deny or disaffirm such Subsidiary Guarantor's obligations under the
Subsidiaries Guaranty or any Subsidiary Guarantor shall default in the due
performance or observance of any term, covenant or agreement on its part to be
performed or observed pursuant to the Subsidiaries Guaranty; or
10.09 Judgments. One or more judgments or decrees shall be entered
---------
against the Borrower or any of its Subsidiaries involving a liability (to the
extent not paid or not fully covered by insurance) in excess of $4,500,000 for
all such judgments and decrees and all such judgments or decrees shall not have
been vacated, discharged or stayed or bonded pending appeal within 60 days from
the entry thereof; or
10.10 Ownership. A Change of Control Event shall have occurred;
---------
then, and in any such event, and at any time thereafter, if any Event of Default
shall then be continuing, the Administrative Agent shall, upon the written
request of the Required Banks, by written notice to the Borrower, take any or
all of the following actions, without prejudice to the rights of any Agent or
any Bank to enforce its claims against any Subsidiary Guarantor or the Borrower,
except as otherwise specifically provided for in this Agreement (provided that
--------
if an Event of Default specified in Section 10.05 shall occur with respect to
the Borrower, the result which would occur upon the giving of written notice by
the Administrative Agent as specified in clauses (i) and (ii) below shall occur
automatically without the giving of any such notice): (i) declare the Total
Commitment terminated, whereupon the Commitment of each Bank shall forthwith
terminate immediately and any RL Commitment Fees shall forthwith become due and
payable without any other notice of any kind; (ii) declare the principal of and
any accrued interest in respect of all Loans and all Obligations owing hereunder
(including Unpaid Drawings) to be,
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whereupon the same shall become, forthwith due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Borrower; (iii) enforce, as Collateral Agent (or direct the Collateral Agent
to enforce), any or all of the Liens and security interests created pursuant to
the Security Documents; (iv) terminate any Letter of Credit which may be
terminated in accordance with its terms; (v) direct the Borrower to pay (and the
Borrower hereby agrees upon receipt of such notice, or upon the occurrence of
any Event of Default specified in Section 10.05, to pay) to the Collateral Agent
at the Payment Office such additional amounts of cash, to be held as security
for the Borrower's reimbursement obligations in respect of Letters of Credit
then outstanding, equal to the aggregate Stated Amount of all Letters of Credit
then outstanding; and (vi) apply any cash collateral as provided in Section
4.02.
SECTION 11. Definitions. As used herein, the following terms shall
-----------
have the meanings herein specified unless the context otherwise requires.
Defined terms in this Agreement shall include in the singular number the plural
and in the plural the singular:
"Acquired Person" shall have the meaning provided in the definition of
Permitted Acquisition.
"Additional Revolver Refinancing" shall mean the repayment of
Revolving Loans within 3 Business Days following the Third Restatement Effective
Date in accordance with the requirements of Section 8.18.
"Additional Security Documents" shall have the meaning provided in
Section 8.11.
"Adjusted Certificate of Deposit Rate" shall mean, on any day, the sum
(rounded to the nearest 1/100 of 1%) of (1) the rate obtained by dividing (x)
the most recent weekly average dealer offering rate for negotiable certificates
of deposit with a three-month maturity in the secondary market as published in
the most recent Federal Reserve System publication entitled "Select Interest
Rates", published weekly on Form H.15 as of the date hereof, or if such
publication or a substitute containing the foregoing rate information shall not
be published by the Federal Reserve System for any week, the weekly average
offering rate determined by the Administrative Agent on the basis of quotations
for such certificates received by it from three certificate of deposit dealers
in New York of recognized standing or, if such quotations are unavailable, then
on the basis of other sources reasonably selected by the Administrative Agent,
by (y) a percentage equal to 100% minus the stated maximum rate of all reserve
requirements as specified in Regulation D applicable on such day to a three-
month certificate of deposit of a member bank of the Federal Reserve System in
excess of $100,000 (including, without limitation, any marginal, emergency,
supplemental, special or other reserves), plus (2) the then daily net annual
----
assessment rate as estimated by the Administrative Agent for determining the
current annual assessment payable by BTCo to the Federal Deposit Insurance
Corporation for insuring three month certificates of deposit.
"Adjusted Consolidated Net Income" for any period shall mean
Consolidated Net Income for such period plus, without duplication, the sum of
----
the amount of all net non-cash charges (including, without limitation,
depreciation, amortization, deferred tax expense, non-cash
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interest expense) and net non-cash losses which were included in arriving at
Consolidated Net Income for such period less all net non-cash gains included in
----
arriving at Consolidated Net Income for such period; provided that gains or
--------
losses from sales of assets (other than sales of inventory in the ordinary
course of business) shall be excluded to the extent same would otherwise be
included in Adjusted Consolidated Net Income for the respective period.
"Adjusted Consolidated Working Capital" at any time shall mean
Consolidated Current Assets (but excluding therefrom all cash and Cash
Equivalents) less Consolidated Current Liabilities.
----
"Adjusted Excess Cash Flow" shall mean, for any period, the remainder
of (i) Excess Cash Flow minus (ii) the product of (I) the aggregate amount of
-----
principal repayments of Loans to the extent (and only to the extent) that such
repayments were (x) required as a result of a Scheduled Commitment Reduction
under Section 3.03 or a Scheduled Repayment under Section 4.02 or (y) made as a
voluntary prepayment pursuant to Section 4.01 with internally generated funds
(but in a case of a voluntary prepayment of Revolving Loans, only to the extent
accompanied by a voluntary reduction to the Total Revolving Loan Commitment)
during such period multiplied by (II) (x) at any time the Applicable Excess Cash
----------
Flow Percentage then in effect is equal to 75%, 4/3 and (y) at any time the
Applicable Excess Cash Flow Percentage then is effect is equal to 50%, 2.
"Adjusted RL Percentage" shall mean (x) at a time when no Bank Default
exists, for each Bank, such Bank's RL Percentage and (y) at a time when a Bank
Default exists, (i) for each Bank that is a Defaulting Bank, zero and (ii) for
each Bank that is a Non-Defaulting Bank, the percentage determined by dividing
such Bank's Revolving Loan Commitment at such time by the Adjusted Total
Revolving Loan Commitment at such time, it being understood that all references
herein to Revolving Loan Commitments and the Adjusted Total Revolving Loan
Commitment at a time when the Total Revolving Loan Commitment or Adjusted Total
Revolving Loan Commitment, as the case may be, has been terminated shall be
references to the Revolving Loan Commitments or Adjusted Total Revolving Loan
Commitment, as the case may be, in effect immediately prior to such termination,
provided that (A) no Bank's Adjusted RL Percentage shall change upon the
- --------
occurrence of a Bank Default from that in effect immediately prior to such Bank
Default if after giving effect to such Bank Default, and any repayment of
Revolving Loans and Swingline Loans at such time pursuant to Section 4.02(a) or
otherwise, the sum of (i) the aggregate outstanding principal amount of
Revolving Loans of all Non-Defaulting Banks, plus (ii) the aggregate outstanding
principal amount of Swingline Loans, plus (iii) the Letter of Credit
Outstandings, exceed the Adjusted Total Revolving Loan Commitment; (B) the
changes to the Adjusted RL Percentage that would have become effective upon the
occurrence of a Bank Default but that did not become effective as a result of
the preceding clause (A) shall become effective on the first date after the
occurrence of the relevant Bank Default on which the sum of (i) the aggregate
outstanding principal amount of the Revolving Loans of all Non-Defaulting Banks,
plus (ii) the aggregate outstanding principal amount of Swingline Loans, plus
(iii) the Letter of Credit Outstandings, is equal to or less than the Adjusted
Total Revolving Loan Commitment; and (C) if (i) a Non-Defaulting Bank's Adjusted
RL Percentage is changed pursuant to the preceding clause (B) and (ii) any
repayment of such Bank's Revolving Loans or of Unpaid Drawings or of Swingline
Loans that were made during the period commencing after
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the date of the relevant Bank Default and ending on the date of such change to
its Adjusted RL Percentage must be returned to the Borrower as a preferential or
similar payment in any bankruptcy or similar proceeding of the Borrower, then
the change to such Non-Defaulting Bank's Adjusted RL Percentage effected
pursuant to said clause (B) shall be reduced to that positive change, if any, as
would have been made to its Adjusted RL Percentage if (x) such repayments had
not been made and (y) the maximum change to its Adjusted RL Percentage would
have resulted in the sum of the outstanding principal of Revolving Loans made by
such Bank plus such Bank's new Adjusted RL Percentage of the outstanding
principal amount of Swingline Loans and of Letter of Credit Outstandings
equaling such Bank's Revolving Loan Commitment at such time.
"Adjusted Senior Leverage Ratio" shall mean the Adjusted Total
Leverage Ratio, except that references to "Consolidated Debt" and "Adjusted
Total Leverage Ratio" therein shall instead be references to "Consolidated
Senior Debt" and "Adjusted Senior Leverage Ratio", respectively.
"Adjusted Total Leverage Ratio" shall mean, on any date, the ratio of
(i) Consolidated Debt on such date to (ii) Consolidated EBITDA for the Test
Period most recently ended on or prior to such date (determined after giving
effect to the proviso to the definition of Consolidated EBITDA contained
herein). All calculations of the Adjusted Total Leverage Ratio shall be made on
a Pro Forma Basis, with determinations of Adjusted Total Leverage Ratio to give
--- -----
effect to all adjustments (including, without limitation, those specified in
clause (v)) contained in the definition of "Pro Forma Basis" contained herein.
--- -----
"Adjusted Total Revolving Loan Commitment" shall mean at any time the
Total Revolving Loan Commitment less the aggregate Revolving Loan Commitments of
----
all Defaulting Banks.
"Administrative Agent" shall have the meaning provided in the first
paragraph of this Agreement and shall include any successor to the
Administrative Agent appointed pursuant to Section 12.10.
"Affected Loans" shall have the meaning provided in Section 4.02(i).
"Affiliate" shall mean, with respect to any Person, any other Person
directly or indirectly controlling (including but not limited to all directors
and officers of such Person), controlled by, or under direct or indirect common
control with such Person; provided, however, that for purposes of Section 9.07,
-------- -------
an Affiliate of the Borrower shall include any Person that directly or
indirectly owns more than 5% of any class of the capital stock of the Borrower
and any officer or director of the Borrower or any such Person.
"Agent" shall have the meaning provided in the first paragraph of this
Agreement.
"Agreement" shall mean this Credit Agreement, as the same may be from
time to time modified, amended and/or supplemented.
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"Apollo Group" shall mean Apollo Advisors, L.P., Apollo Investment
Fund, L.P., Apollo Management, L.P., Apollo Investment Fund III, L.P., Apollo
Overseas Partners III, L.P., Apollo (U.K.) Partners III, L.P., AIF II, L.P., and
Apollo Advisors II, L.P., all Delaware limited partnerships (except that Apollo
(U.K.) Partners III, L.P. is a limited partnership organized under the laws of
England).
"Apollo/Alliance Management Agreement" shall mean the consulting
agreement, dated December 18, 1997, between Apollo Advisors, L.P. and the
Borrower, as the same may be amended, modified or supplemented from time to time
pursuant to the terms hereof and thereof.
"Apollo/SMT Management Agreement" shall mean the consulting agreement,
dated as of August 6, 1997, between Apollo Advisors, L.P. and SMT, as the same
may be amended, modified or supplemented from time to time in accordance with
the terms hereof and thereof.
"Applicable RL Commitment Fee Percentage" shall mean, at any time, a
percentage per annum equal to 1/2 of 1%; provided that if at any time the
--------
Interest Reduction Discount then in effect with respect to Revolving Loans is
(i) greater than or equal to 3/8 of 1% but less than 1%, then the Applicable RL
Commitment Fee Percentage shall instead be 3/8 of 1% and (ii) 1% or greater,
then the Applicable RL Commitment Fee Percentage shall instead be 1/4 of 1%.
"Applicable Excess Cash Flow Percentage" shall mean, with respect to
any Excess Cash Flow Payment Date, 75%; provided that so long as no Default or
--------
Event of Default is then in existence, if on the last day of the relevant Excess
Cash Flow Payment Period, the Adjusted Total Leverage Ratio for the Test Period
then most recently ended is less than 4.00:1.00, then the Applicable Excess Cash
Flow Percentage shall instead be 50%.
"Applicable Margin" shall mean a percentage per annum equal to (i) in
the case of Revolving Loans (x) maintained as Base Rate Loans, 1.25% less the
----
then applicable Interest Reduction Discount and (y) maintained as Eurodollar
Loans, 2.25% less the then applicable Interest Reduction Discount, (ii) in the
----
case of Tranche A Term Loans, Tranche B Term Loans and Tranche C Term Loans (x)
maintained as Base Rate Loans, 1.50% less the then applicable Interest Reduction
----
Discount and (y) maintained as Eurodollar Loans, 2.50% less the then applicable
----
Interest Reduction Discount and (iii) in the case of Tranche D Term Loans (x)
maintained as Base Rate Loans, 1.75% and (y) maintained as Eurodollar Loans,
2.75%.
"Applicable Prepayment Percentage" shall mean, at any time, (i) for
purposes of Sections 4.02(c) and 4.02(d), 100%, provided that if at any time the
--------
Adjusted Total Leverage Ratio is less than 4.00 to 1.00, the Applicable
Prepayment Percentage shall instead be 75% and (ii) for purposes of Section
4.02(e), 50%, provided that if at any time the Adjusted Total Leverage Ratio is
--------
less than 4.00 to 1.00, the Applicable Prepayment Percentage shall instead be
0%. Notwithstanding anything to the contrary in this definition, at any time a
Default or Event of Default is then in existence, the Applicable Prepayment
Percentage for purposes of (x) Section 4.02(c) and (d) shall be 100% and (y)
Section 4.02(e) shall be 50%.
"ASHS" shall mean American Shared Hospital Services, a California
corporation.
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"ASHS Acquired Subsidiaries" shall mean, collectively, CT Sub and M
Partnership.
"ASHS Acquired Subsidiary Refinanced Indebtedness" shall have the
meaning provided in Section 5B.08 of the Second Amended and Restated Credit
Agreement.
"ASHS Acquired Subsidiaries Refinancing" shall mean the refinancing of
the ASHS Acquired Subsidiary Refinanced Indebtedness in accordance with the
provisions of Section 5B.08 of the Second Amended and Restated Credit Agreement.
"ASHS Acquired Subsidiaries Refinancing Documents" shall mean each of
the agreements, documents and instruments entered into in connection with the
ASHS Acquired Subsidiaries Refinancing.
"ASHS Acquisition" shall mean (i) the purchase by Embarcadero I of all
of the outstanding capital stock of CT Sub from ASHS and (ii) the purchase by
Embarcadero II of all of the partnership interests in M Partnership from MMRI,
in each case pursuant to and in accordance with the terms of the ASHS
Acquisition Agreement.
"ASHS Acquisition Agreement" shall mean the Securities Purchase
Agreement, dated as of March 12, 1998, among the Borrower, Embarcadero I,
Embarcadero II, ASHS and MMRI, as amended by the First Amendment thereto and as
in effect on the Second Restatement Effective Date and as the same may be
further amended, modified or supplemented from time to time pursuant to the
terms hereof and thereof.
"ASHS Acquisition Date" shall mean the date of the consummation of the
ASHS Acquisition.
"ASHS Acquisition Documents" shall mean the ASHS Acquisition Agreement
and all other agreements, instruments and documents entered into or delivered in
connection with the ASHS Acquisition.
"ASHS Transaction" shall mean, collectively, (i) the Revolver
Refinancing, (ii) the amendment and restatement of the First Amended and
Restated Credit Agreement in the form of the Second Amended and Restated Credit
Agreement as provided therein, (iii) the ASHS Acquisition, (iv) the consummation
of the ASHS Acquired Subsidiaries Refinancing, (v) the incurrence of all Loans
under, and as defined in, the Second Amended and Restated Credit Agreement on
the Second Restatement Effective Date and the ASHS Acquisition Date and (vi) the
payment of fees and expenses in connection with the foregoing.
"Asset Sale" shall mean any sale, transfer or other disposition by the
Borrower or any of its Subsidiaries to any Person other than the Borrower or any
Wholly-Owned Subsidiary of the Borrower of any asset (including, without
limitation, any capital stock or other securities of another Person, but
excluding the sale by such Person of its own capital stock) of the Borrower or
such Subsidiary other than (i) sales, transfers or other dispositions of
inventory made in the ordinary course of business, (ii) dispositions or
transfers arising out of, or in connection with, the events described in clauses
(i) and (ii) of the definition of Recovery Event,
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(iii) any sale or other disposition of assets pursuant to a Permitted Sale-
Leaseback Transaction effected in accordance with the definition thereof and the
requirements of Section 9.02(k), and (iv) other sales and dispositions that
generate Net Sale Proceeds of less than $750,000 in the aggregate in any fiscal
year of the Borrower.
"Assignment and Assumption Agreement" shall mean the Assignment and
Assumption Agreement substantially in the form of Exhibit L (appropriately
completed).
"Authorized Officer" shall mean, with respect to (i) delivering
Notices of Borrowing, Notices of Conversion, Letter of Credit Requests and
similar notices, and delivering financial information and officer's certificates
pursuant to this Agreement, the chief operating officer, any treasurer or other
financial officer of the Borrower and (ii) any other matter in connection with
this Agreement or any other Credit Document, any officer (or a person or persons
so designated by any two officers) of the Borrower, in each case to the extent
reasonably acceptable to the Administrative Agent.
"Available JV Basket Amount" shall mean, on any date of determination,
an amount equal to the sum of (i) $25,000,000 minus (ii) the aggregate amount of
-----
Investments made (including for such purpose the fair market value of any
Healthcare Unit contributed to any Joint Venture (as determined in good faith by
senior management of the Borrower), net of Indebtedness and, without
duplication, Capitalized Lease Obligations assigned to, and assumed by, the
respective Joint Venture in connection therewith) pursuant to Section 9.05(l)
after the Third Restatement Effective Date (and Section 9.05(l) of each of the
Original Credit Agreement, the First Amended and Restated Credit Agreement and
the Second Amended and Restated Credit Agreement after the Original Effective
Date) minus (iii) the aggregate amount of Indebtedness or other obligations
-----
(whether absolute, accrued, contingent or otherwise and whether or not due) of
any Joint Venture for which the Borrower or any of its Subsidiaries (other than
the respective Joint Venture) is liable, minus (iv) all payments made by the
-----
Borrower or any of its Subsidiaries (other than the respective Joint Venture) in
respect of Indebtedness or other obligations of the respective Joint Venture
(including, without limitation, payments in respect of obligations described in
preceding clause (iii)) after the Original Effective Date, plus (v) the amount
----
of any increase to the Available JV Basket Amount made after the Original
Effective Date in accordance with the provisions of Section 9.05(l) and Section
9.05(l) of each of the Original Credit Agreement, the First Amended and Restated
Credit Agreement and the Second Amended and Restated Credit Agreement. In
connection with the foregoing, it is understood and agreed that the acquisition
of an Acquired Person which has ownership interests in one or more Joint
Ventures, pursuant to a Permitted Acquisition effected in accordance with the
relevant requirements of this Agreement shall not be deemed to constitute an
Investment pursuant to Section 9.05(l) and the Available JV Basket Amount shall
not be reduced as a result of the payment of consideration owing to effect the
Permitted Acquisition (although the Available JV Basket Amount would be affected
to the extent preceding clauses (iii) or (iv) apply with respect to the Joint
Venture so acquired or to the extent additional Investments are made in the
respective Joint Venture pursuant to Section 9.05(l)).
"Bank" shall have the meaning provided in the first paragraph of this
Agreement.
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"Bank Default" shall mean (i) the refusal (which has not been
retracted) of a Bank to make available its portion of any Borrowing (including
any Mandatory Borrowing) or to fund its portion of any unreimbursed payment
under Section 2.03 or (ii) a Bank having notified the Administrative Agent
and/or the Borrower that it does not intend to comply with the obligations under
Section 1.01(b), 1.01(d) or 2.03, in the case of either clause (i) or (ii) above
as a result of the appointment of a receiver or conservator with respect to such
Bank at the direction or request of any regulatory agency or authority.
"Bankruptcy Code" shall have the meaning provided in Section 10.05.
"Base Rate" at any time shall mean the highest of (x) the rate which
is 1/2 of 1% in excess of the Adjusted Certificate of Deposit Rate, (y) the rate
which is 1/2 of 1% in excess of the Federal Funds Rate and (z) the Prime Lending
Rate.
"Base Rate Loan" shall mean each Loan bearing interest at the rates
provided in Section 1.08(a).
"Borrower" shall have the meaning provided in the first paragraph of
this Agreement.
"Borrower Common Stock" shall have the meaning provided in Section
7.13.
"Borrowing" shall mean and include (i) the borrowing of Swingline
Loans from BTCo on a given date and (ii) the borrowing of one Type of Loan
pursuant to a single Tranche by the Borrower from all of the Banks having
Commitments (and/or outstanding Loans) with respect to such Tranche on a pro
---
rata basis on a given date (or resulting from conversions on a given date),
- ----
having in the case of Eurodollar Loans the same Interest Period; provided, that
--------
Base Rate Loans incurred pursuant to Section 1.10(b) shall be considered part of
any related Borrowing of Eurodollar Loans.
"BTCo" shall mean Bankers Trust Company, in its individual capacity,
and any successor corporation thereto by merger, consolidation or otherwise.
"Business Day" shall mean (i) for all purposes other than as covered
by clause (ii) below, any day excluding Saturday, Sunday and any day which shall
be in the City of New York a legal holiday or a day on which banking
institutions are authorized by law or other governmental actions to close and
(ii) with respect to all notices and determinations in connection with, and
payments of principal and interest on, Eurodollar Loans, any day which is a
Business Day described in clause (i) and which is also a day for trading by and
between banks in U.S. Dollar deposits in the interbank Eurodollar market.
"Calculation Period" shall have the meaning provided in Section 8.14.
"Capital Expenditures" shall mean, with respect to any Person, for any
period, all expenditures by such Person which should be capitalized in
accordance with GAAP during such period, including all such expenditures with
respect to fixed or capital assets (including, without limitation, expenditures
for maintenance and repairs which should be capitalized in accordance
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with GAAP) and the amount of all Capitalized Lease Obligations incurred by such
Person during such period.
"Capital Lease", as applied to any Person, shall mean any lease of any
property (whether real, personal or mixed) by that Person as lessee which, in
conformity with GAAP, is accounted for as a capital lease on the balance sheet
of that Person.
"Capitalized Lease Obligations" shall mean all obligations under
Capital Leases of the Borrower or any of its Subsidiaries, in each case taken at
the amount thereof accounted for as liabilities in accordance with GAAP.
"Cash Equivalents" shall mean, as to any Person, (i) securities issued
or directly and fully guaranteed or insured by the United States or any agency
or instrumentality thereof (provided that the full faith and credit of the
--------
United States is pledged in support thereof) having maturities of not more than
six months from the date of acquisition, (ii) time deposits, certificates of
deposit and bankers' acceptances of any Bank or any commercial bank having, or
which is the principal banking subsidiary of a bank holding company organized
under the laws of the United States, any State thereof, the District of Columbia
or any foreign jurisdiction having capital, surplus and undivided profits
aggregating in excess of $200,000,000 and having a long-term unsecured debt
rating of at least "A" or the equivalent thereof from S&P's or "A2" or the
equivalent thereof from Moody's, with maturities of not more than six months
from the date of acquisition by such Person, (iii) repurchase agreements with a
term of not more than 30 days, involving securities of the types described in
preceding clause (i), and entered into with commercial banks meeting the
requirements of preceding clause (ii), (iv) commercial paper issued by any
Person incorporated in the United States rated at least A-1 or the equivalent
thereof by S&P's or at least P-1 or the equivalent thereof by Moody's and in
each case maturing not more than six months after the date of acquisition by
such Person, (v) investments in money market funds substantially all of whose
assets are comprised of securities of the types described in clauses (i) through
(iv) above and (vi) demand deposit accounts maintained in the ordinary course of
business.
"Change of Control Event" shall mean, (I) at any time prior to the
consummation of a Qualified IPO, (a) Apollo Group and its Affiliates shall cease
to own on a fully diluted basis in the aggregate at least 30% of the economic
and voting interest in the Borrower's capital stock (for such purposes,
excluding the PIK Preferred Stock and any Qualified Preferred Stock and any
Disqualified Preferred Stock, in each case to the extent same is not Voting
Stock) or (b) Apollo Group and its Affiliates, together with the Management
Participants and other investors which own shares of Borrower Common Stock on
the Original Effective Date, shall cease to own on a fully diluted basis in the
aggregate at least a majority of the outstanding Voting Stock of the Borrower or
(c) any Person or "group" (within the meaning of Rules 13d-3 and 13d-5 under the
Securities Exchange Act of 1934, as in effect on the Original Effective Date),
other than the Permitted Holders, shall (A) have acquired, directly or
indirectly, beneficial ownership of 30% or more on a fully diluted basis of the
voting and/or economic interest in the Borrower's capital stock or (B) obtained
the power (whether or not exercised) to elect a majority of the Borrower's
directors or (d) the Board of Directors of the Borrower shall cease to consist
of a majority of Continuing Directors or (e) a "change of control" or similar
event shall occur as provided in the
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Senior Subordinated Notes Indenture or in any Scheduled Existing Indebtedness,
Permitted Debt, PIK Preferred Stock, Disqualified Preferred Stock or Qualified
Preferred Stock, to the extent the outstanding principal amount or liquidation
preference, as the case may be, of such Scheduled Existing Indebtedness,
Permitted Debt, PIK Preferred Stock, Disqualified Preferred Stock or Qualified
Preferred Stock exceeds $10,000,000 or (II) at any time after a Qualified IPO,
(a) any Person or "group" (within the meaning of Rules 13d-3 and 13d-5 under the
Securities Exchange Act of 1934, as in effect on the Original Effective Date),
other than the Permitted Holders, shall have acquired, directly or indirectly,
beneficial ownership of 25% or more on a fully diluted basis of the voting
and/or economic interest in the Borrower's capital stock and Apollo Group and
its Affiliates shall own less than such Person or "group" on a fully diluted
basis of the economic and voting interest in the Borrower's capital stock or (b)
the Board of Directors of the Borrower shall cease to consist of a majority of
Continuing Directors or (c) a "change of control" or similar event shall occur
as provided in the Senior Subordinated Notes Indenture or in any Scheduled
Existing Indebtedness, Permitted Debt, PIK Preferred Stock, Disqualified
Preferred Stock or Qualified Preferred Stock, to the extent the outstanding
principal amount or liquidation preference, as the case may be, of such
Scheduled Existing Indebtedness, Permitted Debt, PIK Preferred Stock,
Disqualified Preferred Stock or Qualified Preferred Stock exceeds $10,000,000.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and the regulations promulgated and rulings issued thereunder.
Section references to the Code are to the Code, as in effect at the date of this
Agreement and any subsequent provisions of the Code, amendatory thereof,
supplemental thereto or substituted therefor.
"Collateral" shall mean all of the Collateral as defined in each of
the Security Documents.
"Collateral Agent" shall mean the Administrative Agent acting as
collateral agent for the Secured Creditors.
"Collective Bargaining Agreements" shall have the meaning provided in
Section 5.13.
"Commitment" shall mean any of the commitments of any Bank, i.e.,
----
whether a Tranche D Term Loan Commitment or Revolving Loan Commitment.
"Common Equity Issuance" shall have the meaning provided in the
Original Credit Agreement.
"Company" shall mean any corporation, limited liability company,
partnership or other business entity (or the adjectival form thereof, where
appropriate).
"Consolidated Current Assets" shall mean, at any time, the current
assets (other than cash, Cash Equivalents and deferred income taxes to the
extent included in current assets) of the Borrower and its Subsidiaries at such
time determined on a consolidated basis.
"Consolidated Current Liabilities" shall mean, at any time, the
current liabilities of the Borrower and its Subsidiaries determined on a
consolidated basis, but excluding deferred
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income taxes, restructuring costs or reserves, litigation costs or reserves and
the current portion of and accrued but unpaid interest on any Indebtedness under
this Agreement and any other long-term Indebtedness which would otherwise be
included therein.
"Consolidated Debt" shall mean, at any time, the sum of (without
duplication) (i) all Indebtedness of the Borrower and its Subsidiaries as would
be required to be reflected on the liability side of a balance sheet of such
Person in accordance with GAAP as determined on a consolidated basis, (ii) all
Indebtedness of the Borrower and its Subsidiaries of the type described in
clauses (iii) and (vii) of the definition of Indebtedness and (iii) all
Contingent Obligations of the Borrower and its Subsidiaries in respect of
Indebtedness of other Persons (i.e., Persons other than the Borrower or any of
----
its Subsidiaries) of the type referred to in preceding clauses (i) and (ii) of
this definition; provided that for purposes of this definition, (i) the amount
--------
of Indebtedness in respect of Interest Rate Protection Agreements shall be at
any time the unrealized net loss position, if any, of the Borrower and/or its
Subsidiaries thereunder on a marked-to-market basis determined no more than one
month prior to such time, (ii) any Disqualified Preferred Stock of the Borrower
and any Preferred Stock of any of its Subsidiaries shall be treated as
Indebtedness, with an amount equal to the greater of the liquidation preference
or the maximum mandatory fixed repurchase price of any such outstanding
Preferred Stock deemed to be a component of Consolidated Debt and (iii) without
duplication of amounts already included in Consolidated Debt, Consolidated Debt
at any time shall be adjusted by adding thereto the amount of Total Non-
Consolidated Joint Venture Debt at such time.
"Consolidated EBIT" shall mean, for any period, the Consolidated Net
Income of the Borrower and its Subsidiaries, determined on a consolidated basis,
before Consolidated Interest Expense (to the extent deducted in arriving at
Consolidated Net Income) and provision for taxes based on income or gains or
losses from sales of assets other than inventory sold in the ordinary course of
business, in each case that were included in arriving at Consolidated Net
Income.
"Consolidated EBITDA" shall mean, for any period, Consolidated EBIT,
adjusted by adding thereto (in each case to the extent deducted in determining
Consolidated Net Income for such period and not already added back in
determining Consolidated EBIT) the amount of (i) all amortization and
depreciation and other non-cash items and (ii) any management fees and
consulting fees paid pursuant to, and in accordance with the requirements of,
clauses (iii) and (vi) of Section 9.07, and clauses (iii), (vi) and (vii) of
Section 9.07 of the Second Amended and Restated Credit Agreement during such
period, in each case that were deducted in arriving at Consolidated EBIT for
such period; provided that (x) without duplication of amounts already included
--------
in Consolidated EBITDA, Consolidated EBITDA for any period shall be adjusted by
adding thereto the amount of Total Non-Consolidated Joint Venture EBITDA for the
respective period and (y) for purposes of any determination of compliance with
the financial covenants contained in Sections 9.08 through 9.11, inclusive, or
any determination of the Adjusted Total Leverage Ratio, the Adjusted Senior
Leverage Ratio or the Total Leverage Ratio elsewhere in this Agreement,
Consolidated EBITDA for any Test Period shall mean the product of (x)
Consolidated EBITDA for the two most recent fiscal quarters ended during such
Test Period multiplied by (y) 2. Notwithstanding anything to the contrary
----------
contained above, to the extent Consolidated EBITDA is to be determined for any
Test Period which ends prior to the first
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anniversary of the Third Restatement Effective Date, Consolidated EBITDA for all
portions of such period occurring prior to the Third Restatement Effective Date
shall be calculated in accordance with the definition of Test Period contained
herein.
"Consolidated Fixed Charge Coverage Ratio" for any period shall mean
the ratio of (x) Consolidated EBITDA (determined after giving effect to the
proviso to the definition thereof) for such period to (y) Consolidated Fixed
Charges for such period. Subject to the definition of Test Period, all
calculations of the Consolidated Fixed Charge Coverage Ratio shall be made on a
Pro Forma Basis, with determinations of the Consolidated Fixed Charge Coverage
- --- -----
Ratio to give effect to all adjustments (including, without limitation, those
specified in clause (v)) contained in the definition of "Pro Forma Basis"
--- -----
contained herein.
"Consolidated Fixed Charges" for any period shall mean the sum,
without duplication, of (i) Consolidated Interest Expense for such period, (ii)
the amount of all Capital Expenditures made by the Borrower and its Subsidiaries
during such period (other than Capital Expenditures (x) made with the proceeds
or credits from equipment exchanges, asset sales or insurance proceeds from any
Recovery Event to the extent such proceeds are not required to be applied by the
Borrower as a mandatory repayment pursuant to Section 4.02(c) or (f), as the
case may be, and (y) constituting Permitted Acquisitions effected in accordance
with the requirements of Section 9.02(h)) and (iii) the scheduled principal
amount of all amortization payments on all Indebtedness (excluding payments
pursuant to the Original Refinancing, the MTI Refinancing, the Revolver
Refinancing, the ASHS Acquired Subsidiaries Refinancing, the Additional Revolver
Refinancing and the SMT Refinancing and the principal component of any
Capitalized Lease Obligation to the extent the Capital Expenditures financed
pursuant to such Capitalized Lease Obligation were made after the Original
Effective Date and were included in the determination of Consolidated Fixed
Charges in a prior period) of the Borrower and its Subsidiaries for such period
(as determined on the first day of the respective period). Notwithstanding
anything to the contrary contained above, to the extent Consolidated Fixed
Charges are to be determined for any Test Period which ends prior to the first
anniversary of the Third Restatement Effective Date, Consolidated Fixed Charges
for all portions of such period occurring prior to the Third Restatement
Effective Date shall be calculated in accordance with the definition of Test
Period contained herein.
"Consolidated Interest Coverage Ratio" for any period shall mean the
ratio of Consolidated EBITDA (determined after giving effect to the proviso to
the definition thereof) to Consolidated Interest Expense for such period.
Subject to the definition of Test Period, all calculations of the Consolidated
Interest Coverage Ratio shall be made on a Pro Forma Basis, with determinations
--- -----
of the Consolidated Interest Coverage Ratio to give effect to all adjustments
(including, without limitation, those specified in clause (v)) contained in the
definition of "Pro Forma Basis" contained herein.
--- -----
"Consolidated Interest Expense" shall mean, for any period, the total
consolidated interest expense of the Borrower and its Subsidiaries for such
period (calculated without regard to any limitations on the payment thereof)
plus, without duplication, (i) that portion of Capitalized Lease Obligations of
- ----
the Borrower and its Subsidiaries representing the interest factor for such
period, and capitalized interest expense, plus (ii) the product of (x) the
----
amount of
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all cash Dividend requirements (whether or not declared or paid) on Disqualified
Preferred Stock of the Borrower and on any Preferred Stock of any of its
Subsidiaries paid, accrued or scheduled to paid or accrued during such period
multiplied by (y) a fraction, the numerator of which is one and the denominator
of which is one minus the then current effective consolidated Federal, state,
local and foreign tax rate (expressed as a decimal number between one and zero)
of the Borrower as reflected in the audited consolidated financial statements of
the Borrower for its most recently completed fiscal year, which amounts
described in preceding clause (ii) shall be treated as interest expense of the
Borrower and its Subsidiaries for purposes of this definition regardless of the
treatment of such amounts under GAAP, in each case net of the total consolidated
cash interest income of the Borrower and its Subsidiaries for such period, but
excluding the amortization of any deferred financing costs or of any costs in
respect of any Interest Rate Protection Agreement. Notwithstanding anything to
the contrary contained above, to the extent Consolidated Interest Expense is to
be determined for any Test Period which ends prior to the first anniversary of
the Third Restatement Effective Date, Consolidated Interest Expense for all
portions of such period occurring prior to the Third Restatement Effective Date
shall be calculated in accordance with the definition of Test Period contained
herein.
"Consolidated Net Income" shall mean, for any period, the net after
tax income of the Borrower and its Subsidiaries determined on a consolidated
basis, without giving effect to any extraordinary or non-recurring gains or
losses to the extent not related to the continuing operations of the Borrower
and its Subsidiaries, any other non-cash expenses incurred or payments made in
connection with the Original Transaction, the MTI Transaction, the ASHS
Transaction and the Transaction, and without giving effect to gains and losses
from the sale or disposition of assets (other than sales or dispositions of
inventory, equipment, raw materials and supplies in the ordinary course of
business) by the Borrower and its Subsidiaries; provided that the following
--------
items shall be excluded in computing Consolidated Net Income (without
duplication): (i) the net income or net losses of any Person in which any Person
or Persons other than the Borrower and its Wholly-Owned Subsidiaries has an
equity interest or interests, to the extent of such equity interests held by
Persons other than the Borrower and its Wholly-Owned Subsidiaries in such
Person, (ii) except for determinations expressly required to be made on a Pro
---
Forma Basis, the net income (or loss) of any Person accrued prior to the date it
- -----
becomes a Wholly-Owned Subsidiary or all or substantially all of the property or
assets of such Person are acquired by a Wholly-Owned Subsidiary and (iii) the
net income of any Subsidiary to the extent that the declaration or payment of
dividends or similar distributions by such Subsidiary of such net income is not
at the time permitted by the operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to such Subsidiary.
"Consolidated Senior Debt" shall mean at any time (x) Consolidated
Debt less (y) the sum of (i) the aggregate outstanding principal amount of the
Senior Subordinated Notes at such time, (ii) the aggregate principal amount of
all other subordinated debt incurred pursuant to Sections 9.04(f), (j) and (k)
and outstanding at such time and otherwise included in Consolidated Debt and
(iii) the aggregate liquidation preference of all Disqualified Preferred Stock
issued pursuant to Section 9.13(c) and otherwise included in Consolidated Debt.
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"Consolidated Subsidiary" shall mean each Subsidiary of the Borrower
the financial results of which are consolidated with those of the Borrower, in
accordance with GAAP, for financial reporting purposes.
"Contingent Obligations" shall mean as to any Person any obligation of
such Person guaranteeing or intended to guarantee any Indebtedness, leases,
dividends or other obligations ("primary obligations") of any other Person (the
"primary obligor") in any manner, whether directly or indirectly, including,
without limitation, any obligation of such Person, whether or not contingent,
(a) to purchase any such primary obligation or any property constituting direct
or indirect security therefor, (b) to advance or supply funds (x) for the
purchase or payment of any such primary obligation or (y) to maintain working
capital or equity capital of the primary obligor or otherwise to maintain the
net worth or solvency of the primary obligor, (c) to purchase property,
securities or services primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor to make payment of
such primary obligation or (d) otherwise to assure or hold harmless the owner of
such primary obligation against loss in respect thereof; provided, however, that
-------- -------
the term Contingent Obligation shall not include endorsements of instruments for
deposit or collection or standard contractual indemnities entered into, in each
case in the ordinary course of business. The amount of any Contingent
Obligation shall be deemed to be an amount equal to the stated or determinable
amount of the primary obligation in respect of which such Contingent Obligation
is made or, if not 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.
"Continuing Directors" shall mean the directors of the Borrower on the
Original Effective Date and each other director if such director's nomination
for the election to the Board of Directors of the Borrower is recommended by a
majority of the then Continuing Directors.
"Credit Documents" shall mean this Agreement, the Notes, the
Subsidiaries Guaranty and each Security Document.
"Credit Event" shall mean the making of a Loan (other than a Revolving
Loan made pursuant to a Mandatory Borrowing) or the issuance of a Letter of
Credit.
"Credit Party" shall mean the Borrower and each Subsidiary Guarantor.
"CT Sub" shall mean CuraCare, Inc., a Delaware corporation and, prior
to the ASHS Acquisition Date, a Wholly-Owned Subsidiary of ASHS.
"Default" shall mean any event, act or condition which with notice or
lapse of time, or both, would constitute an Event of Default.
"Defaulting Bank" shall mean any Bank with respect to which a Bank
Default is in effect.
"Disqualified Preferred Stock" shall mean any Preferred Stock of the
Borrower other than (x) Qualified Preferred Stock and (y) at any time prior to
the PIK Trigger Date, PIK Preferred Stock. Notwithstanding anything to the
contrary contained above in this definition,
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PIK Preferred Stock shall be deemed to be Disqualified Preferred Stock for all
purposes of this Agreement (other than for purposes of Section 9.04(j) and
9.13(c)) at all times on and after the PIK Trigger Date.
"Dividend" shall have the meaning provided in Section 9.06.
"Documents" shall mean and include (i) the Credit Documents, (ii) the
Original Transaction Documents, (iii) the MTI Transaction Documents, (iv) the
ASHS Acquisition Documents, (v) the ASHS Acquired Subsidiaries Refinancing
Documents, (vi) the SMT Merger Documents, (vii) the SMT Refinancing Documents
and (viii) all other documents, agreements and instruments executed in
connection with the Transaction.
"Domestic Subsidiary" shall mean each Subsidiary of the Borrower
incorporated or organized in the United States or any State or territory
thereof.
"Effective Date" shall mean the Original Effective Date.
"Eligible Transferee" shall mean and include a commercial bank, mutual
fund, financial institution, a "qualified institutional buyer" (as defined in
Rule 144A of the Securities Act), any fund that invests in bank loans or any
other "accredited investor" (as defined in Regulation D of the Securities Act)
(other than an individual).
"Embarcadero I" shall mean Embarcadero Holding Corp. I, a Delaware
corporation and a Wholly-Owned Subsidiary of the Borrower on the Second
Restatement Effective Date.
"Embarcadero II" shall mean Embarcadero Holding Corp. II, a Delaware
corporation and a Wholly-Owned Subsidiary of the Borrower on the Second
Restatement Effective Date.
"Employee Benefit Plans" shall have the meaning set forth in Section
5.13.
"Employment Agreements" shall have the meaning set forth in Section
5.13.
"Environmental Claims" shall mean any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, claims, liens,
notices of non-compliance or violation, investigations or proceedings relating
in any way to any violation (or alleged violation) by the Borrower or any of its
Subsidiaries under any Environmental Law (hereafter "Claims") or any permit
issued to the Borrower or any of its Subsidiaries under any such law, including,
without limitation, (a) any and all Claims by governmental or regulatory
authorities for enforcement, cleanup, removal, response, remedial or other
actions or damages pursuant to any applicable Environmental Law, and (b) any and
all Claims by any third party seeking damages, contribution, indemnification,
cost recovery, compensation or injunctive relief resulting from Hazardous
Materials or arising from alleged injury or threat of injury to health, safety
or the environment.
"Environmental Law" shall mean any federal, state or local policy,
statute, law, rule, regulation, ordinance, code or rule of common law now or
hereafter in effect and in each
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case as amended, and any judicial or administrative interpretation thereof,
including any judicial or administrative order, consent, decree or judgment (for
purposes of this definition (collectively, "Laws")), relating to the
environment, or Hazardous Materials or health and safety to the extent such
health and safety issues arise under the Occupational Safety and Health Act of
1970, as amended, or any such similar Laws.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and rulings
issued thereunder. Section references to ERISA are to ERISA, as in effect at
the date of this Agreement and any subsequent provisions of ERISA, amendatory
thereof, supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean each person (as defined in Section 3(9)
of ERISA) which together with the Borrower or a Subsidiary of the Borrower would
be deemed to be a "single employer" (i) within the meaning of Section 414(b),
(c), (m) or (o) of the Code or (ii) as a result of the Borrower or a Subsidiary
of the Borrower being or having been a general partner of such person.
"Eurodollar Loans" shall mean each Loan bearing interest at the rates
provided in Section 1.08(b).
"Eurodollar Rate" shall mean with respect to each Interest Period for
a Eurodollar Loan, (i) the arithmetic average (rounded to the nearest 1/100 of
1%) of the offered quotation to first-class banks in the interbank Eurodollar
market by BTCo for U.S. Dollar deposits of amounts in same day funds comparable
to the outstanding principal amount of the Eurodollar Loan of BTCo for which an
interest rate is then being determined with maturities comparable to the
Interest Period to be applicable to such Eurodollar Loan, determined as of 10:00
A.M. (New York time) on the date which is two Business Days prior to the
commencement of such Interest Period divided (and rounded upward to the next
whole multiple of 1/16 of 1%) by (ii) a percentage equal to 100% minus the then
stated maximum rate of all reserve requirements (including, without limitation,
any marginal, emergency, supplemental, special or other reserves) applicable to
any member bank of the Federal Reserve System in respect of Eurocurrency
liabilities as defined in Regulation D (or any successor category of liabilities
under Regulation D).
"Event of Default" shall have the meaning provided in Section 10.
"Excess Cash Flow" shall mean, for any period, the remainder of (a)
the sum of (i) Adjusted Consolidated Net Income for such period, (ii) without
duplication of amounts already included in Adjusted Consolidated Net Income, the
Total Non-Consolidated Joint Venture EBITDA for such period and (iii) the
decrease, if any, in Adjusted Consolidated Working Capital from the first day to
the last day of such period, minus (b) the sum of (i) the amount of Capital
-----
Expenditures made by the Borrower and its Subsidiaries on a consolidated basis
during such period, except to the extent financed with the proceeds of
Indebtedness (other than the proceeds of Loans) or pursuant to Capitalized Lease
Obligations or with proceeds of asset sales, asset trade-ins or insurance, (ii)
the aggregate amount of permanent principal payments of Indebtedness for
borrowed money of the Borrower and its Subsidiaries and the permanent repay-
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ment of the principal component of Capitalized Lease Obligations of the Borrower
and its Subsidiaries (excluding (1) payments pursuant to the Original
Refinancing, the MTI Refinancing, the ASHS Acquired Subsidiaries Refinancing and
the SMT Refinancing, (2) payments with proceeds of asset sales, (3) payments
with the proceeds of Indebtedness or equity and (4) payments of Loans or other
Obligations) during such period, (iii) the increase, if any, in Adjusted
Consolidated Working Capital from the first day to the last day of such period
and (iv) without duplication of amounts deducted in the preceding clauses
(b)(i), (ii) and (iii), the amount of cash expended in respect of Permitted
Acquisitions during such period, except to the extent financed with
Indebtedness.
"Excess Cash Flow Payment Date" shall mean the date occurring 120 days
after the last day of a fiscal year of the Borrower (commencing with the fiscal
year ending on December 31, 1998).
"Excess Cash Flow Payment Period" shall mean, with respect to the
repayment required on each Excess Cash Flow Payment Date, the immediately
preceding fiscal year of the Borrower.
"Excluded Subsidiary" shall mean and include Epic/Alliance of Texas
Inc., Alliance Resonancia Magnetica S.A. de C.V., MTHS Corporation and Mobile
Technology-Canada, Inc.
"Existing Bank" shall mean each Person which was a Bank under, and as
defined in, the Second Amended and Restated Credit Agreement.
"Existing Indebtedness" shall have the meaning provided in Section
5.10.
"Existing Indebtedness Agreements" shall have the meaning provided in
Section 5.13.
"Existing Letter of Credit" shall have the meaning provided in Section
2.01(e).
"Existing RL Bank" shall mean each Bank under, and as defined in, the
Second Amended and Restated Credit Agreement with outstanding Existing Revolving
Loans on the Third Restatement Effective Date (immediately prior to giving
effect thereto).
"Existing Revolving Loans" shall mean the "Revolving Loans" under, and
as defined in, the Second Amended and Restated Credit Agreement.
"Existing SMT Credit Agreement" shall mean the Credit Agreement, dated
as of August 5, 1997, among Three Rivers Holding Corp., SMT, various lending
institutions and Bankers Trust Company, as Agent, as in effect on the Third
Restatement Effective Date.
"Existing Tranche A Term Loan Bank" shall mean each Bank under, and as
defined in, the Second Amended and Restated Credit Agreement with outstanding
Existing Tranche A Term Loans on the Third Restatement Effective Date
(immediately prior to giving effect thereto).
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"Existing Tranche A Term Loans" shall mean the "Tranche A Term Loans"
under, and as defined in, the Second Amended and Restated Credit Agreement.
"Existing Tranche B Term Loan Bank" shall mean each Bank under, and as
defined in, the Second Amended and Restated Credit Agreement with outstanding
Existing Tranche B Term Loans on the Third Restatement Effective Date
(immediately prior to giving effect thereto).
"Existing Tranche B Term Loans" shall mean the "Tranche B Term Loans"
under, and as defined in, the Second Amended and Restated Credit Agreement.
"Existing Tranche C Term Loan Bank" shall mean each Bank under, and as
defined in, the Second Amended and Restated Credit Agreement with outstanding
Existing Tranche C Term Loans on the Third Restatement Effective Date
(immediately prior to giving effect thereto).
"Existing Tranche C Term Loans" shall mean the "Tranche C Term Loans"
under, and as defined in, the Second Amended and Restated Credit Agreement.
"Facing Fee" shall have the meaning provided in Section 3.01(c).
"Federal Funds Rate" shall mean, for any period, a fluctuating
interest rate equal for each day during such period to the weighted average of
the rates on overnight Federal Funds transactions with members of the Federal
Reserve System arranged by Federal Funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three Federal Funds
brokers of recognized standing selected by the Administrative Agent.
"Fees" shall mean all amounts payable pursuant to, or referred to in,
Section 3.01.
"First Amended and Restated Credit Agreement" shall mean the Credit
Agreement, dated as of December 18, 1997 and amended and restated as of March
12, 1998, among the Borrower, certain lenders and Bankers Trust Company, as
Administrative Agent, as in effect on the Second Restatement Effective Date
(immediately prior to giving effect thereto).
"First Restatement Effective Date" shall mean the Restatement
Effective Date under, and as defined in, the First Amended and Restated Credit
Agreement.
"Foreign Subsidiary" shall mean each Subsidiary of the Borrower other
than a Domestic Subsidiary.
"GAAP" shall mean generally accepted accounting principles in the
United States of America as in effect from time to time; it being understood and
agreed that determinations in accordance with GAAP for purposes of Section 9,
including defined terms as used therein, are subject (to the extent provided
therein) to Section 13.07(a).
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"Hazardous Materials" shall mean (a) any petrochemical or petroleum
products, radioactive materials, asbestos in any form that is or could become
friable, urea formaldehyde foam insulation, transformers or other equipment that
contain dielectric fluid containing levels of polychlorinated biphenyls, and
radon gas; and (b) any chemicals, materials or substances defined as or included
in the definition of "hazardous substances", "hazardous wastes", "hazardous
materials", "restricted hazardous materials", "extremely hazardous wastes",
"restrictive hazardous wastes", "toxic substances", "toxic pollutants",
"contaminants" or "pollutants", or words of similar meaning and regulatory
effect.
"Healthcare Unit" shall mean any of the following: (i) a magnetic
resonance imaging machine, (ii) a computer assisted tomography machine (CAT
Scanner), (iii) a SPECT machine, (iv) a lithotripsy machine and (v) any other
capital-intensive healthcare or diagnostic device used in connection with a
Permitted Business, together with any computer and all attachments, software and
related equipment (including any related vehicles, buildings or leasehold
improvements) required in connection with the operation, transport, housing or
storage of any of the foregoing.
"Healthcare Unit Replacement" shall mean the exchange, sale or other
disposition of a Healthcare Unit, which, in the reasonable opinion of the
Borrower, is obsolete, uneconomic, or no longer useful in the conduct of the
Borrower's or any of its Subsidiaries' business or otherwise requires upgrading,
the purpose of which exchange, sale or other disposition is to acquire (and has
resulted within 180 days prior to such exchange, sale or disposition, or will
result within 180 days following such exchange, sale or disposition, in the
acquisition of) a replacement Healthcare Unit.
"Indebtedness" of any Person shall mean, without duplication, (i) all
indebtedness of such Person for borrowed money, (ii) the deferred purchase price
of assets or services payable to the sellers thereof or any of such seller's
assignees which in accordance with GAAP would be shown on the liability side of
the balance sheet of such Person but excluding deferred rent as determined in
accordance with GAAP, (iii) the face amount of all letters of credit issued for
the account of such Person and, without duplication, all drafts drawn
thereunder, (iv) all Indebtedness of a second Person secured by any Lien on any
property owned by such first Person, whether or not such Indebtedness has been
assumed, (v) all Capitalized Lease Obligations of such Person, (vi) all
obligations of such Person to pay a specified purchase price for goods or
services whether or not delivered or accepted, i.e., take-or-pay and similar
----
obligations, (vii) all obligations under Interest Rate Protection Agreements and
Other Hedging Agreements and (viii) all Contingent Obligations of such Person,
provided that Indebtedness shall not include trade payables and accrued
- --------
expenses, in each case arising in the ordinary course of business.
"Information Systems and Equipment" shall mean all computer hardware,
firmware and software, as well as other information processing systems, or any
equipment containing embedded microchips, whether directly owned, licensed,
leased, operated or otherwise controlled by the Borrower or any of its
Subsidiaries, including through third-party service providers, and which, in
whole or in part, are used, operated, relied upon, or integral to, the
Borrower's or any of its Subsidiaries' conduct of their respective businesses.
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"Intercompany Loan" shall have the meaning provided in Section
9.05(f).
"Intercompany Notes" shall mean promissory notes, in the form of
Exhibit M, evidencing Intercompany Loans.
"Interest Determination Date" shall mean, with respect to any
Eurodollar Loan, the second Business Day prior to the commencement of any
Interest Period relating to such Eurodollar Loan.
"Interest Period", with respect to any Eurodollar Loan, shall mean the
interest period applicable thereto, as determined pursuant to Section 1.09.
"Interest Rate Protection Agreement" shall mean any interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement, interest
rate hedging agreement or other similar agreement or arrangement.
"Interest Reduction Discount" shall mean zero; provided, that from and
--------
after the first day of any Margin Reduction Period (the "Start Date") occurring
after the last day of the first fiscal quarter of the Borrower ended after the
Original Effective Date to and including the last day of such Margin Reduction
Period (the "End Date"), the Interest Reduction Discount shall be (1) for all
purposes of determining interest with respect to Revolving Loans and Swingline
Loans, the respective percentage per annum set forth in clause (A), (B), (C),
(D), (E) or (F) below if, but only if, as of the last day of the most recent
fiscal quarter or year, as the case may be, of the Borrower ended immediately
prior to such Start Date (the "Test Date") the conditions in clause (A), (B),
(C), (D), (E) or (F) below are met:
(A) 1/4 of 1% if, but only if, as of the Test Date for such Start
Date the Total Leverage Ratio for the Test Period ended on such Test Date shall
be less than 4.50:1.00 and the conditions set forth in none of clauses (B), (C),
(D), (E) and (F) below are satisfied;
(B) 3/8 of 1% if, but only if, as of the Test Date for such Start
Date the Total Leverage Ratio for the Test Period ended on such Test Date shall
be less than 4.25:1.00 and the conditions set forth in none of clauses (C), (D),
(E) and (F) below are satisfied;
(C) 1/2 of 1% if, but only if, as of the Test Date for such Start
Date the Total Leverage Ratio for the Test Period ended on such Test Date shall
be less than 4.00:1.00 and the conditions set forth in none of clauses (D), (E)
and (F) below are satisfied;
(D) 3/4 of 1% if, but only if, as of the Test Date for such Start
Date the Total Leverage Ratio for the Test Period ended on such Test Date shall
be less than 3.50:1.00 and the conditions set forth in neither clause (E) nor
(F) below are satisfied;
(E) 1% if, but only if, as of the Test Date for such Start Date the
Total Leverage Ratio for the Test Period ended on such Test Date shall be less
than 3.00:1.00 and the conditions set forth in clause (F) below are not
satisfied; or
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(F) 1-1/4% if, but only if, as of the Test Date for such Start Date
the Total Leverage Ratio for the Test Period ended on such Test Date shall be
less than or equal to 2.50:1.00,
or (2) for all purposes of determining interest with respect to Tranche A Term
Loans, Tranche B Term Loans and Tranche C Term Loans, 1/4 of 1% if, but only if,
as of the Test Date most recently ended prior to such Start Date, the Total
Leverage Ratio for the Test Period ended on such Test Date shall be less than
4.00:1.00.
The Total Leverage Ratio shall be determined for the relevant Test Period, in
each case taken as one accounting period, by delivery of an officer's
certificate of the Borrower to the Banks pursuant to Section 8.01(e), which
certificate shall set forth the calculation of the Total Leverage Ratio and the
Interest Reduction Discount which shall thereafter be applicable (until the same
is changed or ceases to apply in accordance with the following sentences). The
Interest Reduction Discount as so determined shall apply, except as set forth
below, from the date on which such officer's certificate is delivered to the
Administrative Agent to the earlier of (x) the date on which the next
certificate is delivered to the Administrative Agent pursuant to Section 8.01(e)
and (y) the 45th day following the first day of the fiscal quarter immediately
following the delivery of such certificate to the Administrative Agent (or the
90th day, if such fiscal quarter is the first fiscal quarter of any fiscal year
of the Borrower). Notwithstanding anything to the contrary contained above in
this definition (and subject to the following sentence), the Interest Reduction
Discount for the purposes of determining interest with respect to all Loans for
the period from the Third Restatement Effective Date to but excluding the date
of delivery (or required delivery) of the first set of financial statements
pursuant to Section 8.01(b) after the Third Restatement Effective Date shall be
deemed to be 1/4 of 1%. Notwithstanding anything to the contrary contained
above, the Interest Reduction Discount shall be zero (i) if no officer's
certificate has been delivered by the Borrower to the Banks pursuant to Section
8.01(e) which sets forth the Total Leverage Ratio for the relevant Test Period
or the financial statements upon which any such calculations are based have not
been delivered pursuant to Section 8.01(b) or (c), as applicable, until such a
certificate and/or financial statements are delivered and (ii) at all times when
there shall exist a Default or Event of Default. It is understood and agreed
that the Interest Reduction Discount as provided above shall in no event be
cumulative and only the Interest Reduction Discount available pursuant to (x) in
the case of Revolving Loans and Swingline Loans, clause (1)(A), (B), (C), (D),
(E), or (F) if any, contained in this definition shall be applicable or (y) in
the case of Term Loans (other than Tranche D Term Loans), clause (2) contained
in this definition shall be applicable.
"Investment" shall have the meaning provided in the preamble to
Section 9.05.
"Joint Venture" shall mean any Person, other than an individual or a
Wholly-Owned Subsidiary of the Borrower, (i) in which the Borrower or a
Subsidiary of the Borrower holds or acquires an ownership interest (whether by
way of capital stock, partnership or limited liability company interest, or
other evidence of ownership) and (ii) which is engaged in a Permitted Business.
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"L/C Supportable Indebtedness" shall mean (i) obligations of the
Borrower or its Wholly-Owned Subsidiaries incurred in the ordinary course of
business with respect to insurance obligations and workers' compensation, surety
bonds and other similar statutory obligations and (ii) such other obligations of
the Borrower or any of its Wholly-Owned Subsidiaries as are reasonably
acceptable to the Administrative Agent and the Letter of Credit Issuer and
otherwise permitted to exist pursuant to the terms of this Agreement.
"Leasehold" of any Person shall mean all of the right, title and
interest of such Person as lessee or licensee in, to and under leases or
licenses of land, improvements and/or fixtures.
"Letter of Credit" shall have the meaning provided in Section 2.01(a).
"Letter of Credit Fees" shall have the meaning provided in Section
3.01(b).
"Letter of Credit Issuer" shall mean BTCo and any other Bank which, at
the request of the Borrower and with the consent of the Administrative Agent,
agrees in such Bank's sole discretion to become a Letter of Credit Issuer for
purposes of issuing Letters of Credit pursuant to Section 2. The sole Letter of
Credit Issuer on the Third Restatement Effective Date is BTCo.
"Letter of Credit Outstandings" shall mean, at any time, the sum of,
without duplication, (i) the aggregate Stated Amount of all outstanding Letters
of Credit and (ii) the aggregate amount of all Unpaid Drawings in respect of all
Letters of Credit.
"Letter of Credit Request" shall have the meaning provided in Section
2.02(a).
"Lien" shall mean any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any agreement to give any of
the foregoing, any conditional sale or other title retention agreement, any
financing or similar statement or notice filed under the UCC or any similar
recording or notice statute, and any lease having substantially the same effect
as the foregoing).
"Loan" shall mean each Tranche A Term Loan, each Tranche B Term Loan,
each Tranche C Term Loan, each Tranche D Term Loan, each Revolving Loan and each
Swingline Loan.
"Management Agreements" shall have the meaning provided in Section
5.13.
"Management Participants" shall mean certain members of management of
the Borrower previously identified and satisfactory to the Administrative Agent.
"Mandatory Borrowing" shall have the meaning provided in Section
1.01(d).
"Margin Reduction Period" shall mean each period which shall commence
on a date on which the financial statements are delivered pursuant to Section
8.01(b) or (c), as the case may be, and which shall end on the earlier of (i)
the date of actual delivery of the next
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financial statements pursuant to Section 8.01(b) or (c), as the case may be, and
(ii) the latest date on which the next financial statements are required to be
delivered pursuant to Section 8.01(b) or (c), as the case may be, it being
understood that the first Margin Reduction Period shall commence on the date of
delivery of the first set of financial statements pursuant to Section 8.01(b)
after the Third Restatement Effective Date.
"Margin Stock" shall have the meaning provided in Regulation U.
"Material Adverse Effect" shall mean (i) a material adverse effect on
the business, properties, assets, liabilities, condition (financial or
otherwise) or prospects of the Borrower or the Borrower and its Subsidiaries
taken as a whole and (ii) in the case of any condition precedent or
representation or warranty to be satisfied or made, as the case may be, herein
or in any other Credit Document on the Third Restatement Effective Date, SMT and
its Subsidiaries.
"Material Contracts" shall have the meaning provided in Section 5.13.
"Maturity Date", with respect to any Tranche of Loans, shall mean the
Tranche A Term Loan Maturity Date, the Tranche B Term Loan Maturity Date, the
Tranche C Term Loan Maturity Date, the Tranche D Term Loan Maturity Date, or the
Revolving Loan Maturity Date, as the case may be.
"Maximum Permitted Acquisition Leverage Ratio" shall mean, at any
time, the maximum Adjusted Total Leverage Ratio which may exist pursuant to
Section 9.11 without giving rise to a Default or Event of Default at such time,
adjusted by reducing the ratio appearing in such maximum Adjusted Total Leverage
Ratio by 0.25.
"Maximum Swingline Amount" shall mean $2,500,000.
"Minimum Borrowing Amount" shall mean (i) for Revolving Loans,
$1,000,000, (ii) for Term Loans, $5,000,000, and (iii) for Swingline Loans,
$500,000.
"Moody's" shall mean Moody's Investors Service, Inc.
"MMRI" shall mean MMRI, Inc., a California corporation and a Wholly-
Owned Subsidiary of ASHS.
"M Partnership" shall mean American Shared-CuraCare, a California
general partnership and, prior to the ASHS Acquisition Date, a Wholly-Owned
Subsidiary of MMRI.
"MTI" shall mean Mobile Technology Inc., a Delaware corporation.
"MTI Refinancing" shall have the meaning provided in the First Amended
and Restated Credit Agreement.
"MTI Transaction" shall mean the "Transaction", as defined in the
First Amended and Restated Credit Agreement.
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"MTI Transaction Documents" shall mean the Documents under, and as
defined in, the First Amended and Restated Credit Agreement.
"Net Cash Proceeds" shall mean for any event requiring a reduction of
the Total Revolving Loan Commitment and/or repayment of Term Loans pursuant to
Section 3.03 or 4.02, as the case may be, the gross cash proceeds (including any
cash received by way of deferred payment pursuant to a promissory note,
receivable or otherwise, but only as and when received) received from such
event, net of reasonable transaction costs (including, as applicable, any
underwriting, brokerage or other customary commissions and reasonable legal,
advisory and other fees and expenses associated therewith) received from any
such event.
"Net Sale Proceeds" shall mean for any sale of assets, the gross cash
proceeds (including any cash received by way of deferred payment pursuant to a
promissory note, receivable or otherwise, but only as and when received)
received from any sale of assets, net of (i) reasonable transaction costs
(including, without limitation, any underwriting, brokerage or other customary
selling commissions and reasonable legal, advisory and other fees and expenses,
including title and recording expenses, associated therewith) and payments of
unassumed liabilities relating to the assets sold at the time of, or within 30
days after, the date of such sale, (ii) the amount of such gross cash proceeds
required to be used to repay any Indebtedness (other than Indebtedness of the
Banks pursuant to this Agreement) which is secured by the respective assets
which were sold, and (iii) the estimated marginal increase in income taxes which
will be payable by the Borrower's consolidated group with respect to the fiscal
year in which the sale occurs as a result of such sale; provided, however, that
-------- -------
such gross proceeds shall not include any portion of such gross cash proceeds
which the Borrower determines in good faith should be reserved for post-closing
adjustments (including indemnification payments) (to the extent the Borrower
delivers to the Banks a certificate signed by its chief financial officer or
treasurer, controller or chief accounting officer as to such determination), it
being understood and agreed that on the day that all such post-closing
adjustments have been determined (which shall not be later than six months
following the date of the respective asset sale), the amount (if any) by which
the reserved amount in respect of such sale or disposition exceeds the actual
post-closing adjustments payable by the Borrower or any of its Subsidiaries
shall constitute Net Sale Proceeds on such date received by the Borrower and/or
any of its Subsidiaries from such sale, lease, transfer or other disposition.
The parties hereto acknowledge and agree that Net Sale Proceeds shall not
include any trade-in-credits or purchase price reductions received by the
Borrower or any of its Subsidiaries in connection with an exchange of equipment
for replacement equipment that is the functional equivalent of such exchanged
equipment.
"New Bank" shall mean each Person listed on Schedule I that is not an
Existing Bank.
"New Credit Party" shall mean each Credit Party that was not a Credit
Party (as defined in the Second Amended and Restated Credit Agreement) on the
Second Restatement Effective Date.
"New Pro Forma Balance Sheet" shall have the meaning provided in
--- -----
Section 5.16.
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"Non-Consolidated Joint Venture" shall mean any Joint Venture which is
not a Consolidated Subsidiary of the Borrower.
"Non-Consolidated Joint Venture Debt" shall mean, for each Non-
Consolidated Joint Venture at any time, the Proportionate Share of the increase
(or decrease) to Consolidated Debt at such time which would have resulted if the
respective Joint Venture had instead been a Wholly-Owned Subsidiary of the
Borrower at such time.
"Non-Consolidated Joint Venture EBITDA" shall mean, for each Non-
Consolidated Joint Venture for any period, the Proportionate Share of the
increase (or decrease) to Consolidated EBITDA for such period which would have
occurred if the respective Joint Venture had instead been a Wholly-Owned
Subsidiary of the Borrower during such period (or, if shorter, that portion of
such period during which the respective Non-Consolidated Joint Venture was a
Non-Consolidated Joint Venture). Notwithstanding anything to the contrary
contained above, for purposes of any determination of Non-Consolidated Joint
Venture EBITDA used in a computation of Total Non-Consolidated Joint Venture
EBITDA for purposes of the definition of Excess Cash Flow, (A) if Non-
Consolidated Joint Venture EBITDA for the respective period, as determined
pursuant to the immediately preceding sentence, is positive, the amount thereof
for such purposes shall be limited to the lesser of (x) the amount determined
pursuant to the immediately preceding sentence and (y) the amount of cash
actually distributed during the respective period by such Non-Consolidated Joint
Venture to the Borrower or its Wholly-Owned Subsidiaries and (B) if Non-
Consolidated Joint Venture EBITDA for the respective period is negative, such
negative amount shall be included for such purposes, but only to the extent the
aggregate of all negative amounts so included (for the respective period and all
prior periods occurring after the Original Effective Date) does not exceed the
aggregate amount theretofore invested by the Borrower and its Subsidiaries in
the respective Non-Consolidated Joint Venture; provided that preceding clause
--------
(B) shall not be applicable to any Non-Consolidated Joint Venture acquired
pursuant to a Permitted Acquisition.
"Non-Defaulting Bank" shall mean each Bank other than a Defaulting
Bank.
"Non-Subsidiary Joint Venture" shall mean each Joint Venture which is
not a Subsidiary of the Borrower.
"Non-Wholly Owned Entity" shall have the meaning provided in the
definition of Permitted Acquisition.
"Note" shall mean each Tranche A Term Note, each Tranche B Term Note,
each Tranche C Term Note, each Tranche D Term Note, each Revolving Note and the
Swingline Note.
"Notice of Borrowing" shall have the meaning provided in Section
1.03(a).
"Notice of Conversion" shall have the meaning provided in Section
1.06.
"Notice Office" shall mean the office of the Administrative Agent
located at One Bankers Trust Plaza, New York, New York 10006 or such other
office as the Administrative Agent may designate to the Borrower and the Banks
from time to time.
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"Obligations" shall mean all amounts, direct or indirect, contingent
or absolute, of every type or description, and at any time existing, owing to
either Agent, the Collateral Agent or any Bank pursuant to the terms of this
Agreement or any other Credit Document.
"Original Credit Agreement" shall mean the Credit Agreement, dated as
of December 18, 1997, among the Borrower, certain lenders and Bankers Trust
Company, as Agent, as in effect on the First Restatement Effective Date
(immediately prior to giving effect thereto).
"Original Effective Date" shall mean the Effective Date under, and as
defined in, the Original Credit Agreement.
"Original Pro Forma Balance Sheet" shall mean the ASHS Acquisition Pro
--- ----- ---
Forma Balance Sheet, as defined in the Second Amended and Restated Credit
- -----
Agreement.
"Original Refinancing" shall mean the "Refinancing", as defined in the
Original Credit Agreement.
"Original Transaction" shall mean the "Transaction", as defined in the
Original Credit Agreement.
"Original Transaction Documents" shall mean the Documents under, and
as defined in, the Original Credit Agreement.
"Other Hedging Agreements" shall mean any foreign exchange contracts,
currency swap agreements or other similar agreements or arrangements designed to
protect against fluctuations in currency values.
"Participant" shall have the meaning provided in Section 2.03(a).
"Payment Office" shall mean the office of the Administrative Agent
located at One Bankers Trust Plaza, New York, New York 10006 or such other
office as the Administrative Agent may designate to the Borrower and the Banks
from time to time.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to Section 4002 of ERISA, or any successor thereto.
"Permitted Acquired Debt" shall have the meaning set forth in Section
9.04(d).
"Permitted Acquisition" shall mean the acquisition by the Borrower or
any of its Wholly-Owned Domestic Subsidiaries of assets constituting a business,
division or product line of any Person not already a Subsidiary of the Borrower
or any of its Wholly-Owned Subsidiaries or of 100% of the capital stock or other
equity interests of any such Person, which Person shall, as a result of such
acquisition, become a Wholly-Owned Domestic Subsidiary of the Borrower or such
Wholly-Owned Domestic Subsidiary, provided that (A) the consideration paid by
--------
the Borrower or such Wholly-Owned Domestic Subsidiary consists solely of cash
(including proceeds of Revolving Loans), the issuance of the Borrower Common
Stock, the issuance of any Qualified Preferred Stock or Disqualified Preferred
Stock otherwise permitted in Section 9.13,
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the issuance of Indebtedness otherwise permitted in Section 9.04 (including
Permitted Subordinated Indebtedness) and the assumption/acquisition of any
Permitted Acquired Debt (calculated in accordance with GAAP) relating to such
business, division, product line or Person which is permitted to remain
outstanding in accordance with the requirements of Section 9.04, (B) in the case
of the acquisition of 100% of the capital stock or other equity interests of any
Person, such Person (the "Acquired Person") shall own no capital stock or other
equity interests of any other Person unless either (x) the Acquired Person owns
100% of the capital stock or other equity interests of such other Person or (y)
if the Acquired Person owns capital stock or equity interests in any other
Person which is not a Wholly-Owned Subsidiary of the Acquired Person (a "Non-
Wholly Owned Entity"), (1) the Acquired Person shall not have been created or
established in contemplation of, or for purposes of, the respective Permitted
Acquisition and (2) any Non-Wholly Owned Entity of the Acquired Person shall
have been non-wholly-owned prior to the date of the respective Permitted
Acquisition and not created or established in contemplation thereof, (C)
substantially all of the business, division or product line acquired pursuant to
the respective Permitted Acquisition, or the business of the Acquired Person and
its Subsidiaries taken as a whole, is in the United States, (D) the assets
acquired, or the business of the Acquired Person, shall be in a Permitted
Business and (E) all applicable requirements of Sections 8.14 and 9.02
applicable to Permitted Acquisitions are satisfied. Notwithstanding anything to
the contrary contained in the immediately preceding sentence, an acquisition
which does not otherwise meet the requirements set forth above in the definition
of "Permitted Acquisition" shall constitute a Permitted Acquisition if, and to
the extent, the Required Banks agree in writing that such acquisition shall
constitute a Permitted Acquisition for purposes of this Agreement.
"Permitted Acquisition Additional Cost-Savings" shall mean, in
connection with each Permitted Acquisition, those demonstrable cost-savings
adjustments (in each case not included pursuant to clause (iii) or (iv) of the
definition of Pro Forma Basis contained herein) reasonably anticipated by the
--- -----
Borrower to be achieved in connection with such Permitted Acquisition for the 12
month period following the consummation of such Permitted Acquisition, which
cost-savings adjustments shall be estimated on a good faith basis by the
Borrower and, if requested by either Agent, be verified by a nationally
recognized accounting firm or as otherwise agreed to by such Agent.
"Permitted Business" shall mean the magnetic resonance imaging
business conducted by the Borrower and its Subsidiaries on the Third Restatement
Effective Date, any imaging or other healthcare services business, the provision
of equipment and services to hospitals and other healthcare providers and
reasonable extensions of the foregoing.
"Permitted Debt" shall mean and include Permitted Acquired Debt,
Permitted Subordinated Refinancing Indebtedness and Permitted Subordinated
Indebtedness.
"Permitted Encumbrances" shall mean (i) those liens, encumbrances and
other matters affecting title to any Real Property and found reasonably
acceptable by the Administrative Agent, (ii) as to any particular Real Property
at any time, such easements, encroachments, covenants, rights of way, minor
defects, irregularities or encumbrances on title which could reasonably be
expected to materially impair such Real Property for the purpose for which it is
held by the mortgagor thereof, or the lien held by the Collateral Agent, (iii)
zoning
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and other municipal ordinances which are not violated in any material respect by
the existing improvements and the present use made by the mortgagor thereof of
the premises, (iv) general real estate taxes and assessments not yet delinquent,
and (v) such other similar items as the Administrative Agent may consent to
(such consent not to be unreasonably withheld).
"Permitted Holders" shall mean Apollo Group and its Affiliates and the
Management Participants.
"Permitted Liens" shall have the meaning provided in Section 9.03.
"Permitted Sale-Leaseback Transaction" shall mean any sale by the
Borrower or any of its Subsidiaries of any Healthcare Unit first acquired by the
Borrower or such Subsidiary after the Original Effective Date which Healthcare
Unit is then leased back to the Borrower or such Subsidiary, provided that (i)
--------
the proceeds of the respective sale shall be entirely cash and in an amount at
least equal to 85% of the aggregate amount expended by the Borrower or such
Subsidiary in so acquiring such Healthcare Unit, (ii) such sale and leaseback
are effected within 90 days of the acquisition by the Borrower or such
Subsidiary of such Healthcare Unit, and (iii) the respective transaction is
otherwise effected in accordance with the applicable requirements of Section
9.02(k).
"Permitted Subordinated Indebtedness" shall mean subordinated
Indebtedness of the Borrower incurred in connection with a Permitted Acquisition
and in accordance with Section 8.14, which Permitted Subordinated Indebtedness
and all terms and conditions thereof (including, without limitation, the
maturity thereof, the interest rate applicable thereto, amortization, defaults,
remedies, voting rights, subordination provisions, etc.), and the documentation
therefor, shall be reasonably satisfactory to the Administrative Agent, provided
--------
that in any event, unless the Required Banks otherwise expressly consent in
writing prior to the incurrence thereof, (i) no such Indebtedness shall be
guaranteed by the Borrower or any of its Subsidiaries and (ii) no such
Indebtedness shall be secured by any asset of the Borrower or any of its
Subsidiaries. The incurrence of Permitted Subordinated Indebtedness shall be
deemed to be a representation and warranty by the Borrower that all conditions
thereto have been satisfied in all material respects and that same is permitted
in accordance with the terms of this Agreement, which representation and
warranty shall be deemed to be a representation and warranty for all purposes
hereunder, including, without limitation, Sections 6 and 10.
"Permitted Subordinated Refinancing Indebtedness" shall mean
Indebtedness of the Borrower issued or given in exchange for, or the proceeds of
which are used to refinance, the Senior Subordinated Notes, so long as (a) such
Indebtedness has a weighted average life to maturity greater than or equal to
the weighted average life to maturity of the Senior Subordinated Notes, (b) such
refinancing does not (i) increase the amount of such Indebtedness outstanding
immediately prior to such refinancing or (ii) add guarantors, obligors or
security from that which applied to the Senior Subordinated Notes, (c) such
Indebtedness has substantially the same (or, from the perspective of the Banks,
more favorable) subordination provisions as those contained in the Senior
Subordinated Notes Documents, and (d) all other terms of such refinancing
(including, without limitation, with respect to the amortization schedules,
redemption provisions,
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maturities, covenants, defaults and remedies), are not, taken as a whole,
materially less favorable to the Borrower than those previously existing with
respect to the Senior Subordinated Notes.
"Person" shall mean any individual, partnership, joint venture, firm,
corporation, limited liability company, association, trust or other enterprise
or any government or political subdivision or any agency, department or
instrumentality thereof.
"PIK Preferred Stock" shall mean the pay-in-kind Preferred Stock of
the Borrower, $.01 par value per share, issued pursuant to the PIK Preferred
Stock Documents.
"PIK Preferred Stock Documents" shall mean the documents executed and
delivered with respect to the PIK Preferred Stock on the Original Effective
Date.
"PIK Trigger Date" shall mean the later to occur of (x) December 18,
2002 and (y) if prior to December 18, 2002 the PIK Preferred Stock Documents
have been amended in such a manner that the PIK Preferred Stock (as so amended)
satisfies all of the requirements of Qualified Preferred Stock contained in the
definition thereof, such date on which the PIK Preferred Stock ceases to satisfy
the requirements of Qualified Preferred Stock contained in the definition
thereof.
"Plan" shall mean any pension plan as defined in Section 3(2) of
ERISA, which is maintained or contributed to by (or to which there is an
obligation to contribute of) the Borrower or a Subsidiary of the Borrower or an
ERISA Affiliate, and each such plan for the five year period immediately
following the latest date on which the Borrower, or a Subsidiary of the Borrower
or an ERISA Affiliate maintained, contributed to or had an obligation to
contribute to such plan.
"Pledge Agreement" shall have the meaning provided in Section 5.11(a).
"Pledge Agreement Collateral" shall mean all "Collateral" as defined
in the Pledge Agreement.
"Pledged Securities" shall mean all the Pledged Securities as defined
in the Pledge Agreement.
"Post-Closing Period" shall have the meaning provided in Section
8.14(a).
"Preferred Stock", as applied to the capital stock of any Person,
means capital stock of such Person (other than common stock of such Person) of
any class or classes (however designed) that ranks prior, as to the payment of
dividends or as to the distribution of assets upon any voluntary or involuntary
liquidation, dissolution or winding up of such Person, to shares of capital
stock of any other class of such Person, and shall include any Qualified
Preferred Stock and Disqualified Preferred Stock.
"Prime Lending Rate" shall mean the rate which BTCo announces from
time to time as its prime lending rate, the Prime Lending Rate to change when
and as such prime lending
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rate changes. The Prime Lending Rate is a reference rate and does not
necessarily represent the lowest or best rate actually charged to any customer.
BTCo may make commercial loans or other loans at rates of interest at, above or
below the Prime Lending Rate.
"Pro Forma Basis" shall mean, in connection with any calculation of
--- -----
compliance with any financial covenant or financial term, the calculation
thereof after giving effect on a pro forma basis to (v) if the relevant period
to be tested includes any period prior to the Second Restatement Effective Date,
the consummation of the ASHS Transaction (other than the ASHS Acquisition and
the ASHS Acquired Subsidiaries Refinancing) as if the same had occurred on the
first day of such period, (w) if the relevant period to be tested includes any
period prior to the Third Restatement Effective Date, the consummation of the
Transaction as if the same had occurred on the first day of such period, (x) the
incurrence of any Indebtedness (other than revolving Indebtedness, except to the
extent same is incurred to finance the Original Transaction, the MTI
Transaction, the ASHS Transaction or the Transaction, to refinance other
outstanding Indebtedness or to finance Permitted Acquisitions) or Preferred
Stock (other than Qualified Preferred Stock of the Borrower) after the first day
of the relevant Calculation Period as if such Indebtedness or Preferred Stock
had been incurred or issued (and the proceeds thereof applied) on the first day
of the relevant Calculation Period, (y) the permanent repayment of any
Indebtedness (other than revolving Indebtedness except to the extent paid with
Permitted Debt or Disqualified Preferred Stock) or Preferred Stock (other than
Qualified Preferred Stock of the Borrower) after the first day of the relevant
Calculation Period as if such Indebtedness or Preferred Stock had been retired
or redeemed on the first day of the relevant Calculation Period and (z) the
Permitted Acquisition, if any, then being consummated as well as any other
Permitted Acquisition consummated after the first day of the relevant
Calculation Period and on or prior to the date of the respective Permitted
Acquisition then being effected, with the following rules to apply in connection
therewith:
(i) all Indebtedness and Preferred Stock (other than Qualified
Preferred Stock of the Borrower) (x) (other than revolving Indebtedness,
except to the extent same is incurred to finance the Original Transaction,
the MTI Transaction, the ASHS Transaction or the Transaction, to refinance
other outstanding Indebtedness, or to finance Permitted Acquisitions)
incurred or issued after the first day of the relevant Calculation Period
(whether incurred to finance a Permitted Acquisition, to refinance
Indebtedness or otherwise) shall be deemed to have been incurred or issued
(and the proceeds thereof applied) on the first day of the respective
Calculation Period and remain outstanding through the date of determination
(and thereafter in the case of projections pursuant to Section 8.14(a)(iv))
and (y) (other than revolving Indebtedness except to the extent paid with
Permitted Debt or Disqualified Preferred Stock) permanently retired or
redeemed after the first day of the relevant Calculation Period shall be
deemed to have been retired or redeemed on the first day of the respective
Calculation Period and remain retired through the date of determination
(and thereafter in the case of projections pursuant to Section
8.14(a)(iv));
(ii) all Indebtedness or Preferred Stock (other than Qualified
Preferred Stock of the Borrower) assumed to be outstanding pursuant to
preceding clause (i) shall be deemed to have borne interest or accrued
dividends, as the case may be, at (x) the rate applicable
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thereto, in the case of fixed rate Indebtedness or Preferred Stock or (y)
the rates which would have been applicable thereto during the respective
period when same was deemed outstanding, in the case of floating rate
Indebtedness or Preferred Stock (although interest expense with respect to
any Indebtedness or Preferred Stock for periods while same was actually
outstanding during the respective period shall be calculated using the
actual rates applicable thereto while same was actually outstanding);
provided that for purposes of calculations pursuant to Section
--------
8.14(a)(iv), all Indebtedness or Preferred Stock (whether actually
outstanding or deemed outstanding) bearing interest at a floating rate of
interest shall be tested on the basis of the rates applicable at the time
the determination is made pursuant to said provisions;
(iii) in making any determination of Consolidated EBITDA, pro forma
--- -----
effect shall be given to any Permitted Acquisition consummated after the
first day of the respective period being tested, taking into account, for
any portion of the relevant period being tested occurring prior to the
consummation of such Permitted Acquisition, demonstrable cost savings
actually achieved simultaneously with, or within the one year period
following, the closing of the respective Permitted Acquisition, which cost
savings would be permitted to be recognized in pro forma statements
--- -----
prepared in accordance with Regulation S-X under the Securities Act, as if
such cost-savings were realized on the first day of the relevant period;
(iv) without duplication of adjustments provided above, in case of
any Permitted Acquisition consummated after the first day of the relevant
period being tested, pro forma effect shall be given to the termination or
--- -----
replacement of operating leases with Capitalized Lease Obligations or other
Indebtedness, and to any replacement of Capitalized Lease Obligations or
other Indebtedness with operating leases, in each case effected at the time
of the consummation of such Permitted Acquisition or thereafter, in each
case if effected after the first day of the period being tested and prior
to the date the respective determination is being made, as if such
termination or replacement had occurred on the first day of the relevant
period; and
(v) in making any determination of Consolidated EBITDA for purposes
of any calculation of the Adjusted Total Leverage Ratio, the Adjusted
Senior Leverage Ratio, the Consolidated Interest Coverage Ratio or the
Consolidated Fixed Charge Coverage Ratio only, (x) for any Permitted
Acquisition which occurred during the last two fiscal quarters comprising
the respective Test Period (and, in the case of Section 8.14, thereafter
and on or prior to the relevant date of determination), there shall be
added to Consolidated EBITDA the amount of Permitted Acquisition Additional
Cost Savings, determined in accordance with the definition thereof
contained herein, expected to be realized with respect to such Permitted
Acquisition, (y) for any Permitted Acquisition effected in the second
fiscal quarter of the respective Test Period (it being understood and
agreed that such fiscal quarter shall not be directly included in the
determination of Consolidated EBITDA, by virtue of the proviso to the
definition thereof), the Consolidated EBITDA shall be increased by 50% of
the Permitted Acquisition Additional Cost Savings estimated to arise in
connection with the respective Permitted Acquisition and (z) for any
Permitted Acquisition effected in the first fiscal quarter of the
respective Test Period (it
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being understood and agreed that such fiscal quarter will not be directly
included in the determination of Consolidated EBITDA by virtue of the
proviso to the definition thereof), the Consolidated EBITDA shall be
increased by 25% of the Permitted Acquisition Additional Cost Savings
estimated to arise in connection with the respective Permitted Acquisition;
provided that the aggregate additions to Consolidated EBITDA, for any
--------
period being tested, pursuant to this clause (v) shall not exceed 15% of
the amount which would have been Consolidated EBITDA in the absence of the
adjustment pursuant to this clause (v).
Notwithstanding anything to the contrary contained above, (x) for purposes of
Sections 9.08, 9.10 and 9.11, and for purposes of all determinations of the
Interest Reduction Discount, pro forma effect (as otherwise provided above)
--- -----
shall only be given for events or occurrences which occurred during the
respective Test Period but not thereafter and (y) for purposes of Section 8.14,
pro forma effect (as otherwise provided above) shall be given for events or
- --- -----
occurrences which occurred during the respective Test Period and thereafter but
on or prior to the respective date of determination.
"Projections" shall have the meaning provided in Section 5.16.
"Proportionate Share" shall mean (I) in the case of any determination
of Non-Consolidated Joint Venture EBITDA, with respect to each Non-Consolidated
Joint Venture for any period, the proportion (expressed as a percentage) of the
share of the Borrower and its Wholly-Owned Subsidiaries (whether directly or
indirectly) in the Non-Consolidated Joint Venture EBITDA (for this purpose,
calculated in accordance with the first sentence of the definition thereof as if
the phrase "the Proportionate Share of" appearing therein and the second
sentence of such definition were deleted) of such Non-Consolidated Joint Venture
for such period, which percentage shall be determined giving effect to any
priorities (including, without limitation, repayments of loans to owners of
equity interest in the respective Joint Venture, preferred distribution
priorities, etc.) established by such Non-Consolidated Joint Venture (or the
owners of the equity interests therein) for the allocation of such Non-
Consolidated Joint Venture EBITDA and (II) in the case of any determination of
Non-Consolidated Joint Venture Debt, with respect to each Non-Consolidated Joint
Venture at any time, the percentage equal to the percentage determined pursuant
to clause (I) above at such time.
"Qualified IPO" shall mean an underwritten public offering of Borrower
Common Stock which generates cash proceeds of at least $30,000,000.
"Qualified Preferred Stock" shall mean any Preferred Stock of the
Borrower, the express terms of which shall provide that dividends thereon shall
not be required to be paid at any time (and to the extent) that such payment
would be prohibited by the terms of this Agreement or any other agreement of the
Borrower relating to outstanding indebtedness and which, by its terms (or by the
terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event (including any Change of
Control Event), cannot mature (excluding any maturity as the result of an
optional redemption by the issuer thereof) and is not mandatorily redeemable,
pursuant to a sinking fund obligation or otherwise, and is not redeemable, or
required to be repurchased, at the sole option of the holder thereof
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(including, without limitation, upon the occurrence of a Change of Control
Event), in whole or in part, on or prior to the date occurring two years after
the Tranche D Term Loan Maturity Date.
"Quarterly Payment Date" shall mean the last Business Day of each
March, June, September and December.
"Real Property" of any Person shall mean all of the right, title and
interest of such Person in and to land, improvements and fixtures, including
Leaseholds.
"Recapitalization" shall have the meaning provided in the Original
Credit Agreement.
"Recovery Event" shall mean the receipt by the Borrower or any of its
Subsidiaries of any insurance or condemnation proceeds (other than proceeds from
business interruption insurance) payable (i) by reason of theft, physical
destruction or damage or any other similar event with respect to any properties
or assets of the Borrower or any of its Subsidiaries, (ii) by reason of any
condemnation, taking, seizing or similar event with respect to any properties or
assets of the Borrower or any of its Subsidiaries and (iii) under any policy of
insurance required to be maintained under Section 8.03.
"Register" shall have the meaning provided in Section 13.17.
"Regulation D" shall mean Regulation D of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof establishing reserve requirements.
"Regulation T" shall mean Regulation T of the Board of Governors of
the Federal Reserve System as from to time in effect and any successor to all or
any portion thereof.
"Regulation U" shall mean Regulation U of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof.
"Regulation X" shall mean Regulation X of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or any portion thereof.
"Release" means disposing, discharging, injecting, spilling, pumping,
leaking, leaching, dumping, emitting, escaping, emptying, seeping, placing,
pouring and the like, into or upon any land or water or air, or otherwise
entering into the environment.
"Replaced Bank" shall have the meaning provided in Section 1.13.
"Replacement Bank" shall have the meaning provided in Section 1.13.
"Reportable Event" shall mean an event described in Section 4043(c) of
ERISA with respect to a Plan that is subject to Title IV of ERISA other than
those events as to which the 30-day notice period is waived under subsection
.22, .23, .25, .27, or .28 of PBGC Regulation Section 4043.
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"Required Banks" shall mean Non-Defaulting Banks, the sum of whose
outstanding Term Loans and Revolving Loan Commitments (or after the termination
thereof, outstanding Revolving Loans and Adjusted RL Percentage of Swingline
Loans and Letter of Credit Outstandings) represent an amount greater than 50% of
the sum of all outstanding Term Loans of Non-Defaulting Banks and the Adjusted
Total Revolving Loan Commitment (or after the termination thereof, the sum of
the then total outstanding Revolving Loans of Non-Defaulting Banks and the
aggregate Adjusted RL Percentages of all Non-Defaulting Banks of the total
outstanding Swingline Loans and Letter of Credit Outstandings at such time).
"Revolver Refinancing" shall mean the repayment of Revolving Loans (as
defined in the Second Amended and Restated Credit Agreement) on the Second
Restatement Effective Date in accordance with the requirements of Section
5A.08(a) of the Second Amended and Restated Credit Agreement.
"Revolving Loan" shall have the meaning provided in Section 1.01(b).
"Revolving Loan Commitment" shall mean, with respect to each RL Bank,
the amount set forth opposite such Bank's name in Schedule I directly below the
column entitled "Revolving Loan Commitment", as the same may be reduced from
time to time pursuant to Sections 3.02, 3.03, 4.02 and/or Section 10.
"Revolving Loan Maturity Date" shall mean December 18, 2002.
"Revolving Note" shall have the meaning provided in Section
1.05(a)(v).
"RL Bank" shall mean at any time each Bank with a Revolving Loan
Commitment or with outstanding Revolving Loans.
"RL Commitment Fee" shall have the meaning provided in Section
3.01(a).
"RL Percentage" of any Bank at any time shall mean a fraction
(expressed as a percentage) the numerator of which is the Revolving Loan
Commitment of such Bank at such time and the denominator of which is the Total
Revolving Loan Commitment at such time, provided that if the RL Percentage of
--------
any Bank is to be determined after the Total Revolving Loan Commitment has been
terminated, then the RL Percentages of the Banks shall be determined immediately
prior (and without giving effect) to such termination.
"S&P" shall mean Standard & Poor's Ratings Services, a division of
McGraw Hill, Inc.
"Scheduled Commitment Reduction" shall have the meaning provided in
Section 3.03(c).
"Scheduled Commitment Reduction Date" shall have the meaning provided
in Section 3.03(c).
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"Scheduled Existing Indebtedness" shall have the meaning provided in
Section 5.10.
"Scheduled Repayment" shall mean any Tranche A Term Loan Scheduled
Repayment, any Tranche B Term Loan Scheduled Repayment, any Tranche C Term Loan
Scheduled Repayment and/or any Tranche D Term Loan Scheduled Repayment.
"SEC" shall mean the Securities and Exchange Commission or any
successor thereto.
"Second Amended and Restated Credit Agreement" shall have the meaning
provided in the first WHEREAS clause of this Agreement.
"Second Restatement Effective Date" shall have the meaning provided in
Section 13.10 of the Second Amended and Restated Credit Agreement.
"Section 4.04(b)(ii) Certificate" shall have the meaning provided in
Section 4.04(b)(ii).
"Secured Creditors" shall have the meaning provided in the Security
Documents.
"Securities Act" shall mean the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
"Security Agreement" shall have the meaning provided in Section
5.11(b).
"Security Agreement Collateral" shall mean all "Collateral" as defined
in the Security Agreement.
"Security Documents" shall mean and include the Security Agreement,
the Pledge Agreement and each Additional Security Document, if any.
"Senior Subordinated Notes" shall mean the Borrower's 9-5/8% Senior
Subordinated Notes due 2005 and the Borrower's Floating Interest Rate
Subordinated Term Securities, in each case issued pursuant to the Senior
Subordinated Notes Indenture, as in effect on the Original Effective Date and as
the same may be amended, modified or supplemented from time to time in
accordance with the terms hereof and thereof.
"Senior Subordinated Notes Documents" shall mean the Senior
Subordinated Notes, the Senior Subordinated Notes Indenture and all other
documents executed and delivered with respect to the Senior Subordinated Notes
or Senior Subordinated Notes Indenture, as in effect on the Original Effective
Date and as the same may be amended, modified or supplemented from time to time
in accordance with the terms hereof and thereof.
"Senior Subordinated Notes Indenture" shall mean the Indenture, dated
as of December 18, 1997, among the Borrower, the Subsidiary Guarantors and the
Senior Subordinated Notes Indenture Trustee, as in effect on the Original
Effective Date and as the same
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may be amended, modified or supplemented from time to time in accordance with
the terms hereof and thereof.
"Senior Subordinated Notes Indenture Trustee" shall mean IBJ Schroder
Bank & Trust Company and any successor thereto.
"Shareholder Subordinated Note" shall mean an unsecured junior
subordinated note issued by the Borrower (and not guaranteed or supported in any
way by the Borrower or any of its Subsidiaries) in the form of Exhibit N.
"Shareholders' Agreements" shall have the meaning provided in Section
5.13.
"SMT" shall mean SMT Health Services Inc., a Delaware corporation.
"SMT Acquisition Corp." shall mean SMT Acquisition Corp., a Delaware
corporation.
"SMT Merger" shall mean the merger of SMT Acquisition Corp. with and
into SMT, with SMT being the surviving corporation of such merger, and as a
result of which, SMT shall become a Wholly-Owned Subsidiary of the Borrower.
"SMT Merger Agreement" shall mean the Agreement and Plan of Merger,
dated as of April 14, 1999, between Three River Holdings Corp. and the Borrower,
as in effect on the Third Restatement Effective Date and as the same may be
amended, modified or supplemented from time to time pursuant to the terms hereof
and thereof.
"SMT Merger Documents" shall mean the SMT Merger Agreement and all
other agreements, instruments and documents entered into or delivered in
connection with the SMT Merger.
"SMT Refinanced Indebtedness" shall have the meaning provided in
Section 5.10(a).
"SMT Refinancing" shall mean the refinancing of the SMT Refinanced
Indebtedness in accordance with the provisions of Section 5.10.
"SMT Refinancing Documents" shall mean each of the agreements,
documents and instruments entered into in connection with the SMT Refinancing.
"Standby Letter of Credit" shall have the meaning provided in Section
2.01(a).
"Stated Amount" of each Letter of Credit shall mean the maximum amount
available to be drawn thereunder (regardless of whether any conditions for
drawing could then be met).
"Subsidiaries Guaranty" shall the meaning provided in Section 5.12.
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"Subsidiary" of any Person shall mean and include (i) any corporation
more than 50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person directly or
indirectly through Subsidiaries and (ii) any partnership, association, joint
venture or other entity (other than a corporation) in which such Person directly
or indirectly through Subsidiaries, has more than a 50% equity interest at the
time.
"Subsidiary Guarantor" shall mean each Wholly-Owned Domestic
Subsidiary (and, to the extent required by Section 8.12, each Wholly-Owned
Foreign Subsidiary) of the Borrower that is or becomes a party to the
Subsidiaries Guaranty (or any substantially similar form as required by Section
8.12).
"Swingline Expiry Date" shall mean the date which is five Business
Days prior to the Revolving Loan Maturity Date.
"Swingline Loan" shall have the meaning provided in Section 1.01(c).
"Swingline Note" shall have the meaning provided in Section
1.05(a)(vi).
"Syndication Agent" shall have the meaning provided in the first
paragraph of this Agreement and shall include any successor to the Syndication
Agent appointed pursuant to Section 12.10.
"Syndication Date" shall mean that date upon which the Agents
determine (and notify the Borrower and the Banks) that the primary syndication
(and resultant addition of Persons as Banks pursuant to Section 13.04(b)) of the
Tranche D Term Loans has been completed.
"Tax Allocation Agreements" shall have the meaning provided in Section
5.13.
"Taxes" shall have the meaning provided in Section 4.04(a).
"Term Loan Commitment" shall mean any Tranche D Term Loan Commitment.
"Term Loan Commitment Termination Date" shall mean the Tranche D Term
Loan Commitment Termination Date.
"Term Loans" shall mean and include Tranche A Term Loans, Tranche B
Term Loans, Tranche C Term Loans and Tranche D Term Loans.
"Test Period" shall mean each period of four consecutive fiscal
quarters then last ended, in each case taken as one accounting period.
Notwithstanding anything to the contrary contained above or in Section 13.07 or
otherwise required by GAAP, in the case of any Test Period ending prior to the
first anniversary of the Third Restatement Effective Date, such period shall be
a one-year period ending on the last day of the fiscal quarter last ended, with
any
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calculations of (x) Consolidated Interest Expense required in determining
compliance with Section 9.10 to be made on a pro forma basis in accordance with,
--- -----
and to the extent provided in, the immediately succeeding sentence, (y)
Consolidated Fixed Charges required in determining compliance with Section 9.08
to be made on a pro forma basis in accordance with, and to the extent provided
--- -----
in, the second succeeding sentence and (z) Consolidated EBITDA required in
determining compliance with Sections 9.08 through 9.11, inclusive, and
calculating the Adjusted Senior Leverage Ratio, the Adjusted Total Leverage
Ratio and the Total Leverage Ratio as required in this Agreement to be made on a
pro forma basis in accordance with, and to the extent provided in, the third
- --- -----
succeeding sentence. To the extent the respective Test Period (i) includes the
third fiscal quarter of the fiscal year ended December 31, 1998, Consolidated
Interest Expense for such fiscal quarter shall be deemed to be $10,968,000, (ii)
includes the fourth fiscal quarter of the fiscal year ended December 31, 1998,
Consolidated Interest Expense for such fiscal quarter shall be deemed to be
$10,968,000, (iii) includes the first fiscal quarter of the fiscal year ended
December 31, 1999, Consolidated Interest Expense for such fiscal quarter shall
be deemed to be $10,968,000 and (iv) includes the second fiscal quarter for the
year ended December 31, 1999, Consolidated Interest Expense shall be determined
by (x) taking actual Consolidated Interest Expense determined in accordance with
the definition thereof for any period beginning on, and ending after, the Third
Restatement Effective Date and (y) for each day of such fiscal quarter occurring
prior to the Third Restatement Effective Date, using a per-day Consolidated
Interest Expense of $120,197; provided that any additional adjustments required
--------
by the definition of Pro Forma Basis for occurrences after the Third Restatement
--- -----
Effective Date shall also be made. To the extent the respective Test Period (i)
includes the third fiscal quarter of the fiscal year ended December 31, 1998,
Consolidated Fixed Charges for such fiscal quarter shall be determined by taking
actual Consolidated Fixed Charges determined in accordance with the definition
thereof, except that Consolidated Interest Expense as used in the determination
thereof shall be Consolidated Interest Expense as provided in clause (i) of the
immediately preceding sentence, (ii) includes the fourth fiscal quarter of the
fiscal year ended December 31, 1998, Consolidated Fixed Charges for such fiscal
quarter shall be determined by taking actual Consolidated Fixed Charges
determined in accordance with the definition thereof, except that Consolidated
Interest Expense as used in the determination thereof shall be Consolidated
Interest Expense as provided in clause (ii) of the immediately preceding
sentence, (iii) includes the first fiscal quarter of the fiscal year ended
December 31, 1999, Consolidated Fixed Charges for such fiscal quarter shall be
determined by taking actual Consolidated Fixed Charges determined in accordance
with the definition thereof, except that Consolidated Interest Expense as used
in the determination thereof shall be Consolidated Interest Expense as provided
in clause (iii) of the immediately preceding sentence and (iv) includes the
second fiscal quarter of the fiscal year ended December 31, 1999, Consolidated
Fixed Charges for such fiscal quarter shall be determined by taking actual
Consolidated Fixed Charges determined in accordance with the definition thereof,
except that Consolidated Interest Expense as used in the determination thereof
for any portion of such fiscal quarter occurring prior to the Third Restatement
Effective Date shall be calculated on the basis provided in clause (iv) of the
immediately preceding sentence; provided that any additional adjustments
--------
required by the definition of Pro Forma Basis for occurrences after the Third
--- -----
Restatement Effective Date shall also be made. To the extent the respective
Test Period (i) includes the fourth fiscal quarter of the fiscal year ended
December 31, 1998, Consolidated EBITDA for such fiscal quarter shall be deemed
to be $31,984,000, (ii)
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includes the first fiscal quarter of the fiscal year ended December 31, 1999,
Consolidated EBITDA for such fiscal quarter shall be deemed to be $32,544,000
and (iii) includes the second fiscal quarter of the fiscal year ended December
31, 1999, Consolidated EBITDA shall be determined by taking actual Consolidated
EBITDA determined in accordance with the definition thereof for such fiscal
quarter (it being understood that Consolidated EBITDA for such fiscal quarter
shall be restated once the financial results for such fiscal quarter are made
available and reported as provided in Section 8.01(b)); provided that any
--------
additional adjustments required by the definition of Pro Forma Basis for
--- -----
occurrences after the Third Restatement Effective Date shall also be
made.
"Third Restatement Effective Date" shall have the meaning provided in
Section 13.10.
"Total Commitment" shall mean the sum of the Total Tranche D Term Loan
Commitment and the Total Revolving Loan Commitment.
"Total Leverage Ratio" shall mean on any date the ratio of (i)
Consolidated Debt on such date to (ii) Consolidated EBITDA for the Test Period
most recently ended on or prior to such date (determined after giving effect to
the proviso to the definition of Consolidated EBITDA contained herein). Subject
to the definition of Test Period, calculations of the Total Leverage Ratio shall
be made on a Pro Forma Basis, it being understood and agreed that, as provided
--- -----
in the definition of Pro Forma Basis, the adjustments contained in clause (v)
--- -----
thereof shall not be taken into account in determining the Total Leverage Ratio.
"Total Non-Consolidated Joint Venture Debt" shall mean, at any time,
the sum of the Non-Consolidated Joint Venture Debt for all Non-Consolidated
Joint Ventures at such time.
"Total Non-Consolidated Joint Venture EBITDA" shall mean, for any
period, the sum of the Non-Consolidated Joint Venture EBITDA for all Non-
Consolidated Joint Ventures for such period.
"Total Revolving Loan Commitment" shall mean the sum of the Revolving
Loan Commitments of each of the Banks.
"Total Tranche D Term Loan Commitment" shall mean the sum of the
Tranche D Term Loan Commitments of each of the Banks.
"Total Unutilized Revolving Loan Commitment" shall mean, at any time,
(i) the Total Revolving Loan Commitment at such time less (ii) the sum of the
----
aggregate principal amount of all Revolving Loans and Swingline Loans
outstanding at such time plus the Letter of Credit Outstandings at such time.
----
"Trade Letter of Credit" shall have the meaning set forth in Section
2.01(a).
"Tranche" shall mean the respective facility and commitments utilized
in making Loans hereunder, with there being six separate Tranches, i.e., Tranche
----
A Term Loans, Tranche B
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Term Loans, Tranche C Term Loans, Tranche D Term Loans, Revolving Loans and
Swingline Loans.
"Tranche A Term Loan Borrowing Amount" shall mean, with respect to
each Bank, the amount set forth opposite such Bank's name in Schedule I directly
below the column entitled "Existing Tranche A Term Loans".
"Tranche A Term Loan Scheduled Repayment" shall have the meaning
provided in Section 4.02(b)(i).
"Tranche A Term Loans" shall have the meaning provided in Section
1.01(a).
"Tranche A Term Loan Maturity Date" shall mean December 18, 2003.
"Tranche A Term Note" shall have the meaning provided in Section
1.05(a)(i).
"Tranche B Term Loan Borrowing Amount" shall mean, with respect to
each Bank, the amount set forth opposite such Bank's name in Schedule I directly
below the column entitled "Existing Tranche B Term Loans".
"Tranche B Term Loan Scheduled Repayment" shall have the meaning
provided in Section 4.02(b)(ii).
"Tranche B Term Loan" shall have the meaning provided in Section
1.01(e).
"Tranche B Term Loan Maturity Date" shall mean June 18, 2004.
"Tranche B Term Note" shall have the meaning provided in Section
1.05(a)(ii).
"Tranche C Term Loan Scheduled Repayment" shall have the meaning
provided in Section 4.02(b)(iii).
"Tranche C Term Loan" shall have the meaning provided in Section
1.01(f).
"Tranche C Term Loan Borrowing Amount" shall mean, with respect to
each Bank, the amount set forth opposite such Bank's name in Schedule I directly
below the column entitled "Existing Tranche C Term Loans".
"Tranche C Term Loan Maturity Date" shall mean December 18, 2004.
"Tranche C Term Note" shall have the meaning provided in Section
1.05(a)(iii).
"Tranche D Term Loan" shall have the meaning provided in Section
1.01(g).
"Tranche D Term Loan Commitment" shall mean, with respect to each
Bank, the amount set forth opposite such Bank's name in Schedule I directly
below the column entitled "Tranche" D Term Loan Commitment", as the same may be
reduced or terminated pursuant to Sections 3.02, 3.03 and/or 10.
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"Tranche D Term Loan Commitment Termination Date" shall mean the Third
Restatement Effective Date (after the making of Tranche D Term Loans to the
Borrower on such date).
"Tranche D Term Loan Maturity Date" shall mean June 18, 2005.
"Tranche D Term Loan Scheduled Repayment" shall have the meaning
provided in Section 4.02(b)(iv).
"Tranche D Term Note" shall have the meaning provided in Section
1.05(a)(iv).
"Transaction" shall mean, collectively, (i) the Additional Revolver
Refinancing, (ii) the amendment and restatement of the Second Amended and
Restated Credit Agreement in the form of this Agreement as provided herein,
(iii) the SMT Merger, (iv) the consummation of the SMT Refinancing, (v) the
incurrence of all Loans hereunder on the Third Restatement Effective Date and
(vi) the payment of fees and expenses in connection with the foregoing.
"Type" shall mean any type of Loan determined with respect to the
interest option applicable thereto, i.e., a Base Rate Loan or a Eurodollar Loan.
----
"UCC" shall mean the Uniform Commercial Code as in effect from time to
time in the relevant jurisdiction.
"Unfunded Current Liability" of any Plan shall mean the amount, if
any, by which the actuarial present value of the accumulated plan benefits under
the Plan as of the close of its most recent plan year exceeds the fair market
value of the assets allocable thereto, each determined in accordance with
Statement of Financial Accounting Standards No. 87, based upon the actuarial
assumptions used by the Plan's actuary in the most recent annual valuation of
the Plan.
"Unpaid Drawing" shall have the meaning provided in Section 2.04(a).
"Unutilized Revolving Loan Commitment" with respect to any RL Bank at
any time shall mean such RL Bank's Revolving Loan Commitment at such time less
----
the sum of (i) the aggregate outstanding principal amount of all Revolving Loans
made by such RL Bank and (ii) such Bank's RL Percentage of the Letter of Credit
Outstandings at such time.
"U.S. Dollars" and the sign "$" shall each mean freely transferable
lawful money of the United States of America.
"Voting Stock" shall mean, as to any Person, any class or classes of
capital stock of such Person pursuant to which the holders thereof have the
general voting power under ordinary circumstances to elect at least a majority
of the Board of Directors of such Person.
"Wholly-Owned Domestic Subsidiary" shall mean, as to any Person, any
Wholly-Owned Subsidiary of such Person which is a Domestic Subsidiary.
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"Wholly-Owned Foreign Subsidiary" shall mean, as to any Person, any
Wholly-Owned Subsidiary of such Person which is not a Domestic Subsidiary.
"Wholly-Owned Subsidiary" shall mean, as to any Person, (i) any
corporation 100% of whose capital stock (other than director's qualifying shares
and/or other nominal amounts of shares required to be held other than by such
Person under applicable law) is at the time owned by such Person and/or one or
more Wholly-Owned Subsidiaries of such Person and (ii) any partnership,
association, joint venture or other entity in which such Person and/or one or
more Wholly-Owned Subsidiaries of such Person has a 100% equity interest at such
time.
"Written" (whether lower or upper case) or "in writing" shall mean any
form of written communication or a communication by means of telex, facsimile
device, telegraph or cable.
"Year 2000 Compliant" shall mean that all Information Systems and
Equipment accurately process date data (including, but not limited to,
calculating, comparing and sequencing), before, during and after the year 2000,
as well as same and multi-century dates, or between the years 1999 and 2000,
taking into account all leap years, including the fact that the year 2000 is a
leap year, and further, that when used in combination with, or interfacing with,
other Information Systems and Equipment, shall accurately accept, release and
exchange date data, and shall in all material respects continue to function in
the same manner as it performs today and shall not otherwise impair the accuracy
or functionality of Information Systems and Equipment.
SECTION 12. The Agents.
----------
12.01 Appointment. Each Bank hereby irrevocably designates and
-----------
appoints BTCo as Administrative Agent of such Bank (for purposes of this Section
12, the term "Administrative Agent" shall mean BTCo in its capacity as
Administrative Agent hereunder and Collateral Agent pursuant to the Security
Documents) and Salomon Brothers Holding Company Inc as Syndication Agent to act
as specified herein and in the other Credit Documents, and each such Bank hereby
irrevocably authorizes the Administrative Agent and the Syndication Agent to
take such action on its behalf under the provisions of this Agreement and the
other Credit Documents and to exercise such powers and perform such duties as
are expressly delegated to the Administrative Agent or the Syndication Agent by
the terms of this Agreement and the other Credit Documents, together with such
other powers as are reasonably incidental thereto. Each of the Administrative
Agent and the Syndication Agent agrees to act as such upon the express
conditions contained in this Section 12. Notwithstanding any provision to the
contrary elsewhere in this Agreement or in any other Credit Document, the
Administrative Agent and the Syndication Agent shall not have any duties or
responsibilities, except those expressly set forth herein or in the other Credit
Documents, or any fiduciary relationship with any Bank, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Agreement or otherwise exist against the Administrative Agent
or the Syndication Agent. The provisions of this Section 12 are solely for the
benefit of the Administrative Agent, the Syndication Agent and the Banks, and
neither the Borrower nor any of its Subsidiaries shall have any rights as a
third party beneficiary of any of the provisions hereof. In performing its
functions and duties under this Agreement, each of the Administrative Agent and
the Syndication Agent
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shall act solely as agent of the Banks and does not assume and shall not be
deemed to have assumed any obligation or relationship of agency or trust with or
for the Borrower or any of its Subsidiaries.
12.02 Delegation of Duties. Each of the Administrative Agent and the
--------------------
Syndication Agent may execute any of its duties under this Agreement or any
other Credit Document by or through agents or attorneys-in-fact and shall be
entitled to advice of counsel concerning all matters pertaining to such duties.
Neither the Administrative Agent nor the Syndication Agent shall be responsible
for the negligence or misconduct of any agents or attorneys-in-fact selected by
it with reasonable care.
12.03 Exculpatory Provisions. None of the Administrative Agent, the
----------------------
Syndication Agent or any of their respective officers, directors, employees,
agents, attorneys-in-fact or affiliates shall be (i) liable for any action taken
or omitted to be taken by it or such person in its capacity as Administrative
Agent or Syndication Agent, as the case may be, under or in connection with this
Agreement or the other Credit Documents (except for its or such person's own
gross negligence or willful misconduct) or (ii) responsible in any manner to any
of the Banks for any recitals, statements, representations or warranties made by
the Borrower, any of its Subsidiaries or any of their respective officers
contained in this Agreement or the other Credit Documents, any other Document or
in any certificate, report, statement or other document referred to or provided
for in, or received by the Administrative Agent or the Syndication Agent under
or in connection with, this Agreement or any other Document or for any failure
of the Borrower or any of its Subsidiaries or any of their respective officers
to perform its obligations hereunder or thereunder. Neither the Administrative
Agent nor the Syndication Agent shall be under any obligation to any Bank to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or the other
Documents, or to inspect the properties, books or records of the Borrower or any
of its Subsidiaries. Neither the Administrative Agent nor the Syndication Agent
shall be responsible to any Bank for the effectiveness, genuineness, validity,
enforceability, collectability or sufficiency of this Agreement or any other
Document or for any representations, warranties, recitals or statements made
herein or therein or made in any written or oral statement or in any financial
or other statements, instruments, reports, certificates or any other documents
in connection herewith or therewith furnished or made by the Administrative
Agent or the Syndication Agent, as the case may be, to the Banks or by or on
behalf of the Borrower or any of its Subsidiaries to the Administrative Agent or
the Syndication Agent, as the case may be, or any Bank or be required to
ascertain or inquire as to the performance or observance of any of the terms,
conditions, provisions, covenants or agreements contained herein or therein or
as to the use of the proceeds of the Loans or of the existence or possible
existence of any Default or Event of Default.
12.04 Reliance by Agents. The Administrative Agent and the
------------------
Syndication Agent shall be entitled to rely, and shall be fully protected in
relying, upon any note, writing, resolution, notice, consent, certificate,
affidavit, letter, cablegram, telegram, facsimile, telex or teletype message,
statement, order or other document or conversation reasonably believed by it to
be genuine and correct and to have been signed, sent or made by the proper
Person or Persons and upon advice and statements of legal counsel (including,
without limitation, counsel to the Borrower or any of its Subsidiaries),
independent accountants and other experts selected by the
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Administrative Agent or the Syndication Agent, as the case may be. The
Administrative Agent and the Syndication Agent shall be fully justified in
failing or refusing to take any action under this Agreement or any other Credit
Document unless it shall first receive such advice or concurrence of the
Required Banks as it deems appropriate or it shall first be indemnified to its
satisfaction by the Banks against any and all liability and expense which may be
incurred by it by reason of taking or continuing to take any such action. The
Administrative Agent and the Syndication Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement and the
other Credit Documents in accordance with a request of the Required Banks, and
such request and any action taken or failure to act pursuant thereto shall be
binding upon all the Banks.
12.05 Notice of Default. Neither the Administrative Agent nor the
-----------------
Syndication Agent shall be deemed to have knowledge or notice of the occurrence
of any Default or Event of Default unless the Administrative Agent or the
Syndication Agent, as the case may be, has actually received notice from a Bank
or the Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default". In the event
that the Administrative Agent or the Syndication Agent receives such a notice,
the Administrative Agent or the Syndication Agent, as the case may be, shall
give prompt notice thereof to the Banks. The Administrative Agent or the
Syndication Agent, as the case may be, shall take such action with respect to
such Default or Event of Default as shall be reasonably directed by the Required
Banks; provided that, unless and until the Administrative Agent or the
--------
Syndication Agent, as the case may be, shall have received such directions, the
Administrative Agent or the Syndication Agent, as the case may be, may (but
shall not be obligated to) take such action, or refrain from taking such action,
with respect to such Default or Event of Default as it shall deem advisable in
the best interests of the Banks.
12.06 Nonreliance on Agents and Other Banks. Each Bank expressly
-------------------------------------
acknowledges that none of the Administrative Agent, the Syndication Agent or any
of their respective officers, directors, employees, agents, attorneys-in-fact or
affiliates has made any representations or warranties to it and that no act by
the Administrative Agent or the Syndication Agent hereinafter taken, including
any review of the affairs of the Borrower or any of its Subsidiaries, shall be
deemed to constitute any representation or warranty by the Administrative Agent
or the Syndication Agent to any Bank. Each Bank represents to the
Administrative Agent and the Syndication Agent that it has, independently and
without reliance upon the Administrative Agent, the Syndication Agent or any
other Bank, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
assets, operations, property, financial and other condition, prospects and
creditworthiness of the Borrower or its Subsidiaries and made its own decision
to make its Loans hereunder and enter into this Agreement. Each Bank also
represents that it will, independently and without reliance upon the
Administrative Agent, the Syndication Agent or any other Bank, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit analysis, appraisals and decisions in taking or not taking
action under this Agreement, and to make such investigation as it deems
necessary to inform itself as to the business, assets, operations, property,
financial and other condition, prospects and creditworthiness of the Borrower or
its Subsidiaries. Neither the Administrative Agent nor the Syndication Agent
shall have any duty or responsibility to provide any Bank with any credit or
other information concerning the business, operations,
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assets, property, financial and other condition, prospects or creditworthiness
of the Borrower or its Subsidiaries which may come into the possession of the
Administrative Agent, the Syndication Agent or any of their respective officers,
directors, employees, agents, attorneys-in-fact or affiliates.
12.07 Indemnification. The Banks agree to indemnify each of the
---------------
Administrative Agent and the Syndication Agent in their respective capacities as
such ratably according to their respective "percentages" as used in determining
the Required Banks at such time or, if the Commitments have terminated and all
Loans have been repaid in full, as determined immediately prior to such
termination and repayment (with such "percentages" to be determined as if there
are no Defaulting Banks), from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, reasonable
expenses or disbursements of any kind whatsoever which may at any time
(including, without limitation, at any time following the payment of the
Obligations) be imposed on, incurred by or asserted against the Administrative
Agent or the Syndication Agent in their respective capacities as such in any way
relating to or arising out of this Agreement or any other Credit Document, or
any documents contemplated by or referred to herein or the transactions
contemplated hereby or any action taken or omitted to be taken by the
Administrative Agent or the Syndication Agent under or in connection with any of
the foregoing, but only to the extent that any of the foregoing is not paid by
the Borrower or any of its Subsidiaries; provided that no Bank shall be liable
--------
to the Administrative Agent or the Syndication Agent for the payment of any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting primarily from the
gross negligence or willful misconduct of the Administrative Agent or the
Syndication Agent. If any indemnity furnished to the Administrative Agent or
the Syndication Agent for any purpose shall, in the opinion of the
Administrative Agent or the Syndication Agent, be insufficient or become
impaired, the Administrative Agent or the Syndication Agent, as the case may be,
may call for additional indemnity and cease, or not commence, to do the acts
indemnified against until such additional indemnity is furnished. The
agreements in this Section 12.07 shall survive the payment of all Obligations.
12.08 Agents in their Individual Capacities. Each of the
-------------------------------------
Administrative Agent and the Syndication Agent and their respective affiliates
may make loans to, accept deposits from and generally engage in any kind of
business with the Borrower and its Subsidiaries as though the Administrative
Agent or the Syndication Agent, as the case may be, were not the Administrative
Agent or the Syndication Agent, as the case may be, hereunder. With respect to
the Loans made by it and all Obligations owing to it, each of the Administrative
Agent and the Syndication Agent shall have the same rights and powers under this
Agreement as any Bank and may exercise the same as though it were not the
Administrative Agent or the Syndication Agent, as the case may be, and the terms
"Bank" and "Banks" shall include the Administrative Agent and the Syndication
Agent in their individual capacities.
12.09 Holders. The Administrative Agent may deem and treat the payee
-------
of any Note as the owner thereof for all purposes hereof unless and until a
written notice of the assignment, transfer or endorsement thereof, as the case
may be, shall have been filed with the Administrative Agent. Any request,
authority or consent of any Person or entity who, at the time of making such
request or giving such authority or consent, is the holder of any Note shall be
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conclusive and binding on any subsequent holder, transferee, assignee or
indorsee, as the case may be, of such Note or of any Note or Notes issued in
exchange therefor.
12.10 Resignation of the Agents. (a) The Administrative Agent may
-------------------------
resign from the performance of all its functions and duties hereunder and/or
under the other Credit Documents at any time by giving 30 Business Days' prior
written notice to the Borrower and the Banks. Such resignation shall take
effect upon the appointment of a successor Administrative Agent pursuant to
clauses (b) and (c) below or as otherwise provided below.
(b) Upon any such notice of resignation, the Required Banks shall
appoint a successor Administrative Agent hereunder or thereunder who shall be a
commercial bank or trust company reasonably acceptable to the Borrower.
(c) If a successor Administrative Agent shall not have been so
appointed within such 30 Business Day period, the Administrative Agent, with the
consent of the Borrower (which consent shall not be unreasonably withheld or
delayed), shall then appoint a successor Administrative Agent who shall serve as
Administrative Agent hereunder or thereunder until such time, if any, as the
Required Banks appoint a successor Administrative Agent as provided above.
(d) If no successor Administrative Agent has been appointed pursuant
to clause (b) or (c) above by the 30th Business Day after the date such notice
of resignation was given by the Administrative Agent, the Administrative Agent's
resignation shall become effective and the Required Banks shall thereafter
perform all the duties of the Administrative Agent hereunder and/or under any
other Credit Document until such time, if any, as the Banks appoint a successor
Administrative Agent as provided above.
(e) The Syndication Agent may resign from the performance of all its
functions and duties hereunder and/or under the other Credit Documents at any
time by giving five Business Days' prior written notice to the Banks. Such
resignation shall take effect at the end of such five Business Day period. Upon
the effectiveness of the resignation of the Syndication Agent, the
Administrative Agent shall assume all of the functions and duties of the
Syndication Agent hereunder and/or under the other Credit Documents.
SECTION 13. Miscellaneous.
-------------
13.01 Payment of Expenses, etc. The Borrower agrees to: (i) whether
-------------------------
or not the transactions herein contemplated are consummated, pay all reasonable
out-of-pocket costs and expenses of the Agents (including, without limitation,
the reasonable fees and disbursements of White & Case LLP and local counsel) in
connection with the negotiation, preparation, execution and delivery of the
Credit Documents and the documents and instruments referred to therein and any
amendment, waiver or consent relating thereto and in connection with the Agents'
syndication efforts with respect to this Agreement; (ii) pay all reasonable out-
of-pocket costs and expenses
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of each Agent, each Letter of Credit Issuer and each of the Banks in connection
with the enforcement of the Credit Documents and the documents and instruments
referred to therein and, after an Event of Default shall have occurred and be
continuing, the protection of the rights of each Agent, each Letter of Credit
Issuer and each of the Banks thereunder (including, without limitation, the
reasonable fees and disbursements of counsel (including in-house counsel) for
each Agent, for each Letter of Credit Issuer and for each of the Banks); (iii)
pay and hold each of the Banks harmless from and against any and all present and
future stamp and other similar taxes with respect to the foregoing matters and
save each of the Banks harmless from and against any and all liabilities with
respect to or resulting from any delay or omission (other than to the extent
attributable to such Bank) to pay such taxes; and (iv) indemnify each Agent, the
Collateral Agent, each Letter of Credit Issuer and each Bank, their respective
officers, directors, employees, representatives, trustees and agents from and
hold each of them harmless against any and all losses, liabilities, claims,
damages or expenses incurred by any of them as a result of, or arising out of,
or in any way related to, or by reason of, (a) any investigation, litigation or
other proceeding (whether or not any Agent, the Collateral Agent, any Letter of
Credit Issuer or any Bank is a party thereto and whether or not any such
investigation, litigation or other proceeding is between or among any Agent, the
Collateral Agent, any Letter of Credit Issuer, any Bank, any Credit Party or any
third Person or otherwise) related to the entering into and/or performance of
this Agreement or any other Document or the use of the proceeds of any Loans
hereunder or the Original Transaction, the MTI Transaction, the ASHS Transaction
or the Transaction or the consummation of any other transactions contemplated in
any Document (but excluding any such losses, liabilities, claims, damages or
expenses to the extent incurred by reason of the gross negligence or willful
misconduct of the Person to be indemnified), or (b) the actual or alleged
presence of Hazardous Materials in the air, surface water or groundwater or on
the surface or subsurface of any Real Property or any Environmental Claim, in
each case, including, without limitation, the reasonable fees and disbursements
of counsel and independent consultants incurred in connection with any such
investigation, litigation or other proceeding. To the extent that the
undertaking to indemnify, pay or hold harmless any Agent or any Bank set forth
in the preceding sentence may be unenforceable because it is violative of any
law or public policy, the Borrower shall make the maximum contribution to the
payment and satisfaction of each of the indemnified liabilities which is
permissible under applicable law.
13.02 Right of Setoff. In addition to any rights now or hereafter
---------------
granted under applicable law or otherwise, and not by way of limitation of any
such rights, upon the occurrence of an Event of Default, each Agent, each Letter
of Credit Issuer and each Bank is hereby authorized at any time or from time to
time, without presentment, demand, protest or other notice of any kind to the
Borrower or any of its Subsidiaries or to any other Person, any such notice
being hereby expressly waived, to set off and to appropriate and apply any and
all deposits (general or special) and any other Indebtedness at any time held or
owing by such Agent, such Letter of Credit Issuer or such Bank (including,
without limitation, by branches and agencies of such Agent, such Letter of
Credit Issuer and such Bank wherever located) to or for the credit or the
account of the Borrower or any of its Subsidiaries against and on account of the
Obligations of the Borrower or any of its Subsidiaries to such Agent, such
Letter of Credit Issuer or such Bank under this Agreement or under any of the
other Credit Documents, including, without limitation, all interests in
Obligations of the Borrower or any of its Subsidiaries purchased by such Bank
pursuant to Section 13.06(b), and all other claims of any nature or description
arising out of or connected with this Agreement or any other Credit Document,
irrespective of whether or not
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such Agent, such Letter of Credit Issuer or such Bank shall have made any demand
hereunder and although said Obligations shall be contingent or unmatured.
13.03 Notices. (a) Except as otherwise expressly provided herein,
-------
all notices and other communications provided for hereunder shall be in writing
(including telegraphic, telex, facsimile or cable communication) and mailed,
telegraphed, telexed, telecopied, cabled or delivered, if to any Credit Party,
at the address specified opposite its signature below or in the other relevant
Credit Documents, as the case may be; if to any Bank, at its address specified
for such Bank on Schedule II; or, at such other address as shall be designated
by any party in a written notice to the other parties hereto. All such notices
and communications shall be mailed, telegraphed, telexed, telecopied or cabled
or sent by overnight courier, and shall be effective when received.
(b) Without in any way limiting the obligation of the Borrower to
confirm in writing any telephonic notice permitted to be given hereunder, the
Administrative Agent or BTCo (in the case of a Borrowing of Swingline Loans) or
any Letter of Credit Issuer (in the case of the issuance of a Letter of Credit),
as the case may be, may prior to receipt of written confirmation act without
liability upon the basis of such telephonic notice, believed by the
Administrative Agent or BTCo or any Letter of Credit Issuer in good faith to be
from an Authorized Officer of the Borrower. In each such case, the Borrower
hereby waives the right to dispute the Administrative Agent's, BTCo's or such
Letter of Credit Issuer's record of the terms of such telephonic notice.
13.04 Benefit of Agreement. (a) This Agreement shall be binding
--------------------
upon and inure to the benefit of and be enforceable by the respective successors
and assigns of the parties hereto; provided, however, the Borrower may not
-------- -------
assign or transfer any of its rights, obligations or interest hereunder or under
any other Credit Document without the prior written consent of the Banks and,
provided further, that, although any Bank may grant participations in its rights
- ----------------
hereunder, such Bank shall remain a "Bank" for all purposes hereunder (and may
not transfer or assign all or any portion of its Commitments or Loans hereunder
except as provided in Section 13.04(b)) and the participant shall not constitute
a "Bank" hereunder and, provided further, that no Bank shall transfer or grant
----------------
any participation under which the participant shall have rights to approve any
amendment to or waiver of this Agreement or any other Credit Document except to
the extent such amendment or waiver would (i) extend the final scheduled
maturity of any Loan, Note or Letter of Credit (unless such Letter of Credit is
not extended beyond the Revolving Loan Maturity Date) in which such participant
is participating, or reduce the rate or extend the time of payment of interest
or Fees thereon (except in connection with a waiver of applicability of any
post-default increase in interest rates) or reduce the principal amount thereof,
or increase the amount of the participant's participation over the amount
thereof then in effect (it being understood that a waiver of any Default or
Event of Default or of a mandatory reduction in the Total Commitment or of a
mandatory repayment of Loans shall not constitute a change in the terms of such
participation, that an increase in any Commitment or Loan shall be permitted
without the consent of any participant if the participant's participation is not
increased as a result thereof and that any amendment or modification to the
financial definitions in this Agreement shall not constitute a reduction in any
rate of interest or fees for purposes of this clause (i)), (ii) consent to the
assignment or transfer by the Borrower of any of its rights and obligations
under
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this Agreement or (iii) release all or substantially all of the Collateral under
all of the Security Documents (except as expressly provided in the Security
Documents) supporting the Loans hereunder in which such participant is
participating. In the case of any such participation, the participant shall not
have any rights under this Agreement or any of the other Credit Documents (the
participant's rights against such Bank in respect of such participation to be
those set forth in the agreement executed by such Bank in favor of the
participant relating thereto) and all amounts payable by the Borrower hereunder
shall be determined as if such Bank had not sold such participation.
(b) Notwithstanding the foregoing, any Bank (or any Bank together
with one or more other Banks) may (x) assign all or a portion of its Revolving
Loan Commitment (and related outstanding Obligations hereunder) and/or its
outstanding Term Loans to (i) its parent company and/or any affiliate of such
Bank which is at least 50% owned by such Bank or its parent company or to one or
more Banks or (ii) in the case of any Bank that is a fund that invests in bank
loans, any other fund that invests in bank loans and is managed by the same
investment advisor of such Bank or by an Affiliate of such investment advisor or
(y) assign all, or if less than all, a portion equal to at least $5,000,000 in
the aggregate for the assigning Bank or assigning Banks, of such Revolving Loan
Commitments (and related outstanding Obligations hereunder) and outstanding
principal amount of Term Loans to one or more Eligible Transferees (treating (x)
any fund that invests in bank loans and (y) any other fund that invests in bank
loans and is managed by the same investment advisor as such fund or by an
Affiliate of such investment advisor, as a single Eligible Transferee), each of
which assignees shall become a party to this Agreement as a Bank by execution of
an Assignment and Assumption Agreement, provided that (i) at such time Schedule
--------
I shall be deemed modified to reflect the Commitments and/or outstanding Term
Loans, as the case may be, of such new Bank and of the existing Banks, (ii) upon
surrender of the old Notes (or the furnishing of a standard indemnity letter
from the respective assigning Bank in respect of any lost Notes), new Notes will
be issued, at the Borrower's expense, to such new Bank and to the assigning
Bank, such new Notes to be in conformity with the requirements of Section 1.05
(with appropriate modifications) to the extent needed to reflect the revised
Commitments and/or outstanding Term Loans, as the case may be, (iii) the consent
of the Administrative Agent and, so long as no Default or Event of Default is
then in existence, the Borrower shall be required in connection with any
assignment to an Eligible Transferee pursuant to clause (y) of this Section
13.04(b) (which consent, in each case, shall not be unreasonably withheld or
delayed), (iv) the consent of each Letter of Credit Issuer shall be required in
connection with any assignment of Revolving Loan Commitments pursuant to clause
(y) of this Section 13.04(b) (which consent shall not be unreasonably withheld
or delayed) and (v) the Administrative Agent shall receive at the time of each
assignment, from the assigning or assignee Bank, the payment of a non-refundable
assignment fee of $3,500 and, provided further, that such transfer or assignment
----------------
will not be effective until recorded by the Administrative Agent on the Register
pursuant to Section 13.17. To the extent of any assignment pursuant to this
Section 13.04(b), the assigning Bank shall be relieved of its obligations
hereunder with respect to its assigned Commitments and/or outstanding Term
Loans. At the time of each assignment pursuant to this Section 13.04(b) to a
Person which is not already a Bank hereunder and which is not a United States
person (as such term is defined in Section 7701(a)(30) of the Code) for Federal
income tax purposes, the respective assignee Bank shall
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provide to the Borrower and the Administrative Agent the appropriate Internal
Revenue Service Forms (and, if applicable a Section 4.04(b)(ii) Certificate)
described in Section 4.04(b). To the extent that an assignment of all or any
portion of a Bank's Commitment and outstanding Obligations pursuant to Section
1.13 or this Section 13.04(b) would, due to circumstances existing at the time
of such assignment, result in increased costs under Section 1.10, 1.11, 2.05 or
4.04 from those being charged by the respective assigning Bank prior to such
assignment, then the Borrower shall not be obligated to pay such increased costs
(although the Borrower shall be obligated to pay any other increased costs of
the type described above resulting from changes after the date of the respective
assignment). Notwithstanding anything to the contrary contained above, at any
time after the termination of the Total Revolving Loan Commitment, if any
Revolving Loans or Letters of Credit remain outstanding, assignments may be made
as provided above, except that the respective assignment shall be of a portion
of the outstanding Revolving Loans of the respective RL Bank and its
participation in Letters of Credit and its obligation to make Mandatory
Borrowings, although any such assignment effected after the termination of the
Total Revolving Loan Commitment shall not release the assigning RL Bank from its
obligations as a Participant with respect to outstanding Letters of Credit or to
fund its share of any Mandatory Borrowing (although the respective assignee may
agree, as between itself and the respective assigning RL Bank, that it shall be
responsible for such amounts).
(c) Nothing in this Agreement shall prevent or prohibit any Bank or
BTCo from pledging its Loans and Notes hereunder to a Federal Reserve Bank in
support of borrowings made by such Bank from such Federal Reserve Bank and, with
the consent of the Administrative Agent, any Bank which is a fund may pledge all
or any portion of its Notes or Loans to its trustee in support of its
obligations to its trustee. No pledge pursuant to this clause (c) shall release
the transferor Bank from any of its obligations hereunder.
13.05 No Waiver; Remedies Cumulative. No failure or delay on the
------------------------------
part of any Agent or any Bank in exercising any right, power or privilege
hereunder or under any other Credit Document and no course of dealing between
any Credit Party and any Agent or any Bank shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, power or privilege
hereunder or under any other Credit Document preclude any other or further
exercise thereof or the exercise of any other right, power or privilege
hereunder or thereunder. The rights and remedies herein expressly provided are
cumulative and not exclusive of any rights or remedies which any Agent or any
Bank would otherwise have. No notice to or demand on any Credit Party in any
case shall entitle any Credit Party to any other or further notice or demand in
similar or other circumstances or constitute a waiver of the rights of the
Agents or the Banks to any other or further action in any circumstances without
notice or demand.
13.06 Payments Pro Rata. (a) The Administrative Agent agrees that
-----------------
promptly after its receipt of each payment from or on behalf of any Credit Party
in respect of any Obligations of such Credit Party, it shall, except as
otherwise provided in this Agreement, distribute such payment to the Banks
(other than any Bank that has consented in writing to waive its pro rata share
--- ----
of such payment) pro rata based upon their respective shares, if any, of the
--- ----
Obligations with respect to which such payment was received.
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(b) Each of the Banks agrees that, if it should receive any amount
hereunder (whether by voluntary payment, by realization upon security, by the
exercise of the right of setoff or banker's lien, by counterclaim or cross
action, by the enforcement of any right under the Credit Documents, or
otherwise) which is applicable to the payment of the principal of, or interest
on, the Loans, Unpaid Drawings or Fees, of a sum which with respect to the
related sum or sums received by other Banks is in a greater proportion than the
total of such Obligation then owed and due to such Bank bears to the total of
such Obligation then owed and due to all of the Banks immediately prior to such
receipt, then such Bank receiving such excess payment shall purchase for cash
without recourse or warranty from the other Banks an interest in the Obligations
of the respective Credit Party to such Banks in such amount as shall result in a
proportional participation by all of the Banks in such amount; provided, that if
--------
all or any portion of such excess amount is thereafter recovered from such Bank,
such purchase shall be rescinded and the purchase price restored to the extent
of such recovery, but without interest.
(c) Notwithstanding anything to the contrary contained herein, the
provisions of the preceding Sections 13.06(a) and (b) shall be subject to the
express provisions of this Agreement which require, or permit, differing
payments to be made to Non-Defaulting Banks as opposed to Defaulting Banks.
13.07 Calculations; Computations. (a) The financial statements to
--------------------------
be furnished to the Banks pursuant hereto shall be made and prepared in
accordance with GAAP consistently applied throughout the periods involved
(except as set forth in the notes thereto or as otherwise disclosed in writing
by the Borrower to the Banks); provided that except as otherwise specifically
--------
provided herein, all computations determining compliance with Sections 4.02,
8.14 and 9, including definitions used therein shall, in each case, utilize
accounting principles and policies in effect at the time of the preparation of,
and in conformity with those used to prepare, the December 31, 1998 financial
statements of the Borrower delivered to the Banks pursuant to Section 7.10(b);
provided further, that (i) to the extent expressly required pursuant to the
- ----------------
provisions of this Agreement, certain calculations shall be made on a Pro Forma
--- -----
Basis, (ii) to the extent compliance with any of Sections 9.08, 9.09, 9.10 or
9.11 would include periods occurring prior to the Third Restatement Effective
Date, such calculation shall be adjusted on a Pro Forma Basis to give effect to
--- -----
the Transaction, as if same had occurred on the first day of the respective
period and (iii) in the case of any determinations of Consolidated Interest
Expense, Consolidated Fixed Charges and Consolidated EBITDA for any portion of
any Test Period which ends prior to the Third Restatement Effective Date, all
computations determining compliance with Sections 9.08, 9.09, 9.10 and 9.11, as
applicable, and all determinations of the Adjusted Senior Leverage Ratio, the
Adjusted Total Leverage Ratio and the Total Leverage Ratio shall be calculated
in accordance with the definition of Test Period contained herein.
(b) All computations of interest and Fees hereunder shall be made on
the actual number of days elapsed over a year of 360 days.
13.08 Governing Law; Submission to Jurisdiction; Venue. (a) THIS
------------------------------------------------
AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE
GOVERNED BY THE LAW OF THE STATE
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OF NEW YORK. Any legal action or proceeding with respect to this Agreement or
any other Credit Document may be brought in the courts of the State of New York
or of the United States for the Southern District of New York, and, by execution
and delivery of this Agreement, the Borrower hereby irrevocably accepts for
itself and in respect of its property, generally and unconditionally, the
jurisdiction of the aforesaid courts. The Borrower hereby irrevocably
designates, appoints and empowers CT Corporation System, with offices on the
date hereof at 1633 Broadway, New York, New York 10019 as its designee,
appointee and agent to receive, accept and acknowledge for and on its behalf,
and in respect of its property, service of any and all legal process, summons,
notices and documents which may be served in any such action or proceeding. If
for any reason such designee, appointee and agent shall cease to be available to
act as such, the Borrower agrees to designate a new designee, appointee and
agent in New York City on the terms and for the purposes of this provision
satisfactory to the Administrative Agent under this Agreement. The Borrower
hereby further irrevocably waives any claim that any such courts lack
jurisdiction over the Borrower, and agrees not to plead or claim, in any legal
action or proceeding with respect to this Agreement or any other Credit Document
brought in any of the aforesaid courts, that any such court lacks jurisdiction
over the Borrower. The Borrower further irrevocably consents to the service of
process in any such action or proceeding by the mailing of copies thereof by
registered or certified mail, postage prepaid, to the Borrower, at its address
for notices pursuant to Section 13.03, such service to become effective 30 days
after such mailing. The Borrower hereby irrevocably waives any objection to such
service of process and further irrevocably waives and agrees not to plead or
claim in any action or proceeding commenced hereunder or under any other Credit
Document that service of process was in any way invalid or ineffective. Nothing
herein shall affect the right of any Agent, the Collateral Agent, any Bank or
the holder of any Note to serve process in any other manner permitted by law or
to commence legal proceedings or otherwise proceed against any Credit Party in
any other jurisdiction.
(b) The Borrower hereby irrevocably waives any objection which it may
now or hereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Agreement or any other
Credit Document brought in the courts referred to in clause (a) above and hereby
further irrevocably waives and agrees not to plead or claim in any such court
that any such action or proceeding brought in any such court has been brought in
an inconvenient forum.
13.09 Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A complete set of
counterparts executed by all the parties hereto shall be lodged with the
Borrower and the Administrative Agent.
13.10 Effectiveness. This Agreement shall become effective on the
-------------
date (the "Third Restatement Effective Date") on which (i) each of the Borrower,
each New Bank, each Bank with a Tranche D Term Loan Commitment, the Required
Banks (determined immediately before the occurrence of the Third Restatement
Effective Date and without giving effect thereto), the Administrative Agent and
the Syndication Agent shall have signed a counterpart hereof (whether the same
or different counterparts) and shall have delivered the same (including by way
of facsimile transmission) to the Administrative Agent and (ii) the conditions
contained in
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Sections 5 and 6 are met to the satisfaction of the Agents and the Required
Banks (determined immediately after the occurrence of the Third Restatement
Effective Date). Unless the Administrative Agent has received actual notice from
any Bank that the conditions contained in Sections 5 and 6 have not been met to
its satisfaction, upon the satisfaction of the condition described in clause (i)
of the immediately preceding sentence and upon the Administrative Agent's good
faith determination that the conditions described in clause (ii) of the
immediately preceding sentence have been met, then the Third Restatement
Effective Date shall have been deemed to have occurred, regardless of any
subsequent determination that one or more of the conditions thereto had not been
met (although the occurrence of the Third Restatement Effective Date shall not
release the Borrower from any liability for failure to satisfy one or more of
the applicable conditions contained in Section 5 or 6). The Administrative Agent
will give the Borrower and each Bank prompt written notice of the occurrence of
the Third Restatement Effective Date.
13.11 Headings Descriptive. The headings of the several sections and
--------------------
subsections of this Agreement are inserted for convenience only and shall not in
any way affect the meaning or construction of any provision of this Agreement.
13.12 Amendment or Waiver; etc. (a) Neither this Agreement nor any
-------------------------
other Credit Document nor any terms hereof or thereof may be changed, waived,
discharged or terminated unless such change, waiver, discharge or termination is
in writing signed by the respective Credit Parties party thereto and the
Required Banks, provided that no such change, waiver, discharge or termination
--------
shall, without the consent of each Bank (other than a Defaulting Bank) (with
Obligations being directly affected thereby in the case of the following clause
(i)), (i) extend the final scheduled maturity of any Loan or Note or extend the
stated maturity of any Letter of Credit beyond the Revolving Loan Maturity Date,
or reduce the rate or extend the time of payment of interest or Fees thereon, or
reduce the principal amount thereof (it being understood that any amendment or
modification to the financial definitions in this Agreement shall not constitute
a reduction in any rate of interest or fees for purposes of this clause (i)),
(ii) release all or substantially all of the Collateral (except as expressly
provided in the Security Documents) under all the Security Documents, (iii)
amend, modify or waive any provision of this Section 13.12, (iv) reduce the
percentage specified in the definition of Required Banks (it being understood
that, with the consent of the Required Banks, additional extensions of credit
pursuant to this Agreement may be included in the determination of the Required
Banks on substantially the same basis as the extensions of Term Loans and
Revolving Loan Commitments are included on the Effective Date) or (v) consent to
the assignment or transfer by the Borrower of any of its rights and obligations
under this Agreement; provided further, that no such change, waiver, discharge
----------------
or termination shall (v) increase the Commitments of any Bank over the amount
thereof then in effect without the consent of such Bank (it being understood
that waivers or modifications of conditions precedent, covenants, Defaults or
Events of Default or of a mandatory reduction in the Total Commitment shall not
constitute an increase of the Commitment of any Bank, and that an increase in
the available portion of any Commitment of any Bank shall not constitute an
increase in the Commitment of such Bank), (w) without the consent of each Letter
of Credit Issuer, amend, modify or waive any provision of Section 2 or alter its
rights or obligations with respect to Letters of Credit, (x) without the consent
of BTCo, alter its rights or obligations with respect to Swingline Loans, (y)
without the consent of the
-146-
<PAGE>
Agent, amend, modify or waive any provision of Section 12 as same applies to the
Agent or any other provision as same relates to the rights or obligations of the
Agent and (z) without the consent of the Collateral Agent, amend, modify or
waive any provision relating to the rights or obligations of the Collateral
Agent.
(b) If, in connection with any proposed change, waiver, discharge or
termination of or to any of the provisions of this Agreement as contemplated by
clauses (i) through (v), inclusive, of the first proviso to Section 13.12(a),
the consent of the Required Banks is obtained but the consent of one or more of
such other Banks whose consent is required is not obtained, then the Borrower
shall have the right, so long as all non-consenting Banks whose individual
consent is required are treated as described in either clause (A) or (B) below,
to either (A) replace each such non-consenting Bank or Banks (or, at the option
of the Borrower if the respective Bank's consent is required with respect to
less than all Tranches of Loans (or related Commitments), to replace only the
Revolving Loan Commitments and/or Loans of the respective non-consenting Bank
which gave rise to the need to obtain such Bank's individual consent) with one
or more Replacement Banks pursuant to Section 1.13 so long as at the time of
such replacement, each such Replacement Bank consents to the proposed change,
waiver, discharge or termination or (B) terminate such non-consenting Bank's
Revolving Loan Commitment (if such Bank's consent is required as a result of its
Revolving Loan Commitment), Term Loan Commitment (if prior to the Term Loan
Commitment Termination Date and if such Bank's consent is required as a result
of its Term Loan Commitment) and/or repay each Tranche of outstanding Loans of
such Bank which gave rise to the need to obtain such Bank's consent and/or cash
collateralize its applicable Adjusted RL Percentage of the Letter of Credit of
Outstandings, in accordance with Sections 3.02(b) and/or 4.01(b), provided that,
--------
unless the Commitments which are terminated and Loans which are repaid pursuant
to preceding clause (B) are immediately replaced in full at such time through
the addition of new Banks or the increase of the Commitments and/or outstanding
Loans of existing Banks (who in each case must specifically consent thereto),
then in the case of any action pursuant to preceding clause (B), the Required
Banks (determined after giving effect to the proposed action) shall specifically
consent thereto, provided further, that the Borrower shall not have the right to
----------------
replace a Bank, terminate its Revolving Loan Commitment or Term Loan Commitment
or repay its Loans solely as a result of the exercise of such Bank's rights (and
the withholding of any required consent by such Bank) pursuant to the second
proviso to Section 13.12(a).
13.13 Survival. All indemnities set forth herein including, without
--------
limitation, in Sections 1.10, 1.11, 2.05, 4.04, 12.07 and 13.01, shall, subject
to the provisions of Section 13.18 (to the extent applicable), survive the
execution and delivery of this Agreement and the making and repayment of the
Loans.
13.14 Domicile of Loans and Commitments. Each Bank may transfer and
---------------------------------
carry its Loans and/or Commitments at, to or for the account of any branch
office, subsidiary or affiliate of such Bank; provided, that the Borrower shall
--------
not be responsible for costs arising under Section 1.10, 1.11, 2.05 or 4.04
resulting from any such transfer (other than a transfer pursuant to Section
1.12) to the extent such costs would not otherwise be applicable to such Bank in
the absence of such transfer.
-147-
<PAGE>
13.15 Confidentiality. (a) Each of the Banks agrees that it will
---------------
use its reasonable efforts not to disclose without the prior consent of the
Borrower (other than to its directors, employees, auditors, counsel or other
professional advisors, to affiliates or to another Bank if the Bank or such
Bank's holding or parent company in its sole discretion determines that any such
party should have access to such information) any information with respect to
the Borrower or any of its Subsidiaries which is furnished pursuant to this
Agreement; provided that any Bank may disclose any such information (a) as has
--------
become generally available to the public, (b) as may be required or appropriate
(x) in any report, statement or testimony submitted to any municipal, state or
Federal regulatory body having or claiming to have jurisdiction over such Bank
or to the Federal Reserve Board or the Federal Deposit Insurance Corporation or
similar organizations (whether in the United States or elsewhere) or their
successors or (y) in connection with any request or requirement of any such
regulatory body, (c) as may be required or appropriate in response to any
summons or subpoena or in connection with any litigation, (d) to comply with any
law, order, regulation or ruling applicable to such Bank, (e) to any prospective
transferee in connection with any contemplated transfer of any of the Notes or
any interest therein by such Bank; provided that such prospective transferee
--------
agrees to be bound by this Section 13.15 to the same extent as such Bank and (f)
to any Person (or such Person's investment advisor) with whom such Bank has
entered into or proposes to enter into (in each case either directly or
indirectly) any credit swap agreement with respect to such Bank's Loans and/or
Commitments, provided such Person (and such investment advisor, if any) agrees
--------
to be bound by the confidentiality provisions contained in this Section 13.15.
(b) The Borrower hereby acknowledges and agrees that each Bank may
share with any of its affiliates any information related to the Borrower or any
of its Subsidiaries (including, without limitation, any nonpublic customer
information regarding the creditworthiness of the Borrower and its
Subsidiaries), provided that such Persons shall be subject to the provisions of
--------
this Section 13.15 to the same extent as such Bank.
13.16 Waiver of Jury Trial. EACH OF THE PARTIES TO THIS AGREEMENT
--------------------
HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING
OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER CREDIT
DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
13.17 Register. The Borrower hereby designates the Administrative
--------
Agent to serve as the Borrower's agent, solely for purposes of this Section
13.17, to maintain a register (the "Register") on which it will record the
Commitments from time to time of each of the Banks, the Loans made by each of
the Banks and each repayment in respect of the principal amount of the Loans of
each Bank. Failure to make any such recordation, or any error in such
recordation shall not affect the Borrower's obligations in respect of such
Loans. With respect to any Bank, the transfer of any Commitment of such Bank
and the rights to the principal of, and interest on, any Loan shall not be
effective until such transfer is recorded on the Register maintained by the
Administrative Agent with respect to ownership of such Commitment and Loans and
prior to such recordation all amounts owing to the transferor with respect to
such Commitment and Loans shall remain owing to the transferor. The
registration of assignment or transfer of all or part of any Commitment and
Loans shall be recorded by the Administrative
-148-
<PAGE>
Agent on the Register only upon the acceptance by the Administrative Agent of a
properly executed and delivered Assignment and Assumption Agreement pursuant to
Section 13.04(b). Coincident with the delivery of such an Assignment and
Assumption Agreement to the Administrative Agent for acceptance and registration
of assignment or transfer of all or part of a Commitment and/or Loan, or as soon
thereafter as practicable, the assigning or transferor Bank shall surrender the
Note evidencing such Commitment and/or Loan, and thereupon one or more new Notes
in the same aggregate principal amount shall be issued to the assigning or
transferor Bank and/or the new Bank. The Borrower agrees to indemnify the
Administrative Agent from and against any and all losses, claims, damages and
liabilities of whatsoever nature which may be imposed on, asserted against or
incurred by the Administrative Agent in performing its duties under this Section
13.17.
13.18 Limitation on Additional Amounts, etc. Notwithstanding
--------------------------------------
anything to the contrary contained in Section 1.10, 1.11, 2.05 or 4.04 of this
Agreement, unless a Bank gives notice to the Borrower that it is obligated to
pay an amount under such Section within six months after the later of (x) the
date the Bank incurs the respective increased costs, Taxes, loss, expense or
liability, reduction in amounts received or receivable or reduction in return on
capital or (y) the date such Bank has actual knowledge of its incurrence of the
respective increased costs, Taxes, loss, expense or liability, reductions in
amounts received or receivable or reduction in return on capital, then such Bank
shall only be entitled to be compensated for such amount by the Borrower
pursuant to said Section 1.10, 1.11, 2.05 or 4.04, as the case may be, to the
extent of the costs, Taxes, loss, expense or liability, reduction in amounts
received or receivable or reduction in return on capital that are incurred or
suffered on or after the date which occurs six months prior to such Bank giving
notice to the Borrower that it is obligated to pay the respective amounts
pursuant to said Section 1.10, 1.11, 2.05 or 4.04, as the case may be. This
Section 13.18 shall have no applicability to any Section of this Agreement other
than said Sections 1.10, 1.11, 2.05 and 4.04.
13.19 Post-Closing Actions. Notwithstanding anything to the contrary
--------------------
contained in this Agreement or the other Credit Documents, the parties hereto
acknowledge and agree that:
(a) Security Document Filings. Form UCC-1 financing statements
-------------------------
delivered by the Borrower to the Collateral Agent on the Third Restatement
Effective Date shall be filed in the appropriate governmental office within
10 days following the Third Restatement Effective Date.
(b) Certificates of Title. The Collateral Agent's security interest
---------------------
with respect to the certificates of title in respect of all Healthcare
Units owned by SMT and its Subsidiaries on the Third Restatement Effective
Date (other than Healthcare Units securing Scheduled Existing Indebtedness
not refinanced on the Third Restatement Effective Date) shall be registered
in the appropriate governmental office within 90 days following the Third
Restatement Effective Date.
(c) UCC-3 Termination Statements. Within 60 days following the Third
----------------------------
Restatement Effective Date (or such later date as shall have been
determined by the Administrative Agent in its sole discretion), the
Administrative Agent shall have received
-149-
<PAGE>
Form UCC-3 termination statements in respect of the Liens listed on Part B
of Schedule IX hereto and same shall be filed in the appropriate
governmental office within 75 days following the Third Restatement
Effective Date (or such later date as shall have been determined by the
Administrative Agent in its sole discretion).
(d) Opinions of Local Counsel. Within 30 days following the Third
-------------------------
Restatement Effective Date, the Collateral Agent shall have received local
counsel opinions, addressed to each Agent, the Collateral Agent and each of
the Banks from local counsel to Credit Parties and/or the Agents reasonably
satisfactory to the Collateral Agent, which opinions (x) shall cover the
perfection and enforceability as against third parties of the security
interests granted pursuant to the Security Documents and such other matters
relating to the transactions contemplated herein as the Collateral Agent
may reasonably request and (y) shall be in form and substance reasonably
satisfactory to the Collateral Agent.
All provisions of this Credit Agreement and the other Credit Documents
(including, without limitation, all conditions precedent, representations,
warranties, covenants, events of default and other agreements herein and
therein) shall be deemed modified to the extent necessary to effect the
foregoing (and to permit the taking of the actions described above within the
time periods, required above, rather than as otherwise provided in the Credit
Documents); provided that (x) to the extent any representation and warranty
--------
would not be true because the foregoing actions were not taken on the Third
Restatement Effective Date, the respective representation and warranty shall be
required to be true and correct in all material respects at the time the
respective action is taken (or was required to be taken) in accordance with the
foregoing provisions of this Section 13.19 and (y) all representations and
warranties relating to the Security Documents shall be required to be true
immediately after the actions required to be taken by Section 13.19 have been
taken (or were required to be taken). The acceptance of the benefits of the
Loans shall constitute a representation, warranty and covenant by the Borrower
to each of the Banks that the actions required pursuant to this Section 13.19
will be, or have been, taken within the relevant time periods referred to in
this Section 13.19 and that, at such time, all representations and warranties
contained in this Credit Agreement and the other Credit Documents shall then be
true and correct without any modification pursuant to this Section 13.19. The
parties hereto acknowledge and agree that the failure to take any of the actions
required above, within the relevant time periods required above, shall give rise
to an immediate Event of Default pursuant to this Agreement.
13.20 Additions of New Banks. On and as of the occurrence of the
----------------------
Third Restatement Effective Date in accordance with Section 13.10 hereof, each
New Bank shall become a "Bank" under, and for all purposes of, this Agreement
and the other Credit Documents.
13.21 Special Acknowledgment and Authorization in connection with
-----------------------------------------------------------
Amendment and Restatement, etc. (a) The Banks hereby authorize BTCo, in its
- -------------------------------
capacity as Administrative Agent or Collateral Agent, as applicable, to execute
and deliver the Security Agreement, the Pledge Agreement and the Subsidiaries
Guaranty in the respective forms thereof attached as Exhibits hereto on the
Third Restatement Effective Date.
-150-
<PAGE>
(b) The parties hereto hereby acknowledge and agree that upon the
occurrence of the Third Restatement Effective Date, the Security Agreement, the
Pledge Agreement and the Subsidiaries Guaranty executed and delivered on such
date as provided in Section 5 shall supersede and replace in full the Security
Agreement, Pledge Agreement and Subsidiaries Guaranty (as each such term is
defined in the Second Amended and Restated Credit Agreement) in effect
immediately prior to the Third Restatement Effective Date and same shall be in
full force and effect in accordance with their respective terms.
* * * *
-151-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Agreement as of the date first
above written.
Address:
- -------
1065 North PacifiCenter Drive ALLIANCE IMAGING, INC.
Suite 200
Anaheim, California
Telephone No.: (714) 688-7100
Facsimile No.: (714) 688-3333
Attention: Ken Ord By
------------------------
Title:
BANKERS TRUST COMPANY,
Individually and as Administrative Agent
By
------------------------
Title
SALOMON BROTHERS HOLDING COMPANY, INC,
Individually and as Syndication Agent
By
------------------------
Title
PARIBAS
By
------------------------
Title
By
------------------------
Title
-152-
<PAGE>
CITY NATIONAL BANK
By
------------------------
Title
MORGAN STANLEY DEAN
WITTER PRIME INCOME TRUST
By
------------------------
Title
GENERAL ELECTRIC CAPITAL
CORPORATION
By
------------------------
Title
HELLER FINANCIAL, INC.
By
------------------------
Title
IMPERIAL BANK
By
------------------------
Title
ING HIGH INCOME PRINCIPAL
PRESERVATION FUND
HOLDINGS, LDC
By
------------------------
Title
-153-
<PAGE>
PILGRIM AMERICA PRIME RATE
TRUST
By: Pilgrim America Investments, Inc.
as its Investment Manager
By
------------------------
Title
ROYAL BANK OF CANADA
By
------------------------
Title
UNION BANK OF CALIFORNIA,
N.A.
By
------------------------
Title
SENIOR DEBT PORTFOLIO
By: Boston Management and
Research as Investment Advisor
By
------------------------
Title
CREDIT LYONNAIS NEW YORK
BRANCH
By
------------------------
Title
-154-
<PAGE>
DRESDNER BANK AG,
NEW YORK BRANCH AND
GRAND CAYMAN BRANCH
By
------------------------
Title
By
------------------------
Title
SALOMON BROTHERS HOLDING
COMPANY INC
By
------------------------
Title
-155-
<PAGE>
Schedule I
----------
LIST OF BANKS AND COMMITMENTS
-----------------------------
<TABLE>
<CAPTION>
Existing Existing Tranche C Tranche D Revolving
Tranche A Term Tranche B Term Loan Term Loan Loan
Bank Loans Term Loans Commitment Commitment Commitment
- ---- -------------- ---------------- ----------------- ------------------ ------------------
<S> <C> <C> <C> <C> <C>
Bankers Trust Company 867,369.35 9,670,546.85 2,992,500 35,250,000 7,950,000
Salomon Brothers Holding Company 0 0 0 0 0
Heller Financial, Inc. 7,505,000 4,937,500 0 0 6,900,000
Paribas 5,530,000 0 2,493,750 0 6,900,000
Credit Lyonnais New York Branch 5,332,500 0 0 0 6,600,000
Dresdner Bank AG, New York Branch 8,295,000 0 0 0 6,600,000
and
Grand Cayman Branch
General Electric Capital Company 4,345,000 0 0 0 6,600,000
Imperial Bank 4,345,000 0 0 0 6,600,000
Union Bank of California, N.A. 4,345,000 0 0 0 7,600,000
City National Bank 0 0 0 0 7,500,000
Royal Bank of Canada 6,517,500 1,975,000 7,481,250 5,000,000 9,400,000
Prime Income Trust 1,975,000 4,937,500 12,967,500 7,000,000 0
Pilgrim High Income 0 0 4,987,500 0 0
Pilgrim Prime Rate Trust 1,107,630.65 5,261,245.61 0 5,000,000 0
Van Kampen American 3,950,000 0 0 0 0
Capital Prime Income
Trust
Citibank, N.A. 5,530,000 3,299,646.46 0 0 7,350,000
Cypress Tree Institutional Fund 0 0 997,500 0 0
Cypress Tree Investment Fund 0 0 997,500 0 0
Cypress Tree North American 0 0 249,375 0 0
Cypress Tree Senior Floating Rate 0 0 249,375 0 0
Fund
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Existing Existing Tranche C Tranche D Revolving
Tranche A Term Tranche B Term Loan Term Loan Loan
Bank Loans Term Loans Commitment Commitment Commitment
- ---- -------------- ---------------- ----------------- ------------------ ------------------
<S> <C> <C> <C> <C> <C>
Senior Income Trust 0 2,487,405.54 0 0 0
Senior Debt Portfolio 1,975,000 7,424,905.54 4,987,500 0 0
Oxford (Eaton) 0 0 997,500 0 0
Pacifica Partners I, L.P. 0 0 6,982,500 0 0
Archimedes (ING) 5,530,000 0 0 0 0
Archimedes II (ING) 0 0 12,967,500 0 0
ING Capital High Income Principal 1,975,000 9,381,250 0 0 0
Preservation Fund Holding, LDC
Keyport Life (Stein Roe) 0 0 4,987,500 0 0
Stein Roe Floating Rate Limited 0 0 0 2,000,000 0
Liability Company
KZH Cypress Tree-I LLC 0 0 10,473,750 4,250,000 0
KZH-Sterling Asset Management 0 0 9,975,000 2,000,000 0
KZH Crescent LLC 0 0 0 1,750,000 0
KZH Crescent-II LLC 0 0 0 2,000,000 0
KZH Crescent-III LLC 0 0 0 1,750,000 0
KZH ING-I LLC 0 0 0 2,000,000 0
KZH Riverside 0 0 0 2,000,000 0
North America Senior 0 0 0 750,000 0
Floating Rate
TCW Sequils I, Ltd. 0 0 0 5,000,000 0
Canadian Imperial Bank 0 0 0 2,500,000 0
of Commerce
Total $ 69,124,999 $ 49,374,998 $84,787,500 $70,000,000 $80,000,000
</TABLE>
<PAGE>
Schedule II
-----------
BANK ADDRESSES
--------------
Bank Address
- ---- -------
Bankers Trust Company One Bankers Trust Plaza
New York, New York 10006
Attention: Gregory Shefrin
Telephone No.: (212) 250-2500
Facsimile No.: (212) 250-7218
Banque Paribas 2029 Century Park East
Suite 3900
Los Angeles, California 90067
Attention: Sean Conlon
Telephone No.: (310) 551-7334
Facsimile No.: (310) 556-8759
City National Bank 400 North Roxbury Drive
3rd Floor
Beverly Hills, California 90210
Attention: Kim Bingham
Telephone No.: (310) 888-6132
Facsimile No.: (310) 888-6152
Credit Lyonnais 1301 Avenue of the Americas
New York, New York 10019
Attention: Attila Koe
Telephone No.: (212) 261-7358
Facsimile No.: (212) 459-3176
Prime Income Trust Two World Trade Center
New York, New York 10048
Attention: April Chrysostomas
Telephone No.: (212) 392-5709
Facsimile No.: (212) 392-5345
<PAGE>
Schedule II
Page 2
Dresdner Bank AG 75 Wall Street
New York, New York 10005
Attention: Andrew Nesi
Telephone No.: (212) 429-2000
Facsimile No.: (212) 429-2129
General Electric Capital 201 High Ridge Road
Corporation Stamford, Connecticut 06927
Attention: Anne Leith
Telephone No.: (203) 316-7489
Facsimile No.: (203) 316-7978
Heller Financial, Inc. 500 West Monroe Street
Chicago, Illinois 60661
Attention: Linda Wolf
Telephone No.: (312) 441-7894
Facsimile No.: (312) 441-7357
Imperial Bank 9920 South La Cienega Boulevard
Inglewood, California 90301
Attention: John Farrace
Telephone No.: (310) 417-5676
Facsimile No.: (310) 338-2612
ING Bank, NV 333 South Grand Avenue
Los Angeles, California 90071
Attention: Kathleen Lenarcic
Telephone No.: (213) 346-3971
Facsimile No.: (213) 346-3995
Pilgrim Two Renaissance Square
America Prime Rate Trust 40 North Central Avenue
Suite 1200
Phoenix, Arizona 85004-3444
Attention: Jeff Bakalar
Telephone No.: (602) 417-8252
Facsimile No.: (602) 417-8327
<PAGE>
Schedule II
Page 3
Royal Bank of Canada 800 Wilshire Boulevard
Suite 800
Los Angeles, California 90017-3220
Attention: Athar Khan
Telephone No.: (213) 955-5309
Facsimile No.: (213) 955-5350
Salomon Brothers Seven World Trade Center
Holding Company Inc New York, New York 10048
Attention: Chad Leat
Telephone No.: (212) 783-1725
Facsimile No.: (212) 783-2823
Union Bank of California, N.A. 550 South Hope Street
3rd Floor
Los Angeles, California 90071
Attention: Jennifer Banks
Telephone No.: (213) 243-3558
Facsimile No.: (213) 243-3503
Van Kampen American Capital One Parkview Plaza
Prime Income Trust Oakbrook Terrace, Illinois 60181
Attention: Jeffery Maillet
Telephone No.: (630) 684-6438
Facsimile No.: (630) 684-6740
<PAGE>
SCHEDULE III
------------
REAL PROPERTIES
---------------
<PAGE>
SCHEDULE IV
-----------
SCHEDULED EXISTING INDEBTEDNESS
-------------------------------
<PAGE>
SCHEDULE V
----------
PENSION PLANS
-------------
<PAGE>
SCHEDULE VI
-----------
SCHEDULED EXISTING INVESTMENTS
------------------------------
<PAGE>
SCHEDULE VII
------------
SUBSIDIARIES
------------
<PAGE>
SCHEDULE VIII
-------------
INSURANCE
---------
<PAGE>
SCHEDULE IX
-----------
EXISTING LIENS
--------------
<TABLE>
<CAPTION>
Filing File Original Description
Location Debtor Secured Party Number File Date of Collateral
-------- ------ ------------- ------ --------- -------------
<S> <C> <C> <C> <C> <C>
</TABLE>
<PAGE>
SCHEDULE X
----------
CAPITALIZATION
--------------
<PAGE>
SCHEDULE XI
-----------
EXISTING LETTERS OF CREDIT
--------------------------
<PAGE>
SCHEDULE XII
------------
HEALTHCARE UNITS
----------------
<PAGE>
SCHEDULE XIII
-------------
LITIGATION
----------
<PAGE>
EXHIBIT 99.5
ALLIANCE IMAGING, INC.,
as Issuer,
The GUARANTORS Named Herein,
as Guarantors,
THREE RIVERS HOLDING CORP.
SMT HEALTH SERVICES INC.
SMT INVESTMENT INC.
RIA MANAGEMENT SERVICES INC.
SMT MANAGEMENT CORP.
DIMENSIONS MEDICAL GROUP, INC.
MID AMERICAN IMAGING, INC.
SMT MOBILE I CORP.
SMT MOBILE III CORP.
SMT MOBILE IV CORP.
SMT MOBILE V CORP.
SMT MOBILE VI CORP.
SMT MOBILE VII CORP.
SMT MOBILE VIII CORP.
SMT MOBILE IX CORP.
SMT MOBILE X CORP.
as Guarantors,
and
IBJ WHITEHALL BANK & TRUST COMPANY
_______________________________
Fifth Supplemental Indenture
Dated as of May 13, 1999
To Indenture
of Alliance Imaging, Inc.
Dated as of December 18, 1997
for 9 5/8% Senior Subordinated Notes due 2005 and
Floating Interest Rate Subordinated Term Securities due 2005
<PAGE>
THIS FIFTH SUPPLEMENTAL INDENTURE, dated as of May 13, 1999, among
ALLIANCE IMAGING, INC., a Delaware corporation (the "Company"), each of the
Guarantors named herein, as Guarantors, THREE RIVERS HOLDING CORP., SMT HEALTH
SERVICES INC., SMT INVESTMENT INC., RIA MANAGEMENT SERVICES INC., SMT MANAGEMENT
CORP., DIMENSIONS MEDICAL GROUP, INC., MID AMERICAN IMAGING, INC., SMT MOBILE I
CORP., SMT MOBILE III CORP., SMT MOBILE IV CORP., SMT MOBILE V CORP., SMT MOBILE
VI CORP., SMT MOBILE VII CORP., SMT MOBILE VIII CORP., SMT MOBILE IX CORP. and
SMT MOBILE X CORP. (together, the "New Guarantors"), are subsidiaries of the
Company, and IBJ Whitehall Bank and Trust Company, a New York banking
corporation, as trustee (hereinafter, the "Trustee"), under the Indenture
(referred to hereinafter) pursuant to which the Company issued its 9 5/8% Senior
Subordinated Notes due 2005 and Floating Interest Rate Subordinated Term
Securities due 2005 (collectively, the "Securities").
WITNESSETH:
WHEREAS, the Company, the Guarantors named therein, and the Trustee
executed and delivered a certain Indenture, dated as of December 18, 1997, as
amended by First Supplemental Indenture, dated as of January 30, 1998, by Second
Supplemental Indenture, dated as of March 12, 1998, by Third Supplemental
Indenture, dated as of May 19, 1998 and by Fourth Supplemental Indenture, dated
as of November 13, 1998 providing for the issuance of up to an aggregate
principal amount of $285,000,000 of the Securities;
WHEREAS, the Company by appropriate action has determined that it is
desirable to amend certain provisions of the Indenture; and
WHEREAS, pursuant to the Agreement and Plan of Merger dated April 14,
1999, Three Rivers Holding Corp., a Delaware corporation, and its subsidiaries
is merging with and into Alliance Imaging, Inc., a Delaware corporation; and
WHEREAS, Section 4.18 of the Indenture provides that under certain
circumstances the Company is required to cause New Guarantors to execute and
deliver to the Trustee a supplemental indenture pursuant to which New Guarantors
shall unconditionally guarantee all of the Company's obligations under the
Securities and the Indenture on the terms set forth in the Indenture;
NOW THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the New
Guarantors, the Company, the Guarantors named herein and the Trustee mutually
covenant and agree for the equal and ratable benefit of the holders of the
Securities as follows:
Article I
Amendment
1.1 The New Guarantors hereby, jointly and severally with all other
Guarantors, unconditionally and irrevocably guarantee, on a senior subordinated
basis, the
<PAGE>
Company's obligations under the Indenture and the Securities on the terms
and subject to the conditions set forth in Article Eleven of the Indenture.
1.2 Except as expressly amended hereby, the Indenture is in all
respects ratified and confirmed and all the terms, conditions and provisions
thereof shall remain in full force and effect. This Fifth Supplemental Indenture
shall form a part of the Indenture for all purposes, and every holder of
Securities heretofore or hereafter authenticated and delivered shall be bound
hereby.
Article II
Miscellaneous Provisions
2.1 For all purposes of this Fifth Supplemental Indenture, except as
otherwise defined or unless the context otherwise requires, capitalized terms
used herein and not defined herein shall have the meaning specified in the
Indenture.
2.2 THIS FIFTH SUPPLEMENTAL INDENTURE WILL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS
MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW.
2.3 All provisions in this Fifth Supplemental Indenture respecting the
Company shall bind or inure to the benefit of (as the case may be) the Company,
its successors or assigns.
2.4 The recitals contained herein shall be taken as the statements of
the Company and the Guarantors and the Trustee assumes no responsibility for
their correctness. The Trustee makes no representations as to the validity of
this Fifth Supplemental Indenture.
2.5 This Fifth Supplemental Indenture may be executed in any number of
counterparts, each of which shall be an original, but such counterparts shall
together constitute but one and the same instrument.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Fifth
Supplemental Indenture to be duly executed as of the date first above written.
ALLIANCE IMAGING, INC.
By: /S/ Russell D. Phillips
Name: Russell D. Phillips
Title: Secretary
ALLIANCE IMAGING OF OHIO, INC.,
as Guarantor
By: /S/ Russell D. Phillips
Name: Russell D. Phillips
Title: Secretary
ALLIANCE IMAGING OF MICHIGAN, INC.,
as Guarantor
By: /S/ Russell D. Phillips
Name: Russell D. Phillips
Title: Secretary
ROYAL MEDICAL HEALTH SERVICES, INC.,
as Guarantor
By: /S/ Russell D. Phillips
Name: Russell D. Phillips
Title: Secretary
[SIGNATURES CONTINUED ON NEXT PAGE]
<PAGE>
ALLIANCE IMAGING OF CENTRAL
GEORGIA, INC., as Guarantor
By: /S/ Russell D. Phillips
Name: Russell D. Phillips
Title: Secretary
MOBILE TECHNOLOGY INC., as Guarantor
By: /S/ Russell D. Phillips
Name: Russell D. Phillips
Title: Secretary
MEDICAL DIAGNOSTICS, INC., as Guarantor
By: /S/ Russell D. Phillips
Name: Russell D. Phillips
Title: Secretary
CENTRAL MASSACHUSETTS MRI SERVICES, INC., as
Guarantor
By: /S/ Russell D. Phillips
Name: Russell D. Phillips
Title: Clerk
[SIGNATURES CONTINUED ON NEXT PAGE]
<PAGE>
WESTERN MASSACHUSETTS MAGNETIC RESONANCE SERVICES,
INC., as Guarantor
By: /S/ Russell D. Phillips
Name: Russell D. Phillips
Title: Clerk
EMBARCADERO HOLDING CORP. I, as Guarantor
By: ALLIANCE IMAGING MANAGEMENT, INC., as
successor by merger
By: /S/ Russell D. Phillips
Name: Russell D. Phillips
Title: Secretary
EMBARCADERO HOLDING CORP. II, as Guarantor
By: ALLIANCE IMAGING CENTERS, INC., as successor
by merger
By: /S/ Russell D. Phillips
Name: Russell D. Phillips
Title: Secretary
CURACARE, INC., as Guarantor
By: /S/ Russell D. Phillips
Name: Russell D. Phillips
Title: Secretary
[SIGNATURES CONTINUED ON NEXT PAGE]
<PAGE>
THREE RIVERS HOLDING CORP., as Guarantor
By: /S/ Russell D. Phillips
Name: Russell D. Phillips
Title: Secretary
SMT HEALTH SERVICES INC., as Guarantor
By: /S/ Russell D. Phillips
Name: Russell D. Phillips
Title: Assistant Secretary
SMT INVESTMENT INC., as Guarantor
By: /S/ Russell D. Phillips
Name: Russell D. Phillips
Title: Secretary
RIA MANAGEMENT SERVICES INC., as Guarantor
By: /S/ Russell D. Phillips
Name: Russell D. Phillips
Title: Secretary
SMT MANAGEMENT CORP., as Guarantor
By: /S/ Russell D. Phillips
Name: Russell D. Phillips
Title: Secretary
[SIGNATURES CONTINUED ON NEXT PAGE]
<PAGE>
DIMENSIONS MEDICAL GROUP, INC., as Guarantor
By: /S/ Russell D. Phillips
Name: Russell D. Phillips
Title: Secretary
MID AMERICAN IMAGING, INC. , as Guarantor
By: /S/ Russell D. Phillips
Name: Russell D. Phillips
Title: Secretary
SMT MOBILE I CORP.
By: /S/ Russell D. Phillips
Name: Russell D. Phillips
Title: Secretary
SMT MOBILE III CORP.
By: /S/ Russell D. Phillips
Name: Russell D. Phillips
Title: Secretary
SMT MOBILE IV CORP.
By: /S/ Russell D. Phillips
Name: Russell D. Phillips
Title: Secretary
[SIGNATURES CONTINUED ON NEXT PAGE]
<PAGE>
SMT MOBILE V CORP.
By: /S/ Russell D. Phillips
Name: Russell D. Phillips
Title: Secretary
SMT MOBILE VI CORP.
By: /S/ Russell D. Phillips
Name: Russell D. Phillips
Title: Secretary
SMT MOBILE VII CORP.
By: /S/ Russell D. Phillips
Name: Russell D. Phillips
Title: Secretary
SMT MOBILE VIII CORP.
By: /S/ Russell D. Phillips
Name: Russell D. Phillips
Title: Secretary
SMT MOBILE IX CORP.
By: /S/ Russell D. Phillips
Name: Russell D. Phillips
Title: Secretary
[SIGNATURES CONTINUED ON NEXT PAGE]
<PAGE>
SMT MOBILE X CORP.
By: /S/ Russell D. Phillips
Name: Russell D. Phillips
Title: Secretary
<PAGE>
IBJ WHITEHALL BANK & TRUST COMPANY,
as Trustee
By: /S/ Terence Rawlins
Name: Terence Rawlins
Title: Assistant Vice President
<PAGE>
EXHIBIT 99.6
AMENDMENT NO. 1 dated as of May 13, 1999 (this "Amendment") to the
REGISTRATION RIGHTS AGREEMENT (the "Original Agreement" and, as amended hereby,
this "Agreement"), dated as of December 18, 1997, between ALLIANCE IMAGING,
INC., a Delaware corporation (the "Company"), NEWPORT INVESTMENT LLC, a Delaware
limited liability company (the "Investor") and each of the other parties
signatory hereto (the "Apollo Funds").
Pursuant to the Agreement and Plan of Merger dated as of April 14, 1999
(the "SMT Merger Agreement"), between the Company and Three Rivers Holding
Corp., a Delaware corporation, the Apollo Funds received an aggregate of
1,644,440 shares of common stock of the Company (the "New Shares").
In consideration of the premises and the mutual benefits to be derived
from this Amendment and the representations, warranties, covenants, agreements
and conditions hereinafter set forth, the parties hereto hereby agree as follows
(capitalized terms used but not defined herein have the meanings ascribed to
them in the Original Agreement):
ARTICLE I
AMENDMENT
1.1 Shares and Registrable Shares.
-----------------------------
(a) The term "Shares" as defined in the first paragraph of the
Original Agreement is hereby deleted and replaced with the following: "The term
"Shares" means all Shares of common stock, par value $.01 per share, of the
Company that are (i) owned by the Investor or any of the Apollo Funds at any
time of determination, (ii) received by the Investor pursuant to the
Recapitalization Merger Agreement or (iii) received by any of the Apollo Funds
pursuant to the SMT Merger Agreement. Without limiting the foregoing, the term
Shares shall include the 5,033,762 shares of common stock, par value $.01 per
share, of the Company owned by the Investor and the Apollo Funds as of May 13,
1999." All references in the Agreement to "Shares" is hereby amended to refer to
the definition thereof as amended hereby.
(b) Notwithstanding anything to the contrary in the Original
Agreement, all Shares, including, without limitation, the New Shares shall be
included in the definition of Registrable Shares.
1.2 Holders.
-------
Notwithstanding anything to the contrary in the Original Agreement, the
term "Holder" shall include each of the Apollo Funds.
<PAGE>
ARTICLE II
MISCELLANEOUS PROVISIONS
2.1 Agreement.
---------
Except as modified by this Amendment, the Original Agreement shall
remain in full force and effect, enforceable in accordance with its terms. This
Amendment is not a consent to any waiver or modification of any other terms or
conditions of the Agreement or any of the instruments or documents referred to
in the Agreement and shall not prejudice any right or rights which the parties
thereto may now or hereafter have under or in connection with the Agreement or
any of the instruments or documents referred to therein.
2.2 Counterparts.
------------
This Amendment may be executed in any number of counterparts, and each
such counterpart shall be deemed to be an original instrument, but all such
counterparts together shall constitute one agreement.
2.3 Governing Law.
-------------
This Amendment shall be governed and construed in accordance with the
laws of the State of Delaware.
* * *
2
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first written above.
ALLIANCE IMAGING, INC.
By: /S/ Russell D. Phillips, Jr.
Name: Russell D. Phillips, Jr.
Title: Secretary and General Counsel
NEWPORT INVESTMENT LLC
By: /S/ Josh Harris
Name: Josh Harris
Title:
APOLLO INVESTMENT FUND III, L.P.
By: Apollo Advisors II, L.P.
By: Apollo Capital Management II, Inc.
By: /S/ Josh Harris
Name: Josh Harris
Title:
APOLLO OVERSEAS PARTNERS III, L.P.
By: Apollo Advisors II, L.P.
By: Apollo Capital Management II, Inc.
By: /S/ Josh Harris
Name: Josh Harris
Title:
APOLLO (U.K.) PARTNERS III, L.P.
By: Apollo Advisors II, L.P.
By: Apollo Capital Management II, Inc.
By: /S/ Josh Harris
Name: Josh Harris
Title:
3
