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Exhibit 10.1

 

 

FIRST AMENDMENT TO

CREDIT AGREEMENT

AND JOINDER

Dated as of June 29, 2012

among

LINCARE HOLDINGS INC .,

as Borrower,

CERTAIN SUBSIDIARIES OF THE BORROWER IDENTIFIED HEREIN,

as Guarantors,

XXXXX FARGO BANK, NATIONAL ASSOCIATION,

as Agent,

FIFTH THIRD BANK,

TD BANK, N.A.

and

CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK

as Co-Syndication Agents,

RBS CITIZENS, NATIONAL ASSOCIAITON

as Documentation Agent

and

The Other Lenders Party Hereto

 

 

XXXXX FARGO SECURITIES, LLC

FIFTH THIRD BANK

TD SECURITIES (USA) LLC

and

CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK,

as Joint Bookrunners and Joint Lead Arrangers

 

 

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FIRST AMENDMENT TO CREDIT AGREEMENT AND JOINDER

THIS FIRST AMENDMENT TO CREDIT AGREEMENT AND JOINDER (this “ Amendment ”) dated as of June 29, 2012 to the Credit Agreement referenced below is by and among LINCARE HOLDINGS INC ., a Delaware corporation (the “ Borrower ”), each of the Subsidiaries of the Borrower identified as a “Guarantor” on the signature pages hereto, the Lenders identified on the signature pages hereto, BANK OF AMERICA, N.A., as the resigning Agent (in such capacity, the “ Resigning Agent ”) and XXXXX FARGO BANK, N.A., as the successor Agent (in such capacity, “ New Agent ”).

W I T N E S S E T H

WHEREAS, the Borrower, the Guarantors, certain Lenders (the “ Existing Lenders ”) and the Resigning Agent are party to that certain Credit Agreement dated as of September 15, 2011 (the “ Existing Credit Agreement ”); and

WHEREAS, the Borrower has requested that all of the Existing Lenders approve certain amendments and modifications, including the addition of a $250 million single-draw credit facility, to the Existing Credit Agreement ; and

WHEREAS, in connection with such amendments and modifications to the Existing Credit Agreement , the Resigning Agent has notified the Borrower and the Lenders that it intends to resign as Agent pursuant to Section 10.9 of the Existing Credit Agreement ;

WHEREAS, in connection with such amendments and modifications to the Existing Credit Agreement , Bank of America, N.A. has notified the Borrower and the Lenders that it intends to resign as Swingline Lender (in such capacity, the “ Resigning Swingline Lender ”);

WHEREAS, in connection with such amendments and modifications to the Existing Credit Agreement, Bank of America, N.A. has notified the Borrower and the Lenders that it intends to resign as an Issuing Lender (in such capacity, the “ Resigning Issuing Lender ”);

WHEREAS, the Borrower has requested that the Existing Lenders and the Single-Draw Lenders, which collectively constitute all of the Lenders under the Amended Credit Agreement (as defined below) approve the appointment of the New Agent as the successor Agent under the Amended Credit Agreement; and

WHEREAS, the Existing Lenders have approved the amendments and modifications to the Existing Credit Agreement requested by the Borrower, and the Existing Lenders and the Single-Draw Lenders have approved the appointment of the New Agent as the successor Agent on the terms and conditions set forth herein.

NOW, THEREFORE, IN CONSIDERATION of the premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

1. Defined Terms . Capitalized terms used herein but not otherwise defined herein shall have the meanings provided to such terms in the Amended Credit Agreement (as defined below).

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2. Single-Draw-Credit Facility .

(a) A new single-draw credit facility in an initial aggregate amount of $250 million is added to the Existing Credit Agreement pursuant to the terms and conditions contained in the Amended Credit Agreement.

(b) The Single-Draw Commitment of each Single-Draw Lender, immediately after giving effect to this Amendment, equals the amount set forth opposite such Lender’s name on Schedule 2.1(a) to the Amended Credit Agreement attached hereto in Appendix C .

3. Amendments to the Credit Agreement .

(a) The Existing Credit Agreement is hereby amended in its entirety to read in the form attached hereto as Appendix A to this Amendment (the “ Amended Credit Agreement ”). Except as specifically set forth herein, the amendment in its entirety of the Existing Credit Agreement shall not, in any manner, be construed to constitute payment of, or impair, limit, cancel or extinguish, or constitute a novation in respect of, the “Credit Party Obligations” under (and as defined in) the Existing Credit Agreement and the other Credit Documents (as defined in Existing Credit Agreement). All “Revolving Loans” and other “Credit Party Obligations” outstanding under (and as defined in) the Existing Credit Agreement immediately prior to the effectiveness of this Amendment shall continue to be outstanding as Revolving Committed Loans and Credit Party Obligations, respectively, under the Amended Credit Agreement upon the effectiveness of this Amendment, and the terms of the Amended Credit Agreement will govern the rights and obligations of the Credit Parties, the Lenders and the Agent with respect thereto.

(b) The exhibits to the Existing Credit Agreement are hereby amended in their entirety to read in the form attached hereto as Appendix B to this Amendment.

(c) The schedules to the Existing Credit Agreement are amended in their entirety to read in the form attached hereto as Appendix C to this Amendment.

4. Lender Joinder . By execution of this Amendment, each Person identified on the signature pages hereto as a “Single-Draw Lender”, in its capacity as such, hereby acknowledges, agrees and confirms that, by its execution of this Amendment, such Person will be deemed to be a party to the Amended Credit Agreement (to the extent not already a party thereto) and a “Single-Draw Lender” for all purposes of the Amended Credit Agreement, and shall have all of the obligations of a Single-Draw Lender thereunder as if it had executed the Amended Credit Agreement. Such Person hereby ratifies, as of the date hereof, and agrees to be bound by, all of the terms, provisions and conditions applicable to the Single-Draw Lenders contained in the Amended Credit Agreement.

5. Appointment of Successor Agent . As of the effectiveness of this Amendment, (a) the Resigning Agent resigns as Agent under the Existing Credit Agreement and the other Credit Documents (as defined in the Existing Credit Agreement), (b) the Resigning Swingline Lender resigns as Swingline Lender under the Existing Credit Agreement and the other Credit Documents (as defined in the Existing Credit Agreement), (c) the Resigning Issuing Lender resigns as an Issuing Lender under the Existing Credit Agreement and the other Credit Documents (as defined in the Existing Credit Agreement), (d) in connection with the amendment of the Existing Credit Agreement, the New Agent is appointed by the Existing Lenders and the Single-Draw Lenders (constituting all of the Lenders under the Amended Credit Agreement) as the successor Agent under the Amended Credit Agreement and the other Credit Documents, (e) the New Agent accepts appointment as Agent under the Amended Credit Agreement and

 

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the other Credit Documents, (f) in connection with the amendment of the Existing Credit Agreement, Xxxxx Fargo Bank, National Association is appointed by the Existing Lenders and the Single-Draw Lenders (constituting all of the Lenders under the Amended Credit Agreement) as the successor Swingline Lender under the Amended Credit Agreement and the other Credit Documents, (g) Xxxxx Fargo Bank, National Association accepts the appointment as Swingline Lender under the Amended Credit Agreement and the other Credit Documents, (h) in connection with the amendment of the Existing Credit Agreement, Xxxxx Fargo Bank, National Association is appointed by the Existing Lenders and the Single-Draw Lenders (constituting all of the Lenders under the Amended Credit Agreement) as an Issuing Lender under the Amended Credit Agreement and the other Credit Documents, (g) Xxxxx Fargo Bank, National Association accepts the appointment as Issuing Lender under the Amended Credit Agreement and the other Credit Documents.

6. Conditions Precedent . The effectiveness of this Amendment and the obligation of the Single-Draw Lenders to make the Single-Draw Loan pursuant to Section 2.1(a)(ii) of the Amended Credit Agreement shall be subject to satisfaction of the following conditions:

(a) Executed Documents . Receipt by the New Agent of counterparts of this Amendment duly executed by the Credit Parties, each Existing Lender, each Single-Draw Lender, the Resigning Agent and the New Agent;

(b) Promissory Notes . Receipt of a Note by each Lender requesting a Note, if any, evidencing its Commitments under the Amended Credit Agreement;

(c) No Default . No Default or Event of Default shall exist and be continuing either immediately prior to or after giving effect to (i) this Amendment or (ii) the extension of the Single-Draw Loan;

(d) Representations and Warranties . The representations and warranties set forth in Credit Documents (including but not limited to Section 6 of the Amended Credit Agreement) shall be true and correct in all material respects as of such date other than those representations and warranties which expressly relate to an earlier date, which shall be true and correct in all material respects as of such earlier date (except to the extent that any representation and warranty is qualified by materiality, in which case such representation and warranty shall be true and correct to such extent in all respects as of such applicable date).

(e) Material Adverse Change . No event having a Material Adverse Effect shall have occurred since December 31, 2011;

(f) Fees and Other Payments . The Borrower shall have paid (i) to the New Agent, the Lenders and/or their affiliates, all fees and expenses due and payable pursuant to the First Amendment Fee Letters, (ii) to the New Agent, the initial payment of the annual administrative fee described in the Xxxxx Fargo First Amendment Fee Letter, (iii) to the New Agent, for the account of each Existing Lender signing this Amendment, an amendment fee equal to .075% of the commitment of each such Existing Lender under the Existing Credit Agreement immediately prior to the effectiveness of this Amendment, (iv) to the Resigning Agent, all fees and expenses due and payable thereto in its capacity as Agent prior to the consummation of the transactions contemplated hereby, and (v) to the New Agent, all other interest and fees accrued immediately prior to the effectiveness of this Amendment;

 

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(g) Consents . Receipt by the New Agent of evidence that all governmental, shareholder and material third party consents and approvals necessary or desirable in connection with the financings and other transactions contemplated by the Amended Credit Agreement and expiration of all applicable waiting periods without any action being taken by any authority that could reasonably be likely to restrain, prevent or impose any material adverse conditions on such transactions or that could reasonably be likely to seek or threaten any of the foregoing, and no law or regulation shall be applicable which in the judgment of the New Agent could reasonably be likely to have such effect;

(h) Opinions . The New Agent shall have received an opinion, or opinions of counsel, addressed to each of the Lenders and Issuing Lenders, in form and substance satisfactory to the New Agent dated as of the Closing Date from counsel to the Credit Parties;

(i) Corporate Documents; Certificates . The New Agent shall have received a “bring-down” certification of the organizational documents and other certificates that were delivered in connection with the initial closing of the Credit Agreement, together with such resolutions of the board of directors or other similar governing body of each Credit Party as the Lenders may reasonably require;

(j) Good Standings . To the extent requested by the New Agent, copies of certificates of good standing, existence or its equivalent with respect to each Credit Party certified as of a recent date by the appropriate governmental authorities of its state or other jurisdiction of incorporation or organization;

(k) Pledge of Stock . The New Agent shall have received all stock certificates evidencing the Capital Stock pledged to the New Agent pursuant to the Pledge Agreement, together with duly executed in blank undated stock powers attached thereto (including any such stock certificates and/or stock powers delivered to the Resigning Agent prior to the date hereof), or arrangements satisfactory to the New Agent for the delivery thereof shall have been made;

(l) Uniform Commercial Code Filings . The New Agent shall have received evidence in form and substance satisfactory to it that all filings, recordings, registrations and other actions (including without limitation the filing of all duly completed UCC-1 financing statements or UCC-3 financing statement amendments) necessary to perfect the security interest in the capital stock pledged to the New Agent shall have been completed, or arrangements satisfactory to the New Agent for the completion thereof shall have been made;

(m) Lien Searches . The New Agent shall have received certified reports from an independent search service satisfactory to it listing any judgment or tax lien filing or Uniform Commercial Code financing statement that names any Credit Party holding Capital Stock being pledged to the New Agent pursuant to the Pledge Agreement as debtor in the applicable jurisdiction of incorporation or organization of each such entity, and the results thereof shall be reasonably satisfactory to the New Agent;

(n) Financial Projections . The New Agent shall have received a certificate executed by a financial officer of the Borrower, in form and substance reasonably satisfactory to the New Agent, as to the financial projections delivered in connection with the Amended Credit Agreement having been prepared in good faith and reasonably based on assumptions that, to the knowledge of such financial officer, were reasonable at the time of such delivery and without any representation or warranty that such financial projections will in fact be achieved; and

 

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(o) Account Designation Letter; Disbursement of Proceeds . The New Agent shall have received an account designation letter, in form and substance reasonably satisfactory to the New Agent, designating one or more accounts to which the Borrower may from time to time request the Agent to forward the proceeds of any Loan under the Amended Credit Agreement, and written instructions from the Borrower, including wire transfer information, directing the payment of the proceeds of the Single-Draw Loan on the Amendment Closing Date.

7. Amendment is a “Credit Document” . This Amendment is a Credit Document and all references to a “Credit Document” in the Amended Credit Agreement and the other Credit Documents (including, without limitation, all such references in the representations and warranties in the Amended Credit Agreement and the other Credit Documents) shall be deemed to include this Amendment.

8. Reaffirmation of Representations and Warranties . Each Credit Party represents and warrants as of the effective date of this Amendment that (i) each of the representations and warranties set forth in the Credit Documents is true and correct in all material respects (except to the extent that any representation and warranty is qualified by materiality, in which case such representation and warranty shall be true and correct in all respects to such extent) as of such date, other than those representations and warranties which expressly relate to an earlier date, in which case, they were true and correct in all material respects (except to the extent that any representation and warranty is qualified by materiality, in which case such representation and warranty shall be true and correct in all respects to such extent) as of such earlier date, and (ii) both before and immediately following the consummation of the transactions contemplated hereby, no Default or Event of Default has occurred and is continuing

9. Reaffirmation of Obligations . Each Credit Party (a) acknowledges and consents to all of the terms and conditions of this Amendment, (b) affirms all of its obligations, including, but not limited to, all guaranty obligations, under the Credit Documents and (c) agrees that this Amendment and all documents executed in connection herewith do not operate to reduce or discharge such Credit Party’s obligations under the Credit Documents.

10. Reaffirmation of Security Interests . Each Credit Party (a) affirms that each of the Liens granted in or pursuant to the Credit Documents are valid and subsisting and (b) agrees that this Amendment shall in no manner impair or otherwise adversely affect any of the Liens granted in or pursuant to the Credit Documents.

11. No Other Changes . Except as modified hereby, all of the terms and provisions of the Credit Documents shall remain in full force and effect.

12. Expenses . The Borrower agrees to pay all reasonable out of pocket costs and expenses incurred by each of the Resigning Agent and the New Agent in connection with this Amendment and the transactions contemplated hereby including the reasonable fees and out-of-pocket disbursements of counsel to each of the Resigning Agent and to the New Agent.

13. Counterparts; Delivery . This Amendment may be executed in any number of counterparts, each of which when so executed and delivered shall be an original, but all of which shall constitute one and the same instrument. It shall not be necessary in making proof of this Amendment to produce or account for more than one such counterpart for each of the parties hereto. Delivery by facsimile or other electronic imaging means by any of the parties hereto of an executed counterpart of this Amendment shall be as effective as an original executed counterpart hereof and shall be deemed a representation that an original executed counterpart hereof will be delivered.

 

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14. Governing Law . THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK .

[Signature Pages Follow]

 

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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this First Amendment to be duly executed and delivered as of the date first above written.

 

BORROWER :				LINCARE HOLDINGS INC .,
				a Delaware corporation
				By:
				Name:		Xxxx X. Xxxxx
				Title:		Secretary
GUARANTORS :				LINCARE INC.,
				a Delaware corporation
				LINCARE PROCUREMENT INC.,
				a Delaware corporation
				LINCARE OF NEW YORK , INC.,
				a New York corporation
				LINCARE PHARMACY SERVICES INC.,
				a Delaware corporation
				LINCARE LICENSING INC.,
				a Delaware corporation
				CONVACARE SERVICES, INC.,
				an Indiana corporation
				MED 4 HOME INC.,
				a Delaware corporation
				ALPHA RESPIRATORY INC.,
				a Delaware corporation
				HEALTH CARE SOLUTIONS AT HOME INC.,
				a Delaware corporation
				HOME-CARE EQUIPMENT NETWORK INC.,
				a Delaware corporation
				GAMMA ACQUISITION INC.,
				a Delaware corporation
				LINCARE OF CANADA ACQUISITIONS, INC.,
				a Delaware corporation
				By:
				Name:		Xxxx X. Xxxxx
				Title:		Secretary

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				PULMOREHAB LLC,
				a Delaware limited liability company
				LINCARE EQUIPMENT LLC, a Delaware limited liability company
				LINCARE LEASING LLC, a Delaware limited liability company
				LINCARE PULMONARY REHAB MANAGEMENT, LLC, a Delaware limited liability company
				ACRO PHARMACEUTICAL SERVICES LLC, a Pennsylvania limited liability company
				COMMUNITY PHARMACY SERVICES, LLC, a Delaware limited liability company
				CARING RESPONDERS LLC, a Delaware limited liability company
				OPTIGEN, INC., a Florida corporation
				LINCARE ONLINE LLC, a Delaware limited liability company
				COMPLETE INFUSION SERVICES, LLC, a Michigan limited liability company
				MDINR, LLC, a Delaware limited liability company
				By:
				Name:		Xxxx X. Xxxxx
				Title:		Secretary

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				MEDIMATICS LLC,
				a Delaware limited liability company
				OCT PHARMACY, L.L.C., a Michigan limited liability company
				MMOC, LLC, a Michigan limited liability company
				W&F HIGH TECH SYSTEMS, LLC, a Michigan limited liability company
				MRB ACQUISITION CORP., a Florida corporation
				By:
				Name:		Xxxx X. Xxxxx
				Title:		Secretary
				LINCARE PULMONARY REHAB SERVICES OF FLORIDA, P.L., a Florida professional limited company
						By: LINCARE PULMONARY REHAB MANAGEMENT, LLC,
						its Manager
				By:
				Name:		Xxxx X. Xxxxx
				Title:		Secretary
				LINCARE PULMONARY REHAB SERVICES OF MISSOURI, LLC, a Missouri limited liability company
						By: LINCARE INC.,
						its Sole Member
				By:
				Name:		Xxxx X. Xxxxx
				Title:		Secretary

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				HEALTHLINK MEDICAL EQUIPMENT, L.L.C.,
				a Michigan limited liability company
						By: HEALTH CARE SOLUTIONS AT HOME INC.,
						its Sole Member
				By:
				Name:		Xxxx X. Xxxxx
				Title:		Secretary
				HCS LANCASTER, LLC, a Delaware limited liability company
						By: HEALTH CARE SOLUTIONS AT HOME INC.,
						its Sole Member
				By:
				Name:		Xxxx X. Xxxxx
				Title:		Secretary
				VALLEY MEDICAL CORPORATION, an Ohio corporation
				SLEEPCAIR, INC., a Kansas corporation
				SPECTRUM MEDICAL EQUIPMENT, INC., a Kansas corporation
				CPAP SUPPLY USA, LLC, a Delaware limited liability company
				LINCARE PULMONARY REHAB SERVICES OF OHIO, LLC, an Ohio limited liability company
				By:
				Name:		Xxxx X. Xxxxx
				Title:		Secretary

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NEW AGENT:				XXXXX FARGO BANK, NATIONAL ASSOCIATION, as the New Agent
				By:
				Name:		Xxxxx Santa Xxxx
				Title:		Managing Director
RETIRING AGENT:				BANK OF AMERICA, N.A., as the Resigning Agent
				By:
				Name:		Xxxxx X. Xxxxx
				Title:		Vice President
LENDERS:				BANK OF AMERICA, N.A., as an Existing Lender, Resigning Swingline Lender and Resigning Issuing Lender
				By:
				Name:		Xxxxx X. Xxxxxx
				Title:		Director
				XXXXX FARGO BANK, NATIONAL ASSOCIATION, as an Existing Lender, a Single-Draw Lender, Swingline Lender and as an Issuing Lender
				By:
				Name:		Xxxxx Santa Xxxx
				Title:		Managing Director
				FIFTH THIRD BANK, as an Existing Lender and a Single-Draw Lender
				By:
				Name:		Xxxxxxxx X. Xxxxxx
				Title:		Vice President

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Appendix A to First Amendment

Amended Credit Agreement

Appendix A

to First Amendment

CUSIP No.: 00000XXX0

Revolving Committed Loans CUSIP No.: 00000XXX0

Single-Draw Loan CUSIP No.: 00000XXX0

CREDIT AGREEMENT

Dated as of September 15, 2011

(as amended by that certain First Amendment dated as of June 29, 2012)

among

LINCARE HOLDINGS INC .,

as Borrower,

CERTAIN SUBSIDIARIES OF THE BORROWER

FROM TIME TO TIME PARTY HERETO,

as Guarantors,

THE SEVERAL LENDERS

FROM TIME TO TIME PARTY HERETO

and

XXXXX FARGO BANK, NATIONAL ASSOCIATION

as Agent

and

FIFTH THIRD BANK,

TD BANK, N.A.

and CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK,

as Co-Syndication Agents for the First Amendment

and

RBS CITIZENS, NATIONAL ASSOCIATION,

as Documentation Agent for the First Amendment

First Amendment arranged by:

XXXXX FARGO SECURITIES, LLC,

FIFTH THIRD BANK, TD SECURITIES (USA) LLC,

and

CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK,

as Joint Lead Arrangers and Joint Book Managers

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TABLE OF CONTENTS

 

SECTION 1 DEFINITIONS					1
1.1		Definitions			1
1.2		Computation of Time Periods			27
1.3		Accounting Terms			27
1.4		Letter of Credit Amounts			28
SECTION 2 CREDIT FACILITIES					28
2.1		Loans			28
2.2		Letter of Credit Subfacility			31
2.3		Swingline Loans			35
2.4		Incremental Term Loans			37
SECTION 3 OTHER PROVISIONS RELATING TO CREDIT FACILITIES					39
3.1		Default Rate			39
3.2		Extension and Conversion			39
3.3		Prepayments			40
3.4		Termination and Reduction of Commitments			41
3.5		Fees			41
3.6		Capital Adequacy			43
3.7		Limitation on Eurodollar Loans			43
3.8		Illegality			43
3.9		Requirements of Law			44
3.10		Treatment of Affected Loans			45
3.11		Taxes			45
3.12		Compensation			48
3.13		Pro Rata Treatment			48
3.14		Sharing of Payments			49
3.15		Payments, Computations, Etc .			50
3.16		Evidence of Debt			51
3.17		Replacement of Affected Lenders			52
3.18		Cash Collateral			52
3.19		Defaulting Lenders			53
SECTION 4 GUARANTY					55
4.1		The Guaranty			55
4.2		Obligations Unconditional			55
4.3		Reinstatement			57
4.4		Certain Additional Waivers			57
4.5		Remedies			57
4.6		Rights of Contribution			57
4.7		Continuing Guarantee			58
4.8		Limitation of Liability			58
SECTION 5 CONDITIONS					59
5.1		[Reserved]			59
5.2		Conditions to all Extensions of Credit			59
SECTION 6 REPRESENTATIONS AND WARRANTIES					60
6.1		Financial Condition			60
6.2		No Material Change			60
6.3		Organization and Good Standing			61

 

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6.4		Power; Authorization; Enforceable Obligations			61
6.5		No Conflicts			61
6.6		No Default			61
6.7		Ownership			62
6.8		Indebtedness			62
6.9		Litigation			62
6.10		Taxes			62
6.11		Compliance with Law			62
6.12		ERISA			63
6.13		Subsidiaries			63
6.14		Governmental Regulations, Etc .			64
6.15		Purpose of Loans and Letters of Credit			64
6.16		Environmental Matters			64
6.17		Intellectual Property			65
6.18		Solvency			65
6.19		Investments			65
6.20		Disclosure			66
6.21		No Unusual Restrictions			66
6.22		Reimbursement from Third Party Payors			66
6.23		Fraud and Abuse			66
6.24		Licensing and Accreditation			67
SECTION 7 AFFIRMATIVE COVENANTS					67
7.1		Information Covenants			67
7.2		Preservation of Existence and Franchises			70
7.3		Books and Records			70
7.4		Compliance with Law			70
7.5		Payment of Taxes			70
7.6		Insurance			71
7.7		Maintenance of Property			71
7.8		[Reserved]			71
7.9		Use of Proceeds			71
7.10		Audits/Inspections			71
7.11		Financial Covenants			71
7.12		Additional Guarantors and Pledged Stock			71
SECTION 8 NEGATIVE COVENANTS					72
8.1		Indebtedness			72
8.2		Liens			73
8.3		Nature of Business			74
8.4		Consolidation, Merger, Dissolution, etc .			74
8.5		Asset Dispositions			74
8.6		Investments			75
8.7		Restricted Payments			75
8.8		Prepayments of Indebtedness, etc .			75
8.9		Transactions with Affiliates			75
8.10		Fiscal Year; Organizational Documents			76
8.11		Limitation on Restricted Actions			76
8.12		Ownership of Subsidiaries; Limitations on Borrower			76
8.13		Sale Leasebacks			76

 

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SECTION 9 EVENTS OF DEFAULT					77
9.1		Events of Default			77
9.2		Acceleration; Remedies			79
SECTION 10 AGENCY PROVISIONS					80
10.1		Appointment and Authorization of Agent			80
10.2		Delegation of Duties			80
10.3		Liability of Agent			80
10.4		Reliance by Agent			81
10.5		Notice of Default			81
10.6		Credit Decision; Disclosure of Information by Agent			82
10.7		Indemnification of Agent			82
10.8		Agent in its Individual Capacity			82
10.9		Successor Agent			83
10.10		Agent May File Proofs of Claim			83
10.11		Collateral and Guaranty Matters			84
10.12		No Other Duties; Etc .			84
SECTION 11 MISCELLANEOUS					85
11.1		Notices			85
11.2		Right of Set-Off; Adjustments			86
11.3		Successors and Assigns			87
11.4		No Waiver; Remedies Cumulative			91
11.5		Expenses; Indemnification			91
11.6		Amendments, Waivers and Consents			93
11.7		Counterparts			94
11.8		Headings			94
11.9		Survival			94
11.10		Governing Law; Submission to Jurisdiction; Venue			95
11.11		Severability			95
11.12		Entirety			95
11.13		Binding Effect; Termination			95
11.14		Conflict			96
11.15		Confidentiality			96
11.16		No Advisory or Fiduciary Responsibility			97
11.17		USA PATRIOT Act Notice			97

 

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SCHEDULES

 

Schedule 1.1(a)		Investments
Schedule 1.1(b)		Liens
Schedule 2.1(a)		Commitment Percentages as of the First Amendment Effective Date
Schedule 6.13		Subsidiaries
Schedule 8.1		Indebtedness

EXHIBITS

 

Exhibit 2.1(b)(i)		Form of Notice of Borrowing
Exhibit 2.1(e)		Form of Notes
Exhibit 2.3		Form of Notice of Swingline Borrowing
Exhibit 3.2		Form of Notice of Extension/Conversion
Exhibit 7.1(c)		Form of Officer’s Compliance Certificate
Exhibit 7.12		Form of Joinder Agreement
Exhibit 11.3		Form of Assignment and Assumption

 

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CREDIT AGREEMENT

THIS CREDIT AGREEMENT , dated as of September 15, 2011, as amended by the First Amendment (defined below), dated as of June 29, 2012 (as otherwise amended, modified, restated or supplemented from time to time, the “ Credit Agreement ”), is by and among LINCARE HOLDINGS INC ., a Delaware corporation (the “ Borrower ”), each of the Subsidiaries of the Borrower from time to time party hereto as “Guarantors”, the Lenders (as defined herein) from time to time party hereto and XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Agent (as defined below).

W I T N E S S E T H

WHEREAS, the Borrower and each of its Subsidiaries are party to that certain Credit Agreement, dated as of December 1, 2006, as amended from time to time thereafter (as amended, the “ Existing Credit Agreement ”), among the Borrower, the guarantors party thereto, the lenders party thereto, and Bank of America, N.A., as the agent for such lenders;

WHEREAS , the Borrower and the Guarantors have requested, and the Lenders have agreed to provide, the requested $450,000,000 five-year revolving credit facility available to the Borrower on the terms and conditions hereinafter set forth, which will be used in part to repay all amounts outstanding under the Existing Credit Agreement; and

WHEREAS , in connection with the First Amendment, the Borrower and the Guarantors have requested, and the Lenders have agreed, to amend this Credit Agreement to, among other things, provide a $250,000,000 five-year single-draw credit facility and appoint Xxxxx Fargo Bank, National Association as successor Agent to Bank of America, N.A, on the terms and conditions hereinafter set forth.

NOW, THEREFORE, IN CONSIDERATION of the premises and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:

SECTION 1

DEFINITIONS

 

1.1	Definitions .

As used in this Credit Agreement, the following terms shall have the meanings specified below unless the context otherwise requires:

“ 2007 Series A Convertible Note Indenture ” means that certain Convertible Senior Note Indenture by and between the Borrower and U.S. Bank Trust National Association, as Trustee with respect to the 2007 Series A Convertible Notes.

“ 2007 Series A Convertible Notes ” means the Borrower’s Series A Convertible Senior Debentures due 2037 (each as amended, modified, extended, renewed or restated from time to time) issued under the 2007 Series A Convertible Note Indenture.

“ 2007 Series B Convertible Note Indenture ” means that certain Convertible Senior Note Indenture by and between the Borrower and U.S. Bank Trust National Association, as Trustee with respect to the 2007 Series B Convertible Notes.

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“ 2007 Series B Convertible Notes ” means the Borrower’s Series B Convertible Senior Debentures due 2037 (each as amended, modified, extended, renewed or restated from time to time) issued under the 2007 Series B Convertible Note Indenture.

“ Account Designation Letter ” means a letter from the Borrower to the Agent, duly completed and signed by the Borrower and in form and substance reasonably satisfactory to the Agent, listing one or more accounts to which the Borrower may from time to time request the Agent to forward the proceeds of any Loans hereunder.

“ Acquisition ”, by any Person, means the acquisition by such Person of all of the Capital Stock or all or substantially all of the Property of another Person, whether or not involving a merger or consolidation with such other Person.

“ Adjusted Base Rate ” means the Base Rate plus the Applicable Percentage.

“ Adjusted Eurodollar Rate ” means the Eurodollar Rate plus the Applicable Percentage.

“ Administrative Questionnaire ” means an Administrative Questionnaire in a form supplied by the Agent.

“ Affiliate ” means, with respect to any Person, any other Person (i) directly or indirectly controlling or controlled by or under direct or indirect common control with such Person or (ii) directly or indirectly owning or holding five percent (5%) or more of the equity interest in such Person. For purposes of this definition, “control” when used with respect to any Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

“ Agent ” means Xxxxx Fargo (as successor in interest to Bank of America, N.A.) in its capacity as agent for the Lenders, together with any permitted successor in such capacity.

“ Agent-Related Persons ” means the Agent (including any successor agent), together with its Affiliates (including, in the case of Xxxxx Fargo in its capacity as the Agent), and the officers, directors, employees, agents and attorneys-in-fact of such Persons and Affiliates.

“ Applicable Lending Office ” means, for each Lender, the office of such Lender (or of an Affiliate of such Lender) as such Lender may from time to time specify to the Agent and the Borrower by written notice as the office by which its Eurodollar Loans are made and maintained.

“ Applicable Maturity Date ” means (i) with respect to the Revolving Committed Loans, the Swingline Loans and Letters of Credit, the Revolver Maturity Date and (ii) with respect to the Single-Draw Loan, the Single-Draw Maturity Date.

 

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“ Applicable Percentage ” means, for purposes of calculating the applicable interest rate for any day for any Loan, the applicable rate of the Commitment Fee for any day for purposes of Section 3.5(b) and the applicable rate of the Letter of Credit Fee for any day for purposes of Section 3.5(c)(i) , the appropriate applicable percentage corresponding to the Leverage Ratio in effect as of the most recent Calculation Date as set forth below:

 

Applicable Percentages
				Revolving Committed Loans								Single-Draw Loan
Pricing Level		Leverage Ratio		Eurodollar Loans				Base Rate Loans				Eurodollar Loans				Base Rate Loans				Letter of Credit Fee				Commitment Fee
I		< 1.00			1.125	%			0.125	%			1.25	%			0.25	%			1.125	%			0.175	%
II		<2.00 but > 1.0			1.375	%			0.375	%			1.50	%			0.50	%			1.375	%			0.20	%
III		< 2.50 but > 2.00			1.50	%			0.50	%			1.625	%			0.625	%			1.50	%			0.25	%
IV		> 2.50			1.625	%			0.625	%			1.75	%			0.75	%			1.625	%			0.275	%

The Applicable Percentages shall be determined and adjusted quarterly on the date (each a “ Calculation Date ”) five Business Days after the date by which the Borrower is required to provide the officer’s certificate in accordance with the provisions of Section 7.1(c) for the most recently ended fiscal quarter of the Consolidated Parties; provided , however , that (i) the initial Applicable Percentages for the Single-Draw Loan following the First Amendment Effective Date shall be based on Pricing Level II (as shown above) and shall remain at Pricing Level II until the Calculation Date for the fiscal quarter of the Consolidated Parties ending on June 30, 2012, on and after which time the Pricing Level for the Single-Draw Loan shall be determined by the Leverage Ratio as of the last day of the most recently ended fiscal quarter of the Consolidated Parties preceding the applicable Calculation Date and (ii) if the Borrower fails to provide the officer’s certificate as required by Section 7.1(c) for the last day of the most recently ended fiscal quarter of the Consolidated Parties preceding the applicable Calculation Date, the Applicable Percentage from such Calculation Date shall be based on Pricing Level IV until such time as an appropriate officer’s certificate is provided, whereupon the Applicable Percentages shall be determined by the Leverage Ratio as of the last day of the most recently ended fiscal quarter of the Consolidated Parties preceding such Calculation Date. Each Applicable Percentage shall be effective from one Calculation Date until the next Calculation Date. Any adjustment in the Applicable Percentages shall be applicable to all existing Loans and Letters of Credit as well as any new Loans and Letters of Credit made or issued.

“ Approved Fund ” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

“ Asset Disposition ” means any disposition, other than pursuant to an Excluded Asset Disposition, of any or all of the Property (including without limitation the Capital Stock of a Subsidiary) of any Consolidated Party whether by sale, lease, transfer or otherwise, but other than pursuant to any casualty or condemnation event.

“ Assignee Group ” means two or more Eligible Assignees that are Affiliates of one another or two or more Approved Funds managed by the same investment advisor.

“ Assignment and Assumption ” means an assignment and assumption entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 11.3(b) ), and accepted by the Agent, in substantially the form of Exhibit 11.3 or any other form approved by the Agent.

 

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“ Audited Financial Statements ” means the audited consolidated balance sheet of the Borrower and its Subsidiaries for the fiscal year ended December 31, 2011, and the related audited consolidated statements of income or operations, shareholders’ equity and cash flows of the Borrower and its Subsidiaries for such fiscal year, including the notes thereto.

“ Bank of America Fee Letter ” means that certain letter agreement, dated as of August 16, 2011, among the Agent, Xxxxxxx Xxxxx Xxxxxx Xxxxxx & Xxxxx Incorporated and the Borrower, as amended, modified, restated or supplemented from time to time.

“ Bankruptcy Code ” means the Bankruptcy Code in Title 11 of the United States Code, as amended, modified, succeeded or replaced from time to time.

“ Bankruptcy Event ” means, with respect to any Person, the occurrence of any of the following with respect to such Person: (i) a court or governmental agency having jurisdiction in the premises shall enter a decree or order for relief in respect of such Person in an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of such Person or for any substantial part of its Property or ordering the winding up or liquidation of its affairs; or (ii) there shall be commenced against such Person an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or any case, proceeding or other action for the appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of such Person or for any substantial part of its Property or for the winding up or liquidation of its affairs, and such involuntary case or other case, proceeding or other action shall remain undismissed, undischarged or unbonded for a period of sixty (60) consecutive days; or (iii) such Person shall commence a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or consent to the entry of an order for relief in an involuntary case under any such law, or consent to the appointment or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of such Person or for any substantial part of its Property or make any general assignment for the benefit of creditors; or (iv) such Person shall be unable to, or shall admit in writing its inability to, pay its debts generally as they become due.

“ Base Rate ” means, for any day, the rate per annum equal to the higher of (a) the Federal Funds Rate for such day plus one-half of one percent (0.50%), (b) a daily rate equal to the Prime Rate for such day and (c) the Eurodollar Rate plus 1.0%. Any change in the Base Rate due to a change in the Prime Rate or the Federal Funds Rate shall be effective on the effective date of such change in the Prime Rate or Federal Funds Rate.

“ Base Rate Loan ” means any Loan bearing interest at a rate determined by reference to the Base Rate.

“ Borrower ” means the Person identified as such in the heading hereof, together with any permitted successors and assigns.

“ Business Day ” means a day other than a Saturday, Sunday or other day on which commercial banks in Charlotte, North Carolina or New York , New York are authorized or required by law to close, except that , when used in connection with a Eurodollar Loan, such day shall also be a day on which dealings between banks are carried on in U.S. dollar deposits in London, England.

 

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“ Calculation Date ” shall have the meaning assigned to such term in the definition of “Applicable Percentage” set forth in this Section 1.1 .

“ Capital Lease ” means, as applied to any Person, any lease of any Property (whether real, personal or mixed) by that Person as lessee which, in accordance with GAAP, is or should be accounted for as a capital lease on the balance sheet of that Person.

“ Capital Stock ” means (i) in the case of a corporation, capital stock, (ii) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of capital stock, (iii) in the case of a partnership, partnership interests (whether general or limited), (iv) in the case of a limited liability company, membership interests and (v) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person.

“ Cash Collateralize ” means to pledge and deposit with or deliver to the Agent, for the benefit of the Agent, the Issuing Lenders or the Swingline Lender (as applicable) and the Lenders, as collateral for LOC Obligations, Credit Party Obligations in respect of Swingline Loans, or obligations of Lenders to fund participations in respect of either thereof (as the context may require), cash or deposit account balances or, if the Issuing Lenders or the Swingline Lender benefitting from such collateral shall agree in its sole discretion, other credit support, in each case pursuant to documentation in form and substance satisfactory to (a) the Agent and (b) the applicable Issuing Lenders or the Swingline Lender (as applicable). “ Cash Collateral ” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.

“ Cash Equivalents ” means (a) securities issued or directly and fully guaranteed or insured by the United States of America or any agency or instrumentality thereof (provided that the full faith and credit of the United States of America is pledged in support thereof) having maturities of not more than twelve months from the date of acquisition, (b) U.S. dollar denominated time deposits and certificates of deposit of (i) any Lender, (ii) any domestic commercial bank of recognized standing having capital and surplus in excess of $500,000,000 or (iii) any bank whose short-term commercial paper rating from S&P is at least A-1 or the equivalent thereof or from Xxxxx’x is at least P-1 or the equivalent thereof (any such bank being an “ Approved Bank ”), in each case with maturities of not more than 270 days from the date of acquisition, (c) commercial paper and variable or fixed rate notes issued by any Approved Bank (or by the parent company thereof) or any variable rate notes issued by, or guaranteed by, any domestic corporation rated A-1 (or the equivalent thereof) or better by S&P or P-1 (or the equivalent thereof) or better by Moody’s and maturing within six months of the date of acquisition, (d) obligations of any U.S. state or a division, public instrumentality or taxing authority thereof for which sufficient obligations of the United States have been irrevocably deposited with such Person to support the payment in full of principal and interest thereon, (e) repurchase agreements with a bank or trust company (including any of the Lenders) or recognized securities dealer having capital and surplus in excess of $500,000,000 for direct obligations issued by or fully guaranteed by the United States of America in which any Credit Party shall have a perfected first priority security interest (subject to no other Liens) and having, on the date of purchase thereof, a fair market value of at least 100% of the amount of the repurchase obligations, (f) Investments, classified in accordance with GAAP as current assets, in money market investment programs registered under the Investment Company Act of 1940, as amended, which are administered by reputable financial

 

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institutions having capital of at least $500,000,000 and the portfolios of which are limited to Investments of the character described in the foregoing subdivisions (a) through (e) and (g) auction rate securities rated AA (or the equivalent thereof) or better by S&P or Aa2 (or the equivalent thereof) or better by Moody’s and with reset periods not to exceed 49 days between auctions.

“ Change in Law ” means the occurrence, after the date of this Credit Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.

“ Change of Control ” means the occurrence of any of the following events: (i) any Person or two or more Persons acting in concert (other than Persons owning 30% or more of the Voting Stock of the Borrower on the Initial Closing Date) shall have acquired beneficial ownership, directly or indirectly, of, or shall have acquired by contract or otherwise control over, Voting Stock of the Borrower (or other securities convertible into such Voting Stock) representing 30% or more of the combined voting power of all Voting Stock of the Borrower, (ii) any Person or two or more Persons acting in concert (other than Persons owning 30% or more of the Voting Stock of the Borrower on the Initial Closing Date) has the ability directly or indirectly, to elect a majority of the board of directors of the Borrower, (iii) during any period of up to 12 consecutive months, commencing on the Initial Closing Date, individuals (or their designees or other individuals appointed by the same designating party) who at the beginning of such 12 month period were directors of the Borrower (together with any new directors whose election to the board of directors of the Borrower or whose nomination for election by the stockholders of the Borrower was approved by a vote of a majority of the directors then still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease for any reason to constitute a majority of the board of directors of the Borrower, or (iv) the occurrence of (x) a “Change of Control” (or any comparable term) under, and as defined by any convertible debenture indenture (including, without limitation, the Convertible Note Indenture, the Convertible Notes or any other documents evidencing the Convertible Notes), which, in accordance with the terms of such indenture, gives the convertible debentureholders (the “ Bond Holders ”) the right to require the Borrower to repurchase or prepay the convertible debentures (the “ Debentures ”) held by such Person and (y) thereafter the Borrower actually pays in cash any portion of the required purchase price for the Debentures.

“ CIA ” means the Corporate Integrity Agreement between the OIG and Lincare Holdings Inc . and Lincare Inc., dated May 15, 2006.

“ Class ” has the meaning assigned to such term in Section 2.1(a)(iii) .

“ CMS ” means the Centers for Medicare and Medicaid Services of HHS and any successor thereto.

 

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“ Code ” means the Internal Revenue Code of 1986, as amended, and any successor statute thereto, as interpreted by the rules and regulations issued thereunder, in each case as in effect from time to time. Except as otherwise provided herein, references to sections of the Code shall be construed also to refer to any successor sections.

“ Collateral ” means a collective reference to all real and personal property with respect to which Liens in favor of the Agent, for the benefit of itself and the Lenders, are purported to be granted pursuant to and in accordance with the terms of the Collateral Documents.

“ Collateral Documents ” means a collective reference to the Pledge Agreement and other security documents as may be executed and delivered by the Credit Parties pursuant to the terms of Section 7.12 .

“ Commitment ” means (i) with respect to each Lender, (A) the Revolving Commitment of such Lender, and (B) the Single-Draw Commitment of such Lender, (ii) with respect to each Issuing Lender, the LOC Commitment, and (iii) with respect to the Swingline Lender, the Swingline Commitment.

“ Commitment Fee ” has the meaning assigned to such term in Section 3.5(b) .

“ Consolidated EBITDA ” means, for any period, the sum of (i) Consolidated Net Income for such period, plus (ii) an amount which, in the determination of Consolidated Net Income for such period, has been deducted for (A) Consolidated Interest Expense, (B) total federal, state, local and foreign income, value added and similar taxes, (C) depreciation and amortization expense and (D) other extraordinary non-recurring, non-cash charges, all as determined in accordance with GAAP.

“ Consolidated Interest Expense ” means, for any period, interest expense (including the amortization of debt discount and premium, the interest component under Capital Leases and the implied interest component under Synthetic Leases) of the Consolidated Parties on a consolidated basis for such period, as determined in accordance with GAAP.

“ Consolidated Net Income ” means, for any period, net income (excluding extraordinary items) after taxes for such period of the Consolidated Parties on a consolidated basis, as determined in accordance with GAAP.

“ Consolidated Net Worth ” means, as of any date, shareholders’ equity or net worth of the Consolidated Parties on a consolidated basis, as determined in accordance with GAAP.

“ Consolidated Parties ” means a collective reference to the Borrower and its Subsidiaries, and “ Consolidated Party ” means any one of them.

“ Continue ”, “ Continuation ”, and “ Continued ” shall refer to the continuation pursuant to Section 3.2 or Sections 3.7 through 3.9 , inclusive, of a Eurodollar Loan from one Interest Period to the next Interest Period.

“ Contract Provider ” means any Person or any employee, agent or subcontractor of such Person who provides professional health care services under or pursuant to any contract with any Consolidated Party.

 

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“ Contractual Obligation ” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.

“ Convert ”, “ Conversion ”, and “ Converted ” shall refer to a conversion pursuant to Section 3.2 or Sections 3.7 through 3.12 , inclusive, of a Base Rate Loan into a Eurodollar Loan or of a Eurodollar Loan into a Base Rate Loan.

“ Convertible Notes ” means the 2007 Series A Convertible Notes and the 2007 Series B Convertible Notes.

“ Convertible Note Indenture ” means the 2007 Series A Convertible Note Indenture and the 2007 Series B Convertible Note Indenture.

“ Credit Agreement ” shall have the meaning assigned to such term in the heading hereof.

“ Credit Agricole CIB Fee Letter ” means that certain letter agreement, dated as of August 16, 2011, among Credit Agricole Corporate and Investment Bank and the Borrower, as amended, modified, restated or supplemented from time to time.

“ Credit Documents ” means a collective reference to this Credit Agreement, the Notes, if any, the LOC Documents, each Joinder Agreement, the Fee Letters, the Pledge Agreement and all other related agreements and documents issued or delivered hereunder or thereunder or pursuant hereto or thereto (in each case as the same may be amended, modified, restated, supplemented, extended, renewed or replaced from time to time), and “ Credit Document ” means any one of them.

“ Credit Parties ” means a collective reference to the Borrower and the Guarantors, and “ Credit Party ” means any one of them.

“ Credit Party Obligations ” means, without duplication, (i) all of the obligations of the Credit Parties to the Lenders (including the Swingline Lender and each Issuing Lender) and the Agent, whenever arising, under this Credit Agreement, the Notes, if any, the Pledge Agreement or any of the other Credit Documents (including, but not limited to, any interest accruing after the occurrence of a Bankruptcy Event with respect to any Credit Party, regardless of whether such interest is an allowed claim under the Bankruptcy Code) and (ii) all liabilities and obligations, whenever arising, owing from any Credit Party to any Lender, or any Affiliate of a Lender, arising under any Hedging Agreement or any Equity Swap Agreement.

“ Default ” means any event, act or condition which with notice or lapse of time, or both, would constitute an Event of Default.

“ Default Rate ” means (a) when used with respect to Credit Party Obligations other than Letter of Credit Fees, an interest rate equal to (i) the Base Rate plus (ii) the Applicable Percentage, if any, applicable to Base Rate Loans plus (iii) 2% per annum; provided , however , that with respect to a Eurodollar Loan, the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Percentage) otherwise applicable to such Eurodollar Loan plus 2% per annum, in each case to the fullest extent permitted by applicable laws and (b) when used with respect to Letter of Credit Fees, a rate equal to the Applicable Percentage plus 2% per annum.

 

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“ Defaulting Lender ” means, subject to Section 3.19(b) , any Lender that, as reasonably determined by the Agent, (a) has failed to perform any of its funding obligations hereunder, including in respect of its Loans or participations in respect of Letters of Credit or Swingline Loans, within three Business Days of the date required to be funded by it hereunder, unless, in the case of any Loan, such Lender notifies the Agent and the Borrower in writing that such failure is the result of such Lender’s reasonable determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, (b) has notified the Borrower or the Agent in writing that it does not intend to comply with its funding obligations or has made a public statement to that effect with respect to its funding obligations hereunder or under other agreements generally in which it commits to extend credit (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s reasonable determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after request by the Agent, to confirm in a manner satisfactory to the Agent that it will comply with its funding obligations ( provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Agent and the Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any applicable bankruptcy, insolvency or other similar law, (ii) had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or a custodian appointed for it, or (iii) taken any action in furtherance of, or indicated its consent to, approval of or acquiescence in any such proceeding or appointment; provided , that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender.

“ Dollars ” and “ $ ” means dollars in lawful currency of the United States of America.

“ Domestic Subsidiary ” means any direct or indirect Subsidiary of the Borrower which is incorporated or organized under the laws of any state of the United States or the District of Columbia.

“ Eligible Assignee ” means any Person that meets the requirements to be an assignee under Sections 11.3(b)(iii) , (v)  and (vi)  (subject to such consents, if any, as may be required under Section 11.3(b)(iii) ).

“ Environmental Laws ” means any and all lawful and applicable Federal, state, local and foreign statutes, laws (including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, the Resource Conservation and Recovery Act of 1976, the Toxic Substances Control Act, the Water Pollution Control Act, the Clean Air Act and the Hazardous Materials Transportation Act), regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or other governmental restrictions relating to the environment or to emissions, discharges, releases or threatened releases of pollutants, contaminants, chemicals, or industrial, toxic or hazardous substances or wastes into the environment including, without limitation, ambient air, surface water, ground water, or land, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport, or handling of pollutants, contaminants, chemicals, or industrial, toxic or hazardous substances or wastes.

 

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“ Equity Issuance ” means any issuance by any Consolidated Party to any Person (other than a Credit Party) of (a) shares of its Capital Stock, (b) any shares of its Capital Stock pursuant to the exercise of options or warrants or (c) any shares of its Capital Stock pursuant to the conversion of any debt securities to equity. The term “Equity Issuance” shall not include any Asset Disposition.

“ Equity Swap Agreements ” means any agreement entered into by the Borrower in order to manage existing or anticipated risk associated with the repurchase by the Borrower of shares of its Capital Stock at a predetermined purchase price.

“ ERISA ” means the Employee Retirement Income Security Act of 1974, as amended, and any successor statute thereto, as interpreted by the rules and regulations thereunder, all as the same may be in effect from time to time. References to sections of ERISA shall be construed also to refer to any successor sections.

“ ERISA Affiliate ” means an entity which is under common control with any Credit Party within the meaning of Section 4001(a)(14) of ERISA, or is a member of a group which includes the Borrower and which is treated as a single employer under Sections 414(b) or (c) of the Code.

“ ERISA Event ” means (i) with respect to any Plan, the occurrence of a Reportable Event with respect to which the Department of Labor has not waived the reporting requirement or the substantial cessation of operations (within the meaning of Section 4062(e) of ERISA); (ii) the withdrawal by any Consolidated Party or any ERISA Affiliate from a Multiple Employer Plan during a plan year in which it was a substantial employer (as such term is defined in Section 4001(a)(2) of ERISA), or the termination of a Multiple Employer Plan; (iii) the distribution of a notice of intent to terminate or the actual termination of a Plan pursuant to Section 4041(a)(2) or 4041A of ERISA; (iv) the institution of proceedings to terminate or the actual termination of a Plan by the PBGC under Section 4042 of ERISA; (v) any event or condition which might constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan; (vi) the complete or partial withdrawal of any Consolidated Party or any ERISA Affiliate from a Multiemployer Plan; (vii) the conditions for imposition of a lien under Section 302(f) of ERISA exist with respect to any Plan that could reasonably be expected to cause a Material Adverse Effect; or (viii) the adoption of an amendment to any Plan requiring the provision of security to such Plan pursuant to Section 307 of ERISA.

“ Eurodollar Loan ” means a Loan that bears interest at a rate based on clause (a) of the definition of “Eurodollar Rate”.

“ Eurodollar Rate ” means:

(a) for any interest rate calculation with respect to a Eurodollar Rate Loan, the rate of interest per annum determined on the basis of the rate for deposits in Dollars for a period equal to the applicable Interest Period which appears on Reuters Screen LIBOR01 Page (or any applicable successor page) at approximately 11:00 a.m. (London time) two (2) Business Days prior to the first day of the applicable Interest Period. If, for any reason, such rate does not appear on Reuters Screen LIBOR01 Page (or any applicable successor page), then “LIBOR” shall be determined by the Agent to be the arithmetic average of the rate per annum at which deposits in

 

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Dollars in minimum amounts of at least $5,000,000 would be offered by first class banks in the London interbank market to the Agent at approximately 11:00 a.m. (London time) two (2) Business Days prior to the first day of the applicable Interest Period for a period equal to such Interest Period; and

(b) for any interest rate calculation with respect to a Base Rate Loan, the rate of interest per annum determined on the basis of the rate for deposits in Dollars in minimum amounts of at least $5,000,000 for a period equal to one month (commencing on the date of determination of such interest rate) which appears on the Reuters Screen LIBOR01 Page (or any applicable successor page) at approximately 11:00 a.m. (London time) on such date of determination, or, if such date is not a Business Day, then the immediately preceding Business Day. If, for any reason, such rate does not appear on Reuters Screen LIBOR01 Page (or any applicable successor page) then “LIBOR” for such Base Rate Loan shall be determined by the Agent to be the arithmetic average of the rate per annum at which deposits in Dollars in minimum amounts of at least $5,000,000 would be offered by first class banks in the London interbank market to the Agent at approximately 11:00 a.m. (London time) on such date of determination for a period equal to one month commencing on such date of determination.

“ Event of Default ” means such term as defined in Section 9.1 .

“ Excluded Asset Disposition ” means, with respect to any Consolidated Party, (i) the sale of inventory in the ordinary course of such Consolidated Party’s business, (ii) the sale or disposition of machinery and equipment no longer used or useful in the conduct of such Consolidated Party’s business, (iii) any Equity Issuance by such Consolidated Party, (iv) any disposition on account of any loss of, damage to or destruction of, or any condemnation or other taking for public use of, any Property of the Consolidated Parties and (v) any sale, lease, transfer or other disposition of Property by such Consolidated Party to any other Consolidated Party.

“ Excluded Taxes ” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Credit Document, or sold or assigned an interest in any Loan or Credit Document) (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under Section 3.17) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 3.11, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply with Section 3.11(d) and (d) any U.S. federal withholding Taxes imposed under FATCA.

“ Executive Officer ” of any Person means any of the chief executive officer, chief operating officer, president, vice president, chief financial officer or treasurer of such Person.

 

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“ FATCA ” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with) and any current or future regulations or official interpretations thereof.

“ Fee Letters ” means, collectively, the Bank of America Fee Letter, the Credit Agricole CIB Fee Letter, the WFS Fee Letter and the First Amendment Fee Letters.

“ Fees ” means all fees payable pursuant to Section 3.5 .

“ Federal Funds Rate ” means, for any day, the rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate charged to the Agent (in its individual capacity) on such day on such transactions as reasonably determined by the Agent.

“ First Amendment ” means that certain First Amendment to Credit Agreement dated as of the First Amendment Effective Date by and among the Borrower, the Guarantors, Xxxxx Fargo as successor Agent, Bank of America, N.A., as resigning Agent and the Lenders identified therein.

“ First Amendment Effective Date ” means June 29, 2012.

“ First Amendment Fee Letters ” means, collectively, (i) the Xxxxx Fargo First Amendment Fee Letter, (ii) that certain letter agreement dated as of June 1, 2012 between the Borrower and Fifth Third Bank, as amended, modified, restated or supplemented from time to time, (iii) that certain letter agreement dated as of June 1, 2012 between the Borrower and TD Bank, N.A., as amended, modified, restated or supplemented from time to time, and (iv) that certain letter agreement dated as of June 1, 2012 between the Borrower and Credit Agricole Corporate and Investment Bank, as amended, modified, restated or supplemented from time to time,.

“ Foreign Lender ” means any Lender that is organized under the laws of a jurisdiction other than that in which the Borrower is located. For purposes of this definition, the United States of America, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.

“ Foreign Subsidiary ” means any direct or indirect Subsidiary of the Borrower which is not incorporated or organized under the laws of any state of the United States or the District of Columbia.

“ Fronting Exposure ” means, at any time there is a Defaulting Lender, (a) with respect to an Issuing Lender, such Defaulting Lender’s Revolving Commitment Percentage of the outstanding LOC Obligations other than LOC Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof, and (b) with respect to the Swingline Lender, such Defaulting Lender’s Revolving Commitment Percentage of Swingline Loans other than Swingline Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof.

 

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“ Fund ” means any Person (other than a natural Person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business.

“ Funded Indebtedness ” means, with respect to any Person, without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, or upon which interest payments are customarily made, (c) all obligations of such Person under conditional sale or other title retention agreements relating to Property purchased by such Person (other than customary reservations or retentions of title under agreements with suppliers entered into in the ordinary course of business), (d) all obligations of such Person issued or assumed as the deferred purchase price of Property or services purchased by such Person (other than trade debt incurred in the ordinary course of business and due within six months of the incurrence thereof) which would appear as liabilities on a balance sheet of such Person, (e) the principal portion of all obligations of such Person under Capital Leases, (f) the maximum amount of all standby letters of credit issued or bankers’ acceptances facilities created for the account of such Person and, without duplication, all drafts drawn thereunder (to the extent unreimbursed), (g) all preferred Capital Stock issued by such Person and required by the terms thereof to be redeemed, or for which mandatory sinking fund payments are due, by a fixed date, (h) the principal portion of all obligations of such Person under Synthetic Leases, (i) all Indebtedness of another Person of the type referred to in clause (a)-(h) above secured by (or for which the holder of such Funded Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on, or payable out of the proceeds of production from, Property owned or acquired by such Person, whether or not the obligations secured thereby have been assumed, (j) all Guaranty Obligations of such Person with respect to Indebtedness of the type referred to in clauses (a)-(h) above of another Person and (k) Indebtedness of the type referred to in clauses (a)-(h) or (j) above of any partnership or unincorporated joint venture in which such Person is legally obligated or has a reasonable expectation of being liable with respect thereto.

“ GAAP ” means generally accepted accounting principles in the United States applied on a consistent basis and subject to the terms of Section 1.3 .

“ Governmental Authority ” means the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supranational bodies such as the European Union or the European Central Bank).

“ Guarantors ” means each of the Domestic Subsidiaries of the Borrower identified as a “Guarantor” on the signature pages hereto and each Person which may execute a Joinder Agreement pursuant to Section 7.12 after the Initial Closing Date, together with their successors and assigns, and “ Guarantor ” means any one of them.

“ Guaranty Obligations ” means, with respect to any Person, without duplication, any obligations of such Person (other than endorsements in the ordinary course of business of negotiable instruments for deposit or collection) guaranteeing or intended to guarantee any Indebtedness of any other Person in any manner, whether direct or indirect, and including without

 

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limitation any obligation, whether or not contingent, (i) to purchase any such Indebtedness or any Property constituting security therefor, (ii) to advance or provide funds or other support for the payment or purchase of any such Indebtedness or to maintain working capital, solvency or other balance sheet condition of such other Person (including without limitation keep well agreements, maintenance agreements, comfort letters or similar agreements or arrangements) for the benefit of any holder of Indebtedness of such other Person, (iii) to lease or purchase Property, securities or services primarily for the purpose of assuring the holder of such Indebtedness, or (iv) to otherwise assure or hold harmless the holder of such Indebtedness against loss in respect thereof. The amount of any Guaranty Obligation hereunder shall (subject to any limitations set forth therein) be deemed to be an amount equal to the outstanding principal amount (or maximum principal amount, if larger) of the Indebtedness in respect of which such Guaranty Obligation is made.

“ Hedging Agreement ” means any interest rate protection agreement, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing

“ HHS ” means the United States Department of Health and Human Services and any successor thereto.

“ HIPAA ” means the Health Insurance Portability and Accountability Act of 1996, as the same may be amended, modified or supplemented from time to time, and any successor thereto, and any and all rules or regulations promulgated from time to time.

“ HITECH Act ” means the Health Information Technology for Economic and Clinical Health Act, Title XIII of Division A and Title IV of Division B of the American Recovery and Reinvestment Act of 2009 (ARRA), Pub. L. 111-5, Feb. 17, 2009, and regulations promulgated pursuant thereto.

“ Incremental Facility Commitment ” means a commitment to the Incremental Single-Draw Facility.

“ Incremental Single-Draw Loan ” has the meaning specified in Section 2.4(a) .

“ Indebtedness ” of any Person means, without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, or upon which interest payments are customarily made, (c) all obligations of such Person under conditional sale or other title retention agreements relating to Property purchased by such Person (other than customary reservations or retentions of title under agreements with suppliers entered into in the ordinary course of business), (d) all obligations of such Person issued or assumed as the deferred purchase price of Property or services purchased by such Person which would appear as liabilities on a balance sheet of such Person, (e) all obligations of such Person under take-or-pay or similar arrangements or under commodities agreements, (f) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on, or payable out of the proceeds of production from, Property owned or acquired by such Person, whether or not the obligations secured thereby have been assumed, (g) all Guaranty Obligations of such Person, (h) the principal portion of all obligations of such Person under Capital Leases, (i) all obligations of such Person under Hedging Agreements and under Equity Swap Agreements, (j) the maximum amount of all standby letters of credit issued or bankers’ acceptances facilities created for the account of such Person and, without duplication, all drafts drawn thereunder (to the extent unreimbursed), (k) all preferred Capital Stock issued by such Person and required by

 

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the terms thereof to be redeemed, or for which mandatory sinking fund payments are due, by a fixed date (l) the principal portion of all obligations of such Person under Synthetic Leases, (m) the Indebtedness of any partnership or unincorporated joint venture in which such Person is a general partner or a joint venturer and (n) the aggregate amount of uncollected accounts receivable of such Person subject at such time to a sale of receivables (or similar transaction) regardless of whether such transaction is effected without recourse to such Person or in a manner that would not be reflected on the balance sheet of such Person in accordance with GAAP.

“ Indemnified Taxes ” means any Taxes other than Excluded Taxes.

“ Initial Closing Date ” means September 15, 2011.

“ Interest Coverage Ratio ” means, as of any date of determination, the ratio of (a) Consolidated EBITDA for the period of the four prior fiscal quarters ending on such date to (b) Consolidated Interest Expense for such period.

“ Interest Payment Date ” means (a) as to Base Rate Loans (including Swingline Loans), the last Business Day of each March, June, September and December and the Applicable Maturity Date and (b) as to Eurodollar Loans, the last day of each applicable Interest Period and the Applicable Maturity Date, and in addition where the applicable Interest Period for a Eurodollar Loan is greater than three months, then also the date three months from the beginning of the Interest Period and each three months thereafter; provided that in the case of clause (a) above, the first Interest Payment Date after the First Amendment Effective Date shall be September 30, 2012.

“ Interest Period ” means, as to Eurodollar Loans, a period of one, two, three or six months’ duration, as the Borrower may elect, commencing, in each case, on the date of the borrowing (including continuations and conversions thereof); provided , however , (a) if any Interest Period would end on a day which is not a Business Day, such Interest Period shall be extended to the next succeeding Business Day (except that where the next succeeding Business Day falls in the next succeeding calendar month, then on the next preceding Business Day), (b) no Interest Period shall extend beyond the Applicable Maturity Date and (c) where an Interest Period begins on a day for which there is no numerically corresponding day in the calendar month in which the Interest Period is to end, such Interest Period shall end on the last Business Day of such calendar month.

“ Interim Financial Statements ” means unaudited condensed consolidated financial statements of the Borrower and its Subsidiaries for the fiscal quarter ending March 31, 2012, including balance sheets and statements of income or operations, shareholders’ equity and cash flows.

“ Investment ” means (a) the acquisition (whether for cash, property, services, assumption of Indebtedness, securities or otherwise) of assets, shares of Capital Stock, bonds, notes, debentures, partnership, joint ventures or other ownership interests or other securities of any Person, (b) any deposit with, or advance, loan or other extension of credit to, any Person (other than deposits made in connection with the purchase of equipment or other assets in the ordinary course of business) or (c) any other capital contribution to or investment in such Person, including, without limitation, any Guaranty Obligations (including any support for a letter of credit issued on behalf of such Person) incurred for the benefit of such Person. Investments which are capital contributions or purchases of Capital Stock which have a right to participate in the profits of the issuer thereof shall be valued at the amount (or, in the case of any Investment

 

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made with Property other than cash, the book value of such Property) actually contributed or paid (including cash and non-cash consideration and any assumption of Indebtedness) to purchase such Capital Stock as of the date of such contribution or payment, less the amount of all repayments and returns of principal or capital thereon to the extent paid in cash or Cash Equivalents. Investments which are loans, advances, extensions of credit or Guaranty Obligations shall be valued at the principal amount of such loan, advance or extension of credit outstanding as of the date of determination or, as applicable, the principal amount of the loan or advance outstanding as of the date of determination actually guaranteed by such Guaranty Obligation.

“ Issuer Document ” means with respect to any Letter of Credit, the Letter of Credit request and any other document, agreement and instrument entered into by an Issuing Lender and the Borrower (or any Subsidiary) or in favor of an Issuing Lender and relating to any such Letter of Credit.

“ Issuing Lender ” means (i) Xxxxx Fargo and/or (ii) Credit Agricole Corporate and Investment Bank, with each of their respective successors in such capacity.

“ Joinder Agreement ” means a Joinder Agreement substantially in the form of Exhibit 7.12 hereto, executed and delivered by a new Guarantor in accordance with the provisions of Section 7.12 .

“ Joint Lead Arranger ” means, Xxxxx Fargo Securities, LLC, Fifth Third Bank, TD Securities (USA) LLC and Credit Agricole Corporate and Investment Bank, each in its capacity as a Joint Lead Arranger for the First Amendment.

“ Laws ” means, collectively, all international, foreign, federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.

“ Lender ” means any of the Persons identified as a “Lender” on the signature pages hereto and/or the First Amendment, and any Person which may become a Lender by way of assignment in accordance with the terms hereof, together with their successors and permitted assigns.

“ Letter of Credit ” means a standby letter of credit issued by an Issuing Lender for the account of the Borrower in accordance with the terms of Section 2.2 , as such letter of credit may be amended, modified, extended, renewed or replaced.

“ Letter of Credit Advance ” means, with respect to each Lender, such Lender’s funding of its participation in any LOC Borrowing in accordance with its Revolving Commitment Percentage.

“ Letter of Credit Expiration Date ” means the day that is five Business Days prior to the Revolver Maturity Date then in effect.

“ Letter of Credit Fee ” shall have the meaning assigned to such term in Section 3.5(c)(i) .

 

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“ Leverage Ratio ” means, as of the end of each fiscal quarter of the Consolidated Parties for the twelve month period ending on such date, the ratio of (a) Funded Indebtedness of the Consolidated Parties on the last day of such period to (b) Consolidated EBITDA for such period.

“ Lien ” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, security interest, encumbrance, lien (statutory or otherwise), preference, priority 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 Uniform Commercial Code as adopted and in effect in the relevant jurisdiction or other similar recording or notice statute, and any lease in the nature thereof).

“ Lincare Canada ” means Lincare of Canada Acquisitions Inc., a Delaware corporation.

“ Loan ” means an extension of credit by a Lender to the Borrower under Section 2 in the form of a Revolving Committed Loan, a Single-Draw Loan or a Swingline Loan.

“ LOC Borrowing ” means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a Revolving Committed Loan.

“ LOC Commitment ” means the commitment of each Issuing Lender to issue Letters of Credit in an aggregate face amount at any time outstanding (together with the amounts of any unreimbursed drawings thereon) of up to the LOC Committed Amount.

“ LOC Committed Amount ” shall have the meaning assigned to such term in Section 2.2 .

“ LOC Credit Extension ” means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the increase of the amount thereof.

“ LOC Documents ” means, with respect to any Letter of Credit, such Letter of Credit, any amendments thereto, any documents delivered in connection therewith, any application therefor, and any agreements, instruments, guarantees or other documents (whether general in application or applicable only to such Letter of Credit) governing or providing for (i) the rights and obligations of the parties concerned or at risk or (ii) any collateral security for such obligations.

“ LOC Obligations ” means, as at any date of determination, the aggregate amount available to be drawn under all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts, including all LOC Borrowings. For purposes of computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.4 . For all purposes of this Credit Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.

“ Material Adverse Effect ” means a material adverse effect on (i) the business condition (financial or otherwise), operating results, liabilities or assets of the Consolidated Parties taken as a whole, (ii) the ability of the Credit Parties as a whole to perform any material obligations under the Credit Documents or (iii) the material rights and remedies of the Agent and the Lenders under the Credit Documents.

 

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“ Materials of Environmental Concern ” means any gasoline or petroleum (including crude oil or any fraction thereof) or petroleum products or any hazardous or toxic substances, materials or wastes, defined or regulated as such in or under any Environmental Laws, including, without limitation, asbestos, polychlorinated biphenyls and urea-formaldehyde insulation.

“ Medicaid ” means that means-tested entitlement program under Title XIX of the Social Security Act, which provides federal grants to states for medical assistance based on specific eligibility criteria, as set forth at Section 1396, et seq. of Title 42 of the United States Code, as amended, and any statute succeeding thereto.

“ Medicaid Provider Agreement ” means an agreement entered into between a state agency or other such entity administering the Medicaid program and a health care provider or supplier under which the health care provider or supplier agrees to provide services and/or items for Medicaid patients in accordance with the terms of the agreement and Medicaid Regulations.

“ Medicaid Regulations ” means, collectively, (i) all federal statutes (whether set forth in Title XIX of the Social Security Act or elsewhere) affecting the medical assistance program established by Title XIX of the Social Security Act and any statutes succeeding thereto; (ii) all applicable provisions of all federal rules, regulations, manuals and orders of all Governmental Authorities promulgated pursuant to or in connection with the statutes described in clause (i) above and all federal administrative, reimbursement and other guidelines of all Governmental Authorities having the force of law promulgated pursuant to or in connection with the statutes described in clause (i) above; (iii) all state statutes and plans for medical assistance enacted in connection with the statutes and provisions described in clauses (i) and (ii) above; and (iv) all applicable provisions of all rules, regulations, manuals and orders of all Governmental Authorities promulgated pursuant to or in connection with the statutes described in clause (iii) above and all state administrative, reimbursement and other guidelines of all Governmental Authorities having the force of law promulgated pursuant to or in connection with the statutes described in clause (ii) above, in each case as may be amended, supplemented or otherwise modified from time to time.

“ Medical Reimbursement Program ” shall have the meaning assigned to such term in Section 6.11 .

“ Medicare ” means that government-sponsored entitlement program under Title XVIII of the Social Security Act, which provides for a health insurance system for eligible elderly and disabled individuals, as set forth at Section 1395, et seq. of Title 42 of the United States Code, as amended, and any statute succeeding thereto.

“ Medicare Provider Agreement ” means an agreement entered into between CMS or other such entity administering the Medicare program on behalf of CMS, and a health care provider or supplier under which the health care provider or supplier agrees to provide services and/or items for Medicare patients in accordance with the terms of the agreement and Medicare Regulations.

“ Medicare Regulations ” means, collectively, all federal statutes (whether set forth in Title XVIII of the Social Security Act or elsewhere) affecting the health insurance program for the aged and disabled established by Title XVIII of the Social Security Act and any statutes succeeding thereto; together with all applicable provisions of all rules, regulations, manuals and orders and administrative, reimbursement and other guidelines having the force of law of all Governmental Authorities (including, without limitation, HHS, CMS, the OIG, or any person succeeding to the functions of any of the foregoing) promulgated pursuant to or in connection with any of the foregoing having the force of law, as each may be amended, supplemented or otherwise modified from time to time.

 

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“ Moody’s ” means Xxxxx’x Investors Service, Inc., or any successor or assignee of the business of such company in the business of rating securities.

“ Multiemployer Plan ” means a Plan which is a multiemployer plan as defined in Sections 3(37) or 4001(a)(3) of ERISA.

“ Multiple Employer Plan ” means a Plan which any Consolidated Party or any ERISA Affiliate and at least one employer other than a Consolidated Party or any ERISA Affiliate are contributing sponsors.

“ Note ” shall have the meaning assigned to such term in Section 2.1(e) .

“ Notice of Borrowing ” means a written notice of borrowing in substantially the form of Exhibit 2.1(b)(i) , as required by Section 2.1(b)(i) .

“ Notice of Extension/Conversion ” means the written notice of extension or conversion in substantially the form of Exhibit 3.2 , as required by Section 3.2 .

“ Notice of Swingline Borrowing ” means a written notice of a Swingline Loan borrowing in substantially the form of Exhibit 2.3 , as required by Section 2.3 .

“ OIG ” means the Office of Inspector General of HHS and any successor thereto.

“ Operating Lease ” means, as applied to any Person, any lease (including, without limitation, leases which may be terminated by the lessee at any time) of any Property (whether real, personal or mixed) which is not a Capital Lease other than any such lease in which that Person is the lessor.

“ Other Taxes ” shall have the meaning assigned to such term in Section 3.11 .

“ Outstanding Amount ” means (a) with respect to any Revolving Committed Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of any Revolving Committed Loans occurring on such date; and (b) with respect to any LOC Obligations on any date, the amount of such LOC Obligations on such date after giving effect to any LOC Credit Extension occurring on such date and any other changes in the aggregate amount of the LOC Obligations as of such date, including as a result of any reimbursements by the Borrower of Unreimbursed Amounts.

“ Participation Interest ” means a purchase by a Lender of a participation in Letters of Credit or LOC Obligations as provided in Section 2.2 , in Swingline Loans as provided in Section 2.3 or in any Loans as provided in Section 3.14 .

“ PBGC ” means the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA and any successor thereof.

“ PCAOB ” means the Public Company Accounting Oversight Board.

 

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“ Permitted Acquisition ” means an Acquisition by the Borrower or any Subsidiary of the Borrower for the fair market value of the Capital Stock or Property acquired, provided that (i) the Capital Stock or Property acquired in such Acquisition relates to a line of business similar to the business of the Borrower or any of its Subsidiaries, (ii) in the case of an Acquisition of Capital Stock of another Person, (A) the board of directors (or other comparable governing body) of such other Person shall have duly approved such Acquisition and (B) such Person shall become a Wholly-Owned Subsidiary of the Borrower, (iii) the representations and warranties made by the Credit Parties in any Credit Document shall be true and correct in all material respects at and as if made as of the date of such Acquisition (after giving effect thereto) except to the extent such representations and warranties expressly relate to an earlier date, (iv) no Default or Event of Default exists as of the date of such Acquisition (after giving effect thereto), (v) if the aggregate consideration for such Acquisition exceeds $100,000,000 (including cash and non-cash consideration and any assumption of Indebtedness), the Borrower shall have delivered to the Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect to the Acquisition on a Pro Forma Basis, the Borrower will be in compliance with all of the financial covenants set forth in Section 7.11 and (vi) if the Leverage Ratio immediately prior to or after giving effect to such Acquisition on a Pro Forma Basis exceeds 2.0 to 1.0, then the aggregate consideration for all Acquisitions occurring after the Initial Closing Date shall not exceed the greater of (A) $850,000,000 or (B) the aggregate amount of all permitted Acquisitions consummated prior to such date.

“ Permitted Investments ” means Investments which are:

(i) cash and Cash Equivalents;

(ii) accounts receivable created, acquired or made by any Consolidated Party in the ordinary course of business and payable or dischargeable in accordance with customary trade terms;

(iii) Investments consisting of Capital Stock, obligations, securities or other property received by any Consolidated Party in settlement of accounts receivable (created in the ordinary course of business);

(iv) Investments existing as of the Initial Closing Date and set forth in Schedule 1.1(a) ;

(v) advances or loans to officers, employees, agents, customers or suppliers that do not exceed $5,000,000 in the aggregate at any one time outstanding for all of the Consolidated Parties;

(vi) advances or loans to non-officer, non-employee directors that do not exceed $1,000,000 in the aggregate at any one time outstanding for all of the Consolidated Parties;

(vii) Investments in any Credit Party;

(viii) Permitted Acquisitions;

(ix) advances in respect of repurchases by the Borrower of its Capital Stock following the Initial Closing Date to the extent permitted by Section 8.7(c) ;

 

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(x) Investments in Foreign Subsidiaries not to exceed $50,000,000 in the aggregate at any one time outstanding; and

(xi) additional Investments not included within the foregoing clauses hereof; provided that the aggregate outstanding amount of all Investments made pursuant to this clause (xi) shall not at any time exceed an amount equal to 15% of Consolidated Net Worth as of the end of the most recently completed fiscal year of the Borrower with respect to which the Agent shall have received the Required Financial Information.

“ Permitted Liens ” means:

(i) Liens in favor of the Agent, for the benefit of the Lenders, to secure the Credit Party Obligations;

(ii) Liens (other than Liens created or imposed under ERISA) for taxes, assessments or governmental charges or levies not yet due or Liens for taxes being contested in good faith by appropriate proceedings for which adequate reserves determined in accordance with GAAP have been established (and as to which the Property subject to any such Lien is not yet subject to foreclosure, sale or loss on account thereof);

(iii) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen and suppliers and other Liens imposed by law or pursuant to customary reservations or retentions of title arising in the ordinary course of business, provided that such Liens secure only amounts not yet due and payable or, if due and payable, are unfiled and no other action has been taken to enforce the same or are being contested in good faith by appropriate proceedings for which adequate reserves determined in accordance with GAAP have been established (and as to which the Property subject to any such Lien is not yet subject to foreclosure, sale or loss on account thereof);

(iv) Liens (other than Liens created or imposed under ERISA) incurred or deposits made by any Consolidated Party in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security, or to secure the performance of tenders, statutory obligations, bids, leases, government contracts, performance and return-of-money bonds and other similar obligations (exclusive of obligations for the payment of borrowed money);

(v) Liens in connection with attachments or judgments (including judgment or appeal bonds) provided that the judgments secured shall, within 30 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall have been discharged within 30 days after the expiration of any such stay;

(vi) easements, rights-of-way, restrictions (including zoning restrictions), minor defects or irregularities in title and other similar charges or encumbrances not, in any material respect, impairing the use of the encumbered Property for its intended purposes;

(vii) Liens on Property securing purchase money Indebtedness (including Capital Leases and Synthetic Leases) to the extent permitted under Section 8.1(c) , provided that (i) such Liens do not at any time encumber any Property other than the Property financed by such Indebtedness and other Property related thereto, any (ii) such Liens attach to such Property concurrently with or within 90 days after the acquisition thereof;

 

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(viii) leases or subleases granted to others not interfering in any material respect with the business of any Consolidated Party;

(ix) any interest of title of a lessor under, and Liens arising from Uniform Commercial Code financing statements (or equivalent filings, registrations or agreements in foreign jurisdictions) relating to, leases permitted by this Credit Agreement;

(x) normal and customary rights of setoff upon deposits of cash in favor of banks or other depository institutions;

(xi) Liens of a collection bank arising under Section 4-210 of the Uniform Commercial Code on items in the course of collection;

(xii) Liens of sellers of goods to the Borrower and any of its Subsidiaries arising under Article 2 of the Uniform Commercial Code or similar provisions of applicable law in the ordinary course of business, covering only the goods sold and securing only the unpaid purchase price for such goods and related expenses;

(xiii) Liens existing as of the Initial Closing Date and set forth on Schedule 1.1(b) ; provided that no such Lien shall at any time be extended to or cover any Property other than the Property subject thereto on the Initial Closing Date;

(xiv) Liens on Property in an aggregate amount not to exceed $15,000,000 securing obligations of the Borrower under Equity Swap Agreements permitted under Section 8.1(f) ; and

(xv) additional Liens not otherwise permitted by the foregoing clauses hereof; provided that such additional Liens permitted by this clause (xv) do not secure Indebtedness of more than $40,000,000.

“ Person ” means any individual, partnership, joint venture, firm, corporation, limited liability company, association, trust or other enterprise (whether or not incorporated) or any Governmental Authority.

“ Plan ” means any employee benefit plan (as defined in Section 3(3) of ERISA) which is covered by ERISA and with respect to which any Consolidated Party or any ERISA Affiliate is (or, if such plan were terminated at such time, would under Section 4069 of ERISA be deemed to be) an “employer” within the meaning of Section 3(5) of ERISA.

“ Pledge Agreement ” means that certain Pledge Agreement dated as of the Initial Closing Date among the Borrower, the Guarantors from time to time party thereto and Bank of America, N.A., as agent for the lenders.

“ Pledged Collateral ” shall have the meaning assigned to such term in the Pledge Agreement.

 

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“ Prime Rate ” means the per annum rate of interest established from time to time by Xxxxx Fargo as its prime rate, which rate may not be the lowest rate of interest charged by Xxxxx Fargo to its customers.

“ Pro Forma Basis ” means, for purposes of calculating compliance with each of the financial covenants set forth in Section 7.11(a) and (b)  in respect of a proposed transaction, that such transaction shall be deemed to have occurred as of the first day of the four fiscal-quarter period ending as of the most recent fiscal quarter end preceding the date of such transaction with respect to which the Agent has received the information required pursuant to Section 7.1 . In connection with any calculation of the financial covenants set forth in Section 7.11(a) and (b)  upon giving effect to a transaction on a Pro Forma Basis, (a) any Indebtedness incurred by the Borrower in connection with such transaction (i) shall be deemed to have been incurred as of the first day of the applicable period and (ii) if such Indebtedness has a floating or formula rate, shall have an implied rate of interest for the applicable period for purposes of this definition determined by utilizing the rate which is or would be in effect with respect to such Indebtedness as at the relevant date of determination and (b) income statement items (whether positive or negative) attributable to the Property acquired in such transaction or to the Acquisition comprising such transaction, as applicable, shall be included to the extent relating to the relevant period.

“ Pro Forma Compliance Certificate ” means a certificate of an Executive Officer of the Borrower delivered to the Agent in connection with any Acquisition as referred to in the definition of “ Permitted Acquisition ” set forth in this Section 1.1 , as applicable, and containing reasonably detailed calculations, upon giving effect to the applicable transaction on a Pro Forma Basis, of the Leverage Ratio and the Interest Coverage Ratio as of the most recent fiscal quarter end preceding the date of the applicable transaction with respect to which the Agent shall have received the Required Financial Information.

“ Property ” means any interest in any kind of property or asset, whether real, personal or mixed, or tangible or intangible.

“ Recipient ” means the Agent, any Lender and any Issuing Lender.

“ Register ” shall have the meaning given such term in Section 11.3(c) .

“ Regulation U or X ” means Regulation U or X, respectively, 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.

“ Related Parties ” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents and advisors of such Person and of such Person’s Affiliates.

“ Release ” means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping or disposing into the environment (including the abandonment or discarding of barrels, containers and other closed receptacles containing any Materials of Environmental Concern).

“ Reportable Event ” means any of the events set forth in Section 4043(c) of ERISA, other than those events as to which the notice requirement has been waived by regulation.

 

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“ Required Financial Information ” means, with respect to the applicable Calculation Date, (i) the financial statements of the Consolidated Parties required to be delivered pursuant to Section 7.1(a) or (b)  for the fiscal period or quarter ending as of such Calculation Date, and (ii) the certificate of an Executive Officer of the Borrower required by Section 7.1(c) to be delivered with the financial statements described in clause (i) above.

“ Required Lenders ” means, at any time, Lenders holding in the aggregate more than 50% of (i) the sum of the Commitments (and Participation Interests therein) and the outstanding principal amount of the Single-Draw Loan, or (ii) if all Commitments have been terminated, the outstanding Loans (excluding Swingline Loans) and Participation Interests (including the Participation Interests of each Issuing Lender in any Letters of Credit and the Participation Interests of the Swingline Lender in any Swingline Loans), provided that the Commitments of and the outstanding principal amount of Loans and Participation Interests owing to a Defaulting Lender shall be excluded for purposes hereof in making a determination of Required Lenders. In addition to the foregoing, “Required Lenders” shall further require the vote of at least three (3) of the Lenders party hereto.

“ Requirement of Law ” means, as to any Person, the certificate of incorporation and by-laws or other organizational or governing documents of such Person, and any law, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its material property is subject.

“ Restricted Payment ” means (i) any dividend or other distribution, direct or indirect, on account of any shares of any class of Capital Stock of any Consolidated Party, now or hereafter outstanding, (ii) any redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any shares of any class of Capital Stock of any Consolidated Party, now or hereafter outstanding, and (iii) any payment made to retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire shares of any class of Capital Stock of any Consolidated Party, now or hereafter outstanding (it being understood that the term “Restricted Payment” shall not include (x) the repayment or redemption of the Convertible Notes at any time prior to the conversion of such Convertible Notes to Capital Stock of the Borrower or (y) any payment made in connection with the conversion of the Convertible Notes).

“ Revolver Maturity Date ” means September 15, 2016.

“ Revolving Commitment ” means, with respect to each Lender, the commitment of such Lender in an aggregate principal amount at any time outstanding of up to the amount set forth opposite such Lender’s name on Schedule 2.1(a) , (i) to make Revolving Committed Loans in accordance with the provisions of Section 2.1(a) , (ii) to purchase Participation Interests in Letters of Credit in accordance with the provisions of Section 2.2(c) , and (iii) to purchase Participation Interests in Swingline Loans in accordance with the provisions of Section 2.3(b) .

“ Revolving Commitment Percentage ” means, for any Revolving Lender at any time, the percentage identified as its Revolving Commitment Percentage on Schedule 2.1(a) , as such percentage may be modified in connection with any assignment made in accordance with the provisions of Section 11.3

“ Revolving Committed Amount ” means FOUR HUNDRED FIFTY MILLION DOLLARS ($450,000,000), as such amount may be reduced from time to time as provided in Section 3.4 .

 

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“ Revolving Committed Loans ” has the meaning assigned to such term in Section 2.1(a)(i) , but in any event shall include any portion of any Revolving Committed Loan bearing interest at the Adjusted Base Rate or the Adjusted Eurodollar Rate and referred to as a Base Rate Loan or a Eurodollar Loan.

“ Revolving Lender ” means a Lender that has a Revolving Commitment.

“ S&P ” means Standard & Poor’s Financial Services LLC, a subsidiary of The XxXxxx-Xxxx Companies, Inc., and any successor thereto.

“ Sale and Leaseback Transaction ” means any arrangement pursuant to which any Consolidated Party, directly or indirectly, becomes liable as lessee, guarantor or other surety with respect to any lease, whether an Operating Lease or a Capital Lease, of any Property (a) which such Consolidated Party has sold or transferred (or is to sell or transfer) to a Person which is not a Consolidated Party or (b) which such Consolidated Party intends to use for substantially the same purpose as any other Property which has been sold or transferred (or is to be sold or transferred) by such Consolidated Party to another Person which is not a Consolidated Party in connection with such lease.

“ Xxxxxxxx-Xxxxx ” means the Xxxxxxxx-Xxxxx Act of 2002.

“ SEC ” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.

“ Securities Laws ” means the Securities Act of 1933, the Securities Exchange Act of 1934, Xxxxxxxx-Xxxxx and the applicable accounting and auditing principles, rules, standards and practices promulgated, approved or incorporated by the SEC or the PCAOB.

“ Single Employer Plan ” means any Plan which is covered by Title IV of ERISA, but which is not a Multiemployer Plan or a Multiple Employer Plan.

“ Single-Draw Commitment ” means, as to each Lender, its obligation to make its portion of the Single-Draw Loan to the Borrower pursuant to Section 2.01(a)(ii) , in the principal amount set forth opposite such Lender’s name on Schedule 2.1(a) . The aggregate principal amount of the Single-Draw Loan Commitments of all of the Lenders as in effect on the First Amendment Date is two-hundred-fifty million dollars ($250,000,000).

“ Single-Draw Commitment Percentage ” means, for any Single-Draw Lender at any time, the percentage of the Single-Draw Loan (or aggregate Single-Draw Commitment, prior to the termination thereof) held by such Single-Draw Lender to the aggregate Single-Draw Loan (or Single-Draw Commitments) held by all Single-Draw Lenders, as such percentage may be modified in connection with any assignment made in accordance with the provisions of Section 11.3 .

“ Single-Draw Lender ” means any Lender that has Single-Draw Commitments or holds a Single-Draw Loan.

“ Single-Draw Loan ” has the meaning assigned to such term in Section 2.1(a)(ii) .

“ Single-Draw Maturity Date ” means June 29, 2017.

 

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“ Social Security Act ” means the Social Security Act as set forth in Title 42 of the United States Code, as amended, and any successor statute thereto, as interpreted by the rules and regulations issued thereunder, in each case as in effect from time to time. References to sections of the Social Security Act shall be construed also to refer to any successor sections.

“ Solvent ” or “ Solvency ” means, with respect to any Person as of a particular date, that on such date (i) such Person is able to pay its debts and other liabilities, contingent obligations and other commitments as they mature in the normal course of business, (ii) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay as such debts and liabilities mature in their ordinary course, (iii) such Person is not engaged in a business or a transaction, and is not about to engage in a business or a transaction, for which such Person’s Property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which such Person is engaged or is to engage, (iv) the fair value of the Property of such Person is greater than the total amount of liabilities, including, without limitation, contingent liabilities and obligations, of such Person and (v) the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured. In computing the amount of contingent liabilities at any time, it is intended that such liabilities will be computed at the amount which, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.

“ Subsidiary ” means, as to any Person, (a) any corporation more than 50% of whose Capital 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, 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, (b) any partnership, association, limited liability company, joint venture or other entity in which such Person directly or indirectly through Subsidiaries has more than 50% equity interest at any time and (c) any other Person whose (i) management is controlled by the Borrower and (ii) financial results are consolidated with that of the Borrower in accordance with GAAP.

“ Swingline Commitment ” means the commitment of the Swingline Lender to make Swingline Loans in an aggregate principal amount at any time outstanding of up to the Swingline Committed Amount.

“ Swingline Committed Amount ” shall have the meaning assigned to such term in Section 2.3(a) .

“ Swingline Lender ” means Xxxxx Fargo, and its successors in such capacity.

“ Swingline Loan ” shall have the meaning assigned to such term in Section 2.3(a) .

“ Synthetic Lease ” means any tax retention operating lease, off-balance sheet loan or similar off-balance sheet financing product where such transaction is considered borrowed money indebtedness for tax purposes but is classified as an Operating Lease in accordance with GAAP.

“ Taxes ” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, fines, additions to tax or penalties applicable thereto.

 

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“ TRICARE ” means the United States Department of Defense health care program for service families including, but not limited to, TRICARE Prime, TRICARE Standard and Extra and TRICARE Young Adult, and any successor thereto.

“ Unreimbursed Amount ” has the meaning specified in Section 2.2(c)(i) .

“ Upfront Fee ” shall have the meaning assigned to such term in Section 3.5(a) .

“ Voting Stock ” means, with respect to any Person, Capital Stock issued by such Person the holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of directors (or persons performing similar functions) of such Person, even though the right so to vote has been suspended by the happening of such a contingency.

“ Xxxxx Fargo ” means Xxxxx Fargo Bank, National Association, and its successors.

“ Xxxxx Fargo First Amendment Fee Letter ” means that certain letter agreement, dated as of June 1, 2012, among Xxxxx Fargo, Xxxxx Fargo Securities, LLC and the Borrower, as amended, modified, restated or supplemented from time to time.

“ WFS Fee Letter ” means that certain letter agreement, dated as of August 16, 2011, between Xxxxx Fargo Securities, LLC and the Borrower, as amended, modified, restated or supplemented from time to time.

“ Wholly-Owned Subsidiary ” of any Person means any Subsidiary 100% of whose Voting Stock or other equity interests is at the time owned by such Person directly or indirectly through other Wholly-Owned Subsidiaries.

 

1.2	Computation of Time Periods .

For purposes of computation of periods of time hereunder, the word “from” means “from and including” and the words “to” and “until” each mean “to but excluding.”

 

1.3	Accounting Terms .

Except as otherwise expressly provided herein, all accounting terms used herein shall be interpreted, and all financial statements and certificates and reports as to financial matters required to be delivered to the Lenders hereunder shall be prepared, in accordance with GAAP applied on a consistent basis. All calculations made for the purposes of determining compliance with this Credit Agreement shall (except as otherwise expressly provided herein) be made by application of GAAP applied on a basis consistent with the most recent annual or quarterly financial statements delivered pursuant to Section 7.1 ; provided , however , if (a) the Borrower shall object to determining such compliance on such basis at the time of delivery of such financial statements due to any change in GAAP or the rules promulgated with respect thereto or (b) the Agent or the Required Lenders shall so object in writing within 60 days after delivery of such financial statements, then such calculations shall be made on a basis consistent with the most recent financial statements delivered by the Borrower to the Lenders as to which no such objection shall have been made.

Notwithstanding the above, the parties hereto acknowledge and agree that, for purposes of all calculations made under the financial covenants set forth in Section 7.11 (including without limitation for purposes of the definitions of “Applicable Percentage” and “Pro Forma Basis” set forth in Section 1.1 ), in connection with any merger or consolidation as referred to in Section 8.4 or any Acquisition as referred to

 

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in the definition of “ Permitted Acquisition ” set forth in Section 1.1 , income statement items (whether positive or negative) attributable to any Person or Property acquired in any Permitted Acquisition shall, to the extent not otherwise included in such income statement items for the Consolidated Parties in accordance with GAAP or in accordance with any defined terms set forth in Section 1.1 , be included to the extent relating to any period applicable in such calculations.

 

1.4	Letter of Credit Amounts .

Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the stated amount of such Letter of Credit in effect at such time; provided , however , that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.

SECTION 2

CREDIT FACILITIES

 

2.1

Loans .

(a) Loans .

(i) Revolving Committed Loans . Subject to the terms and conditions hereof and in reliance upon the representations and warranties set forth herein, each Revolving Lender severally agrees to make available to the Borrower such Lender’s Revolving Commitment Percentage of the revolving credit loans requested by the Borrower in Dollars (the “ Revolving Committed Loans ”) from time to time from the Initial Closing Date until the Revolver Maturity Date, or such earlier date as the Revolving Commitments shall have been terminated as provided herein for the purposes hereinafter set forth; provided , however , that (i) with regard to each Lender individually, such Lender’s share of outstanding Revolving Committed Loans, Swingline Loans and LOC Obligations shall not exceed such Lender’s Revolving Commitment Percentage of the Revolving Committed Amount, and (ii) with regard to the Lenders collectively, the aggregate principal amount of outstanding Revolving Committed Loans, Swingline Loans and LOC Obligations shall not exceed the Revolving Committed Amount.

(ii) Single-Draw Loan . Subject to the terms and conditions hereof and in reliance upon the representations and warranties set forth herein, each Lender severally agrees to make available to the Borrower such Lender’s Single-Draw Commitment Percentage of a single-draw loan in Dollars (the “ Single-Draw Loan ”) on the First Amendment Effective Date up to the Single-Draw Commitment of such Lender. Amounts repaid on the Single-Draw Loan may not be reborrowed.

(iii) Generally . The Revolving Committed Loans and the Single-Draw Loan (each a “ Class ” of Loans) may consist of Base Rate Loans or Eurodollar Loans, or a combination thereof, as the Borrower may request, and may be repaid and reborrowed in accordance with the provisions hereof; provided , however , that no more than twelve (12) Eurodollar Loans shall be outstanding hereunder at any time. For purposes hereof, Eurodollar Loans with different Interest Periods shall be considered as separate Eurodollar Loans, even if they begin on the same date, although borrowings, extensions and conversions may, in accordance with the provisions hereof, be combined at the end of existing Interest Periods to constitute a new single Eurodollar Loan with a single Interest Period.

 

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(b) Loan Borrowings .

(i) Notice of Borrowing . The Borrower shall request a Loan borrowing by written notice in the form of a Notice of Borrowing to the Agent not later than 11:00 A.M. (Charlotte, North Carolina time) on the Business Day prior to the date of the requested borrowing in the case of Base Rate Loans, and on the third Business Day prior to the date of the requested borrowing in the case of Eurodollar Loans, provided that requests for borrowings of the Single-Draw Loan to be made on the First Amendment Effective Date may, at the discretion of the Agent, be given with less advance notice than as specified above. Each such request for borrowing shall be irrevocable and shall specify (A) that a Revolving Committed Loan or the Single-Draw Loan is requested, as applicable, (B) the date of the requested borrowing (which shall be a Business Day), (C) the aggregate principal amount to be borrowed, and (D) whether the borrowing shall be comprised of Base Rate Loans, Eurodollar Loans or a combination thereof, and if Eurodollar Loans are requested, the Interest Period(s) therefor. If the Borrower shall fail to specify in any such Notice of Borrowing (I) an applicable Interest Period in the case of a Eurodollar Loan, then such notice shall be deemed to be a request for an Interest Period of one month, or (II) the type of Loan requested, then such notice shall be deemed to be a request for a Base Rate Loan hereunder. The Agent shall give notice to each affected Lender promptly upon receipt of each Notice of Borrowing pursuant to this Section 2.1(b)(i) , the contents thereof and each such Lender’s share of any borrowing to be made pursuant thereto.

(ii) Minimum Amounts . Each Eurodollar Loan or Base Rate Loan shall be in a minimum aggregate principal amount of $1,000,000 and integral multiples of $100,000 in excess thereof (or, in the case of Revolving Committed Loans, the remaining amount of the Revolving Committed Amount, if less).

(iii) Advances . Each Lender will make its Revolving Commitment Percentage or Single-Draw Commitment Percentage, as applicable, of each Loan borrowing available to the Agent for the account of the Borrower as specified in Section 3.15(a) , or in such other manner as the Agent may specify in writing, by 1:00 P.M. (Charlotte, North Carolina time) on the date specified in the applicable Notice of Borrowing in Dollars and in funds immediately available to the Agent. Such borrowing will then be made available to the Borrower by the Agent by crediting an account of the Borrower identified in an Account Designation Letter received from the Borrower or as may be otherwise agreed upon by the Borrower and the Agent from time to time, with the aggregate of the amounts made available to the Agent by the Lender; provided that the Agent shall not be obligated under any circumstances to forward amounts to any account not listed in an Account Designation Letter. The Borrower may at any time deliver to the Agent an Account Designation Letter listing any additional accounts or deleting any accounts listed in a previous Account Designation Letter.

(c) Repayment .

(i) The principal amount of all Revolving Committed Loans shall be due and payable in full on the Revolver Maturity Date, unless accelerated sooner pursuant to Section 9.2 .

 

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(ii) The principal amount of the Single-Draw Loan shall be due in installments on the dates and in the amounts set forth in the table below (such installments may hereafter be adjusted as a result of prepayments made pursuant to Section 3.3 ), unless accelerated sooner pursuant to Section 9.2 .

 

Payment Dates		Principal Amortization Payment
September 30, 2012		$	3,125,000
December 31, 2012		$	3,125,000
March 31, 2013		$	3,125,000
June 30, 2013		$	3,125,000
September 30, 2013		$	3,125,000
December 31, 2013		$	3,125,000
March 31, 2014		$	3,125,000
June 30, 2014		$	3,125,000
September 30, 2014		$	6,250,000
December 31, 2014		$	6,250,000
March 31, 2015		$	6,250,000
June 30, 2015		$	6,250,000
September 30, 2015		$	6,250,000
December 31, 2015		$	6,250,000
March 31, 2016		$	6,250,000
June 30, 2016		$	6,250,000
September 30, 2016		$	12,500,000
December 31, 2016		$	12,500,000
March 31, 2017		$	12,500,000
Single-Draw Maturity Date			The remaining principal balance of the Single-Draw Loan

(d) Interest . Subject to the provisions of Section 3.1 ,

(i) Base Rate Loans . During such periods as Loans shall be comprised in whole or in part of Base Rate Loans, such Base Rate Loans shall bear interest at a per annum rate equal to the Adjusted Base Rate.

(ii) Eurodollar Loans . During such periods as Loans shall be comprised in whole or in part of Eurodollar Loans, such Eurodollar Loans shall bear interest at a per annum rate equal to the Adjusted Eurodollar Rate.

Interest on Loans shall be payable in arrears on each applicable Interest Payment Date (or at such other times as may be specified herein).

(e) Notes . Any Lender may request that (i) Revolving Committed Loans made by it be evidenced by a duly executed promissory note of the Borrower to such Lender in an original principal amount equal to such Lender’s Revolving Commitment Percentage of the Revolving Committed Amount, and (ii) the Single-Draw Loan made by it be evidenced by a duly executed promissory note of the Borrower to such Lender in an original principal amount equal to such Lender’s Single-Draw Commitment, in each case in substantially the form of Exhibit 2.1(e) , with appropriate insertions (each such promissory note a “ Note ”).

 

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2.2	Letter of Credit Subfacility .

(a) Issuance . Subject to the terms and conditions hereof and of the LOC Documents, if any, and any other terms and conditions which any Issuing Lender may reasonably require and in reliance upon the representations and warranties set forth herein, each Issuing Lender agrees to issue, and each Revolving Lender severally agrees to participate in the issuance by such Issuing Lender of, standby Letters of Credit in Dollars from time to time from the Initial Closing Date until the Letter of Credit Expiration Date as the Borrower may request, in a form acceptable to such Issuing Lender; provided , however , that (i) the LOC Obligations outstanding shall not at any time exceed SIXTY MILLION DOLLARS ($60,000,000) (the “ LOC Committed Amount ”); (ii) with regard to each Revolving Lender individually, such Lender’s share of outstanding Revolving Committed Loans and Swingline Loans and LOC Obligations shall not exceed such Lender’s Revolving Commitment Percentage of the Revolving Committed Amount; and (iii) with regard to the Revolving Lenders collectively, the aggregate principal amount of outstanding Revolving Committed Loans, Swingline Loans and LOC Obligations shall not exceed the Revolving Committed Amount. No Letter of Credit shall (x) have an original expiry date more than one year from the date of issuance or (y) as originally issued or as extended, have an expiry date extending beyond the Letter of Credit Expiration Date. Each Letter of Credit shall comply with the related LOC Documents. The issuance date of each Letter of Credit shall be a Business Day.

(b) Notice and Reports . The request for the issuance of a Letter of Credit shall be submitted by the Borrower to the applicable Issuing Lender (in form and substance satisfactory to such Issuing Lender), with a copy to the Agent, at least three (3) Business Days prior to the requested date of issuance. Promptly after receipt of any Letter of Credit request, such Issuing Lender will confirm with the Agent that the Agent has received a copy of such Letter of Credit request from the Borrower and, if not, such Issuing Lender will provide the Agent with a copy thereof. Unless such Issuing Lender has received written notice from any Lender, the Agent or any Credit Party, at least one Business Day prior to the requested date of issuance or amendment of the applicable Letter of Credit, that one or more applicable conditions contained in Section 5.2 shall not then be satisfied, then, subject to the terms and conditions hereof, such Issuing Lender shall, on the requested day, issue a Letter of Credit for the account of the Borrower or enter into the applicable amendment, as the case may be, in each case in accordance with such Issuing Lender’s usual and customary business practices. Each Issuing Lender will, on the last Business Day of each month and more frequently upon request, deliver to the Agent, a detailed report specifying the Letters of Credit issued by such Issuing Lender that are then issued and outstanding and any activity with respect thereto that may have occurred since the date of the prior report, and including therein, among other things, the beneficiary, the face amount and the expiry date, as well as any payment or expirations which may have occurred. The Agent shall provide notice to the Borrower and the Lenders not less frequently than quarterly as to the Letters of Credit outstanding hereunder (and in any event, to an individual Lender from time to time upon the request of such Lender).

(c) Reimbursement .

(i) In the event of any drawing under any Letter of Credit, the applicable Issuing Lender will promptly notify the Borrower and the Agent. Not later than 12:00 noon on the date of any payment by the applicable Issuing Lender under a Letter of

 

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Credit (each such date, an “ Honor Date ”) (or, if such notice was first received by the Borrower on the date of such payment, not later than the next succeeding Business Day), the Borrower shall reimburse such Issuing Lender through the Agent in an amount equal to the amount of such drawing. If the Borrower fails to reimburse the applicable Issuing Lender by such time, the Agent shall promptly notify each Revolving Lender of the Honor Date, the amount of the unreimbursed drawing (the “ Unreimbursed Amount ”), and the amount of such Lender’s Revolving Commitment Percentage thereof. In such event, the Borrower shall be deemed to have requested a Revolving Committed Loan that is a Base Rate Loan to be disbursed on the Honor Date in an amount equal to the Unreimbursed Amount, without regard to the minimum and multiples specified in Section 2.1(b)(ii) for the principal amount of Base Rate Loans, but subject to the amount of the unutilized portion of the aggregate Revolving Commitments and the conditions set forth in Section 5.2 (other than the delivery of a Notice of Borrowing).

(ii) Each Revolving Lender shall upon any notice pursuant to Section 2.2(c)(i) make funds available to the Agent for the account of the applicable Issuing Lender at the office of the Agent specified in Section 11.1 in an amount equal to its Revolving Commitment Percentage of the Unreimbursed Amount not later than 1:00 p.m. on the Business Day specified in such notice by the Agent, whereupon, subject to the provisions of Section 2.2(c)(iii) , each Revolving Lender that so makes funds available shall be deemed to have made a Revolving Committed Loan that is a Base Rate Loan to the Borrower in such amount. The Agent shall remit the funds so received to the applicable Issuing Lender.

(iii) With respect to any Unreimbursed Amount that is not fully refinanced by a borrowing of a Revolving Committed Loan that is a Base Rate Loan because the conditions set forth in Section 5.2 cannot be satisfied or for any other reason, the Borrower shall be deemed to have incurred from the applicable Issuing Lender a LOC Borrowing in the amount of the Unreimbursed Amount that is not so refinanced, which LOC Borrowing shall be due and payable on demand (together with interest) and shall bear interest at the Default Rate. In such event, each Revolving Lender’s payment to the Agent for the account of the applicable Issuing Lender pursuant to Section 2.2(c)(ii) shall be deemed payment in respect of its participation in such LOC Borrowing and shall constitute a Letter of Credit Advance from such Lender in satisfaction of its participation obligation under this Section 2.2 .

(iv) Until a Revolving Lender funds its Revolving Committed Loan or Letter of Credit Advance pursuant to this Section 2.2(c) to reimburse the applicable Issuing Lender for any amount drawn under any Letter of Credit, interest in respect of such Lender’s Revolving Commitment Percentage of such amount shall be solely for the account of such Issuing Lender.

(v) Each Revolving Lender’s obligation to make Revolving Committed Loans or Letter of Credit Advances to reimburse the applicable Issuing Lender for amounts drawn under Letters of Credit, as contemplated by this Section 2.2(c) , shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any set-off, counterclaim, recoupment, defense or other right which such Lender may have against such Issuing Lender, the Borrower or any other Person for any reason whatsoever; (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided , however , that each Revolving Lender’s obligation to make Revolving Committed Loans pursuant

 

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to this Section 2.2(c) is subject to the conditions set forth in Section 5.2 (other than delivery by the Borrower of a Notice of Borrowing). No such making of an Letter of Credit Advance shall relieve or otherwise impair the obligation of the Borrower to reimburse the applicable Issuing Lender for the amount of any payment made by such Issuing Lender under any Letter of Credit, together with interest as provided herein.

(vi) If any Revolving Lender fails to make available to the Agent for the account of the applicable Issuing Lender any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.2(c) by the time specified in Section 2.2(c)(ii) , such Issuing Lender shall be entitled to recover from such Lender (acting through the Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to such Issuing Lender at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by such Issuing Lender in accordance with banking industry rules on interbank compensation. A certificate of the applicable Issuing Lender submitted to any Revolving Lender (through the Agent) with respect to any amounts owing under this clause (vi) shall be conclusive absent manifest error.

(d) Renewal, Extension . The renewal or extension of any Letter of Credit shall, for purposes hereof, be treated in all respects the same as the issuance of a new Letter of Credit hereunder.

(e) Uniform Customs and Practice and International Standby Practice . Unless otherwise expressly agreed by the applicable Issuing Lender and the Borrower when a Letter of Credit is issued, the rules of the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance) shall apply to each standby Letter of Credit.

(f) Indemnification; Nature of Issuing Lenders’ Duties .

(i) In addition to its other obligations under this Section 2.2 , the Borrower hereby agrees to pay, and protect, indemnify and save each Lender harmless from and against, any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ fees) that such Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or (B) the failure of the applicable Issuing Lender to honor a drawing under a Letter of Credit as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority (all such acts or omissions, herein called “ Government Acts ”).

(ii) As between the Borrower and the Lenders (including each Issuing Lender), the Borrower shall assume all risks of the acts, omissions or misuse of any Letter of Credit by the beneficiary thereof. No Lender (including each Issuing Lender) shall be responsible: (A) for the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (C) for errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail,

 

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cable, telegraph, telex or otherwise, whether or not they be in cipher; (D) for any loss or delay in the transmission or otherwise of any document required in order to make a drawing under a Letter of Credit or of the proceeds thereof; and (E) for any consequences arising from causes beyond the control of such Lender, including, without limitation, any Government Acts. None of the above shall affect, impair, or prevent the vesting of each Issuing Lenders’ rights or powers hereunder.

(iii) In furtherance and extension and not in limitation of the specific provisions hereinabove set forth, any action taken or omitted by any Lender (including each Issuing Lender), under or in connection with any Letter of Credit or the related certificates, if taken or omitted in good faith, shall not put such Lender under any resulting liability to the Borrower or any other Credit Party. It is the intention of the parties that this Credit Agreement shall be construed and applied to protect and indemnify each Lender (including each Issuing Lender) against any and all risks involved in the issuance of the Letters of Credit, all of which risks are hereby assumed by the Borrower (on behalf of itself and each of the other Credit Parties), including, without limitation, any and all Government Acts. No Lender (including each Issuing Lender) shall, in any way, be liable for any failure by such Lender or anyone else to pay any drawing under any Letter of Credit as a result of any Government Acts or any other cause beyond the control of such Lender.

(iv) Nothing in this subsection (f) is intended to limit the reimbursement obligations of the Borrower contained in subsection (d) above. The obligations of the Borrower under this subsection (f) shall survive the termination of this Credit Agreement. No act or omissions of any current or prior beneficiary of a Letter of Credit shall in any way affect or impair the rights of the Lenders (including each Issuing Lender) to enforce any right, power or benefit under this Credit Agreement.

(v) Notwithstanding anything to the contrary contained in this subsection (f), the Borrower shall have no obligation to indemnify any Lender (including each Issuing Lender) in respect of any liability incurred by such Lender (A) arising solely out of the gross negligence or willful misconduct of such Lender, as determined by a court of competent jurisdiction, or (B) caused by such Lender’s failure to pay under any Letter of Credit after presentation to it of a request strictly complying with the terms and conditions of such Letter of Credit, as determined by a court of competent jurisdiction, unless such payment is prohibited by any law, regulation, court order or decree.

(g) Responsibility of Issuing Lenders . It is expressly understood and agreed that the obligations of each Issuing Lender hereunder to the Lenders are only those expressly set forth in this Credit Agreement; provided , however , that nothing set forth in this Section 2.2 shall be deemed to prejudice the right of any Revolving Lender to recover from the applicable Issuing Lender any amounts made available by such Lender to such Issuing Lender pursuant to this Section 2.2 in the event that it is determined by a court of competent jurisdiction that the payment with respect to a Letter of Credit constituted gross negligence or willful misconduct on the part of the applicable Issuing Lender.

 

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(h) Limitation on Obligation of each Issuing Lender . Notwithstanding anything contained herein to the contrary, each Issuing Lender shall not be under any obligation to issue, renew or extend any Letter of Credit if:

(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such Issuing Lender from issuing a Letter of Credit, or any applicable law, rule or regulation or any request or directive (having the force of law) from any governmental authority with jurisdiction over such Issuing Lender shall prohibit, or request that such Issuing Lender refrain from, the issuance of letters of credit generally or any such Letter of Credit in particular, or shall impose upon such Issuing Lender with respect to any such Letter of Credit any restriction, reserve or capital requirement (for which such Issuing Lender is not otherwise compensated hereunder) not in effect on the Initial Closing Date, or shall impose upon such Issuing Lender any unreimbursed loss, costs or expense which was not applicable on the Initial Closing Date and which such Issuing Lender should deem material to it in good faith or if the issuance of such Letter of Credit would violate one or more policies of such Issuing Lender; or

(ii) any Revolving Lender is at that time a Defaulting Lender, unless such Issuing Lender has entered into arrangements, including the delivery of Cash Collateral, satisfactory to such Issuing Lender (in its sole discretion) with the Borrower or such Lender to eliminate such Issuing Lender’s actual or potential Fronting Exposure (after giving effect to Section 3.19(a)(iv) ) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other LOC Obligations as to which such Issuing Lender has actual or potential Fronting Exposure, as it may elect in its sole discretion.

(i) Conflict with LOC Documents . In the event of any conflict between this Credit Agreement and any LOC Document (including any letter of credit application), this Credit Agreement shall control as among the parties hereto.

 

2.3	Swingline Loans .

(a) Swingline Commitment . Subject to the terms and conditions hereof and in reliance upon the representations and warranties herein set forth, the Swingline Lender, in its individual capacity, agrees to make certain revolving credit loans to the Borrower (each a “ Swingline Loan ” and, collectively, the “ Swingline Loans ”) from time to time from the Initial Closing Date until the Revolver Maturity Date for the purposes hereinafter set forth; provided , however , (i) the aggregate principal amount of Swingline Loans outstanding at any time shall not exceed TWENTY FIVE MILLION DOLLARS ($25,000,000) (the “ Swingline Committed Amount ”), and (ii) the sum of the aggregate principal amount of Revolving Committed Loans outstanding plus LOC Obligations plus obligations in respect of Swingline Loans outstanding at any time shall not exceed the aggregate Revolving Committed Amount. Swingline Loans hereunder shall be made as a Base Rate Loan in accordance with the provisions of this Section 2.3 , and may be repaid and reborrowed in accordance with the provisions hereof. Notwithstanding anything herein to the contrary, the Swingline Lender shall not be under any obligation to make any Swingline Loan if any Revolving Lender is at that time a Defaulting Lender, unless the Swingline Lender has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the Swingline Lender (in its sole discretion) with the Borrower or such Defaulting Lender to eliminate the Swingline Lender’s actual or potential Fronting Exposure (after giving effect to Section 3.19(a)(iv) ) with respect to the Defaulting Lender arising from either the Swingline Loan then proposed to be made or all Swingline Loans as to which the Swingline Lender has actual or potential Fronting Exposure, as it may elect in its sole discretion.

 

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(b) Swingline Loan Advances .

(i) Notices; Disbursement . Whenever the Borrower desires a Swingline Loan advance hereunder, the Borrower shall give written notice in the form of a Notice of Swingline Borrowing to the Swingline Lender not later than 1:00 P.M. (Charlotte, North Carolina time) on the Business Day of the requested Swingline Loan advance. Each such notice shall be irrevocable and shall specify (A) that a Swingline Loan advance is requested, (B) the date of the requested Swingline Loan advance (which shall be a Business Day) and (C) the principal amount of the Swingline Loan advance requested. Each Swingline Loan shall be made as a Base Rate Loan and shall have such maturity date as set forth in clause (iii) below. The Swingline Lender shall make each Swingline Loan available to the Borrower by 3:00 P.M., (Charlotte, North Carolina time), on the Business Day of the requested Swingline Loan advance.

(ii) Minimum Amount . Each Swingline Loan shall be in a minimum principal amount of $1,000,000 and in integral multiples of $100,000 in excess thereof (or the remaining amount of the Swingline Committed Amount, if less).

(iii) Repayment of Swingline Loans . The principal amount of all Swingline Loans shall be due and payable on the earlier of (A) a date that is ten (10) Business Days from the date of advance thereof or (B) the Revolver Maturity Date. The Swingline Lender may, at any time, in its sole discretion, by written notice to the Borrower and the Lenders, demand repayment of its Swingline Loans by way of a Revolving Committed Loan advance, in which case the Borrower shall be deemed to have requested a Revolving Committed Loan advance comprised solely of Base Rate Loans in the amount of such Swingline Loans; provided , however , that any such demand shall be deemed to have been given one Business Day prior to the Revolver Maturity Date and on the date of the occurrence of any Event of Default described in Section 9.1 and upon acceleration of the Indebtedness hereunder and the exercise of remedies in accordance with the provisions of Section 9.2 . Each Revolving Lender hereby irrevocably agrees to make its pro rata share of each such Revolving Committed Loan in the amount, in the manner and on the date specified in the preceding sentence notwithstanding (A) the amount of such borrowing may not comply with the minimum amount for advances of Revolving Committed Loans otherwise required hereunder, (B) whether any conditions specified in Section 5.2 are then satisfied, (C) whether a Default or Event of Default then exists, (D) failure of any such request or deemed request for Revolving Committed Loan to be made by the time otherwise required hereunder, (E) whether the date of such borrowing is a date on which Revolving Committed Loans are otherwise permitted to be made hereunder or (F) any termination of the Revolving Commitments relating thereto immediately prior to or contemporaneously with such borrowing. In the event that any Revolving Committed Loan cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under the Bankruptcy Code with respect to the Borrower), then each Revolving Lender hereby agrees that it shall forthwith purchase (as of the date such borrowing would otherwise have occurred, but adjusted for any payments received from the Borrower on or after such date and prior to such purchase) from the Swingline Lender such participations in the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon its Revolving Commitment Percentage of the Revolving Committed Amount, provided that (A) all interest payable on the Swingline Loans shall be for the account of the Swingline Lender until the date as of which the respective participation is purchased and (B) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing

 

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Revolving Lender shall be required to pay to the Swingline Lender in accordance with the terms of subsection (c)(ii) hereof, interest on the principal amount of participation purchased for each day from and including the day upon which such borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the rate equal to the Federal Funds Rate.

(c) Interest on Swingline Loans .

(i) Subject to the provisions of Section 3.1 , each Swingline Loan shall bear interest at the rate per annum equal to the Adjusted Base Rate in accordance with the provisions of Section 2.3(b) .

(ii) Interest on Swingline Loans shall be payable in arrears on each applicable Interest Payment Date (or at such other times as may be specified herein).

(d) Swingline Note . The Swingline Lender may request that Swingline Loans made by it be evidenced by a duly executed promissory note of the Borrower to the Swingline Lender in an original principal amount equal to the Swingline Committed Amount.

 

2.4	Incremental Term Loans .

(a) The Borrower shall have the right, upon at least ten Business Days’ prior written notice to the Agent, to add a new tranche of single-draw loans (an “ Incremental Single-Draw Loan ”), provided that:

(i) the aggregate principal amount of the Incremental Single-Draw Loan shall not exceed $50 million;

(ii) no Default or Event of Default shall exist on the effective date of the Incremental Single-Draw Loan or would exist after giving effect to the Incremental Single-Draw Loan;

(iii) no existing Lender shall be under any obligation to provide any Incremental Facility Commitment and any such decision whether to provide an Incremental Facility Commitment shall be in such Lender’s sole and absolute discretion;

(iv) each Person providing an Incremental Facility Commitment shall qualify as an Eligible Assignee;

(v) the aggregate amount of the Incremental Single-Draw Loan shall be made available to the Borrower in a single advance on the effective date of the Incremental Single-Draw Loan and any amounts repaid on the Incremental Single-Draw Loan may not be reborrowed;

(vi) The Agent shall have received all certificates, documents or other evidence it may reasonably request relating to the corporate or other necessary authority or consents for the Incremental Single-Draw Loan and any other matters relevant thereto, all in form and substance reasonably satisfactory to the Agent;

(vii) The Borrower shall deliver to the Agent a certificate of the Borrower dated as of the effective date of the Incremental Single-Draw Loan signed by an Executive Officer of the Borrower certifying that, before and after giving effect to the Incremental Single-Draw Loan, (i) the representations and warranties set forth in Section 6 , subject to the limitations set forth therein, be true and correct in all material respects as of such date, other than those representations and

 

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warranties which expressly relate to an earlier date, which shall be true and correct in all material respects as of such earlier date (except to the extent that any representation and warranty is qualified by materiality, in which case such representation and warranty shall be true and correct to such extent in all respects as of such applicable date), and (ii) no Default or Event of Default exists; and

(viii) the Agent shall have received documentation from each Person providing an Incremental Facility Commitment evidencing its Incremental Facility Commitment and its obligations under this Credit Agreement in form and substance reasonably acceptable to the Agent;

(ix) the final maturity date for the Incremental Single-Draw Loan shall not be earlier than the Single-Draw Maturity Date;

(x) the weighted average life to maturity for the Incremental Single-Draw Loan shall not be shorter than the then remaining weighted average life of the Single-Draw Loan; and

(xi) the all in yield (whether in the form of interest rate margins, original issue discount, upfront fees or an adjusted Eurodollar Rate or Base Rate floor (but excluding any arrangement or underwriting fees paid to arrangers for their own account), with such increased amount being equated to interest margin for purposes of determining any increase to the applicable interest margin with respect to the Single-Draw Loan) applicable to the Incremental Single-Draw Loan will not be more than 0.25% higher than the corresponding all in yield (after giving effect to interest rate margins (including the adjusted Eurodollar Rate and Base Rate floors), original issue discount and upfront fees) for the Single-Draw Loan, unless the interest rate margins with respect to the Single-Draw Loan are increased by an amount equal to the difference between the all in yield with respect to the Incremental Single-Draw Loan and the corresponding all in yield on any the Single-Draw Loan minus 0.25%;

(xii) subject to the foregoing clauses, the interest rate margins, final maturity date and weighted average life to maturity applicable to the Incremental Single-Draw Loan shall be determined by the Borrower and the Lenders providing the Incremental Single-Draw Loan.

(b) The Incremental Facility Commitments and loans thereunder shall constitute Commitments and Loans under, and shall be entitled to all the benefits afforded by, this Credit Agreement and the other Credit Documents, and shall, without limiting the foregoing, benefit equally and ratably from the guarantees and security interests created by this Credit Agreement, the Pledge Agreement and the other Credit Documents.

(c) Notwithstanding anything to the contrary herein, the Agent is authorized to enter into, on behalf of the Lenders, any amendment to this Credit Agreement or any other Credit Document as may be necessary to incorporate the terms of the Incremental Single-Draw Loan herein or therein, including without limitation, amendments to the definitions of “Commitments”, “Loans” and “Required Lenders” or other provisions relating to voting provisions to provide the Lenders providing the Incremental Facility Commitments with the benefit of such provisions.

 

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SECTION 3

OTHER PROVISIONS RELATING TO CREDIT FACILITIES

 

3.1	Default Rate .

(a) If any amount of principal of any Loan is not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable laws.

(b) If any amount (other than principal of any Loan) payable by the Borrower under any Credit Document is not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, then upon the request of the Required Lenders, such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable laws.

(c) Upon the request of the Required Lenders, while any Event of Default exists, the Borrower shall pay interest on the principal amount of all outstanding Credit Party Obligations hereunder at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable laws.

(d) Accrued and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon demand.

 

3.2	Extension and Conversion .

Subject to the terms of Section 5.2 , the Borrower shall have the option, on any Business Day, to extend existing Loans into a subsequent permissible Interest Period or to convert Loans into Loans of another interest rate type; provided , however , that (i) except as provided in Section 3.8 , Eurodollar Loans may be converted into Base Rate Loans only on the last day of the Interest Period applicable thereto, (ii) Eurodollar Loans may be extended, and Base Rate Loans may be converted into Eurodollar Loans, only if no Default or Event of Default is in existence on the date of extension or conversion, (iii) Loans extended as, or converted into, Eurodollar Loans shall be subject to the terms of the definition of “ Interest Period ” set forth in Section 1.1 and shall be in such minimum amounts as provided in Section 2.1(b)(ii) , (iv) no more than twelve (12) Eurodollar Loans shall be outstanding hereunder at any time (it being understood that, for purposes hereof, Eurodollar Loans with different Interest Periods shall be considered as separate Eurodollar Loans, even if they begin on the same date, although borrowings, extensions and conversions may, in accordance with the provisions hereof, be combined at the end of existing Interest Periods to constitute a new Eurodollar Loan with a single Interest Period), (v) any request for extension or conversion of a Eurodollar Loan which shall fail to specify an Interest Period shall be deemed to be a request for an Interest Period of one month and (vi) Swingline Loans may not be extended or converted pursuant to this Section 3.2 . Each such extension or conversion shall be effected by the Borrower by giving a Notice of Extension/Conversion (or telephonic notice promptly confirmed in writing) to the office of the Agent specified in Section 11.1 , or at such other office as the Agent may designate in writing, prior to 11:00 A.M. (Charlotte, North Carolina time) on the Business Day of, in the case of the conversion of a Eurodollar Loan into a Base Rate Loan, and on the third Business Day prior to, in the case of the extension of a Eurodollar Loan as, or conversion of a Base Rate Loan into, a Eurodollar Loan, the date of the proposed extension or conversion, specifying the date of the proposed extension or conversion, the Loans to be so extended or converted, the types of Loans into which such Loans are to be converted and, if appropriate, the applicable Interest Periods with respect thereto. Each request for extension or

 

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conversion shall be irrevocable and shall constitute a representation and warranty by the Borrower of the matters specified in subsections (b), (c), (d) and (e) of Section 5.2 . In the event the Borrower fails to request extension or conversion of any Eurodollar Loan in accordance with this Section, or any such conversion or extension is not permitted or required by this Section, then such Eurodollar Loan shall be automatically converted into a Base Rate Loan at the end of the Interest Period applicable thereto. The Agent shall give each Lender notice as promptly as practicable of any such proposed extension or conversion affecting any Loan.

 

3.3	Prepayments .

(a) Voluntary Prepayments . The Borrower shall have the right, upon notice to the Agent, to prepay Revolving Committed Loans and the Single-Draw Loan in whole or in part from time to time; provided , however , that ) (i) such notice must be received by the Agent not later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of Eurodollar Rate Loans and (B) on the date of prepayment of Base Rate Loans, and (ii) each partial prepayment of any such Loan shall be in a minimum principal amount of $2,000,000 and integral multiples of $500,000 (or, if less, the full remaining principal amount of Revolving Committed Loans or Single-Draw Loan, as applicable, then outstanding). Each such notice shall specify the date and amount of such prepayment, the Class of the Loans being repaid, whether such Loans to be prepaid are Base Rate Loans or Eurodollar Rate Loans, and, if Eurodollar Rate Loans are to be prepaid, the Interest Period(s) of such Loans. If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurodollar Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 3.12 . Each such prepayment shall be applied to the Revolving Committed Loans or Single-Draw Loan (as applicable) of the Lenders in accordance with their respective Revolving Commitment Percentage or Single-Draw Commitment Percentages, as applicable. Any prepayment of the Single-Draw Loan shall be applied ratably to the remaining principal amortization payments. Notwithstanding the foregoing, the Borrower may rescind or postpone any notice of prepayment if such prepayment would have resulted from a refinancing of the Credit Agreement and such refinancing is not consummated or is delayed.

(b) Swingline Loans . The Borrower may, upon notice to the Swingline Lender (with a copy to the Agent), at any time or from time to time, voluntarily prepay Swingline Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Swingline Lender and the Agent not later than 1:00 p.m. on the date of the prepayment, and (ii) any such prepayment shall be in a minimum principal amount of $1,000,000 or a whole multiple of $100,000 in excess thereof (or, if less, the entire principal thereof then outstanding). Each such notice shall specify the date and amount of such prepayment. If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.

(c) Revolving Committed Amount . If at any time, the sum of the aggregate principal amount of outstanding Revolving Committed Loans plus Swingline Loans plus LOC Obligations outstanding shall exceed the Revolving Committed Amount, the Borrower immediately shall prepay the Revolving Committed Loans and (after all Revolving Committed Loans have been repaid) cash collateralize the LOC Obligations, in an amount sufficient to eliminate such excess.

(d) Generally . All prepayments under this Section 3.3 shall be subject to Section 3.12 , but otherwise without premium or penalty.

 

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3.4	Termination and Reduction of Commitments .

(a) Termination and Reduction . The Borrower may from time to time permanently reduce or terminate the Revolving Committed Amount in whole or in part (in minimum aggregate amounts of $5,000,000 or in integral multiples of $1,000,000 in excess thereof (or, if less, the full remaining amount of the then applicable Revolving Committed Amount)) upon three Business Days’ prior written notice to the Agent; provided , however , no such termination or reduction shall be made which would cause the aggregate principal amount of outstanding Revolving Committed Loans, Swingline Loans and LOC Obligations to exceed the Revolving Committed Amount, unless, concurrently with such termination or reduction, the Revolving Committed Loans are repaid to the extent necessary to eliminate such excess. The Agent shall promptly notify each affected Lender of receipt by the Agent of any notice from the Borrower pursuant to this Section 3.4(a) . Notwithstanding the foregoing, the Borrower may rescind or postpone any notice of termination of the Revolving Committed Amount if such termination would have resulted from a refinancing of the Credit Agreement and such refinancing is not consummated or is delayed.

(b) Maturity Dates . The Revolving Commitments of the Lenders, the Swingline Commitment of the Swingline Lender and the LOC Commitment of each Issuing Lender shall automatically terminate on the Revolver Maturity Date. The Single-Draw Commitments of the Lenders shall automatically terminate on the earlier of (x) the Single-Draw Loan being advanced and (y) the day immediately following the First Amendment Effective Date.

(c) General . The Borrower shall pay to the Agent for the account of the Lenders in accordance with the terms of Section 3.5(b) , on the date of each reduction of the Revolving Committed Amount, the Commitment Fee accrued through the date of such termination or reduction on the amount of the Revolving Committed Amount so terminated or reduced.

 

3.5

Fees .

(a) Upfront Fees . The Borrower agrees to pay to the Agent (i) for the benefit of the Revolving Lenders in immediately available funds on or before the Initial Closing Date an upfront fee (the “ Upfront Fee ”) in the amount provided in the Bank of America Fee Letter, and (ii) for the benefit of the Single-Draw Lenders in immediately available funds on or before the First Amendment Effective Date an upfront fee (the “ Upfront Fee ”) in the amount provided in the Xxxxx Fargo First Amendment Fee Letter.

(b) Commitment Fee . The Borrower shall pay to the Agent for the account of each Revolving Lender in accordance with its Revolving Commitment Percentage, a commitment fee (the “ Commitment Fee ”) equal to the product of (i) the Applicable Percentage times (ii) the actual daily amount by which the aggregate Revolving Committed Amount exceeds the sum of (x) the Outstanding Amount of Revolving Committed Loans and (y) the Outstanding Amount of LOC Obligations, subject to adjustment as provided in Section 3.19 . The Commitment fee shall accrue at all times from the Initial Closing Date until the Revolver Maturity Date (and thereafter so long as any Revolving Committed Loans, Swingline Loans or LOC Obligations remain outstanding), including at any time during which one or more of the conditions in Section 5.2 is not met, and will be payable quarterly in arrears (x) on the first Business Day following the last day of each March, June, September and December for the immediately preceding quarter (or a portion thereof), commencing with the first such date to occur after the Initial Closing Date, provided that, notwithstanding the foregoing, the first such payment date after the First Amendment Effective Date shall be the first business day following September 30, 2012, and (y) on the Revolver Maturity Date (and, if applicable, thereafter on demand). The Commitment Fee shall be

 

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calculated at a per annum rate quarterly in arrears, and if there is any change in the Applicable Percentage during any quarter, the actual daily amount shall be computed and multiplied by the Applicable Percentage separately for each period during such quarter that such Applicable Percentage was in effect. For purposes of clarification, Swingline Loans shall not be considered outstanding for purposes of determining the unused portion of the aggregate Revolving Committed Amount.

(c) Letter of Credit Fees .

(i) Letter of Credit Issuance Fee . In consideration of the issuance of Letters of Credit hereunder, the Borrower promises to pay to the Agent for the account of each Revolving Lender a fee (the “ Letter of Credit Fee ”) on such Lender’s Revolving Commitment Percentage of the average daily maximum amount available to be drawn under each such Letter of Credit computed at a per annum rate for each day from the date of issuance to the date of expiration equal to the Applicable Percentage; provided , however , any Letter of Credit Fees otherwise payable for the account of a Defaulting Lender with respect to any Letter of Credit as to which such Defaulting Lender has not provided Cash Collateral satisfactory to the applicable Issuing Lender pursuant to Section 2.2 shall be payable, to the maximum extent permitted by applicable Law, to the other Revolving Lenders in accordance with the upward adjustments in their respective Revolving Commitment Percentages allocable to such Letter of Credit pursuant to Section 3.19(a)(iv) , with the balance of such fee, if any, payable to the applicable Issuing Lender for its own account. The Letter of Credit Fee will be payable quarterly in arrears (x) on the first Business Day following the last day of each March, June, September and December for the immediately preceding quarter (or a portion thereof), commencing with the first such date to occur after the issuance of such Letter of Credit, provided that, notwithstanding the foregoing, the first such payment date after the First Amendment Effective Date shall be the first business day following September 30, 2012, and (y) on the Letter of Credit Expiration Date and thereafter on demand.

(ii) Issuing Lender Fees . The Borrower shall pay directly to the applicable Issuing Lender for its own account a fronting fee with respect to each Letter of Credit, at the rate per annum specified in the Xxxxx Fargo First Amendment Fee Letter or the Credit Agricole CIB Fee Letter, as applicable, or any other Fee Letter or other agreement between the applicable Issuing Lender and the Borrower, computed on the daily amount available to be drawn under such Letter of Credit on a quarterly basis in arrears. Such fronting fee will be payable quarterly in arrears on the first Business Day following the last day of each March, June, September and December for the immediately preceding quarter (or a portion thereof), commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand. For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.4 . In addition, the Borrower shall pay directly to the applicable Issuing Lender for its own account the customary issuance, presentation, amendment and other processing fees, and other standard costs and charges, of the applicable Issuing Lender relating to letters of credit as from time to time in effect. Such customary fees and standard costs and charges are due and payable on demand and are nonrefundable.

(d) Administrative Fees . The Borrower agrees to pay to the Agent, for its own account, an annual administrative fee and such other fees, if any, referred to in the Xxxxx Fargo First Amendment Fee Letter.

 

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3.6	Capital Adequacy .

If any Lender or any Issuing Lender determines that any Change in Law affecting such Lender or such Issuing Lender regarding capital adequacy or liquidity requirements, or compliance by such Lender or any Issuing Lender with any request or directive regarding capital adequacy or liquidity requirements (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 Lender’s or such Issuing Lender’s capital or assets as a consequence of its commitments or obligations hereunder to a level below that which such Lender or such Issuing Lender could have achieved but for such Change in Law (taking into consideration such Lender’s or such Issuing Lender’s policies with respect to capital adequacy), then, upon notice from such Lender or such Issuing Lender to the Borrower, the Borrower shall be obligated to pay to such Lender or such Issuing Lender such additional amount or amounts as will compensate such Lender or such Issuing Lender, as the case may be, for such reduction. Each determination by any such Lender or any Issuing Lender of amounts owing under this Section shall, absent manifest error, be conclusive and binding on the parties hereto. Notwithstanding the foregoing, the Borrower shall not be required to compensate a Lender or an Issuing Lender pursuant to the foregoing provisions of this Section for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender or such Issuing Lender, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or such Issuing Lender’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine-month period referred to above shall be extended to include the period of retroactive effect thereof).

 

3.7	Limitation on Eurodollar Loans .

If on or prior to the first day of any Interest Period for any Eurodollar Loan:

(a) the Agent reasonably determines (which determination shall be conclusive) that by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for such Interest Period; or

(b) the Required Lenders reasonably determine (which determination shall be conclusive) and notify the Agent that the Eurodollar Rate will not adequately and fairly reflect the cost to the Lenders of funding Eurodollar Loans for such Interest Period;

then the Agent shall give the Borrower prompt notice thereof, and so long as such condition remains in effect, the Lenders shall be under no obligation to make additional Eurodollar Loans, Continue Eurodollar Loans, or to convert Base Rate Loans into Eurodollar Loans and the Borrower shall, on the last day(s) of the then current Interest Period(s) for the outstanding Eurodollar Loans, either prepay such Eurodollar Loans or convert such Eurodollar Loans into Base Rate Loans in accordance with the terms of this Credit Agreement.

 

3.8	Illegality .

Notwithstanding any other provision of this Credit Agreement, in the event that it becomes unlawful for any Lender or its Applicable Lending Office to make, maintain, or fund Eurodollar Loans hereunder, then such Lender shall promptly notify the Borrower thereof and such Lender’s obligation to make or Continue Eurodollar Loans and to convert Base Rate Loans into Eurodollar Loans shall be suspended until such time as such Lender may again make, maintain, and fund Eurodollar Loans (in which case the provisions of Section 3.10 shall be applicable).

 

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3.9	Requirements of Law .

(a) If any Change in Law:

(i) shall subject such Lender (or its Applicable Lending Office) or any Issuing Lender to any tax, duty, or other charge with respect to any Eurodollar Loans, its Notes, if any, or its obligation to make Eurodollar Loans, or change the basis of taxation of any amounts payable to such Lender (or its Applicable Lending Office) under this Credit Agreement or its Notes, if any, in respect of any Eurodollar Loans (other than Excluded Taxes set forth in clauses (b) through (d) of the definition of Excluded Taxes, Indemnified Taxes covered by Section 3.11 and Other Taxes) or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by an Issuing Lender;

(ii) shall impose, modify, or deem applicable any reserve, special deposit, assessment, or similar requirement relating to any extensions of credit or other assets of, or any deposits with or other liabilities or commitments of, such Lender (or its Applicable Lending Office), including the Commitment of such Lender hereunder; or

(iii) shall impose on such Lender (or its Applicable Lending Office) or any Issuing Lender or on the United States market for certificates of deposit or the London interbank market any other condition affecting this Credit Agreement or its Notes, if any, or any of such extensions of credit or liabilities or commitments or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by an Issuing Lender;

and the result of any of the foregoing is to increase the cost to such Lender (or its Applicable Lending Office) of making, converting into, continuing, or maintaining any Eurodollar Loans or any Issuing Lender of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce any sum received or receivable by such Lender (or its Applicable Lending Office) or any Issuing Lender under this Credit Agreement or its Notes, if any, with respect to any Eurodollar Loans, then the Borrower shall pay to such Lender or such Issuing Lender, on demand, such amount or amounts as will compensate such Lender or such Issuing Lender for such increased cost or reduction. If any Lender or Issuing Lender requests compensation by the Borrower under this Section 3.9(a) , the Borrower may, by notice to such Lender or Issuing Lender (with a copy to the Agent), suspend the obligation of such Lender to make or Continue Eurodollar Loans, or to convert Base Rate Loans into Eurodollar Loans, or issue Letters of Credit until the event or condition giving rise to such request ceases to be in effect (in which case the provisions of Section 3.10 shall be applicable); provided that such suspension shall not affect the right of such Lender to receive the compensation so requested.

(b) Each Lender shall promptly notify the Borrower and the Agent of any event of which it has knowledge, occurring after the date hereof, which will entitle such Lender to compensation pursuant to this Section 3.9 and will designate a different Applicable Lending Office if such designation will avoid the need for, or reduce the amount of, such compensation and will not, in the judgment of such Lender, be otherwise disadvantageous to it. Any Lender claiming compensation under this Section 3.9 shall furnish to the Borrower and the Agent a statement setting forth the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence of manifest error. In determining such amount, such Lender may use any reasonable averaging and attribution methods. Notwithstanding the foregoing, the Borrower

 

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shall not be required to compensate a Lender or an Issuing Lender pursuant to the foregoing provisions of this Section for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender or such Issuing Lender, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or such Issuing Lender’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine-month period referred to above shall be extended to include the period of retroactive effect thereof).

 

3.10	Treatment of Affected Loans .

If the obligation of any Lender to make any Eurodollar Loan or to continue, or to convert Base Rate Loans into, Eurodollar Loans shall be suspended pursuant to Section 3.8 or 3.9 hereof, such Lender’s Eurodollar Loans shall be automatically converted into Base Rate Loans on the last day(s) of the then current Interest Period(s) for such Eurodollar Loans (or, in the case of a conversion required by Section 3.8 hereof, on such earlier date as such Lender may specify to the Borrower with a copy to the Agent) and, unless and until such Lender gives notice as provided below that the circumstances specified in Section 3.8 or 3.9 hereof that gave rise to such conversion no longer exist:

(a) to the extent that such Lender’s Eurodollar Loans have been so converted, all payments and prepayments of principal that would otherwise be applied to such Lender’s Eurodollar Loans shall be applied instead to its Base Rate Loans; and

(b) all Loans that would otherwise be made or continued by such Lender as Eurodollar Loans shall be made or continued instead as Base Rate Loans, and all Base Rate Loans of such Lender that would otherwise be converted into Eurodollar Loans shall remain as Base Rate Loans.

If such Lender gives notice to the Borrower (with a copy to the Agent) that the circumstances specified in Section 3.8 or 3.9 hereof that gave rise to the conversion of such Lender’s Eurodollar Loans pursuant to this Section 3.10 no longer exist (which such Lender agrees to do promptly upon such circumstances ceasing to exist) at a time when Eurodollar Loans made by other Lenders are outstanding, such Lender’s Base Rate Loans shall be automatically converted, on the first day(s) of the next succeeding Interest Period(s) for such outstanding Eurodollar Loans, to the extent necessary so that, after giving effect thereto, all Loans of each Class held by the Lenders holding Eurodollar Loans and by such Lender are held pro rata (as to principal amounts, interest rate basis, and Interest Periods) in accordance with their respective Revolving Commitments or Single-Draw Commitments, as applicable.

 

3.11

Taxes .

(a) Any and all payments by the Borrower to or for the account of any Lender or the Agent hereunder or under any other Credit Document shall be made free and clear of and without deduction for any and all Taxes. If the Borrower or the Agent shall be required by law to deduct any Taxes from or in respect of any sum payable under this Credit Agreement or any other Credit Document to any Recipient, (i) the sum payable by the Borrower shall be increased as necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 3.11 ) such Recipient receives an amount equal to the sum it would have received had no deductions for Indemnified Taxes been made, (ii) the Borrower or the Agent, as applicable, shall make such deductions of Taxes, (iii) the Borrower or the Agent, as applicable, shall pay the full amount deducted to the relevant taxation authority or other authority in accordance with applicable law, and (iv) the Borrower shall furnish to the Agent, at its address referred to in Section 11.1 , the original or a certified copy of a receipt evidencing payment thereof.

 

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(b) In addition, the Borrower agrees to pay any and all present or future stamp or documentary taxes and any other excise or property taxes or charges or similar levies which arise from any payment made under this Credit Agreement or any other Credit Document or from the execution or delivery of, or otherwise with respect to, this Credit Agreement or any other Credit Document (hereinafter referred to as “ Other Taxes ”).

(c) The Borrower agrees to indemnify each Lender, each Issuing Lender and the Agent (within 10 days after deemed therefor) for the full amount of Indemnified Taxes and Other Taxes (including, without limitation, any Indemnified Taxes or Other Taxes imposed or asserted by any jurisdiction on amounts payable under this Section 3.11 ) paid by such Lender, Issuing Lender or the Agent (as the case may be) and any liability (including penalties, interest, and expenses) arising therefrom or with respect thereto whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender (with a copy to the Agent), or by the Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.

(d) (i) Each Lender that is organized under the laws of a jurisdiction outside the United States and that is entitled to an exemption from or reduction of U.S. federal withholding Tax with respect to any payments made under any Credit Documents shall, on or prior to the date of its execution and delivery of this Credit Agreement in the case of each Lender listed on the signature pages hereof and on or prior to the date on which it becomes a Lender in the case of each other Lender, and from time to time thereafter if requested in writing by the Borrower or the Agent (but only so long as such Lender remains lawfully able to do so), shall provide the Borrower and the Agent with (i) Internal Revenue Service Form W-8ECI or W-8BEN, as appropriate, or any successor form prescribed by the Internal Revenue Service, certifying that such Lender is entitled to benefits under an income tax treaty to which the United States is a party which reduces the rate of withholding tax on payments of interest or certifying that the income receivable pursuant to this Credit Agreement is effectively connected with the conduct of a trade or business in the United States or (ii) any other form or certificate required by any taxing authority (including any certificate required by Sections 871(h) and 881(c) of the Code), certifying that such Lender is entitled to an exemption from or a reduced rate of tax on payments pursuant to this Credit Agreement or any of the other Credit Documents.

(ii) If a payment made to a Lender under this Credit Agreement or other Credit Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Agent as may be necessary for the Borrower and the Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (d)(ii), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

 

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(e) If the Borrower is required to pay additional amounts to or for the account of any Lender or any Issuing Lender pursuant to this Section 3.11 , then such Lender or Issuing Lender will agree to use reasonable efforts to change the jurisdiction of its Applicable Lending Office so as to eliminate or reduce any such additional payment which may thereafter accrue if such change, in the judgment of such Lender or Issuing Lender, is not otherwise disadvantageous to such Lender or such Issuing Lender.

(f) Within thirty (30) days after the date of any payment of Indemnified Taxes, the Borrower shall furnish to the Agent the original or a certified copy of a receipt evidencing such payment.

(g) If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 3.11 (including by the payment of additional amounts pursuant to this Section 3.11 ), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this paragraph (g) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph (g), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (g) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the indemnification payments or additional amounts giving rise to such refund had never been paid. This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other party.

(h) Indemnification of the Agent . Each Lender and the Issuing Lender shall severally indemnify the Agent within ten (10) days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that the Borrower has not already indemnified the Agent for such Indemnified Taxes and without limiting the obligation of the Borrower to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 11.3(d) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Agent in connection with any Credit Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Agent to set off and apply any and all amounts at any time owing to such Lender under any Credit Document or otherwise payable by the Agent to the Lender from any other source against any amount due to the Agent under this paragraph (h). The agreements in paragraph (h) shall survive the resignation and/or replacement of the Agent.

(i) Without prejudice to the survival of any other agreement of the Borrower hereunder, the agreements and obligations of the Borrower contained in this Section 3.11 shall survive the repayment of the Loans, LOC Obligations and other obligations under the Credit Documents and the termination of the Commitments hereunder.

 

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3.12	Compensation .

Upon the request of any Lender, the Borrower shall pay to such Lender such amount or amounts as shall be sufficient (in the reasonable opinion of such Lender) to compensate it for any loss, cost, or reasonable expense (including loss of anticipated profits) incurred by it as a result of:

(a) any payment, prepayment, or conversion of a Eurodollar Loan for any reason (including, without limitation, the acceleration of the Loans pursuant to Section 9.2 ) on a date other than the last day of the Interest Period for such Loan; or

(b) any failure by the Borrower for any reason (including, without limitation, the failure of any condition precedent specified in Section 5 to be satisfied) to borrow, convert, continue, or prepay a Eurodollar Loan on the date for such borrowing, conversion, continuation, or prepayment specified in the relevant notice of borrowing, prepayment, continuation, or conversion under this Credit Agreement.

With respect to Eurodollar Loans, such indemnification may include an amount equal to the excess, if any, of (a) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or continued, for the period from the date of such prepayment or of such failure to borrow, convert or continue to the last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or continue, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Eurodollar Loans provided for herein over (b) the amount of interest (as reasonably determined by such Lender) which would have accrued to such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank Eurodollar market. The covenants of the Borrower set forth in this Section 3.12 shall survive the repayment of the Loans, LOC Obligations and other obligations under the Credit Documents and the termination of the Commitments hereunder.

 

3.13	Pro Rata Treatment .

Except to the extent otherwise provided herein:

(a) Loans . Each Loan of any Class, each payment or prepayment of principal of any Loan of any Class or reimbursement obligations arising from drawings under Letters of Credit, each payment of interest on the Loans or reimbursement obligations arising from drawings under Letters of Credit, each payment of the Commitment Fees, each payment of the Letter of Credit Fee, each reduction of the Revolving Committed Amount and each conversion or extension of any Loan of any Class, shall be allocated pro rata among the Lenders in accordance with the respective principal amounts of their outstanding Loans and Participation Interests of the applicable Class.

(b) Advances . No Lender shall be responsible for the failure or delay by any other Lender in its obligation to make its ratable share of a borrowing hereunder; provided , however , that the failure of any Lender to fulfill its obligations hereunder shall not relieve any other Lender of its obligations hereunder. Unless the Agent shall have been notified by any Lender prior to the date of any requested borrowing that such Lender does not intend to make available to the Agent its ratable share of such borrowing to be made on such date, the Agent may assume that such Lender has made such amount available to the Agent on the date of such borrowing, and the

 

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Agent in reliance upon such assumption, may (in its sole discretion but 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 Agent, the Agent shall be able to recover such corresponding amount from such Lender. If such Lender does not pay such corresponding amount forthwith upon the Agent’s demand therefor, the Agent will promptly notify the Borrower, and the Borrower shall immediately pay such corresponding amount to the Agent. The Agent shall also be entitled to recover from the Lender 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 Agent to the Borrower to the date such corresponding amount is recovered by the Agent at a per annum rate equal to (i) from the Borrower at the applicable rate for the applicable borrowing pursuant to the Notice of Borrowing or (ii) from a Lender at the Federal Funds Rate.

 

3.14	Sharing of Payments .

The Lenders agree among themselves that, in the event that any Lender shall obtain payment in respect of any Loan, LOC Obligations or any other obligation owing to such Lender under this Credit Agreement through the exercise of a right of setoff, banker’s lien or counterclaim, or pursuant to a secured claim under Section 506 of Title 11 of the United States Code or other security or interest arising from, or in lieu of, such secured claim, received by such Lender under any applicable bankruptcy, insolvency or other similar law or otherwise, or by any other means, in excess of its pro rata share of such payment as provided for in this Credit Agreement, such Lender shall promptly purchase from the other Lenders a Participation Interest in such Loans, LOC Obligations and other obligations in such amounts, and make such other adjustments from time to time, as shall be equitable to the end that all Lenders share such payment in accordance with their respective ratable shares as provided for in this Credit Agreement. The Lenders further agree among themselves that if payment to a Lender obtained by such Lender through the exercise of a right of setoff, banker’s lien, counterclaim or other event as aforesaid shall be rescinded or must otherwise be restored, each Lender which shall have shared the benefit of such payment shall, by repurchase of a Participation Interest theretofore sold, return its share of that benefit (together with its share of any accrued interest payable with respect thereto) to each Lender whose payment shall have been rescinded or otherwise restored. The Borrower agrees that any Lender so purchasing such a Participation Interest may, to the fullest extent permitted by law, exercise all rights of payment, including setoff, banker’s lien or counterclaim, with respect to such Participation Interest as fully as if such Lender were a holder of such Loan, LOC Obligations or other obligation in the amount of such Participation Interest. Except as otherwise expressly provided in this Credit Agreement, if any Lender or the Agent shall fail to remit to the Agent or any other Lender an amount payable by such Lender or the Agent to the Agent or such other Lender pursuant to this Credit Agreement on the date when such amount is due, such payments shall be made together with interest thereon for each date from the date such amount is due until the date such amount is paid to the Agent or such other Lender at a rate per annum equal to the Federal Funds Rate. If under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff to which this Section 3.14 applies, such Lender shall, to the extent practicable, exercise its rights in respect of such secured claim in a manner consistent with the rights of the Lenders under this Section 3.14 to share in the benefits of any recovery on such secured claim.

Notwithstanding anything herein to the contrary, the provisions of this Section shall not be construed to apply to (A) any payment made by or on behalf of the Borrower pursuant to and in accordance with the express terms of this Credit Agreement (including the application of funds arising from the existence of a Defaulting Lender), (B) the application of Cash Collateral provided for in Section 3.18 , or (C) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or subparticipations in LOC Obligations or Swingline Loans to any assignee or participant, other than an assignment to any Credit Party or any Subsidiary thereof (as to which the provisions of this Section shall apply).

 

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3.15	Payments, Computations, Etc .

(a) Except as otherwise specifically provided herein, all payments hereunder shall be made to the Agent in Dollars and in immediately available funds, without setoff, deduction, counterclaim or withholding of any kind, at the Agent’s office specified in Section 11.1 not later than 2:00 P.M. (Charlotte, North Carolina time) on the date when due. Payments received after such time shall be deemed to have been received on the next succeeding Business Day. The Agent may (but shall not be obligated to) debit the amount of any such payment which is not made by such time to any ordinary deposit account of the Borrower maintained with the Agent (with notice to the Borrower). The Borrower shall, at the time it makes any payment under this Credit Agreement, specify to the Agent the Loans, LOC Obligations, Fees, interest or other amounts payable by the Borrower hereunder to which such payment is to be applied (and in the event that it fails so to specify, or if such application would be inconsistent with the terms hereof, the Agent shall distribute such payment to the Lenders in such manner as the Agent may determine to be appropriate in respect of obligations owing by the Borrower hereunder, subject to the terms of Section 3.13(a) ). The Agent will distribute such payments to such Lenders, if any such payment is received prior to 12:00 Noon (Charlotte, North Carolina time) on a Business Day in like funds as received prior to the end of such Business Day and otherwise the Agent will distribute such payment to such Lenders on the next succeeding Business Day. Whenever any payment hereunder 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 (subject to accrual of interest and Fees for the period of such extension), except that in the case of Eurodollar Loans, if the extension would cause the payment to be made in the next following calendar month, then such payment shall instead be made on the next preceding Business Day. Except as expressly provided otherwise herein, all computations of interest and fees shall be made on the basis of actual number of days elapsed over a year of 360 days, except with respect to computation of interest on Base Rate Loans which shall be calculated based on a year of 365 or 366 days, as appropriate. Interest shall accrue from and include the date of borrowing, but exclude the date of payment.

(b) Allocation of Payments After Event of Default . Notwithstanding any other provisions of this Credit Agreement to the contrary, after the occurrence and during the continuance of an Event of Default, all amounts collected or received by the Agent or any Lender on account of the Credit Party Obligations or any other amounts outstanding under any of the Credit Documents or in respect of the Pledged Collateral shall be paid over or delivered as follows:

FIRST, to the payment of all reasonable out-of-pocket costs and expenses (including without limitation reasonable attorneys’ fees) of the Agent in connection with enforcing the rights of the Lenders under the Credit Documents;

SECOND, to payment of any fees owed to the Agent;

THIRD, to the payment of all reasonable out-of-pocket costs and expenses (including without limitation, reasonable attorneys’ fees) of each of the Lenders in connection with enforcing its rights under the Credit Documents or otherwise with respect to the Credit Party Obligations owing to such Lender;

 

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FOURTH, to the payment of all of the Credit Party Obligations consisting of accrued fees and interest;

FIFTH, to the payment of the outstanding principal amount of the Credit Party Obligations (including the payment or cash collateralization of the outstanding LOC Obligations);

SIXTH, to all other Credit Party Obligations and other obligations which shall have become due and payable under the Credit Documents or otherwise and not repaid pursuant to clauses “FIRST” through “FIFTH” above; and

SEVENTH, to the payment of the surplus, if any, to the Borrower or whoever else may be lawfully entitled to receive such surplus.

In carrying out the foregoing, (i) amounts received shall be applied in the numerical order provided until exhausted prior to application to the next succeeding category; (ii) each of the Lenders shall receive an amount equal to its pro rata share (based on the proportion that the then outstanding Loans and LOC Obligations held by such Lender bears to the aggregate then outstanding Loans and LOC Obligations) of amounts available to be applied pursuant to clauses “THIRD”, “FOURTH”, “FIFTH” and “SIXTH” above; and (iii) to the extent that any amounts available for distribution pursuant to clause “FIFTH” above are attributable to the issued but undrawn amount of outstanding Letters of Credit, such amounts shall be held by the Agent in a cash collateral account and applied (A) first, to reimburse the applicable Issuing Lender from time to time for any drawings under such Letters of Credit and (B) then, following the expiration of all Letters of Credit, to all other obligations of the types described in clauses “FIFTH” and “SIXTH” above in the manner provided in this Section 3.15(b) .

 

3.16	Evidence of Debt .

(a) Each Lender shall maintain an account or accounts evidencing each Loan made by such Lender to the Borrower from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time under this Credit Agreement. Each Lender shall maintain the accuracy of its account or accounts and to promptly update its account or accounts from time to time, as necessary.

(b) The Agent shall maintain the Register pursuant to Section 11.3(c) , and a subaccount for each Lender, in which Register and subaccounts (taken together) shall be recorded (i) the amount, type and Interest Period of each such Loan hereunder, (ii) the amount of any principal or interest due and payable or to become due and payable to each Lender hereunder and (iii) the amount of any sum received by the Agent hereunder from or for the account of the Borrower and each Lender’s share thereof. The Agent shall maintain the accuracy of the subaccounts referred to in the preceding sentence and to promptly update such subaccounts from time to time, as necessary.

(c) The entries made in the accounts, Register and subaccounts maintained pursuant to subsection (b) of this Section 3.16 (and, if consistent with the entries of the Agent, subsection (a)) shall be prima facie evidence of the existence and amounts of the obligations of the Borrower therein recorded; provided , however , that the failure of any Lender or the Agent to maintain any such account, such Register or such subaccount, as applicable, or any error therein, shall not in any manner affect the obligation of the Borrower to repay the Loans made by such Lender in accordance with the terms hereof.

 

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3.17	Replacement of Affected Lenders .

If any Lender having a Commitment becomes a Defaulting Lender or if any Lender is owed increased costs under Section 3.6 , Section 3.8 , or Section 3.9 , or the Borrower is required to make any payments under Section 3.11 to any Lender in excess of those to the other Lenders, or if any Lender refuses to consent to an amendment, modification or waiver of this Credit Agreement that, pursuant to Section 11.6 , requires consent of 100% of the Lenders and is consented to by the Required Lenders, then the Borrower shall have the right, if no Event of Default then exists, to replace such Lender (the “ Replaced Lender ”) with one or more other Eligible Assignee or Eligible Assignees, none of whom shall constitute a Defaulting Lender at the time of such replacement (collectively, the “ Replacement Lender ”) reasonably acceptable to the Agent, provided that (i) at the time of any replacement pursuant to this Section 3.17 , the Replaced Lender and Replacement Lender shall enter into one or more assignment agreements, in form and substance reasonably satisfactory to such parties and the Agent, pursuant to which the Replacement Lender shall acquire all or a portion, as the case may be, of the Commitments and outstanding Loans of, and participation in Letters of Credit and Swingline Loans by, the Replaced Lender hereunder and (ii) all obligations of the Borrower owing to the Replaced Lender relating to the Loans so replaced (including, without limitation, such increased costs and excluding those specifically described in clause (i) above in respect of which the assignment purchase price has been, or is concurrently being paid) shall be paid in full to such Replaced Lender concurrently with such replacement. Upon the execution of the respective assignment documentation, the payment of amounts referred to in clauses (i) and (ii) above and, if so requested by the Replacement Lender, delivery to the Replacement Lender of an appropriate Note executed by the Borrower, the Replacement Lender shall become a Lender hereunder and the Replaced Lender shall cease to constitute a Lender hereunder with respect to such replaced Loans, except with respect to indemnification provisions under this Credit Agreement, which shall survive as to such Replaced Lender. Notwithstanding anything to the contrary contained above, (1) the Lender that acts as an Issuing Lender may not be replaced hereunder at any time that it has Letters of Credit outstanding hereunder unless arrangements satisfactory to such Issuing Lender (including the furnishing of a back-up standby letter of credit in form and substance, and issued by an issuer satisfactory to such Issuing Lender or the depositing of cash collateral into a cash collateral account maintained with the Agent in amounts and pursuant to arrangements satisfactory to such Issuing Lender) have been made with respect to such outstanding Letters of Credit and (2) the Lender that acts as the Agent may not be replaced hereunder except in accordance with the terms of Section 10.7 . The Replaced Lender shall be required to deliver for cancellation its applicable Notes, to the extent applicable, to be canceled on the date of replacement, or if any such Note is lost or unavailable, such other assurances or indemnification therefor as the Borrower may reasonably request.

 

3.18	Cash Collateral .

(a) Certain Credit Support Events . Upon the request of the Agent or any Issuing Lender (i) if any Issuing Lender has honored any full or partial drawing request under any Letter of Credit and such drawing has resulted in an LOC Borrowing, or (ii) if, as of the Letter of Credit Expiration Date, any LOC Obligation for any reason remains outstanding, the Borrower shall, in each case, immediately Cash Collateralize the then Outstanding Amount of all LOC Obligations. At any time that there shall exist a Defaulting Lender, immediately upon the request of the Agent, an Issuing Lender or the Swingline Lender, the Borrower shall deliver to the Agent Cash Collateral in an amount sufficient to cover all Fronting Exposure (after giving effect to Section 3.19(a)(iv) and any Cash Collateral provided by the Defaulting Lender).

(b) Grant of Security Interest . All Cash Collateral (other than credit support not constituting funds subject to deposit) shall be maintained in blocked, non-interest bearing deposit accounts at Xxxxx Fargo. The Borrower, and to the extent provided by any Lender, such Lender,

 

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hereby grants to (and subjects to the control of) the Agent, for the benefit of the Agent, the Issuing Lenders and the Lenders (including the Swingline Lender), and agrees to maintain, a first priority security interest in all such cash, deposit accounts and all balances therein, and all other property so provided as collateral pursuant hereto, and in all proceeds of the foregoing, all as security for the obligations to which such Cash Collateral may be applied pursuant to Section 3.18(c) . If at any time the Agent determines that Cash Collateral is subject to any right or claim of any Person other than the Agent as herein provided, or that the total amount of such Cash Collateral is less than the applicable Fronting Exposure and other obligations secured thereby, the Borrower or the relevant Defaulting Lender will, promptly upon demand by the Agent, pay or provide to the Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency.

(c) Application . Notwithstanding anything to the contrary contained in this Credit Agreement, Cash Collateral provided under any of this Section 3.18 or Sections 2.2 , 2.3 , 3.3 , 3.19 or 9.2 in respect of Letters of Credit or Swingline Loans shall be held and applied to the satisfaction of the specific LOC Obligations, Swingline Loans, obligations to fund participations therein (including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) and other obligations for which the Cash Collateral was so provided, prior to any other application of such property as may be provided for herein.

(d) Release . Cash Collateral (or the appropriate portion thereof) provided to reduce Fronting Exposure or other obligations shall be released promptly following (i) the elimination of the applicable Fronting Exposure or other obligations giving rise thereto (including by the termination of Defaulting Lender status of the applicable Lender (or, as appropriate, its assignee following compliance with Section 11.3(b)(vi) )) or (ii) the Agent’s good faith determination that there exists excess Cash Collateral; provided , however , (x) that Cash Collateral furnished by or on behalf of a Credit Party shall not be released during the continuance of a Default or Event of Default (and following application as provided in this Section 3.18 may be otherwise applied in accordance with Section 3.15(b) ), and (y) the Person providing Cash Collateral and the applicable Issuing Lender or Swingline Lender, as applicable, may agree that Cash Collateral shall not be released but instead held to support future anticipated Fronting Exposure or other obligations.

 

3.19	Defaulting Lenders .

(a) Adjustments . Notwithstanding anything to the contrary contained in this Credit Agreement, if any Lender becomes a Defaulting Lender, then, until such time as that Lender is no longer a Defaulting Lender, to the extent permitted by applicable Law:

(i) Waivers and Amendments . That Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Credit Agreement shall be restricted as set forth in Section 11.6 .

(ii) Reallocation of Payments . Any payment of principal, interest, fees or other amounts received by the Agent for the account of that Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Section 9 or otherwise), shall be applied at such time or times as may be determined by the Agent as follows: first , to the payment of any amounts owing by that Defaulting Lender to the Agent hereunder; second , to the payment on a pro rata basis of any amounts owing by that Defaulting Lender to the Issuing Lenders or Swingline Lender hereunder; third , if so determined by the Agent or requested by an Issuing Lender or Swingline Lender, to be held as Cash Collateral for future funding obligations of that Defaulting Lender of any participation in any Swingline

 

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Loan or Letter of Credit; fourth , as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which that Defaulting Lender has failed to fund its portion thereof as required by this Credit Agreement, as determined by the Agent; fifth , if so determined by the Agent and the Borrower, to be held in a non-interest bearing deposit account and released in order to satisfy obligations of that Defaulting Lender to fund Loans under this Credit Agreement; sixth , to the payment of any amounts owing to the Lenders, the Issuing Lenders or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, the Issuing Lenders or Swingline Lender against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Credit Agreement; seventh , so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Credit Agreement; and eighth , to that Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or LOC Borrowings in respect of which that Defaulting Lender has not fully funded its appropriate share and (y) such Loans or LOC Borrowings were made at a time when the conditions set forth in Section 5.2 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and LOC Borrowings owed to, all non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loan of, or LOC Borrowings owed to, that Defaulting Lender. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this  Section 2.15(a)(ii) shall be deemed paid to and redirected by that Defaulting Lender, and each Lender irrevocably consents hereto.

(iii) Certain Fees . That Defaulting Lender (x) shall not be entitled to receive any Commitment Fee pursuant to Section 3.5(b) for any period during which that Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender) and (y) shall be limited in its right to receive Letter of Credit Fees as provided in Section 3.5(c) ).

(iv) Reallocation of Revolving Commitment Percentages to Reduce Fronting Exposure . During any period in which there is a Defaulting Lender, for purposes of computing the amount of the obligation of each non-Defaulting Lender that is a Revolving Lender to acquire, refinance or fund participations in Letters of Credit or Swingline Loans pursuant to Sections 2.2 and 2.3 , the “Revolving Commitment Percentage” of each non-Defaulting Lender shall be computed without giving effect to the Revolving Commitment of that Defaulting Lender; provided , that, (i) each such reallocation shall be given effect only if, at the date of such reallocation, no Default or Event of Default exists; and (ii) the aggregate obligation of each such non-Defaulting Lender to acquire, refinance or fund participations in Letters of Credit and Swingline Loans shall not exceed the positive difference, if any, of (1) the Revolving Commitment of such Lender minus (2) the aggregate Outstanding Amount of the Revolving Committed Loans of such Lender.

(b) Defaulting Lender Cure . If the Borrower and the Agent (and, solely with respect to Defaulting Lenders that are Revolving Lenders, the Swingline Lender and the Issuing Lenders) agree in writing in their sole discretion that a Defaulting Lender should no longer be deemed to be a Defaulting Lender, the Agent will so notify the parties hereto, whereupon as of the effective

 

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date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateral), that Lender will, to the extent applicable, purchase that portion of outstanding Loans of the other Lenders or take such other actions as the Agent may determine to be necessary to cause the Revolving Committed Loans and funded and unfunded participations in Letters of Credit and Swingline Loans to be held on a pro rata basis by the Lenders in accordance with their Revolving Commitment Percentages (without giving effect to Section 3.19(a)(iv) ), whereupon that Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that Lender was a Defaulting Lender; and provided , further , that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.

SECTION 4

GUARANTY

 

4.1	The Guaranty .

Subject to Section 4.8 , each of the Guarantors hereby jointly and severally guarantees to each Lender, each Affiliate of a Lender that enters into a Hedging Agreement or enters into an Equity Swap Agreement, and the Agent as hereinafter provided the prompt payment of the Credit Party Obligations in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration, as a mandatory cash collateralization or otherwise) strictly in accordance with the terms thereof. The Guarantors hereby further agree that if any of the Credit Party Obligations are not paid in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration, as a mandatory cash collateralization or otherwise), the Guarantors will, jointly and severally, promptly pay the same, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of the Credit Party Obligations, the same will be promptly paid in full when due (whether at extended maturity, as a mandatory prepayment, by acceleration, as a mandatory cash collateralization or otherwise) in accordance with the terms of such extension or renewal.

Notwithstanding any provision to the contrary contained herein or in any other of the Credit Documents, Hedging Agreements or Equity Swap Agreements, to the extent the obligations of a Guarantor shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of each Guarantor hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the Bankruptcy Code).

 

4.2	Obligations Unconditional .

Subject to Section 4.8 , the obligations of the Guarantors under Section 4.1 are joint and several, absolute and unconditional, irrespective of the value, genuineness, validity, regularity or enforceability of any of the Credit Documents, Hedging Agreements or Equity Swap Agreements, or any other agreement or instrument referred to therein, or any substitution, release, impairment or exchange of any other guarantee of or security for any of the Credit Party Obligations, and, to the fullest extent permitted by applicable law, irrespective of any other circumstance whatsoever which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor, it being the intent of this Section 4.2 that the obligations of the Guarantors hereunder shall be absolute and unconditional under any and all

 

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circumstances. Each Guarantor agrees that such Guarantor shall have no right of subrogation, indemnity, reimbursement or contribution against the Borrower or any other Guarantor of the Credit Party Obligations for amounts paid under this Section 4 until such time as the Lenders (and any Affiliates of Lenders entering into Hedging Agreements or Equity Swap Agreements) have been paid in full, all Commitments under this Credit Agreement have been terminated and no Person or Governmental Authority shall have any right to request any return or reimbursement of funds from the Lenders in connection with monies received under the Credit Documents, Hedging Agreements or Equity Swap Agreements. Without limiting the generality of the foregoing, it is agreed that, to the fullest extent permitted by law, the occurrence of any one or more of the following shall not alter or impair the liability of any Guarantor hereunder which shall remain absolute and unconditional as described above:

(a) at any time or from time to time, without notice to any Guarantor, the time for any performance of or compliance with any of the Credit Party Obligations shall be extended, or such performance or compliance shall be waived;

(b) any of the acts mentioned in any of the provisions of any of the Credit Documents, any Hedging Agreement, any Equity Swap Agreement or any other agreement or instrument referred to in the Credit Documents, Hedging Agreements or Equity Swap Agreements shall be done or omitted;

(c) the maturity of any of the Credit Party Obligations shall be accelerated, or any of the Credit Party Obligations shall be modified, supplemented or amended in any respect, or any right under any of the Credit Documents, any Hedging Agreement, any Equity Swap Agreement or any other agreement or instrument referred to in the Credit Documents, Hedging Agreements or Equity Swap Agreements shall be waived or any other guarantee of any of the Credit Party Obligations or any security therefor shall be released, impaired or exchanged in whole or in part or otherwise dealt with;

(d) any Lien granted to, or in favor of, the Agent or any Lender or Lenders as security for any of the Credit Party Obligations shall fail to attach or be perfected, or any Collateral shall be released;

(e) any of the Credit Party Obligations shall be determined to be void or voidable (including, without limitation, for the benefit of any creditor of any Guarantor) or shall be subordinated to the claims of any Person (including, without limitation, any creditor of any Guarantor); or

(f) any law, regulation or other event shall render any term of the Credit Party Obligations invalid or unenforceable.

With respect to its obligations hereunder, each Guarantor hereby expressly waives diligence, presentment, demand of payment, protest and all notices whatsoever (except notices expressly provided for in the Credit Documents), and any requirement that the Agent or any Lender exhaust any right, power or remedy or proceed against any Person under any of the Credit Documents, any Hedging Agreement, Equity Swap Agreement or any other agreement or instrument referred to in the Credit Documents, Hedging Agreements or Equity Swap Agreement, or against any other Person under any other guarantee of, or security for, any of the Credit Party Obligations.

 

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4.3	Reinstatement .

The obligations of the Guarantors under this Section 4 shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of any Person in respect of the Credit Party Obligations is rescinded or must be otherwise restored by any holder of any of the Credit Party Obligations, whether as a result of any proceedings in bankruptcy or reorganization or otherwise, and each Guarantor agrees that it will indemnify the Agent and each Lender on demand for all reasonable costs and expenses (including, without limitation, fees and expenses of counsel) incurred by the Agent or such Lender in connection with such rescission or restoration, including any such costs and expenses incurred in defending against any claim alleging that such payment constituted a preference, fraudulent transfer or similar payment under any bankruptcy, insolvency or similar law.

 

4.4	Certain Additional Waivers .

Each Guarantor agrees that such Guarantor shall have no right of recourse to security for the Credit Party Obligations, except through the exercise of rights of subrogation pursuant to Section 4.2 and through the exercise of rights of contribution pursuant to Section 4.6 .

 

4.5	Remedies .

The Guarantors agree that, to the fullest extent permitted by law, as between the Guarantors, on the one hand, and the Agent and the Lenders, on the other hand, the Credit Party Obligations may be declared to be forthwith due and payable as provided in Section 9.2 (and shall be deemed to have become automatically due and payable in the circumstances provided in said Section 9.2 ) for purposes of Section 4.1 notwithstanding any stay, injunction or other prohibition preventing such declaration (or preventing the Credit Party Obligations from becoming automatically due and payable) as against any other Person and that, in the event of such declaration (or the Credit Party Obligations being deemed to have become automatically due and payable), the Credit Party Obligations (whether or not due and payable by any other Person) shall forthwith become due and payable by the Guarantors for purposes of Section 4.1 . The Guarantors acknowledge and agree that their obligations hereunder are secured in accordance with the terms of the Pledge Agreement and that the Lenders may exercise their remedies thereunder in accordance with the terms thereof.

 

4.6	Rights of Contribution .

The Guarantors hereby agree as among themselves that, if any Guarantor shall make an Excess Payment (as defined below), such Guarantor shall have a right of contribution from each other Guarantor in an amount equal to such other Guarantor’s Contribution Share (as defined below) of such Excess Payment. The payment obligations of any Guarantor under this Section 4.6 shall be subordinate and subject in right of payment to the prior payment in full to the Agent and the Lenders of the Guaranteed Obligations, and none of the Guarantors shall exercise any right or remedy under this Section 4.6 against any other Guarantor until payment and satisfaction in full of all of such Guaranteed Obligations. For purposes of this Section 4.6 , (a) “ Guaranteed Obligations ” shall mean any obligations arising under the other provisions of this Section 4 ; (b) “ Excess Payment ” shall mean the amount paid by any Guarantor in excess of its Pro Rata Share of any Guaranteed Obligations; (c) “ Pro Rata Share ” shall mean, for any Guarantor in respect of any payment of Guaranteed Obligations, the ratio (expressed as a percentage) as of the date of such payment of Guaranteed Obligations of (i) the amount by which the aggregate present fair salable value of all of its assets and properties exceeds the amount of all debts and liabilities of such Guarantor (including contingent, subordinated, unmatured, and unliquidated liabilities, but excluding the obligations of such Guarantor hereunder) to (ii) the amount by which the aggregate present fair salable value of all assets and other properties of the Borrower and all of the Guarantors exceeds the amount of

 

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all of the debts and liabilities (including contingent, subordinated, unmatured, and unliquidated liabilities, but excluding the obligations of the Borrower and the Guarantors hereunder) of the Borrower and all of the Guarantors; provided , however , that, for purposes of calculating the Pro Rata Shares of the Guarantors in respect of any payment of Guaranteed Obligations, any Guarantor that became a Guarantor subsequent to the date of any such payment shall be deemed to have been a Guarantor on the date of such payment and the financial information for such Guarantor as of the date such Guarantor became a Guarantor shall be utilized for such Guarantor in connection with such payment; and (d) “ Contribution Share ” shall mean, for any Guarantor in respect of any Excess Payment made by any other Guarantor, the ratio (expressed as a percentage) as of the date of such Excess Payment of (i) the amount by which the aggregate present fair salable value of all of its assets and properties exceeds the amount of all debts and liabilities of such Guarantor (including contingent, subordinated, unmatured, and unliquidated liabilities, but excluding the obligations of such Guarantor hereunder) to (ii) the amount by which the aggregate present fair salable value of all assets and other properties of the Borrower and all of the Guarantors other than the maker of such Excess Payment exceeds the amount of all of the debts and liabilities (including contingent, subordinated, unmatured, and unliquidated liabilities, but excluding the obligations of the Borrower and the Guarantors hereunder) of the Borrower and all of the Guarantors other than the maker of such Excess Payment; provided , however , that, for purposes of calculating the Contribution Shares of the Guarantors in respect of any Excess Payment, any Guarantor that became a Guarantor subsequent to the date of any such Excess Payment shall be deemed to have been a Guarantor on the date of such Excess Payment and the financial information for such Guarantor as of the date such Guarantor became a Guarantor shall be utilized for such Guarantor in connection with such Excess Payment. This Section 4.6 shall not be deemed to affect any right of subrogation, indemnity, reimbursement or contribution that any Guarantor may have under applicable law against the Borrower in respect of any payment of Guaranteed Obligations. Notwithstanding the foregoing, all rights of contribution against any Guarantor shall terminate from and after such time, if ever, that such Guarantor shall be relieved of its obligations pursuant to Section 8.4 .

 

4.7	Continuing Guarantee .

The guarantee in this Section 4 is a guaranty of payment and not of collection, is a continuing guarantee, and shall apply to all Credit Party Obligations whenever arising.

 

4.8	Limitation of Liability .

Anything in this Credit Agreement or any other Credit Document to the contrary notwithstanding:

(a) so long as Lincare Canada shall not have any assets other than the Capital Stock of Foreign Subsidiaries, the aggregate amount recoverable from Lincare Canada for application to any Credit Party Obligation or any “Secured Obligation” (as defined in the Pledge Agreement), whether by means of (i) the application of proceeds of Collateral owned by Lincare Canada, (ii) optional prepayment by Lincare Canada, (iii) payment by Lincare Canada of, or sale of or foreclosure on, payables of Lincare Canada owed to any other Credit Party, which payments, or the proceeds of which sale or foreclosure, are applied by the recipient thereof to any Credit Party Obligation or any “Secured Obligation” or (iv) enforcement by the Agent or any Lender hereunder or other Secured Party (as defined in the Pledge Agreement) of any of their rights hereunder or thereunder or otherwise, shall not exceed the actual amount realized from the sale of foreclosure on any Collateral owned by Lincare Canada; and

(b) so long as Lincare Canada shall not have any assets other than the Capital Stock of Foreign Subsidiaries, the obligations of Lincare Canada under this Credit Agreement and the other Credit Documents are and shall be non-recourse obligations of Lincare Canada, payable

 

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solely from the Collateral of Lincare Canada. Following realization and distribution of all proceeds of the Collateral of Lincare Canada, any and all claims arising from this Credit Agreement and any other Credit Document, or any transactions contemplated hereby or thereby, shall be extinguished against Lincare Canada.

SECTION 5

CONDITIONS

 

5.1	[ Reserved ].

 

5.2	Conditions to all Extensions of Credit .

The obligations of each Lender to make, convert or extend any Loan and of the applicable Issuing Lender to issue any Letter of Credit are subject to satisfaction of the following conditions in addition to satisfaction on the First Amendment Effective Date of the conditions set forth in Section 6 of the First Amendment:

(a) The Borrower shall have delivered (i) in the case of any Loan an appropriate Notice of Borrowing, Notice of Extension/Conversion or Notice of Swingline Borrowing or (ii) in the case of any Letter of Credit, the applicable Issuing Lender shall have received an appropriate request for issuance in accordance with the provisions of Section 2.2(b) ;

(b) The representations and warranties set forth in Section 6 , subject to the limitations set forth therein, be true and correct in all material respects as of such date, other than those representations and warranties which expressly relate to an earlier date, which shall be true and correct in all material respects as of such earlier date (except to the extent that any representation and warranty is qualified by materiality, in which case such representation and warranty shall be true and correct to such extent in all respects as of such applicable date);

(c) There shall not have been commenced against any Credit Party an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or any case, proceeding or other action for the appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of such Person or for any substantial part of its Property or for the winding up or liquidation of its affairs, and such involuntary case or other case, proceeding or other action shall remain undismissed, undischarged or unbonded;

(d) No Default or Event of Default shall exist and be continuing either prior to or after giving effect thereto;

(e) Immediately after giving effect to the making of any Revolving Committed Loan or Swingline Loan (and the application of the proceeds thereof) or to the issuance of such Letter of Credit, as the case may be, (i) the aggregate principal amount of outstanding Revolving Committed Loans, Swingline Loans and LOC Obligations shall not exceed the Revolving Committed Amount, (ii) the aggregate principal amount of LOC Obligations shall not exceed the LOC Committed Amount and (iii) the aggregate principal amount of Swingline Loans shall not exceed the Swingline Committed Amount; and

(f) The Borrower (nor any of its Affiliates) shall have not provided notice to the Bond Holders (as defined in clause (iv) of the definition of “Change of Control”) that it will (pursuant to a Bond Holder’s demand or otherwise) repurchase or prepay the Debentures (as

 

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defined in clause (iv) of the definition of “Change of Control”) in connection with an anticipated Change of Control and such notice shall not have been revoked in a manner that would cause the Borrower not to be obligated to repurchase or prepay such Debentures.

The delivery of each Notice of Borrowing, and each request for a Letter of Credit pursuant to Section 2.2(b) shall constitute a representation and warranty by the Borrower of the correctness of the matters specified in subsections (b), (c), (d) and (e) above.

SECTION 6

REPRESENTATIONS AND WARRANTIES

The Credit Parties hereby represent to the Agent and each Lender that:

 

6.1	Financial Condition .

(a) The Audited Financial Statements (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein; (ii) fairly present the financial condition of the Borrower and its Subsidiaries as of the date thereof and their results of operations for the period covered thereby in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein; and (iii) show all material indebtedness and other liabilities, direct or contingent, of the Borrower and its Subsidiaries as of the date thereof, including liabilities for taxes, material commitments and Indebtedness.

(b) The Interim Financial Statements (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein; (ii) fairly present the financial condition of the Borrower and its Subsidiaries as of the date thereof and their results of operations for the period covered thereby, subject, in the case of clauses (i) and (ii), to the absence of footnotes and to normal year-end audit adjustments; and (iii) show all material indebtedness and other liabilities, direct or contingent, of the Borrower and its Subsidiaries as of the date thereof, including liabilities for taxes, material commitments and Indebtedness.

(c) From the date of the Audited Financial Statements to and including the First Amendment Effective Date, there has been no disposition or any involuntary disposition of any material part of the business or property of the Borrower and its Subsidiaries, taken as a whole, and no purchase or other acquisition by any of them of any business or property (including any equity interests of any other Person) material in relation to the consolidated financial condition of the Borrower and its Subsidiaries, taken as a whole, in each case, which is not reflected in the foregoing financial statements or in the notes thereto and has not otherwise been disclosed in writing to the Lenders on or prior to the First Amendment Effective Date.

 

6.2	No Material Change