This AMENDMENT NO. 4 to AMENDED AND RESTATED ABL CREDIT AGREEMENT, dated as of June 26, 2024 (this “Amendment”), among AHP HEALTH PARTNERS, INC., a Delaware corporation (the “Company” and the “Administrative Borrower”), AHS EAST TEXAS HEALTH SYSTEM,...
Exhibit 10.10
This AMENDMENT NO. 4 to AMENDED AND RESTATED ABL CREDIT AGREEMENT, dated as of June 26, 2024 (this “Amendment”), among AHP HEALTH PARTNERS, INC., a Delaware corporation (the “Company” and the “Administrative Borrower”), AHS EAST TEXAS HEALTH SYSTEM, LLC, a Texas limited liability company (“AHS East Texas”), the Subsidiaries of the Company and AHS East Texas party to the ABL Credit Agreement as Borrowers (together with the Company and AHS East Texas, the “Borrowers”), the Guarantors, the Incremental Lenders (as defined below), the other Lenders and L/C Issuers party hereto and BANK OF AMERICA, N.A., as Administrative Agent (in such capacity, together with its successors, the “Administrative Agent”), amends that certain Amended and Restated ABL Credit Agreement dated as of July 8, 2021 (as amended by Amendment No. 1, dated as of August 24, 2021, as amended by Amendment No. 2, dated as of June 16, 2022, as amended by Amendment No. 3, dated as of April 21, 2023, and as further amended, restated, amended and restated, supplemented or otherwise modified from time to time prior to the date hereof, the “ABL Credit Agreement”), entered into among the Borrowers, the Guarantors, the Lenders, Bank of America, N.A., as Administrative Agent, Swing Line Lender and Collateral Agent, and the L/C Issuers. Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed to them in the ABL Credit Agreement.
W I T N E S S E T H:
WHEREAS, pursuant to Section 2.14 of the ABL Credit Agreement, the Administrative Borrower has requested a Revolving Commitment Increase of the Legacy Commitments in an aggregate amount equal to $100,000,000;
WHEREAS, in accordance with Section 2.14 of the ABL Credit Agreement, the Lenders whose Legacy Commitments as set forth on Schedule 2.01 hereto exceed their Legacy Commitments immediately prior to the Amendment No. 4 Effective Date (the “Incremental Lenders”) have elected to make or increase their respective Legacy Commitments, in each case, such that the aggregate amount of the Legacy Commitments of each Incremental Lender is the amount set forth opposite such Xxxxxx’s name on Schedule 2.01 hereto;
WHEREAS, the Borrowers have requested that each Lender and each L/C Issuer agree to extend the Maturity Date with respect to the Revolving Credit Commitments (the “Extension”) on the Amendment No. 4 Effective Date (as defined below), subject to the terms and conditions set forth herein;
WHEREAS, in connection with this Amendment, Barclays Bank PLC (the “Exiting Lender”) has requested that its Revolving Credit Commitments be terminated upon the Amendment No. 4 Effective Date (the “Exiting Lender Commitment Termination”), and the Borrowers, the Administrative Agent and each Lender have agreed to the Exiting Lender Commitment Termination;
WHEREAS, in order to effect the foregoing, the Borrowers, the Administrative Agent, the Lenders and the L/C Issuers party hereto desire to amend the ABL Credit Agreement on the terms set forth herein; and
WHEREAS, Bank of America, N.A., Xxxxxx Xxxxxxx Senior Funding, Inc. and JPMorgan Chase Bank, N.A. are acting as joint lead arrangers in connection with this Amendment (the “Amendment No. 4 Arrangers”).
NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the sufficiency and receipt of all of which is hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Revolving Commitment Increase.
(a) Pursuant to Section 2.14 of the ABL Credit Agreement, the Administrative Borrower confirms and agrees that it has requested an increase in the aggregate amount of the existing Legacy Commitments through the establishment of a Revolving Commitment Increase in an aggregate principal amount of $100,000,000 (the “Incremental Revolving Commitment”) on the Amendment No. 4 Effective Date.
(b) Each Incremental Lender party hereto hereby agrees (i) that effective on and at all times after the Amendment No. 4 Effective Date, such Incremental Lender will be bound by all obligations of a Lender and a Legacy Lender under the ABL Credit Agreement, (ii) to make or increase, as applicable, its Legacy Commitments to be the amount set forth opposite its name on Schedule 2.01 hereto, which Legacy Commitments shall be added to and constitute a part of the Legacy Commitments existing under the ABL Credit Agreement immediately prior to giving effect to this Amendment and (iii) to assume a portion of each existing Lender’s participations in outstanding Letters of Credit and Swing Line Loans made to Legacy Borrowers such that, after giving effect to this Amendment, the percentage of the aggregate outstanding (A) participations under the Credit Agreement in Letters of Credit and (B) participations under the Credit Agreement in Swing Line Loans made to Legacy Borrowers held by each Lender (including each Incremental Lender) will equal the percentage of the aggregate Legacy Commitments of all Lenders, respectively represented by such Xxxxxx’s Legacy Commitment.
(c) As of the Amendment No. 4 Effective Date, the settlement required pursuant to Section 2.14(c) of the ABL Credit Agreement shall have occurred.
(d) This Amendment shall constitute a joinder agreement for purposes of Section 2.14(b)(2) of the ABL Credit Agreement.
(e) Each Lender hereby agrees that upon the Amendment No. 4 Effective Date, it has Legacy Commitments and ETMC Commitments, respectively, in the amount set forth opposite its name on Schedule 2.01 hereto.
SECTION 2. Amendments to the Credit Agreement. Effective as of the Amendment No. 4 Effective Date (as defined below), the ABL Credit Agreement is hereby amended as follows:
(a) The ABL Credit Agreement is, effective as of the Amendment No. 4
Effective Date, hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text) as set forth in the pages of the Amended Credit Agreement attached as Exhibit A hereto (the ABL Credit Agreement as
amended hereby, the “Amended Credit Agreement”); and
(b) Schedule 2.01 to the ABL Credit Agreement is hereby amended and restated in its entirety as set forth on Schedule 2.01 hereto.
SECTION 3. Consents.
(a) Notwithstanding anything to the contrary in any Loan Document, each party to this Amendment hereby consents to the Exiting Lender Commitment Termination and agrees that this Amendment is deemed to satisfy any notice requirement under Section 2.06(b) of the ABL Credit Agreement.
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(b) The Exiting Lender shall, upon payment in full of all Obligations owing to it as of the date hereof and satisfaction of the condition described in Section 4(j), cease to be a Lender and an L/C Issuer under the ABL Credit Agreement on the Amendment No. 4 Effective Date and be released from all of its obligations (other than with respect to any Bank Product extended by the Exiting Lender that remains outstanding on the Amendment No. 4 Effective Date) under the ABL Credit Agreement and the other Loan Documents. For the avoidance of doubt, nothing herein shall be deemed to derogate from the Exiting Lender’s rights in respect of indemnification and other provisions of the ABL Credit Agreement that by their terms survive the termination of the Revolving Credit Commitments of the Exiting Lender or the Exiting Lender’s rights under the ABL Credit Agreement in respect of any Letter of Credit outstanding as of the Amendment No. 4 Effective Date.
(c) The Exiting Lender is executing this Amendment for the sole purpose of evidencing its agreement to this Section 3(a) and (b).
SECTION 4. Conditions of Effectiveness. This Amendment shall become effective as of the first date (such date being referred to as the “Amendment No. 4 Effective Date”, which date is June 26, 2024), when each of the following conditions shall have been satisfied:
(a) The Administrative Agent shall have received (i) counterparts of this Amendment duly executed and delivered by (A) the Loan Parties, (B) the Administrative Agent, (C) each Lender (including each Incremental Lender), L/C Issuer and Swing Line Lender and (D) the Exiting Lender and (ii) a fully executed copy of an amendment to the Relative Rights Agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent.
(b) The Administrative Agent shall have received a favorable opinion of each of (i) Xxxxxx Xxxxxx LLP, special New York counsel to the Loan Parties, (ii) Bass, Xxxxx & Xxxx PLC, special Tennessee counsel to the Loan Parties and (iii) Xxxxx Law Firm, special New Mexico counsel to the Loan Parties, in each case, addressed to the Administrative Agent, the Collateral Agent and each Lender, dated as of the Amendment No. 4 Effective Date and in form and substance reasonably satisfactory to the Administrative Agent.
(c) Receipt by the Administrative Agent of the following:
(i) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Loan Party to be true and correct in all material respects as of the Amendment No. 4 Effective Date (or, in the alternative, a certification by a Responsible Officer that no modifications to the Organization Documents delivered on the Original Closing Date or thereafter have occurred since such date);
(ii) copies of such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably request prior to the Amendment No. 4 Effective Date evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party; and
(iii) copies of such documents and certifications as the Administrative Agent may reasonably request prior to the Amendment No. 4 Effective Date to evidence that each Loan Party is duly organized or formed, and is validly existing, in good standing and qualified to engage in business in its state of organization or formation.
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(d) The Administrative Agent shall have received (i) searches of Uniform Commercial Code filings, tax and judgment liens in the jurisdiction of formation of each Loan Party, the jurisdiction of the chief executive office of each Loan Party where a filing would need to be made in order to perfect the Collateral Agent’s security interest in the Collateral, copies of the financing statements or other liens on file in such jurisdictions and evidence that no Liens exist other than Permitted Liens and Liens to be released substantially concurrently with the consummation of the Transaction, and (ii) searches of ownership of, and Xxxxx on, intellectual property of each Loan Party (in each case, to the extent reasonably requested by the Administrative Agent or Collateral Agent) in the appropriate governmental offices.
(e) The Administrative Agent shall have received a certificate executed by a Responsible Officer of the Administrative Borrower as of the Amendment No. 4 Effective Date, substantially in the form of Exhibit Q to the ABL Credit Agreement regarding the Solvency of Parent and its Subsidiaries on a consolidated basis and immediately after giving effect to the consummation of the transactions contemplated hereby on the Amendment No. 4 Effective Date.
(f) The Administrative Agent and the Lenders shall have received, at least three (3) Business Days prior to the Amendment No. 4 Effective Date, (i) all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and (ii) to the extent any Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such Borrower, in each case of clauses (i) and (ii), to the extent reasonably requested by such Person in writing at least ten (10) Business Days prior to the Amendment No. 4 Effective Date.
(g) The Administrative Agent shall have received a certificate from a Responsible Officer of the Administrative Borrower certifying that the representations and warranties set forth in Section 5 hereof are true and correct as of the Amendment No. 4 Effective Date.
(h) The Administrative Agent shall have received a Borrowing Base Certificate which calculates the Borrowing Base (determined in accordance with the ABL Credit Agreement) as of a date preceding the Amendment No. 4 Effective Date that is specified by the Administrative Agent, properly executed by a Responsible Officer of the signing Loan Party, in form and substance reasonably satisfactory to the Administrative Agent.
(i) The Administrative Agent shall have received payment by the Administrative Borrower of (i) all reasonable fees and expenses due to the Administrative Agent and the Amendment No. 4 Arrangers, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses (including the legal fees and expenses of Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel to the Administrative Agent) and (ii) the Commitment Fees and the Letter of Credit fees under Section 2.03(g) of the Credit Agreement that have accrued to but not including the Amendment No. 4 Effective Date.
(j) Either (x) (i) The Administrative Agent shall have received that certain Cash Collateral Agreement dated as of June 26, 2024 (the “Cash Collateral Agreement”) by and among the Exiting Lender, Parent and Bank of America, N.A. and (ii) the Exiting Lender shall have received evidence to its satisfaction that Parent has deposited the Required Amount (as defined in the Cash Collateral Agreement) in to the Cash Collateral Account (as defined in the Cash Collateral Agreement) or (y) each of the Exiting Lender and the Administrative Agent shall have received evidence reasonably satisfactory to them that the Letter of Credit as described in Schedule A to the Cash Collateral Agreement has been terminated and replaced.
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SECTION 5. Representations and Warranties: On and as of the Amendment No. 4 Effective Date, after giving effect to this Amendment, each Loan Party represents and warrants as follows:
(a) The execution, delivery and performance by each Loan Party of this Amendment has been duly authorized by all necessary corporate or other organizational action, and does not (i) contravene the terms of any of such Person’s Organization Documents; (ii) conflict with or result in any breach or contravention of, or the creation of any Lien under (A) any material Contractual Obligation to which such Person is a party or (B) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject; (iii) violate any Law (including, without limitation, Regulation U or Regulation X issued by the FRB); (iv) result in a limitation on any licenses, permits or other approvals applicable to the business, operations or properties of any Loan Party; or (v) materially and adversely affect the ability of any Loan Party to participate in any Medical Reimbursement Programs (except, in the cases of clauses (ii)(A), (iii) and (iv), as could not reasonably be expected to have a Material Adverse Effect).
(b) This Amendment has been duly executed and delivered by each Loan Party that is party hereto. This Amendment constitutes a legal, valid and binding obligation of each Loan Party that is party hereto, enforceable against each such Loan Party in accordance with its terms except as enforceability may be limited by applicable Debtor Relief Laws or by equitable principles relating to enforceability.
(c) The representations and warranties of the Borrowers and each other Loan Party contained in Article VI of the Amended Credit Agreement or any other Loan Document are true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) on and as of the Amendment No. 4 Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) as of such earlier date.
(d) No Default or Event of Default exists or would result from the effectiveness of this Amendment.
SECTION 6. Effect of Amendment. Except as expressly set forth herein, this Amendment shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the ABL Credit Agreement or any other provision of the ABL Credit Agreement or any other Loan Document, all of which are ratified and affirmed in all respects and shall continue in full force and effect. As of the Amendment No. 4 Effective Date, each reference in the ABL Credit Agreement to “this Agreement,” “hereunder,” “hereof,” “herein,” or words of like import, and each reference in the other Loan Documents to the ABL Credit Agreement (including, without limitation, by means of words like “thereunder,” “thereof” and words of like import), shall mean and be a reference to the Amended Credit Agreement, and this Amendment and the Amended Credit Agreement shall be read together and construed as a single instrument. This Amendment shall constitute a Loan Document.
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SECTION 7. Counterparts. This Amendment may be executed in any number of counterparts and by different parties hereto on separate counterparts, each of which when so executed and delivered shall be an original, but all of which shall together constitute one and the same instrument. A set of counterparts executed by all the parties hereto shall be lodged with the Administrative Borrower and the Administrative Agent. This Amendment, any Loan Document and any Communication, including Communications required to be in writing, may be in the form of an Electronic Record (as defined below) and may be executed using Electronic Signatures (as defined below). Each of the Borrowers and the Administrative Agent agree that any Electronic Signature on or associated with any Communication shall be valid and binding on such Person to the same extent as a manual, original signature, and that any Communication entered into by Electronic Signature, will constitute the legal, valid and binding obligation of such Person enforceable against such Person in accordance with the terms thereof to the same extent as if a manually executed original signature was delivered. Any Communication may be executed in as many counterparts as necessary or convenient, including both paper and electronic counterparts, but all such counterparts are one and the same Communication. For the avoidance of doubt, the authorization under this paragraph may include, without limitation, use or acceptance of a manually signed paper Communication which has been converted into electronic form (such as scanned into PDF format), or an electronically signed Communication converted into another format, for transmission, delivery and/or retention. The Administrative Agent and each of the Secured Parties may, at its option, create one or more copies of any Communication in the form of an imaged Electronic Record (“Electronic Copy”), which shall be deemed created in the ordinary course of such Person’s business, and destroy the original paper document. All Communications in the form of an Electronic Record, including an Electronic Copy, shall be considered an original for all purposes, and shall have the same legal effect, validity and enforceability as a paper record. Notwithstanding anything contained herein to the contrary, neither the Administrative Agent, the L/C Issuers nor the Swing Line Lender is under any obligation to accept an Electronic Signature in any form or in any format unless expressly agreed to by such Person pursuant to procedures approved by it; provided, further, without limiting the foregoing, (i) to the extent the Administrative Agent, the L/C Issuer and/or the Swing Line Lender has agreed to accept such Electronic Signature, the Administrative Agent and each of the Secured Parties shall be entitled to rely on any such Electronic Signature purportedly given by or on behalf of any Loan Party and/or any Secured Party without further verification and (ii) upon the request of the Administrative Agent or any Secured Party, any Electronic Signature shall be promptly followed by a manually executed, original counterpart. For purposes hereof, “Electronic Record” and “Electronic Signature” shall have the meanings assigned to them, respectively, by 15 USC §7006, as it may be amended from time to time.
SECTION 8. Acknowledgement and Affirmation. Each Loan Party hereby expressly acknowledges as of the Amendment No. 4 Effective Date, (i) all of its obligations under the Security Agreements and the other Collateral Documents to which each such Person is a party are reaffirmed and remain in full force and effect on a continuous basis, (ii) its grant of Liens and security interests pursuant to the Security Agreements and the other Collateral Documents are reaffirmed and remain in full force and effect after giving effect to this Amendment, (iii) the Obligations include, among other things and without limitation, the due and punctual payment of the principal of, interest on, and premium (if any) on, the Loans (including, without limitation, the Revolving Credit Facilities) and (iv) except as expressly set forth herein, the execution of this Amendment shall not operate as a waiver of any right, power or remedy of the Administrative Agent or Lenders, constitute a waiver of any provision of or be construed as, or be intended to be construed as, a novation of any of the Loan Documents or serve to effect a novation of the Obligations outstanding under the ABL Credit Agreement or instruments guaranteeing or securing the same, which instruments shall remain and continue in full force and effect. Without limiting the generality of the foregoing, the Collateral Documents and all of the Collateral described therein do and shall continue to secure the payment of all Obligations of the Loan Parties under the ABL Credit Agreement and the other Loan Documents.
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SECTION 9. Applicable Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE.
SECTION 10. Headings Descriptive. The headings of the several Sections and subsections of this Amendment are inserted for convenience only and shall not in any way affect the meaning or construction of any provision of this Amendment.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective officers thereunto duly authorized, as of the date first above written.
AHP HEALTH PARTNERS, INC., | ||||
as Legacy Borrower | ||||
By: | /s/ Xxxxxx X. Xxxxxxxx | |||
Name: | Xxxxxx X. Xxxxxxxx | |||
Title: | Senior Vice President, Treasurer | |||
AHS EAST TEXAS HEALTH SYSTEM, LLC, | ||||
as ETMC Borrower | ||||
By: | /s/ Xxxxxx X. Xxxxxxxx | |||
Name: | Xxxxxx X. Xxxxxxxx | |||
Title: | Senior Vice President, Treasurer |
[Ardent - Amendment No. 4]
AHS HILLCREST HEALTHCARE SYSTEM, LLC | ||||
AHS MANAGEMENT COMPANY, INC. | ||||
BSA HEALTH SYSTEM OF AMARILLO, LLC | ||||
LHS SERVICES, INC. | ||||
AHS OKLAHOMA HEART, LLC | ||||
AHS XXXXXXX HOSPITAL, LLC | ||||
AHS HENRYETTA HOSPITAL, LLC | ||||
BSA HEALTH SYSTEM MANAGEMENT, LLC | ||||
BSA PHYSICIANS GROUP, INC. | ||||
XXX XXXXXXXXXX PHYSICIANS, INC. | ||||
BSA AMARILLO DIAGNOSTIC CLINIC, INC. | ||||
SOUTHWEST MEDICAL ASSOCIATES, LLC | ||||
XXXXXXXX HEALTH SYSTEM, LLC | ||||
AHS CLAREMORE REGIONAL HOSPITAL, LLC | ||||
AHS OKLAHOMA PHYSICIAN GROUP, LLC | ||||
AHS HILLCREST MEDICAL CENTER, LLC | ||||
XXXXXX MEDICAL CENTER, LLC | ||||
AHS SOUTHCREST HOSPITAL, LLC | ||||
BSA HOSPITAL, LLC | ||||
AHS MANAGEMENT SERVICES OF OKLAHOMA, LLC, | ||||
AHS PRYOR HOSPITAL, LLC | ||||
NEW MEXICO HEART INSTITUTE, LLC | ||||
as Additional Legacy Borrowers | ||||
By: | /s/ Xxxxxx X. Xxxxxxxx | |||
Name: | Xxxxxx X. Xxxxxxxx | |||
Title: | Senior Vice President, Treasurer | |||
ATHENS HOSPITAL, LLC | ||||
CARTHAGE HOSPITAL, LLC | ||||
XXXXXXXXX HOSPITAL, LLC | ||||
JACKSONVILLE HOSPITAL, LLC | ||||
PITTSBURG HOSPITAL, LLC | ||||
QUITMAN HOSPITAL, LLC | ||||
TYLER REGIONAL HOSPITAL, LLC | ||||
REHABILITATION HOSPITAL, LLC | ||||
SPECIALTY HOSPITAL, LLC | ||||
EAST TEXAS HOLDINGS, LLC | ||||
ETMC PHYSICIAN GROUP, INC. | ||||
EAST TEXAS AIR ONE, LLC, as Additional ETMC Borrowers | ||||
By: | /s/ Xxxxxx X. Xxxxxxxx | |||
Name: | Xxxxxx X. Xxxxxxxx | |||
Title: | Senior Vice President, Treasurer |
[Ardent - Amendment No. 4]
ARDENT LEGACY HOLDINGS, LLC | ||||
LHP HOSPITAL GROUP, INC. | ||||
AHS NEWCO 17, LLC | ||||
AHS NEWCO 18, LLC | ||||
AHS OKLAHOMA, LLC | ||||
AHS KANSAS HEALTH SYSTEM, INC. | ||||
AHS ALBUQUERQUE HOLDINGS, LLC | ||||
AHS TULSA HOLDINGS, LLC | ||||
BSA HEALTH SYSTEM HOLDINGS, LLC | ||||
LHP OPERATIONS CO., LLC | ||||
LHP MANAGEMENT SERVICES, LLC | ||||
LHP TEXAS PHYSICIANS, LLC | ||||
LHP MONTCLAIR LLC | ||||
LHP PASCACK VALLEY, LLC | ||||
LHP POCATELLO, LLC | ||||
LHP HH/KILLEEN, LLC | ||||
LHP BAY COUNTY, LLC | ||||
LHP IT SERVICES, LLC | ||||
LHP TEXAS MD SERVICES, INC. | ||||
AHS TEXAS, LLC | ||||
AHS BSA, LLC | ||||
AHS PSO, LLC | ||||
AHS ACQUISITIONS, LLC, as Guarantors | ||||
By: | /s/ Xxxxxx X. Xxxxxxxx | |||
Name: | Xxxxxx X. Xxxxxxxx | |||
Title: | Senior Vice President, Treasurer |
[Ardent - Amendment No. 4]
BANK OF AMERICA, N.A., as Administrative Agent and a Lender | ||
By: | /s/ Xxxxxx X. Xxxxxxx | |
Name: Xxxxxx X. Xxxxxxx | ||
Title: Senior Vice President |
[Ardent - Amendment No. 4]
BANK OF AMERICA, N.A., | ||
as a Lender and L/C Issuer | ||
By: | /s/ Xxxxxx X. Xxxxxxx | |
Name: Xxxxxx X. Xxxxxxx | ||
Title: Senior Vice President |
[Ardent - Amendment No. 4]
BANK OF AMERICA, N.A., | ||
as a Swing Line Lender | ||
By: | /s/ Xxxxxx X. Xxxxxxx | |
Name: Xxxxxx X. Xxxxxxx | ||
Title: Senior Vice President |
[Amendment No. 4]
BARCLAYS BANK PLC | ||
as the Exiting Lender | ||
By: | /s/ Xxxxxx Xxxxx | |
Name: Xxxxxx Xxxxx | ||
Title: Director |
[Amendment No. 4]
BARCLAYS BANK PLC | ||
as a Lender and L/C Issuer | ||
By: | /s/ Xxxx Xxx | |
Name: Xxxx Xxx | ||
Title: Executive Director |
[Amendment No. 4]
XXXXXX XXXXXXX BANK, N.A., | ||
as a Lender and L/C Issuer | ||
By: | /s/ Xxxxxxx Xxxx | |
Name: Xxxxxxx Xxxx | ||
Title: Authorized Signatory |
[Amendment No. 4]
Siemens Financial Services, Inc. | ||
as a Lender | ||
By: | /s/ Xxxxxxx Xxxxxxx | |
Name: Xxxxxxx Xxxxxxx | ||
Title: Vice President | ||
By: | /s/ Xxxxx Xxxxxx | |
Name: Xxxxx Xxxxxx | ||
Title: Senior Loan Closer |
[Amendment No. 4]
CAPITAL ONE, NATIONAL ASSOCIATION, | ||
as a Lender | ||
By: | /s/ Xxx X. Xxxxxxxx | |
Name: Xxx X. Xxxxxxxx | ||
Title: Duly Authorized Signatory |
[Amendment No. 4]
REGIONS BANK, | ||
as a Lender | ||
By: | /s/ Xxxxx X. Xxxxxxx, XXX | |
Name: Xxxxx X. Xxxxxxx, XXX | ||
Title: Duly Authorized Signatory |
[Amendment No. 4]
Citibank, N.A., | ||
as a Lender | ||
By: | /s/ Xxxxxxxxxxx Xxxxxx | |
Name: Xxxxxxxxxxx Xxxxxx | ||
Title: Vice President & Director |
[Amendment No. 4]
ROYAL BANK OF CANADA, as a Lender | ||
By: | /s/ Xxxxx Xxxxxxx | |
Name: Xxxxx Xxxxxxx | ||
Title: Authorized Signatory |
[Amendment No. 4]
Truist Bank, | ||
as a Lender | ||
By: | /s/ Xxxxxxxxx X. Xxxxx | |
Name: Xxxxxxxxx X. Xxxxx | ||
Title: Vice President |
[Amendment No. 4]
BOKF, N.A. dba BOK Financial, | ||
as a Lender and L/C Issuer | ||
By: | /s/ Xx Xxxxxxx | |
Name: Xx Xxxxxxx | ||
Title: Managing Director |
[Amendment No. 4]
SOUTHSIDE BANK, | ||
as an ETMC Lender | ||
By: | /s/ Xxx Xxxxxxxxxx | |
Name: Xxx Xxxxxxxxxx | ||
Title: Exec. Vice President |
[Amendment No. 4]
MIZUHO BANK, LTD., | ||
as a Lender | ||
By: | /s/ Xxxxx Xxxx | |
Name: Xxxxx Xxxx | ||
Title: Managing Director |
[Amendment No. 4]
Schedule 2.01
Commitments and Pro Rata Shares
[***]
Exhibit A
Amended Credit Agreement
[See attached.]
EXHIBIT A
AMENDED AND RESTATED ABL CREDIT AGREEMENT
Dated as of July 8, 2021,
as amended by Amendment No. 1, dated as of August 24, 2021,
as amended by Amendment No. 2, dated as of June 16, 2022, and
as further amended by Amendment No. 3, dated as of April 21, 2023
as further amended by Amendment No. 4, dated as of June 26, 2024
among
AHP HEALTH PARTNERS, INC.,
AHS EAST TEXAS HEALTH SYSTEM, LLC
and
CERTAIN OF THEIR RESPECTIVE SUBSIDIARIES,
as Borrowers,
as Parent,
and
CERTAIN OF ITS SUBSIDIARIES,
as the Guarantors,
BANK OF AMERICA, N.A.,
as Administrative Agent and Collateral Agent,
and
The Other Lenders Party Hereto
Arranged by:
BANK OF AMERICA, N.A.,
BARCLAYS BANK PLCMORGAN XXXXXXX SENIOR FUNDING, INC.,
and
JPMORGAN CHASE BANK, N.A.,
as Joint Lead Arrangers and Joint Book Runners
and
CAPITAL ONE, NATIONAL ASSOCIATION
and
SIEMENS FINANCIAL SERVICES, INC.,
as Documentation Agents
TABLE OF CONTENTS
Page |
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ARTICLE I |
||||||
DEFINITIONS AND ACCOUNTING TERMS |
||||||
1.01 |
Defined Terms | 1 | ||||
1.02 |
Other Interpretive Provisions | |||||
1.03 |
Accounting Terms | 63 | ||||
1.04 |
Rounding | 64 | ||||
1.05 |
References to Agreements and Laws | 64 | ||||
1.06 |
Times of Day | |||||
1.07 |
Additional Borrowers | |||||
1.08 |
Basket Classification | 65 | ||||
1.09 |
Limited Condition Acquisitions | 66 | ||||
1.10 |
Divisions | 66 | ||||
1.11 |
Amendment and Restatement | 67 | ||||
1.12 |
Interest Rates | 67 | ||||
ARTICLE II |
||||||
THE COMMITMENTS AND BORROWINGS |
||||||
2.01 |
Loans | 68 | ||||
2.02 |
Borrowings; Conversions and Continuations of Loans | |||||
2.03 |
Letter of Credit Facility | 70 | ||||
2.04 |
Swing Line Loans; Settlement | 77 | ||||
2.05 |
Prepayments | |||||
2.06 |
Termination or Reduction of Commitments | 81 | ||||
2.07 |
Repayment of Loans | |||||
2.08 |
Interest | 81 | ||||
2.09 |
Fees | 82 | ||||
2.10 |
Computation of Interest and Fees | 82 | ||||
2.11 |
Evidence of Debt | 83 | ||||
2.12 |
Payments Generally | |||||
2.13 |
Sharing of Payments | 85 | ||||
2.14 |
Increase in Commitments | 86 | ||||
2.15 |
Defaulting Lenders | |||||
2.16 |
Protective Advances | |||||
2.17 |
Relative Rights Agreement Assignment | |||||
ARTICLE III |
||||||
TAXES, YIELD PROTECTION AND ILLEGALITY |
||||||
3.01 |
Taxes | |||||
3.02 |
Illegality | |||||
3.03 |
Inability To Determine Rates | 95 | ||||
3.04 |
Increased Cost and Reduced Return; Capital Adequacy | 97 |
- i -
Page |
||||||
3.05 |
Funding Losses |
98 | ||||
3.06 |
Matters Applicable to All Requests for Compensation |
98 | ||||
3.07 |
Survival |
|||||
ARTICLE IV |
||||||
GUARANTY |
||||||
4.01 |
The Guaranty |
99 | ||||
4.02 |
Obligations Unconditional |
99 | ||||
4.03 |
Reinstatement |
|||||
4.04 |
Certain Additional Waivers |
|||||
4.05 |
Remedies |
101 | ||||
4.06 |
Rights of Contribution |
101 | ||||
4.07 |
Guarantee of Payment; Continuing Guarantee |
102 | ||||
4.08 |
Keepwell |
102 | ||||
4.09 |
Limited Guarantee by Tenant Subsidiaries |
|||||
ARTICLE V |
||||||
CONDITIONS PRECEDENT |
||||||
5.01 |
Conditions to Effective Date |
103 | ||||
5.02 |
Conditions to All Credit Extensions |
105 | ||||
5.03 |
Conditions to Credit Extensions to Additional Borrowers |
|||||
ARTICLE VI |
||||||
REPRESENTATIONS AND WARRANTIES |
||||||
6.01 |
Existence, Qualification and Power |
|||||
6.02 |
Authorization; No Contravention |
107 | ||||
6.03 |
Governmental Authorization; Other Consents |
107 | ||||
6.04 |
Binding Effect |
107 | ||||
6.05 |
Financial Statements; No Material Adverse Effect |
|||||
6.06 |
Litigation |
108 | ||||
6.07 |
Contractual Obligations |
108 | ||||
6.08 |
Ownership of Property; Liens |
108 | ||||
6.09 |
Environmental Compliance |
|||||
6.10 |
Insurance |
109 | ||||
6.11 |
Taxes |
|||||
6.12 |
ERISA Compliance |
|||||
6.13 |
Subsidiaries |
110 | ||||
6.14 |
Margin Regulations; Investment Company Act |
|||||
6.15 |
Disclosure |
|||||
6.16 |
Compliance with Laws |
111 | ||||
6.17 |
Intellectual Property; Licenses, Etc. |
112 | ||||
6.18 |
Solvency |
|||||
6.19 |
Perfection of Security Interests in the Collateral |
|||||
6.20 |
[Reserved] |
113 | ||||
6.21 |
Brokers’ Fees |
113 |
- ii -
Page |
||||||
6.22 |
Labor Matters |
113 | ||||
6.23 |
Fraud and Abuse |
|||||
6.24 |
Licensing and Accreditation |
|||||
6.25 |
Anti-Terrorism Laws; Anti-Corruption |
|||||
6.26 |
Affected Financial Institutions |
|||||
6.27 |
HMO Entities |
|||||
ARTICLE VII |
||||||
AFFIRMATIVE COVENANTS |
||||||
7.01 |
Financial Statements |
115 | ||||
7.02 |
Certificates; Other Information |
|||||
7.03 |
Notices |
120 | ||||
7.04 |
Payment of Taxes |
121 | ||||
7.05 |
Preservation of Existence, Etc. |
121 | ||||
7.06 |
Maintenance of Properties |
|||||
7.07 |
Maintenance of Insurance |
122 | ||||
7.08 |
Compliance with Laws |
|||||
7.09 |
Books and Records |
123 | ||||
7.10 |
Inspection Rights |
123 | ||||
7.11 |
Use of Proceeds |
124 | ||||
7.12 |
Additional Subsidiaries; Additional Guarantors |
124 | ||||
7.13 |
ERISA Compliance |
125 | ||||
7.14 |
Pledged Assets |
125 | ||||
7.15 |
Control Agreements |
126 | ||||
7.16 |
Annual Appraisals |
128 | ||||
7.17 |
Change in Nature of Business |
128 | ||||
7.18 |
Post-Closing Matters |
|||||
7.19 |
Compliance with Terms of Master Lease |
|||||
ARTICLE VIII |
||||||
NEGATIVE COVENANTS |
||||||
8.01 |
Liens |
129 | ||||
8.02 |
Investments |
|||||
8.03 |
Indebtedness |
|||||
8.04 |
Fundamental Changes |
|||||
8.05 |
Dispositions |
|||||
8.06 |
Restricted Payments |
|||||
8.07 |
[Reserved] |
|||||
8.08 |
Transactions with Affiliates |
|||||
8.09 |
Burdensome Agreements |
|||||
8.10 |
[Reserved] |
|||||
8.11 |
Fixed Charge Coverage Ratio |
|||||
8.12 |
[Reserved] |
|||||
8.13 |
Prepayment of Subordinated Indebtedness, Etc. |
|||||
8.14 |
Organization Documents; Fiscal Year; Amendments to Master Lease |
147 | ||||
8.15 |
Limitations on Parent |
147 | ||||
8.16 |
Limitations on the ETMC JV |
- iii -
Page |
||||||
8.17 |
Required Payment Intercompany Note |
|||||
8.18 |
HMO Entities |
|||||
ARTICLE IX |
||||||
EVENTS OF DEFAULT AND REMEDIES |
||||||
9.01 |
Events of Default |
|||||
9.02 |
Remedies upon Event of Default |
153 | ||||
9.03 |
Application of Funds |
|||||
9.04 |
Borrowers’ Right to Cure |
|||||
ARTICLE X |
||||||
THE ADMINISTRATIVE AGENT AND COLLATERAL AGENT |
||||||
10.01 |
Appointment and Authorization of Administrative Agent and Collateral Agent |
|||||
10.02 |
Delegation of Duties |
|||||
10.03 |
Liability of Administrative Agent |
|||||
10.04 |
Reliance by Administrative Agent |
159 | ||||
10.05 |
Notice of Default |
|||||
10.06 |
Credit Decision; Disclosure of Information by Administrative Agent |
160 | ||||
10.07 |
Indemnification of Administrative Agent |
|||||
10.08 |
Administrative Agent in Its Individual Capacity |
161 | ||||
10.09 |
Successor Administrative Agent |
|||||
10.10 |
Administrative Agent May File Proofs of Claim; Credit Bidding |
162 | ||||
10.11 |
Collateral and Guaranty Matters |
163 | ||||
10.12 |
Other Agents; Joint Book Runners and Managers |
|||||
10.13 |
No Advisory or Fiduciary Responsibility |
|||||
10.14 |
Exculpatory Provisions |
|||||
10.15 |
Rights as Lender |
|||||
10.16 |
Withholding Taxes |
|||||
10.17 |
Intercreditor Agreement; Relative Rights Agreement |
167 | ||||
10.18 |
Certain ERISA Matters |
168 | ||||
10.19 |
Recovery of Erroneous Payments |
|||||
ARTICLE XI |
||||||
MISCELLANEOUS |
||||||
11.01 |
Amendments, Etc. |
|||||
11.02 |
Notices and Other Communications; Facsimile Copies |
|||||
11.03 |
No Waiver; Cumulative Remedies |
|||||
11.04 |
Attorney Costs, Expenses and Taxes |
|||||
11.05 |
Indemnification by the Borrowers |
174 | ||||
11.06 |
Payments Set Aside |
175 | ||||
11.07 |
Successors and Assigns |
175 | ||||
11.08 |
Confidentiality |
|||||
11.09 |
Setoff |
|||||
11.10 |
Interest Rate Limitation |
|||||
11.11 |
Counterparts |
180 |
- iv -
Page |
||||||
11.12 |
Integration |
|||||
11.13 |
Survival of Representations and Warranties |
|||||
11.14 |
Severability |
181 | ||||
11.15 |
[Reserved] |
|||||
11.16 |
Replacement of Lenders |
|||||
11.17 |
Governing Law |
182 | ||||
11.18 |
Waiver of Right to Trial by Jury |
|||||
11.19 |
Joint and Several Liability of the Borrowers |
|||||
11.20 |
Publicity |
|||||
11.21 |
USA PATRIOT Act Notice |
|||||
11.22 |
Acknowledgement and Consent to Bail-In of Affected Financial Institutions |
|||||
11.23 |
Acknowledgement Regarding Any Supported QFCs |
SCHEDULES
1.01(a) |
Borrowers | |
1.01(b) |
Existing Letters of Credit | |
2.01 |
Commitments and Pro Rata Shares | |
5.01 |
Specified SPVs | |
6.10 |
Insurance | |
6.13 |
Subsidiaries | |
6.17 |
IP Rights | |
6.22 |
Labor Matters | |
6.24(a) |
Accreditations | |
7.15 |
Deposit Accounts | |
7.18 |
Post Closing Items | |
8.01 |
Liens Existing on the Effective Date | |
8.02 |
Investments Existing on the Effective Date | |
8.03 |
Indebtedness Existing on the Effective Date | |
11.02 |
Certain Addresses for Notices; Taxpayer ID Number |
EXHIBITS
A |
Form of Borrowing Base Certificate | |
B-1 |
Form of Non-Tenant Subsidiary Pledge Agreement | |
B-2 |
Form of Tenant Subsidiary Pledge Agreement | |
C-1 |
Form of Non-Tenant Subsidiary Security Agreement | |
C-2 |
Form of Tenant Subsidiary Security Agreement | |
D |
Form of Loan Notice | |
E |
Form of Swing Line Loan Notice | |
F |
Form of Additional ETMC Borrower Agreement | |
G |
Form of Additional Legacy Borrower Agreement | |
H |
Form of Revolving Credit Note | |
I |
Form of Compliance Certificate | |
J-1 |
Form of Non-Tenant Joinder Agreement | |
J-2 |
Form of Tenant Joinder Agreement | |
K |
Form of Intercompany Note | |
L |
Form of Prepayment Notice | |
M |
Form of Assignment and Assumption |
- v -
N | [Reserved] | |
O | Form of United States Tax Compliance Certificate | |
P | Form of Intercreditor Agreement | |
Q | Form of Solvency Certificate | |
R | Form of Relative Rights Agreement |
- vi -
AMENDED AND RESTATED ABL CREDIT AGREEMENT
This AMENDED AND RESTATED ABL CREDIT AGREEMENT is entered into as of June 28, 2018, as amended by Amendment No. 1, dated as of
August 24, 2021, as amended by Amendment No. 2, dated as of June 16, 2022, and as furtheras amended by Amendment No. 3, dated as of April 21, 2023
and as further amended by Amendment No. 4, dated as of June 26, 2024, among AHP HEALTH PARTNERS, INC., a Delaware
corporation (“Company”), AHS EAST TEXAS HEALTH SYSTEM, LLC, a Texas limited liability company (“AHS East Texas”), ARDENT HEALTH PARTNERS, LLC, a Delaware limited liability company (“Parent”), as
Parent, the Subsidiaries of the Company and AHS East Texas from time to time party hereto as Borrowers, the Guarantors (defined herein), the Lenders (defined herein), BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender, and Collateral
Agent, and the L/C Issuers (as defined herein).
The Borrowers, the Guarantors, the Lenders from time to time party thereto, the L/C Issuers party thereto and Barclays Bank PLC, as administrative agent and collateral agent entered into that certain ABL Credit Agreement, dated as of June 28, 2018 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the date hereof, the “Existing Credit Agreement”). This Agreement amends and restates the Existing Credit Agreement.
The Legacy Borrowers (as defined below) have, jointly and severally, requested that the Legacy Lenders (as defined below) provide $175,000,000275,000,000
in revolving credit commitments (the “Legacy Credit Facility”) for the purposes set forth herein, and the Legacy Lenders are willing to do so on the terms and conditions set forth herein.
In addition, the ETMC Borrowers (as defined below) have, jointly and severally, requested that the ETMC Lenders (as defined below) provide $50,000,000 in revolving credit commitments (the “ETMC Credit Facility”) for the purposes set
forth herein, and the ETMC Lenders are willing to do so on the terms and conditions set forth herein. The credit facilities may include one or more Swing Line Loans and one or more Letters of Credit from time to time.
In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01 | Defined Terms |
As used in this Agreement, the following terms shall have the meanings set forth below:
“2026 Notes” means $475.0 million in aggregate principal amount of the Company’s 9.75% senior notes due 2026 pursuant to the 2026 Notes Indenture on the Original Closing Date.
“2026 Notes Indenture” means the indenture among the Company, as issuer, Parent, the guarantors listed therein and the trustee referred to therein pursuant to which the 2026 Notes were issued, as such indenture may be amended or supplemented from time to time.
“2029 Notes” means $300.0 million in aggregate principal amount of the Company’s 5.750% senior notes due 2029 pursuant to the 2029 Notes Indenture on the Effective Date.
“2029 Notes Indenture” means the indenture among the Company, as issuer, Parent, the guarantors listed therein and the trustee referred to therein pursuant to which the 2029 Notes are issued, as such indenture may be amended or supplemented from time to time.
“ABL Priority Collateral” has the meaning specified in the Intercreditor Agreement.
“Acceptable Intercreditor Agreement” means an intercreditor agreement in form reasonably acceptable to the Administrative Agent, the Collateral Agent and the Borrowers, which intercreditor agreement may, if determined by the Collateral Agent, be posted to the Lenders not less than ten Business Days before execution thereof and, if the Required Lenders shall not have objected to such intercreditor agreement within ten Business Days after posting, then the Required Lenders shall be deemed to have agreed that the Collateral Agent’s entry into such intercreditor agreement is reasonable and to have consented to such intercreditor agreement and to the Collateral Agent’s execution thereof.
“Account” means any right to payment for goods sold or leased or services rendered, including any credit card receivable, whether or not evidenced by an instrument or chattel paper, and whether or not earned by performance, including, without limitation, the right to payment of management fees.
“Account Debtor” means any Person obligated on any Account of a Loan Party, including without limitation, any Insurer and any Medicaid/Medicare Account Debtor.
“Acquired Entity or Business” means the acquisition of any Person, Property, Business or physical asset by any Borrower or any Restricted Subsidiary.
“Acquisition” by any Person, means the acquisition by such Person, in a single transaction or in a series of related transactions, of all or any substantial portion of the Property of another Person or any Voting Stock of another Person, in each case whether or not involving a merger or consolidation with such other Person and whether for cash, property, services, assumption of Indebtedness, securities or otherwise.
“Acquisition Conditions” means, as to any Permitted Acquisition or other action contemplated in
Section 8.02(i) of this Agreement, (A) Availability is equal to or greater than the greater of (x) 17.5% of the Line Cap and (y)
$30.042.5 million (i) for each of the 30 days immediately prior to making such acquisition on a Pro Forma Basis giving effect to such acquisition as if it were made on the first day of such 30-day period, and (ii) immediately after giving effect thereto and (B) if Availability is less than the greater of (x) 30.0% of the Line Cap and (y) $52.575.0 million (i) for each of the 30 days immediately prior to making such acquisition as if it were made on the first day of such 30-day period, and
(ii) immediately after giving effect thereto, the Fixed Charge Coverage Ratio, calculated on a trailing four-fiscal quarter basis for the most recently ended fiscal quarter for which the relevant financial statements have been delivered to the
Administrative Agent, is equal to or greater than 1.00 to 1.00 on a Pro Forma Basis giving effect to the acquisition as if such acquisition has been made on the first day of such measurement period.
“Act” has the meaning specified in Section 11.21.
“Additional Borrower” means an Additional ETMC Borrower or an Additional Legacy Borrower, as applicable.
“Additional Borrower Agreement” means an Additional Legacy Borrower Agreement or an Additional ETMC Borrower Agreement, as applicable.
- 2 -
“Additional ETMC Borrower” means any wholly-owned Domestic Subsidiary of AHS East Texas who shall from time to time become a party to this Agreement as a “Borrower” hereunder pursuant to Section 1.07 upon the execution and delivery of an Additional ETMC Borrower Agreement.
“Additional ETMC Borrower Agreement” means an Additional ETMC Borrower Agreement substantially in the form of Exhibit F hereto or another form which is reasonably satisfactory to the Administrative Agent.
“Additional Legacy Borrower” means any wholly-owned Domestic Subsidiary of the Company (other than AHS East Texas or any Subsidiary of AHS East Texas) who shall from time to time become a party to this Agreement as a “Borrower” hereunder pursuant to Section 1.07 upon the execution and delivery of an Additional Legacy Borrower Agreement.
“Additional Legacy Borrower Agreement” means an Additional Legacy Borrower Agreement substantially in the form of Exhibit G hereto or another form which is reasonably satisfactory to the Administrative Agent.
“Adjusted Earnings for the Ardent Facilities” shall have the meaning ascribed to such term in the ETMC JV Agreement as of February 26, 2018.
“Adjustment Date” has the meaning specified in the definition of “Applicable Rate.”
“Administrative Agent” means Bank of America in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent.
“Administrative Agent’s Office” means the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 11.02 or such other address or account of which the Administrative Agent may from time to time notify the Borrowers and the Lenders.
“Administrative Borrower” means the Company or any other Borrower designated by the Borrowers to the Administrative Agent in writing.
“Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the Administrative Agent.
“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affiliate” means, with respect to any Person, another Person that directly or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified. “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.
“Agency Transfer” has the meaning set forth in the Amendment and Restatement Agreement.
“Agent Parties” has the meaning set forth in Section 7.02.
“Agent-Related Persons” means the Administrative Agent, the Collateral Agent and the Joint Book Runners, together with their respective Affiliates and the officers, directors, employees, agents and attorneys-in-fact of such Persons and Affiliates.
- 3 -
“Agreement” means this ABL Credit Agreement, as amended, modified, supplemented and extended from time to time.
“AHS East Texas” has the meaning set forth in the preamble hereof.
“Amendment and Restatement Agreement” means that certain Amendment and Restatement Agreement, dated as of July 8, 2021, among the Borrowers, the Guarantors, the Lenders party thereto, the Administrative Agent, the Collateral Agent, the Swing Line Lender, the Resigning Administrative Agent, the Resigning Collateral Agent, the Resigning Swing Line Lender and the L/C Issuers.
“Amendment and Restatement Transactions” means (i) the entry into the Amendment and Restatement Agreement and the issuance by the Company of the 2029 Notes, (ii) the redemption, repayment, retirement and discharge in full of the 2026 Notes, (iii) the consummation of the Agency Replacement, the Other Appointment and Resignation Documentation and (iv) the payment of related fees and expenses.
“Amendment No. 1” means that certain Amendment No. 1 to Amended and Restated ABL Credit Agreement, dated as of August 24, 2021, among the Borrowers, the Guarantors, the Lenders party thereto and the Administrative Agent.
“Amendment No. 1 Effective Date” means August 24, 2021.
“Amendment No. 2” means that certain Amendment No. 2 to Amended and Restated ABL Credit Agreement, dated as of June 16, 2022, among the Borrowers and the Administrative Agent.
“Amendment No. 3” means that certain Amendment No. 3 to Amended and Restated ABL Credit Agreement, dated as of April 21, 2023, among the Borrowers, the Lenders and L/C Issuers party thereto and the Administrative Agent.
“Amendment No. 3 Effective Date” means April 21, 2023.
“Amendment No. 4” means that certain Amendment No. 4 to Amended and Restated ABL Credit Agreement, dated as of June 26, 2024, among the Borrowers, the Lenders and L/C Issuers party thereto and the Administrative Agent.
“Amendment No. 4 Effective Date” means June 26, 2024.
“Anti-Terrorism Laws” means any requirement of Law related to terrorism financing or money laundering including the Act, The Currency and Foreign Transactions Reporting Act (also known as the “Bank Secrecy Act,” 31 U.S.C. §§ 5311-5330 and 12 U.S.C. §§ 1818(s), 1820(b) and 1951-1959), the Trading With the Enemy Act (50 U.S.C. § 1 et seq., as amended) and Executive Order 13224 (effective September 24, 2001), the International Emergency Economic Powers Act and Executive Orders and regulations issued thereunder.
“Applicable Assets” has the meaning set forth in the definition of “Permitted IRB Transaction”.
“Applicable Cash” has the meaning set forth in the definition of “Permitted IRB Transaction”.
“Applicable Guaranteed Obligations” means (i) as to each ETMC Borrower, all Obligations of each Legacy Borrower, (ii) as to each Legacy Borrower that is not a Tenant Subsidiary, all Obligations of each ETMC Borrower, and (iii) as to each Guarantor that is not a Borrower, the Obligations of each Borrower and each other Guarantor (other than, solely with respect to any Tenant Subsidiaries, Obligations of an ETMC Borrower or ETMC Loan Party).
- 4 -
“Applicable Pro Rata Share” means (x) in reference to the Legacy Credit Facility, the Legacy Commitments, the Legacy Lenders, Letters of Credit or Swing Line Loans or Protective Advances made to the Legacy Borrowers, the Legacy Pro Rata Share and (y) in reference to the ETMC Credit Facility, the ETMC Commitments, the ETMC Lenders or Swing Line Loans or Protective Advances made to the ETMC Borrowers, the ETMC Pro Rata Share.
“Applicable Rate” means (a) with respect to the Legacy Credit Facility, 1.50% per annum, in the case of Term SOFR Loans, and 0.50% per annum, in the case of Base Rate Loans and (b) with respect to the ETMC Credit Facility, 2.50% per annum, in the case of Term SOFR Loans, and 1.50% per annum, in the case of Base Rate Loans; provided that on and after the Amendment No. 3 Effective Date, the Applicable Rate will be the rate per annum as determined pursuant to the pricing grid below based upon the average daily Availability for the most recently ended fiscal quarter immediately preceding such Adjustment Date:
Legacy Credit Facility | ETMC Credit Facility | |||||||
Average Daily Availability |
Term SOFR Loans and Letter of Credit Fees |
Base Rate Loans |
Term SOFR Loans |
Base Rate Loans | ||||
≥ 66% |
1.50% | 0.50% | 2.50% | 1.50% | ||||
< 66% but ≥ 33% |
1.75% | 0.75% | 2.75% | 1.75% | ||||
< 33% |
2.00% | 1.00% | 3.00% | 2.00% |
Any change in the Applicable Rate resulting from changes in average daily Availability shall become effective on the first day of the fiscal quarter (the “Adjustment Date”) and shall remain in effect until the next change to be effected pursuant to this paragraph. If any Borrowing Base Certificate is not delivered on the due date specified therefor in Section 7.02(g) then commencing on the day after such due date, until the date on which such Borrowing Base Certificate is delivered, the highest rate set forth in each column of the above pricing grid shall apply.
In the event that at any time after the end of a fiscal quarter it is discovered that the average daily Availability for such fiscal quarter used for the determination of the Applicable Rate was less than the actual amount of the average daily Availability for such fiscal quarter, the Applicable Rate for such prior fiscal quarter shall be adjusted to the applicable percentage based on such actual average daily Availability for such fiscal quarter and any additional interest for the applicable period payable as a result of such recalculation shall be paid to Lenders on the next date on which interest is due and payable to the Lenders under Section 2.08.
“Applicable Securities” has the meaning set forth in the definition of “Permitted IRB Transaction”.
“Approved Bank” has the meaning set forth in the definition of “Cash Equivalents”.
“Approved Fund” has the meaning set forth in Section 11.07(g).
“Approved Hospital Swap” means any exchange of one or more healthcare facilities and related Property owned by any Loan Party for one or more healthcare facilities and related Property owned by one or more Persons other than a Loan Party; provided that (a) the Administrative Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer, in detail reasonably
- 5 -
satisfactory to the Administrative Agent, demonstrating that, upon giving effect to any such exchange on a Pro Forma Basis, Consolidated EBITDA will be not less than 90% of Consolidated EBITDA prior to such exchange and (b) the aggregate book value of all assets disposed of by the Loan Parties pursuant to these exchanges subsequent to the Effective Date (determined as of the date of any such exchange, net of any liabilities of the Loan Parties assumed by the Person to which the relevant assets were transferred) shall not exceed 10% of the total assets of the Borrowers and their Subsidiaries on a consolidated basis as of the Effective Date. Furthermore, if any transaction involves both an exchange and payment of consideration, such transaction shall be deemed to be an Approved Hospital Swap only to the extent that it involves such an exchange.
“Ardent” means Ardent Medical Services, Inc., a Delaware corporation.
“Ardent Acquisition Agreement” means that certain purchase and sale agreement, dated March 27, 2015, among Ardent, AHS Medical Holdings LLC, a Delaware limited liability company, and Ventas, as amended, restated, supplemented or otherwise modified from time to time.
“Assignment and Assumption” means an Assignment and Assumption substantially in the form of Exhibit M, or such other form or mechanism that shall be reasonably satisfactory to the Administrative Agent.
“Attorney Costs” means and includes all reasonable fees and documented out-of-pocket expenses and disbursements of one counsel for the Administrative Agent and the Joint Book Runners, and to the extent reasonably determined by the Administrative Agent to be necessary, one firm of local counsel in each relevant material jurisdiction (which may include a single special counsel acting in multiple jurisdictions) and, in the case of an actual conflict of interest where an Indemnitee affected by such conflict notifies the Borrowers of the existence of such conflict and thereafter retains its own counsel, one additional conflicts counsel in each applicable jurisdiction for all of the affected Indemnitees similarly situated.
“Attributable Indebtedness” means, on any date, (a) in respect of any Capital Lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP, (b) in respect of any Synthetic Lease, the capitalized amount of the remaining lease payments under the relevant lease that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease were accounted for as a Capital Lease and (c) in respect of any Securitization Transaction of any Person, the outstanding principal amount of such financing, after taking into account reserve accounts and making appropriate adjustments, determined by the Administrative Agent in its reasonable judgment.
“Audited Financial Statements” means the consolidated audited financial statements of Parent and its Subsidiaries for the fiscal years ended December 31, 2018, December 31, 2019 and December 31, 2020.
“Auto-Renewal Letter of Credit” has the meaning set forth in Section 2.03(b)(iii).
“Availability” means as of any date of determination (i) the Line Cap as of such date minus (ii) all outstanding Credit Extensions and Unreimbursed Amounts as of such date.
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
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“Bail-In Legislation” means, (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, rule, regulation or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
“Bank of America” means Bank of America, N.A. and its successors.
“Bank Product” means any of the following products, services or facilities extended to any Loan Party or Subsidiary by a Lender or any of its Affiliates (or any Person that was a Lender or an Affiliate thereof at the time such products, services or facilities were extended): (a) Cash Management Services; (b) products under Hedging Agreements; (c) commercial credit card and merchant card services; and (d) other banking products or services as may be requested by any Loan Party or Subsidiary, other than Letters of Credit; provided, however, that for any of the foregoing to be included as an “Obligation” for purposes of a distribution under Section 9.03, the Borrowers and applicable Secured Party (other than Administrative Agent or an Affiliate of Administrative Agent) must have previously provided written notice to the Administrative Agent of (i) the existence of such Bank Product, (ii) the maximum dollar amount of obligations arising thereunder to be included as an ETMC Bank Product Reserve or a Legacy Bank Product Reserve (“Bank Product Amount”), (iii) the methodology to be used by such parties in determining the Bank Product Debt owing from time to time and (iv) the name of the Loan Party or Subsidiary to which such Bank Product has been extended. The Bank Product Amount may be changed from time to time based upon written notice to the Administrative Agent by the Secured Party. No Bank Product Amount may be established or increased at any time that a Default or Event of Default exists, or if a reserve in such amount would cause the aggregate Loans to exceed the Borrowing Base. By accepting the Liens of the Collateral Documents in favor of any provider of Bank Products, such provider hereby agrees that provisions granting any security to it pursuant to the contract governing such Bank Product consisting of credit card or merchant card services shall be of no effect.
“Bank Product Amount” has the meaning set forth in the definition of “Bank Product”.
“Bank Product Debt” means Indebtedness and other obligations of a Loan Party relating to Bank Products, but excluding in any case, for the avoidance of doubt, Funded Indebtedness.
“Bankruptcy Code” means Title 11 of the United States Code or any successor provision.
“Barclays” means Barclays Bank PLC and its successors.
“Base Rate” means, for any day, a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate plus 1/2 of 1%, (b) the rate of interest last quoted by The Wall Street Journal as the “Prime Rate” in the U.S. or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the FRB in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as determined by the Administrative Agent) or any similar release by the FRB (as determined by the Administrative Agent), and (c) Term SOFR for such day plus 1.00%.
“Base Rate Loan” means a Loan that bears interest based on the Base Rate.
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“Beneficial Ownership Certification” means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
“Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan.”
“BHC Act Affiliate” has the meaning set forth in Section 11.23.
“Borrower Materials” has the meaning set forth in Section 7.02.
“Borrowers” means the ETMC Borrowers and the Legacy Borrowers.
“Borrowing” means an ETMC Revolving Credit Borrowing, a Legacy Revolving Credit Borrowing or a Swing Line Borrowing, as the context may require.
“Borrowing Base” means the Legacy Borrowing Base or the ETMC Borrowing Base, as applicable.
“Borrowing Base Certificate” means a certificate, substantially in the form of Exhibit A or otherwise in form and substance reasonably satisfactory to the Administrative Agent, by which the Administrative Borrower certifies calculation of the ETMC Borrowing Base and the Legacy Borrowing Base.
“Borrowing Base Reserve” means a Legacy Borrowing Base Reserve or an ETMC Borrowing Base Reserve, as applicable.
“Breach Notification Standards” has the meaning specified in Section 7.08.
“BSA Entities” means (i) BSA Health System of Amarillo, LLC, (ii) BSA Health System Holdings LLC, (iii) BSA Hospital, LLC, (iv) BSA Health System Management, LLC, (v) BSA Physicians Group, Inc., (vi) BSA Harrington Physicians, Inc., (vii) BSA Amarillo Diagnostic Clinic, Inc., (viii) BSA Physician Holding Company, LLC, (ix) each other Person (if any) in respect of which any BSA Equity Purchaser directly acquires equity interests pursuant to the BSAHS Acquisition Agreement and (x) each direct and indirect Subsidiary of the entities set forth in the foregoing clauses (i) through (ix).
“BSA Equity Purchaser” means AHS Amarillo Health System, LLC and/or any other (if any) direct or indirect wholly-owned Subsidiaries of the Borrowers that acquires any equity interests in any BSA Entity pursuant to the BSAHS Acquisition Agreement.
“BSAHS Acquisition Agreement” means the Contribution and Sale Agreement, dated as of October 22, 2012, among the BSA Equity Purchasers party thereto, the BSA Entities party thereto and Baptist St. Anthony’s Health System, a Texas not-for-profit corporation, as amended, restated, supplemented or otherwise modified from time to time.
“Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, New York.
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“Businesses” means, at any time, a collective reference to the businesses operated by the Borrowers and their Subsidiaries at such time.
“Capital Assets” means, with respect to any person, all equipment, fixed assets and Real Property or improvements of such person, or replacements or substitutions therefor or additions thereto, that, in accordance with GAAP, have been or should be reflected as additions to property, plant or equipment on the balance sheet of such person.
“Capital Expenditures” means, for any period, without duplication, all expenditures made directly or indirectly by the Borrowers and their Restricted Subsidiaries during such period for Capital Assets (whether paid in cash or other consideration, financed by the incurrence of Indebtedness or accrued as a liability), but excluding any portion of such increase attributable solely to acquisitions of property, plant and equipment in Permitted Acquisitions.
“Capital Lease” means, as applied to any Person, any lease of any Property by that Person as lessee which, in accordance with GAAP, is required to be accounted for as a capital lease on the balance sheet of that Person, excluding any leases which are required under GAAP to be accounted for as a capital lease on the balance sheet of that Person solely during any construction periods.
“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.
“Captive Insurance Subsidiary” means any Subsidiary established by the Borrowers or any of their Subsidiaries for the sole purpose of providing insurance coverage to the Borrowers and their Subsidiaries.
“Cash Collateral” has the meaning set forth in Section 2.03(f).
“Cash Collateralize” has the meaning set forth in Section 2.03(f).
“Cash Dominion Period” means a period commencing on the date of a Cash
Dominion Trigger Event and continuing until the date that (x) no Event of Default exists and (y) Availability has not been less than the greater of (i) 12.5% of the Line Cap and (ii) $20.029.0 million, at any time during the thirty (30) consecutive calendar days prior to such date.
“Cash Dominion Trigger Event” means any date when (x) an Event of Default has occurred or (y) Availability is less
than the greater of (i) 12.5% of the Line Cap as of such date and (ii)
$20.029.0 million for three (3) consecutive calendar days.
“Cash Equivalents” means, as at any date, (a) securities issued or directly and fully guaranteed or insured by the United States or any agency or instrumentality thereof (provided that the full faith and credit of the United States is pledged in support thereof) having maturities of not more than twelve months from the date of acquisition, (b) Dollar denominated time deposits and certificates of deposit of (i) any Lender, (ii) any domestic commercial bank of recognized standing having capital and surplus in excess of $500,000,000 or (iii) any bank whose short-term commercial paper rating from S&P is at least A-2 or the equivalent thereof or from Moody’s is at least P-2 or the equivalent thereof (any such bank being an “Approved Bank”), in each case with maturities of not more than 365 days from the date of
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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-2 (or the equivalent thereof) or better by S&P or P-2 (or the equivalent thereof) or better by Moody’s and maturing within twelve months of the date of acquisition, (d) repurchase agreements entered into by any Person with a bank or trust company (including any of the Lenders) or recognized securities dealer having capital and surplus in excess of $500,000,000 for direct obligations issued by or fully guaranteed by the United States in which such Person shall have a perfected first priority security interest (subject to no other Liens) and having, on the date of purchase thereof, a fair market value of at least 100% of the amount of the repurchase obligations, (e) Investments, classified in accordance with GAAP as current assets, in money market investment programs registered under the Investment Company Act of 1940, as amended, which are administered by reputable financial institutions having capital of at least $500,000,000 and the portfolios of which are limited to Investments of the character described in the foregoing subdivisions (a) through (d) and (f) with respect to (i) the Borrowers and their Restricted Subsidiaries, marketable debt securities regularly traded on a national securities exchange or in the over-the-counter market.
“Cash Management Services” means any services provided from time to time by Barclays, Bank of America or any of their respective Affiliates to any Loan Party or Subsidiary in connection with the Cash Management System, operating, collections, payroll, trust, or other depository or disbursement accounts, including automated clearinghouse, e-payable, electronic funds transfer, wire transfer, controlled disbursement, overdraft, depository, information reporting, lockbox and stop payment services.
“Cash Management System” means the system of managing cash of the Loan Parties described in Section 7.15.
“CFC” means a “controlled foreign corporation” within the meaning of Section 957 of the Internal Revenue Code.
“CHAMPUS” means the United States Department of Defense Civilian Health and Medical Program of the Uniformed Services or any successor thereto including, without limitation, TRICARE.
“Change in Law” means the occurrence, after the date of this 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, implementation 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 Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith or in the implementation thereof 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 or foreign 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, issued or implemented.
“Change of Control” means an event or series of events by which:
(a) prior to the consummation of an initial Public Equity Offering:
(i) the Sponsor Group shall fail to own beneficially, directly or indirectly, at least 50.1% of the outstanding Voting Stock of the Parent, after giving effect to the
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conversion and exercise of all outstanding warrants, options and other securities of the Parent, convertible into or exercisable for Voting Stock of the Parent (whether or not such securities are then currently convertible or exercisable); or
(ii) the Parent shall fail to own directly 85% of the outstanding Capital Stock of the Company determined on a fully diluted basis after giving effect to the conversion and exercise of all outstanding warrants, options and other securities of the Company, convertible into or exercisable for Capital Stock of the Company (whether or not such securities are then currently convertible or exercisable); or
(iii) any of Samuel Zell, trusts established for the benefit of the family of Samuel Zell, and/or any entity Controlled by any of the foregoing ceases to Control the Sponsor; or
(b) upon and after the consummation of an initial Public Equity Offering of the common stock of the Parent or any parent thereof:
(i) the Parent becomes aware (by way of a report or another filing pursuant to Section 13(d) of the Exchange Act, proxy, vote, written notice or otherwise) of the acquisition by any “person” or “group” of related persons (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) other than the Sponsor Group of the beneficial ownership (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that such person or group shall be deemed to have “beneficial ownership” of all shares that any such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of more than 50% of the total voting power of the Voting Stock of the Parent (or its successor by merger, consolidation or purchase of all or substantially all of their assets); or
(ii) unless the Permitted Merger has occurred concurrently with or in connection therewith, the Parent shall fail to own directly 85% of the outstanding Capital Stock of the Company, determined on a fully diluted basis after giving effect to the conversion and exercise of all outstanding warrants, options and other securities of the Company, convertible into or exercisable for Capital Stock of the Company (whether or not such securities are then currently convertible or exercisable); or
(c) upon and after the consummation of an initial Public Equity Offering of the common stock of the Company, the Company becomes aware (by way of a report or another filing pursuant to Section 13(d) of the Exchange Act, proxy, vote, written notice or otherwise) of the acquisition by any “person” or “group” of related persons (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) other than the Sponsor Group of the beneficial ownership (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that such person or group shall be deemed to have “beneficial ownership” of all shares that any such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of more than 50% of the total voting power of the Voting Stock of the Company (or its successor by merger, consolidation or purchase of all or substantially all of their assets); or
(d) at any time, the Company shall fail to own, directly or indirectly, 100% of the outstanding Capital Stock of AHS East Texas, on a fully diluted basis after giving effect to the conversion and exercise of all outstanding warrants, options and other securities of the AHS East Texas, convertible into or exercisable for Capital Stock of AHS East Texas (whether or not such
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securities are then currently convertible or exercisable) unless concurrently with or prior to such time, all Obligations of the ETMC Borrowers have been repaid in full and all ETMC Commitments have been terminated in full; or
(e) the occurrence of a “Change of Control” (or any comparable term) under, and as defined in, the Term Loan Credit Agreement, the 2029 Notes Indenture (and/or any other Indebtedness incurred pursuant to Section 8.03(t)) or any Subordinated Indebtedness Document in respect of Indebtedness in excess of the Threshold Amount.
“CME” means CME Group Benchmark Administration Limited.
“CMS” means the Centers for Medicare and Medicaid Services and any successor thereof.
“Collateral” means a collective reference to all real and personal Property with respect to which Liens in favor of the Collateral Agent are purported to be granted pursuant to and in accordance with the terms of the Collateral Documents (other than Excluded Property). For the avoidance of doubt, the Pledged ETMC Distribution Account and the equity interests owned by the Loan Parties in the ETMC JV shall be a part of the Collateral.
“Collateral Agent” means Bank of America in its capacity as collateral agent under any of the Loan Documents, or any successor collateral agent.
“Collateral Assignment Documents” means the collateral assignments of notes and liens executed by the Loan Parties executed in favor of the Collateral Agent, as amended, modified, restated or supplemented from time to time.
“Collateral Documents” means a collective reference to the Security Agreements, the Pledge Agreements, the Collateral Assignment Documents, the Deposit Account Control Agreements and such other security documents as may be executed and delivered by the Loan Parties pursuant to the terms of Section 7.14.
“Commitment” means for any Lender, such Lender’s Legacy Commitment and/or ETMC Commitment, as applicable. “Commitments” means the aggregate amount of all Commitments.
“Commitment Fee” has the meaning set forth in Section 2.09(a).
“Commitment Fee Rate” means (a) 0.375% or (b) if the average daily unused portion of such Revolving Credit Facility during any month is equal to or less than 50% of the Commitments under such Revolving Credit Facility, 0.250%.
“Communications” has the meaning specified in Section 7.02.
“Company” has the meaning set forth in the preamble hereto.
“Company Action Level” means the Company Action Level risk-based capital threshold, as defined by NAIC.
“Compliance Certificate” means a certificate substantially in the form of Exhibit I.
“Concentration Account” means a segregated deposit or securities account maintained with a bank or financial institution reasonably acceptable to the Administrative Agent into which funds and balances of LHP and its Subsidiaries (including Joint Ventures, but other than such funds and balances in which Joint Venture partners or other entities that are not Affiliates of the Borrowers have an interest) are deposited pursuant to the LHP Cash Management System.
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“Conforming Changes” means, with respect to the use, administration of or any conventions associated with SOFR or any proposed Successor Rate or Term SOFR, as applicable, any conforming changes to the definitions of “Base Rate”, “SOFR”, “Term SOFR” and “Interest Period”, timing and frequency of determining rates and making payments of interest and other technical, administrative or operational matters (including, for the avoidance of doubt, the definitions of “Business Day” and “U.S. Government Securities Business Day”, timing of borrowing requests or prepayment, conversion or continuation notices and length of lookback periods) as may be appropriate, in the discretion of the Administrative Agent in consultation with the Administrative Borrower, to reflect the adoption and implementation of such applicable rate(s) and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such rate exists, in such other manner of administration as the Administrative Agent determines is reasonably necessary in connection with the administration of this Agreement and any other Loan Document).
“Consolidated Capital Expenditures” means, for any period, for the Borrowers and their Restricted Subsidiaries on a consolidated basis, all Capital Expenditures, as determined in accordance with GAAP; provided, however, that Consolidated Capital Expenditures shall not include (i) expenditures made with proceeds of any Disposition, (ii) expenditures relating to any Involuntary Disposition to the extent such expenditures are used to restore, replace or rebuild property to the condition of such property immediately prior to any damage, loss, destruction or condemnation, (iii) all other capital expenditures, as determined in accordance with GAAP, to the extent such expenditures are or are expected to be (provided that such amounts are actually funded within a reasonably proximate time of such expenditure) funded, directly or indirectly, with the proceeds of any Equity Issuance or any capital contribution to any Loan Party, (iv) expenditures that constitute Permitted Acquisitions, (v) Capital Expenditures made by any Person that becomes a Restricted Subsidiary after the Original Closing Date prior to the time such Person becomes a Restricted Subsidiary and (vi) expenditures that are paid for or contractually required to be reimbursed to any Borrower or any of its Restricted Subsidiaries by a third party (including landlords).
“Consolidated EBITDA” means, for any period, for Parent and its Restricted Subsidiaries on a consolidated basis determined in accordance with GAAP, an amount equal to Consolidated Net Income for such period plus, without duplication, (A) other than with respect to clause (xiv) below, to the extent deducted (and not added back) in calculating such Consolidated Net Income for such period, (i) Consolidated Interest Expense for such period, (ii) the provision for federal, state, local and foreign income taxes payable by the Company and its Restricted Subsidiaries for such period, (iii) the amount of depreciation and amortization expense for such period, (iv) any non-recurring fees, charges and cash expenses made or incurred in connection with the Transactions, Amendment and Restatement Transactions, Investments, Dispositions, Restricted Payments, fundamental changes and incurrences of Indebtedness permitted under this Agreement and issuances of Capital Stock and dispositions not prohibited by this Agreement (whether or not consummated), (v) any other non-cash charges, impairments or write-offs for such period (except to the extent such charges, impairments or write-offs relate to a cash payment in a future period), (vi) non-recurring or extraordinary cash expenses in respect of severance payments and other costs associated with any restructuring of the Company’s and its Restricted Subsidiaries’ operations, (vii) expenses and charges related to prior periods in an aggregate amount not to exceed $15.0 million for any such period during the term of this Agreement, (viii) all non-recurring or extraordinary charges, expenses or losses in such period, and, without duplication, any charges or expenses paid or payable by the Company or its Restricted Subsidiaries in cash during such
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measurement period in connection with the integration of Epic Systems IT, (ix) the amount of any non-controlling or minority interest expense consisting of Restricted Subsidiary income attributable to non-controlling interests of third parties in any Restricted Subsidiaries deducted (and not added back) in such period in calculating Consolidated Net Income, (x) Sponsor Fees and transaction fees permitted hereunder (whether paid or accrued), (xi) all fees and expenses and one-time payments reasonably incurred and payable in connection with any amendment, restatement, waiver, consent, supplement or other modification to this Agreement, the Term Loan Credit Agreement, the 2026 Notes Indenture, the 2029 Notes Indenture or any other Indebtedness, (xii) charges, losses or expenses to the extent indemnified or insured or reimbursed or reimbursable by third parties pursuant to indemnification or reimbursement provisions or similar agreements or insurance; provided that, such Person in good faith expects to receive reimbursement for such charges, losses or expenses within the next four fiscal quarters, (xiii) letter of credit fees, (xiv) the amount of net cost savings, synergies and operating expense reductions projected by the Company in good faith to be realized as a result of specified actions taken or to be taken (which cost savings, synergies or operating expense reductions shall be calculated on a pro forma basis as though such cost savings, synergies or operating expense reductions had been realized on the first day of such period), net of the amount of actual benefits realized during such period from such actions; provided that (A) such cost savings, synergies or operating expense reductions are reasonably identifiable and factually supportable, (B) such actions have been taken or are to be taken within 24 months after the date of determination to take such action and (C) the aggregate amount added back pursuant to this clause (xiv) may not exceed 25% of Consolidated EBITDA for the period of the four fiscal quarters most recently ended calculated on a pro forma basis (before giving effect to such add backs); provided, however, that subclauses (B) and (C) of the immediately preceding proviso shall not apply to cost savings, synergies or operating expense reductions in connection with the ETMC Acquisition and the Topeka Acquisition, (xv) upfront fees or charges arising from any Securitization Transaction for such period, and any other amounts for such period comparable to or in the nature of interest under any Securitization Transaction, and losses on dispositions or sale of assets in connection with any Securitization Transaction for such period, to the extent the same were deducted (and not added back) in computing such Consolidated Net Income, (xvi) fees and expenses and non-cash mark-to-market losses relating to any Swap Contracts permitted hereunder, (xvii) any expenses, charges or other costs related to any Equity Issuance, (xviii) any expenses, charges or other costs related to internal reorganizations or restructurings, and (xix) expenses relating to retention bonuses paid in connection with acquisitions, recapitalizations and other financing transactions; and minus (B) non-recurring or extraordinary gains in such period.
“Consolidated Indebtedness” means Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis.
“Consolidated Interest Charges” means, for any period, for the Company and its Restricted Subsidiaries on a consolidated basis, an amount equal to, without duplication, (i) all interest, premium payments, debt discount, fees, charges and related expenses of the Borrowers and their Restricted Subsidiaries in connection with borrowed money (including capitalized interest, but excluding amortization of capitalized financing costs) or in connection with the deferred purchase price of assets, in each case to the extent treated as interest in accordance with GAAP, plus (ii) the portion of rent expense of the Borrowers and their Restricted Subsidiaries with respect to such period under Capital Leases that is treated as interest in accordance with GAAP minus (iii) interest income of the Borrowers and their Restricted Subsidiaries for such period determined on a consolidated basis in accordance with GAAP.
“Consolidated Interest Expense” means, with respect to Parent and its Restricted Subsidiaries for any period, the sum of (1) interest expense of Parent and its Restricted Subsidiaries for such period determined on a consolidated basis in accordance with GAAP (including (a) all commissions, discounts, fees and other charges in connection with letters of credit and similar instruments, (b) accretion or
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amortization of original issue discount resulting from the incurrence of Indebtedness at less than par, (c) the interest component of obligations in respect of Capital Leases, (d) non-cash interest payments and (e) net payments, if any made (less net payments received) pursuant to obligations under permitted Interest Rate Agreements), minus (2) to the extent included in cash interest expense of Parent and its Restricted Subsidiaries for such period determined on a consolidated basis in accordance with GAAP and not added to net income (or loss) in the calculation of Consolidated EBITDA, (i) amounts paid to obtain Interest Rate Agreements, Currency Agreements and Commodity Agreements (each as defined in the Term Loan Credit Agreement), (ii) any one-time cash costs associated with breakage in respect of Interest Rate Agreements, currency agreements and commodity agreements for interest rates and any payments with respect to make-whole premiums or other breakage costs in respect of any Indebtedness, (iii) all non-recurring cash interest expense consisting of liquidated damages for failure to timely comply with registration rights obligations, (iv) any “additional interest” owing pursuant to a registration rights agreement, (v) any expense resulting from the discounting of any Indebtedness in connection with the application of recapitalization accounting or, if applicable, purchase accounting, (vi) penalties and interest relating to taxes and any other amounts of non-cash interest resulting from the effects of acquisition method accounting or pushdown accounting, (vii) amortization or expensing of deferred financing fees, amendment and consent fees, debt issuance costs, commissions, fees and expenses and discounted liabilities, (viii) any expensing of bridge, arrangement, structuring, commitment or other financing fees, (ix) any non-cash interest expense and any capitalized interest, whether paid in cash or accrued, (x) any accretion or accrual of, or accrued interest on, discounted liabilities not constituting Indebtedness during such period, (xi) any non-cash interest expense attributable to the movement of the mark to market valuation of obligations under Interest Rate Agreements, currency agreements and commodity agreements or other derivative instruments pursuant to Financial Accounting Standards Board’s Accounting Standards Codification 815 (Derivatives and Hedging) and (xii) any fees related to a Securitization Transaction, minus (3) interest income of Parent and its Restricted Subsidiaries for such period.
“Consolidated Net Income” means, for any period, for the Borrowers and their Restricted Subsidiaries on a consolidated basis, the net income from continuing operations of the Borrowers and their Restricted Subsidiaries (excluding extraordinary gains and extraordinary losses) for that period; provided that there shall be excluded any income (or loss) of any Person other than the Borrowers or any Restricted Subsidiary or that is accounted for by the equity method, or noncontrolling interest method, of accounting, but any such income so excluded shall be included in such period or any later period to the extent of any cash or Cash Equivalents paid as dividends or distributions in the relevant period to any Borrower or any Restricted Subsidiary (other than the ETMC JV) of a Borrower. For the avoidance of doubt, “Consolidated Net Income” shall not include any income allocable to minority interests in any Subsidiaries (including, without limitation, income attributable to ETMC Subsidiaries which is allocated or which will be allocated to unaffiliated third parties).
“Consolidated Net Leverage Ratio” means, as of any date of determination, the ratio of (a) the sum of (i) Consolidated Indebtedness as of such date minus (ii) unrestricted cash and Cash Equivalents held by the Company and its Restricted Subsidiaries on such date (provided that any cash or Cash Equivalents in the LHP Cash Management Transfer System or held by an ETMC Subsidiary that are not in the Pledged ETMC Distribution Account or another deposit account subject to a control agreement in favor of the Collateral Agent (a “Controlled Account”) shall be deemed to be restricted cash) to (b) Consolidated EBITDA for the period of the four fiscal quarters most recently ended.
“Consolidated Scheduled Funded Indebtedness Payments” means, as of any date for the four fiscal quarter period ending on such date with respect to the Borrowers and their Restricted Subsidiaries on a consolidated basis, the sum of all scheduled or mandatory payments of principal on Funded Indebtedness (excluding any voluntary prepayments, mandatory prepayments required pursuant to Section 2.05 and any mandatory prepayments required pursuant to the Term Loan Documents), as determined in accordance with GAAP.
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“Consolidated Working Capital” means, at any time, the excess of (i) current assets (excluding cash and Cash Equivalents) of the Company and its Restricted Subsidiaries on a consolidated basis at such time over (ii) current liabilities of the Company and its Restricted Subsidiaries on a consolidated basis at such time, all as determined in accordance with GAAP, in each case, calculated exclusive of any change in the Swap Termination Value of Swap Contracts. “Consolidated Working Capital” for any fiscal year shall be subject to adjustment for the impact of any non-cash reclassification of short-term and long-term asset and liability accounts.
“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.
“Contribution Share” has the meaning set forth in Section 4.06.
“Control” has the meaning set forth in the definition of “Affiliate.”
“Controlled Account” has the meaning set forth in the definition of “Consolidated Net Leverage Ratio.”
“Converting ABL Loans” has the meaning set forth in Section 2.17(a).
“Covered Entity” has the meaning set forth in Section 11.23.
“Covered Party” has the meaning set forth in Section 11.23(a).
“Credit Extension” means each of the following: (a) a Borrowing and (b) an L/C Credit Extension.
“Credit Judgment” means the Administrative Agent’s judgment exercised in good faith, (i) to reflect events, conditions, contingencies or risks in each case, arising or becoming known to the Administrative Agent after the Effective Date which, as reasonably determined by the Administrative Agent in good faith, materially adversely affect, or could have a reasonable likelihood of materially adversely affecting, either (a) the Collateral, its value or the amount that might be received by the Administrative Agent from the sale or other disposition or realization upon such Collateral, or (b) the assets or business of any Loan Party or (c) the security interests and liens and other rights of the Administrative Agent or any Lender in the Collateral (including the enforceability, perfection and priority thereof), (ii) to reflect the Administrative Agent’s good faith belief that any collateral report or financial information furnished by or on behalf of any Loan Party to the Administrative Agent is or may have been incomplete, inaccurate, misleading or not in accordance with the terms hereof, in each case, in any material respect, to the extent thereof, or (iii) in respect of any Default or an Event of Default. The amount of any Borrowing Base Reserve established by the Administrative Agent (x) shall have a reasonable relationship to the event, condition or other matter which is the basis for such Borrowing Base Reserve as determined by the Administrative Agent in good faith and (y) shall not be duplicative of other reserves or eligibility criteria then in effect. The imposition of any new reserves or change in a reserve after the Effective Date shall not be effective until five (5) Business Days after written notice thereof to the Borrowers (unless a Default or Event of Default has occurred and is continuing or the reserve or change in reserve is the result of a Lien that is senior in priority to the Administrative Agent’s Lien that has attached to Collateral included in the Borrowing Base, in which case such reserve or change in
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reserve shall be effective immediately); provided further that during the period from such notice until such new or changed reserve is effective, (A) the Administrative Agent shall notify the Administrative Borrower of its rationale for imposing such reserve or change in reserve and shall discuss with the Administrative Borrower the possible conditions for withdrawing such imposition, and (B) the aggregate amount of all outstanding Loans and L/C Obligations under the applicable Revolving Credit Facility as of the date of the receipt of notice may not be increased to the extent such increase would not be permitted by virtue of the applicable Borrowing Base as adjusted after giving effect to such modification. Upon delivery of a notice described above, the Loan Parties may take such action as may be required so that the event, condition, circumstance or new fact that is the basis for such reserve or increase no longer exists, in a manner and to the extent reasonably satisfactory to the Administrative Agent.
“Credit Party” has the meaning set forth in Section 10.19.
“Cure Amount” has the meaning set forth in Section 9.04(a).
“Cure Right” has the meaning set forth in Section 9.04(a).
“Daily Simple SOFR” with respect to any applicable determination date means the SOFR published on such date on the Federal Reserve Bank of New York’s website (or any successor source).
“Debtor Relief Laws” means the Bankruptcy Code, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.
“Default” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.
“Default Rate” means an interest rate equal to (a) the Base Rate plus (b) the Applicable Rate, if any, applicable to Base Rate Loans plus (c) 2% per annum; provided, however, that with respect to a Term SOFR Loan, the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Rate) otherwise applicable to such Loan plus 2% per annum, in each case to the fullest extent permitted by applicable Laws.
“Default Right” has the meaning set forth in Section 11.23.
“Defaulting Lender” means, subject to Section 2.15(b), any Lender that, as determined by the Administrative Agent, (a) has failed to perform any of its funding obligations hereunder, including in respect of its Loans, within three Business Days of the date required to be funded by it hereunder, (b) has notified the Borrowers, or the Administrative Agent or any Lender that it does not intend to comply with its funding obligations or has made a public statement to that effect with respect to (x) its funding obligations hereunder or (y) under other agreements in which it is obligated to extend credit (unless in the case of this clause (y), such obligation is the subject of a good faith dispute), (c) has failed, within three (3) Business Days after request by the Administrative Agent, to confirm in a manner satisfactory to the Administrative Agent that it will comply with its funding obligations hereunder; provided that such Lender shall cease being a Defaulting Lender under this clause (c) upon receipt of such confirmation by the Administrative Agent, or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief 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, (iii) taken any action in furtherance of, or indicated its consent to, approval of or acquiescence in any such proceeding or appointment unless, in the
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case of this clause (d), the Borrowers and the Administrative Agent shall be satisfied that such Lender intends, and has such approvals required to enable it, to perform its obligations as a Lender hereunder or (iv) becomes the subject of a Bail-In Action; 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 or 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.
“Deposit Account” has the meaning set forth in the Uniform Commercial Code.
“Deposit Account Control Agreement” means an agreement in form and substance reasonably satisfactory to the Collateral Agent establishing the Collateral Agent’s control (as defined in the Uniform Commercial Code) with respect to any Deposit Account.
“Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (including any Sale and Leaseback Transaction) of any Property by the Borrowers or any Restricted Subsidiary (including the Capital Stock of any Subsidiary), including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith, but excluding (i) the sale, lease, license, transfer or other disposition of inventory in the ordinary course of business of the Borrowers and their Restricted Subsidiaries, (ii) the sale, lease, license, transfer or other disposition of machinery and equipment or closure of a unit or division, in each case, no longer used or useful in the conduct of business of the Borrowers and their Restricted Subsidiaries, (iii) any sale, lease, license, transfer or other disposition of Property by (x) any Borrower or any Restricted Subsidiary to any Loan Party (other than an ETMC Loan Party); provided that the Loan Parties shall cause to be executed and delivered such documents, instruments and certificates as the Administrative Agent may request so as to cause the Loan Parties to be in compliance with the terms of Section 7.14 after giving effect to such transaction, (y) any non-Loan Party to any non-Loan Party, any ETMC Loan Party to any ETMC Loan Party, or any non-Loan Party to any ETMC Loan Party, and (z) any Loan Party (including, without limitation, any ETMC Loan Party) to any non-Loan Party (including, without limitation, any ETMC Subsidiary) or any ETMC Loan Party not exceeding $7,500,000 in the aggregate in any fiscal year, (iv) any Involuntary Disposition by any Borrower or any Restricted Subsidiary, (v) any Disposition by any Borrower or any Restricted Subsidiary constituting a Permitted Investment, (vi) non-exclusive licenses or sublicenses to use the patents, trade secrets, know-how and other intellectual property of any Borrower or any of its Restricted Subsidiaries in the ordinary course of business, (vii) any sale, lease, license, transfer or other disposition of Property by any Foreign Subsidiary to another Foreign Subsidiary, (viii) the disposition of disposable inventory in bulk to a third party which disposable inventory shall then be consigned from such third party to any Borrower or any Restricted Subsidiary for the benefit of or use by such Person in the ordinary course of such Person’s patient care operations, (ix) any transaction (or series of related transactions) involving property (including, without limitation, leases) with an aggregate book value not exceeding $7,500,000, (x)(A) dispositions or discounts without recourse of accounts receivable (including, without limitation, Self-Pay Accounts) in connection with the compromise or collection thereof in the ordinary course of business, or (B) dispositions of Self-Pay Accounts, with recourse, to collection servicers, provided such accounts have previously been, or are concurrently with such disposition, written off by the company or accounted for as “uncollectible” or “bad debt,” (xi) any contribution of Borrowers’ Portion of Excess Cash Flow (as defined in the Term Loan Credit Agreement) to effect any transaction undertaken pursuant to Section 8.06(f) of the Term Loan Credit Agreement, Investments (as defined in the Term Loan Credit Agreement) pursuant to Section 8.02(u) of the Term Loan Credit Agreement, Permitted Acquisitions (as defined in the Term Loan Credit Agreement) pursuant to clause (v)(x) of the definition thereof or
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payment of Subordinated Indebtedness (as defined in the Term Loan Credit Agreement) pursuant to Section 8.13(b) of the Term Loan Credit Agreement, (xii) Dispositions of Term Priority
Collateral made in order to effectuate any Permitted IRB Transaction, (xiii) any Disposition of Capital Stock to the directors of any Loan Party or any Restricted Subsidiary to qualify such directors where required by applicable law,
(xiv) Dispositions of cash and Cash Equivalents in the ordinary course of business (including, without limitation, the LHP Cash Management Transfer System), (xv) Dispositions of vacant property or property containing buildings that would
require demolition or substantial improvements having a fair market value, in the aggregate, not in excess of $25,000,000, (xvi) Dispositions made by Loan Parties to ETMC Loan Parties pursuant to the intercompany loans permitted under
Section 8.03 or investments permitted under Section 8.02, (xvii) Dispositions made by AHS East Texas or any other ETMC Subsidiary, subject to Section 8.16, to (x) the
ETMC JV or (y) any non-Loan Party, in each case made pursuant to the ETMC JV Agreement and (xviii) Dispositions pursuant to a Securitization Transaction in an aggregate amount not to exceed, together
with all Investments pursuant to Section 8.02(jj) and Section 8.02(kk), the greater of (A)
$75,000,000100,000,000
and (B) 25.0% of Consolidated EBITDA; provided that Dispositions permitted by this clause (xviii) shall solely be in respect of Collateral of a type that would not constitute ABL
Priority Collateral.
“Disqualified Capital Stock” means any Capital Stock that, by its terms (or by the terms of any security or other Capital Stock into which it is convertible or for which it is exchangeable), or upon the happening of any event or condition (a) matures or is mandatorily redeemable (other than solely for Qualified Capital Stock), pursuant to a sinking fund obligation or otherwise (except as a result of a change of control or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control or asset sale event shall be subject to the prior repayment in full of the Loans and all other Obligations that are accrued and payable and the termination of the Commitments), (b) is redeemable at the option of the holder thereof (other than solely for Qualified Capital Stock), in whole or in part, (c) provides for scheduled payments of dividends in cash, or (d) is or becomes convertible into or exchangeable for Indebtedness or any other Capital Stock that would constitute Disqualified Capital Stock, in each case, prior to the date that is ninety-one (91) days after the Maturity Date; provided that if such Capital Stock is issued pursuant to a plan for the benefit of employees of Parent, any Borrower or any Subsidiary or by any such plan to such employees, such Capital Stock shall not constitute Disqualified Capital Stock solely because it may be required to be repurchased by Parent, any Borrower or any Subsidiary in order to satisfy applicable statutory or regulatory obligations.
“Disqualified Institution” means (a) those persons identified by any Borrower in writing on or after the Effective Date to the Administrative Agent as competitors (and any such entities’ Affiliates that are clearly identifiable on the basis of name) of the Borrowers and their Subsidiaries, (b) those banks, financial institutions and other persons identified by the Sponsor or the Administrative Borrower to any Joint Book Runner in writing on or prior to the commencement of primary syndication of the Revolving Credit Facilities prior to the Effective Date (and any such entities’ Affiliates that are clearly identifiable on the basis of name) or (c) any Affiliates of any Joint Book Runner that are engaged as principals primarily in private equity, mezzanine financing or venture capital.
“Dollar” and “$” mean lawful money of the United States.
“Domestic Restricted Subsidiary” means any Domestic Subsidiary that is a Restricted Subsidiary.
“Domestic Subsidiary” means any Subsidiary that is organized under the laws of the United States, any state thereof or the District of Columbia.
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“Earn-Out Obligations” means, with respect to an Acquisition, all obligations of the Borrowers or any Restricted Subsidiary to make earn-out or other contingency payments pursuant to the documentation relating to such Acquisition, not including any amounts payable in any form of Capital Stock. For purposes of determining the aggregate consideration paid for an Acquisition, the amount of any Earn-Out Obligations shall be deemed to be the reasonably anticipated liability in respect thereof as determined by the Borrowers in good faith at the time of such Acquisition. For purposes of determining the liability of the Borrowers and their Restricted Subsidiaries for any Earn-Out Obligation thereafter, the amount of Earn-Out Obligations shall be deemed to be the aggregate liability in respect thereof as recorded on the balance sheet of the Borrowers and their Restricted Subsidiaries in accordance with GAAP.
“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein and Norway.
“EEA Resolution Authority” means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Effective Date” means July 8, 2021, the date of the effectiveness of this Agreement.
“Electronic Copy” has the meaning set forth in Section 11.11.
“Electronic Record” has the meaning set forth in Section 11.11.
“Electronic Signature” has the meaning set forth in Section 11.11.
“Eligible Accounts” means Eligible Current Accounts, Eligible Credit Card Accounts, Eligible Older Accounts and Eligible Intermediate Accounts, provided, however, that Accounts acquired or originated by a Person acquired in a Permitted Acquisition shall not be Eligible Accounts until such time as the Administrative Agent has completed a customary due diligence investigation as to such Accounts and such Person, which investigation may, at the sole discretion of the Administrative Agent, include a Field Exam, and the Administrative Agent is reasonably satisfied with the results thereof.
“Eligible Assignee” has the meaning specified in Section 11.07(g).
“Eligible Credit Card Accounts” means as of any date of determination, Accounts due to a Borrower from major credit card and debit card processors (including, but not limited to, VISA, Mastercard, American Express, Diners Club, DiscoverCard, Interlink, NYCE and other recognized payment processing services reasonably acceptable to the Administrative Agent) that arise in the Ordinary Course of Business and which have been earned by performance and that are not excluded as ineligible by virtue of one or more of the criteria set forth below. None of the following shall be deemed to be Eligible Credit Card Accounts:
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(a) Accounts that have been outstanding for more than five (5) Business Days from the date of charge, or for such longer period(s) as may be approved by the Administrative Agent in its reasonable discretion except to the extent the Required Lenders revoke or limit any such longer period;
(b) Accounts with respect to which a Borrower is not the owner or otherwise does not have good, valid and marketable title, free and clear of any Lien (other than Liens permitted hereunder pursuant to Sections 8.01(a), (b), (c), (d) and (e);
(c) Accounts as to which the Administrative Agent’s Lien attached thereon on behalf of itself and the Lenders, is not a first priority perfected Lien, other than Liens permitted hereunder pursuant to Sections 8.01(a) and (c);
(d) Accounts which are disputed, or with respect to which a claim, counterclaim, offset or chargeback has been asserted, by the related processor (but only to the extent of such dispute, counterclaim, offset or chargeback) or which are not a valid, legally enforceable obligation of the applicable processor with respect thereto;
(e) Accounts as to which the processor has the right under certain circumstances to require a Loan Party to repurchase the Accounts from such credit card or debit card processor;
(f) Accounts arising from any private label credit card program of a Borrower, unless acceptable to Administrative Agent in its Credit Judgment;
(g) Accounts which are evidenced by chattel paper or an instrument of any kind;
(h) Accounts due from credit card and debit card processors (other than Visa, Mastercard, American Express, Diners Club, DiscoverCard, Interlink, NYCE, Maestro, Cirrus, PLUS, MAC, STAR, Pulse, and other recognized payment processing services reasonably acceptable to Agent) which the Administrative Agent in its reasonable Credit Judgment determines to be unlikely to be collected; and
(i) Accounts due from a credit card or debit card processors which is the subject of any bankruptcy or insolvency proceedings.
“Eligible Current Account” means an Account owing to a Borrower that arises in the Ordinary Course of Business from the sale of goods or rendition of services, is payable in Dollars, net of bad debt reserve, and is not excluded as ineligible (x) by virtue of one or more of the criteria set forth below or (y) by the Administrative Agent in its Credit Judgment, after reasonable discussions with the Administrative Borrower. Without limiting the foregoing, no Account shall be an Eligible Current Account if:
(a) the Account Debtor is organized or has its principal offices or assets outside the United States;
(b) such Account is a Self-Pay Account (other than any Self-Pay Account after the application of commercial insurance; provided, that (x) the aggregate amount of such Self-Pay Accounts that shall be Eligible Current Accounts with respect to the Legacy Borrowing Base shall not exceed in the aggregate the greater of $20,000,000 and 10% of the Legacy Borrowing Base; provided further that such amount may be increased at the direction of the Required Legacy Lenders irrespective of Section 11.01 and (y) the aggregate amount of such Self-Pay Accounts that shall be Eligible Current Accounts with respect to the ETMC Borrowing Base shall not exceed $5,000,000 in the aggregate; provided further that such amount may be increased at the direction of the Required ETMC Lenders irrespective of Section 11.01);
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(c) (i) such Borrower’s right to receive payment is not absolute or is contingent upon the fulfillment of any condition whatsoever (other than the preparation and delivery of a bill) or (ii) as to which such Borrower is not able to bring suit or otherwise enforce its remedies against the Account Debtor through judicial process;
(d) any defense, counterclaim, set-off or dispute exists as to such Account (including for overpayments), but only to the extent of such defense, counterclaim, setoff or dispute;
(e) such Account is not a true and correct statement of bona fide obligation incurred in the amount of the Account for merchandise sold to or services rendered and accepted by the applicable Account Debtor (or, in the event that the Account Debtor is a Third Party Payor, merchandise sold to or services rendered and accepted by the intended beneficiary);
(f) a bill, reasonably acceptable to the Administrative Agent in form and substance or otherwise in the form otherwise required by any Account Debtor, has not been sent to the applicable Account Debtor in respect of such Account within 30 days after the date the patient as to which such Account relates has been discharged;
(g) such Account (i) is not owned by such Loan Party or (ii) is subject to any Lien, other than Liens permitted hereunder pursuant to Sections 8.01(a), (b), (c), (d) and (e);
(h) such Account is the obligation of an Account Debtor that is a director, officer, other employee or Affiliate of any Loan Party (other than Accounts arising from the provision of medical care delivered to such Account Debtor in the Ordinary Course of Business), or to any entity (other than a Third Party Payor) that has any common officer or director with any Loan Party;
(i) except for Government Accounts that are otherwise Eligible Accounts, such Account is the obligation of an Account Debtor that is the United States government or a political subdivision thereof, or department, agency or instrumentality thereof unless the Administrative Agent, in its sole discretion, has agreed to the contrary in writing and such Loan Party, if necessary or desirable, has complied with respect to such obligation with the Federal Assignment of Claims Act of 1940, or any applicable state, county or municipal law restricting assignment thereof;
(j) the Account Debtor has supplied goods sold or services to a Loan Party but only to the extent of the potential offset;
(k) upon the occurrence of any of the following with respect to such Account:
(1) the Account is not paid within 120 days following the original invoice date;
(2) the Account Debtor or as applicable the Third Party Payor obligated upon such Account suspends business, makes a general assignment for the benefit of creditors or fails to pay its debts generally as they come due; or
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(3) any Account Debtor obligated upon such Account is a debtor or a debtor in possession under any bankruptcy law or any other federal, state or foreign (including any provincial) receivership, insolvency relief or other law or laws for the relief of debtors;
(l) such Account is the obligation of an Account Debtor from whom 50% or more of the dollar amount of all Accounts owing by that Account Debtor are ineligible under the criteria set forth in this definition;
(m) such Account is one as to which the Administrative Agent’s Lien thereon, on behalf of itself and the Lenders, is not a first priority perfected Lien, other than Liens permitted hereunder pursuant to Sections 8.01(a) and (c);
(n) any of the representations or warranties in the Loan Documents with respect to such Account are untrue in any material respect with respect to such Account (or, with respect to representations or warranties that are qualified by materiality, any of such representations and warranties are untrue);
(o) such Account is evidenced by a judgment, Instrument or Chattel Paper (each such term as defined in the Uniform Commercial Code) (other than Instruments or Chattel Paper that are held by any Loan Party or that have been delivered to the Administrative Agent);
(p) the Account Debtor has made a partial payment (other than a co-pay); the Account represents a progress billing or retainage; or it includes a billing for interest, fees or late charges, but ineligibility shall be limited to the extent thereof;
(q) such Account has been redated, extended, compromised, settled or otherwise modified or discounted, except discounts or modifications that are granted by a Loan Party in the Ordinary Course of Business and that are reflected in the calculation of the Borrowing Base;
(r) such Account exceeds the amount such Loan Party is entitled to receive under any capitation arrangement, fee schedule, discount formula, cost-based reimbursement, contractual allowance or other adjustment or limitation to such Person’s usual charges (to the extent of such excess);
(s) such Account is of an Account Debtor that is located in a state requiring the filing of a notice of business activities report or similar report in order to permit a Loan Party to seek judicial enforcement in such state of payment of such Account, unless such Loan Party has qualified to do business in such state or has filed a notice of business activities report or equivalent report for the then-current year or if such failure to file and inability to seek judicial enforcement is capable of being remedied without any material delay or material cost;
(t) the relevant Account Debtor is a Third Party Payor, and such Account is or has been audited by such Third Party Payor, any such audit provides for adjustments in reimbursable costs or asserts claims for reimbursement or repayment by the applicable Borrower of costs and/or payments theretofore made by such Third Party Payor;
(u) such Account is subject to offset by unapplied cash; or
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(v) pending Medicaid Accounts in excess of $5,000,000 in the aggregate; provided that such amount may be increased at the direction of the Required Lenders irrespective of Section 11.01.
In calculating delinquent portions of Accounts under clauses (k) or (l), credit balances more than 120 days old will be excluded.
“Eligible Intermediate Account” means an Account that would constitute an Eligible Current Account except that such account remains unpaid for more than 120 days after the original invoice date; provided, however, that no Account shall be an Eligible Intermediate Account if it is unpaid for more than 150 days after the original invoice date.
“Eligible Older Account” means an Account that would constitute an Eligible Current Account except that such account remains unpaid for more than 150 days after the original invoice date; provided, however, that no Account shall be an Eligible Older Account if it is unpaid for more than 180 days after the original invoice date.
“Embargoed Person” means any party that (i) is publicly identified on the most current list of “Specially
Designated Nationals and Blocked Persons” published by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or
any sanctioned list published by the U.S. Department of State, or
resides, is organized or chartered, or has a place of business in a country or territory that is the subject of comprehensive
OFACU.S. sanctions or embargo programs or (ii) is publicly identified as prohibited from doing business with the United States under the International Emergency Economic Powers Act, the Trading With the Enemy Act, or
any other requirement of Law.
“Environmental Laws” means any and all federal, state, local, foreign and other applicable statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or binding governmental restrictions relating to pollution and the protection of the environment or the release of any materials into the environment, including those related to Hazardous Materials, air emissions, waste and discharges to water or public systems.
“Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the Borrowers, any other Loan Party or any of their respective Subsidiaries directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
“Epic Systems IT” means electronic records systems software manufactured by Epic Systems Corporation, the related hardware and infrastructure used to operate the system, and the integration of other third party systems into such software, hardware and infrastructure.
“Equipment” has the meaning set forth in the Uniform Commercial Code.
“Equity Issuance” means any issuance by the Parent or any Loan Party (or upon or after a Public Equity Offering of any Borrower, any Borrower) of shares of its Capital Stock. The term “Equity Issuance” shall not be deemed to include any Disposition.
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“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time.
“ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with the Borrowers within the meaning of Section 414(b) or (c) of the Internal Revenue Code (and Sections 414(m) and (o) of the Internal Revenue Code for purposes of provisions relating to Section 412 of the Internal Revenue Code).
“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by the Borrowers or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by the Borrowers or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is insolvent; (d) the filing of a notice of intent to terminate, the treatment of a Pension Plan or Multiemployer Plan amendment as a termination under Sections 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Borrowers or any ERISA Affiliate.
“ETMC Acquisition” means the purchase of hospital assets and operations and the equity interests of certain subsidiaries of East Texas Medical Center Regional Healthcare System (“ETMCRHS”), a Texas nonprofit corporation and East Texas Medical Center Regional Health Services, Inc. (“ETMCRHS Inc.”), a Texas corporation.
“ETMC Bank Product Reserve” means the aggregate amount of reserves established by Administrative Agent from time to time in its commercially reasonable discretion in respect of Bank Product Debt extended to AHS East Texas or any of its Subsidiaries (which shall at all times include a reserve for the maximum amount of all Noticed Hedges outstanding at that time). The amount of any ETMC Bank Product Reserve established by Administrative Agent (x) shall have a reasonable relationship to the Bank Product Debt which is the basis for such reserve as determined by Administrative Agent in good faith and (y) shall not be duplicative of other reserves or eligibility criteria then in effect. The imposition of any new ETMC Bank Product Reserves or change in an ETMC Bank Product Reserve after the Effective Date shall not be effective until five (5) Business Days after written notice thereof to the Borrowers (unless a Default or Event of Default has occurred and is continuing, in which case such reserve or change in reserve shall be effective immediately); provided further that during the period from such notice until such new or changed ETMC Bank Product Reserve is effective, (i) the Administrative Agent shall notify the Administrative Borrower of its rationale for imposing such reserve and shall discuss with the Administrative Borrower the possible conditions for withdrawing such imposition and (ii) the aggregate amount of all outstanding ETMC Revolving Loans and Swing Line Loans made to ETMC Borrowers as of the date of the receipt of notice may not be increased to the extent such increase would not be permitted by virtue of the ETMC Borrowing Base as adjusted after giving effect to such modification. Upon delivery of a notice described above, the Loan Parties may take such action as may be required so that the event, condition, circumstance or new fact that is the basis for such ETMC Bank Product Reserve or increase no longer exists, in a manner and to the extent reasonably satisfactory to the Administrative Agent.
“ETMC Borrowers” means AHS East Texas, each Subsidiary of AHS East Texas identified as an ETMC Borrower on Schedule 1.01(a) and each Additional ETMC Borrower, collectively and jointly and severally, except that unless otherwise specified or required by the terms of any Loan Document, any determination, notice, request, waiver or certificate required or permitted to be made or delivered by the ETMC Borrowers shall be made or delivered by the Administrative Borrower.
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“ETMC Borrowing Base” means on any date of determination, an amount equal to (a) the sum of (i) 65% of the Value of Eligible Current Accounts of the ETMC Borrowers, plus (ii) 65% of the Value of Eligible Intermediate Accounts of the ETMC Borrowers, plus (iii) 65% off the Value of the Eligible Credit Card Accounts of the ETMC Borrowers, minus (b) the ETMC Borrowing Base Reserve.
“ETMC Borrowing Base Reserve” means the sum (without duplication of any other reserves or items that are otherwise addressed or excluded through eligibility criteria, and without duplication of any of the factors taken into account in determining “Value”) of (a) the Facility Pro Rata Share with respect to the ETMC Credit Facility, multiplied by the aggregate amount of liabilities secured by Liens upon ABL Priority Collateral that are senior in priority to the Collateral Agent’s Liens (but imposition of any such reserve shall not waive an Event of Default arising therefrom), (b) the ETMC Bank Product Reserve and (c) such additional reserves, in such amounts and with respect to such matters, as the Collateral Agent in its reasonable Credit Judgment may elect to impose from time to time, or, during any period in which the Collateral Agent is not an ETMC Lender, such additional reserves, in such amounts and with respect to such matters, as the Administrative Agent in its reasonable Credit Judgment may elect to impose.
“ETMC Commitment” means for any ETMC Lender, the obligation of such Person to make ETMC Revolving Loans up to the maximum principal amount set forth opposite such Person’s name on Schedule 2.01 under the heading “ETMC Commitment.” “ETMC Commitments” means the aggregate amount of all ETMC Commitments.
“ETMC Credit Facility” has the meaning set forth in the preliminary statements to this Agreement.
“ETMC JV” means East Texas Health System, LLC.
“ETMC JV Agreement” means the Amended and Restated Limited Liability Company Agreement between UT Tyler and AHS East Texas dated as of February 26, 2018 (as amended, restated, supplemented, replaced or otherwise modified from time to time).
“ETMC Lender” means each of the Persons identified as a “ETMC Lender” on the signature pages to the Amendment and Restatement Agreement and their successors and permitted assigns.
“ETMC Line Cap” means at any time, an amount equal to lesser of (i) the ETMC Commitments at such time and (ii) the ETMC Borrowing Base at such time.
“ETMC Loan Parties” means each ETMC Borrower and each Guarantor that is a Material Domestic Subsidiary of AHS East Texas. For the avoidance of doubt, any Subsidiary that is not subject (directly or indirectly) to the ETMC JV Agreement shall not be considered an ETMC Loan Party.
“ETMC Pro Rata Share” means a fraction (expressed as a percentage, carried out to the ninth decimal place), the numerator of which is the principal amount of the ETMC Commitment held by such ETMC Lender at such time and the denominator of which is the amount of all ETMC Commitments outstanding at such time. The ETMC Pro Rata Share of each ETMC Lender as of the Effective Date is set forth opposite the name of such ETMC Lender on Schedule 2.01; provided that if any ETMC Lender’s ETMC Commitment has been terminated, then the ETMC Pro Rata Share of such ETMC Lender shall be determined based on the ETMC Pro Rata Shares of such ETMC Lender immediately prior to such termination and after giving effect to any subsequent assignments made pursuant to the terms hereof.
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“ETMC Revolving Credit Borrowing” means a borrowing consisting of ETMC Revolving Loans of the same Type and, in the case of Term SOFR Loans, having the same Interest Period made by each of the ETMC Lenders pursuant to Section 2.01.
“ETMC Revolving Loans” means an extension of credit by an ETMC Lender to the ETMC Borrowers under Article II in the form of a Loan, Protective Advance or Swing Line Loan, as applicable.
“ETMC Subsidiaries” means, collectively, AHS East Texas and its direct and indirect Subsidiaries.
“ETMCRHS” has the meaning set forth in the definition of “ETMC Acquisition.”
“ETMCRHS Inc.” has the meaning set forth in the definition of “ETMC Acquisition.”
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
“Event of Default” has the meaning specified in Section 9.01.
“Excess Payment” has the meaning set forth in Section 4.06.
“Excluded Capital Expenditures” means Capital Expenditures (a) financed directly with proceeds of a substantially contemporaneous issuance of equity interests by the Parent (other than to a Loan Party or Subsidiary), (b) financed with Funded Indebtedness permitted hereunder other than Loans, (c) made with (i) net cash proceeds from any Disposition permitted hereunder or (ii) proceeds of insurance arising from any casualty or other insured damage or from condemnation or similar awards with respect to any property or asset or (d) made in cash (and not financed) by a Borrower or its Subsidiaries in connection with the integration of Epic Systems IT.
“Excluded Deposit Account” means one of the following types of Deposit Account: (1) any Deposit Account used solely for funding payroll, pension contributions, segregating payroll taxes or employee benefits up to the amount required during the current reporting period (that could be monthly or quarterly), (2) any fiduciary or trust Deposit Account, (3) any closing or escrow account, security deposit account in favor of lessors or other account into which solely cash collateral is maintained, in each case described in this clause (3), in connection with any transaction or activity permitted pursuant to this Agreement (including, without limitation, Permitted Acquisitions), (4) that certain Deposit Account with the Bank of Oklahoma in the name of AHS Hillcrest Medical Center, LLC, and having the account number 209932452 (the “Hillcrest Account”), into which funds in an initial amount approximately equal to $25,000,000 have been deposited and from which funds will be paid or payable to the Underlying Claim Holder (as defined in the Ardent Acquisition Agreement as in effect on the Original Closing Date) (including any fines, penalties, assessments, fees, expenses, costs, judgments, awards and interest and any amount paid with respect to any settlement of a Proceeding (as defined in the Ardent Acquisition Agreement as in effect on the Original Closing Date)) with respect to the Underlying Claim (as defined in the Ardent Acquisition Agreement as in effect on the Original Closing Date), (5) any Deposit Account, the balances of which are not at any time in excess of $500,000 (so long as the aggregate balance of all such Deposit Accounts of the Loan Parties does not exceed $2,000,000), (6) Deposit Accounts in the LHP Cash Management System, other than the Concentration Account or (7) zero balance Deposit Accounts the balances of which are transferred on each Business Day to Deposit Accounts that are subject to Deposit Account Control Agreements.
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“Excluded ETMC Account” has the meaning specified in the definition of “Excluded Property.”
“Excluded Property” means, with respect to any Loan Party, including any Person that becomes a Loan Party after the Original Closing Date as contemplated by Section 7.12, (a) any fee-owned Real Property and all leasehold interests in Real Property; (b) (A) commercial tort claims with a value of less than $10,000,000 and (B) motor vehicles and other assets subject to certificates of title, helicopters and other aircraft, and letter of credit rights (in each case, other than to the extent such rights can be perfected by filing a UCC-1 financing statement); (c) pledges and security interests prohibited by applicable law, rule, regulation (in each case, except to the extent such prohibition is unenforceable after giving effect to applicable provisions of the Uniform Commercial Code of any applicable jurisdiction or similar laws) or which could require governmental (including regulatory) consent, approval, license or authorization to be pledged (unless such consent, approval, license or authorization has been received and after giving effect to the applicable anti-assignment provisions of the Uniform Commercial Code of any applicable jurisdiction); (d) subject to the last sentence of this definition, equity interests in any Person other than wholly-owned Subsidiaries to the extent not permitted by the terms of such Person’s organizational or joint venture documents after giving effect to the applicable anti-assignment provisions of the Uniform Commercial Code of any applicable jurisdiction; (e) any lease, license or other agreement to the extent that a grant of a security interest therein would violate or invalidate such lease, license or agreement or create a right of termination in favor of any other party thereto (other than the Borrowers or any Affiliate thereof) after giving effect to the applicable anti-assignment provisions of the Uniform Commercial Code of any applicable jurisdiction or similar laws; (f) those assets as to which the Administrative Agent and the Borrowers reasonably agree that the cost or other consequence of obtaining such a security interest or perfection thereof are excessive in relation to the value afforded thereby; (g) any governmental licenses or state or local franchises, charters and authorizations, to the extent security interests in such licenses, franchises, charters or authorizations are prohibited or restricted thereby after giving effect to the applicable anti-assignment provisions of the Uniform Commercial Code of any applicable jurisdiction or similar laws; (h) “intent-to-use” trademark applications prior to the filing and acceptance of a statement of use; (i) any amount on deposit from time to time in the Hillcrest Account; (j) solely to the extent required to be excluded from Collateral by the Relative Rights Agreement: (i) the Purchased Option Assets, (ii) any Landlord Exclusive Assets, (iii) any Authorizations, (iv) any Facility Provider Agreements, (v) any leasehold mortgage interest or any other claim in the Master Lease or (vi) any real or personal property (including equipment and fixtures) owned by the Landlord (as each such term used in this clause (j) is defined in the Relative Rights Agreement); (k) any equipment or other asset subject to Liens securing the ETMC Acquisition, Permitted Acquisitions, Sale and Leaseback Transactions, Securitization Transactions (solely with respect to Collateral of a type that would not constitute ABL Priority Collateral), capital lease obligations or other purchase money debt, in each case, to the extent such transaction is permitted under this Agreement, if the contract or other agreement providing for such debt or capital lease obligation prohibits or requires the consent of any third party as a condition to the creation of any other security interest on such equipment or asset (provided in the case of acquired assets, such prohibition was in existence at the time of such acquisition and not created in contemplation thereof) and, in each case, such prohibition or requirement is permitted under the Loan Documents; (l) all of the equity interests in and assets of Sherman/Grayson Health System, LLC, LHP Sherman/Grayson, LLC; and (m) any management agreement in respect of a Joint Venture that is directly or indirectly owned (in part) by LHP and any management agreement in respect of a Physician Group (other than, for the avoidance of doubt, any fees from such management agreement and other amounts payable to the manager); provided that, each Loan Party shall use commercially reasonable efforts to ensure that any management agreement in respect of a Joint Venture or Physician Group entered into after the Original Closing Date shall not have any restrictions on granting any liens on, or security interests in, the rights of
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such Loan Party in such management agreement. In addition, notwithstanding anything to the contrary contained in this Agreement or in any other Loan Documents, (1) no landlord, mortgagee or bailee waivers shall be required, (2) no notices shall be required to be sent to account debtors or other contractual third parties prior to the occurrence and during the continuance of any Event of Default or Cash Dominion Period, as applicable, (3) no foreign-law governed Collateral Documents or perfection under foreign law shall be required, (4) no Deposit Account Control Agreement shall be required in connection with any Excluded Deposit Account, (5) the portion of any cash held by any ETMC Subsidiary that represents cash that would be required to be distributed by the ETMC JV for the benefit of unaffiliated third parties that are not Loan Parties pursuant to the ETMC JV Agreement shall not be considered Collateral, (6) no control agreements shall be required to be placed on any deposit or security accounts held by any ETMC Subsidiary (other than in respect of the Pledged ETMC Distribution Account) so long as such ETMC Subsidiary is subject to the terms of the ETMC JV Agreement (each, an “Excluded ETMC Account”) and (7) the equity interests owned by any Loan Party in the ETMC JV shall not constitute Excluded Property.
“Excluded Subsidiary” means any (i) Captive Insurance Subsidiary (or any Subsidiary thereof), (ii) Domestic Subsidiary of any Foreign Subsidiary of a Borrower that is a CFC, (iii) FSHCO, (iv) subject to the proviso in the definition of “Joint Venture,” Subsidiary that is prohibited by the constituent documents of such entity (to the extent such agreement was entered into in good faith and not with the purpose of avoiding the giving of a guarantee), applicable law, rule, regulation or contract (with respect to any such contract, only to the extent existing on the Original Closing Date or the date the applicable Person becomes a direct or indirect Subsidiary of any Borrower and so long as any such restriction in any contract is not entered into in contemplation of such Subsidiary becoming a Subsidiary) from guaranteeing the Loans or which would require governmental (including regulatory) consent, approval, license or authorization to provide a guarantee (unless such consent, approval, license or authorization has been received and upon such receipt, such Subsidiary shall be subject to Section 7.12), (vi) non-Wholly Owned Subsidiary, (vii) Subsidiary where the Borrowers and the Administrative Agent reasonably agree that the cost or other consequence of providing a guarantee is excessive in relation to the value afforded thereby, (viii) an Unrestricted Subsidiary, (ix) each of the Subsidiaries identified as “Excluded” on Schedule 6.13 and (x) each Receivables Subsidiary. Notwithstanding the foregoing, after the Ventas Purchase Option Assignment, in no event shall any Tenant Subsidiary constitute an Excluded Subsidiary with respect to the Ventas Purchase Option ABL Loans.
“Excluded Swap Obligation” means, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guaranty of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any Guaranty thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act (determined after giving effect to Section 4.08 and any other “keepwell, support or other agreement” for the benefit of such Guarantor and any and all guarantees of such Guarantor’s Swap Obligations by other Loan Parties) at the time the Guaranty of such Guarantor, or a grant by such Guarantor of a security interest, becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guaranty or security interest is or becomes excluded in accordance with the first sentence of this definition.
“Excluded Taxes” means, with respect to the Administrative Agent, any Lender or any other recipient of any payment to be made by or on account of any obligation of any Loan Party hereunder or under any other Loan Document, (a) Taxes imposed on or measured by its overall net income, and franchise Taxes imposed on it (in lieu of net income Taxes), by a jurisdiction (or any political
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subdivision thereof) as a result of such recipient being organized, having its principal office in, or in the case of any Lender, having its applicable Lending Office in, such jurisdiction, (b) other than an assignee pursuant to a request by the Borrowers under Section 11.16, any U.S. or non-U.S. federal withholding tax that is imposed on amounts payable to a Lender pursuant to any Laws in effect at the time such Lender becomes a party hereto (or designates a new Lending Office), except to the extent that such Lender (or its assignor, if any) was entitled, immediately prior to the designation of a new Lending Office (or assignment), to receive additional amounts from any applicable Loan Party with respect to such withholding pursuant to Section 3.01(a), (c) any withholding Tax that is attributable to such Person’s failure to comply with Section 3.01(e), (d) any Taxes in the nature of branch profits tax within the meaning of Section 884(a) of the Internal Revenue Code imposed by any jurisdiction described in clause (a), and (e) any U.S. federal withholding Tax imposed under FATCA.
“Exclusion Event” means an event or related events resulting in the exclusion of the Borrowers or any of their Subsidiaries from participation in any Medical Reimbursement Program.
“Existing Credit Agreement” has the meaning set forth in the preliminary statements to this Agreement.
“Existing Letter of Credit” means the Letters of Credit identified on Schedule 1.01(b).
“Facilities” means, at any time, a collective reference to the facilities and real properties owned, leased or operated by the Borrowers or any Subsidiary.
“Facility Pro Rata Share” means, with respect to any Revolving Credit Facility, a percentage equal to (x) the aggregate Commitments under such Revolving Credit Facility at such time, divided by (y) the aggregate Commitments under all Revolving Credit Facilities at such time.
“FATCA” means Sections 1471 through 1474 of the Internal Revenue 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, any current or future regulations or official interpretations thereof, any agreements entered into pursuant to current Section 1471(b)(1) of the Internal Revenue Code (or any amended or successor version described above), and any intergovernmental agreements (and any related laws or official administrative guidance) implementing the foregoing.
“FCA” has the meaning set forth in Section 3.03(c)(i).
“Federal Funds Rate” means, for any day, the rate calculated by the Federal Reserve Bank of New York based on such day’s federal funds transactions by depository institutions (as determined in such manner as the Federal Reserve Bank of New York shall set forth on its public website from time to time) and published on the next succeeding Business Day by the Federal Reserve Bank of New York as the federal funds effective rate; provided, that if the Federal Funds Rate for any day is less than zero, the Federal Funds Rate for such day will be deemed to be zero.
“Fee Letter” means that certain fee letter dated as of the Effective Date between the Company and the Administrative Agent.
“Field Exam” means any visit and inspection of the properties, assets and records of any Loan Party during the term of this Agreement, which shall include access to such properties, assets and records sufficient to permit the Collateral Agent or its representatives (or, during any period in which the Collateral Agent is not a Lender, the Administrative Agent or its representatives) to examine, audit and make extracts from any Loan Party’s books and records, make examinations and audits of any Loan
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Party’s other financial matters and Collateral as the Collateral Agent (or, during any period in which the Collateral Agent is not a Lender, the Administrative Agent) deems appropriate in its Credit Judgment, and discussions with its senior officers regarding such Loan Party’s business, financial condition, assets and results of operations.
“Fixed Charge Coverage Ratio” means the ratio, determined on a consolidated basis for the Parent and its Subsidiaries for the most recent four fiscal quarters, of (a) Consolidated EBITDA minus (i) Consolidated Capital Expenditures (other than Excluded Capital Expenditures) and (ii) cash taxes paid, or payable during the period to (b) Fixed Charges.
“Fixed Charge Trigger Period” means the period (a) commencing on the day that Availability is less than the Fixed Charge Trigger Threshold and (b) continuing until the date on which Availability during the previous 30 consecutive days has been greater than the Fixed Charge Trigger Threshold at all times during such 30 consecutive day period.
“Fixed Charge Trigger Threshold” means the greater of (a) 10% of the Line Cap at such time and (b) $17.525.0 million.
“Fixed Charges” means the sum of (a) Consolidated Interest Charges paid in cash (other than payment-in-kind), (b) Consolidated Scheduled Funded Indebtedness Payments, and (c) all Restricted Payments made in cash pursuant to Section 8.06(k).
“Flood Laws” means the National Flood Insurance Act of 1968, Flood Disaster Protection Act of 1973, and related laws, rules and regulations, including any amendments or successor provisions.
“Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.
“Fraudulent Conveyance” has the meaning set forth in Section 11.19(b).
“FRB” means the Board of Governors of the Federal Reserve System of the United States.
“Fronting Fee” has the meaning set forth in Section 2.03(h).
“FSHCO” means any Domestic Subsidiary that owns no material assets other than the equity interests of one or more Foreign Subsidiaries of any Borrower that is a CFC.
“Funded Indebtedness” means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:
(a) all obligations for borrowed money, whether current or long-term (including the Obligations) and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments (excluding, for the avoidance of doubt, in all cases any undrawn amounts under the Revolving Credit Facilities or any other revolving credit facilities);
(b) all purchase money Indebtedness;
(c) the principal portion of all obligations under conditional sale or other title retention agreements relating to Property purchased by the Borrowers or any Restricted Subsidiary (other than customary reservations or retentions of title under agreements with suppliers entered into in the ordinary course of business);
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(d) all obligations arising under bankers’ acceptances, bank guaranties, surety bonds and similar instruments, but excluding all obligations arising under letters of credit;
(e) all obligations in respect of the deferred purchase price of property or services (other than trade accounts payable and accrued expenses in the ordinary course of business and purchase price adjustments), including without limitation, any Earn-Out Obligations;
(f) all Attributable Indebtedness with respect to Capital Leases and Synthetic Leases and Sale and Leaseback Transactions;
(g) all Attributable Indebtedness with respect to Securitization Transactions;
(h) all preferred stock or other equity interests providing for mandatory redemptions, sinking fund or like payments prior to the Maturity Date for Loans (“Redeemable Stock”); provided that Redeemable Stock shall not include any preferred stock or other equity interest subject to mandatory redemption if (i) such mandatory redemption may be satisfied by delivering common stock or some other equity interest not subject to mandatory redemption or (ii) such mandatory redemption is triggered solely by reason of a “change of control” and is not required to be paid until after the Obligations are paid in full;
(i) all Funded Indebtedness of others to the extent 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 the Borrowers or any Restricted Subsidiary, whether or not the obligations secured thereby have been assumed (other than any rights of LeaseCo under the Relative Rights Agreement);
(j) all Guarantees with respect to Indebtedness of the types specified in clauses (a) through (i) above of another Person; and
(k) all Indebtedness of the types referred to in clauses (a) through (j) above of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or joint venturer, except to the extent that Indebtedness is expressly made non-recourse to such Person.
For purposes hereof, (x) the amount of any direct obligation arising under bankers’ acceptances, bank guaranties, surety bonds and similar instruments, but excluding all obligations arising under letters of credit, shall be the maximum amount available to be drawn thereunder and (y) the amount of any Guarantee shall be the amount of the Indebtedness subject to such Guarantee.
“GAAP” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board, consistently applied.
“Government Accounts” means collectively, any and all Accounts which are (a) Medicare Accounts, (b) Medicaid Accounts, (c) TRICARE Accounts, (d) Accounts pertaining to Indian Health Services, the Department of Defense, Veteran Administration, or (e) any other Account payable by a Governmental Authority acceptable to the Administrative Agent in its Credit Judgment.
“Governmental Authority” means any nation or government, any state or other political subdivision thereof, any agency, authority, instrumentality, regulatory body, court, administrative tribunal, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.
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“Governmental Reimbursement Program Cost” means with respect to and payable by the Borrowers and their Restricted Subsidiaries the sum of:
(i) all amounts (including punitive and other similar amounts) agreed to be paid or payable (A) in settlement of claims or (B) as a result of a final, non-appealable judgment, award or similar order, in each case, relating to participation in Medical Reimbursement Programs;
(ii) all final, non-appealable fines, penalties, forfeitures or other amounts rendered pursuant to criminal indictments or other criminal proceedings relating to participation in Medical Reimbursement Programs; and
(iii) the amount of final, non-appealable recovery, damages, awards, penalties, forfeitures or similar amounts rendered in any litigation, suit, arbitration, investigation, review or other legal or administrative proceeding of any kind relating to participation in Medical Reimbursement Programs.
“Guarantee” means, as to any Person, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other payment obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other payment obligation of the payment or performance of such Indebtedness or other payment obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other payment obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness or other payment obligation of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person. The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary payment obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning.
“Guaranteed Obligations” has the meaning set forth in Section 4.06.
“Guarantors” means Parent and each Material Domestic Subsidiary of the Borrowers identified on the signature pages hereto as a “Guarantor” and each other Person that joins as a Guarantor pursuant to Section 7.12, together with their successors and permitted assigns; provided that no Excluded Subsidiary (including the ETMC JV) shall be required to be a Guarantor. Each ETMC Borrower shall be a Guarantor with respect to the Obligations of the Legacy Borrowers and each Legacy Borrower (other than a Tenant Subsidiary) shall be a Guarantor with respect to the Obligations of the ETMC Borrowers. Notwithstanding the foregoing, no Tenant Subsidiary shall be a Guarantor with respect to the Obligations of any ETMC Loan Party.
“Guaranty” means the Guaranty made by the Guarantors in favor of the Administrative Agent and the Lenders pursuant to Article IV hereof.
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“Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, per- or polyfluoroalkyl substances, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.
“Hedging Agreement” means an agreement relating to any swap, cap, floor, collar, option, forward, cross right or obligation, or combination thereof or similar transaction, with respect to interest rate, foreign exchange, currency, commodity, credit or equity risk.
“HHS” means the United States Department of Health and Human Services and any successor thereof.
“Hillcrest Account” has the meaning specified in the definition of Excluded Deposit Account.
“HIPAA” means the Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health Act amendments to the American Recovery and Reinvestment Act of 2009, and as the same may be amended, modified or supplemented from time to time, and any successor statute thereto, and any and all rules or regulations promulgated from time to time thereunder.
“HMO” means any health maintenance organization, managed care organization, any Person doing business as a health maintenance organization or managed care organization, or any Person required to qualify or be licensed as a health maintenance organization or managed care organization under applicable federal or state law (including, without limitation, HMO Regulations).
“HMO Business” means the business of owning and operating an HMO or other similar regulated entity or business.
“HMO Entity” means a Person that is capitalized or licensed as an HMO, conducting HMO Business or providing managed care services.
“HMO Regulations” means all laws, regulations, directives and administrative orders applicable under federal or state law to any HMO Entity (and any regulations, orders and directives promulgated or issued pursuant to any of the foregoing) and all applicable sections of Subchapter XI of Title 42 of the United States Code (and any regulations, orders and directives promulgated or issued pursuant thereto, including, without limitation, Part 417 of Chapter IV of Title 42 of the Code of Federal Regulations).
“HIPAA Standards” has the meaning specified in Section 7.08.
“Honor Date” has the meaning set forth in Section 2.03(c)(i).
“Hospital” means a hospital, outpatient clinic, outpatient surgical center, long-term care facility, diagnostic facility, medical office building or other facility or business that is used or useful in or related to the provision of healthcare services.
“Increase Date” has the meaning set forth in Section 2.14(b).
“Increase Loan Lender” has the meaning set forth in Section 2.14(b).
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“Indebtedness” means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:
(a) all Funded Indebtedness and all obligations arising under letters of credit (including standby and commercial);
(b) net obligations under any Swap Contract;
(c) all Guarantees with respect to outstanding Indebtedness of the types specified in clauses (a) and (b) above of any other Person; and
(d) all Indebtedness of the types referred to in clauses (a) through (c) above of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which a Borrower or a Restricted Subsidiary is a general partner or joint venturer, unless such Indebtedness is expressly made non-recourse to such Borrower or such Restricted Subsidiary.
For purposes hereof (x) the amount of any direct obligations arising under letters of credit (including standby and commercial) shall be the maximum amount available to be drawn thereunder, (y) the amount of any net obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such date and (z) the amount of any Guarantee shall be the amount of the Indebtedness subject to such Guarantee; provided that, notwithstanding the foregoing, Indebtedness shall be deemed not to include any Physician Support Obligations or any obligations arising under the Master Lease (and, for the avoidance of doubt, any Physician Support Obligations and obligations arising under the Master Lease shall be exempt from Section 8.03).
“Indemnified Liabilities” has the meaning set forth in Section 11.05.
“Indemnified Taxes” means any Taxes other than Excluded Taxes and Other Taxes.
“Indemnitees” has the meaning set forth in Section 11.05.
“Indenture Trustee” means U.S. Bank National Association, as trustee under the 2029 Notes Indenture.
“Information” has the meaning set forth in Section 11.08.
“Initial Maturity Date” has the meaning set forth in the definition of “Maturity Date”.
“Insurer” means a Person that insures a Patient against certain of the costs incurred in the receipt by such Patient of Medical Services, or that has an agreement with a Loan Party to compensate such Loan Party for providing services to a Patient.
“Intercompany Note” means a promissory note substantially in the form of Exhibit K, or such other promissory note that shall be reasonably satisfactory to the Administrative Agent; it being understood that (x) the Required Payment Intercompany Note and (y) the intercompany notes evidencing (i) the Working Capital Intercompany Loans and (ii) the intercompany loan permitted under Section 8.02(ee)(iii) constitute “Intercompany Notes.”
“Intercompany Security Documents” means each security agreement, pledge agreement, mortgage, deed of trust or other security document reasonably requested by, and in form and substance reasonably satisfactory to, the Administrative Agent, in each case executed by a Non-Guarantor
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Restricted Subsidiary in favor of any Loan Party in accordance with the terms hereof, with such modifications thereto as are necessary to be in compliance with applicable state law (any such modifications to be reasonably acceptable to the Administrative Agent).
“Intercreditor Agreement” means (i) if the Term Loan Credit Agreement in effect is the Term Loan Credit Agreement described in clause (i) of the definition thereof, the Intercreditor Agreement dated the Original Closing Date among the Collateral Agent, the Administrative Agent, the Term Loan Administrative Agent and the other parties from time to time party thereto substantially in the form attached hereto as Exhibit P (as amended, restated, amended and restated, supplemented or otherwise modified from time to time) and (ii) in all other cases, any Refinancing Intercreditor Agreement.
“Interest Payment Date” means (a) as to any Loan other than a Base Rate Loan, the last Business Day (subject to Section 2.12(b)) of each Interest Period applicable to such Loan and the Maturity Date for such Loan; provided, however, that if any Interest Period for a Term SOFR Loan exceeds three months, the respective dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment Dates; and (b) as to any Base Rate Loan, the first day of each calendar quarter and the Maturity Date with respect to such Base Rate Loan.
“Interest Period” means as to each Term SOFR Loan, the period commencing on the date such Term SOFR Loan is disbursed or converted to or continued as a Term SOFR Loan and ending on the date one, three or six months thereafter, as selected by a Borrower or the Borrowers in its or their Loan Notice, or such shorter period that is requested by a Borrower and consented to by all the applicable Lenders and the Administrative Agent (in the case of each requested Interest Period, subject to availability); provided that:
(i) any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless, in the case of a Term SOFR Loan, such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day;
(ii) any Interest Period pertaining to a Term SOFR Loan that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and
(iii) no Interest Period shall extend beyond the Maturity Date.
“Interest Rate Agreement” means, with respect to any Person any interest rate protection agreement, interest rate future agreement, interest rate option agreement, interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, interest rate hedge agreement or other similar agreement or arrangement as to which such Person is party or a beneficiary.
“Internal Revenue Code” means the Internal Revenue Code of 1986, as amended.
“inventory” has the meaning set forth in the Uniform Commercial Code, including all goods intended for sale, lease, display or demonstration; all work in process; and all raw materials, and other materials and supplies of any kind that are or could be used in connection with the manufacture, printing, packing, shipping, advertising, sale, lease or furnishing of such goods, or otherwise used or consumed in a Loan Party’s business (but excluding Equipment).
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“Investment” means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition of Capital Stock of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, including any partnership or joint venture interest in such other Person, or (c) an Acquisition; provided that, notwithstanding anything to the contrary set forth herein or in any other Loan Document, the LHP Cash Management Transfer System shall not constitute Investments. For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment.
“Involuntary Disposition” means any loss of, damage to or destruction of, or any condemnation or other taking for public use of, any Property of any Borrower or any Restricted Subsidiary which gives rise to the receipt by any Borrower or any Restricted Subsidiary of insurance proceeds or condemnation awards to replace or repair such Property.
“IP Rights” has the meaning set forth in Section 6.17.
“IRS” means the United States Internal Revenue Service.
“Joint Book Runners” means Bank of America,
BarclaysMorgan
Stanley and JPMorgan, in their capacities as joint lead arrangers and joint book runners under any of the Loan Documents.
“Joint Venture” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity (a) of which less than a majority of the shares of Capital Stock having ordinary voting power for the election of directors or other governing body (other than Capital Stock having such power only by reason of the happening of a contingency) are at the time beneficially owned, directly, or indirectly through one or more intermediaries, or both, by such Person and (b) which is not otherwise a Subsidiary of such Person; provided, however, that Parent and the other Loan Parties shall cause each of their respective Subsidiaries and Affiliates to use commercially reasonable efforts to ensure that any Joint Venture Agreements entered into after the Effective Date shall not have any restrictions on granting any liens on, or security interests in, the Capital Stock held directly or indirectly by a Loan Party in such Joint Venture. Unless otherwise specified, all references herein to a “Joint Venture” or to “Joint Ventures” shall refer to a Joint Venture or Joint Ventures of a Borrower.
“Joint Venture Agreements” means the Organization Documents of any Joint Venture existing from time to time.
“JPMorgan” means JPMorgan Chase Bank, N.A. and its successors.
“JV Clinical Management Agreement” means that certain UTHSCT Clinical Operations Management Agreement, dated as of February 26, between ETMC JV and UT Tyler.
“JV Management Agreement” means that certain Company Management Agreement, dated as of February 26, between ETMC JV and AHS East Texas.
“JV Sub-Management Agreement” means that certain Company Management Agreement, dated as of February 26, between ETMC JV and AHS Management Company, Inc.
“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
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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.
“L/C Advance” means, with respect to each Lender, such Lender’s funding of its participation in any L/C Borrowing in accordance with its Legacy Pro Rata Share.
“L/C Borrowing” means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the applicable Honor Date or refinanced as a Borrowing.
“L/C Credit Extension” means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the renewal or increase of the amount thereof.
“L/C Disbursement” means, a payment or disbursement made by an L/C Issuer pursuant to a drawing under a Letter of Credit.
“L/C Issuer” means (i) Bank of America or any of its
affiliates, (ii)
BarclaysMorgan
Stanley or any of its Subsidiaries or affiliates, (iii) JPMorgan or any of its affiliates and (iv) any other Lender (or any of its Subsidiaries or affiliates) that becomes an L/C Issuer
in accordance with Section 2.03(j) or 11.07(h); in each case, in its capacity as an issuer of Letters of Credit hereunder, or any successor issuer of Letters of Credit hereunder. If there is more than one L/C Issuer
at any given time, the term L/C Issuer shall refer to the relevant L/C Issuer(s).
“L/C Issuer Sublimit” mean, with respect to each L/C Issuer on the Effective Date, the principal amount set forth opposite such Person’s name on Schedule 2.01 under the heading “L/C Issuer Commitment” and thereafter, with respect to any new L/C Issuer the amount agreed to by the Administrative Borrower and such new L/C Issuer. After the Effective Date, any L/C Issuer shall be permitted at any time to increase or decrease its L/C Issuer Sublimit with the consent of the Administrative Borrower and upon providing written notice thereof to the Administrative Agent.
“L/C Obligation” means, as at any date of determination, the aggregate maximum amount then available to be drawn under all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts in respect of Letters of Credit, including all L/C Borrowings.
“LCT Election” has the meaning specified in Section 1.09.
“LCT Test Date” has the meaning specified in Section 1.09.
“LeaseCo” means collectively, the entities listed on the Schedule of Landlords attached to the Relative Rights Agreement, each a wholly-owned affiliate of Ventas, and their successors, replacements and permitted assigns in such capacity.
“Legacy Bank Product Reserve” means the aggregate amount of reserves established by Administrative Agent from time to time in its commercially reasonable discretion in respect of Bank Product Debt extended to any of the Loan Parties or their Subsidiaries (other than AHS East Texas and its Subsidiaries) (which shall at all times include a reserve for the maximum amount of all Noticed Hedges outstanding at that time). The amount of any Legacy Bank Product Reserve established by Administrative Agent (x) shall have a reasonable relationship to the Bank Product Debt which is the basis for such reserve as determined by Administrative Agent in good faith and (y) shall not be duplicative of other reserves or eligibility criteria then in effect. The imposition of any new Legacy Bank Product Reserves or change in a Legacy Bank Product Reserve after the Effective Date shall not be
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effective until five (5) Business Days after written notice thereof to the Borrowers (unless a Default or Event of Default has occurred and is continuing, in which case such reserve or change in reserve shall be effective immediately); provided further that during the period from such notice until such new or changed Legacy Bank Product Reserve is effective, (i) the Administrative Agent shall notify the Administrative Borrower of its rationale for imposing such reserve and shall discuss with the Administrative Borrower the possible conditions for withdrawing such imposition and (ii) the aggregate amount of all outstanding Legacy Revolving Loans, Swing Line Loans made to Legacy Borrowers and L/C Obligations as of the date of the receipt of notice may not be increased to the extent such increase would not be permitted by virtue of the Legacy Borrowing Base as adjusted after giving effect to such modification. Upon delivery of a notice described above, the Loan Parties may take such action as may be required so that the event, condition, circumstance or new fact that is the basis for such Legacy Bank Product Reserve or increase no longer exists, in a manner and to the extent reasonably satisfactory to the Administrative Agent.
“Legacy Borrowers” means the Company, each Subsidiary of the Company identified as a Legacy Borrower on Schedule 1.01(a) and each Additional Legacy Borrower, collectively and jointly and severally, except that unless otherwise specified or required by the terms of any Loan Document, any determination, notice, request, waiver or certificate required or permitted to be made or delivered by the Legacy Borrowers shall be made or delivered by the Administrative Borrower. No ETMC Borrower shall be designated as a Legacy Borrower.
“Legacy Borrowing Base” means on any date of determination, an amount equal to
(a) the sum of (i) 85% of the Value of Eligible Current Accounts of the Legacy Borrowers and Eligible Credit Card Accounts of the Legacy Borrowers, plus (ii)
7085% of the Value of Eligible Intermediate Accounts of the Legacy Borrowers, plus (iii) 7085% of the Value of Eligible Older Accounts of the Legacy Borrowers;
provided that the amount included in the Legacy Borrowing Base under this clause (iii) shall not exceed $8,750,00012,500,000, minus (b) the Legacy Borrowing Base Reserve.
Notwithstanding anything to the foregoing, no Option Assets (as defined in the Relative Rights Agreement) shall be included in the Legacy Borrowing Base.
“Legacy Borrowing Base Reserve” means the sum (without duplication of any other reserves or items that are otherwise addressed or excluded through eligibility criteria, and without duplication of any of the factors taken into account in determining “Value”) of (a) the Facility Pro Rata Share with respect to the Legacy Credit Facility, multiplied by the aggregate amount of liabilities secured by Liens upon ABL Priority Collateral that are senior in priority to the Collateral Agent’s Liens (but imposition of any such reserve shall not waive an Event of Default arising therefrom), (b) the Legacy Bank Product Reserve and (c) such additional reserves, in such amounts and with respect to such matters, as the Collateral Agent in its reasonable Credit Judgment may elect to impose from time to time, or, during any period in which the Collateral Agent is not a Legacy Lender, such additional reserves, in such amounts and with respect to such matters, as the Administrative Agent in its reasonable Credit Judgment may elect to impose.
“Legacy Commitment” means for any Legacy Lender, the obligation of such Person to make Legacy Revolving Loans and to participate in L/C Obligations up to the maximum principal amount set forth opposite such Person’s name on Schedule 2.01 under the heading “Legacy Commitment.” “Legacy Commitments” means the aggregate amount of all Legacy Commitments.
“Legacy Credit Facility” has the meaning set forth in the preliminary statements to this Agreement.
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“Legacy Lender” means each of the Persons identified as a “Legacy Lender” on the signature pages to the Amendment and Restatement Agreement and their successors and permitted assigns.
“Legacy Line Cap” means at any time, an amount equal to lesser of (i) the Legacy Commitments at such time and (ii) the Legacy Borrowing Base at such time.
“Legacy Pro Rata Share” means a fraction (expressed as a percentage, carried out to the ninth decimal place), the numerator of which is the principal amount of the Legacy Commitment held by such Legacy Lender at such time and the denominator of which is the amount of all Legacy Commitments outstanding at such time. The Legacy Pro Rata Share of each Legacy Lender as of the Effective Date is set forth opposite the name of such Legacy Lender on Schedule 2.01; provided that if any Legacy Lender’s Legacy Commitment has been terminated, then the Legacy Pro Rata Share of such Legacy Lender shall be determined based on the Legacy Pro Rata Shares of such Legacy Lender immediately prior to such termination and after giving effect to any subsequent assignments made pursuant to the terms hereof.
“Legacy Revolving Credit Borrowing” means a borrowing consisting of Legacy Revolving Loans of the same Type and, in the case of Term SOFR Loans, having the same Interest Period made by each of the Legacy Lenders pursuant to Section 2.01.
“Legacy Revolving Credit Exposure” means, as to each Lender at any time, the sum of (a) the Outstanding Amounts of all Legacy Revolving Loans held by such Legacy Lender (or its applicable Lending Office), (b) such Legacy Lender’s Legacy Pro Rata Share of the L/C Obligations, (c) such Legacy Lender’s Applicable Pro Rata Share of the Swing Line Obligations owed by Legacy Borrowers and (d) such Legacy Lender’s Legacy Pro Rata Share of Protective Advances owed by Legacy Borrowers.
“Legacy Revolving Loans” means an extension of credit by a Legacy Lender to the Legacy Borrowers under Article II in the form of a Loan, Protective Advance or Swing Line Loan, as applicable.
“Lenders” means each Legacy Lender and each ETMC Lender.
“Lending Office” means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Borrowers and the Administrative Agent.
“Letter of Credit” means (i) any standby or documentary letter of credit issued by an L/C Issuer for the account of a Borrower, or any indemnity, guarantee, exposure transmittal memorandum or similar form of credit support issued by Administrative Agent or an L/C Issuer for the benefit of a Borrower or (ii) any Existing Letter of Credit; provided that any Letter of Credit may be for the benefit of any Subsidiary of a Borrower.
“Letter of Credit Application” means an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to time in use by the relevant L/C Issuer.
“Letter of Credit Expiration Date” means the day that is five (5) Business Days prior to the scheduled Maturity Date then in effect for the Legacy Credit Facility (or, if such day is not a Business Day, the next preceding Business Day).
“Letter
of Credit Sublimit” means an amount equal to the lesser of (a) $50,000,00075,000,000 and (b) the aggregate amount of the Commitments.
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“LHP” means LHP Hospital Group, Inc.
“LHP Cash Management Transfer System” means the ordinary course transfer of funds among LHP, its Subsidiaries and Joint Ventures, in each case consistent with past practices.
“Lien” means any mortgage, pledge, hypothecation, collateral assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other title retention agreement, and any financing lease having substantially the same economic effect as any of the foregoing).
“Limited Condition Acquisition” means any acquisition of an Acquired Entity or Business the consummation of which is not conditioned on the availability of financing.
“Line Cap” means at any time, an amount equal to the sum of the Legacy Line Cap and the ETMC Line Cap at such time.
“Loan Documents” means this Agreement, the Amendment and Restatement Agreement, Amendment No. 1, Amendment No. 2, Amendment No. 3, each Revolving Credit Note, the Collateral Documents, the Intercreditor Agreement, the Relative Rights Agreement, each Loan Notice, each Compliance Certificate, each Borrowing Base Certificate, the Fee Letter, each Letter of Credit Application, any Additional Legacy Borrower Agreement, any Additional ETMC Borrower Agreement, any additional intercreditor agreement entered into pursuant to the terms hereto and each other document, instrument or agreement from time to time executed by the Parent, the Borrowers or any other Loan Party and delivered in connection with this Agreement (including, without limitation, in connection with the Ventas Purchase Option ABL Loans).
“Loan Notice” means a notice of (a) a Borrowing of a Loan, (b) a conversion of Loans from one Type to the other, or (c) a continuation of Term SOFR Loans, pursuant to Section 2.02(a), which shall be substantially in the form of Exhibit D or such other form as may be reasonably approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be reasonably approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Administrative Borrower (or any Borrower).
“Loan Parties” means, collectively, the Borrowers and the Guarantors.
“Loans” means an extension of credit by a Lender to the Borrowers under Article II in the form of a Legacy Revolving Loan, an ETMC Revolving Loan, a Protective Advance or a Swing Line Loan, as applicable.
“Master Lease” means that certain Master Lease Agreement, dated as of August 4, 2015, among LeaseCo and certain of Affiliates of the Company, regarding the lease of LeaseCo’s Real Property to the Company and its Subsidiaries, as amended, restated, supplemented or otherwise modified from time to time.
“Material Adverse Effect” means (a) a material adverse change in, or a material adverse effect upon, the operations, business, properties, liabilities (actual or contingent), or financial condition of the Borrowers and their Restricted Subsidiaries, taken as a whole; (b) a material impairment of the ability of the Borrowers and the Guarantors taken as a whole to perform their obligations under the Loan Documents; (c) a material adverse effect upon the legality, validity, binding effect or enforceability against the Borrowers or any Guarantor of any Loan Document to which it is a party or (d) a material impairment of the rights of or benefits or remedies available to the Lenders or the Administrative Agent taken as a whole under any Loan Document.
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“Material Domestic Subsidiary” means any Wholly Owned Domestic Subsidiary of the Borrowers that is a Restricted Subsidiary and (a) as of the end of any fiscal quarter period, has total assets with a book value averaging greater than 2.5% of the total assets of the Borrowers and their Restricted Subsidiaries taken as a whole or (b) has revenues for the most recent twelve-month period greater than 2.5% of the total revenues for the most recent twelve-month period in the aggregate of the Borrowers and their Restricted Subsidiaries taken as a whole; provided that if, at any time and from time to time after the Effective Date, Wholly Owned Domestic Subsidiaries that are Restricted Subsidiaries but are not Guarantors solely because they do not meet the thresholds set forth in clauses (a) or (b), together with the other Domestic Subsidiaries that are Restricted Subsidiaries but are not Guarantors (including (x) all Captive Insurance Subsidiaries (and any Subsidiaries thereof), but excluding (y) all non-Wholly Owned Subsidiaries and Joint Ventures) have in the aggregate total assets with a book value averaging greater than 5% of the total assets of the Borrowers and their Restricted Subsidiaries taken as a whole or have in the aggregate revenues for the most recent twelve-month period greater than 5% of the total revenues for the most recent twelve-month period of the Borrowers and their Restricted Subsidiaries, taken as a whole, then the Administrative Borrower shall, not later than forty-five (45) days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such longer period as the Administrative Agent may agree in its reasonable discretion), (i) designate in writing to the Administrative Agent one or more of such Wholly Owned Domestic Subsidiaries that are Restricted Subsidiaries as “Material Domestic Subsidiaries” to the extent required such that the foregoing condition ceases to be true and (ii) comply with the provisions of Section 7.12 applicable to such Subsidiary (other than Excluded Subsidiaries).
“Maturity Date” means the date that is the five year anniversary of the Amendment No. 4 Effective Date, or, if such day is not a Business
Day, the immediately succeeding Business Day (the “Initial Maturity Date”); provided that if the Term Loan Facility any Indebtedness having a principal amount in excess of the Threshold Amount that has a maturity
date that is
earlier than 91 days after the Initial
Maturity Date remains outstanding on the date that is
91 days prior to the maturity date of the Term Loan
Facilitythereof (the “Term Loan Facility Springing Maturity Date”) and such Term Loan Facility has not otherwise been extended or refinanced such that its scheduled final maturity date is no earlier than 91 days after the Maturity Date of the Revolving Credit
Facilities, then the Maturity Date shall be the Term Loan Facility Springing Maturity Date.
“Maximum Rate” has the meaning set forth in Section 11.10.
“measurement period” means at any date of determination, the most recently completed four (4) consecutive fiscal quarters of the Borrowers and their Subsidiaries.
“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 Account” means an Account payable pursuant to an agreement entered into between a state agency or other entity administering Medicaid in such state and a healthcare facility or physician under which the healthcare facility or physician agrees to provide services or supplies for Medicaid patients.
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“Medicaid/Medicare Account Debtor” means any Account Debtor which is (i) the United States of America acting under the Medicaid/Medicare program established pursuant to the Social Security Act, (ii) any state or the District of Columbia acting pursuant to a health plan adopted pursuant to Title XIX of the Social Security Act or (iii) any agent, carrier, administrator or intermediary for any of the foregoing.
“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 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 Medicaid and any statutes succeeding thereto; (ii) all applicable provisions of all federal rules, regulations, manuals and orders of all Governmental Authorities promulgated pursuant to or in connection with the statutes described in clause (i) above and all federal administrative, reimbursement and other guidelines of all Governmental Authorities having the force of law promulgated pursuant to or in connection with the statutes described in clause (i) above; (iii) all state statutes and plans for medical assistance enacted in connection with the statutes and provisions described in clauses (i) and (ii) above; and (iv) all applicable provisions of all rules, regulations, manuals and orders of all Governmental Authorities promulgated pursuant to or in connection with the statutes described in clause (iii) above and all state administrative, reimbursement and other guidelines of all Governmental Authorities having the force of law promulgated pursuant to or in connection with the statutes described in clause (ii) above, in each case as may be amended, supplemented or otherwise modified from time to time.
“Medical Reimbursement Programs” means a collective reference to the Medicare, Medicaid and TRICARE programs and any other health care program operated by or financed in whole or in part by any foreign or domestic federal, state or local government and any other non-government funded third party payor programs.
“Medical Services” means medical and health care services provided to a Patient, including, but not limited to, medical and health care services provided to a Patient and performed by a Loan Party which are covered by a policy of insurance issued by an Insurer, and includes physician services, nurse and therapist services, dental services, hospital services, skilled nursing facility services, comprehensive outpatient rehabilitation services, home health care services, residential and out-patient behavioral healthcare services, and medicine or health care equipment provided by a Loan Party to a Patient for a necessary or specifically requested valid and proper medical or health purpose.
“Medicare” means that government-sponsored entitlement program under Title XVIII of the Social Security Act, which provides for a health insurance system for eligible 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 Account” an Account payable pursuant to an agreement entered into between a state agency or other entity administering Medicare in such state and a healthcare facility or physician under which the healthcare facility or physician agrees to provide services or supplies for Medicare patients.
“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 for Medicare patients in accordance with the terms of the agreement and Medicare Regulations.
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“Medicare Regulations” means, collectively, all federal statutes (whether set forth in Title XVIII of the Social Security Act or elsewhere) affecting Medicare 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, CMS, the OIG, HHS, or any person succeeding to the functions of any of the foregoing) promulgated pursuant to or in connection with any of the foregoing having the force of law, as each may be amended, supplemented or otherwise modified from time to time.
“MOB Disposition” has the meaning set forth in Section 8.05(iii).
“Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.
“Morgan Stanley” means Morgan Stanley Senior Funding, Inc. and its successors.
“Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which the Borrowers or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions.
“NAIC” means the National Association of Insurance Commissioners, a national organization of insurance regulators.
“Non-Guarantor Restricted Subsidiary” means any Restricted Subsidiary of the Company which is not a Loan Party.
“Non-Recourse Debt” means Indebtedness of a Person:
(1) as to which neither any Borrower nor any Restricted Subsidiary (a) provides any Guarantee or credit support of any kind (including any undertaking, Guarantee, indemnity, agreement or instrument that would constitute Indebtedness) or (b) is directly or indirectly liable (as a guarantor or otherwise); and
(2) no default with respect to which (including any rights that the holders thereof may have to take enforcement action against an Unrestricted Subsidiary) would permit (upon notice, lapse of time or both) any holder of any other Indebtedness of any Borrower or any Restricted Subsidiary to declare a default under such other Indebtedness or cause the payment thereof to be accelerated or payable prior to its Stated Maturity.
“Nonrenewal Notice Date” has the meaning set forth in Section 2.03(b)(iii).
“Non-Tenant Joinder Agreement” means a joinder agreement substantially in the form of Exhibit J-1 executed and delivered by a Domestic Restricted Subsidiary (other than a Tenant Subsidiary) in accordance with the provisions of Section 7.12.
“Non-Tenant Subsidiary Pledge Agreement” means the Pledge Agreement in the form of Exhibit B-1 dated as of the Original Closing Date executed in favor of the Collateral Agent by each of the Loan Parties (other than the Tenant Subsidiaries), as amended, modified, restated or supplemented from time to time.
“Non-Tenant Subsidiary Security Agreement” means the Security Agreement substantially in the form of Exhibit C-1 dated as of the Original Closing Date executed in favor of the Collateral Agent by each of the Loan Parties (other than any Tenant Subsidiaries), as amended, modified, restated or supplemented from time to time.
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“Non-Ventas Purchase Option ABL Loans” means the Loans outstanding after giving effect to the Ventas Purchase Option Assignment that are not Ventas Purchase Option ABL Loans.
“Notice of Intent to Cure” has the meaning set forth in Section 9.04(a).
“Noticed Hedge” means any Bank Product Debt arising under a Swap Contract with respect to which any Borrower and the Lender or its Affiliate providing such Bank Product Debt has notified the Administrative Agent of the intent to include such Bank Product Debt as a Noticed Hedge hereunder and with respect to which an ETMC Bank Product Reserve or a Legacy Bank Product Reserve has subsequently been established in the maximum amount thereof.
“Obligations” means (i) all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan or Letter of Credit, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding and (ii) any obligations of any Loan Party with respect to Bank Product Debt; provided, however, that for purposes of each guarantee or security agreement or other instrument or document executed and delivered pursuant to this Agreement or any other Loan Document by a Loan Party, the term “Obligations” shall not, as to any Guarantor, include any Excluded Swap Obligations.
“OIG” means the Office of Inspector General of HHS and any successor thereof.
“Ordinary Course of Business” means the ordinary course of business of Parent, any Borrower or Subsidiary, undertaken in good faith.
“Organization Documents” means (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.
“Original Closing Date” means June 28, 2018.
“Other Appointment and Resignation Documentation” has the meaning assigned to such term in the Amendment and Restatement Agreement.
“Other Taxes” has the meaning set forth in Section 3.01(b).
“Outstanding Amount” means (a) with respect to the Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of Loans (including any refinancing of outstanding Unreimbursed Amounts under Letters of
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Credit or L/C Credit Extensions as a Borrowing), Swing Line Loans and Protective Advances, as the case may be, occurring on such date; and (b) with respect to any L/C Obligations on any date, the outstanding amount thereof on such date after giving effect to any related L/C Credit Extension occurring on such date and any other changes thereto as of such date, including as a result of any reimbursements of outstanding Unreimbursed Amounts under related Letters of Credit (including any refinancing of outstanding Unreimbursed Amounts under related Letters of Credit or related L/C Credit Extensions as a Borrowing) or any reductions in the maximum amount available for drawing under related Letters of Credit taking effect on such date.
“PACE Financing” shall mean a financing secured by a real estate tax assessment on a property in accordance with state and local Laws.
“Parent” has the meaning set forth in the preamble hereto.
“Participant” has the meaning set forth in Section 11.07(d).
“Participant Register” has the meaning set forth in Section 11.07(d).
“Payment Conditions” means if: (A) no Default or Event of Default shall have occurred or be continuing,
(B) Availability is equal to or greater than the greater of (x) 20% of the Line Cap and (y) $3550.0 million (i) for each of the 30 days immediately prior to
making such Restricted Payment or Investment, as applicable, on a Pro Forma Basis giving effect to such Restricted Payment or Investment as if it were made on the first day of such 30-day period, and
(ii) immediately after giving effect thereto, and (C) if Availability is less than the greater of (x) 30.0% of the Line Cap and (y)
$52.575.0
million (i) for each of the 30 days immediately prior to making such Restricted Payment or Investment, as applicable, on a Pro Forma Basis giving effect to such Restricted Payment or Investment as
if it were made on the first day of such 30-day period, and (ii) immediately after giving effect thereto, the Fixed Charge Coverage Ratio, calculated on a trailing four-fiscal quarter basis for the most
recently ended fiscal quarter for which the relevant financial statements have been delivered to the Administrative Agent, is equal to or greater than 1.00 to 1.00 on a pro forma basis giving effect to the Restricted Payment or Investment, as
applicable, as if such Restricted Payment or Investment had been made on the first day of such measurement period.
“Patient” means any Person receiving Medical Services from a Loan Party and all Persons legally liable to pay a Loan Party for such Medical Services other than Insurers.
“PBGC” means the Pension Benefit Guaranty Corporation.
“Pension Plan” means any “employee pension benefit plan” (as such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and is sponsored or maintained by the Borrowers or any ERISA Affiliate or to which the Borrowers or any ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time during the immediately preceding five plan years.
“Permitted Acquisition” means, subject to Section 1.09(a), an Acquisition approved in writing by the Required Lenders in their sole discretion or (b) an Acquisition of at least a majority of the Voting Stock and the Capital Stock of a Person that becomes a Restricted Subsidiary or an Acquisition of a substantial portion of the Property of a Person by a Borrower or a Restricted Subsidiary; provided that solely with respect to clause (b), (i) the Property acquired (or the Property of the Person acquired) in such Acquisition is used or useful in the same or a substantially similar line of business (or complementary,
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supplemental or ancillary thereto) as the Loan Parties and their Subsidiaries, (ii) in the case of an Acquisition of the Capital Stock of another Person, the board of directors (or other comparable governing body) of such other Person shall have duly approved such Acquisition, (iv) immediately prior to and after giving effect to any such Acquisition, (x) no Event of Default shall have occurred and be continuing and (y) the Acquisition Conditions are met, (v) if the aggregate consideration for such Acquisition (including Earn-Out Obligations exceeding $10,000,000 in the aggregate, cash and non-cash consideration, any deferred capital expenditures and any assumption of liabilities, but excluding (A) any Equity Issuance made to the applicable seller as part of the purchase price, (B) any portion of the purchase price funded, directly or indirectly, with the proceeds of any Equity Issuance and (C) any purchase price and/or working capital adjustments) exceeds $10,000,000 in the aggregate, such Person’s operations, assets and property shall not be subject (directly or indirectly) to the ETMC JV Agreement and (vi) the acquired Person and its Subsidiaries and/or the entity that acquires such Property, as applicable, shall become Guarantors and pledge Collateral to the extent required pursuant to Section 7.12 and Section 7.14; provided further that the aggregate amount of Permitted Acquisitions of Non-Guarantor Restricted Subsidiaries and of entities that become ETMC Subsidiaries and Permitted Acquisitions by Non-Guarantor Restricted Subsidiaries or ETMC Subsidiaries, when taken together with the aggregate amount of Investments pursuant to Section 8.02(i) shall not exceed the greater of (x) $140,000,000 and (y) 30% of Consolidated EBITDA.
“Permitted Investments” means, at any time, Investments by the Borrowers and their Restricted Subsidiaries permitted to exist at such time pursuant to the terms of Section 8.02.
“Permitted IRB Transaction” means any transaction in which (x) a Governmental Authority issues industrial revenue bonds or other similar tax-exempt securities (the “Applicable Securities”) in connection with the financing of assets (the “Applicable Assets”) that would not otherwise qualify as Collateral (including any issuances in connection with financing the business acquired pursuant to the Topeka Acquisition) and (y) a Borrower or a Restricted Subsidiary purchases in cash (the “Applicable Cash”) such Applicable Securities; provided that (a) no Person other than a Borrower or a Restricted Subsidiary may hold such Applicable Securities or be entitled to exercise any rights or remedies with respect thereto, (b) no assets other than the Applicable Assets or the Applicable Cash may secure such Applicable Securities and (c) none of the Borrowers nor any Restricted Subsidiary may be an obligor with respect to such Applicable Securities.
“Permitted Liens” means, at any time, Liens in respect of Property of the Borrowers and their Restricted Subsidiaries permitted to exist at such time pursuant to the terms of Section 8.01.
“Permitted Merger” has the meaning set forth in Section 8.04.
“Permitted Sale Leaseback” means any Sale and Leaseback Transaction consummated by any Borrower or any Restricted Subsidiary after the Original Closing Date; provided that (a) no Default or Event of Default shall have occurred or be continuing or would result therefrom, (b) after giving pro forma effect thereto, the Senior Secured Net Leverage Ratio (calculated on a Pro Forma Basis) does not exceed 3.75:1.00, (c) no less than 75% of the aggregate consideration received in such Sale and Leaseback Transaction shall be in cash and Cash Equivalents, (d) the applicable Borrower or the applicable Restricted Subsidiary shall receive at least fair market value (as determined by the Borrowers in good faith) for any property disposed of in such Sale and Leaseback Transaction and (e) the assets subject to such Sale and Leaseback Transaction are assets of a type that would not constitute ABL Priority Collateral.
“Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.
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“Physician Groups” means MPV New Jersey MD Services, P.C., and any other similar professional corporation, limited liability company, partnership or other entity that provides or arranges medical services in a state that only permits the equity interests of such entity to be held by one or more licensed physicians or licensed professionals or professional entities.
“Physician Support Obligation” means:
(1) a loan to or on behalf of, or a Guarantee of Indebtedness of or income of, (x) a physician or healthcare professional providing service to patients in the service area of a Hospital operated by any Borrower or any Restricted Subsidiary or (y) any independent practice association or other entity that is majority owned by any Person or group of Persons described in clause (x), in either case made or given by any Borrower or any Restricted Subsidiary
(a) | in the ordinary course of its business; and |
(b) | pursuant to a written agreement having a period not to exceed five years; |
or
(2) Guarantees by any Borrower or any Restricted Subsidiary of leases and loans to acquire property (real or personal) for or on behalf of a physician, healthcare professional or any independent practice association or other entity that is majority owned by any Person or group of Persons described in clause (x) above providing service to patients in the service area of a Hospital operated by any Borrower or any Restricted Subsidiary.
“Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of ERISA) established or maintained by the Borrowers.
“Platform” has the meaning specified in Section 7.02.
“Pledge Agreements” means the Tenant Subsidiary Pledge Agreement and the Non-Tenant Subsidiary Pledge Agreement.
“Pledged ETMC Distribution Account” has the meaning specified in Section 8.16.
“Prepayment Notice” means a notice by any Borrower to prepay Loans, which shall be substantially in the form of Exhibit L (or such other form as the Administrative Agent may approve).
“Privacy Standards” has the meaning specified in Section 7.08.
“Pro Forma Basis” means, for all purposes hereof, that any Disposition, Involuntary Disposition or Acquisition, any Approved Hospital Swap and the incurrence of any Loan or any Subordinated Indebtedness shall be deemed to have occurred as of the first day of the most recent four fiscal quarter period in respect of which financial statements have been delivered (or are already required to have been delivered) hereunder preceding the date of such transaction or incurrence. In connection with the foregoing, (a) with respect to any Disposition or Involuntary Disposition, (i) income statement and cash flow statement items (whether positive or negative) attributable to the Property disposed of shall be excluded to the extent relating to any period occurring prior to the date of such transaction and (ii) Indebtedness which is retired shall be excluded and deemed to have been retired as of the first day of the applicable period and (b) with respect to any Acquisition, (i) income statement items attributable to the Person or Property acquired shall be included to the extent relating to any period applicable in such calculations to the extent (A) such items are not otherwise included in such income statement items for
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the Borrowers and their Subsidiaries in accordance with GAAP or in accordance with any defined terms set forth in Section 1.01 and (B) such items are supported by financial statements or other information reasonably satisfactory to the Administrative Agent and (ii) any Indebtedness incurred or assumed by any Borrower or any Subsidiary (including the Person or Property acquired) in connection with such transaction and any Indebtedness of the Person or Property acquired which is not retired in connection with such transaction (A) shall be deemed to have been incurred as of the first day of the applicable period and (B) if such Indebtedness has a floating or formula rate, shall have an implied rate of interest for the applicable period for purposes of this definition determined by utilizing the rate which is or would be in effect with respect to such Indebtedness as at the relevant date of determination. Furthermore, pro forma calculations of Consolidated EBITDA shall not give effect to anticipated cost savings, synergies, operating expense reductions and/or increases to Consolidated EBITDA for the applicable period, except in cases where factually supportable and identifiable pro forma cost savings and/or increases to Consolidated EBITDA for the applicable period with respect to an Acquisition (in each case reasonably expected to occur within 24 months of the respective date of such Acquisition) that are attributable to such Acquisition are demonstrated in writing by the Administrative Borrower (with supporting calculations) to the Administrative Agent at the time of the relevant Acquisition; provided, further, that the add backs for cost savings and/or increases to Consolidated EBITDA for any applicable period for all Acquisitions (other than the ETMC Acquisition and the Topeka Acquisition) shall not, without the written consent of the Required Lenders, exceed twenty-five percent (25%) of Consolidated EBITDA prior giving effect to such Acquisition for the applicable period.
“Property” means any interest of any kind in any property or asset, whether real, personal or mixed, or tangible or intangible.
“Protective Advances” has the meaning set forth in Section 2.16(a).
“PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
“Public Equity Offering” means an underwritten public offering of common stock of and by the Parent (or any parent thereof) or any Borrower pursuant to a registration statement filed with the SEC in accordance with the Securities Act, which yields not less than $50,000,000 in net cash proceeds to the Parent (or any parent thereof) or any Borrower, as applicable.
“Public Lender” has the meaning set forth in Section 7.02.
“QFC” has the meaning set forth in Section 11.23.
“QFC Credit Support” has the meaning set forth in Section 11.23.
“Qualified Capital Stock” means any Capital Stock that is not Disqualified Capital Stock.
“Qualified ECP Guarantor” means, at any time, each Loan Party with total assets exceeding $10,000,000 or that qualifies at such time as an “eligible contract participant” under the Commodity Exchange Act and can cause another person to qualify as an “eligible contract participant” at such time under §1a(18)(A)(v)(II) of the Commodity Exchange Act.
“Ratable Share” has the meaning set forth in Section 4.06.
“Real Property” means, collectively, all right, title and interest (including any leasehold, mineral or other estate) in and to any and all parcels of or interests in real property owned, leased or occupied by
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any Person, whether by lease, license or other means, together with, in each case, all easements, hereditaments and appurtenances relating thereto, all improvements and appurtenant fixtures and equipment, all general intangibles and contract rights and other property and rights incidental to the ownership, lease or operation thereof.
“Receivables Subsidiary” means any special purpose Wholly Owned Subsidiary of any Borrower (i) that acquires accounts receivable generated by any Borrower or any of its Subsidiaries, (ii) that engages in no operations or activities other than those related to a Securitization Transaction and (iii) except pursuant to Standard Securitization Undertakings, (x) no portion of the obligations (contingent or otherwise) of which is recourse to or obligates any Borrower or any of its Restricted Subsidiaries in any way, and (y) with which neither any Borrower nor any of its Restricted Subsidiaries has any contract, agreement, arrangement or understanding other than on terms no less favorable to such Borrower or such Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates of the Borrowers.
“Recipient” means the Administrative Agent, any Lender, any L/C Issuer or any other recipient of any payment to be made by or on account of any obligation of any Loan Party hereunder.
“Redeemable Stock” has the meaning set forth in clause (h) of the definition of “Funded Indebtedness.”
“Refinancing Intercreditor Agreement” means an intercreditor agreement among, inter alia, the Collateral Agent, the Administrative Agent and one or more representatives for holders of the Term Loan Facility in form and substance reasonably acceptable to the Collateral Agent, as such intercreditor agreement may be amended, modified or supplemented from time to time in accordance with the terms hereof and thereof. The Refinancing Intercreditor Agreement shall be substantially consistent with the Intercreditor Agreement (but which may give effect to modifications determined by the Collateral Agent to be reasonably consistent with then current market practices and customs) and otherwise reasonably the Administrative Agent satisfactory to the Collateral Agent and the Administrative Agent and the Borrowers.
“Register” has the meaning set forth in Section 11.07(c).
“Relative Rights Agreement” means that certain relative rights agreement substantially in the form of Exhibit R hereto, dated as of the Original Closing Date, among, inter alia, the Administrative Agent, the Collateral Agent, the Term Loan Administrative Agent, the Indenture Trustee and LeaseCo, setting out the relative rights and privileges of the Administrative Agent, the Collateral Agent, the Term Loan Administrative Agent, the Indenture Trustee and LeaseCo with respect to certain rights and remedies in respect of the permitted Creditor Obligations (as defined therein) and the Lease Obligations (as defined therein), as amended, restated, supplemented or otherwise modified from time to time.
“Relevant Governmental Body” means the FRB or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the FRB or the Federal Reserve Bank of New York, or any successor thereto.
“Remaining Present Value” means, as of any date with respect to any lease, the present value as of such date of the scheduled future lease payments with respect to such lease, determined with a discount rate equal to a market rate of interest for such lease reasonably determined at the time such lease was entered into.
“Replacement Lender” has the meaning set forth in Section 11.16.
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“Report” has the meaning set forth in Section 10.11(c).
“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA or the regulations issued thereunder, other than events for which the thirty-day notice period has been waived.
“Reporting Trigger Event” means any date when (x) an Event of Default exists or (y) Availability is less than the
greater of (i) 12.5% of the Line Cap as of such date and (ii)
$20.029.0 million for three (3) consecutive calendar days.
“Reporting Trigger
Period” means any period beginning on any Reporting Trigger Event and continuing until the date on which (x) Availability is not less than the greater of (i) 12.5% of the Line Cap as of such date and (ii) $20.029.0 million and (y) no Event of Default shall have existed at any time during the thirty (30) consecutive calendar days prior to such date.
“Request for Credit Extension” means (a) with respect to a Borrowing, conversion or continuation of Loans, a Loan Notice, (b) with respect to an L/C Credit Extension, a Letter of Credit Application, and (c) with respect to a Swing Line Loan, a Swing Line Loan Notice.
“Required ETMC Lenders” means, at any time, ETMC Lenders holding in the aggregate more than fifty percent (50%) of the sum of the (a) Total ETMC Outstandings (with the aggregate outstanding amount of each ETMC Lender’s risk participation and funded participation in Protective Advances and Swing Line Loans made to ETMC Borrowers being deemed “held” by such ETMC Lender for purposes of this definition) and (b) aggregate unused ETMC Commitments under the ETMC Credit Facility; provided that the unused ETMC Commitments of, and the portion of the Total ETMC Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required ETMC Lenders.
“Required Legacy Lenders” means, at any time, Legacy Lenders holding in the aggregate more than fifty percent (50%) of the sum of the (a) Total Legacy Outstandings (with the aggregate outstanding amount of each Legacy Lender’s risk participation and funded participation in L/C Obligations, Protective Advances and Swing Line Loans made to Legacy Borrowers being deemed “held” by such Legacy Lender for purposes of this definition) and (b) aggregate unused Legacy Commitments under the Legacy Credit Facility; provided that the unused Legacy Commitments of, and the portion of the Total Legacy Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Legacy Lenders; provided, further, that, at any time when there are two (2) or more unaffiliated Legacy Lenders, Required Legacy Lenders must include at least two (2) unaffiliated Legacy Lenders. For purposes of determining the number of unaffiliated Legacy Lenders under this definition, a Legacy Lender and any other Legacy Lenders that are Affiliates or Approved Funds of such Legacy Lenders shall be counted as a single Legacy Lender.
“Required Lenders” means, at any time, Lenders holding in the aggregate more than fifty percent (50%) of the sum of the (a) Total Outstandings (with the aggregate outstanding amount of each Lender’s risk participation and funded participation in L/C Obligations, Protective Advances and Swing Line Loans being deemed “held” by such Lender for purposes of this definition) and (b) aggregate unused Commitments under the Revolving Credit Facilities; provided that the unused Commitments of, and the portion of the Total Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders; provided, further, that, at any time when there are two (2) or more unaffiliated Lenders, Required Lenders must include at least two (2) unaffiliated Lenders. For purposes of determining the number of unaffiliated Lenders under this definition, a Lender and any other Lenders that are Affiliates or Approved Funds of such Lenders shall be counted as a single Lender.
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“Required Payment Intercompany Note” means that certain amended and restated promissory note, dated as of June 28, 2018, made by AHS East Texas in favor of AHS Legacy Operations, LLC in an initial aggregate principal amount equal to $205,000,000, as amended, restated, supplemented or modified from time to time.
“Rescindable Amount” has the meaning specified in Section 2.12(d)(i).
“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Responsible Officer” means the chief executive officer, president, chief financial officer, chief operating officer, controller, senior vice president, vice president or treasurer of a Loan Party and, solely for purposes of notices given pursuant to Article II, any other officer or employee of the applicable Loan Party so designated by any of the foregoing officers in a notice to the Administrative Agent or any other officer or employee of the applicable Loan Party designated in or pursuant to an agreement between the applicable Loan Party and the Administrative Agent. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.
“Restricted Payment” means any dividend or other distribution (whether in cash, securities or other property) with respect to any Capital Stock of the Parent, the Borrowers or any Restricted Subsidiary, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such Capital Stock or of any option, warrant or other right to acquire any such Capital Stock.
“Restricted Subsidiary” means any Subsidiary of the Company other than an Unrestricted Subsidiary. The ETMC JV shall be considered a Restricted Subsidiary for all purposes of this Agreement and the other Loan Documents.
“Revolving Commitment Increase” has the meaning set forth in Section 2.14(a).
“Revolving Commitment Increase Notice” has the meaning set forth in Section 2.14(b).
“Revolving Credit Borrowing” a Legacy Revolving Credit Borrowing or an ETMC Revolving Credit Borrowing, as applicable.
“Revolving Credit Facility” means the Legacy Credit Facility or the ETMC Credit Facility, as applicable. For the avoidance of doubt, any Ventas Purchase Option ABL Loans shall not comprise a Revolving Credit Facility.
“Revolving Credit Note” has the meaning specified in Section 2.11(a).
“S&P” means Standard & Poor’s Ratings Services, a Standard & Poor’s Financial Services LLC business.
“Sale and Leaseback Transaction” means, with respect to a Borrower or any Restricted Subsidiary, any arrangement, directly or indirectly, with any person whereby such Borrower or such Restricted Subsidiary shall sell or transfer any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rent or lease such property or other property that it intends to use for substantially the same purpose or purposes as the property being sold or transferred.
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“Scheduled Unavailability Date” has the meaning specified in Section 3.03(b).
“SEC” means the Securities and Exchange Commission or any Governmental Authority succeeding to any of its principal functions.
“Secured Parties” means the Administrative Agent, the Collateral Agent, L/C Issuers, Lenders and providers of Bank Products.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Securitization Transaction” means any transaction or series of transactions that may be entered into by any Borrower or any Restricted Subsidiary pursuant to which any Borrower or any Restricted Subsidiary may sell, convey or otherwise transfer pursuant to customary terms to a Receivables Subsidiary or any other Person or grant a security interest in, any accounts receivable (whether now existing or arising in the future) of any Borrower or any of its Restricted Subsidiaries, and any assets related thereto, including all collateral securing such accounts receivable, all contracts and all guarantees or other obligations in respect of such accounts receivable, all proceeds of such accounts receivable and other assets that are customarily transferred or in respect of which security interests are customarily granted in connection with sales, factoring or securitization transactions involving accounts receivable; provided that no portion of the obligations (contingent or otherwise) is recourse to or obligates any Borrower or any of its Restricted Subsidiaries in any way other than pursuant to the Standard Securitization Undertakings.
“Security Agreements” means, collectively, the Tenant Subsidiary Security Agreement and the Non-Tenant Subsidiary Security Agreement.
“Security Standards” has the meaning set forth in Section 7.08.
“Self-Pay Account” means any Account for which a Third Party Payor is not the Account Debtor other than Accounts for which the Account Debtor is a credit card or debit card company or processor.
“Senior Secured Net Leverage Ratio” means, as of any date of determination, the ratio of (a) the sum of (i) Consolidated Indebtedness that is secured by a Lien on any property or assets of the Company or any of its Restricted Subsidiaries as of such date minus (ii) unrestricted cash and Cash Equivalents held by the Company and its Restricted Subsidiaries on such date (provided that any cash or Cash Equivalents in (x) the LHP Cash Management Transfer System or (y) that is held by an ETMC Subsidiary that are not in the Pledged ETMC Distribution Account or, in each case, a Controlled Account shall be deemed to be restricted cash) to (b) Consolidated EBITDA for the period of the four fiscal quarters most recently ended.
“Significant Subsidiary” means any Restricted Subsidiary that would be a “Significant Subsidiary” of the Company within the meaning of Rule 1-02 under Regulation S-X promulgated by the U.S. Securities and Exchange Commission, as in effect on the Effective Date.
“Similar Business” means any business conducted or proposed to be conducted by the Company and its Restricted Subsidiaries on the Effective Date or any business that is similar, reasonably related, incidental, complementary or ancillary thereto, or that constitutes a reasonable extension or expansion thereof.
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“SOFR” means the Secured Overnight Financing Rate as administered by the Federal Reserve Bank of New York (or a successor administrator).
“SOFR Adjustment” means 0.10% (10 basis points).
“Solvent” or “Solvency” means, with respect to any Person as of a particular date, that on such date (a) such Person is able to pay its debts and other liabilities, contingent obligations and other commitments as they mature in the ordinary course of business, (b) 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, (c) 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, (d) the fair value measured on a going concern basis of the Property of such Person is greater than the total amount of liabilities, including, without limitation, contingent liabilities, of such Person and (e) the present fair salable value measured on a going concern basis 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.
“Specified Loan Party” means any Loan Party that is not an “eligible contract participant” under the Commodity Exchange Act (determined prior to giving effect to Section 4.08).
“Specified SPV” means any bankruptcy remote single purpose vehicle which holds as its sole asset 100% of the equity interests and other Investments in the owners of equity interests in Joint Ventures.
“Sponsor” means EGI-AM Investments, L.L.C. and any Affiliate thereof.
“Sponsor Fees” means the fees payable by the Parent or any of the Restricted Subsidiaries of the Parent to the Sponsor or any Affiliate of the Sponsor pursuant to a management or services agreement approved by the board of directors of the Parent or any Restricted Subsidiary of the Parent, in each case, to the extent such fees are for services provided to Parent and its Restricted Subsidiaries.
“Sponsor Group” means the collective reference to (i) the Sponsors and (ii) any other Person that directly or indirectly, is in control of, is controlled by, or is under common control with, the Sponsor (other than portfolio companies). For purposes of this definition, “control” of a Person means the power, directly or indirectly, to direct or cause the direction of the management and policies of such Person whether by contract or otherwise.
“Springing Maturity Date” has the meaning set forth in the definition of “Maturity Date”.
“ Standard Securitization Undertakings” means all representations, warranties, covenants and indemnities entered into by any Borrower or any Restricted Subsidiary which are customary in securitization transactions involving accounts receivable.
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“Stated Maturity” means, with respect to any security, the date specified in the agreement governing or certificate relating to such Indebtedness as the fixed date on which the final payment of principal of such security is due and payable, including pursuant to any mandatory redemption provision, but shall not include any contingent obligations to repay, redeem or repurchase any such principal prior to the date originally scheduled for the payment thereof.
“Subordinated Indebtedness” means any unsecured Indebtedness of any Borrower or any Restricted Subsidiary which by its terms is expressly subordinated in right of payment to the prior payment of the Obligations under this Agreement and the other Loan Documents; provided that (i) no Default or Event of Default shall have occurred and be continuing immediately prior to or after giving effect to such issuance, (ii) the definitive documentation (including without limitation the subordination provisions) for such Subordinated Indebtedness shall be not more restrictive, taken as a whole, than this Agreement, (iii) such Subordinated Indebtedness shall mature after the date that is ninety (90) days after the Maturity Date applicable to Loans, (iv) such Subordinated Indebtedness shall contain no interim amortization or prepayment events (other than customary change of control or asset sale events) and (v) such Subordinated Indebtedness shall contain no financial maintenance covenants. For the avoidance of doubt, Subordinated Indebtedness shall not include any intercompany Indebtedness among the Loan Parties.
“Subordinated Indebtedness Documents” means all agreements, documents and instruments evidencing or governing any Subordinated Indebtedness, as such Subordinated Indebtedness Documents may be amended, restated, supplemented or modified from time to time in accordance with the terms hereof.
“Subsequent Transaction” has the meaning specified in Section 1.09.
“Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of Capital Stock having ordinary voting power for the election of directors or other governing body (other than Capital Stock having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person; provided, however, that the Physician Groups are not owned or controlled by the Loan Parties and shall not be deemed Subsidiaries or Restricted Subsidiaries of the Loan Parties for any purpose under the Loan Documents (although the Physician Groups are not Subsidiaries of the Loan Parties, if the Loan Parties manage the non-clinical aspects of a Physician Group, the terms and conditions of Articles III, VII, VIII and IX hereof will apply as if the Physicians Groups were Non-Guarantor Restricted Subsidiaries), except that such entities may be included in any Loan Party’s or Parent’s consolidated financial statements. Unless the context requires otherwise, a “Subsidiary” shall be deemed to be a Subsidiary of the Borrowers. The ETMC JV shall be considered a Subsidiary for all purposes of this Agreement and the other Loan Documents.
“Subsidiary Redesignation” shall have the meaning assigned to such term in the definition of “Unrestricted Subsidiary” contained in this Section 1.01.
“Successor Agency Agreement” has the meaning assigned to such term in the Amendment and Restatement Agreement.
“Successor Rate” has the meaning specified in Section 3.03(b).
“Supermajority ETMC Lenders” means, as of any date of determination, ETMC Lenders having more than 662⁄3% of the sum of the (a) Total ETMC Outstandings (with the aggregate outstanding amount
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of each ETMC Lender’s risk participation and funded participation in Protective Advances made to ETMC Borrowers and Swing Line Loans made to ETMC Borrowers being deemed “held” by such ETMC Lender for purposes of this definition) and (b) aggregate unused ETMC Commitments; provided that the unused ETMC Commitment of, and the portion of the Total ETMC Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Supermajority ETMC Lenders.
“Supermajority Legacy Lenders” means, as of any date of determination, Legacy Lenders having more than 662⁄3% of the sum of the (a) Total Legacy Outstandings (with the aggregate outstanding amount of each Legacy Lender’s risk participation and funded participation in L/C Obligations, Protective Advances made to Legacy Borrowers and Swing Line Loans made to Legacy Borrowers being deemed “held” by such Legacy Lender for purposes of this definition) and (b) aggregate unused Legacy Commitments; provided that the unused Legacy Commitment of, and the portion of the Total Legacy Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Supermajority Legacy Lenders; provided, further, that, at any time when there are two (2) or more unaffiliated Legacy Lenders, Supermajority Legacy Lenders must include at least two (2) unaffiliated Legacy Lenders. For purposes of determining the number of unaffiliated Legacy Lenders under this definition, a Legacy Lender and any other Legacy Lenders that are Affiliates or Approved Funds of such Legacy Lenders shall be counted as a single Legacy Lender.
“Supported QFC” has the meaning set forth in Section 11.23.
“Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.
“Swap Obligations” means with respect to any Guarantor any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.
“Swap Termination Value” means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts (which may include a Lender or any Affiliate of a Lender).
“Swing Line Borrowing” means a borrowing of a Swing Line Loan pursuant to Section 2.04.
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“Swing Line Lender” means Bank of America, in its capacity as provider of Swing Line Loans, or any successor swing line lender hereunder.
“Swing Line Loan” has the meaning specified in Section 2.04(a).
“Swing Line Loan Notice” means a notice of a Swing Line Borrowing pursuant to Section 2.04(b), which, if in writing, shall be substantially in the form of Exhibit E or another form which is reasonably satisfactory to the Administrative Agent.
“Swing Line Obligations” means, as at any date of determination, the aggregate principal amount of all Swing Line Loans outstanding.
“Swing Line Sublimit” means an amount equal to the lesser of (a) $25,000,000 and (b) the aggregate principal amount of the Commitments. The Swing Line Sublimit is part of, and not in addition to, the Commitments.
“Synthetic Lease” means any synthetic lease, tax retention operating lease, off-balance sheet loan or similar off-balance sheet financing arrangement whereby the arrangement is considered borrowed money indebtedness for tax purposes but is classified as an operating lease or does not otherwise appear on the balance sheet under GAAP.
“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings, assessments, fees or other charges imposed by any Governmental Authority, and all liabilities with respect thereto (including any interest, fines, additions to tax or penalties).
“Tax Group” has the meaning set forth in Section 8.06(d).
“Tenant Joinder Agreement” means a joinder agreement substantially in the form of Exhibit J-2 executed and delivered by a Domestic Restricted Subsidiary that is a Tenant Subsidiary in accordance with the provisions of Section 7.12.
“Tenant Subsidiaries” means, collectively, those Subsidiaries of Parent that are “Tenants” as defined in the Master Lease as in effect on the Original Closing Date and any other Subsidiaries of Parent that become Tenants under the Master Lease and the Subsidiaries of such “Tenants”. For the avoidance of doubt, no Loan Party (whether existing on the Original Closing Date or formed or acquired after the Original Closing Date) may be subsequently designated as a Tenant Subsidiary hereunder.
“Tenant Subsidiary Guarantee Assignment” has the meaning set forth in Section 4.09.
“Tenant Subsidiary Pledge Agreement” means the Pledge Agreement in the form of Exhibit B-2 dated as of the Original Closing Date executed in favor of the Collateral Agent by each of the Tenant Subsidiaries that is a Loan Party and each Loan Party that is a direct parent of a Tenant Subsidiary, as amended, modified, restated or supplemented from time to time.
“Tenant Subsidiary Security Agreement” means the Security Agreement substantially in the form of Exhibit C-2 dated as of the Original Closing Date executed in favor of the Collateral Agent by each of the Tenant Subsidiaries that is a Loan Party, as amended, modified, restated or supplemented from time to time.
“Term Loan Administrative Agent” means Barclays, in its capacity as administrative agent under the Term Loan Documents (or any successor or replacement “Administrative Agent” thereunder).
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“Term Loan Credit Agreement” means (i) that certain term loan credit agreement, dated as of the Amendment No. 1 Effective Date, among the Company, Parent, certain Subsidiaries of the Company as guarantors, the lenders party thereto and Barclays, as administrative agent, as amended, restated, supplemented or modified from time to time to the extent permitted by the Intercreditor Agreement, and (ii) any other credit agreement, promissory note, indenture or other agreement or instrument evidencing or governing the terms of any Indebtedness or other financial accommodation that has been incurred to extend (subject to the limitations set forth in the Intercreditor Agreement), replace, restructure, renew or refinance in whole or in part the Indebtedness and other obligations outstanding under (x) the credit agreement referred to in clause (i) or (y) any subsequent Term Loan Credit Agreement, unless such agreement or instrument expressly provides that it is not intended to be and is not a Term Loan Credit Agreement hereunder. Any reference to the Term Loan Credit Agreement hereunder shall be deemed a reference to any Term Loan Credit Agreement then in existence.
“Term Loan Documents” means the Term Loan Credit Agreement and the other Loan Documents or any similar term (as defined in the Term Loan Credit Agreement), including each mortgage and other security documents, guaranties and the notes issued thereunder.
“Term Loan Facility” means the senior secured term loan facility under the Term Loan Credit Agreement or any amendment, supplement, modification, substitution, replacement, restatement or refinancing thereof, in whole or in part, from time to time, including in connection with a “Refinancing” (as defined in the Intercreditor Agreement) of the Term Loan Credit Agreement.
“Term Loan Facility Springing
Maturity Date” has the meaning set forth in the definition of “Maturity Date”.
“Term Priority Collateral” has the meaning set forth in the Intercreditor Agreement.
“Term SOFR” means, (a) for any Interest Period with respect to a Term SOFR Loan, the rate per annum equal to the Term SOFR Screen Rate two U.S. Government Securities Business Days prior to the commencement of such Interest Period with a term equivalent to such Interest Period; provided that if the rate is not published prior to 11:00 a.m. on such determination date then Term SOFR means the Term SOFR Screen Rate on the first U.S. Government Securities Business Day immediately prior thereto, in each case, plus the SOFR Adjustment for such Interest Period and (b) for any interest calculation with respect to a Base Rate Loan on any date, the rate per annum equal to the Term SOFR Screen Rate with a term of one month commencing that day; provided that if the Term SOFR determined in accordance with either of the foregoing provisions (a) or (b) of this definition would otherwise be less than zero, the Term SOFR shall be deemed zero for purposes of this Agreement.
“Term SOFR Loan” means a Loan that bears interest at a rate based on clause (a) of the definition of Term SOFR.
“Term SOFR Screen Rate” means the forward-looking SOFR term rate administered by CME (or any successor administrator satisfactory to the Administrative Agent) and published on the applicable Reuters screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time).
“Term SOFR Replacement Date” has the meaning specified in Section 3.03(b).
“Third Party Payor” means any Governmental Authority, insurance company, health maintenance organization, preferred provider organization or similar entity that is obligated to make payments with respect to an Account.
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“Threshold Amount” means $60,000,000.
“Topeka Acquisition” means the acquisition by Topeka Health System, LLC of substantially all of the assets used in the operation of (i) St. Francis Health Center, Inc., (ii) St. Francis Physician Clinics, (iii) St. Francis Accountable Health Network, Inc., and (iv) an operating division of Med-Care of Kansas, Inc., doing business as Integrated Nuclear Enterprises.
“Total ETMC Outstandings” means the aggregate Outstanding Amount of all ETMC Revolving Loans and all Swing Line Loans made to ETMC Borrowers.
“Total Legacy Outstandings” means the aggregate Outstanding Amount of all Legacy Revolving Loans, all Swing Line Loans made to Legacy Borrowers and all L/C Obligations.
“Total Outstandings” means the sum of the Total ETMC Outstandings and the Total Legacy Outstandings.
“Transaction” means, collectively, (a) the entry into and performance of the Relative Rights Agreement, (b) the entry into and funding under this Agreement, the Term Loan Credit Agreement and the 2026 Notes Indenture, (c) the repayment of the existing indebtedness of the Company and its Subsidiaries and (d) the payment of related fees and expenses.
“TRICARE” means the United States Department of Defense health care program for service families including, but not limited to, TRICARE Prime, TRICARE Extra and TRICARE Standard, and any successor to or predecessor thereof (including, without limitation, CHAMPUS).
“TRICARE Account” means an Account payable pursuant to TRICARE.
“Triggering Event” has the meaning ascribed to such term in the Relative Rights Agreement as in effect on the Original Closing Date.
“Type” means, with respect to any Loan, its character as a Base Rate Loan or a Term SOFR Loan.
“U.S. Special Resolution Regimes” has the meaning set forth in Section 11.23.
“UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person subject to IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
“UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“Unaudited Financial Statements” means the consolidated unaudited financial statements of Parent and its Subsidiaries for the fiscal quarter ending March 31, 2021.
“Unfunded Pension Liability” means the excess of a Pension Plan’s benefit liabilities under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets, determined in accordance with the assumptions used for funding the Pension Plan pursuant to Section 412 of the Internal Revenue Code for the applicable plan year.
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“Uniform Commercial Code” means the Uniform Commercial Code as in effect from time to time in the State of New York.
“United States” and “U.S.” mean the United States of America.
“United States Tax Compliance Certificate” has the meaning set forth in Section 3.01(e)(ii)(III).
“Unreimbursed Amount” has the meaning set forth in Section 2.03(c)(i).
“Unrestricted Subsidiary” means (1) any Subsidiary of the Company identified as an Unrestricted Subsidiary on Schedule 6.13, (2) any other Subsidiary of the Company, whether now owned or acquired or created after the Effective Date, that is designated by the Company as an Unrestricted Subsidiary hereunder by written notice to the Administrative Agent; provided, that the ETMC JV may not be designated as an Unrestricted Subsidiary, provided further that the Company shall only be permitted to so designate a new Unrestricted Subsidiary after the Effective Date so long as (a) no Default or Event of Default has occurred and is continuing or would result therefrom, (b) immediately after giving effect to such designation, the Fixed Charge Coverage Ratio shall not be less than 2.00:1.00, (c) such Subsidiary or any of its Subsidiaries has not Guaranteed any Capital Stock or Indebtedness of or have any Investment in, the Company or any Restricted Subsidiary and does not hold any Liens on any property or assets of the Company or any Restricted Subsidiary, (d) all the Indebtedness of such Subsidiary and its Subsidiaries shall, at the date of designation, and will for so long as it is an Unrestricted Subsidiary, consist of Non-Recourse Debt, (e) the aggregate fair market value of all outstanding Investments of the Company and its Restricted Subsidiaries in such Subsidiary complies with Section 8.02 and Section 8.06, (f) such Subsidiary is a Person with respect to which neither the Company nor any of its Restricted Subsidiaries has any direct or indirect obligation to maintain or preserve such Person’s financial condition or to cause such Person to achieve any specified levels of operating results, (g) except as permitted by Section 8.08, on the date such Subsidiary is designated an Unrestricted Subsidiary, such Subsidiary is not a party to any agreement, contract, arrangement or understanding with the Company or any Restricted Subsidiary with terms substantially less favorable to the Company or such Restricted Subsidiary, when taken as a whole, than those that would have been obtained from Persons who are not Affiliates of the Company, (h) if immediately prior to such designation, such Subsidiary is a Borrower whose assets, together with the assets of any Subsidiary thereof, contributed greater than $10,000,000 to the Legacy Borrowing Base or the ETMC Borrowing Base, as applicable, as of the most recent Borrowing Base Certificate delivered pursuant to Section 7.02, the Administrative Borrower shall have delivered an updated Borrowing Base Certificate to the Administrative Agent (calculated to exclude the assets of such Subsidiary and any Subsidiary thereof from the Legacy Borrowing Base or the ETMC Borrowing Base, as applicable), which shall reflect that at such time, or concurrently with such designation, (x) the aggregate outstanding amount of all Total Outstandings does not exceed the Line Cap, (y) the aggregate outstanding amount of all Total Legacy Outstandings does not exceed the Legacy Line Cap and (z) the aggregate outstanding amount of all Total ETMC Outstandings does not exceed the ETMC Line Cap, and (i) the Company shall have delivered to the Administrative Agent a certificate executed by a Responsible Officer of the Company, certifying compliance with the requirements of preceding clauses (a) through (h) and (3) any Subsidiary of an Unrestricted Subsidiary. The Company may designate or redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary for purposes of this Agreement (each, a “Subsidiary Redesignation”); provided, that other than with respect to any Tenant Subsidiary after the Ventas Purchase Option Assignment (i) no Default or Event of Default has occurred and is continuing or would result therefrom, (ii) immediately after giving effect to such designation, the Fixed Charge Coverage Ratio shall not be less than 2.00:1.00 and (iii) the Company shall have delivered to the Administrative Agents an officer’s certificate executed by a Responsible Officer of the Company, certifying to the best of such officer’s knowledge, compliance with the requirement of preceding clauses (i) and (ii); provided, further, that other than with respect to any Tenant Subsidiary
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after the Ventas Purchase Option Assignment, no Unrestricted Subsidiary that has been designated as a Restricted Subsidiary pursuant to a Subsidiary Redesignation may again be designated as an Unrestricted Subsidiary; provided further, that after the Ventas Purchase Option Assignment, no Tenant Subsidiary shall be designated as an Unrestricted Subsidiary for purposes of the separate loan documentation documenting the Ventas Purchase Option ABL Loans pursuant to Section 2.17(b)(3). The designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute the incurrence at the time of designation of any Investment, Indebtedness or Liens of such Subsidiary existing at such time.
“U.S. Government Securities Business Day” means any Business Day, except any Business Day on which any of the Securities Industry and Financial Markets Association, the New York Stock Exchange or the Federal Reserve Bank of New York is not open for business because such day is a legal holiday under the federal laws of the United States or the laws of the State of New York, as applicable.
“UT Tyler” means The University of Texas Health Science Center at Tyler.
“UT Tyler Properties” means those properties of UT Tyler subject to the ETMC JV Agreement.
“Value” means the face amount of an Account, net of any returns, rebates, discounts (calculated on the shortest terms), credits, contractual allowances or other allowances, capitation or Taxes (including sales, excise or other taxes) that have been or could be claimed by the Account Debtor or any other Person. Notwithstanding anything to the contrary contained herein or in any other Loan Document, the maximum deductions for credits shall not exceed 25% of the aggregate amount of all such credits.
“Ventas” means Ventas, Inc., a Delaware corporation.
“Ventas Asset Purchase” means the consummation of the transactions contemplated by Section 2.3 of the Relative Rights Agreement (as in effect on the Original Closing Date), including the exercise and consummation of the “Landlord Asset Purchase Option” (as defined in the Relative Rights Agreement as in effect on the Original Closing Date).
“Ventas Assignees” shall have the meaning ascribed to such term in Section 2.17(a).
“Ventas Purchase Option” means the consummation of the transactions contemplated by Section 2.6 of the Relative Rights Agreement (as in effect on the Original Closing Date).
“Ventas Purchase Option ABL Loan Agent” means an institution appointed by the Ventas Assignee to act as administrative agent and collateral agent with respect to the Ventas Purchase Option ABL Loans.
“Ventas Purchase Option Amendment” has the meaning ascribed to such term in Section 2.17(c).
“Ventas Purchase Option Assignment” has the meaning ascribed to such term in Section 2.17(a).
“Ventas Purchase Option Term Loans” has the meaning ascribed to such term in Section 8.03(p).
“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; provided, however, that Voting Stock shall not include any preferred class of Capital Stock of any Person solely by reason of the right of such class to elect one or more members of the board of directors (or similar governing body) of such Person, unless such class is generally entitled to vote on any matter submitted to the holders of common classes of Capital Stock.
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“Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by dividing: (a) the sum of the products obtained by multiplying (i) the amount of each then remaining installments, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (ii) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (b) the then outstanding principal amount of such Indebtedness.
“Wholly Owned Domestic Subsidiary” means any Wholly Owned Subsidiary that is a Domestic Subsidiary.
“Wholly Owned Subsidiary” means any Person 100% of whose Capital Stock (other than directors’ qualifying shares) is at the time owned by any Borrower directly or indirectly through other Persons 100% of whose Capital Stock is at the time owned, directly or indirectly, by any Borrower.
“Working Capital Intercompany Loans” has the meaning set forth in Section 8.02(ee).
“Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
1.02 | Other Interpretive Provisions |
With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:
(a) The meanings of defined terms are equally applicable to the singular and plural forms of the defined terms.
(b) (i) The words “herein,” “hereto,” “hereof” and “hereunder” and words of similar import when used in any Loan Document shall refer to such Loan Document as a whole and not to any particular provision thereof.
(ii) Article, Section, Exhibit and Schedule references are to the Loan Document in which such reference appears.
(iii) The term “including” is by way of example and not limitation.
(iv) The term “documents” includes any and all instruments, documents, agreements, certificates, notices, reports, financial statements and other writings, however evidenced, whether in physical or electronic form.
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(c) In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including”; the words “to” and “until” each mean “to but excluding”; and the word “through” means “to and including.”
(d) Section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Loan Document.
(e) All certifications to be made hereunder by a Responsible Officer or representative of a Loan Party shall be made by such person in his or her capacity solely as a Responsible Officer or a representative of such Loan Party, on such Loan Party’s behalf and not in such person’s individual capacity.
(f) Any reference herein or in any other Loan Document to the satisfaction, repayment, or payment in full of the Obligations shall mean the satisfaction, repayment, or payment in full of the Obligations (other than unasserted contingent indemnification obligations).
1.03 | Accounting Terms |
(a) Except as otherwise specifically prescribed herein, all accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a manner consistent with that used in preparing the Audited Financial Statements; provided, however, that calculations of Attributable Indebtedness under any Synthetic Lease or the implied interest component of any Synthetic Lease shall be made by the Borrowers in accordance with accepted financial practice and consistent with the terms of such Synthetic Lease.
(b) The Administrative Borrower will provide a written summary of material changes in GAAP that affect the Borrowers’ financial accounting and in the consistent application thereof with each annual and quarterly Compliance Certificate delivered in accordance with Section 7.02(b). If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and either any Borrower or the Required Lenders shall so request, the Administrative Agent, the Lenders and the Borrowers shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders); provided that, until so amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) the Administrative Borrower shall provide to the Administrative Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP.
(c) Notwithstanding the above, the parties hereto acknowledge and agree that all calculations of Consolidated EBITDA and the Fixed Charge Coverage Ratio for purposes of determining compliance with Section 8.11 shall be made on a Pro Forma Basis; provided, however, that any Acquisition, Disposition or Involuntary Disposition of assets with an aggregate net book value of less than $5,000,000 need not be taken into account on a Pro Forma Basis.
(d) Notwithstanding the above, the parties hereto acknowledge and agree that all computations of amounts and ratios referred to in Article VII and Article VIII shall be made in a manner such that any obligations relating to a lease that was accounted for by a Person as an operating lease as of
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the Original Closing Date and any similar operating lease entered into after the Original Closing Date by such Person shall be accounted for as obligations relating to an operating lease and not as a Capital Lease and shall not constitute Indebtedness.
(e) Notwithstanding anything to the contrary contained herein or in any other Loan Document, all financial statements required to be delivered pursuant to this Agreement or any other Loan Document need not be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting (including adjustments of the type contemplated by Financial Accounting Standards Board Accounting Standards Codification 805, Business Combinations (formerly SFAS 141R)).
1.04 | Rounding |
Any financial ratios required to be maintained by the Loan Parties pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).
1.05 | References to Agreements and Laws |
Unless otherwise expressly provided herein, (a) references to Organization Documents, agreements (including the Loan Documents) and other contractual instruments shall be deemed to include all subsequent amendments, restatements, extensions, supplements and other modifications thereto, but only to the extent that such amendments, restatements, extensions, supplements and other modifications are not prohibited by any Loan Document; and (b) references to any Law shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting such Law.
1.06 | Times of Day |
Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable). When any payment to be made hereunder or the performance of any covenant, duty or obligation is stated to be due on a day that is not a Business Day or delivery of any notice, document, certificate or other writing is stated to be required on a day that is not a Business Day, the due date of such payment, performance or delivery shall extend to the immediately succeeding Business Day.
1.07 | Additional Borrowers |
Notwithstanding anything in Section 11.07 to the contrary, following the Effective Date, the Administrative Borrower may request that (x) one or more wholly-owned Domestic Subsidiaries of the Company (other than AHS East Texas or and Subsidiary of AHS East Texas) that (ii) owns assets that are or that it desires to be included in the Legacy Borrowing Base be added as an additional Legacy Borrower under the Legacy Credit Facility by delivering to the Administrative Agent an Additional Legacy Borrower Agreement executed by such Subsidiary and the Administrative Borrower and (y) one or more Wholly-Owned Domestic Subsidiaries of AHS East Texas that owns assets that are or that it desires to be included in the ETMC Borrowing Base be added as an Additional ETMC Borrower under the ETMC Credit Facility by delivering to the Administrative Agent an Additional ETMC Borrower Agreement executed by such Subsidiary and the Administrative Borrower. The assets of such Subsidiary that shall become an Additional Legacy Borrower or an Additional ETMC Borrower shall not be included in the Legacy Borrowing Base or ETMC Borrowing Base, as applicable, until the
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Administrative Agent and Collateral Agent shall have received and be reasonably satisfied with a Field Exam on such assets from an examiner reasonably acceptable to the Administrative Agent and the Collateral Agent. Such Subsidiary shall for all purposes of this Agreement be a Legacy Borrower or an ETMC Borrower hereunder after the latest of (i) five (5) Business Days (or such shorter period as the Administrative Agent shall agree) after delivery of such applicable Additional Borrower Agreement and (ii) receipt by the Lenders under the applicable Revolving Credit Facility and the Administrative Agent of such documentation and other information reasonably requested by the Lenders under the applicable Revolving Credit Facility or the Administrative Agent for purposes of complying with all necessary “know your customer” or other similar checks under all applicable laws and regulations (including, without limitation, a Beneficial Ownership Certification with respect to such Additional Borrower if requested by any Lender) without any written objection submitted by the Lenders under the applicable Revolving Credit Facility or the Administrative Agent within ten (10) days of the date of receipt of such documentation and other information; provided that (a) each Additional Legacy Borrower and Additional ETMC Borrower shall also be a Guarantor and (b) neither the Administrative Agent, the Collateral Agent nor any Lender under the applicable Revolving Credit Facility shall be materially adversely affected by the addition of such Additional Legacy Borrower or Additional ETMC Borrower, as applicable. Any obligations in respect of Borrowings by any Borrower under this Agreement will constitute “Obligations” for all purposes of the Loan Documents. Promptly following receipt of any Additional Borrower Agreement, the Administrative Agent shall send a copy thereof to each Lender under the applicable Revolving Credit Facility.
1.08 | Basket Classification |
Notwithstanding anything to the contrary, (a) unless specifically stated otherwise herein, any dollar, number, percentage or other amount available under any carve-out, basket, exclusion or exception to any negative covenant in this Agreement or the other Loan Documents may be accumulated, added, combined, aggregated or used together by any Loan Party and its Subsidiaries without limitation for any purpose not prohibited hereby, (b) any action or event permitted by this Agreement or the other Loan Documents need not be permitted solely by reference to one provision permitting such action or event but may be permitted in part by one such provision and in part by one or more other provisions of this Agreement and the other Loan Documents and (c) the Borrowers shall be permitted to redesignate any Indebtedness, Liens, Restricted Payments, Investments and prepayments or repayments of Subordinated Indebtedness originally designated as incurred under any exception under Section 8.01 (other than Section 8.01(a)), Section 8.02, Section 8.03 (other than Section 8.03(a)), Section 8.06 and Section 8.13 as having been incurred under another applicable exception under Section 8.01 (other than Section 8.01(a)), Section 8.02, Section 8.03 (other than Section 8.03(a)), Section 8.06 and Section 8.13 so long as at the time of such redesignation, the Borrowers would be permitted to incur Indebtedness, Liens, Restricted Payments, Investments or prepayments or repayments of Subordinated Indebtedness under such other exception within the same Section of this Agreement. With respect to any incurrence of Indebtedness or creation of Lien permitted by the provisions of this Agreement in reliance on the pro forma calculation of the Senior Secured Net Leverage Ratio, the Consolidated Net Leverage Ratio and/or the Fixed Charge Coverage Ratio, as applicable, pro forma effect shall not be given to any Indebtedness being incurred or Lien created (or expected to be incurred or created) substantially simultaneously or contemporaneously with the incurrence of any such Indebtedness or creation of such Lien, as applicable, in reliance on any “fixed dollar basket” set forth in this Agreement (including any “baskets” measured as a percentage of Consolidated EBITDA or total assets).
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1.09 | Limited Condition Acquisitions |
As it relates to any action being taken solely in connection with a Limited Condition Acquisition, for purposes of:
(i) determining compliance with any provision of this Agreement which requires the calculation of any financial ratio or financial test,
(ii) testing availability under baskets set forth in this Agreement (including baskets determined by reference to Consolidated EBITDA or total assets), or
(iii) testing whether the Payment Conditions (including Availability as a component thereof) have been satisfied or a Default or Event of Default has occurred and, with respect to any Revolving Commitment Increase to finance such Limited Condition Acquisition, testing whether any representation or warranty in any Loan Document is correct as of such date,
in each case, at the option of the Administrative Borrower (the Administrative Borrower’s election to exercise such option in connection with any Limited Condition Acquisition, an “LCT Election”), the date of determination of whether any such action is permitted hereunder, any such Default or Event of Default exists and any such representation or warranty is correct shall be deemed to be the date the definitive agreements for such Limited Condition Acquisition are entered into (the “LCT Test Date”), and if, after giving pro forma effect to the Limited Condition Acquisition (and the other transactions to be entered into in connection therewith, including any incurrence of Indebtedness and the use of proceeds thereof, as if they had occurred on the first day of the most recently ended four fiscal quarter period prior to the LCT Test Date), the Administrative Borrower or the applicable Restricted Subsidiary would have been permitted to take such action on the relevant LCT Test Date in compliance with such ratio, test or basket, such ratio, test or basket shall be deemed to have been complied with or if no such Default or Event of Default shall exist on such LCT Test Date or such representation or warranty is correct as of such LCT Test Date then such condition shall be deemed satisfied on the date of consummation of such LCT Test Date for purposes of clause (iii) above; provided that if financial statements for one or more subsequent fiscal periods shall have become available, the Administrative Borrower may elect, in its sole discretion, to redetermine all such ratios, tests or baskets on the basis of such financial statements, in which case, such date of redetermination shall thereafter be deemed to be the applicable LCT Test Date. For the avoidance of doubt, if the Administrative Borrower has made an LCT Election and any of the ratios, tests or baskets for which compliance was determined or tested as of the LCT Test Date would have failed to have been complied with as a result of fluctuations in any such ratio, test or basket, including due to fluctuations in Consolidated EBITDA or total assets of the Administrative Borrower or the Person subject to such Limited Condition Acquisition, at or prior to the consummation of the relevant transaction or any Default or Event of Default has occurred and is continuing or any such representation or warranty in any Loan Document is not correct on the date of such Limited Condition Acquisition, such baskets, tests or ratios or requirement will not be deemed to have failed to have been complied with as a result of such circumstance. If the Administrative Borrower has made an LCT Election for any Limited Condition Acquisition, then in connection with any calculation of any ratio, test or basket availability with respect to any transaction permitted hereunder (each, a “Subsequent Transaction”) following the relevant LCT Test Date and prior to the earlier of the date on which such Limited Condition Acquisition is consummated or the date that the definitive agreement for such Limited Condition Acquisition is terminated or expires without consummation of such Limited Condition Acquisition, for purposes of determining whether such Subsequent Transaction is permitted under this Agreement, any such ratio, test or basket shall be required to be satisfied on a pro forma basis assuming such Limited Condition Acquisition and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have been consummated.
1.10 | Divisions |
For all purposes under the Loan Documents, in connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s laws): (a) if any asset,
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right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized on the first date of its existence by the holders of its Capital Stock at such time.
1.11 | Amendment and Restatement |
This Agreement shall amend and restate the Existing Credit Agreement in its entirety, with the parties hereby agreeing that there is not, nor is there intended to be, a novation of the Existing Credit Agreement or any other Loan Document under the Existing Credit Agreement and from and after the effectiveness of this Agreement, the rights and obligations of the parties under the Existing Credit Agreement shall be subsumed and governed by this Agreement. From and after the effectiveness of this Agreement, the “Obligations” under the Existing Credit Agreement shall continue as Obligations under the Loan Documents under this Agreement and the Loan Documents until otherwise paid in accordance with the terms hereof. The Collateral Documents and the grant of Liens on all of the Collateral described therein do and shall continue to secure the payment of all Obligations. Without limiting the generality of the foregoing, the parties hereto acknowledge and agree that the Liens securing the “Obligations” (as defined in the Existing Credit Agreement) of any Loan Party, shall from and after the Effective Date secure the payment and performance of all Obligations (as defined in this Agreement) of such Loan Party for the benefit of the Collateral Agent and the Secured Parties, and each Loan Party reaffirms its prior grant of the Liens granted by it pursuant to the “Collateral Documents” (as defined in the Existing Credit Agreement) and all such Liens shall continue in full force and effect after giving effect to this Agreement and are hereby confirmed and reaffirmed by each of the Loan Parties. The parties hereto further acknowledge and agree that all “Collateral Documents” (as defined in the Existing Credit Agreement) shall remain in full force and effect after the Effective Date in favor of and for the benefit of the Collateral Agent and the Secured Parties (with each reference therein to the collateral agent, the credit agreement or a loan document being a reference to the Collateral Agent, this Agreement or the other Loan Documents, as applicable), in each case, as such Collateral Documents are modified on the Effective Date, and each Loan Party hereby confirms and ratifies its obligations thereunder.
1.12 | Interest Rates |
The Administrative Agent does not warrant, nor accept responsibility, nor shall the Administrative Agent have any liability with respect to the administration, submission or any other matter related to any reference rate referred to herein or with respect to any rate (including, for the avoidance of doubt, the selection of such rate and any related spread or other adjustment) that is an alternative or replacement for or successor to any such rate (including, without limitation, any Successor Rate) (or any component of any of the foregoing) or the effect of any of the foregoing, or of any Conforming Changes. The Administrative Agent and its affiliates or other related entities may engage in transactions or other activities that affect any reference rate referred to herein, or any alternative, successor or replacement rate (including, without limitation, any Successor Rate) (or any component of any of the foregoing) or any related spread or other adjustments thereto, in each case, in a manner adverse to the Borrowers. The Administrative Agent may select information sources or services in its reasonable discretion to ascertain any reference rate referred to herein or any alternative, successor or replacement rate (including, without limitation, any Successor Rate) (or any component of any of the foregoing), in each case pursuant to the terms of this Agreement, and shall have no liability to the Borrowers, any Lender or any other person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or other action or omission related to or affecting the selection, determination, or calculation of any rate (or component thereof) provided by any such information source or service.
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ARTICLE II
THE COMMITMENTS AND BORROWINGS
2.01 | Loans |
(a) Subject to the terms and conditions set forth herein, each Legacy Lender having a Legacy Commitment severally agrees to make revolving loans to the Legacy Borrowers in Dollars from time to time, on any Business Day on or after the Original Closing Date until the Maturity Date, in an aggregate principal amount not to exceed at any time outstanding such Legacy Lender’s Legacy Commitment; provided that after giving effect to any such Legacy Revolving Credit Borrowing, (x) the aggregate Outstanding Amount of the Legacy Revolving Loans of any Legacy Lender, plus such Legacy Lender’s Legacy Pro Rata Share of the Outstanding Amount of all L/C Obligations, plus such Legacy Lender’s Legacy Pro Rata Share of the Outstanding Amount of all Swing Line Loans and Protective Advances made to Legacy Borrowers shall not exceed the lesser of (i) such Legacy Lender’s Legacy Commitment at such time and (ii) such Legacy Lender’s Legacy Pro Rata Share of the Legacy Borrowing Base at such time and (y) the aggregate outstanding amount of Total Legacy Outstandings shall not exceed the Legacy Line Cap at such time. Within the limits of each Legacy Lender’s Legacy Commitment, and subject to the other terms and conditions hereof, the Legacy Borrowers may borrow under this Section 2.01(a), prepay under Section 2.05, and reborrow under this Section 2.01(a). Legacy Revolving Loans may be Base Rate Loans or Term SOFR Loans.
(b) Subject to the terms and conditions set forth herein, each ETMC Lender having an ETMC Commitment severally agrees to make revolving loans to the ETMC Borrowers in Dollars from time to time, on any Business Day on or after the Original Closing Date until the Maturity Date, in an aggregate principal amount not to exceed at any time outstanding such ETMC Lender’s ETMC Commitment; provided that after giving effect to any such ETMC Revolving Credit Borrowing, (x) the aggregate Outstanding Amount of the ETMC Revolving Loans of any ETMC Lender, plus such ETMC Lender’s ETMC Pro Rata Share of the Outstanding Amount of all Swing Line Loans and Protective Advances made to ETMC Borrowers shall not exceed the lesser of (i) such ETMC Lender’s ETMC Commitment at such time and (ii) such ETMC Lender’s ETMC Pro Rata Share of the ETMC Borrowing Base at such time and (y) the aggregate outstanding amount of Total ETMC Outstandings shall not exceed the ETMC Line Cap at such time. Within the limits of each ETMC Lender’s ETMC Commitment, and subject to the other terms and conditions hereof, the ETMC Borrowers may borrow under this Section 2.01(b), prepay under Section 2.05, and reborrow under this Section 2.01(b). ETMC Revolving Loans may be Base Rate Loans or Term SOFR Loans.
2.02 | Borrowings; Conversions and Continuations of Loans |
(a) Each Revolving Credit Borrowing, each conversion of Loans from one Type to the other, and each continuation of Term SOFR Loans shall be made upon the Administrative Borrower’s irrevocable (except as otherwise permitted under Article III) notice to the Administrative Agent, which may be given by a Loan Notice. Each such notice must be received by the Administrative Agent not later than (i) 12:00 p.m. three Business Days prior to the requested date of any Borrowing of, conversion to or continuation of Term SOFR Loans and (ii) 12:00 p.m. on the requested date of any Borrowing of Base Rate Loans; provided, however, that if the Administrative Borrower wishes to request Term SOFR Loans having an Interest Period other than one, three or six months in duration as provided in the definition of “Interest Period,” the applicable notice must be received by the Administrative Agent not later than 12:00 p.m. four Business Days prior to the requested date of such Borrowing, conversion or continuation, whereupon the Administrative Agent shall give prompt notice to the Lenders of such request and determine whether the requested Interest Period is acceptable to all of them. Not later than 11:00 a.m.,
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three Business Days before the requested date of such Borrowing, conversion or continuation, the Administrative Agent shall notify the Administrative Borrower whether or not the requested Interest Period has been consented to by all the Lenders. Each Borrowing of, conversion to or continuation of Term SOFR Loans shall be in a principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof. Each Borrowing of or conversion to Base Rate Loans shall be in a principal amount of $250,000 or a whole multiple of $250,000 in excess thereof. Each Loan Notice shall specify (i) the name of the Borrower to whom the Loan is requested to be made and whether such Borrower is an ETMC Borrower or a Legacy Borrower, (ii) whether the Borrowers are requesting a Borrowing, a conversion of Loans from one Type to the other, or a continuation of Term SOFR Loans, (iii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iv) the principal amount of Loans to be borrowed, converted or continued, (v) the Type of Loans to be borrowed or to which existing Loans are to be converted, and (vi) if applicable, the duration of the Interest Period with respect thereto. If the Borrowers fail to specify a Type of a Loan in a Loan Notice or if the Administrative Borrower fails to give a timely notice requesting a conversion or continuation, then the applicable Loans shall be made as, or converted to, Base Rate Loans. Any such automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Term SOFR Loans. If the Administrative Borrower requests a Borrowing of, conversion to, or continuation of, Term SOFR Loans in any such Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month.
(b) Following receipt of a Loan Notice, the Administrative Agent shall promptly notify each Lender under the applicable Revolving Credit Facility of the amount of its Applicable Pro Rata Share of the applicable Loans, and if no timely notice of a conversion or continuation is provided by the Administrative Borrower, the Administrative Agent shall notify each Lender of the details of any automatic conversion to Base Rate Loans described in the preceding subsection. In the case of a Borrowing, each Lender under the applicable Revolving Credit Facility shall make the amount of its Loan available to the Administrative Agent in immediately available funds at the Administrative Agent’s Office not later than 1:00 p.m. on the Business Day specified in the applicable Loan Notice. Upon satisfaction of the applicable conditions set forth in Section 5.02, the Administrative Agent shall make all funds so received available to the applicable Borrowers in like funds as received by the Administrative Agent either by (i) crediting the account of the applicable Borrowers on the books of Bank of America with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by the Borrowers; provided that if, on the date Loan Notice with respect to such Borrowing is given by the Borrowers, there are Swing Line Loans or L/C Borrowings outstanding, then the proceeds of such Borrowing shall be applied, first, to the payment in full of any such L/C Borrowings, second, to the payment in full of any such Swing Line Loans, and third, to the Borrowers as provided above.
(c) Except as otherwise provided herein, a Term SOFR Loan may be continued or converted only on the last day of the Interest Period for such Term SOFR Loan. During the existence of an Event of Default, no Loan may be requested as, converted to or continued as a Term SOFR Loan without the consent of the Lenders (other than Defaulting Lenders) holding in the aggregate at least a majority of the outstanding Loans, if any, and such Lenders may demand that any or all of the then outstanding Loans that are Term SOFR Loans be converted immediately to Base Rate Loans.
(d) The Administrative Agent shall promptly notify the applicable Borrowers and the applicable Lenders of the interest rate applicable to any Interest Period for Term SOFR Loans upon determination of such interest rate. The determination of Term SOFR by the Administrative Agent shall be conclusive in the absence of manifest error.
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(e) After giving effect to all Borrowings, all conversions of Loans from one Type to the other, and all continuations of Loans as the same Type, there shall not be more than ten (10) Interest Periods in effect with respect to the Loans.
(f) With respect to SOFR or Term SOFR, the Administrative Agent will have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document; provided that, with respect to any such amendment effected, the Administrative Agent shall post each such amendment implementing such Conforming Changes to the Borrowers and the Lenders reasonably promptly after such amendment becomes effective.
2.03 | Letter of Credit Facility |
(a) The Letter of Credit Commitments.
(i) Subject to the terms and conditions set forth herein, (1) each L/C Issuer agrees, in reliance upon the agreements of the other
Legacy Lenders set forth in this Section 2.03, (x) from time to time on any Business Day during the period from the Original Closing Date until the Maturity Date, to issue Letters of Credit in Dollars for the account of the
Borrowers (provided that any Letter of Credit may be for the benefit of any Borrower or any Subsidiary of the Borrowers) and to amend or renew Letters of Credit previously issued by it, in accordance with
Section 2.03(b), and (y) to honor drafts under the Letters of Credit and (2) the Legacy Lenders severally agree to participate in Letters of Credit issued pursuant to this Section 2.03;
provided that no L/C Issuer shall be obligated to make any L/C Credit Extension with respect to any Letter of Credit, and no Legacy Lender shall be obligated to participate in any Letter of Credit if after giving effect to such L/C Credit
Extension, (w) the Legacy Revolving Credit Exposure of any Legacy Lender would exceed such Legacy Lender’s Legacy Commitment, (x) the Total Legacy Outstandings would exceed the Legacy Line Cap at such time, (y) the Outstanding
Amount of the L/C Obligations would exceed the Letter of Credit Sublimit or (z) the Outstanding Amount of such L/C Issuer’s L/C Obligations would exceed such L/C Issuer’s L/C Issuer Sublimit; provided further, that Bank
of America, Barclays,
JPMorgan, Morgan Stanley and their respective Subsidiaries
or affiliates shall not be required to issue any Letter of Credit other than standby Letters of Credit. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrowers’ ability to obtain Letters of Credit shall be
fully revolving, and accordingly the Borrowers may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed.
(ii) An L/C Issuer shall be under no obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such L/C Issuer from issuing such Letter of Credit, or any Law applicable to such L/C Issuer or any directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such L/C Issuer shall prohibit, or direct that such L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon such L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which such L/C Issuer is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon such L/C Issuer any unreimbursed loss, cost or expense which was not applicable on Effective Date (for which such L/C Issuer is not otherwise compensated hereunder);
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(B) subject to Section 2.03(b)(iii), the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last renewal, unless (1) the Required Legacy Lenders have approved such expiry date or (2) the Outstanding Amount of L/C Obligations in respect of such requested Letter of Credit has been cash collateralized or backstopped in a manner reasonably satisfactory to the applicable L/C Issuer;
(C) the expiry date of such requested Letter of Credit would occur after the Maturity Date, unless all the Legacy Lenders have approved such expiry date;
(D) the issuance of such Letter of Credit would violate any Laws binding upon such
L/C Issuer; or
(E) the issuance of such Letter of Credit would violate one or more policies of such L/C Issuer applicable to letters of credit generally; or
(E)(F) the Letter of Credit is to be denominated in a currency other
than Dollars.
(iii) An L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) such L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(iv) For the avoidance of doubt, if the Ventas Purchase Option Assignment occurs, the L/C Issuers shall have no further obligations to issue any additional Letters of Credit or to extend the expiry date of any existing Letter of Credit and the existing Letters of Credit shall be Cash Collateralized in accordance with Section 2.17.
(b) Procedures for Issuance and Amendment of Letters of Credit; Auto-Renewal Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as the case may be, upon the request of the Borrowers delivered to an L/C Issuer (with a copy to the Administrative Agent) in the form of a Letter of Credit Application, appropriately completed and signed by a Responsible Officer of the Borrowers. Such Letter of Credit Application must be received by the relevant L/C Issuer and the Administrative Agent not later than 12:00 p.m. (New York City time) at least three (3) Business Days prior to the proposed issuance date or date of amendment, as the case may be; or, in each case, such later date and time as the relevant L/C Issuer may agree in a particular instance in its sole discretion. In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and detail reasonably satisfactory to the relevant L/C Issuer: (a) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (b) the amount and currency thereof; (c) the expiry date thereof; (d) the name and address of the beneficiary thereof; (e) the documents to be presented by such beneficiary in case of any drawing thereunder; (f) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; and (g) such other matters as the relevant L/C Issuer may reasonably request. In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall specify in form and detail reasonably satisfactory to the relevant L/C Issuer (1) the Letter of Credit to be amended; (2) the proposed date of amendment thereof (which shall be a Business Day); (3) the nature of the proposed amendment; and (4) such other matters as the relevant L/C Issuer may reasonably request.
(ii) Promptly after receipt of any Letter of Credit Application, the relevant L/C Issuer will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has
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received a copy of such Letter of Credit Application from the Borrowers and, if not, such L/C Issuer will provide the Administrative Agent with a copy thereof. Upon receipt by the relevant L/C Issuer of confirmation from the Administrative Agent that the requested issuance or amendment is permitted in accordance with the terms hereof, then, subject to the terms and conditions hereof, such L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of the Borrowers or enter into the applicable amendment, as the case may be. Immediately upon the issuance of each Letter of Credit, each Legacy Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, acquire from the relevant L/C Issuer a risk participation in such Letter of Credit in an amount equal to the product of such Legacy Lender’s Legacy Pro Rata Share times the amount of such Letter of Credit.
(iii) If the Borrowers so request in any applicable Letter of Credit Application, the relevant L/C Issuer shall agree to issue a Letter of Credit that has automatic renewal provisions (each, an “Auto-Renewal Letter of Credit”); provided that any such Auto-Renewal Letter of Credit must permit the relevant L/C Issuer to prevent any such renewal at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Nonrenewal Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the relevant L/C Issuer, the Borrowers shall not be required to make a specific request to the relevant L/C Issuer for any such renewal. Once an Auto-Renewal Letter of Credit has been issued, the applicable Legacy Lenders shall be deemed to have authorized (but may not require) the relevant L/C Issuer to permit the renewal of such Letter of Credit at any time to an expiry date not later than the Letter of Credit Expiration Date; provided that the relevant L/C Issuer shall not permit any such renewal if (A) the relevant L/C Issuer has determined that it would have no obligation at such time to issue such Letter of Credit in its renewed form under the terms hereof (by reason of the provisions of Section 2.03(a)(ii) or otherwise), or (B) it has received notice (which may be by telephone, followed promptly in writing, or in writing) on or before the day that is five (5) Business Days before the Nonrenewal Notice Date from the Administrative Agent or any Legacy Lender, as applicable, or the Borrowers that one or more of the applicable conditions specified in Section 5.02 is not then satisfied.
(iv) Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit to an advising bank with respect thereto or to the beneficiary thereof, the relevant L/C Issuer will also deliver to the Borrowers and the Administrative Agent a true and complete copy of such Letter of Credit or amendment.
(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a compliant drawing resulting in a L/C Disbursement under such Letter of Credit, the relevant L/C Issuer shall notify promptly the Borrowers and the Administrative Agent thereof. On the Business Day on which the Borrowers shall have received notice of any payment by an L/C Issuer under a Letter of Credit (or, if the Borrowers shall have received such notice later than 12:00 p.m. on any Business Day, on the immediately following Business Day) (each such date, an “Honor Date”), the Borrowers shall reimburse such L/C Issuer through the Administrative Agent in an amount equal to the amount of such drawing. If the Borrowers fail to so reimburse such L/C Issuer by such time, the Administrative Agent shall promptly notify each Legacy Lender of the Honor Date, the amount of the unreimbursed drawing (the “Unreimbursed Amount”), and the amount of such Lender’s Legacy Pro Rata Share thereof. In such event, the Borrowers shall be deemed to have requested a Revolving Credit Borrowing of Base Rate Loans 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 2.02 for the principal amount of Base Rate Loans, but subject to the amount of the unutilized portion of the Legacy Commitments of the Legacy Lenders, and subject to the conditions set forth in Section 5.02 (other than the delivery of a Loan Notice
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or the requirement that the Total Legacy Outstandings not exceed the Legacy Line Cap at such time). Any notice given by an L/C Issuer or the Administrative Agent pursuant to this Section 2.03(c)(i) may be given by telephone if immediately confirmed in writing; provided that the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice.
(ii) Each Legacy Lender (including any such Legacy Lender acting as an L/C Issuer) shall upon any notice pursuant to Section 2.03(c)(i), whether or not the Total Legacy Outstandings exceed the Legacy Line Cap (provided that no Legacy Lender shall be required to fund in excess of its Legacy Commitment) at such time before or after such Borrowing make funds available to the Administrative Agent for the account of the relevant L/C Issuer at the Administrative Agent’s Office for payments in an amount equal to its Legacy Pro Rata Share of any Unreimbursed Amount in respect of a Letter of Credit not later than 1:00 p.m. (New York City time) on the Business Day specified in such notice by the Administrative Agent, whereupon, subject to the provisions of Section 2.03(c)(iii), each Legacy Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the Borrowers in such amount. The Administrative Agent shall remit the funds so received to the relevant L/C Issuer.
(iii) With respect to any Unreimbursed Amount in respect of a Letter of Credit that is not fully refinanced by a Revolving Credit Borrowing of Base Rate Loans because the conditions set forth in Section 5.02 cannot be satisfied or for any other reason, the Borrowers shall be deemed to have incurred from the relevant L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and payable on demand (together with interest) and shall bear interest at the Default Rate. In such event, each Legacy Lender’s payment to the Administrative Agent for the account of the relevant L/C Issuer pursuant to Section 2.03(c)(ii) shall be deemed payment in respect of its participation in such L/C Borrowing and shall constitute an L/C Advance from such Lender in satisfaction of its participation obligation under this Section 2.03.
(iv) Until each Legacy Lender funds its Legacy Revolving Loan or L/C Advance pursuant to this Section 2.03(c) to reimburse the relevant L/C Issuer for any amount drawn under any Letter of Credit, interest in respect of such Legacy Lender’s Legacy Pro Rata Share of such amount shall be solely for the account of the relevant L/C Issuer.
(v) Each Legacy Lender’s obligation to make Legacy Revolving Loans or L/C Advances to reimburse an L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this Section 2.03(c), shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Legacy Lender may have against the relevant L/C Issuer, the Borrowers 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 that each Legacy Lender’s obligation to make Loans (but not L/C Advances) pursuant to this Section 2.03(c) is subject to the conditions set forth in Section 5.02 (other than delivery by the Borrowers of a Loan Notice); provided further that in no event shall a Legacy Lender be required to fund in excess of its Legacy Commitment. No such making of an L/C Advance shall relieve or otherwise impair the obligation of the Borrowers to reimburse the relevant L/C Issuer for the amount of any payment made by such L/C Issuer under any Letter of Credit, together with interest as provided herein.
(vi) If any Legacy Lender fails to make available to the Administrative Agent for the account of the relevant L/C Issuer any amount required to be paid by such Legacy Lender pursuant to the foregoing provisions of this Section 2.03(c) by the time specified in Section 2.03(c)(ii), such L/C Issuer shall be entitled to recover from such Legacy Lender (acting through the Administrative 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 L/C Issuer at a rate per annum equal to the
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Federal Funds Rate. A certificate of the relevant L/C Issuer submitted to any Legacy Lender (through the Administrative Agent) with respect to any amounts owing under this Section 2.03(c)(vi) shall be conclusive absent manifest error.
(vii) If, at any time after an L/C Issuer has made a payment under any Letter of Credit and has received from any Legacy Lender such Legacy Lender’s L/C Advance in respect of such payment in accordance with this Section 2.03(c), the Administrative Agent receives for the account of such L/C Issuer any payment in respect of the related Unreimbursed Amount or interest thereon (whether directly from the Borrowers or otherwise, including proceeds of Cash Collateral applied thereto by the Administrative Agent), the Administrative Agent will distribute to each Legacy Lender its Legacy Pro Rata Share thereof (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Legacy Lender’s L/C Advance was outstanding) in the same funds as those received by the Administrative Agent.
(viii) If any payment received by the Administrative Agent for the account of an L/C Issuer pursuant to Section 2.03(c)(i) is required to be returned under any of the circumstances described in Section 11.06 (including pursuant to any settlement entered into by such L/C Issuer in its discretion), each Legacy Lender shall pay to the Administrative Agent for the account of such L/C Issuer its Legacy Pro Rata Share (but in no event in excess of such Legacy Lender’s Legacy Commitment) thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned by the Administrative Agent or the applicable L/C Issuer, at a rate per annum equal to the Federal Funds Rate.
(d) Obligations Absolute. The obligation of the Borrowers to reimburse the relevant L/C Issuer for each drawing under each Letter of Credit issued by it and to repay each L/C Borrowing shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including the following:
(i) any lack of validity or enforceability of such Letter of Credit, this Agreement, or any other agreement or instrument relating thereto;
(ii) the existence of any claim, counterclaim, setoff, defense or other right that any Loan Party may have at any time against any beneficiary or any transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), the relevant L/C Issuer or any other Person, whether in connection with this Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement or instrument relating thereto, or any unrelated transaction;
(iii) any draft, demand, certificate or other document presented under such Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; or any loss or delay in the transmission or otherwise of any document required in order to make a drawing under such Letter of Credit;
(iv) any payment by the relevant L/C Issuer under such Letter of Credit against presentation of a draft or certificate that does not strictly comply with the terms of such Letter of Credit; or any payment made by the relevant L/C Issuer under such Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor to any beneficiary or any transferee of such Letter of Credit, including any arising in connection with any proceeding under any Debtor Relief Law;
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(v) any exchange, release or nonperfection of any Collateral, or any release or amendment or waiver of or consent to departure from the Guaranty or any other guarantee, for all or any of the Obligations of any Loan Party in respect of such Letter of Credit; or
(vi) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including any other circumstance that might otherwise constitute a defense available to, or a discharge of, any Loan Party;
provided that the foregoing shall not excuse any L/C Issuer from liability to the Borrowers to the extent of any direct damages (as opposed to consequential damages, claims in respect of which are waived by the Borrowers to the extent permitted by applicable Law) suffered by the Borrowers that are caused by such L/C Issuer’s gross negligence or willful misconduct when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof.
(e) Role of L/C Issuers. Each Legacy Lender and the Borrowers agree that, in paying any drawing under a Letter of Credit, the relevant L/C Issuer shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. None of the L/C Issuers, any Agent-Related Person nor any of the respective correspondents, participants or assignees of any L/C Issuer shall be liable to any Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of the Lenders or the Required Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Letter of Credit Application. The Borrowers hereby assume all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided that this assumption is not intended to, and shall not, preclude the Borrowers’ pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of the L/C Issuers, any Agent-Related Person, nor any of the respective correspondents, participants or assignees of any L/C Issuer, shall be liable or responsible for any of the matters described in clauses (i) through (iii) of this Section 2.03(e); provided that anything in such clauses to the contrary notwithstanding, the Borrowers may have a claim against an L/C Issuer, and such L/C Issuer may be liable to the Borrowers, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by the Borrowers caused by such L/C Issuer’s willful misconduct or gross negligence or such L/C Issuer’s willful or grossly negligent failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of Credit. In furtherance and not in limitation of the foregoing, each L/C Issuer may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and no L/C Issuer shall be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.
(f) Cash Collateral. If (i) any Event of Default occurs and is continuing and the Administrative Agent or the Required Legacy Lenders, as applicable, require the Borrowers to Cash Collateralize the L/C Obligations pursuant to Section 9.02(d) or (ii) an Event of Default set forth under Section 9.01(f) or (g) occurs and is continuing, then the Borrowers shall Cash Collateralize the then Outstanding Amount of all L/C Obligations (in an amount equal to 103% of such Outstanding Amount determined as of the date of such Event of Default), and shall do so not later than 2:00 p.m. (New York City time) on (x) in the case of the immediately preceding clause (i), (1) the Business Day that the Borrowers receive notice thereof, if such notice is received on such day prior to 12:00 p.m. (New York
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City time), or (2) if clause (1) above does not apply, the Business Day immediately following the day that the Borrowers receive such notice and (y) in the case of the immediately preceding clause (ii), the Business Day on which an Event of Default set forth under Section 9.01(f) or (g) occurs or, if such day is not a Business Day, the Business Day immediately succeeding such day, in either case, by 1:00 p.m. (New York City time) on such day. For purposes hereof, “Cash Collateralize” means to pledge and deposit with or deliver to the Collateral Agent, for the benefit of the relevant L/C Issuer and the Legacy Lenders, as collateral for the L/C Obligations, cash or deposit account balances (“Cash Collateral”) pursuant to documentation in form and substance reasonably satisfactory to the Collateral Agent and the relevant L/C Issuer (which documents are hereby consented to by the Legacy Lenders). Derivatives of such term have corresponding meanings. The Borrowers hereby grant to the Collateral Agent, for the benefit of the L/C Issuers and the Legacy Lenders, a security interest in all such cash, deposit accounts and all balances therein and all proceeds of the foregoing. Cash Collateral shall be maintained in blocked accounts at Bank of America or another financial institution acceptable to the Administrative Agent and may be invested in readily available Cash Equivalents at its sole discretion. If at any time the Collateral Agent determines that any funds held as Cash Collateral are subject to any right or claim of any Person other than the Collateral Agent (on behalf of the Secured Parties) or that the total amount of such funds is less than the aggregate Outstanding Amount of all L/C Obligations, the Borrowers will, forthwith upon demand by the Collateral Agent, pay to the Collateral Agent, as additional funds to be deposited and held in the deposit accounts at Bank of America or another financial institution acceptable to the Administrative Agent as aforesaid, an amount equal to the excess of (a) such aggregate Outstanding Amount over (b) the total amount of funds, if any, then held as Cash Collateral that the Collateral Agent reasonably determines to be free and clear of any such right and claim. Upon the drawing of any Letter of Credit for which funds are on deposit as Cash Collateral, such funds shall be applied, to the extent permitted under applicable Law, to reimburse the relevant L/C Issuer. To the extent the amount of any Cash Collateral exceeds the then Outstanding Amount of such L/C Obligations plus costs incidental thereto and so long as no other Event of Default has occurred and is continuing, the excess shall be refunded to the Borrowers. If such Event of Default is cured or waived and no other Event of Default is then occurring and continuing, the amount of any Cash Collateral and accrued interest thereon shall be refunded to the Borrowers.
(g) Letter of Credit Fees. The Borrowers shall pay to the Administrative Agent for the account of each Legacy Lender in accordance with its Legacy Pro Rata Share a Letter of Credit fee for each Letter of Credit issued pursuant to this Agreement equal to the product of (i) the Applicable Rate for Letter of Credit fees (as applicable) and (ii) the daily maximum amount then available to be drawn under such Letter of Credit. Such letter of credit fees shall be computed on a monthly basis in arrears. Such letter of credit fees shall be due and payable on the first day after the end of each month, commencing with the first such date to occur after the issuance of such Letter of Credit, on the Maturity Date and thereafter on demand. If there is any change in the Applicable Rate during any quarter, the daily maximum amount of each Letter of Credit shall be computed and multiplied by the Applicable Rate separately for each period during such quarter that such Applicable Rate was in effect.
(h) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuers. The Borrowers shall pay directly to each L/C Issuer for its own account a fronting fee (a “Fronting Fee”) with respect to each Letter of Credit issued by it equal to 0.125% per annum of the daily maximum amount then available to be drawn under such Letter of Credit. Such fronting fees shall be computed on a monthly basis in arrears. Such fronting fees shall be due and payable on the first day after the end of each month, commencing with the first such date to occur after the issuance of such Letter of Credit, on the Maturity Date and thereafter on demand. In addition, the Borrowers shall pay directly to each L/C Issuer for its own account the customary issuance, presentation, amendment and other processing fees, and other standard costs and charges, of such L/C Issuer relating to letters of credit as from time to time in effect. Such customary fees and standard costs and charges are due and payable within ten (10) Business Days of demand and are nonrefundable.
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(i) Conflict with Letter of Credit Application. Notwithstanding anything else to the contrary in any Letter of Credit Application, in the event of any conflict between the terms hereof and the terms of any Letter of Credit Application, the terms hereof shall control.
(j) Addition of an L/C Issuer. A Legacy Lender (or any of its Subsidiaries or affiliates) may become an additional L/C Issuer hereunder pursuant to a written agreement among the Borrowers, the Administrative Agent and such Lender. The Administrative Agent shall notify the Legacy Lenders of any such additional L/C Issuer.
2.04 | Swing Line Loans; Settlement |
(a) The Swing Line. Subject to the terms and conditions set forth herein, the Swing Line Lender agrees to make loans (each such loan, a “Swing Line Loan”) to the Legacy Borrowers and the ETMC Borrowers from time to time on any Business Day (other than the Effective Date) until the Business Day prior to the Maturity Date with respect to the Revolving Credit Facilities in an aggregate amount not to exceed at any time outstanding the amount of the Swing Line Sublimit, notwithstanding the fact that such Swing Line Loans, when aggregated with the Applicable Pro Rata Share of the Outstanding Amount of Loans and the Legacy Pro Rata Share of the L/C Obligations of the Lender acting as Swing Line Lender, may exceed the amount of such Lender’s Commitment; provided that after giving effect to any Swing Line Loan, (i) the Total Legacy Outstandings shall not exceed the Legacy Line Cap at such time, (ii) the Total ETMC Outstandings shall not exceed the ETMC Line Cap at such time, (iii) the aggregate Outstanding Amount of the ETMC Revolving Loans of any ETMC Lender, plus such ETMC Lender’s ETMC Pro Rata Share of the Outstanding Amount of all Swing Line Loans and Protective Advances made to ETMC Borrowers shall not exceed the lesser of (x) such ETMC Lender’s ETMC Commitments then in effect and (y) such ETMC Lender’s ETMC Pro Rata Share of the ETMC Borrowing Base then in effect and (iv) the aggregate Outstanding Amount of the Legacy Revolving Loans of any Legacy Lender, plus such Legacy Lender’s Legacy Pro Rata Share of the Outstanding Amount of all L/C Obligations and all Swing Line Loans and Protective Advances made to Legacy Borrowers shall not exceed the lesser of (x) such Legacy Lender’s Legacy Commitment then in effect and (y) such Legacy Lender’s Legacy Pro Rata Share of the Legacy Borrowing Base then in effect; provided further that, the Borrowers shall not use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan. Within the foregoing limits, and subject to the other terms and conditions hereof, the Borrowers may borrow under this Section 2.04, prepay under Section 2.05, and reborrow under this Section 2.04. Each Swing Line Loan shall be a Base Rate Loan. Immediately upon (i) the making of a Swing Line Loan to an ETMC Borrower, each ETMC Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swing Line Lender a risk participation in such Swing Line Loan in an amount equal to the product of such ETMC Lender’s ETMC Pro Rata Share times the amount of such Swing Line Loan and (ii) the making of a Swing Line Loan to a Legacy Borrower, each Legacy Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Legacy Lender a risk participation in such Swing Line Loan in an amount equal to the product of such Legacy Lender’s Legacy Pro Rata Share times the amount of such Swing Line Loan.
(b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon the Administrative Borrower’s irrevocable notice to the Swing Line Lender the Administrative Agent, which may be given by telephone. Each such notice must be received by the Swing Line Lender and the Administrative Agent not later than 12:00 p.m. (New York City time) (or such later time as the Swing Line Lender shall reasonably determine) on the requested borrowing date, and shall specify (i) the amount to be borrowed, which shall be a minimum of $100,000 (and any amount in excess thereof shall
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be an integral multiple of $25,000), (ii) the requested borrowing date, which shall be a Business Day and (iii) the name of the Borrower to which the Swing Line Loan is requested to be made and whether such Borrower is an ETMC Borrower or a Legacy Borrower. Each such telephonic notice must be confirmed promptly by delivery to the Swing Line Lender and the Administrative Agent of a written Swing Line Loan Notice, appropriately completed and signed by a Responsible Officer of the Administrative Borrower. Promptly after receipt by the Swing Line Lender of any telephonic Swing Line Loan Notice, the Swing Line Lender will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has also received such Swing Line Loan Notice and, if not, the Swing Line Lender will notify the Administrative Agent (by telephone or in writing) of the contents thereof. Unless the Swing Line Lender has received notice (by telephone or in writing) from the Administrative Agent (including at the request of any Lender) prior to 2:00 p.m. on the date of the proposed Swing Line Borrowing (A) directing the Swing Line Lender not to make such Swing Line Loan as a result of the limitations set forth in the first proviso to the first sentence of Section 2.04(a), or (B) that one or more of the applicable conditions specified in Section 5.02 is not then satisfied, then, subject to the terms and conditions hereof, the Swing Line Lender will, not later than 3:00 p.m. on the borrowing date specified in such Swing Line Loan Notice, make the amount of its Swing Line Loan available to the Borrowers.
(c) Refinancing of Swing Line Loans.
(i) The Swing Line Lender at any time in its sole and absolute discretion may request, and shall request at least weekly, on behalf of the applicable Borrowers (which hereby irrevocably authorize the Swing Line Lender to so request on their behalf), that (x) with respect to Swing Line Loans made to the ETMC Borrowers, that each ETMC Lender make a Base Rate Loan in an amount equal to such ETMC Lender’s ETMC Pro Rata Share of the amount of such Swing Line Loans then outstanding and (y) with respect to Swing Line Loans made to the Legacy Borrowers, that each Legacy Lender make a Base Rate Loan in an amount equal to such Legacy Lender’s Legacy Pro Rata Share of the amount of such Swing Line Loans then outstanding. Such request shall be made in writing (which written request shall be deemed to be a Loan Notice for purposes hereof) and in accordance with the requirements of Section 2.02, without regard to the minimum and multiples specified therein for the principal amount of Base Rate Loans, but subject to the unutilized portion of the aggregate Commitments and the conditions set forth in Section 5.02. The Swing Line Lender shall furnish the applicable Borrowers with a copy of the applicable Loan Notice promptly after delivering such notice to the Administrative Agent. Each Lender under the applicable Revolving Credit Facility shall make an amount equal to its Applicable Pro Rata Share of the amount specified in such Loan Notice available to the Administrative Agent in immediately available funds for the account of the Swing Line Lender at the Administrative Agent’s Office for payments not later than 11:00 a.m. (New York City time) on the day specified in such Loan Notice, whereupon, subject to Section 2.04(c)(ii), each such Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the applicable Borrowers in such amount. The Administrative Agent shall remit the funds so received to the Swing Line Lender.
(ii) If for any reason any Swing Line Loan cannot be refinanced by such a Revolving Credit Borrowing in accordance with Section 2.04(c)(i), the request for Base Rate Loans submitted by the Swing Line Lender as set forth herein shall be deemed to be a request by the Swing Line Lender that each of the Lenders under the applicable Revolving Credit Facility fund its risk participation in the relevant Swing Line Loan and each such Lender’s payment to the Administrative Agent for the account of the Swing Line Lender pursuant to Section 2.04(c)(i) shall be deemed payment in respect of such participation.
(iii) If any Lender fails to make available to the Administrative Agent for the account of the Swing Line Lender any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.04(c) by the time specified in Section 2.04(c)(i), the Swing Line Lender shall be entitled
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to recover from such Lender (acting through the Administrative 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 the Swing Line Lender at a rate per annum equal to the Federal Funds Rate. A certificate of the Swing Line Lender submitted to any Lender (through the Administrative Agent) with respect to any amounts owing under this clause (iii) shall be conclusive absent manifest error.
(iv) Each Lender’s obligation to make Loans or to purchase and fund risk participations in Swing Line Loans pursuant to this Section 2.04(c) shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the Swing Line Lender, the Borrowers 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 that each Lender’s obligation to make Loans (but not to purchase and fund risk participations in Swing Line Loans) pursuant to this Section 2.04(c) is subject to the conditions set forth in Section 5.02. No such funding of risk participations shall relieve or otherwise impair the obligation of the Borrowers to repay Swing Line Loans, together with interest as provided herein.
(d) Repayment of Participations.
(i) At any time after any Lender has purchased and funded a risk participation in a Swing Line Loan, if the Swing Line Lender receives any payment on account of such Swing Line Loan, the Swing Line Lender will distribute to such Lender its Applicable Pro Rata Share of such payment (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s risk participation was funded) in the same funds as those received by the Swing Line Lender.
(ii) If any payment received by the Swing Line Lender in respect of principal or interest on any Swing Line Loan is required to be returned by the Swing Line Lender under any of the circumstances described in Section 11.06 (including pursuant to any settlement entered into by the Swing Line Lender in its discretion), each Lender shall pay to the Swing Line Lender its Applicable Pro Rata Share thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned, at a rate per annum equal to the Federal Funds Rate. The Administrative Agent will make such demand upon the request of the Swing Line Lender.
(e) Interest for Account of Swing Line Lender. The Swing Line Lender shall be responsible for invoicing the Borrowers for interest on the Swing Line Loans. Until each Lender funds its Base Rate Loan or risk participation pursuant to this Section 2.04 to refinance such Lender’s Applicable Pro Rata Share of any Swing Line Loan, interest in respect of such Applicable Pro Rata Share shall be solely for the account of the Swing Line Lender.
(f) Payments Directly to Swing Line Lender. The Borrowers shall make all payments of principal and interest in respect of the Swing Line Loans directly to the Swing Line Lender.
2.05 | Prepayments |
(a) Voluntary Prepayments of Loans. The Borrowers may, upon notice from any Borrower to the Administrative Agent in the form of a written Prepayment Notice, at any time or from time to time voluntarily prepay the Loans in whole or in part without premium (except as otherwise set forth below) or penalty; provided that (x) such Prepayment Notice shall contain the information required by the immediately succeeding sentence and must be and received by the Administrative Agent not later than 12:00 p.m. (A) three Business Days prior to any date of prepayment of Term SOFR Loans, and (B) on the date of prepayment of Base Rate Loans; (y) any such prepayment of Term SOFR Loans shall be in a
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principal amount of $500,000 or a whole multiple of $100,000 in excess thereof (or, if less, the entire principal amount thereof then outstanding); and (z) any prepayment of Base Rate Loans shall be in a principal amount of $250,000 or a whole multiple of $250,000 in excess thereof (or, if less, the entire principal amount thereof then outstanding). The Borrowers may, upon notice from the Borrowers to the Administrative Agent in the form of a written Prepayment Notice, at any time or from time to time voluntarily prepay the Swing Line Loans in whole or in part without premium or penalty; provided that (i) such Prepayment Notice must be received by the Administrative Agent not later than 12:00 p.m. on the date of prepayment of Base Rate Loans; (ii) any prepayment shall be in a principal amount of $100,000 or a whole multiple of $50,000 in excess thereof (or, if less, the entire principal amount thereof then outstanding). Each such Prepayment Notice shall specify the date and amount of such prepayment and the Type(s) and Revolving Credit Facility of Loans to be prepaid. The Administrative Agent will promptly notify each Lender under the applicable Revolving Credit Facility of its receipt of each such Prepayment Notice, and of the amount of such Lender’s Applicable Pro Rata Share of such prepayment. The Borrower providing such Prepayment Notice shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein, except that any such Prepayment Notice may state that such notice is conditioned upon the occurrence or non-occurrence of any event specified therein (including the effectiveness of other credit facilities), in which case such Prepayment Notice may be revoked by such Borrower on or prior to the date of prepayment if such condition is not satisfied. Any prepayment of a Term SOFR Loan shall be accompanied by all accrued interest thereon, together with any additional amounts required pursuant to Section 3.05. Each such prepayment shall be applied to the Loans of the Lenders under the applicable Revolving Credit Facility (as determined by the Administrative Borrower) in accordance with their respective Applicable Pro Rata Shares.
(b) Mandatory Prepayments of Loans.
(i) If at any time, (x) the Total Legacy Outstandings exceeds the Legacy Line Cap then in effect or (y) the Total ETMC Outstandings exceeds the ETMC Line Cap then in effect, the Borrowers under such Revolving Credit Facility shall, promptly, but in any event within one (1) Business Day, prepay or cause to be promptly prepaid Loans under such Revolving Credit Facility and Swing Line Loans made to Borrowers under such Revolving Credit Facility and/or (with respect to the Legacy Credit Facility) Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided that the Legacy Borrowers shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(i) unless after the prepayment in full of the Legacy Revolving Loans and Swing Line Loans made to Legacy Borrowers, such aggregate Outstanding Amount exceeds the Legacy Line Cap.
(ii) On each Business Day during any Cash Dominion Period, the Administrative Agent shall apply (x) all funds credited to the Deposit Accounts of the Loan Parties (other than the ETMC Loan Parties) subject to Deposit Account Control Agreements the previous Business Day (whether or not immediately available) first to prepay any Protective Advances made to Legacy Borrowers that may be outstanding, second to prepay any outstanding Swing Line Loans made to Legacy Borrowers, third to prepay any Legacy Revolving Loans, fourth to Cash Collateralize outstanding L/C Obligations in an amount equal to one hundred three percent (103%) of such L/C Obligations, fifth to prepay any Protective Advances made to ETMC Borrowers that may be outstanding, sixth to prepay any outstanding Swing Line Loans made to ETMC Borrowers, and seventh to prepay any ETMC Revolving Loans and (y) all funds credited to the Deposit Accounts of the ETMC Loan Parties subject to Deposit Account Control Agreements the previous Business Day (whether or not immediately available) first to prepay any Protective Advances made to ETMC Borrowers that may be outstanding, second to prepay any outstanding Swing Line Loans made to ETMC Borrowers, third to prepay any ETMC Revolving Loans, fourth to prepay any Protective Advances made to Legacy Borrowers that may be outstanding, fifth to prepay any outstanding Swing Line Loans made to Legacy Borrowers, sixth to prepay any Legacy Revolving Loans and seventh to Cash Collateralize outstanding L/C Obligations in an amount equal to one hundred three percent (103%) of such L/C Obligations.
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2.06 | Termination or Reduction of Commitments |
(a) Mandatory. Unless previously terminated, the Commitments shall terminate at 5:00 p.m., New York City time, on the Maturity Date.
(b) Optional. The Borrowers may, upon written notice to the Administrative Agent, terminate the unused Commitments of any Type or of any Revolving Credit Facility, or from time to time permanently reduce the unused Commitments of any Type; provided that (i) any such notice shall be received by the Administrative Agent three (3) Business Days prior to the date of termination or reduction, (ii) any such partial reduction shall be in an aggregate amount of $1,000,000 or any whole multiple of $100,000 in excess thereof, and (iii) if, after giving effect to any reduction of the Commitments, the Letter of Credit Sublimit exceeds the amount of the Legacy Commitments or the Swing Line Sublimit exceeds the amount of the Commitments, such sublimit shall be automatically reduced by the amount of such excess. The amount of any such Commitment reduction shall not be applied to the Letter of Credit Sublimit or the Swing Line Sublimit unless otherwise specified by the Borrowers. Notwithstanding the foregoing, the Borrowers may rescind or postpone any notice of termination of the Commitments if such termination would have resulted from a refinancing of the applicable Facility, which refinancing shall not be consummated or otherwise shall be delayed.
(c) Application of Commitment Reductions; Payment of Fees. The Administrative Agent will promptly notify the Lenders under the applicable Revolving Credit Facility of any termination or reduction of unused portions of the Letter of Credit Sublimit, or the Swing Line Sublimit or the unused Commitments of any Type under this Section 2.06. Upon any reduction of unused Commitments of any Type, the Commitment of each Lender under the applicable Revolving Credit Facility of such Type shall be reduced by such Lender’s Applicable Pro Rata Share of the amount by which such Commitments are reduced (other than the termination of the Commitment of any Lender as provided in Section 11.16). All Commitment Fees accrued until the effective date of any termination of the Commitments shall be paid on the effective date of such termination.
2.07 | Repayment of Loans |
(a) Loans. The Borrowers shall repay the outstanding principal amount of the Loans in full on the Maturity Date or on such earlier date in the event the loans are accelerated pursuant to Section 9.02.
(b) Swing Line Loans. The Borrowers shall repay their Swing Line Loans on the earlier to occur of (i) the date seven (7) days after such Loan is made and (ii) the Maturity Date for the applicable Revolving Credit Facility.
(c) Protective Advances. The Borrowers shall repay to the Administrative Agent the then unpaid amount of each Protective Advance on the earlier of the Maturity Date and demand by the Administrative Agent.
2.08 | Interest |
(a) Subject to the provisions of Section 2.08(b), (i) each Term SOFR Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the sum of Term SOFR for such Interest Period plus the Applicable Rate, (ii) each Base Rate Loan shall bear
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interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate and (iii) each Swing Line Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate.
(b) Upon the occurrence and during the continuation of an Event of Default pursuant to clause (a), (f) or (g) of Section 9.01, then, at the direction of the Required Lenders, the Borrowers shall pay interest on the principal amount of all overdue and outstanding Obligations at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.
(c) Interest on each Loan shall be due and payable in arrears on each Interest Payment Date applicable thereto and at such other times as may be specified herein. Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Law.
2.09 | Fees |
In addition to certain fees described in Sections 2.03(g) and (h):
(a) Commitment Fee. The Borrowers shall pay to the Administrative Agent for the account of each Lender in accordance with its Applicable Pro Rata Share, a commitment fee (the “Commitment Fee”) equal to the Commitment Fee Rate times the actual daily amount by which the aggregate Commitment exceeds the sum of (A) the Outstanding Amount of Loans and (B) the Outstanding Amount of L/C Obligations; provided that any Commitment Fee accrued with respect to any of the Commitments of a Defaulting Lender during the period prior to the time such Lender became a Defaulting Lender and unpaid at such time shall not be payable by the Borrowers so long as such Lender shall be a Defaulting Lender except to the extent that such Commitment Fee shall otherwise have been due and payable by the Borrowers prior to such time; and provided further that no Commitment Fee shall accrue on any of the Commitments of a Defaulting Lender so long as such Lender shall be a Defaulting Lender. The Commitment Fees with respect to each Revolving Credit Facility shall accrue at all times from the Original Closing Date until the Maturity Date for such Revolving Credit Facility, including at any time during which one or more of the conditions in Article IV is not met, and shall be due and payable quarterly in arrears on the first day of each calendar quarter, commencing with the first such date to occur after the Original Closing Date, and on the Maturity Date for such Revolving Credit Facility. The Commitment Fee shall be calculated monthly in arrears, and if there is any change in the Applicable Rate during any month, the actual daily amount shall be computed and multiplied by the Applicable Rate separately for each period during such month that such Applicable Rate was in effect.
(b) Other Fees. The Borrowers shall pay to the Administrative Agent for its own account fees in the amounts and at the times specified in the Fee Letter. Such fees shall be fully earned when paid and shall be non-refundable for any reason whatsoever.
2.10 | Computation of Interest and Fees |
All computations of interest for Base Rate Loans (including Base Rate Loans determined by reference to Term SOFR) shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed. All other computations of fees and interest shall be made on the basis of a 360-day year and actual days elapsed (which results in more fees or interest, as applicable, being paid than if computed on the basis of a 365-day year). Interest shall accrue on each Loan for the day on which the
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Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid; provided that any Loan that is repaid on the same day on which it is made shall, subject to Section 2.12(a), bear interest for one day.
2.11 | Evidence of Debt |
(a) The Borrowings made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender and by the Administrative Agent in the ordinary course of business. The accounts or records maintained by the Administrative Agent and each Lender shall be conclusive absent manifest error of the amount of the Borrowings made by the Lenders to the Borrowers and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrowers hereunder to pay any amount owing with respect to the Obligations. In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of the Administrative Agent in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error. Upon the request of any Lender made through the Administrative Agent, the Borrowers shall execute and deliver to such Lender (through the Administrative Agent) a promissory note, which shall evidence such Lender’s Loans in addition to such accounts or records. Each such promissory note shall be substantially in the form of Exhibit H (a “Revolving Credit Note”). Each Lender may attach schedules to its Revolving Credit Note and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and payments with respect thereto.
(b) In addition to the accounts and records referred to in Section 2.11(a), each Lender and the Administrative Agent shall maintain in accordance with its usual practice accounts or records and, in the case of the Administrative Agent, entries in the Register, evidencing the purchases and sales by such Lender of participations in Letters of Credit and Swing Line Loans. In the event of any conflict between the accounts and records maintained by the Administrative Agent and the accounts and records of any Lender in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error.
2.12 | Payments Generally |
(a) All payments to be made by the Borrowers shall be made without condition or deduction for any counterclaim, defense (other than payment in full), recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrowers hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the Administrative Agent’s Office in Dollars and in immediately available funds not later than 12:00 p.m. on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Applicable Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office. All payments received by the Administrative Agent after 12:00 p.m. shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.
(b) Subject to the definition of “Interest Period,” if any payment to be made by the Borrowers shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be.
(c) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, interest and fees then due hereunder, such funds shall be applied (i) first, toward costs and expenses (including Attorney Costs and amounts payable under Article III)
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incurred by the Administrative Agent and each Lender, (ii) second, toward repayment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (iii) third, toward repayment of principal then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal then due to such parties.
(d) Unless the Borrowers or any Lender has notified the Administrative Agent, prior to the time any payment is required to be made by it to the Administrative Agent hereunder, that the Borrowers or such Lender, as the case may be, will not make such payment, the Administrative Agent may assume that the Borrowers or such Lender, as the case may be, has timely made such payment and may (but shall not be so required to), in reliance thereon, make available a corresponding amount to the Person entitled thereto. If and to the extent that such payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) with respect to any payment that the Administrative Agent makes for the account of the Lenders or any L/C Issuer hereunder as to which the Administrative Agent determines (which determination shall be conclusive absent manifest error) that any of the following applies (such payment referred to as the “Rescindable Amount”): (1) the Borrowers have not in fact made such payment; (2) the Administrative Agent has made a payment in excess of the amount so paid by the Borrowers (whether or not then owed); or (3) the Administrative Agent has for any reason otherwise erroneously made such payment; then each of the Lenders or the L/C Issuers, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the Rescindable Amount so distributed to such Lender or such L/C Issuer, in immediately available funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrowers to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at a rate per annum equal to the Federal Funds Rate from time to time in effect. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon the Borrowers, and the Borrowers shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrowers may have against any Lender as a result of any default by such Lender hereunder.
A notice of the Administrative Agent to any Lender or the Borrowers with respect to any amount owing under this Section 2.12(d) shall be conclusive, absent manifest error.
(e) If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this Article II, and such funds are not made available to the Borrowers by the Administrative Agent because the conditions to the applicable Borrowing set forth in Article V are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
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(f) The obligations of the Lenders hereunder to make Loans and to fund participations in Letters of Credit and Swing Line Loans are several and not joint. The failure of any Lender to make any Loan required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan or purchase its participation.
(g) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(h) Notwithstanding any provision to the contrary contained herein or in any other of the Loan Documents, if at any time following the occurrence and during the continuation of an Event of Default, but prior to the exercise of remedies as provided for in Section 9.02, payment is made by the Borrowers and is applied to payment of principal or interest on the Loans, such payment shall be applied ratably to the unpaid principal or interest, as the case may be, of the Loans (and breakage, termination or other payments and any interest accrued thereon).
2.13 | Sharing of Payments |
If, other than as expressly provided elsewhere herein, any Lender shall obtain on account of the Loans made by it, or the participations in L/C Obligations and Swing Line Loans held by it, any payment (whether voluntary, involuntary, through the exercise of any right of setoff, or otherwise) in excess of its ratable share (or other share contemplated hereunder) thereof, such Lender shall immediately (a) notify the Administrative Agent of such fact, and (b) purchase from the other Lenders such participations in the Loans made by them and/or such subparticipations in the participations in L/C Obligations or Swing Line Loans held by them, as the case may be, as shall be necessary to cause such purchasing Lender to share the excess payment in respect of such Loans, pro rata with each of them; provided, however, that if all or any portion of such excess payment is thereafter recovered from the purchasing Lender under any of the circumstances described in Section 11.06 (including pursuant to any settlement entered into by the purchasing Lender in its discretion), such purchase shall to that extent be rescinded and each other Lender shall repay to the purchasing Lender the purchase price paid therefor, together with an amount equal to such paying Lender’s ratable share (according to the proportion of (i) the amount of such paying Lender’s required repayment to (ii) the total amount so recovered from the purchasing Lender) of any interest or other amount paid or payable by the purchasing Lender in respect of the total amount so recovered, without further interest thereon. The Borrowers agree that any Lender so purchasing a participation from another Lender may, to the fullest extent permitted by applicable law, exercise all its rights of payment (including the right of setoff, but subject to Section 11.09) with respect to such participation as fully as if such Lender were the direct creditor of the Borrowers in the amount of such participation. The Administrative Agent will keep records (which shall be conclusive and binding in the absence of manifest error) of participations purchased under this Section 2.13 and will in each case notify the Lenders following any such purchases or repayments. Each Lender that purchases a participation pursuant to this Section 2.13 shall from and after such purchase have the right to give all notices, requests, demands, directions and other communications under this Agreement with respect to the portion of the Obligations purchased to the same extent as though the purchasing Lender were the original owner of the Obligations purchased.
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2.14 | Increase in Commitments |
(a) Subject to the terms and conditions set forth herein,
after the Amendment No. 4 Effective Date, the Administrative
Borrower shall have the right to request, by written notice to the Administrative Agent, increases in the Legacy Commitments and/or the ETMC Commitments (a “Revolving Commitment Increase”) in an aggregate amount not to exceed
$100,000,000; provided that (i) any Revolving Commitment Increase shall be on the terms (including the Maturity Date) and pursuant to the documentation applicable to the Revolving Credit Facilities, (ii) the Administrative Borrower
shall only be permitted to request three Revolving Commitment Increases during the term of this Agreement,
(iii) each Revolving Commitment Increase with respect to the Legacy Commitments shall be conditioned on
receipt by the Administrative Agent of an amendment to the Relative Rights Agreement, duly executed by each
of the applicable parties as required by the terms of the
Relative Rights Agreement, to increase both the Cap Amount Floor and the Cap Amount (each as defined in the
Relative Rights Agreement) by an amount not less than the amount of such Revolving Commitment Increase and
(viv
) any Revolving Commitment Increase shall be in a minimum amount of $5,000,000.
(b) Each notice submitted pursuant to this Section 2.14 (a “Revolving Commitment Increase Notice”) requesting a Revolving Commitment Increase shall specify (x) the amount of the increase in the Commitments being requested and (y) whether such increase is requested for the ETMC Commitments or the Legacy Commitments. Upon receipt of a Revolving Commitment Increase Notice, the Administrative Agent may (at the direction of the Administrative Borrower) promptly notify the Lenders under the applicable Revolving Credit Facility and each such Lender may (subject to the Administrative Borrower’s consent) have the right to elect to have its Commitment increased by its Applicable Pro Rata Share (it being understood and agreed that a Lender may elect to have its Commitment increased in excess of its Applicable Pro Rata Share in its discretion if any other Lender declines to participate in the Revolving Commitment Increase) of the requested increase in Commitments; provided that (i) each applicable Lender may elect or decline, in its sole discretion, to have its Commitment increased in connection with any requested Revolving Commitment Increase, it being understood that no Lender shall be obligated to increase its Commitment unless it, in its sole discretion, so agrees and, if a Lender fails to respond to any Revolving Commitment Increase Notice within ten (10) Business Days after such Lender’s receipt of such request, such Lender shall be deemed to have declined to participate in such Revolving Commitment Increase; (ii) if any Lender declines to participate in any Revolving Commitment Increase and, as a result, commitments from additional financial institutions are required in connection with the Revolving Commitment Increase, or if the Administrative Borrower does not instruct the Administrative Agent to initially request increases of the existing Lenders and commitments of additional lenders are sought in connection with the Revolving Commitment Increase, any Person or Persons providing such commitment shall be subject to the written consent of the Administrative Agent and the Swing Line Lenders and with respect to Revolving Commitment Increases for the Legacy Commitments, the L/C Issuers (each such consent not to be unreasonably withheld or delayed), in each case, if such consent would be required pursuant to Section 11.07; (iii) in no event shall a Defaulting Lender be entitled to participate in such Revolving Commitment Increase and (iv) no L/C Issuer or Swing Line Lender shall be required to act in such capacity under the Revolving Commitment Increase without its prior written consent. In the event that any Lender or other Person agrees to participate in any Revolving Commitment Increase (each an “Increase Loan Lender”), such Revolving Commitment Increase shall become effective on such date as shall be mutually agreed upon by the Increase Loan Lenders and the Administrative Borrower, which date shall be as soon as practicable after the date of receipt of the Revolving Commitment Increase Notice (such date, the “Increase Date”); provided that the establishment of such Revolving Commitment Increase shall be subject to the satisfaction of each of the following conditions: (1) (x) no Default or Event of Default would exist after giving effect thereto or (y) if the Revolving Commitment Increase is used to finance a Permitted Acquisition or Permitted Investment, no Event of Default pursuant to Section 9.01(a) or 9.01(f) exists; (2) the Revolving Commitment Increase
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shall be effected pursuant to one or more joinder agreements executed and delivered by the Administrative Borrower, the Administrative Agent, and the Increase Loan Lenders, each of which shall be reasonably satisfactory to the Administrative Borrower, the Administrative Agent, and the Increase Loan Lenders; (3) Loan Parties shall execute and deliver or cause to be executed and delivered to the Administrative Agent such amendments to the Loan Documents, legal opinions and other documents as the Administrative Agent may reasonably request in connection with any such transaction, which amendments, legal opinions and other documents shall be reasonably satisfactory to the Administrative Agent; (4) the representations and warranties contained in Article VI shall be true and correct in all material respects (or in all respects to the extent that any representation or warranty is qualified by materiality) as of the Increase Date; provided that, if the Revolving Commitment Increase is used to finance a Permitted Acquisition or a Permitted Investment, the representations and warranties shall be subject to customary “Sungard” limitations; and (5) the Borrowers shall have paid to the Administrative Agent and the Lenders such additional fees as may be agreed to be paid by the Borrowers in connection therewith.
(c) On the Increase Date, upon fulfillment of the conditions set forth in this Section 2.14, (i) the Administrative Agent shall effect a settlement of all outstanding Loans under the applicable Revolving Credit Facility among the applicable Lenders that will reflect the adjustments to the Commitments under the applicable Revolving Credit Facility of the applicable Lenders as a result of the Revolving Commitment Increase, (ii) the Administrative Agent shall notify the Lenders and Loan Parties of the occurrence of the Revolving Commitment Increase to be effected on the Increase Date, (iii) Schedule 2.01 shall be deemed modified to reflect the revised Commitments of the affected Lenders and (iv) Revolving Credit Notes will be issued, at the expense of the Borrowers, to any Lender participating in the Revolving Commitment Increase and requesting a Revolving Credit Note.
(d) The terms and provisions of the Revolving Commitment Increase shall be identical to the Loans and the Commitments under the applicable Revolving Credit Facility. Without limiting the generality of the foregoing, (i) Commitment Fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rates applicable to the existing Loans under the applicable Revolving Credit Facility, (ii) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Loans under the applicable Revolving Credit Facility, (iii) after giving effect to such Revolving Commitment Increases, Commitments under the applicable Revolving Credit Facility shall be reduced based on each such Lender’s Applicable Pro Rata Share, and (iv) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the existing Loans under the applicable Revolving Credit Facility. Each joinder agreement and any amendment to any Loan Document requested by the Administrative Agent in connection with the establishment of the Revolving Commitment Increase may, without the consent of any of the Lenders, effect such amendments to this Agreement and the other Loan Documents as may be reasonably necessary or appropriate, in the opinion of the Administrative Agent and the Administrative Borrower, to effect the provisions of this Section 2.14.
2.15 | Defaulting Lenders |
(a) Adjustments. Notwithstanding anything to the contrary contained in this 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 Agreement shall be restricted as set forth in Section 11.01.
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(ii) Reallocation of Payments. Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of that Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article IX or otherwise, and including any amounts made available to the Administrative Agent by that Defaulting Lender pursuant to Section 11.09), shall be applied at such time or times as may be determined by the Administrative Agent in consultation with the Borrowers as follows: first, to the payment of any amounts owing by that Defaulting Lender to the Administrative Agent hereunder; second, if so determined by the Administrative Agent as the Borrowers 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 Agreement, as determined by the Administrative Agent; third, if so determined by the Administrative Agent and the Borrowers, 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 Agreement; fourth, to the payment of any amounts owing to the Lenders, as a result of any judgment of a court of competent jurisdiction obtained by any Lender, against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; fifth, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; and sixth, 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 in respect of which that Defaulting Lender has not fully funded its appropriate share and (y) such Loans were made at a time when the conditions set forth in Section 5.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of all non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of 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.
(b) Defaulting Lender Cure. If the Borrowers, and the Administrative Agent, agree in writing in their sole discretion that a Defaulting Lender should no longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective 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 Administrative Agent may determine to be necessary to cause the Loans to be held on a pro rata basis by the Lenders in accordance with their Applicable Pro Rata Shares), 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 Borrowers while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties and subject to Section 11.22, 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.
2.16 | Protective Advances. |
(a) Subject to the limitations set forth below, the Administrative Agent is authorized by the Administrative Borrower and the Lenders, from time to time in the Administrative Agent’s sole discretion (but shall have absolutely no obligation), to make Legacy Revolving Loans to any Legacy Borrower, on behalf of all Legacy Lenders, and ETMC Revolving Loans to any ETMC Borrower, on behalf of all ETMC Lenders, in each case, which the Administrative Agent, in its reasonable discretion,
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deems necessary or desirable (i) to preserve or protect the Collateral, or any portion thereof, (ii) to enhance the likelihood of, or maximize the amount of, repayment of the Loans under such Revolving Credit Facility and other Obligations or (iii) to pay any other amount chargeable to or required to be paid by the Loan Parties pursuant to the terms of this Agreement, including payments of reimbursable expenses (including costs, fees, and expenses as described in Section 11.04) and other sums payable under the Loan Documents (any of such Loans are herein referred to as “Protective Advances”); provided that, (x) the aggregate amount of Protective Advances made to Legacy Borrowers and outstanding at any time shall not at any time exceed 10% of the Legacy Line Cap and (y) the aggregate amount of Protective Advances made to ETMC Borrowers and outstanding at any time shall not at any time exceed 10% of the ETMC Line Cap; provided further that (x) the aggregate amount of outstanding Protective Advances made to ETMC Borrowers plus the aggregate amount of the other Total ETMC Outstandings shall not exceed the ETMC Commitments and (y) the aggregate amount of outstanding Protective Advances made to Legacy Borrowers plus the aggregate amount of the other Total Legacy Outstandings shall not exceed the Legacy Commitments. Protective Advances may be made even if the conditions precedent set forth in Section 5.02 have not been satisfied. The Protective Advances shall be secured by the Collateral Documents and shall constitute Obligations hereunder and under the other Loan Documents. All Protective Advances shall be Base Rate Loans. The Administrative Agent’s authorization to make Protective Advances may be revoked at any time by the Required Lenders. Any such revocation must be in writing and shall become effective prospectively upon the Administrative Agent’s receipt thereof. Notwithstanding anything to the contrary set forth in Section 2.02, at any time that there is sufficient Availability and the conditions precedent set forth in Section 5.02 have been satisfied, the Administrative Agent may request the applicable Lenders to make a Legacy Revolving Loan or ETMC Revolving Loan, as applicable, to repay a Protective Advance. At any other time the Administrative Agent may require the applicable Lenders to fund their risk participations described in Section 2.16(b).
(b) Upon the making of a Protective Advance by the Administrative Agent (whether before or after the occurrence of a Default), each Lender under the applicable Revolving Credit Facility shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from the Administrative Agent without recourse or warranty an undivided interest and participation in such Protective Advance in proportion to its Applicable Pro Rata Share. On any Business Day, the Administrative Agent may, in its sole discretion, give notice to any Protective Advance is outstanding on the thirtieth calendar day following the date of Borrowing of such Protective Advance, then on the first Business Day following such thirtieth calendar day, the Administrative Agent shall give such notice) in which case each Lender under the applicable Revolving Credit Facility shall fund its participation on the date specified in such notice. From and after the date, if any, on which any Lender is required to fund its participation in any Protective Advance purchased hereunder, the Administrative Agent shall promptly distribute to such Lender, such Lender’s Applicable Pro Rata Share of all payments of principal and interest and all proceeds of Collateral received by the Administrative Agent in respect of such Protective Advance.
2.17 | Relative Rights Agreement Assignment |
(a) Immediately following the receipt by the Administrative Agent of cash proceeds in respect of the exercise of and consummation of the Ventas Purchase Option in an amount equal to (i) the aggregate principal amount of then outstanding Legacy Revolving Loans and Swing Line Loans made to Legacy Borrowers (collectively, the “Converting ABL Loans”), (ii) an amount equal to 103% of the Outstanding Amount of all L/C Obligations as of such date (which shall be used to Cash Collateralize such L/C Obligations) and (iii) all accrued and unpaid interest, fees and other amounts (including amounts payable under Section 3.05) due on such Ventas Purchase Option ABL Loans to and including the date of such assignment from the Legacy Borrowers, (1) the Legacy Commitments shall be terminated in full (the “Termination”), (2) the Converting ABL Loans shall be converted (the
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“Conversion”) into non-revolving term loans (such term loans, the “Ventas Purchase Option ABL Loans”), which shall be due and payable on the Maturity Date and (3) the Legacy Lenders shall assign (such assignment, the “Ventas Purchase Option Assignment”) all Ventas Purchase Option ABL Loans to Ventas or one of its Affiliates (the “Ventas Assignees”). The Termination, the Conversion and the Ventas Purchase Option Assignment shall occur immediately upon the receipt by the Administrative Agent of the amounts described in the immediately preceding sentence and no Assignment and Assumption Agreement shall be required in connection with such assignment. In addition, in connection with and simultaneously with the Ventas Purchase Option Assignment, (A) the Legacy Lenders and the Administrative Agent shall assign to the Ventas Assignee (i) all of their rights to and interests in the guarantees and Liens provided by the Tenant Subsidiaries, (ii) all of the Liens securing the Legacy Credit Facilities by the pledge of the Capital Stock of the Tenant Subsidiaries and (iii) all of the Liens securing Legacy Credit Facilities by Collateral of the Tenant Subsidiaries and (B) to the extent applicable, the ETMC Lenders and the Administrative Agent shall release any right in, title to and Liens on the Collateral of the Tenant Subsidiaries) in respect of any Loans held by such ETMC Lender or Administrative Agent; provided that the ETMC Lenders and the Administrative Agent shall release and discharge each Tenant Subsidiary, and its successors and assigns (collectively, the “Released Parties”) from any and all claims, causes of action, damages and liabilities of any nature whatsoever against the Released Parties which relates, directly or indirectly, to the guarantees, the Obligations, the Loan Documents or the transactions relating thereto (other than any claims, causes of action, damages or liabilities related to indemnity payments, to the extent directly attributable to any Tenant Subsidiary, in each case, in respect of the guarantees, Obligations, the Loan Documents or the transactions relating thereto (excluding for the avoidance of doubt, reimbursement of expenses in connection with amending, negotiating preparing or administering any Loan Documents) from actions arising prior to the exercise of the Ventas Purchase Option (and unrelated thereto)).
(b) Upon consummation of the Ventas Purchase Option Assignment (i) the Ventas Purchase Option ABL Loans shall be (A) (x) guaranteed by the Loan Parties (other than the Tenant Subsidiaries) on an unsecured, silent second, passive and fully subordinated basis (on terms to be mutually agreed among the Ventas Assignee, the Tenant Subsidiaries, the other Loan Parties, the ETMC Required Lenders and the Administrative Agent) (other than with respect to the pledge of the Capital Stock of the Tenant Subsidiaries) to all Obligations hereunder, the obligations under the Term Loan Facility and the 2029 Notes Indenture and certain other Indebtedness of the Loan Parties subject to the Relative Rights Agreement and (y) guaranteed by the Tenant Subsidiaries and (B) shall only be secured by Liens on (x) the assets and property of such Tenant Subsidiaries that constitute Collateral for the Loans immediately prior to the Ventas Purchase Option Assignment and (y) the Capital Stock of the Tenant Subsidiaries; (ii) Non-Ventas Purchase Option ABL Loans shall not be guaranteed by the Tenant Subsidiaries or be secured by Liens on any assets or property of the Tenant Subsidiaries or the Capital Stock of the Tenant Subsidiaries, (iii) the borrower of the Ventas Purchase Option ABL Loans shall be a Tenant Subsidiary designated by the Ventas Assignee, (iv)the Ventas Purchase Option ABL Loans and the Non-Ventas Purchase Option ABL Loans shall be outstanding as separate credit facilities, (v) neither the Ventas Purchase Option ABL Loans nor the Non-Ventas Purchase Option ABL Loans shall not be subject to any amortization payments or mandatory prepayment provisions, in any case, prior to the maturity date of the ETMC Credit Facility, (vi) the Tenant Subsidiaries shall become Unrestricted Subsidiaries with respect to the Non-Ventas Purchase Option ABL Loans (without being required to satisfy any of the conditions set forth in the definition of “Unrestricted Subsidiaries”) and (vii) this Agreement shall be amended, amended and restated, supplemented or otherwise modified on the date of the consummation of the Ventas Purchase Option Assignment by a Ventas Purchase Option Amendment which documents the terms and conditions of the Ventas Purchase Option ABL Loans; provided that such amendments shall be on terms mutually agreed between the Ventas Assignee and the Borrowers (and to the extent affecting the Administrative Agent, the Administrative Agent) and shall include, without limitation, the following provisions: (1) the Ventas Purchase Option ABL Loans will deem Parent and each of its Subsidiaries,
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other than the Tenant Subsidiaries as Unrestricted Subsidiaries, (2) limitations on the incurrence of Liens on and pledges in respect of the Capital Stock of Tenant Subsidiaries, (3) separate voting and consent rights with respect to the Non-Ventas Purchase Option ABL Loans and the Ventas Purchase Option ABL Loans and any other provisions necessary to ensure that the Non-Ventas Purchase Option ABL Loans and the Ventas Purchase Option ABL Loans are separate credit facilities and provide for the documentation of the Ventas Purchase Option ABL Loans under separate loan documentation (which shall constitute Loan Documents), (4) provide for “cross defaults” between the Non-Ventas Purchase Option ABL Loans and the Ventas Purchase Option ABL Loans, (5) reflect the termination of the Legacy Commitments and the nature of the Ventas Purchase Option ABL Loans as non-revolving term loans that once repaid, may not be reborrowed, (6) reflect that the ETMC Borrowers shall not be liable for the Obligations with respect to the Ventas Purchase Option ABL Loans; provided that such amendments shall not directly or indirectly affect the ETMC Lenders holding Non-Ventas Purchase Option ABL Loans other than to provide that the Non-Ventas Purchase Option ABL Loans and Ventas Purchase Option ABL Loans shall be treated as separate credit facilities set forth in separate loan documents, as contemplated by clause (3) above, and to provide “cross defaults” contemplated by clause (4) above; provided further that, for the avoidance of doubt, additional covenants and restrictions solely with respect to the Tenant Subsidiaries shall not be deemed to directly or indirectly affect the Lenders holding Non-Ventas Purchase Option ABL Loans.
(c) Notwithstanding the foregoing, concurrently with consummation of the Ventas Purchase Option, the Borrowers, the Guarantors, the Ventas Assignee, the Ventas Purchase Option ABL Loan Agent and the Administrative Agent shall execute and deliver an amendment, amendment and restatement, supplement or other modification to this Agreement (the “Ventas Purchase Option Amendment”) and such other documentation as the Administrative Agent or the Ventas Purchase Option ABL Loan Agent shall reasonably request (including as set forth in clause (b) above). Any Ventas Purchase Option Amendment shall not require the consent of any Lender and may effect such amendments to the Loan Documents as may be necessary or appropriate, in the reasonable judgment of the Administrative Agent, the Ventas Purchase Option ABL Loan Agent, the Borrowers and the Ventas Assignee, to effect the provisions of this Section 2.17; provided that except as set forth in this Section 2.17, the terms applicable to the Non-Ventas Purchase Option ABL Loans immediately after giving effect to such Ventas Purchase Option Amendment shall not be any less favorable to Lenders holding Non-Ventas Purchase Option ABL Loans than the terms applicable to such Loans immediately prior to giving effect to such Ventas Purchase Option Amendment. The Ventas Purchase Option Amendment shall be binding on the Lenders, Ventas, the Loan Parties and the other parties hereto.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 | Taxes |
(a) Unless required by Law (as determined in good faith by the applicable withholding agent), any and all payments by any Loan Party to or for the account of the Administrative Agent or any Lender under any Loan Document shall be made free and clear of and without deduction or withholding for any and all present or future Taxes. If the applicable withholding agent shall be required by any Laws to deduct any Taxes from or in respect of any sum payable under any Loan Document to the Administrative Agent or any Lender, (i) if the Tax in question is an Indemnified Tax or an Other Tax, the sum payable by the applicable Loan Party shall be increased as necessary so that after all required deductions (including deductions applicable to additional sums payable under this Section 3.01) have been made, each Lender (or in the case of a payment made to the Administrative Agent for its own account, the Administrative Agent) receives an amount equal to the sum it would have received had no
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such deductions been made, (ii) the applicable withholding agent shall make such deductions, (iii) the applicable withholding agent shall timely pay the full amount deducted to the relevant taxation authority or other authority in accordance with applicable Laws, and (iv) within thirty days after the date of such payment, the applicable Loan Party (if the Loan Party is the applicable withholding agent) shall furnish to the Administrative Agent (which shall forward the same to such Lender) the original or a certified copy of a receipt evidencing payment thereof, or if no receipt is available, other evidence of payment reasonably satisfactory to the Administrative Agent.
(b) In addition, the Borrowers agree to pay any and all present or future stamp, court or documentary Taxes and any other excise, property or similar Taxes which arise from any payment made under any Loan Document or from the execution, delivery, performance, enforcement or registration of, or otherwise with respect to, any Loan Document (hereinafter referred to as “Other Taxes”).
(c) The Borrowers agree to indemnify the Administrative Agent and each Lender for (i) the full amount of Indemnified Taxes and Other Taxes (including any Indemnified Taxes or Other Taxes imposed or asserted by any jurisdiction on amounts payable under this Section 3.01) paid or payable by the Administrative Agent and such Lender and (ii) any liability (including additions to Tax, penalties, interest and expenses) arising therefrom or with respect thereto, in each case whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. Payment under this Section 3.01(c) shall be made within thirty days after the date the Lender or the Administrative Agent makes a demand therefor.
(d) If any Lender determines, in its good faith discretion, that it has received a refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by the Borrowers or with respect to which any Loan Party has paid additional amounts pursuant to this Section 3.01, it shall pay (subject to the Lender’s right of set-off) over such refund to the Borrowers or such Loan Party (but only to the extent of indemnity payments made, or additional amounts paid, by such Person under this Section 3.01 with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all reasonable and documented out-of-pocket expenses (including Taxes) of the Lender and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund net of any Taxes payable by such Lender); provided that the Borrowers or any Loan Party, upon the request of the Lender, agrees to repay the amount paid over to such Person (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Lender in the event the Lender is required to repay such refund to such Governmental Authority. This Section 3.01(d) shall not be construed to require the Lender to make available its tax returns (or any other information relating to its Taxes which it deems confidential) to the Borrowers or any other Person.
(e) Each Lender shall, at such times as are reasonably requested by the Borrowers or the Administrative Agent, provide the Borrowers and the Administrative Agent with any documentation prescribed by Law, or reasonably requested by the Borrowers or the Administrative Agent, certifying as to any entitlement of such Lender to an exemption from, or reduction in, any withholding Tax with respect to any payments to be made to such Lender under the Loan Documents. Each such Lender shall, whenever a lapse in time or change in circumstances renders such documentation (including any specific documentation required below in this Section 3.01(e)) expired, obsolete or inaccurate in any material respect, deliver promptly to the Borrowers and the Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the applicable withholding agent) or promptly notify the Borrowers and the Administrative Agent of its legal ineligibility to do so. Unless the applicable withholding agent has received forms or other documents satisfactory to it indicating that payments under any Loan Document to or for a Lender are not subject to withholding tax or are subject to such Tax at a rate reduced by an applicable tax treaty, the Borrowers, Administrative Agent or other applicable withholding agent may withhold amounts required to be withheld by applicable
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Law from such payments at the applicable statutory rate. Each Lender hereby authorizes the Administrative Agent to deliver to the Borrowers and to any successor Administrative Agent any documentation provided to the Administrative Agent pursuant to this Section 3.01(e).
Without limiting the generality of the foregoing:
(i) Each Lender that is a United States person (as defined in Section 7701(a)(30) of the Internal Revenue Code) shall deliver to the Borrowers and the Administrative Agent on or before the date on which it becomes a party to this Agreement two properly completed and duly signed original copies of Internal Revenue Service Form W-9 (or any successor form) certifying that such Lender is exempt from U.S. federal backup withholding.
(ii) Each Lender that is not a United States person (as defined in Section 7701(a)(30) of the Internal Revenue Code) shall deliver to the Borrowers and the Administrative Agent on or before the date on which it becomes a party to this Agreement (and from time to time thereafter when required by Law or upon the reasonable request of the Borrowers or the Administrative Agent) whichever of the following is applicable:
(I) two duly completed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E (or any successor forms) claiming eligibility for benefits of an income tax treaty to which the United States of America is a party;
(II) two duly completed copies of Internal Revenue Service Form W-8ECI (or any successor forms);
(III) in the case of a Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Internal Revenue Code, (x) a certificate, in substantially the form of Exhibit O (any such certificate a “United States Tax Compliance Certificate”), or any other form approved by the Administrative Agent, to the effect that such Lender is not (A) a “bank” within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (B) a “10 percent shareholder” of a Borrower within the meaning of Section 881(c)(3)(B) of the Internal Revenue Code, or (C) a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Internal Revenue Code, and that no payments in connection with the Loan Documents are effectively connected with such Lender’s conduct of a U.S. trade or business and (y) two duly completed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E (or any successor forms);
(IV) to the extent a Lender is not the beneficial owner (for example, where the Lender is a partnership, or is a Participant holding a participation granted by a participating Lender), Internal Revenue Service Form W-8IMY (or any successor forms) of the Lender, accompanied by a Form W-8ECI, W-8BEN or W-8BEN-E, United States Tax Compliance Certificate, Form W-9, Form W-8IMY (or other successor forms) or any other required information from each beneficial owner, as applicable (provided that, if the Lender is a partnership (and not a participating Lender) and one or more direct or indirect partner(s) are claiming the portfolio interest exemption, the United States Tax Compliance Certificate shall be provided by such Lender on behalf of such direct or indirect partner(s)); or
(V) any other form prescribed by applicable requirements of U.S. federal income tax law as a basis for claiming exemption from or a reduction in U.S. federal
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withholding Tax duly completed together with such supplementary documentation as may be prescribed by applicable requirements of Law to permit the Borrowers and the Administrative Agent to determine the withholding or deduction required to be made.
Notwithstanding any other provision of this Section 3.01(e), a Lender shall not be required to deliver any form that such Lender is not legally eligible to deliver.
(f) If a payment made to a Lender under any Loan 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 Internal Revenue Code, as applicable), such Lender shall deliver to the Borrowers and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA, to determine that such Lender has complied with such Lender’s obligations under FATCA and to determine the amount, if any, to deduct and withhold from such payment. Solely for purposes of this clause (f), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(g) If the Borrowers (or any other Loan Party) is required to pay any amount to any Lender or the Administrative Agent pursuant to this Section 3.01, then such Lender shall use reasonable efforts (consistent with legal and regulatory restrictions) to change the jurisdiction of its Lending Office so as to eliminate any such additional payment which may thereafter accrue, if such change in the sole reasonable judgment of such Lender (i) is not otherwise disadvantageous to such Lender and (ii) would not result in any unreimbursed cost or expense to such Lender.
(h) For the avoidance of doubt, any payments made by the Administrative Agent to any Lender shall be treated as payments made by the applicable Loan Party.
(i) For the avoidance of doubt, the term “Lender” shall, for purposes of this Section 3.01, include any L/C Issuer or any Swing Line Lender.
3.02 | Illegality |
If any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending Office to make, maintain or fund Loans whose interest is determined by reference to SOFR or Term SOFR, or to determine or charge interest rates based upon SOFR or Term SOFR, then, upon notice thereof by such Lender to the Borrowers (through the Administrative Agent), (a) any obligation of such Lender to make or continue Term SOFR Loans or to convert Base Rate Loans to Term SOFR Loans shall be suspended, and (b) if such notice asserts the illegality of such Lender making or maintaining Base Rate Loans the interest rate on which is determined by reference to the Term SOFR component of the Base Rate, the interest rate on the Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Term SOFR component of the Base Rate, in each case until such Lender notifies the Administrative Agent and the Borrowers that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, (i) the Borrowers shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay or, if applicable, convert all Term SOFR Loans of such Lender to Base Rate Loans (the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Term SOFR component of the Base Rate), either on the last day of the Interest Period
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therefor, if such Lender may lawfully continue to maintain such Term SOFR Loan to such day, or immediately, if such Lender may not lawfully continue to maintain such Term SOFR Loan and (ii) if such notice asserts the illegality of such Lender determining or charging interest rates based upon SOFR, the Administrative Agent shall during the period of such suspension compute the Base Rate applicable to such Lender without reference to the Term SOFR component thereof until the Administrative Agent is advised in writing by such Lender that it is no longer illegal for such Lender to determine or charge interest rates based upon SOFR. Upon any such prepayment or conversion, the Borrowers shall also pay accrued interest on the amount so prepaid or converted, together with any additional amounts required pursuant to Section 3.05.
3.03 | Inability To Determine Rates |
(a) If in connection with any request for a Term SOFR Loan or a conversion of Base Rate Loans to Term SOFR Loans or a continuation of any of such Loans, as applicable, (i) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that (A) no Successor Rate has been determined in accordance with Section 3.03(b), and the circumstances under clause (i) of Section 3.03(b) or the Scheduled Unavailability Date has occurred, or (B) adequate and reasonable means do not otherwise exist for determining Term SOFR for any requested Interest Period with respect to a proposed Term SOFR Loan or in connection with an existing or proposed Base Rate Loan, or (ii) the Administrative Agent or the Required ETMC Lenders or Required Legacy Lenders, as applicable, determine that for any reason Term SOFR for any requested Interest Period with respect to a proposed Loan does not adequately and fairly reflect the cost to such Lenders of funding such Loan, the Administrative Agent will promptly so notify the Administrative Borrower and each Lender. Thereafter, (x) the obligation of the Lenders to make or maintain Term SOFR Loans, or to convert Base Rate Loans to Term SOFR Loans, shall be suspended (to the extent of the affected Term SOFR Loans or Interest Periods), and (y) in the event of a determination described in the preceding sentence with respect to the Term SOFR component of the Base Rate, the utilization of the Term SOFR component in determining the Base Rate shall be suspended, in each case until the Administrative Agent (or, in the case of a determination by the Required ETMC Lenders or Required Legacy Lenders, as applicable, described in clause (ii) of this Section 3.03(a), until the Administrative Agent upon instruction of the Required ETMC Lenders or Required Legacy Lenders, as applicable) revokes such notice. Upon receipt of such notice, (i) the Administrative Borrower may revoke any pending request for a Borrowing of, or conversion to, or continuation of Term SOFR Loans (to the extent of the affected Term SOFR Loans or Interest Periods) or, failing that, will be deemed to have converted such request into a request for a Borrowing of Base Rate Loans in the amount specified therein and (ii) any outstanding Term SOFR Loans shall be deemed to have been converted to Base Rate Loans immediately at the end of their respective applicable Interest Period.
(b) Replacement of Term SOFR or Successor Rate. Notwithstanding anything to the contrary in this Agreement or any other Loan Documents, if the Administrative Agent determines (which determination shall be conclusive absent manifest error), or the Administrative Borrower or the Required ETMC Lenders or Required Legacy Lenders, as applicable, notify the Administrative Agent (with, in the case of the Required ETMC Lenders or Required Legacy Lenders, as applicable, a copy to the Administrative Borrower) that the Administrative Borrower or the Required ETMC Lenders or Required Legacy Lenders (as applicable) have determined, that:
(i) adequate and reasonable means do not exist for ascertaining one month, three month and six month interest periods of Term SOFR, including, without limitation, because the Term SOFR Screen Rate is not available or published on a current basis and such circumstances are unlikely to be temporary; or
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(ii) CME or any successor administrator of the Term SOFR Screen Rate or a Governmental Authority having jurisdiction over the Administrative Agent or such administrator with respect to its publication of Term SOFR, in each case acting in such capacity, has made a public statement identifying a specific date after which one month, three month and six month interest periods of Term SOFR or the Term SOFR Screen Rate shall or will no longer be made available, or permitted to be used for determining the interest rate of U.S. dollar denominated syndicated loans, or shall or will otherwise cease, provided that, at the time of such statement, there is no successor administrator that is satisfactory to the Administrative Agent, that will continue to provide such interest periods of Term SOFR after such specific date (the latest date on which one month, three month and six month interest periods of Term SOFR or the Term SOFR Screen Rate are no longer available permanently or indefinitely, the “Scheduled Unavailability Date”);
then, on a date and time determined by the Administrative Agent (any such date, the “Term SOFR Replacement Date”), which date shall be at the end of an Interest Period or on the relevant interest payment date, as applicable, for interest calculated and, solely with respect to clause (ii) above, no later than the Scheduled Unavailability Date, Term SOFR will be replaced hereunder and under any Loan Document with Daily Simple SOFR plus the SOFR Adjustment for any payment period for interest calculated that can be determined by the Administrative Agent, in each case, without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document (the “Successor Rate”).
If the Successor Rate is Daily Simple SOFR plus the SOFR Adjustment, all interest payments will be payable on a monthly basis.
Notwithstanding anything to the contrary herein, (i) if the Administrative Agent determines that Daily Simple SOFR is not available on or prior to the Term SOFR Replacement Date, or (ii) if the events or circumstances of the type described in Section 3.03(b)(i) or (ii) have occurred with respect to the Successor Rate then in effect, then in each case, the Administrative Agent and the Administrative Borrower may amend this Agreement solely for the purpose of replacing Term SOFR or any then current Successor Rate in accordance with this Section 3.03 at the end of any Interest Period, relevant interest payment date or payment period for interest calculated, as applicable, with an alternative benchmark rate giving due consideration to any evolving or then existing convention for similar U.S. dollar denominated credit facilities syndicated and agented in the United States for such alternative benchmark, and, in each case, including any mathematical or other adjustments to such benchmark giving due consideration to any evolving or then existing convention for similar U.S. dollar denominated credit facilities syndicated and agented in the United States for such benchmark. For the avoidance of doubt, any such proposed rate and adjustments, shall constitute a “Successor Rate”. Any such amendment shall become effective at 5:00 p.m. on the fifth Business Day after the Administrative Agent shall have posted such proposed amendment to all Lenders and the Administrative Borrower unless, prior to such time, Lenders comprising the Required ETMC Lenders or Required Legacy Lenders, as applicable, have delivered to the Administrative Agent written notice that such Required ETMC Lenders or Required Legacy Lenders, as applicable, object to such amendment.
The Administrative Agent will promptly (in one or more notices) notify the Administrative Borrower and each Lender of the implementation of any Successor Rate.
Any Successor Rate shall be applied in a manner consistent with market practice; provided that to the extent such market practice is not administratively feasible for the Administrative Agent, such Successor Rate shall be applied in a manner as otherwise reasonably determined by the Administrative Agent.
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Notwithstanding anything else herein, if at any time any Successor Rate as so determined would otherwise be less than 0.0%, the Successor Rate will be deemed to be 0.0% for the purposes of this Agreement and the other Loan Documents.
In connection with the implementation of a Successor Rate, the Administrative Agent will have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement; provided that, with respect to any such amendment effected, the Administrative Agent shall post each such amendment implementing such Conforming Changes to the Administrative Borrower and the Lenders reasonably promptly after such amendment becomes effective.
For purposes of this Section 3.03, those Lenders that either have not made, or do not have an obligation under this Agreement to make, the relevant Loans in Dollars shall be excluded from any determination of the Required ETMC Lenders or the Required Legacy Lenders.
3.04 | Increased Cost and Reduced Return; Capital Adequacy |
(a) Increased Costs Generally. If any Change in Law shall (i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or any L/C Issuer; (ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Other Taxes indemnifiable under Section 3.01 and (C) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or (iii) impose on any Lender or any L/C Issuer any other condition, cost or expense affecting this Agreement or Term SOFR Loans made by such Lender or any Letter of Credit or participation therein; and the result of any of the foregoing shall be to increase the cost to such Lender of making, converting to, continuing or maintaining any Loan (or of maintaining its obligation to make any such Loan), or to increase the cost to such Lender or such L/C Issuer 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 the amount of any sum received or receivable by such Lender or such L/C Issuer hereunder (whether of principal, interest or any other amount) then, upon request of such Lender or such L/C Issuer, the Borrower will pay to such Lender or such L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or such L/C Issuer, as the case may be, for such additional costs incurred or reduction suffered.
(b) Capital Requirements. If any Lender or any L/C Issuer determines that any Change in Law affecting such Lender or such L/C Issuer or any Lending Office of such Lender or such Lender’s or such L/C Issuer’s holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or such L/C Issuer’s capital or on the capital of such Lender’s or such L/C Issuer’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by, or participations in Letters of Credit or Swing Line Loans held by, such Lender, or the Letters of Credit issued by such L/C Issuer, to a level below that which such Lender or such L/C Issuer or such Lender’s or such L/C Issuer’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or such L/C Issuer’s policies and the policies of such Lender’s or such L/C Issuer’s holding company with respect to capital adequacy), then from time to time the Borrowers will pay to such Lender or such L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or such L/C Issuer or such Lender’s or such L/C Issuer’s holding company for any such reduction suffered.
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(c) Delay in Requests. Failure or delay on the part of any Lender or any L/C Issuer to demand compensation pursuant to the foregoing provisions of this Section 3.04 shall not constitute a waiver of such Lender’s or such L/C Issuer’s right to demand such compensation, provided that the Borrowers shall not be required to compensate a Lender or an L/C Issuer pursuant to the foregoing provisions of this Section 3.04 for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender or such L/C Issuer, as the case may be, notifies the Administrative Borrower of the Change in law giving rise to such increased costs or reductions and of such Lender’s or such L/C Issuer’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).
3.05 | Funding Losses |
Promptly upon demand of any Lender (with a copy to the Administrative Agent) from time to time, the Borrowers shall promptly compensate such Lender for and hold such Lender harmless from any loss, cost or expense incurred by it as a result of:
(a) any continuation, conversion, payment or prepayment of any Loan other than a Base Rate Loan on a day other than the last day of the Interest Period for such Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise);
(b) any failure by the Borrowers (for a reason other than the failure of such Lender to make a Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on the date or in the amount notified by the Borrowers; or
(c) an assignment of a Term SOFR Loan on a day other than the last day of the Interest Period therefor as a result of a request by the Borrowers pursuant to Section 11.16;
including any foreign exchange losses and any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan (excluding any loss of anticipated profits) or from fees payable to terminate the deposits from which such funds were obtained. The Borrowers shall also pay any customary administrative fees charged by such Lender in connection with the foregoing.
3.06 | Matters Applicable to All Requests for Compensation |
(a) A certificate of the Administrative Agent, any Lender or any L/C Issuer claiming compensation under this Article III and setting forth in reasonable detail the additional amount or amounts to be paid to it hereunder shall be conclusive in the absence of manifest error. In determining such amount, the Administrative Agent or such Lender or L/C Issuer may use any reasonable averaging and attribution methods. The Borrowers shall pay the Administrative Agent, such Lender or such L/C Issuer, as the case may be, the amount shown as due on any such certificate within 10 days after receipt thereof. Notwithstanding anything in this Agreement to the contrary, to the extent any notice required under this Article III is given by the Administrative Agent or any Lender more than 90 days after the Administrative Agent or such Lender has knowledge (or should have had knowledge) of the occurrence of the event giving rise to the additional cost, reduction in amounts, loss, or other additional amounts described in this Article III, the Administrative Agent or such Lender shall not be entitled to compensation under this Article III for any such amounts incurred or accruing prior to the 91st day prior to the giving of such notice to the Borrowers.
(b) Upon any Lender’s making a claim for compensation under Section 3.01 or 3.04, the Borrowers may replace such Lender in accordance with Section 11.16.
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3.07 | Survival |
All of the Borrowers’ obligations under this Article III shall survive termination of the Commitments and repayment of all other Obligations hereunder.
ARTICLE IV
GUARANTY
4.01 | The Guaranty |
Subject to Section 4.09, each of the Guarantors hereby jointly and severally guarantees to each Lender and the Administrative Agent as hereinafter provided, as primary obligor and not as surety, the prompt payment of the Applicable Guaranteed 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. Subject to Section 4.09, the Guarantors hereby further agree that if any of the Applicable Guaranteed 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 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.
Subject to Section 4.09, notwithstanding any provision to the contrary contained herein or in any other of the Loan Documents, the obligations of each Guarantor under this Agreement and the other Loan Documents shall be limited to an aggregate amount equal to the largest amount that would not render such obligations subject to avoidance under the Debtor Relief Laws or any comparable provisions of any applicable state law.
4.02 | Obligations Unconditional |
The obligations of the Guarantors under Section 4.01 are joint and several, absolute and unconditional, irrespective of the value, genuineness, validity, regularity or enforceability of any of the Loan Documents, 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 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 (other than a defense of payment) of a surety or guarantor, it being the intent of this Section 4.02 that the obligations of the Guarantors hereunder shall be absolute and unconditional under any and all circumstances. Each Guarantor agrees that such Guarantor shall not exercise any right of subrogation, indemnity, reimbursement or contribution against the Borrowers or any other Guarantor for amounts paid under this Article IV until such time as the Obligations have been paid in full and the Commitment have expired or terminated. Without limiting the generality of the foregoing, it is agreed that, to the fullest extent permitted by applicable 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 Obligations shall be extended, or such performance or compliance shall be waived;
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(b) any of the acts mentioned in any of the provisions of any of the Loan Documents or any other agreement or instrument referred to in the Loan Documents shall be done or omitted;
(c) the maturity of any of the Obligations shall be accelerated, or any of the Obligations shall be modified, supplemented or amended in any respect, or any right under any of the Loan Documents or any other agreement or instrument referred to in the Loan Documents shall be waived or any other guarantee of any of the 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 Collateral Agent or any Lender or Lenders as security for any of the Obligations shall fail to attach or be perfected;
(e) any of the 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);
(f) any change in the corporate existence, structure or ownership of a Borrower, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting a Borrower or its assets or any resulting release or discharge of any obligation of a Borrower contained in this Agreement or any other Loan Document;
(g) the existence of any claim, setoff or other rights which any Guarantor may have at any time against a Borrower, the Lenders, the Administrative Agent or any other Person, whether in connection herewith or any unrelated transactions; or
(h) any invalidity or unenforceability relating to or against any Guarantor for any reason of any Loan Document, or any provision of applicable law, regulation or order purporting to prohibit the payment by any Guarantor of the principal of or interest on any Revolving Credit Note or any other amount payable by any Guarantor under any Loan Document.
With respect to its obligations hereunder, to the extent permitted under applicable law, each Guarantor hereby expressly waives diligence, presentment, demand of payment, protest and all notices whatsoever, and any requirement that the Administrative Agent or any Lender exhaust any right, power or remedy or proceed against any Person under any of the Loan Documents or any other agreement or instrument referred to in the Loan Documents or against any other Person under any other guarantee of, or security for, any of the Obligations.
4.03 | Reinstatement |
The obligations of the Guarantors under this Article IV 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 Obligations is rescinded or must be otherwise restored by any holder of any of the Obligations, whether as a result of any proceedings in bankruptcy or reorganization or otherwise, and each Guarantor agrees that it will indemnify the Administrative Agent and each Lender on demand for all reasonable and documented out-of-pocket costs and expenses (including, without limitation, Attorney Costs) incurred by the Administrative Agent or such Lender in connection with such rescission or restoration, including any such reasonable and documented out-of-pocket 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.
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4.04 | Certain Additional Waivers |
Without limiting the generality of the provisions of this Article IV, each Guarantor hereby agrees that such Guarantor shall have no right of recourse to security for the Obligations, except through the exercise of rights of subrogation pursuant to Section 4.02 and through the exercise of rights of contribution pursuant to Section 4.06.
4.05 | Remedies |
The Guarantors agree that, to the fullest extent permitted by applicable law, as between the Guarantors, on the one hand, and the Administrative Agent and the Lenders, on the other hand, the Obligations may be declared to be forthwith due and payable as provided in Section 9.02 (and shall be deemed to have become automatically due and payable in the circumstances provided in said Section 9.02) for purposes of Section 4.01 notwithstanding any stay, injunction or other prohibition preventing such declaration (or preventing the Obligations from becoming automatically due and payable) as against any other Person and that, in the event of such declaration (or the Obligations being deemed to have become automatically due and payable), the Obligations (whether or not due and payable by any other Person) shall forthwith become due and payable by the Guarantors for purposes of Section 4.01. The Guarantors acknowledge and agree that their obligations hereunder are secured in accordance with the terms of the Collateral Documents and that the Lenders may exercise their remedies thereunder in accordance with the terms thereof.
4.06 | Rights of Contribution |
Subject to Section 4.09, 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 4.06 shall be subordinate and subject in right of payment to the Obligations until such time as the Obligations have been paid in full and the Commitments have expired or terminated, and none of the Guarantors shall exercise any right or remedy under this Section 4.06 against any other Guarantor until such Obligations have been paid in full and the Commitments have expired or terminated. For purposes of this Section 4.06, (a) “Excess Payment” shall mean the amount paid by any Guarantor in excess of its Ratable Share of any Guaranteed Obligations; (b) “Ratable Share” shall mean, for any Guarantor in respect of any payment of 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 all of the Loan Parties exceeds the amount of all of the debts and liabilities (including contingent, subordinated, unmatured, and unliquidated liabilities, but excluding the obligations of the Loan Parties hereunder) of the Loan Parties; provided, however, that, for purposes of calculating the Ratable Shares of the Guarantors in respect of any payment of 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; (c) “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
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which the aggregate present fair salable value of all assets and other properties of the Loan Parties 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 Loan Parties) of the Loan Parties 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; and (d) “Guaranteed Obligations” shall mean the Obligations guaranteed by the Guarantors pursuant to this Article IV. This Section 4.06 shall not be deemed to affect any right of subrogation, indemnity, reimbursement or contribution that any Guarantor may have under Law against any 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 in accordance with Section 10.11.
4.07 | Guarantee of Payment; Continuing Guarantee |
The guarantee in this Article IV is a guaranty of payment and not of collection, is a continuing guarantee, and shall apply to all Obligations whenever arising.
4.08 | Keepwell |
Each Loan Party that is a Qualified ECP Guarantor at the time the Guaranty or the grant of the security interest under the Loan Documents, in each case, by any Specified Loan Party, becomes effective with respect to any Swap Obligation, hereby jointly and severally, absolutely, unconditionally and irrevocably undertakes to provide such funds or other support to each Specified Loan Party with respect to such Swap Obligation as may be needed by such Specified Loan Party from time to time to honor all of its obligations under its Guaranty and the other Loan Documents in respect of such Swap Obligation (but, in each case, only up to the maximum amount of such liability that can be hereby incurred without rendering such Qualified ECP Guarantor’s obligations and undertakings under this Article IV voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations and undertakings of each Qualified ECP Guarantor under this Section shall remain in full force and effect until the Obligations have been paid and performed in full. Each Qualified ECP Guarantor intends this Section to constitute, and this Section shall be deemed to constitute, a guarantee of the obligations of, and a “keepwell, support, or other agreement” for the benefit of, each Specified Loan Party for all purposes of the Commodity Exchange Act.
4.09 | Limited Guarantee by Tenant Subsidiaries |
So long as the Relative Rights Agreement is in effect, (i) the principal amount of Indebtedness guaranteed in this Article IV provided by the Tenant Subsidiaries in the aggregate, together with the principal amount of all other Indebtedness subject to the Relative Rights Agreement guaranteed by the Tenant Subsidiaries shall not exceed $375,000,000 and any guarantee by the Tenant Subsidiaries in excess of such amount shall be null and void and (ii) each Lender hereby acknowledges and agrees to the automatic assignment (the “Tenant Subsidiary Guarantee Assignment”) of the guarantees provided by the Tenant Subsidiaries under this Agreement of the Legacy Revolving Loans to the Ventas Assignee in respect of the Ventas Purchase Option ABL Loans upon the consummation of the Ventas Purchase Option Assignment pursuant to Section 2.17. It is further acknowledged and agreed that after giving effect to the Tenant Subsidiary Guarantee Assignment, the ETMC Credit Facility shall no longer receive the benefit of guarantees from the Tenant Subsidiaries.
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ARTICLE V
CONDITIONS PRECEDENT
5.01 | Conditions to Effective Date |
The effectiveness of this Agreement is subject to satisfaction or waiver of the following conditions precedent:
(a) Loan Documents. The Administrative Agent shall have received (A) duly executed counterparts of the Amendment and Restatement Agreement from Parent, the Borrowers, the Guarantors, each Lender, the Administrative Agent, the Collateral Agent, the Swing Line Lender, the L/C Issuers, the Resigning Administrative Agent, the Resigning Collateral Agent and the Resigning Swing Line Lender and (B) duly executed copies of (i) the Successor Agency Agreement and the Other Appointment and Resignation Documentation.
(b) Opinions of Counsel. Receipt by the Administrative Agent of a favorable opinion of each of (i) Sidley Austin LLP, special New York counsel to the Loan Parties, (ii) Bass, Berry & Sims PLC, special Tennessee counsel to the Loan Parties, (iii) Rodey Law Firm, special New Mexico counsel to the Loan Parties and (iv) Fox Rothschild LLP, special New Jersey counsel to the Loan Parties, in each case, addressed to the Administrative Agent, the Collateral Agent and each Lender, dated as of the Effective Date and in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent.
(c) Organization Documents, Resolutions, Etc. Receipt by the Administrative Agent of the following:
(i) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Loan Party to be true and correct in all material respects as of the Effective Date (or, in the alternative, a certification by a Responsible Officer that no modifications to the Organization Documents delivered on the Original Closing Date have occurred since the Original Closing Date);
(ii) copies of such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably request prior to the Effective Date evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and Restatement Agreement and the other Loan Documents to which such Loan Party is a party; and
(iii) copies of such documents and certifications as the Administrative Agent may reasonably request prior to the Effective Date to evidence that each Loan Party is duly organized or formed, and is validly existing, in good standing and qualified to engage in business in its state of organization or formation.
(d) Lien Searches. The Administrative Agent shall have received (i) searches of Uniform Commercial Code filings, tax and judgment liens in the jurisdiction of formation of each Loan Party, the jurisdiction of the chief executive office of each Loan Party where a filing would need to be made in order to perfect the Collateral Agent’s security interest in the
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Collateral, copies of the financing statements or other liens on file in such jurisdictions and evidence that no Liens exist other than Permitted Liens and Liens to be released substantially concurrently with the consummation of the Transaction, and (ii) searches of ownership of, and Liens on, intellectual property of each Loan Party (to the extent requested by the Administrative Agent or Collateral Agent) in the appropriate governmental offices.
(e) Solvency. The Administrative Agent shall have received a certificate executed by a Responsible Officer of the Administrative Borrower as of the Effective Date, substantially in the form of Exhibit Q, regarding the Solvency of Parent and its Subsidiaries on a consolidated basis and immediately after giving effect to the consummation of the Amendment and Restatement Transactions on the Effective Date.
(f) Fees and Expenses. Payment by the Loan Parties of all reasonable fees and documented and reasonable out-of-pocket expenses due to the Resigning Administrative Agent, the Resigning Collateral Agent, the Administrative Agent and the Lead Arrangers, including, to the extent invoiced at least two (2) Business Days prior to the Effective Date, reimbursement or payment of all reasonable, documented out-of-pocket expenses (including the reasonable, documented legal fees and expenses of Cahill Gordon & Reindel LLP, counsel to the Resigning Administrative Agent, the Resigning Collateral Agent, Administrative Agent and the Lead Arrangers).
(g) Refinancing. The aggregate redemption price required for all outstanding 2026 Notes to be redeemed on July 15, 2021 pursuant to the 2026 Notes Indenture shall have been received by the trustee under the 2026 Notes Indenture, the Company shall have given the trustee under the 2026 Notes Indenture irrevocable instructions to redeem all outstanding 2026 Notes on July 15, 2021, and the 2026 Notes Indenture shall have been satisfied and discharged pursuant to the terms thereof.
(h) 2029 Notes. The 2029 Notes and the documents to be entered into in connection therewith shall have been or concurrently with the Effective Date shall be duly executed and delivered by each party thereto, and shall be in full force and effect.
(i) Representations and Warranties. The representations and warranties of the Loan Parties set forth in this Agreement and Section 5 of the Amendment and Restatement Agreement shall be true and correct in all material respects (or in all respects if qualified by materiality or material adverse effect) on and as of the Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects (or in all respects if qualified by materiality or material adverse effect) only as of such specified date).
(j) Know Your Customer. The Administrative Agent and the Lenders shall have received, at least three (3) Business Days prior to the Effective Date, (i) all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and (ii) to the extent any Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such Borrower, in each case of clauses (i) and (ii), to the extent reasonably requested by such Person in writing at least ten (10) Business Days prior to the Effective Date.
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(k) Administrative Borrower’s Certificate. The Administrative Agent shall have received a certificate from a Responsible Officer of the Administrative Borrower certifying that the conditions specified in Section 5.01(i) have been satisfied.
(l) Borrowing Base Certificate. The Administrative Agent shall have received a Borrowing Base Certificate which calculates the Borrowing Base (determined in accordance with the Amended and Restated ABL Credit Agreement) as of a date preceding the Effective Date that is specified by the Administrative Agent, properly executed by a Responsible Officer of the signing Loan Party, in form and substance reasonably satisfactory to the Administrative Agent.
(m) Maximum Credit Extension. Immediately after giving effect to any Credit Extensions on the Effective Date, the Availability shall be no less than $100,000,000.
5.02 | Conditions to All Credit Extensions |
The obligation of each Lender to honor any Request for Credit Extension (other than a Loan Notice requesting only a conversion of Loans to the other Type, or a continuation of Term SOFR Loans) is subject to the following conditions precedent:
(a) Representations and Warranties. The representations and warranties of the Borrowers and each other Loan Party contained in Article VI or any other Loan Document shall be true and correct in all material respects on and as of the date of such Credit Extension; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided further that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates.
(b) No Default. No Default or Event of Default shall exist or would result from such proposed Credit Extension or from the application of proceeds therefrom.
(c) Request for Credit Extension. The Administrative Agent and, if applicable, the relevant L/C Issuer or the Swing Line Lender shall have received a Request for Credit Extension in accordance with the requirements hereof.
(d) Total Outstandings. After giving effect to the requested Credit Extension, (x) the aggregate outstanding amount of all Total Outstandings does not exceed the Line Cap at such time, (y) the aggregate outstanding amount of all Total Legacy Outstandings does not exceed the Legacy Line Cap at such time and (z) the aggregate outstanding amount of all Total ETMC Outstandings does not exceed the ETMC Line Cap at such time.
5.03 | Conditions to Credit Extensions to Additional Borrowers |
The obligation of each Lender to honor any initial Request for Credit Extension for an Additional Borrower is subject to the satisfaction (or waiver)of the following further conditions precedent:
(a) Opinion of Counsel. Receipt by the Administrative Agent of a favorable opinion of counsel for such Additional Borrower, addressed to the Administrative Agent, the Collateral Agent and each Lender, dated as of the date of such Credit Extension, in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent.
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(b) Organization Documents, Resolutions, Etc. Receipt by the Administrative Agent of the following:
(i) copies of the Organization Documents of the Additional Borrower certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Additional Borrower to be true and correct in all material respects as of the date of such Credit Extension;
(ii) copies of such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Additional Borrower as the Administrative Agent may reasonably request prior to the date of the Credit Extension evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party; and
(iii) copies of such documents and certifications as the Administrative Agent may reasonably request prior to the date of the Credit Extension to evidence that the Additional Borrower is duly organized or formed, and is validly existing, in good standing and qualified to engage in business in its state of organization or formation.
(c) Guaranty and Security Requirements. Each Additional Borrower shall have (i) become jointly and severally obligated as a primary obligor of the Obligations to the Collateral Agent and each of the holders of the Obligations in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration, as a mandatory Cash Collateralization or otherwise) by executing a Non-Tenant Joinder Agreement or a Tenant Joinder Agreement, as applicable, and (ii) taken all actions necessary to create and perfect a security interest in its assets (other than any Excluded Property) for the benefit of the Secured Parties in accordance with Section 7.12, unless a security interest in the assets (other than Excluded Property) of such Additional Borrower has already been created and perfected.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
The Loan Parties represent and warrant to the Administrative Agent and the Lenders that:
6.01 | Existence, Qualification and Power |
Each Loan Party (a) is a corporation, partnership or limited liability company duly organized or formed, validly existing and in good standing under the Laws of the jurisdiction of its incorporation or organization, (b) has all requisite power and authority and all requisite governmental licenses, authorizations, consents and approvals to (i) own its assets and carry on its business and (ii) execute, deliver and perform its obligations under the Loan Documents to which it is a party, and (c) is duly qualified and is licensed and in good standing under the Laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification or license; except in each case referred to in clause (b)(i) or (c), to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
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6.02 | Authorization; No Contravention |
The execution, delivery and performance by each Loan Party of each Loan Document to which such Person is party have been duly authorized by all necessary corporate or other organizational action, and do not (a) contravene the terms of any of such Person’s Organization Documents; (b) conflict with or result in any breach or contravention of, or the creation of any Lien under (i) any material Contractual Obligation to which such Person is a party or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject; (c) violate any Law (including, without limitation, Regulation U or Regulation X issued by the FRB); (d) result in a limitation on any licenses, permits or other approvals applicable to the business, operations or properties of any Loan Party; or (e) materially and adversely affect the ability of any Loan Party to participate in any Medical Reimbursement Programs (except, in the cases of clauses (b)(i), (c) and (d), as could not reasonably be expected to have a Material Adverse Effect).
6.03 | Governmental Authorization; Other Consents |
No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person with respect to any material Contractual Obligation is necessary or required in connection with the execution, delivery or performance by, or enforcement against, any Loan Party of this Agreement or any other Loan Document to which such Person is party, other than (i) those that have already been obtained and are in full force and effect, (ii) filings to perfect the Liens created by the Collateral Documents, (iii) filings which customarily are required in connection with the exercise of remedies in respect of the Collateral and (iv) those in respect of which the failure to obtain could not reasonably be expected to have a Material Adverse Effect.
6.04 | Binding Effect |
This Agreement and each other Loan Document has been duly executed and delivered by each Loan Party that is party thereto. This Agreement and each other Loan Document constitutes a legal, valid and binding obligation of each Loan Party that is party thereto, enforceable against each such Loan Party in accordance with its terms except as enforceability may be limited by applicable Debtor Relief Laws or by equitable principles relating to enforceability.
6.05 | Financial Statements; No Material Adverse Effect |
(a) (i) The Audited Financial Statements (A) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein; and (B) fairly present in all material respects the financial condition of Parent 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 (C) show, in accordance with GAAP, all material indebtedness and other liabilities, direct or contingent, of Parent and its Subsidiaries as of the date thereof, including liabilities for taxes, commitments and Indebtedness and (ii) the Unaudited Financial Statements have been prepared in accordance with GAAP consistently applied by the Parent, except as otherwise noted therein, subject to normal year-end audit adjustments (none of which individually or in the aggregate would be material) and the absence of footnotes.
(b) The financial statements delivered pursuant to Sections 7.01(a) and (b) have been prepared in accordance with GAAP (except as may otherwise be permitted under Sections 7.01(a) and (b)) and present fairly (on the basis disclosed in the footnotes to such financial statements) the consolidated financial condition, results of operations and cash flows of the Parent and its Subsidiaries as of such date and for such periods.
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(c) Since December 31, 2020, there has been no event or circumstance that has had or could reasonably be expected to have a Material Adverse Effect.
6.06 | Litigation |
There are no actions, suits, investigations, criminal prosecutions, civil investigative demands, impositions of criminal or civil fines and penalties, proceedings, claims or disputes pending or, to the knowledge of the Loan Parties after due and diligent investigation, threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, by or against the Borrowers or any of their Subsidiaries or against any of their properties or revenues that (a) purport to affect the legality, enforceability, validity of this Agreement or any other Loan Document or the priority of an Lien arising under this Agreement or any other Loan Agreement or (b) individually or in the aggregate could reasonably be expected to have a Material Adverse Effect.
6.07 | Contractual Obligations |
Neither the Borrowers nor any Restricted Subsidiary (excluding the ETMC JV) is in default under or with respect to any Contractual Obligation that could reasonably be expected to have a Material Adverse Effect.
6.08 | Ownership of Property; Liens |
Each of the Borrowers and their Restricted Subsidiaries has good record and marketable title in fee simple to, or valid leasehold interests or other rights of use in, all Real Property necessary or used in the ordinary conduct of its business, except for such defects in title as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The property of the Borrowers and their Restricted Subsidiaries (excluding the ETMC JV) is subject to no Liens, other than Permitted Liens.
6.09 | Environmental Compliance |
Except as could not reasonably be expected to have a Material Adverse Effect:
(a) Each of the Facilities and all operations at the Facilities are in compliance with all applicable Environmental Laws, and there is no violation of any Environmental Law with respect to the Facilities or the Businesses, and there are no conditions relating to the Facilities or the Businesses that would be reasonably likely to give rise to any Environmental Liability.
(b) None of the Facilities contains, or has previously contained, any Hazardous Materials at, on or under the Facilities in amounts or concentrations that constitute or constituted a violation of, or would be reasonably likely to give rise to any Environmental Liability.
(c) Neither the Borrowers nor any Restricted Subsidiary (excluding the ETMC JV) has received any written or verbal notice of, or inquiry from any Governmental Authority that is outstanding or unresolved regarding any violation, alleged violation, non-compliance, liability or potential liability regarding environmental matters or compliance with Environmental Laws with regard to any of the Facilities or the Businesses, nor does any Responsible Officer of any Loan Party have knowledge or reason to believe that any such notice will be received or is being threatened.
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(d) Hazardous Materials have not been transported or disposed of from the Facilities, or generated, treated, stored or disposed of at, on or under any of the Facilities or any other location, in each case by or on behalf the Borrowers or any Restricted Subsidiary (excluding the ETMC JV) in violation of, or in a manner that would be reasonably likely to give rise to any Environmental Liability.
(e) No judicial proceeding or governmental or administrative action is pending or, to the knowledge of the Responsible Officers of the Loan Parties, threatened, under any Environmental Law to which the Borrowers or any Restricted Subsidiary (excluding the ETMC JV) is or will be named as a party, nor are there any consent decrees or other decrees, consent orders, administrative orders or other orders, or other administrative or judicial requirements outstanding under any Environmental Law with respect to the Borrowers, any Restricted Subsidiary (excluding the ETMC JV), the Facilities or the Businesses.
(f) There has been no release or threat of release of Hazardous Materials at or from the Facilities, or arising from or related to the operations (i