EX-10.16 9 gen-20180331ex101615253.htm EX-10.16 Ex1016

Exhibit 10.16

AMENDMENT no. 2
TO SECOND amended and restated REVOLVING CREDIT AGREEMENT

This AMENDMENT NO. 2 TO SECOND AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT (this “Amendment”) is dated as of March 6, 2018 and is entered into by and among certain Affiliates of GENESIS HEALTHCARE LLC, a Delaware limited liability company (“GHLLC”), listed on Annex I hereto (collectively, Borrowers”), GHLLC and certain of its Affiliates listed on Annex II hereto (collectively, Guarantors”),  MIDCAP FUNDING IV TRUST, a Delaware statutory trust, as administrative agent (successor-by-assignment to Healthcare Financial Solutions, LLC (the “Existing Administrative Agent”), in such capacity, the “Administrative Agent”), and the Lenders party hereto and is made with reference to that certain SECOND AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT, dated as of March 31, 2016 (as amended or modified prior to the date hereof, and as further amended, amended and restated, supplemented or otherwise modified prior to the date hereof, the “Credit Agreement”), by and among Borrowers, Guarantors, the lenders from time to time party thereto (the “Existing Lenders”) and the Administrative Agent (successor-by-assignment to the Existing Administrative Agent).  Unless otherwise stated, capitalized terms used herein without definition shall have the same meanings herein as set forth in the Credit Agreement.

RECITALS

WHEREAS, immediately prior to the effectiveness of this Amendment, each of (i) Healthcare Financial Solutions, LLC (“HFS”), (ii) Barclays Bank PLC (“Barclays”) and (iii) Wells Fargo Capital Finance, LLC (“Wells Fargo”; Wells Fargo, HFS and Barclays, collectively, the “Assigning Lenders”) assigned 100% of their existing Revolving Credit Commitments and their outstanding Revolving Loans (the “Purchased Revolving Loans”) to MidCap Financial Trust (“MCF”) pursuant to the Master Assignment Agreement (as defined below), with the result being that MCF and MidCap Funding IV Trust (“MCF IV”) are the only Existing Lenders;

WHEREAS, pursuant to an Agency Transfer and Subagency Agreement (the “Agency Transfer Agreement”) (i) Existing Administrative Agent resigned as Administrative Agent and Swing Line Lender, (ii) Capital One, N.A. resigned as L/C Issuer, Sole Book Running Manager, Sole Documentation Agent, Sole Lead Arranger and Syndication Agent (as all such terms are defined in the Credit Agreement) and (iii) the Required Lenders agreed that (a) MidCap Funding IV Trust shall be the Administrative Agent and the Swing Line Lender and (b) there would be no L/C Issuer on the Restatement Date, all immediately and automatically upon the effectiveness of this Amendment. 

WHEREAS, MCF has, by the fact of execution and delivery of this Amendment, consented to the terms of this Amendment, but does not consent to extend its Existing Revolving Credit Commitments;

WHEREAS, MCF IV has, by the fact of execution and delivery of this Amendment, (i) consented to the terms of this Amendment and (ii) to the extent set forth on Annex III, agreed to continue and increase its Revolving Credit Commitment as set forth on Annex III opposite MCF IV’s name;

 

 

 

 


 

WHEREAS, each Lender (other than MCF and MCF IV) (all such Persons, collectively, the “New Lenders”) has, by the fact of execution and delivery of this Amendment, (i) consented to the terms of this Amendment and (ii) to the extent set forth on Annex III, agreed to provide a Revolving Credit Commitment on the Effective Date in the amount set forth on  Annex III opposite such Lender’s name;

WHEREAS, the aggregate proceeds of the Revolving Loans made by the Lenders (other than MCF) on the Effective Date (the “New Revolving Loans”) will be used, in part, to repay in full the Purchased Revolving Loans previously held by the Assigning Lenders;

WHEREAS, Borrowers have requested that Administrative Agent and Lenders agree to amend the Credit Agreement as set forth on Exhibit A;  

WHEREAS, pursuant to Section 2.7 of the Guaranty and Section 7.6 of the Security Agreement, the Persons identified on Annex IV (the “New Guarantors”) desire to join the Guaranty, the Security Agreement and all other Loan Documents to which Guarantors are party as a “Guarantor”, “Grantor” or “Loan Party”, as the case may be; and

WHEREAS, Administrative Agent and the Lenders, are willing to agree to Borrowers’ request for such amendments, subject to and in accordance with the terms and conditions set forth in this Agreement.

NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, the parties hereto agree as follows:

SECTION I. AMENDMENTS TO existing credit agreement;  release of released borrowers; joinder of new guarantors

Subject to the terms and conditions of this Amendment, including, without limitation, the conditions to effectiveness set forth in Section IV below: 

1.1 Credit Agreement.  The Credit Agreement is 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 Credit Agreement attached as Exhibit A hereto.

1.2 Schedules.  The schedules attached hereto as Exhibit B are attached to and made a part of the Credit Agreement, replacing all previously delivered schedules.

1.3 Borrowing Base Certificate.  Exhibit I to the Credit Agreement shall be replaced in its entirety with the form of Borrowing Base Certificate attached hereto as Exhibit B.

1.4 Joinder of New Guarantors to Loan Documents.  By executing and delivering this Amendment, each New Guarantor: (a) as provided in Section 2.7 of the Guaranty, hereby becomes a party to the Guaranty as a Guarantor thereunder with the same force and effect as if originally named as a Guarantor therein and, without limiting the generality of the foregoing, expressly assumes all obligations and liabilities of a Guarantor thereunder and hereby agrees to be

 

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bound as a Guarantor for purposes thereof and (b) as provided in Section 7.6 of the Security Agreement, hereby becomes a party to the Security Agreement as a Grantor thereunder with the same force and effect as if originally named as a Grantor therein and, without limiting the generality of the foregoing, as collateral security for the prompt and complete payment and performance when due (whether at stated maturity, by acceleration or otherwise) of the Secured Obligations of such New Guarantor, hereby mortgages, pledges and hypothecates to the Administrative Agent for the benefit of the Secured Parties, and grants to the Administrative Agent for the benefit of the Secured Parties a lien on and security interest in, all of its right, title and interest in, to and under the Collateral of such New Guarantor and expressly assumes all obligations and liabilities of a Grantor thereunder.  Each New Guarantor agrees to be bound as a Grantor for the purposes of the Security Agreement.  Additionally, each New Guarantor hereby represents and warrants that each of the representations and warranties contained in Article IV of the Security Agreement applicable to it is true and correct on and as the date hereof as if made on and as of such date.

SECTION II. JOINDER OF NEW LENDERS.

2.1 Joinder.  Subject to the satisfaction (or waiver) of the conditions set forth in Section IV hereof, each New Lender shall be (a) a “Revolving Credit Lender” and (b) a “Lender”, in each case, under the Credit Agreement as of the Effective Date.   Each New Lender shall be entitled to all the benefits afforded by the Credit Agreement and the other Loan Documents to Lenders, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Security Documents.

2.2 New Lender Confirmations.  Each New Lender hereby (i) confirms that (w) it is not a Restricted Person, (x) it has received a copy of this Amendment, the Credit Agreement and the other Loan Documents, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this this Amendment and to make the Loans and/or provide the Commitments, as applicable, (y) it is sophisticated with respect to decisions to make loans similar to those contemplated to be made hereunder and (z) it is experienced in making loans of such type; (ii) agrees that it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement; (iii) appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under the Credit Agreement and the other Loan Documents as are delegated to the Administrative Agent, as the case may be, by the terms thereof, together with such powers as are reasonably incidental thereto and (iv) agrees that it will perform in accordance with their terms all of the obligations which by the terms of the Credit Agreement are required to be performed by it as a Lender.

SECTION III. REVOLVING CREDIT COMMITMENTS; USE OF PROCEEDS, ETC.

3.1 Revolving Credit Loans and Commitments.  On the terms and subject to the satisfaction (or waiver) of the conditions set forth in Section IV hereof, each Lender agrees to provide a Revolving Credit Commitment on the Effective Date in the amount set forth on Annex III opposite such Lender’s name.  The commitments of the Lenders are several and no such Lender

 

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will be responsible for any other Lender’s failure to make any Revolving Credit Loans.  For the avoidance of doubt, the aggregate Revolving Credit Commitments of the Lenders shall not be increased by virtue of this Amendment.

3.2 Use of Proceeds; Voluntary Prepayment.  On the Effective Date, Borrowers shall apply the aggregate proceeds of the Revolving Credit Loans to prepay in full the principal amount of all Purchased Revolving Loans held by the Assigning Lenders immediately prior to the effectiveness of that certain Master Assignment Agreement executed by each of the Assigning Lenders, as assignors, and MCF, as assignee (the “Master Assignment Agreement”).  The repayment of Purchased Revolving Loans with the proceeds of the New Revolving Loans contemplated hereby collectively constitute an optional partial prepayment of the Revolving Credit Facility (as defined in the Credit Agreement) by the Borrowers pursuant to Section 2.7(ii) of the Credit Agreement and shall be subject to the provisions of Section 2.7(ii) of the Credit Agreement; provided that, for the avoidance of doubt, no premium or penalty shall be due with respect to such payment or termination of the Revolving Credit Commitment.

3.3 Settlement Among Lenders.  MCF consents to this Amendment as a Lender, but does not consent to the continuation of its Revolving Credit Commitments.  Accordingly, upon payment in full of the Purchased Revolving Loans as contemplated by Section 3.2 above, (a) the Revolving Credit Commitment of MCF shall be terminated.  From and after the Effective Date, the Lenders hereby authorize Administrative Agent to adjust the funding and settlement mechanics set forth in the Credit Agreement for so long as, and only to the extent necessary, to ensure that each Lender holds its Pro Rata Share of outstanding Revolving Loans as quickly as possible after the Effective Date. 

SECTION IV. CONDITIONS TO EFFECTIVENESS

This Amendment shall become effective as of the date hereof only upon the satisfaction of all of the following conditions precedent (the date of satisfaction of such conditions being referred to herein as the “Effective Date”):

(a) Administrative Agent’s receipt of the following, each of which shall be originals, facsimiles or “pdf” or similar electronic format (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and each in form and substance reasonably satisfactory to the New Administrative Agent and its legal counsel:

(i) this Amendment and, to the extent not delivered prior to the Restatement Date, if amended, replaced or amended and restated, the other Loan Documents set forth on the Closing Checklist attached hereto as Annex V;

(ii) to the extent not complete and/or delivered prior to the Restatement Date, (A) copies of UCC and other appropriate search reports and of all effective prior filings listed therein, together with evidence of the termination of such prior filings and other documents with respect to the priority of the security interest of Administrative Agent in the Collateral, in each case as may be reasonably requested by Administrative Agent, and (B) all Control Agreements,

 

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assignments and/or amendments to existing Control Agreements that, in the reasonable judgment of Administrative Agent, are required for the Loan Parties to comply with the Loan Documents as of the Restatement Date, each duly executed by, in addition to the applicable Loan Party, the applicable financial institution;

(iii) to the extent not delivered prior to the Restatement Date, (A) a copy of each Constituent Document of each Loan Party that is on file with any Governmental Authority in its jurisdiction or organization, certified as of a recent date by such Governmental Authority, and (B) certificates attesting to the good standing of such Loan Party in such jurisdiction, together with, if applicable, related tax certificates;

(iv) a certificate of the secretary or other officer of each Loan Party in charge of maintaining books and records of such Loan Party certifying as to (A) the names and signatures of each officer of such Loan Party authorized to execute and deliver any Loan Document, (B) the Constituent Documents of such Loan Party attached to such certificate are complete and correct copies of such Constituent Documents as in effect on the date of such certification and (C) the resolutions of such Loan Party’s board of directors or other appropriate governing body approving and authorizing the execution, delivery and performance of each Loan Document to which such Loan Party is a party; and

(v) a Notice of Borrowing for all New Revolving Loans;

(b) Administrative Agent’s receipt, not later than the date three (3) days prior to the Restatement Date, of all documents and information reasonably determined by any Lender as being required by regulatory authorities under the Patriot Act or any applicable “know your customer” or anti-money laundering rules or regulations, to the extent requested by the Administrative Agent at least ten (10) days prior to the Restatement Date;

(c) Existing Administrative Agent’s receipt, in immediately available funds, of all accrued costs, fees and expenses (including reasonable fees, expenses and other charges of counsel) owing to Existing Administrative Agent pursuant to the Credit Agreement as of the date of the Agency Assignment Agreement;

(d) Administrative Agent’s receipt, in immediately available funds, of (x) all accrued costs, fees and expenses (including reasonable fees, expenses and other charges of counsel) owing to Administrative Agent pursuant to this Amendment and (y) all other compensation required to be paid on or prior to the Effective Date to the Administrative Agent and its Affiliates pursuant to the Fee Letter; and

(e) No Swing Line Loan (as defined in the Credit Agreement) shall be then outstanding.

Notwithstanding anything herein to the contrary, for purposes of determining compliance with the conditions specified in this Section IV, each Required Lender and New Lender shall be deemed satisfied with each document and each other matter required to be

 

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reasonably satisfactory to such Required Lender or New Lender unless, prior to the Restatement Date, Administrative Agent receives notice from such Required Lender or New Lender specifying such Required Lender’s or New Lender’s objections.

SECTION V. Confirmation of Representations and Warranties; Liens; No Default.

Each Loan Party that is party hereto hereby confirms that (i) after giving effect to the Transactions, all of the representations and warranties set forth in the Loan Documents to which it is a party continue to be true and correct in all material respects as of the date hereof as if made on the date hereof and as if fully set forth herein, except to the extent (A) such representations and warranties by their terms expressly relate only to a prior date (in which case such representations and warranties shall be true and correct in all material respects as of such prior date) or (B) any such representation or warranty is no longer true, correct or complete due to the occurrence of one or more events that are permitted to occur (or are not otherwise prohibited) under the Loan Documents, (ii) after giving effect to the waiver of the Specified Defaults, there are no continuing Defaults or Events of Default that have not been waived or cured, (iii) subject to the terms and conditions of the Loan Documents, Administrative Agent has and shall continue to have valid, enforceable and perfected Liens on the Collateral with the priority set forth in the Intercreditor Agreement, for the benefit of the Secured Parties, pursuant to the Loan Documents or otherwise granted to or held by Administrative Agent, for the benefit of the Secured Parties, subject only to Permitted Liens, and (iv) the agreements and obligations of Borrowers and each other Loan Party contained in the Loan Documents and in this Amendment constitute the legal, valid and binding obligations of Borrowers and each other Loan Party, enforceable against Borrowers and each other Loan Party in accordance with their respective terms, except to the extent limited by general principles of equity and by bankruptcy, insolvency, fraudulent conveyance, or other similar laws affecting creditors’ rights generally.

SECTION VI. REAFFIRMATION OF LOAN DOCUMENTS

6.1 By executing and delivering this Amendment, each Loan Party hereby (i) reaffirms, ratifies and confirms its Obligations under the Loan Documents, each as may be amended hereby, (ii) agrees that this Amendment shall be a “Loan Document” under the Credit Agreement and (iii) hereby expressly agrees that the Credit Agreement and each other Loan Document shall remain in full force and effect.  Each Lender executing this Amendment hereby declines the issuance of one or more Notes evidencing its Commitment.

6.2 Without limiting the generality of the foregoing, each Loan Party hereby confirms its pledges, grants of security interests and other obligations, as applicable, under and subject to the terms of each of the Loan Documents to which it is party, and agrees that, notwithstanding the effectiveness of this Amendment or any of the transactions contemplated thereby, such pledges, grants of security interests and other obligations, and the terms of each of the Loan Documents to which it is a party, as supplemented, amended, amended and restated or otherwise modified in connection with this Amendment and the transactions contemplated hereby, are not impaired or affected in any manner whatsoever and shall continue to be in full force and effect and shall continue to secure all the Obligations.

 

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6.3 Without limiting the generality of the foregoing, each Guarantor hereby confirms that each Loan Document to which it is a party or otherwise bound and all Collateral encumbered thereby will continue to guarantee or secure, as the case may be, to the fullest extent possible in accordance with the Loan Documents the payment and performance of all “Obligations” under each of the Loan Documents to which it is a party (in each case, as such terms are defined in the applicable Loan Document).  Each Guarantor further acknowledges and agrees that each of the Loan Documents to which it is a party or otherwise bound shall continue in full force and effect and that all of its obligations thereunder shall be valid and enforceable and shall not be impaired or limited by the execution or effectiveness of this Amendment.

6.4 Each Guarantor acknowledges and agrees that (i) notwithstanding the conditions to effectiveness set forth in this Amendment, such Guarantor is not required by the terms of the Credit Agreement or any other Loan Document to consent to the amendments to the Credit Agreement effected pursuant to this Amendment and (ii) nothing in the Credit Agreement, this Amendment or any other Loan Document shall be deemed to require the consent of such Guarantor to any future amendments to the Credit Agreement.

SECTION VII. RELEASE OF ADMINISTRATIVE AGENT AND LENDERS

As of the date of this Amendment, each Loan Party (i) agrees that, to its knowledge, Administrative Agent and each Lender has fully complied with its obligations under each Loan Document required to be performed prior to the date hereof, (ii) agrees that no Loan Party has any defenses to the validity, enforceability or binding effect of any Loan Document and (iii) fully and irrevocably releases any claims of any nature whatsoever that it may now have against Administrative Agent, and each Lender and relating in any way to this Amendment, the Loan Documents or the transactions contemplated hereby or thereby.

SECTION VIII. MISCELLANEOUS

8.1 Effect on Other Loan Documents.  Except as expressly set forth in this Amendment, the Credit Agreement and all other Loan Documents shall remain unchanged and in full force and effect. This Amendment shall be limited precisely and expressly as drafted and shall not be construed as consent to the amendment, restatement, modification, supplementation or waiver of any other terms or provisions of the Credit Agreement or any other Loan Document.

8.2 Headings.  Section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Amendment or any other Loan Document.

8.3 Loan Document.  This Amendment shall constitute a “Loan Document” under the terms of the Credit Agreement.

8.4 Costs and Expenses. The payment of all fees, costs and expenses incurred by Administrative Agent in connection with the preparation and negotiation of this Amendment shall be governed by Section 11.3 of the Credit Agreement.

 

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8.5 Successors/Assigns. This Amendment shall bind, and the rights hereunder shall inure to, the respective successors and assigns of the parties hereto, subject to the provisions of the Loan Documents.

8.6 Applicable Law; Miscellaneous.  THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK.  The provisions of Sections 11.13, 11.14 and 11.15 of the Credit Agreement are incorporated by reference herein and made a part hereof.

8.7 Counterparts.  This Amendment may be executed in any number of counterparts and by different parties in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Signature pages may be detached from multiple separate counterparts and attached to a single counterpart. Delivery of an executed signature page of this Amendment by facsimile transmission or Electronic Transmission shall be as effective as delivery of a manually executed counterpart hereof. Any party delivering an executed counterpart of this Amendment by facsimile transmission or Electronic Transmission shall also deliver an original executed counterpart of this Amendment but the failure to deliver an original executed counterpart shall not affect the validity, enforceability or binding effect of this Amendment.

8.8 Further Assurances.  Each of the Loan Parties shall execute and deliver such additional documents and take such additional actions as may be reasonably requested by Administrative Agent to effectuate the purposes of this Amendment.

[Remainder of this page intentionally left blank.]

 

 

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BORROWERS:

EACH OF THE BORROWERS LISTED ON ANNEX I ATTACHED HERETO:

By: FC-GEN Operations Investment, LLC, its authorized agent


By:
/s/ Michael S. Sherman
Name:  Michael S. Sherman
Title:     Senior Vice President, Secretary and
Assistant Treasurer

 

EACH OF THE GUARANTORS LISTED ON ANNEX II ATTACHED HERETO:

By: /s/ Michael S. Sherman
Name:  Michael S. Sherman
Title:     Senior Vice President, Secretary and
Assistant Treasurer

 

[Signatures Continue on Following Page]

 

 

 

 

 

 

 

 


 

 

ADMINISTRATIVE AGENT:

 

 

MIDCAP FUNDING IV TRUST

 

By: Apollo Capital Management, L.P.,

its investment manager

 

By: Apollo Capital Management GP, LLC,

its general partner

 

By: /s/ Maurice Amsellem

Name: Maurice Amsellem

Title:   Authorized Signatory

 

 

[Signatures Continue on Following Page]

 

 

 

 

 

 

 

 


 

 

LENDERS:

 

 

MIDCAP FINANCIAL TRUST

 

By: Apollo Capital Management, L.P.,

its investment manager

 

By: Apollo Capital Management GP, LLC,

its general partner

 

By: /s/ Maurice Amsellem

Name: Maurice Amsellem

Title:   Authorized Signatory

 

Executing this Amendment solely to consent to the terms hereof and not to continue its Revolving Credit Commitment

 

MIDCAP FUNDING IV TRUST

 

By: Apollo Capital Management, L.P.,

its investment manager

 

By: Apollo Capital Management GP, LLC,

its general partner

 

By: /s/ Maurice Amsellem

Name: Maurice Amsellem

Title:   Authorized Signatory

 

LENDERS:

HFG HEALTHCO-4 TRUST

By: MidCap Master Healthco Trust
Its:

Principal Trustee

By:Apollo Capital Management, L.P.
Its:

Investment Manager

By: Apollo Capital Management GP, LLC

Its:General Partner

By: /s/ Maurice Amsellem

Name: Maurice Amsellem
Name: Authorized Signatory

 

 

 

 

 

 

 

 


 

 

LENDERS:

 

 

APOLLO INVESTMENT CORPORATION

 

By: Apollo Investment Management, L.P., as Advisor

 

By: ACC Management GP, LLC, as its General Partner

 

By: /s/ Joseph D. Glatt
Name: Joseph D. Glatt
Title:  Authorized Signatory

 

 

 

 

 

 

 

 

 


 

 

annex i

borrowers

Name

Jurisdiction

105 CHESTER ROAD OPERATIONS LLC

VT

11 DAIRY LANE OPERATIONS LLC

VA

1100 NORMAN ESKRIDGE HIGHWAY OPERATIONS LLC

DE

1100 TEXAS AVENUE OPERATIONS LLC

MT

1130 SEVENTEENTH AVENUE OPERATIONS LLC

MT

12080 BELLAIRE WAY OPERATIONS LLC

CO

1400 WOODLAND AVENUE OPERATIONS LLC

NJ

14766 WASHINGTON AVENUE OPERATIONS LLC

CA

175 BLUEBERRY LANE OPERATIONS LLC

NH

2 BLACKBERRY LANE OPERATIONS LLC

VT

20 MAITLAND STREET OPERATIONS LLC

NH

211-213 ANA DRIVE OPERATIONS LLC

AL

24 OLD ETNA ROAD OPERATIONS LLC

NH

25 RIDGEWOOD ROAD OPERATIONS LLC

NH

3 INDUSTRIAL WAY EAST OPERATIONS LLC

NJ

3000 HILLTOP ROAD OPERATIONS LLC

NJ

319 EAST DUNSTABLE ROAD OPERATIONS LLC

NH

3330 WILKENS AVENUE OPERATIONS LLC

MD

3590 WASHINGTON PIKE OPERATIONS LLC

PA

40 WHITEHALL ROAD OPERATIONS LLC

NH

5423 HAMILTON WOLFE ROAD OPERATIONS LLC

TX

550 GLENWOOD OPERATIONS LLC

NC

660 COMMONWEALTH AVENUE OPERATIONS LLC

RI

677 COURT STREET OPERATIONS LLC

NH

7 BALDWIN STREET OPERATIONS LLC

NH

700 MARVEL ROAD OPERATIONS LLC

DE

710 JULIAN ROAD OPERATIONS LLC

NC

800 MEDCALF LANE NORTH OPERATIONS LLC

WA

8000 ILIFF DRIVE OPERATIONS LLC

VA

9109 LIBERTY ROAD OPERATIONS LLC

MD

ALBUQUERQUE HEIGHTS HEALTHCARE AND REHABILITATION CENTER, LLC

DE

Baldwin Healthcare and Rehabilitation Center, LLC

DE

BELFAST OPERATIONS, LLC

ME

Blue River Rehabilitation Center, LLC

DE

BRIARCLIFF NURSING AND REHABILITATION CENTER, LLC

DE

CAMDEN OPERATIONS, LLC

ME

Cameron Nursing and Rehabilitation Center, LLC

DE

CANYON TRANSITIONAL REHABILITATION CENTER, LLC

DE

CAREHOUSE HEALTHCARE CENTER, LLC

DE

Carmel Hills Healthcare and Rehabilitation Center, LLC

DE

CLAIRMONT BEAUMONT, LLC

DE

COLONIAL NEW BRAUNFELS CARE CENTER, LLC

DE

 

 

 

 


 

Name

Jurisdiction

CORONADO NURSING CENTER, LLC

DE

DEVONSHIRE CARE CENTER, LLC

DE

FALMOUTH OPERATIONS, LLC

ME

FARMINGTON OPERATIONS, LLC

ME

FOUNTAIN SENIOR ASSISTED LIVING, LLC

DE

GENESIS ANDROMEDA OPERATIONS LLC

DE

GENESIS DIAMOND OPERATIONS LLC

DE

GENESIS HEALTHCARE OF MAINE, LLC

ME

GENESIS ORION OPERATIONS LLC

NH

GENESIS TANG OPERATIONS LLC

DE

KENNEBUNK OPERATIONS, LLC

ME

LEASEHOLD RESOURCE GROUP, LLC

DE

LEWISTON OPERATIONS, LLC

ME

Louisburg Healthcare and Rehabilitation Center, LLC

DE

NINE HAYWOOD AVENUE OPERATIONS LLC

VT

OAK CREST NURSING CENTER, LLC

DE

ORONO OPERATIONS, LLC

ME

PEAK MEDICAL FARMINGTON, LLC

DE

PEAK MEDICAL GALLUP, LLC

DE

Richmond Healthcare and Rehabilitation Center, LLC

DE

Rossville Healthcare and Rehabilitation Center, LLC

DE

Sandpiper Healthcare and Rehabilitation Center, LLC

DE

SCARBOROUGH OPERATIONS, LLC

ME

SKOWHEGAN SNF OPERATIONS, LLC

ME

SPRING SENIOR ASSISTED LIVING, LLC

DE

ST. JOSEPH TRANSITIONAL REHABILITATION CENTER, LLC

DE

St. Mary Healthcare and Rehabilitation Center, LLC

DE

SUNBRIDGE CLIPPER HOME OF NORTH CONWAY, LLC

NH

SUNBRIDGE CLIPPER HOME OF WOLFEBORO, LLC

NH

TEXAS CITYVIEW CARE CENTER, LLC

DE

TEXAS HERITAGE OAKS NURSING AND REHABILITATION CENTER, LLC

DE

The Rehabilitation Center of Des Moines, LLC

DE

The Rehabilitation Center of Independence, LLC

DE

THE REHABILITATION CENTER OF RAYMORE, LLC

DE

THE WOODLANDS HEALTHCARE CENTER, LLC

DE

THIRTY FIVE BEL-AIRE DRIVE SNF OPERATIONS LLC

VT

VALLEY HEALTHCARE CENTER, LLC

DE

VILLA MARIA HEALTHCARE CENTER, LLC

DE

WATERVILLE SNF OPERATIONS LLC

ME

Wathena Healthcare and Rehabilitation Center, LLC

DE

WESTBROOK OPERATIONS, LLC

ME

WESTWOOD MEDICAL PARK OPERATIONS LLC

VA

WILLOW CREEK HEALTHCARE CENTER, LLC

DE

 

 

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ANNEX II

GUARANTORS

Name

Jurisdiction

FC-GEN OPERATIONS INVESTMENT, LLC

DE

GEN OPERATIONS I, LLC

DE

GEN OPERATIONS II, LLC

DE

Genesis DE Holdings LLC

DE

GENESIS HEALTHCARE, INC.

DE

GENESIS HEALTHCARE LLC

DE

GENESIS HOLDINGS LLC

DE

GENESIS NH HOLDINGS LLC

NH

Genesis NJ Holdings LLC

NJ

GENESIS OPERATIONS VI LLC

DE

Genesis RI Holdings LLC

RI

Genesis VA Holdings LLC

VA

Genesis VT Holdings LLC

VT

GHC HOLDINGS LLC

DE

PEAK MEDICAL MONTANA OPERATIONS, LLC

DE

PEAK MEDICAL, LLC

DE

PEAK MEDICAL OF COLORADO, LLC

DE

SKILLED HEALTHCARE, LLC

DE

SUMMIT CARE, LLC

DE

SUMMIT CARE PARENT, LLC

DE

SUNBRIDGE HEALTHCARE, LLC

NM

SUN HEALTHCARE GROUP, INC.

DE

 

 

Annex II - 1

 

 


 

 

exhibit A

 

SECOND AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT

Dated as of March 31, 2016,

among

the entities listed on listed on Annex I-A and Annex I-B collectively,
as Borrowers

GENESIS HEALTHCARE, INC.
and the other entities listed on Annex II-A and Annex II-B collectively,
as Guarantors

and

THE LENDERS AND L/C ISSUERS PARTY HERETO

and

HEALTHCARE FINANCIAL SOLUTIONS, LLCMIDCAP FUNDING IV TRUST,  
as Administrative Agent and Collateral Agent

 

 

 

 

 

 


 

TABLE OF CONTENTS

 

 

Page

 

 

ARTICLE 1            DEFINITIONS, INTERPRETATION AND ACCOUNTING TERMS

1

Section 1.1

Defined Terms

1

Section 1.2

UCC Terms

34

Section 1.3

Accounting Terms and Principles

34

Section 1.4

Interpretation

35

ARTICLE 2            THE CREDIT FACILITIES

36

Section 2.1

The Commitments

36

Section 2.2

Borrowing Procedures

36

Section 2.3

Reserved

39

Section 2.4

Letters of Credit

39

Section 2.5

Reduction and Termination of the Commitments

42

Section 2.6

Repayment of Revolving Loan

42

Section 2.7

Optional Prepayments; Commitment Reductions

42

Section 2.8

Mandatory Prepayments

42

Section 2.9

Interest

43

Section 2.10

Conversion and Continuation Options

44

Section 2.11

Fees

44

Section 2.12

Application of Payments

45

Section 2.13

Payments and Computations

46

Section 2.14

Evidence of Debt

47

Section 2.15

Suspension of LIBOR Rate Option

49

Section 2.16

Breakage Costs; Increased Costs; Capital Requirements

49

Section 2.17

Taxes

51

Section 2.18

Substitution of Lenders

53

Section 2.19

Contribution

54

Section 2.20

Reserved

57

Section 2.21

Reserved

57

Section 2.22

Defaulting Lenders

57

ARTICLE 3            CONDITIONS TO LOANS AND LETTERS OF CREDIT

58

Section 3.1

Conditions Precedent to Loans and Letters of Credit

58

Section 3.2

Conditions Precedent to Each Loan and Letter of Credit

60

Section 3.3

Conditions to Effectiveness

60

ARTICLE 4            REPRESENTATIONS AND WARRANTIES

60

Section 4.1

Corporate Existence; Financial Statements; Compliance with Law

61

Section 4.2

Loan and Related Documents

63

Section 4.3

Reserved

63

Section 4.4

Reserved

63

Section 4.5

Material Adverse Effect

63

Section 4.6

Solvency

63

Section 4.7

Litigation

64

Section 4.8

Taxes

64

Section 4.9

Margin Regulations

64

Section 4.10

No Burdensome Obligations; No Defaults

64

Section 4.11

Investment Company Act

64

Section 4.12

Labor Matters

65

 

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TABLE OF CONTENTS

(continued)

 

 

Page

 

 

Section 4.13

ERISA

65

Section 4.14

Environmental Matters

65

Section 4.15

Intellectual Property

66

Section 4.16

Title; Real Property

66

Section 4.17

Full Disclosure

66

Section 4.18

Patriot Act; OFAC

67

Section 4.19

Eligible Accounts

67

Section 4.20

Use of Proceeds

68

Section 4.21

Insurance

68

Section 4.22

Reportable Transactions

68

Section 4.23

Security Documents

68

Section 4.24

Schedules Deemed Updated

69

ARTICLE 5            FINANCIAL COVENANTS

69

Section 5.1

Liquidity

69

Section 5.2

Minimum Consolidated Fixed Charge Coverage Ratio

69

Section 5.3

Reserved

69

Section 5.4

Reserved

69

Section 5.5

Reserved

69

SECTION 5.6            INVESTMENTS TO CURE FINANCIAL COVENANT DEFAULTS

71

Section 6.1

Financial Statements

71

Section 6.2

Other Events

73

Section 6.3

Copies of Notices and Reports

73

Section 6.4

Taxes

74

Section 6.5

Labor Matters

74

Section 6.6

ERISA Matters

74

Section 6.7

Environmental Matters

74

Section 6.8

Other Information

75

ARTICLE 7            AFFIRMATIVE COVENANTS

75

Section 7.1

Maintenance of Corporate Existence

75

Section 7.2

Compliance with Laws, Etc

75

Section 7.3

Payment of Obligations

77

Section 7.4

Maintenance of Property

77

Section 7.5

Maintenance of Insurance

77

Section 7.6

Keeping of Books

77

Section 7.7

Access to Books and Property

77

Section 7.8

Environmental

78

Section 7.9

Post-Closing Obligations

78

Section 7.10

Additional Borrowers and Collateral

79

Section 7.11

Deposit Accounts; Securities Accounts and Cash Collateral Accounts

81

Section 7.12

Cash Management; Agent Collection Account

82

Section 7.13

Further Assurances

85

 

 

 

 

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(continued)

 

 

Page

 

 

Section 7.14

Use of Proceeds. The proceeds of the Loans shall be used for general corporate (including working capital) purposes of the Borrowers not prohibited by this Agreement

86

Section 7.15

Master Leases

86

Section 7.16

Reserved

86

Section 7.17

UPL Programs

86

ARTICLE 8            NEGATIVE COVENANTS

87

Section 8.1

Indebtedness

87

Section 8.2

Liens

89

Section 8.3

Reserved

91

Section 8.4

Investments

91

Section 8.5

Mergers, Consolidations, Sales of Assets and Acquisitions

92

Section 8.6

Restricted Payments; Restrictive Agreements

93

Section 8.7

Reserved

94

Section 8.8

Change in Nature of Business

95

Section 8.9

Transactions with Affiliates

95

Section 8.10

Other Indebtedness and Agreements

96

Section 8.11

Reserved

96

Section 8.12

Accounting Changes; Fiscal Year

96

Section 8.13

Margin Regulations

96

ARTICLE 9            EVENTS OF DEFAULT

96

Section 9.1

Definition

96

Section 9.2

Remedies

98

Section 9.3

Actions in Respect of Letters of Credit

99

ARTICLE 10            ADMINISTRATIVE AGENT

99

Section 10.1

Appointment and Duties

99

Section 10.2

Binding Effect

100

Section 10.3

Use of Discretion

101

Section 10.4

Delegation of Rights and Duties

101

Section 10.5

Reliance and Liability

101

Section 10.6

Administrative Agent Individually

102

Section 10.7

Lender Credit Decision

102

Section 10.8

Expenses; Indemnities

103

Section 10.9

Resignation of Administrative Agent or L/C Issuer

103

Section 10.10

Release of Collateral or Guarantors

104

Section 10.11

Additional Secured Parties

105

Section 10.12

Revolving Loan Advances, Payments and Settlements; Interest and Fee Payments

105

ARTICLE 11            MISCELLANEOUS

106

Section 11.1

Amendments, Waivers, Etc

106

Section 11.2

Assignments and Participations; Binding Effect

108

Section 11.3

Costs and Expenses

112

 

 

 

 

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(continued)

 

 

Page

 

 

Section 11.4

Indemnities

112

Section 11.5

Survival

113

Section 11.6

Limitation of Liability for Certain Damages

114

Section 11.7

Lender-Creditor Relationship

114

Section 11.8

Right of Setoff

114

Section 11.9

Sharing of Payments, Etc

114

Section 11.10

Marshaling; Payments Set Aside; Protective Advances

115

Section 11.11

Notices

116

Section 11.12

Electronic Transmissions

117

Section 11.13

Governing Law

118

Section 11.14

Jurisdiction

118

Section 11.15

WAIVER OF JURY TRIAL

118

Section 11.16

Severability

119

Section 11.17

Execution in Counterparts

119

Section 11.18

Entire Agreement

119

Section 11.19

Usury

119

Section 11.20

Use of Name

120

Section 11.21

Non-Public Information; Confidentiality

120

Section 11.22

Patriot Act Notice

121

Section 11.23

Agent for Loan Parties

121

Section 11.24

Existing Agreements Superseded; Exhibits and Schedules

121

Section 11.25

Acknowledgement and Consent to Bail-In of EEA Financial Institutions

122

 

 

Annexes

Annex I - A

Existing Borrowers

Annex I – B

New Borrowers

Annex II – A

Existing Guarantors

Annex II – A

New Guarantors

 

Exhibits

Exhibit A

Assignment Agreement

Exhibit B

Note

Exhibit C

Notice of Borrowing

Exhibit D

[Reserved]

Exhibit E

L/C Request

Exhibit F

Notice of Conversion or Continuation

Exhibit G

Compliance Certificate

Exhibit H

Guaranty Agreement

Exhibit I

Borrowing Base Certificate

Exhibit J

[Reserved]

Exhibit K

[Reserved]

Exhibit L

Non-U.S. Lender Tax Statement

Exhibit M

Intercompany Promissory Note

 

 

 

 

 

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Schedules

Schedule I

Revolving Credit Commitments

Schedule II

Master Leases

Schedule 1.1A

Approved Insurers

Schedule 4.1

Corporate Existence, Compliance with Law, Licensing Matters

Schedule 4.1(e)

Violations, Deficiencies, Enforcement Actions and Proceedings by Governmental Authorities

Schedule 4.2

Required Permits, Notices or Consents

Schedule 4.7

Litigation

Schedule 4.8

Taxes

Schedule 4.12

Collective Bargaining Agreements

Schedule 4.13(a)

ERISA

Schedule 4.13(b)

Foreign Pension Plans

Schedule 4.16

Title; Real Property; Facility Type

Schedule 4.21

Insurance

Schedule 4.23

Security Documents

Schedule 7.2

Provider Payment and Reimbursements Programs; Licenses

Schedule 7.9

Post-Closing Obligations

Schedule 7.10

Non-Borrower Subsidiaries

Schedule 7.11

Deposit Accounts

Schedule 7.12(a)

Account Designation

Schedule 7.12(b)

Government Receivables Deposit Accounts

Schedule 8.1

Permitted Indebtedness

Schedule 8.2

Permitted Liens

Schedule 8.4

Permitted Existing Investments

Schedule 8.9

Agreement with Affiliates

 

 

 

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This SECOND AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT, dated as of March 31, 2016, is entered into by and among, each of the entities listed on Annex I-A (each an “Existing Borrower” and, collectively, “Existing Borrowers”), the entities listed on Annex I-B (each a “New Borrower” and, collectively, “New Borrowers”) and each Person becoming a party hereto as Borrower in accordance with Section 7.10 (together with Existing Borrowers and New Borrowers, each a “Borrower” and, collectively, “Borrowers”), the entities listed on Annex II-A (each an “Existing Guarantor” and, collectively, “Existing Guarantors”), the entities listed on Annex II (each a “New Guarantor” and, collectively, “New Guarantors”) and each Person becoming a party hereto as a Guarantor in accordance with Section 7.10 (together with Existing Guarantors and New Guarantors, each a “Guarantor” and, collectively, “Guarantors”), certain financial institutions from time to time party hereto (as defined below, collectively, “Lenders”), L/C Issuers (as defined below) and HEALTHCARE FINANCIAL SOLUTIONS, LLC (“HFSMIDCAP FUNDING IV TRUST, a Delaware statutory trust (“MCF”), as Administrative Agent and Collateral Agent for the Lenders and the L/C Issuers (in such capacity (and as successor-by-assignment to Healthcare Financial Solutions, LLC in such capacity), and together with its successors and permitted assigns, “Administrative Agent”).

WHEREAS, Existing Borrowers, Existing Guarantors, HFS, and Administrative Agentthe lenders party thereto, and the administrative agent named therein are parties to that certain Amended and Restated Revolving Credit Agreement, dated as of July 26, 2013 (as amended, restated, supplemented or otherwise modified from time to time, the “Original Credit Agreement”), pursuant to which Administrative Agent and Lenderssuch administrative agent and lenders agreed to make certain advances and other financial accommodations to Borrowers;

WHEREAS, certain Affiliates of Borrowers are parties to that certain Third Amended and Restated Credit Agreement, dated as of February 2, 2015, by and among Genesis HealthCare LLC and certain of its direct and indirect subsidiaries party thereto, as borrowers, certain guarantors party thereto, HFSMCF, as administrative agent and collateral agent, and HFSMCF and other financial institutions party thereto, as lenders, and certain other entities party thereto as L/C Issuers (as defined therein), as such may be amended, restated, replaced or otherwise modified from time to time (the “ABL Credit Agreement”);

WHEREAS, in connection with the continued working capital and other needs of Existing Borrowers, New Borrowers and the other Borrowers from time to time party hereto, Borrowers and the other Loan Parties have requested, among other things, that Administrative Agent and Lenders increase the Revolving Credit Commitment and amend certain other covenants and provisions of the Original Credit Agreement; and

WHEREAS, Administrative Agent and Lenders have agreed to the requests of Borrowers and the other Loan Parties on the terms and conditions set forth herein and in the other Loan Documents.

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

Article 1



DEFINITIONS, INTERPRETATION AND ACCOUNTING TERMS

Section 1.1 Defined Terms.  As used in this Agreement, the following terms have the following meanings:

ABL Credit Agreement” has the meaning specified in the recitals to this Agreement.

 

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“Acceleration Event” means the occurrence of an Event of Default (a) in respect of which all or any portion of the Obligations have been declared to be immediately due and payable pursuant to Section 9.2, (b) pursuant to Section 9.1(a), and in respect of which Administrative Agent has suspended or terminated the Revolving Loan Commitment pursuant to Section 9.2, and/or (c) pursuant to either Section 9.1(g) and/or Section 9.1(h).

Account” means any right to payment of a monetary obligation, whether or not earned by performance, including, but not limited to, the right to payment for goods sold or leased or for services rendered, whether or not such right is evidenced by an Instrument or Chattel Paper, and right to payment of management fees.  Without limiting the generality of the foregoing, the term “Account” shall further include all “accounts” (as that term is defined in the UCC), all accounts receivable, all “health-care-insurance receivables” (as that term is defined in the UCC), all “payment intangibles” (as that term is defined in the UCC) and all other rights to payment of every kind and description, whether or not earned by performance.

Account Debtor” means any Person obligated on any Account of any Borrower, including an Account Debtor that is Medicaid, Medicare or TRICARE.

Administrative Agent” has the meaning specified in the preamble to this Agreement.

Administrative Loan Party” means GHLLCLLC Parent.

Affected Lender” has the meaning specified in Section 2.18(a).

Affiliate” means, with respect to any Person, any other Person that directly or indirectly controls, is controlled by, or is under common control with, such Person.  No Secured Party shall be an Affiliate of any Borrower nor shall any Secured Party be deemed to be an “Affiliate” of any Loan Party solely by virtue of being a “Lender” or “Secured Party” under this Agreement.  For purpose of this definition, “control” means (i) the power, directly or indirectly, to direct or cause the direction of the management and policies of such Person, whether by contract or otherwise or (ii) beneficial ownership of 10% or more of the Voting Stock of such Person..

Agent Collection Account” has the meaning specified in Section 7.12(b).

Agreement” means this Second Amended and Restated Revolving Credit Agreement, as it may be amended, restated, replaced or otherwise modified from time to time.

Allocable Share” means, with respect to each Borrower, the percentage obtained by multiplying (i) the aggregate Revolving Credit Commitments as of any date of determination by (ii) the ratio of the revenue attributable to such Borrower to Consolidated revenue.

Anti-Terrorism Laws” has the meaning specified in Section 4.18.

Applicable Indebtedness” has the meaning specified in the definition of “Weighted Average Life to Maturity”.

Applicable Margin” means either the Applicable Margin – Base Rate Loan or the Applicable Margin – Revolving Credit LIBOR Loan.

 

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Applicable Margin –Base Rate Loan” means, with respect to Revolving Loan that is a Base Rate Loan:

Revolving Credit Outstandings

Applicable Margin

Greater than 75% of Revolving Credit Commitment

2.50%

Less than or equal to 75% of Revolving Credit Commitment and greater than 50% of Revolving Credit Commitment

2.25%

Less than or equal to 50% of Revolving Credit Commitment

2.00%

                                                                     

 

Applicable Margin – Revolving Credit LIBOR Loan” means, with respect to Revolving Loan that is a LIBOR Rate Loan:

Revolving Credit Outstandings

Applicable Margin

Greater than 75% of Revolving Credit Commitment

3.50%

Less than  or equal to 75% of Revolving Credit Commitment and greater than 50% of Revolving Credit Commitment

3.25%

Less than or equal to 50% of Revolving Credit Commitment

3.00%

                                                                    

Approved Insurer” means each Person identified on Schedule 1.1A and any Insurer or other Person (other than Medicaid, Medicare or TRICARE), in each case, as may be approved by Administrative Agent in good faith and in its exercise of reasonable (from the perspective of a secured asset-based lender in the context of a HUD transaction) business judgment.

Assignment” means an assignment agreement entered into by a Lender, as assignor, and any Person, as assignee, pursuant to the terms and provisions of Section 11.2 (with the consent of any party whose consent is required by Section 11.2), accepted by Administrative Agent, in substantially the form of Exhibit A, or any other form approved by Administrative Agent.

Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.

Bail-In Legislation” means, 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

 

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implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.

Bankruptcy Code” means the Federal Bankruptcy Reform Act of 1978 (11 U.S.C. § 101, et seq.), as amended and in effect from time to time and the regulations issued from time to time thereunder.

Base Rate” means, for any day, a rate per annum equal to the highest of (a) the rate last quoted by The Wall Street Journal as the “Prime Rate” in the United States or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board 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 Administrative Agent) or any similar release by the Federal Reserve Board (as determined by Administrative Agent), (b) the sum of 3.0% per annum and the Federal Funds Rate, and (c) the sum of (x) the LIBOR Rate, as defined herein, calculated for each such day based on an Interest Period of one (1) month determined two (2) Business Days prior to such day, plus (y) the excess of the Applicable Margin – Revolving Credit LIBOR Loan over the Applicable Margin –Base Rate Loan, in each instance, as of such day.  Any change in the Base Rate due to a change in any of the foregoing shall be effective on the effective date of such change in the “Prime Rate”, the “bank prime loan” rate, the Federal Funds Rate, or the LIBOR Rate for an Interest Period of one (1) month.

Base Rate Loan” means any Loan that bears interest based on the Base Rate.

Benefit Plan” means any employee benefit plan as defined in Section 3(3) of ERISA (whether governed by the laws of the United States or otherwise), other than a Foreign Pension Plan or Multiemployer Plan, to which any Loan Party incurs or otherwise has any obligation or liability, contingent or otherwise.

Borrowers” has the meaning specified in the preamble to this Agreement.

Borrowing” means a borrowing consisting of Loans made in the Revolving Credit Facility on the same day by the Lenders according to their respective Revolving Credit Commitments under the Revolving Credit Facility.

Borrowing Availability” means as of any date of determination the lesser of (i) the aggregate Revolving Credit Commitment of all Lenders and (ii) the Borrowing Base, in each case, less the sum of the Revolving Credit Outstandings.

Borrowing Base” means, as of any date of calculation, 85% of the Eligible Accounts; provided,  however, based on the analysis of facts or events first occurring or discovered by Administrative Agent after the Closing Date, Administrative Agent, in its reasonable credit judgment consistent with its underwriting and general business practices, may from time to time (i) adjust the Borrowing Base by applying percentages (known as “liquidity factors”) to Eligible Accounts by payor class based upon Borrowers’ actual recent collection history for each such payor class (i.e., Medicaid, Medicare, commercial insurance, etc.) in a manner consistent with Administrative Agent’s underwriting practices and procedures and (ii) further reduce the Borrowing Base by such reserves as Administrative Agent deems reasonably appropriate, including reserves for potential future exposure under Secured Hedge Agreements and to reflect historically recurring declines, or projected declines, in the amount of Eligible Accounts and reserves with respect to all recoupments and overpayments; provided,  further, that the Borrowing Base shall not include Eligible Accounts related to any Loan Party (i) that became a Borrower pursuant to Section 7.10 and which the Administrative Agent has determined in its sole discretion to exclude from the calculation of the Borrowing Base or (ii) against which a case or proceeding referred to in Section 9.1(g) or (h) have been instituted.  In the event of any occurrence requiring notice under clause (e) of Section 6.2,  

 

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Administrative Agent may immediately require the establishment of reserves that, in its sole credit judgment, are necessary to offset any loss of Eligible Accounts related to such closing in respect of such Facility.  Each such change shall become immediately effective following notice of such change; provided,  however, to the extent that the establishment of such reserve will result in an Overadvance, Administrative Agent shall not establish such reserve without at least two (2) Business Days prior notice to Borrowers.

Borrowing Base Certificate” means a certificate substantially in the form of Exhibit I.

Business” means the business and any services, activities or businesses incidental or directly related or similar or complementary to any business or line of business engaged in by the Borrowers or any business or business activity that is a reasonable extension, development or expansion thereof or ancillary thereto.

Business Day” means any day of the year that is not a Saturday, Sunday or a day on which banks are required or authorized to close in New York City and, when determined in connection with notices and determinations in respect of any LIBOR Rate or LIBOR Rate Loan or any funding, conversion, continuation, Interest Period or payment of any LIBOR Rate Loan, that is also a day on which dealings in Dollar deposits are carried on in the London interbank market.

Capital Expenditures” means, with respect to any Person for any period, the additions to property, plant and equipment and other capital expenditures of such Person that are (or should be) set forth in a Consolidated statement of cash flows of the HUD Consolidated Group for such period prepared in accordance with GAAP, but excluding (i) any such expenditure made to restore, replace or rebuild property to the condition of such property immediately prior to any damage, loss, destruction or condemnation of such property, to the extent such expenditure is made with insurance proceeds, condemnation awards or damage recovery proceeds relating to any such damage, loss, destruction or condemnation, (ii) any such expenditure to the extent that proceeds of asset sales, debt financings or lease financings are used to make such expenditure, (iii) the purchase price of assets purchased during such period to the extent the consideration therefor consists of any combination of (A) assets traded in at the time of such purchase and (B) the proceeds of a concurrent sale of assets, in each case in the ordinary course of business, (iv) cash expenditures which constitute consideration paid in connection with an acquisition, as approved by the Administrative Agent in its sole discretion, consummated during such period, (v) any such expenditures made with the proceeds of any Excluded Issuance or the incurrence of any Indebtedness permitted under this Agreement, (vi) expenditures constituting interest capitalized during such period, and (vii) expenditures that are accounted for as capital expenditures of such Person and that actually are paid for by a third-party and for which no Loan Party has provided or is required to provide or incur, directly or indirectly, any consideration or obligation to such third-party or any other Person.

Capital Lease Obligations” means, at any time, as to any Person, the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or tangible personal property, or a combination thereof, to the extent such obligations are required to be classified and accounted for as capital leases or similar lease financing obligations on a balance sheet of such Person under GAAP and, for the purposes of this Agreement, the amount of such obligations at any time shall be the capitalized amount thereof at such time determined in accordance with GAAP; provided that, notwithstanding the foregoing, in no event will any lease that would have been categorized as an operating lease as determined in accordance with GAAP as of the Closing Date, be considered a capital lease for purposes of this definition as a result of any changes in GAAP subsequent to the Closing Date.

Cash Collateral Account” means a deposit account or securities account (including Controlled Deposit Accounts and Controlled Securities Accounts) in the name of a Borrower and under the sole control (as defined in the applicable UCC) of Administrative Agent and (a) in the case of a deposit account, from

 

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which such Borrower may not make withdrawals except as permitted by Administrative Agent and (b) in the case of a securities account, with respect to which Administrative Agent shall be the entitlement holder and the only Person authorized to give entitlement orders with respect thereto.

Cash Equivalents” means (a) any readily-marketable securities (i) issued by, or directly, unconditionally and fully guaranteed or insured by the United States federal government or (ii) issued by any agency or instrumentality of the United States federal government the obligations of which are fully backed by the full faith and credit of the United States federal government, (b) any readily-marketable direct obligations issued by any other agency of the United States federal government, any state of the United States or any political subdivision of any such state or any public instrumentality thereof, in each case having a rating of at least “A-2” from S&P or at least “P-2” from Moody’s, (c) any commercial paper rated at least “A-2” by S&P or “P-2” by Moody’s and issued by any Person organized under the laws of any state of the United States, (d) any Dollar-denominated time deposit, insured certificate of deposit, overnight bank deposit or bankers’ acceptance issued or accepted by (i) any Lender or (ii) any commercial bank that is (A) organized under the laws of the United States, any state thereof or the District of Columbia, (B) “adequately capitalized” (as defined in the regulations of its primary federal banking regulators) and (C) has Tier 1 capital (as defined in such regulations) in excess of $250,000,000 and (e) shares of any United States money market fund that (i) has substantially all of its assets invested continuously in the types of investments referred to in clause (a),  (b),  (c) or (d) above with maturities as set forth in the proviso below, (ii) has net assets in excess of $500,000,000 and (iii) has obtained from either S&P or Moody’s the highest rating obtainable for money market funds in the United States; provided,  however, that the maturities of all obligations specified in any of clauses (a),  (b),  (c) and (d) above shall not exceed 365 days.

Cash Management Document” means any certificate, agreement or other document executed by the Borrowers in respect of the Cash Management Obligations of the Borrowers.

Cash Management Obligation” means, with respect to the Borrowers, any direct or indirect liability, contingent or otherwise, of any such Person in respect of cash management services (including treasury, depository, overdraft, credit or debit card, electronic funds transfer and other cash management arrangements) provided by the Administrative Agent, any Lender or any Affiliate of any of them, including obligations for the payment of fees, interest, charges, expenses, attorneys’ fees and disbursements in connection therewith.

Change of Control” means that (i) GHLLC and Genesis Partnership, LLC shall cease to own, directly or indirectly, 100% of the Equity Interests of GHC Holdings LLC, (ii) GHLLC and Genesis Partnership, LLC shall cease to own, directly or indirectly, 100% of the Equity Interests of Borrowers; (iii) the Equity Interests of any Borrower shall ceased to be 100% directly owned by a Guarantor or (iv) a “change of control” or similar concept under the ABL Credit Agreement or any Master Lease shall have occurred.

Closing Date” means March 31, 2016.

CMS Bulletin” has the meaning specified in Section 7.12(a)(iii).

Code” means the U.S. Internal Revenue Code of 1986, as amended.

Collateral” has the meaning specified therefor in the Security Agreement.

Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.

 

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Second Amended and Restated Genesis Revolving Credit Agreement (HUD Facility)

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Compliance Certificate” means a certificate substantially in the form of Exhibit G.

Concentration Accounts” has the meaning specified in Section 7.12(a)(i)(B).

Concentration Account Collecting Bank”  has the meaning specified in Section 7.12(a)(i)(B).

Consolidated” and “Consolidated Basis” means, with respect to any Person, the accounts or results of such Person and its Subsidiaries, consolidated in accordance with GAAP, excluding the revenues, expenses, assets and liabilities of variable interest entities having indebtedness that is non-recourse to such Person.

Consolidated Cash Interest Expense” means, for any period, the Consolidated Interest Expense for such period minus the sum of, in each case to the extent included in the definition of Consolidated Interest Expense, (a) the amortized amount of debt discount and debt issuance costs (including, without limitation, amortization of financing fees and expenses paid in connection with the transactions contemplated by the Loan Documents), (b) interest payable in evidences of Indebtedness or by addition to the principal of the related Indebtedness and (c) other non-cash interest.

Consolidated EBITDA” means, with respect to any Person, for any measurement period, Consolidated Net Income for such period plus without duplication and to the extent deducted in determining such Consolidated Net Income, the sum of (i) Consolidated Interest Expense for such period, plus (ii) Consolidated income tax expense for such period, plus (iii) all amounts attributable to the amount of the provision for depreciation and amortization, plus (iv) the amount of any non-cash charges (other than the write-down of current assets), plus (v) the amount of any loss from unusual or extraordinary items in excess of $100,000, including any related management incentive or stay-pay plans in place as of the Closing Date, any restructuring charges and any other non-recurring loss not to exceed $500,000 in the aggregate for this clause (v) for any period.

Consolidated EBITDAR” means, with respect to any Person, for any measurement period, Consolidated EBITDA for such period plus, to the extent deducted in determining Consolidated EBITDA such period, without duplication, Consolidated Rental Expense.

Consolidated Fixed Charge Coverage Ratio” means, with respect to any Person for any measurement period, the ratio of Consolidated EBITDAR for such period to Consolidated Fixed Charges for the four Fiscal Quarter periods ending on such date calculated on a Pro Forma Basis.

Consolidated Fixed Charges” means, with respect to any Person, for any measurement period, the sum, without duplication, of Consolidated Cash Interest Expense and Consolidated Rental Expense for such period.

Consolidated Interest Expense” means, with respect to any Person, for any measurement period, the sum, determined on a Consolidated Basis without duplication, of (a) the interest expense (including imputed interest expense in respect of Capital Lease Obligations (other than Real Property Financing Obligations)) of such Person and its Subsidiaries for such period, plus (b) any interest accrued during such period in respect of Indebtedness of such Person and its Subsidiaries that is required to be capitalized rather than included in Consolidated Interest Expense for such period in accordance with GAAP; provided that Consolidated Interest Expense for any period ending on any day prior to the first anniversary of the Closing Date shall be deemed equal to the product of (i) Consolidated Interest Expense computed in accordance with the requirements of this definition for the period from and including the Closing Date to and including such day by (ii) a fraction, the numerator of which is the number of days from and including the Closing Date to and including such day and the denominator of which is 365.

 

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Second Amended and Restated Genesis Revolving Credit Agreement (HUD Facility)

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Consolidated Net Income” means, with respect to any Person, for any measurement period, the Net Income or loss of such Person and its Subsidiaries for such period determined on a Consolidated Basis; provided that there shall be excluded, without duplication, (a) the income of such Person and its Subsidiaries to the extent that the declaration or payment of dividends or similar distributions by such Person and its Subsidiaries of that income is not at the time permitted by operation of the terms of its charter or any agreement, instrument, judgment, decree, statute, rule or governmental regulation applicable to such Person and its Subsidiaries), (b) the income or loss of such Person and its Subsidiaries accrued prior to the date such Person becomes a Borrower or is merged into or consolidated with any of the Borrowers or the date that such Person’s assets are acquired by any of the Borrowers, (c) any gains or losses attributable to sales of assets outside of the ordinary course of business, (d) earnings (or losses) resulting from any reappraisal, revaluation or write-up (or write-down) of assets (other than current assets), (e) unrealized gains and losses with respect to Hedge Agreements or other derivative instruments for such period, and (f) any gains or losses relating to discontinued operations; provided further that the Net Income of any Person in which any other Person (other than the Borrowers or any director or foreign national holding qualifying shares in accordance with applicable law) has a joint interest shall be included in Consolidated Net Income only to the extent of the percentage interest of such Person owned by the Loan Parties.  In addition, to the extent not already included in Consolidated Net Income, notwithstanding anything to the contrary in the foregoing, Consolidated Net Income shall include (i) any expenses and charges that are reimbursed by indemnification or other reimbursement provisions in connection with any Investment or any Transfer permitted hereunder and (ii) to the extent covered by insurance and actually reimbursed, expenses with respect to liability or casualty events or business interruption.

Consolidated Rental Expense” means, with respect to any Person, for any measurement period, the total rental expense for operating leases and Real Property Financing Obligations of such Person and its Subsidiaries (regardless of the accounting treatment thereof), determined on a Consolidated Basis for such period and adjusted, for avoidance of doubt, to exclude the non-cash impact resulting from the straight-lining of rents; provided that Consolidated Rental Expense shall be reduced by all rental income.

Constituent Documents” means, with respect to any Person, collectively and, in each case, together with any modification of any term thereof, (a) the articles of incorporation, certificate of incorporation, constitution or certificate of formation of such Person, (b) the bylaws, operating agreement or joint venture agreement of such Person, (c) any other constitutive, organizational or governing document of such Person, whether or not equivalent, and (d) any other document setting forth the manner of election or duties of the directors, officers or managing members of such Person or the designation, amount or relative rights, limitations and preferences of any Equity Interests of such Person.

Contractual Obligation” means, with respect to any Person, any provision of any Security issued by such Person or of any agreement, instrument or other undertaking (other than a Loan Document) to which such Person is a party or by which it or any of its Property is bound.

Control Agreement” means, with respect to any deposit account, any securities account, commodity account, securities entitlement or commodity contract, an agreement, in form and substance satisfactory to Administrative Agent, among Administrative Agent, the financial institution or other Person at which such account is maintained or with which such entitlement or contract is carried and the Loan Party maintaining such account, effective to grant “control” (as defined under the applicable UCC) over such account to Administrative Agent.

Controlled Deposit Account” means each deposit account (including all funds on deposit therein) that is the subject of an effective Control Agreement and that is maintained by any Loan Party with a financial institution approved by Administrative Agent.

 

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Second Amended and Restated Genesis Revolving Credit Agreement (HUD Facility)

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Controlled Securities Account” means each securities account or commodity account (including all financial assets held therein and all certificates and instruments, if any, representing or evidencing such financial assets) that is the subject of an effective Control Agreement and that is maintained by any Loan Party with a securities intermediary or commodity intermediary approved by Administrative Agent.

Curable Period” has the meaning specified in Section 5.6(a).

Cure Amount” has the meaning specified in Section 5.6(a).

Cure Right” has the meaning specified in Section 5.6(a).

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 of Default and any event that, with the passing of time or the giving of notice or both, would become an Event of Default.

Defaulting Borrower” has the meaning specified in Section 2.19(b).

Defaulting Lender” means, subject to Section 2.22(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within two Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and Administrative Loan Party in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent or any Lender any other amount required to be paid by it hereunder within two Business Days of the date when due, (b) has notified the Administrative Agent and Administrative Loan Party in writing that it does not intend to comply with such Lender’s funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lenders’ obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after written request by the Administrative Agent or Administrative Loan Party, to confirm in writing to the Administrative Agent and Administrative Loan Party that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and Administrative Loan Party), (d) after the Closing Date, 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 appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other federal or state regulatory authority acting in such a capacity or (iii) become 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 such Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender.  Any determination by the Administrative Agent that a Lender is a Defaulting Lender under clauses (a) through (d) above shall be conclusive absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to

 

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Second Amended and Restated Genesis Revolving Credit Agreement (HUD Facility)

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Section 2.22(b)) upon delivery of written notice of such determination to Administrative Loan Party and each Lender.

Designated Jurisdiction” means any country or territory to the extent that such country or territory itself is the subject of any Sanction.

Disbursement Operating Account” has the meaning specified in Section 7.12(a)(i)(C).

Disbursement Operating Account Collecting Bank” has the meaning specified in Section 7.12(a)(i)(C).

Disclosure Documents” means, collectively, (a) all confidential information memoranda and related materials prepared in connection with the syndication of the Revolving Credit Facilities and approved by Borrower, which approval shall not be unreasonably withheld, conditioned or delayed, and (b) all other documents filed by any Loan Party with the SEC.

Disqualified Capital Stock” means any Equity Interest or Equity Equivalent that, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable), or upon the happening of any event, (a) matures (excluding any maturity as the result of an optional redemption by the issuer thereof) or is mandatorily redeemable (other than solely for Equity Interests or Equity Equivalents that do not qualify as “Disqualified Capital Stock”), pursuant to a sinking fund obligation or otherwise (except as the 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 Obligations that are accrued and payable and the termination of the Revolving Credit Commitments), or is redeemable at the option of the holder thereof, in whole or in part (other than solely for Equity Interests or Equity Equivalents that do not qualify as “Disqualified Capital Stock”), or requires the payment of any cash dividend or any other scheduled payment constituting a return of capital, in each case at any time on or prior to the date that is 91 days after the Scheduled Revolving Credit Termination Date, or (b) is convertible into or exchangeable (unless at the sole option of the issuer thereof) for (i) debt securities or (ii) any Equity Interest or Equity Equivalent referred to in clause (a) above, in each case at any time prior to the date that is 91 days after the Scheduled Revolving Credit Termination Date; provided that if such Equity Interest or Equity Equivalent is issued to any plan for the benefit of employees of the Loan Parties or by any such plan to such employees, such Equity Interest or Equity Equivalent shall not constitute Disqualified Capital Stock solely because it may be required to be repurchased by the Loan Parties in order to satisfy applicable statutory or regulatory obligations; provided,  further, that any Equity Interest or Equity Equivalent held by any present or former officers, consultants, directors or employees (and their spouses, former spouses, heirs, estates and assigns) of the Loan Parties upon the death, disability, engaging in competitive activity or termination of employment of such officer, director, consultant or employee or pursuant to any equity subscription, shareholder, employment or other agreement shall not constitute Disqualified Capital Stock solely because it may be required to be repurchased by the Loan Parties.

Dollars” and the sign “$” each mean the lawful money of the United States of America.

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.

 

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Second Amended and Restated Genesis Revolving Credit Agreement (HUD Facility)

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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.

Electronic Transmission” means each document, instruction, authorization, file, information and any other communication transmitted, posted or otherwise made or communicated by e-mail or E-Fax, or otherwise to or from an E-System or other equivalent service.

Eligible Account” means an Account of any applicable Borrower generated in the ordinary course of such Borrower’s business from the sale of goods or rendering of Medical Services to a Patient, that is due in its entirety by an Account Debtor that is Medicaid, Medicare, TRICARE or an Approved Insurer under a Third-Party Payor Program or certain individuals and that Administrative Agent, in its reasonable credit judgment, deems to be an Eligible Account.  The net amount of Eligible Accounts at any time shall be (a) the face amount of such Eligible Accounts as originally billed minus (b) all cash collections and other proceeds of such Account received from or on behalf of the Account Debtor thereunder as of such date and any and all returns, rebates, discounts (which may, at Administrative Agent’s option, be calculated on shortest terms), credits, allowances and excise taxes of any nature at any time issued, owing, claimed by Account Debtors, granted, outstanding or payable in connection with such Accounts at such time.  Without limiting the generality of the foregoing, no Account shall be an Eligible Account if:

(i) the Account or any portion of the Account is payable by an individual beneficiary, recipient or subscriber individually and not directly to the applicable Borrower by an Account Debtor that is Medicaid, Medicare, TRICARE or an Approved Insurer under a Third-Party Payor Program; provided, however, with respect to (A) an Account Debtor that is an individual, so long as (1) the Account arises solely from the rendering of Medical Services, and (2) the invoice for such Account has been delivered to the Account Debtor (or the Person that is responsible for the payment of such Account on behalf of such Account Debtor), then Accounts in an aggregate amount not to exceed $15,000,000, in each case, shall not become ineligible solely because of this clause (i) (provided that the $15,000,000 limit in this clause (i)(A) shall be reduced, as of any date of calculation, by an amount equal to the aggregate amount of accounts constituting “Eligible Accounts” under the ABL Credit Agreement pursuant to clause (i)(A) of the definition of such term in the ABL Credit Agreement), and (B) an Account Debtor that is a UPL Hospital, so long as the Account arises under the UPL Documents for managed services in connection with the rendering of Medical Services or base rent due to a Borrower from a UPL Hospital, then Accounts in an amount not to exceed $15,000,000 in the aggregate for all UPL Hospitals shall not become ineligible solely because of this clause (i); provided that the $15,000,000 limit in this clause (i)(B) shall be reduced, as of any date of calculation, by an amount equal to the aggregate amount of accounts constituting “Eligible Accounts” under the ABL Credit Agreement pursuant to clause (i)(B) of the definition of such term in the ABL Credit Agreement;

(ii) the Account remains unpaid (A) with respect to Accounts for which Medicaid approval is being sought, but for which Medicaid has not finally approved coverage, more than 90 days past the claim or invoice date (but in no event more than 105 days after the applicable Medical Services have been rendered), (B) with respect to Accounts for which the Account Debtor is a UPL Hospital, the Account of which is not otherwise ineligible hereunder, more than 90 days past the claim or invoice date under the

 

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Second Amended and Restated Genesis Revolving Credit Agreement (HUD Facility)

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applicable UPL Documents (but in no event more than 120 days after the end of the month in which the applicable Medical Services have been rendered), (C) with respect to Accounts for which the Account Debtor is an individual the Account of which is not otherwise ineligible hereunder, more than 120 days past the claim or invoice date (but in no event more than 135 days after the applicable Medical Services have been rendered) or (D) with respect to all other Accounts, more than 150 days past the claim or invoice date (but in no event more than 165 days after the applicable Medical Services have been rendered);

(iii) the Account is subject to any defense, set-off (in respect of a liquidated amount), counterclaim, deduction, discount, credit, chargeback, freight claim, allowance, right of recoupment, or adjustment of any kind but only to the extent thereof;

(iv) if the Account arises from the performance of Medical Services (either directly or under a UPL Program or similar program), the Medical Services have not actually been performed, the Medical Services were undertaken in violation of any law, or the Medical Services were performed at a Facility (A) where  outstanding Medicare or Medicaid survey deficiencies at Level G, H, I, J, K, L or worse  have been outstanding for a period of greater than six (6) months or have resulted in the imposition by Centers for Medicare & Medicaid Services or the applicable state survey agency of sanctions in the form of a program termination, temporary management, denial of payment for new admissions as a result of Medicare or Medicaid survey deficiencies, (B) where any Primary License related to such Facility has been and remains revoked, or (C) which has been, or is expected to be within 30 days of the date on which the relevant Borrowing Base Certificate is to be delivered, closed;

(v) the Account is subject to a Lien (other than Liens in favor of the Administrative Agent or Liens that have been expressly subordinated to the Liens of the Administrative Agent);

(vi) the applicable Borrowers know or should have known of the bankruptcy, receivership, reorganization, or insolvency of the Account Debtor;

(vii) the Account is evidenced by chattel paper or an instrument of any kind, or has been reduced to judgment;

(viii) the Account Debtor has its principal place of business or executive office outside the United States or the Account is payable in a currency other than U.S. dollars;

(ix) the Account Debtor is an employee, agent, Affiliate or Subsidiary of a Borrower;

(x) more than 50% of the aggregate balance of all Accounts owing from the Account Debtor obligated on the Account are outstanding more than 150 days past the invoice date;

(xi) 50% or more of the aggregate unpaid Accounts from any Account Debtor and its Affiliates are not deemed Eligible Accounts under this Agreement;

(xii) any covenant, representation or warranty contained in the Loan Documents with respect to such Account has been breached (it being understood that, for

 

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Second Amended and Restated Genesis Revolving Credit Agreement (HUD Facility)

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purposes of this definition, the words “to the best of Borrowers’ knowledge” shall be deemed excised);

(xiii) the Account is (A) not paid directly to or collected directly or indirectly in the Concentration Account or (B) paid directly to or collected directly or indirectly in the Wells Fargo Accounts before the requirements of Schedule 7.9 have been satisfied with respect thereto;

(xiv) the Account is not subject to a valid and perfected first priority Lien in favor of Administrative Agent for the benefit of the Secured Parties;

(xv) the applicable Borrower is not able to bring suit or otherwise enforce its remedies against the Account Debtor with respect to the Account through the judicial process in the Account Debtor’s jurisdiction due to failure of such Borrower to be qualified to conduct business in such jurisdiction, failure to file any notice of business of activities report or otherwise;

(xvi) Accounts for which an invoice has not been sent to the applicable Account Debtor in respect of such Account, in the form otherwise required by such Account Debtor; provided,  however, (A) to the extent that no more than 21 days have elapsed since the first calendar day in the month immediately following the month in which the Medical Services giving rise to such Account were performed and (B) such Account would otherwise constitute an Eligible Account but for the requirements of this clause (xvi), such Account shall not be deemed ineligible;

(xvii) Accounts owned by a Person acquired in connection with a Permitted Acquisition or implementation of a UPL Program, until such time as customary diligence investigations (which may include a field examination with respect to such Person or Accounts) are completed to the reasonable satisfaction of Administrative Agent;

(xviii) The Account Debtor is a UPL Hospital and a default shall have occurred and is continuing under any UPL Document to which such UPL Hospital is a Party, whether such default shall have occurred as a result of actions or inactions by such UPL Hospital or by the UPL Borrower; or

(xix) the Account fails to meet such other reasonable specifications and requirements which may from time to time be established by Administrative Agent consistent with its reasonable credit judgment and consistent with its underwriting and general business practices following Administrative Agent’s analysis or audit; provided, that Administrative Agent shall provide notice to Borrowers of any such other specifications and requirements prior to implementation thereof, and such change shall not be effective until the date of delivery of the next Borrowing Base Certificate due after such notice.

Environmental Claims” means any and all actions, suits, orders, decrees, demands, demand letters, claims, liens, notices of noncompliance, violation or potential responsibility or investigation (other than internal reports prepared by any of the Loan Parties (a) in the ordinary course of such Person’s business or (b) as required in connection with a financing transaction or an acquisition or Transfer of real estate) or proceedings pursuant to or in connection with any Environmental Law or any permit issued, or any approval given, under any such Environmental Law (hereinafter, “Claims”), including, without limitation, (i) any and all Claims by governmental or regulatory authorities for enforcement, cleanup, removal, response,

 

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Second Amended and Restated Genesis Revolving Credit Agreement (HUD Facility)

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remedial or other actions or damages pursuant to any applicable Environmental Law, (ii) any and all Claims by any third-party seeking damages, contribution, indemnification, cost recovery, compensation or injunctive relief relating to the presence, release or threatened release of Hazardous Materials or arising from alleged injury or threat of injury to health or safety (to the extent relating to human exposure to Hazardous Materials) or the environment including, without limitation, ambient air, surface water, groundwater, land surface and subsurface strata and natural resources such as wetlands, and (iii) any and all Claims by any third-party regarding environmental liabilities or obligations assumed or assigned by contract or operation of law.

Environmental Indemnity” means that certain Second Amended and Restated Environmental Indemnity Agreement, dated as of the date hereof, as it may be further supplemented, amended, restated, replaced or otherwise modified from time to time in connection with this Agreement, pursuant to which Loan Parties indemnify Administrative Agent and Lenders for any Environmental Liability.

Environmental Laws” means each applicable federal, state, foreign or local statute, law, rule, regulation, ordinance, code and rule of common law now or hereafter in effect and in each case as amended, and any binding judicial or administrative interpretation thereof, including any binding judicial or administrative order, consent decree or judgment, relating to pollution, the protection of the environment, including, without limitation, ambient air, surface water, groundwater, land surface and subsurface strata and natural resources such as wetlands, or human health or safety (to the extent relating to human exposure to Hazardous Materials).

Environmental Liabilities” means all Liabilities (including costs of Remedial Actions, natural resource damages and costs and expenses of investigation and feasibility studies) that may be imposed on, incurred by or asserted against any Borrower as a result of, or related to, any Environmental Claim and resulting from the ownership, lease, sublease or other operation or occupation of property by any Borrower, whether on, prior or after the Closing Date.

Equity Equivalents” means all securities convertible into or exchangeable for Equity Interests or any other Equity Equivalent and all warrants, options or other rights to purchase, subscribe for or otherwise acquire any Equity Interests or any other Equity Equivalent, whether or not presently convertible, exchangeable or exercisable.

Equity Interests” means all shares of capital stock (whether denominated as common stock or preferred stock), equity interests, beneficial, partnership or membership interests, joint venture interests, participations or other ownership or profit interests in or equivalents (regardless of how designated) of or in a Person (other than an individual), whether voting or non-voting, but excluding Indebtedness convertible or exchangeable into Equity Interests prior to the conversion or exchange thereof.

ERISA” means the United States Employee Retirement Income Security Act of 1974, as amended from time to time.

ERISA Affiliate” means, collectively, any Loan Party, and any Person under common control, or treated as a single employer, with any Loan Party, within the meaning of Section 414(b), (c), (m) or (o) of the Code.

ERISA Event” means any of the following:  (a) a reportable event described in Section 4043(b) of ERISA or Section 4043(c) with respect to a Title IV Plan, other than an event for which the notice requirement has been duly waived under the applicable regulations, (b) the withdrawal of any ERISA Affiliate from a Title IV 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, (c) the complete or partial withdrawal of

 

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Second Amended and Restated Genesis Revolving Credit Agreement (HUD Facility)

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any ERISA Affiliate from any Multiemployer Plan, (d) with respect to any Multiemployer Plan, the filing of a notice of insolvency or termination (or treatment of a plan amendment as termination) under Section 4041A of ERISA, (e) the filing of a notice of intent to terminate a Title IV Plan (or treatment of a plan amendment as termination) under Section 4041 of ERISA, (f) the institution of proceedings to terminate a Title IV Plan or Multiemployer Plan by the PBGC, (g) the failure to make any required contribution to any Title IV Plan or Multiemployer Plan when due, (h) the imposition of a lien under Section 412 of the Code or Section 302 or 4068 of ERISA on any property (or rights to property, whether real or personal) of any ERISA Affiliate, (i) the failure of a Multiemployer Plan, Benefit Plan or any trust thereunder intended to qualify for tax exempt status under Section 401 or 501 of the Code or other Requirements of Law to qualify thereunder, (j) any other event or condition that might reasonably be expected to constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Title IV Plan or Multiemployer Plan or for the imposition of any liability upon any ERISA Affiliate under Title IV of ERISA other than for PBGC premiums due but not delinquent and (k) the occurrence of a Foreign Benefit Event.

E-Fax” means any system used to receive or transmit faxes electronically.

E-Signature” means the process of attaching to or logically associating with an Electronic Transmission an electronic symbol, encryption, digital signature or process (including the name or an abbreviation of the name of the party transmitting the Electronic Transmission) with the intent to sign, authenticate or accept such Electronic Transmission.

E-System” means any electronic system, including Intralinks® and CleraPar® and any other Internet or extranet-based site, whether such electronic system is owned, operated or hosted by Administrative Agent, any of its Related Persons or any other Person, providing for access to data protected by passcodes or other security system.

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 9.1.

Excluded Taxes” has the meaning specified in Section 2.17(a).

Excluded Issuance” means a Qualified Equity Issuance (other than Qualified Equity Issuances utilized in connection with an exercise of the Borrowers’ Cure Right under Section 5.6(a)); provided that the Net Cash Proceeds therefrom shall be reduced to the extent previously expended pursuant to clause (v) of the definition of “Capital Expenditures”, Section 8.4(k) and/or Section 8.9(b).

Excluded Swap Obligations” means any obligation to pay or perform under any Swap Transaction if, and to the extent that, all or a portion of the guarantee of any Guarantor of, or the grant by any Guarantor of a security interest to secure, such Swap Transaction (or any guarantee thereof) is or becomes illegal under the Commodity Exchange Act or rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of any Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the guaranty or the grant of such security interest becomes effective with respect to such Swap Transactions.  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 Transaction that is attributable to swaps for which such guaranty or security interest is or becomes illegal.

“Excluded Taxes” has the meaning specified in Section 2.17(a).

 

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Second Amended and Restated Genesis Revolving Credit Agreement (HUD Facility)

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Existing Borrowers” has the meaning specified in the recitals hereto.

Facilities” means, collectively, each hospital, clinic, skilled nursing facility, assisted living facility, independent living facility or mental health facility (or state equivalent of such licensure categories) or other healthcare facility owned, leased or managed by the Borrowers or any of their Subsidiaries, as listed on Schedule 4.16 hereto.

Facility Depository Banks” has the meaning specified in Section 7.12(a)(i)(A).

Facility Lockbox Accounts” has the meaning specified in Section 7.12(a)(i)(A).

Facility Lockbox Agreement” has the meaning specified in Section 7.12(a)(v)(B).

FATCA” means Sections 1471 through 1474 of the Code (effective as of the Closing Date) (or any amended or successor version that is substantially comparable and not materially more onerous to comply with) and any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code.

Federal Funds Rate” means, for any period, a fluctuating interest rate per annum equal for each day during such period to the weighted average of the rates on overnight federal funds transactions with members of the United States Federal Reserve System arranged by federal funds brokers, as determined by Administrative Agent in its sole discretion.

Federal Reserve Board” means the Board of Governors of the United States Federal Reserve System and any successor thereto.

Fee Letter” means the amended and restated letter agreement, dated as of the Closing Date, among Administrative Agent and the Borrowers; and each other letter agreement executed from time to time, as each may be amended, restated, revised, supplemented, replaced or otherwise modified from time to time, with respect to certain fees to be paid from time to time to Administrative Agent and its Related Persons.

FHA Mortgagee” means a lender approved by the Federal Housing Administration to provide loans under HUD’s Section 232 program.

Financial Condition Covenants” means each covenant set forth in Article 5.

Financial Cure Covenant” has the meaning specified in Section 5.6(a).

Financial Statement” means each financial statement delivered pursuant to Section 6.1.

Fiscal Quarter” means each three (3) fiscal month period ending on March 31, June 30, September 30 or December 31.

Fiscal Year” means each 12 month period ending on December 31.

Foreign Benefit Event” means with respect to any Foreign Pension Plan, (a) the failure of any such Foreign Pension Plan or any trust thereunder intended to qualify for tax exempt status under any Requirements of Law, (b) the existence of unfunded liabilities in excess of the amount permitted under any applicable law, (c) the failure to make the required contributions or payments under any applicable law on or before the due date for such contributions or payments, (d) the receipt of a notice by a Governmental Authority relating to its intention to terminate any such Foreign Pension Plan or to appoint a trustee or

 

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similar official to administer any such Foreign Pension Plan, or alleging the insolvency of any such Foreign Pension Plan, (e) the incurrence of any liability in excess of $1,000,000 by any Loan Party under applicable law on account of the complete or partial termination of such Foreign Pension Plan or the complete or partial withdrawal of any participating employer therein, or (f) the occurrence of any transaction that is prohibited under any applicable law and that could reasonably be expected to result in the incurrence of any liability by any Loan Party, or the imposition on any Loan Party of any fine, excise tax or penalty resulting from any noncompliance with any applicable law, in each case in excess of $1,000,000.

Foreign Pension Plan” means any pension plan maintained outside the jurisdiction of the United States that under applicable law is required to be funded through a trust or other funding vehicle other than a trust or funding vehicle maintained exclusively by a Governmental Authority to which any Loan Party incurs or otherwise has any obligation or liability, contingent or otherwise.

GAAP” means generally accepted accounting principles in the United States of America, as in effect from time to time, set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants, in the statements and pronouncements of the Financial Accounting Standards Board and in such other statements by such other entity as may be in general use by significant segments of the accounting profession that are applicable to the circumstances as of the date of determination.  Subject to Section 1.3, all references to “GAAP” shall be to GAAP applied consistently with the principles used in the preparation of the Financial Statements.

Genesis Holdings” means Genesis Holdings, LLC, a Delaware limited liability company.

Genesis Subsidiary” means each direct or indirect Subsidiary of Genesis Holdings that is a Borrower.

GHLLC” means Genesis Healthcare LLC, a Delaware limited liability company.

Government Receivables Deposit Account” means any deposit account into which payments from Medicaid, Medicare, TRICARE or other state or federal healthcare payor programs are deposited, or in which funds are deposited to provide credit support, ACH support or other reserves for Borrowers, which accounts shall include all accounts listed on Schedule 7.12(b) (as such schedule may be updated from time to time by Borrowers as part of the Compliance Certificate delivered pursuant to Section 6.2(d)).

Governmental Authority” means any nation or government, any state, province or other political subdivision thereof and any governmental entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government and, as to any Lender, any securities exchange and any self-regulatory organization (including the National Association of Insurance Commissioners).

Guarantee Obligation” as to any Person (the “guaranteeing person”), any obligation of the guaranteeing person guaranteeing or by which such Person becomes contingently liable for any Indebtedness, net worth, working capital earnings, leases, dividends or other distributions upon the stock or equity interests (other than Real Property Financing Obligations) (the “primary obligations”) of any other third Person (the “primary obligor”) in any manner, whether directly or indirectly, including, without limitation, any obligation of the guaranteeing person, whether or not contingent, (i) to purchase any such primary obligation or any Property constituting direct or indirect security therefor, (ii) to advance or supply funds (1) for the purchase or payment of any such primary obligation or (2) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase Property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (iv) otherwise to assure or hold harmless the owner of any such primary obligation against

 

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loss in respect thereof; provided,  however, that the term Guarantee Obligation shall not include endorsements of instruments for deposit or collection in the ordinary course of business and reasonable indemnity obligations in effect on the Closing Date or entered into in connection with any acquisition or Transfer of assets or any Investment permitted under this Agreement.  The amount of any Guarantee Obligation of any guaranteeing Person shall be deemed to be such guaranteeing Person’s maximum reasonably anticipated liability in respect thereof as determined by Borrowers in good faith.

Guarantors” has the meaning specified in the preamble to this Agreement.

Guaranty Agreement” means an amended and restated guaranty agreement, in substantially the form of Exhibit H, among Administrative Agent, Borrowers and Guarantors, if any, from time to time party thereto, as such may be amended, restated, replaced or otherwise modified from time to time.

Hazardous Material” means (a) any petroleum or petroleum products, radioactive materials, asbestos, urea formaldehyde foam insulation, polychlorinated biphenyls, radon gas and medical waste; (b) any chemicals, wastes, materials or substances defined as or included in the definition of “hazardous substances”, “hazardous waste”, “hazardous materials”, “extremely hazardous waste”, “restricted hazardous waste”, “toxic substances”, “toxic pollutants”, “contaminants”, or “pollutants”, or words of similar import, under any applicable Environmental Law; and (c) any other chemical, waste, material or substance which is prohibited, limited or regulated by or with respect to which liability is imposed under any Environmental Law.

Healthcare Laws” means all federal, state, county, municipal and other governmental statutes, laws, rules, orders, regulations, ordinances, judgments, decrees and injunctions or agreements, in each case, pertaining to  or concerned with the establishment, construction, ownership, operation, use or occupancy of a Facility or any part thereof and all material Permits and Primary Licenses, including those relating to the quality and adequacy of care, equipment, personnel, operating policies, additions to facilities and services, medical care, distribution of pharmaceuticals, rate setting, kickbacks, fee splitting, patient healthcare and/or patient healthcare information, including the Health Insurance Portability and Accountability Act of 1996, as amended, and the rules and regulations promulgated thereunder, and as amended by the Health Information Technology for Economic and Clinical Health Act provisions of the American Recovery and Reinvestment Act of 2009, and the rules and regulations promulgated thereunder (collectively “HIPAA”).

Hedge Agreements” means all Interest Rate Contracts, foreign exchange, swap, option or forward contract, spot, cap, floor or collar transaction, any other derivative instrument and any other similar speculative transaction and any other similar agreement or arrangement designed to alter the risks of any Person arising from fluctuations in any underlying variable.

HFS” has the meaning specified in the preamble to this Agreement.

Highest Lawful Rate” means the maximum lawful interest rate, if any, that at any time or from time to time may be contracted for, charged, or received under the laws applicable to any Lender that are presently in effect or, to the extent allowed by law, under such applicable laws that may hereafter be in effect and that allow a higher maximum nonusurious interest rate than applicable laws now allow.

HIPAA” has the meaning specified in the definition of “Healthcare Laws”.

HUD” means the U.S. Department of Housing and Urban Development.

HUD Consolidated Group” means the Borrowers, taken together on a consolidated basis.

 

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Indebtedness” of any Person means at any date, without duplication, any of the following, whether or not matured:  (a) all indebtedness of such Person for borrowed money, (b) all obligations of such Person for the deferred purchase price of Property or services (other than (i) trade payables, accrued expenses, current accounts and similar obligations incurred in the ordinary course of such Person’s business), (ii) deferred compensation accrued in the ordinary course of business and (iii) earn-outs and other contingent payments in respect of acquisitions except as and to the extent that the liability on account of any such earn-out or contingent payment appears in the liabilities section of the balance sheet of such Person in accordance with GAAP), (c) all obligations of such Person evidenced by notes, bonds, debentures or other similar instruments, (d) all indebtedness created or arising under any conditional sale or other title retention agreement with respect to Property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such Property, in which case only the lesser of the amount of such obligation and the fair market value of such Property shall constitute Indebtedness), (e) all Capital Lease Obligations of such Person, (f) all obligations of such Person, contingent or otherwise, as an account party or applicant under acceptance, letter of credit or similar facilities, (g) all obligations of such Person in respect of Disqualified Capital Stock valued at, in the case of redeemable preferred Equity Interests, the greater of the voluntary liquidation preference and the involuntary liquidation preference of such Equity Interests plus accrued and unpaid dividends, (h) all payments that would be required to be made in respect of any Hedge Agreement with a counterparty other than the Administrative Agent in the event of a termination (including an early termination) on the date of determination, and (i) all Guarantee Obligations of such Person in respect of obligations of the kind referred to in clauses (a) through (h) above.

Indemnified Matter” has the meaning specified in Section 11.4(a).

Indemnitee” has the meaning specified in Section 11.4(a).

Insurance Captive” means Liberty Health Corporation, Ltd., a Bermuda company, or any other insurance captive or other self-insurance program established by a Borrower.

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 any Borrower to compensate such Borrower for providing such goods or services to a Patient, including but not limited to Medicaid,  Medicare and TRICARE.

Intellectual Property” means the collective reference to all rights, priorities and privileges relating to intellectual property, whether arising under United States, multinational or foreign laws or otherwise, including, without limitation, copyrights and copyright applications, domain names, patents and patent applications, trademarks and trademark applications, trade names, rights in technology, trade secrets, know-how and processes.

Interest Period” means with respect to any Revolving Loan that is a LIBOR Rate Loan, the period commencing on the date such LIBOR Rate Loan is made or converted to a LIBOR Rate Loan or, if such loan is continued, on the last day of the immediately preceding Interest Period therefor and, in each case, ending one (1), two (2), three (3) or six (6) months thereafter, as selected by Borrower pursuant hereto; provided,  however, that (a) if any Interest Period would otherwise end on a day that is not a Business Day, such Interest Period shall be extended to the next succeeding Business Day, unless the result of such extension would be to extend such Interest Period into another such Business Day that falls in the next calendar month, in which case such Interest Period shall end on the immediately preceding Business Day, (b) any Interest Period 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 a calendar month, (c) Borrower may not select any Interest Period ending after the

 

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Scheduled Revolving Credit Termination Date, (d) Borrower may not select any Interest Period in respect of Loans having an aggregate principal amount of less than $1,000,000 and (e) there shall be outstanding at any one time no more than 10 Interest Periods.

Interest Rate Contracts” means all interest rate swap agreements, interest rate cap agreements, interest rate collar agreements and interest rate insurance.

Investment” has the meaning specified in Section 8.4.

IRS” means the Internal Revenue Service of the United States and any successor thereto.

Issue” means, with respect to any Letter of Credit, to issue, extend the expiration date of, renew (including by failure to object to any automatic renewal on the last day such objection is permitted), increase the face amount of, or reduce or eliminate any scheduled decrease in the face amount of, such Letter of Credit, or to cause any Person to do any of the foregoing.  The terms “Issued” and “Issuance” have correlative meanings.

L/C Cash Collateral Account” means any Cash Collateral Account (a) specifically designated as such by Borrowers in a notice to Administrative Agent and (b) from and after the effectiveness of such notice, not containing any funds other than those required under the Loan Documents to be placed therein.

L/C Issuer” means (a) HFSMCF or any of its Affiliates or other entity that issues any Letter of Credit for or on behalf of HFSMCF and (b) each Person that hereafter becomes an L/C Issuer with the approval of, and pursuant to an agreement with and in form and substance satisfactory to, Administrative Agent and GHLLCAuthorized Loan Party on behalf of the Borrowers, in each case in their capacity as L/C Issuers hereunder and together with their successors.

L/C Obligations” means, for any Letter of Credit at any time, the sum of (a) the L/C Reimbursement Obligations at such time for such Letter of Credit and (b) the aggregate maximum undrawn face amount of such Letter of Credit outstanding at such time.

L/C Reimbursement Agreement” has the meaning specified in Section 2.4(a)(iii).

L/C Reimbursement Date” has the meaning specified in Section 2.4(e).

L/C Reimbursement Obligation” means, for any Letter of Credit, the obligation of Borrowers to the L/C Issuer thereof, as and when matured, to pay all amounts drawn under such Letter of Credit.

L/C Request” has the meaning specified in Section 2.4(b).

L/C Sublimit” means $10,000,000.0 as of the Second Amendment Effective Date and thereafter, the aggregate amount agreed by any L/C Issuer and Administrative Agent from time to time in accordance with Section 2.4(a).

Leases” means all leases and subleases or any similar document affecting the use, enjoyment or occupancy of the real property, including resident care agreements, UPL Documents and service agreements that include an occupancy agreement, whether now existing or hereafter arising.

Lender” means, collectively, each Revolving Credit Lender and any other financial institution or other Person that (a) is listed on the signature pages hereof as a “Lender”, or (b) from time to time becomes a party hereto by execution of an Assignment, in each case together with its successors.

 

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Letter of Credit” means any letter of credit Issued pursuant to Section 2.4.

Letter of Credit Obligations” means all outstanding obligations incurred by the Administrative Agent and the Lenders at the request of the Borrowers or Administrative Loan Party, whether direct or indirect, contingent or otherwise, due or not due, in connection with the Issuance of Letters of Credit by L/C Issuers or the purchase of a participation as set forth in Section 2.4 with respect to any Letter of Credit.  The amount of such Letter of Credit Obligations shall equal the maximum amount that may be payable by the Administrative Agent and the Lenders thereupon or pursuant thereto.

Liabilities” means all claims, actions, suits, judgments, damages, losses, liability, obligations, responsibilities, fines, penalties, sanctions, costs, fees, taxes, commissions, charges, disbursements and expenses, in each case of any kind or nature (including interest accrued thereon or as a result thereto and fees, charges and disbursements of financial, legal and other advisors and consultants), whether joint or several, whether or not indirect, contingent, consequential, actual, punitive, treble or otherwise.

LIBOR – Revolving Loan” means, with respect to any Interest Period for any Revolving Loan that is a LIBOR Rate Loan,  the rate, as determined by Administrative Agent, for deposits in Dollars for the one (1), two (2), three (3) or six (6) month period (corresponding to the applicable Interest Period) appearing on the Reuters Screen LIBOR01 page as of 11:00 a.m. (London time) on the second full Business Day next preceding the first day of each Interest Period.  In the event that such rate does not appear on the Reuters Screen LIBOR01 page at such time, the “LIBOR” shall be determined by reference to such other comparable publicly available service for displaying the offered rate for deposit in Dollars in the London interbank market as may be selected by Administrative Agent and, in the absence of availability, such other method to determine such offered rate as may be selected by Administrative Agent in its sole discretion.

LIBOR Rate” means, with respect to any Interest Period and for any LIBOR Rate Loan, an interest rate per annum determined as the ratio of (a) LIBOR – Revolving Loan to (b) the difference between the number one and the Reserve Requirements with respect to such Interest Period and for such LIBOR - Revolving Loan.

LIBOR Rate Loan” means any Loan that bears interest based on the LIBOR Rate.

Lien” means any mortgage, pledge, hypothecation, collateral assignment, encumbrance, lien (statutory or other), charge or other security interest or any other security agreement of any kind or nature whatsoever (including any conditional sale or other title retention agreement and any capital lease having substantially the same economic effect as any of the foregoing).

Liquidity” means, with respect to any Person, the sum of (a) unrestricted cash and Cash Equivalents, plus (b) Borrowing Availability.

LLC Parent” means FC-GEN Operations Investment, LLC.

Loan” means any loan made or deemed made by any Lender hereunder.

Loan Documents” means, collectively, this Agreement, any Notes, the Guaranty Agreement, the Security Documents (including the Master Lease Intercreditor Agreements and the Control Agreements), the L/C Reimbursement Agreements, the Secured Hedge Agreements and, when executed, each document executed by a Loan Party and delivered to Administrative Agent, any Lender or any L/C Issuer in connection with or pursuant to any of the foregoing or the Obligations, including Cash Management Documents, together with any modification of any term, or any waiver with respect to, any of the foregoing; provided,  however, that the Loan Documents shall not include any Environmental Indemnity.

 

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Second Amended and Restated Genesis Revolving Credit Agreement (HUD Facility)

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Loan Parties” means, collectively, Borrowers and Guarantors.

Loan Parties’ Accountants” means KPMG, LLP or other nationally-recognized independent registered certified public accountants acceptable to Administrative Agent.

Majority Controlled Affiliate” means, with respect to any Person, each officer, director, general partner or joint-venturer of such Person and any other Person that directly or indirectly controls, is controlled by, or is under common control with, such Person; provided,  however, that no Secured Party shall be a Majority Controlled Affiliate of the Borrowers.  For purpose of this definition, “control” means the possession of either (a) the power to vote, or the beneficial ownership of, 51% or more of the Voting Stock of such Person or (b) the power to direct or cause the direction of the management and policies of such Person, whether by contract or otherwise.

Master Lease” means each lease agreement and master lease agreement set forth on Schedule II hereto on the Closing Date and each other facility lease or master lease agreement entered into by the Loan Parties after the Closing Date, in each case as such Leases are amended, supplemented or otherwise modified from time to time in accordance with the terms hereof and of the applicable Master Lease Intercreditor Agreement.

Master Lease Intercreditor Agreements” means any intercreditor or similar agreement, including any riders attached thereto, that relates to the Obligations hereunder and the Loan Parties’ obligations under any Master Lease, entered into on or prior to the Closing Date or pursuant to Section 7.15.

Material Adverse Effect” means a material adverse effect on (a) the business, operations property or financial condition of the Borrowers and their direct and indirect Subsidiaries, taken as a whole, or (b) the validity or enforceability of the Loan Documents or the material rights and remedies of the Administrative Agent and the Lenders thereunder, in each case, taken as a whole.

Material Indebtedness” means Indebtedness (other than the Loans and Real Property Financing Obligations), or obligations in respect of one or more Hedge Agreements, of any one or more of the Borrowers in an aggregate principal amount exceeding $2,000,000. For purposes of determining Material Indebtedness for all Sections, the “principal amount” of the obligations of any of the Borrowers in respect of any Hedge Agreement at any time shall be the maximum aggregate amount (giving effect to any netting agreements) that any of the Borrowers would be required to pay if such Hedge Agreement were terminated at such time.

MCF” has the meaning specified in the preamble to this Agreement.

Medicaid” means (a) the United States of America acting under Title XIX of the Social Security Act, (b) any state or the District of Columbia acting pursuant to a health plan adopted pursuant to Title XIX of the Social Security Act, or (c) any agent, carrier, administrator or intermediary for any of the foregoing.

Medical Services” means medical and health care services, performed or provided by any Borrower to a Patient, which services include, general medical and health care services, physician services, nurse and therapist services, dental services, hospital services, skilled nursing facility services, assisted living facility services, independent senior housing services, Alzheimer’s services, comprehensive inpatient and outpatient rehabilitation services, home health care services, hospice services, residential and outpatient behavioral healthcare services, and medical or health care equipment provided for a necessary or specifically requested valid and proper medical or health purpose and any other service approved by Administrative Agent in its sole discretion.

 

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Medicare” means (a) the United States of America acting under the Medicare program established pursuant to Title XVIII of the Social Security Act, or (b) any agent, carrier, administrator or intermediary for any of the foregoing.

Moody’s” means Moody’s Investors Service, Inc. or any successor to the rating agency business thereof.

Mortgage” means any mortgage, deed of trust, hypothec or other similar document made by any Loan Party in favor of, or for the benefit of, the Administrative Agent for the benefit of the Secured Parties, in form and substance reasonably satisfactory to the Administrative Agent and the Borrowers (taking into account the law of the jurisdiction in which such mortgage, deed of trust, hypothec or similar document is to be recorded).

Multiemployer Plan” means a pension plan that is a “multiemployer plan” (as defined in Section 4001(a)(3) of ERISA) subject to Title IV of ERISA to which any ERISA Affiliate incurs or otherwise has any obligation or liability, contingent or otherwise.

Net Cash Proceeds” (a) in connection with any Transfer or any Property Loss Event, the proceeds thereof in the form of cash and Cash Equivalents (including any such proceeds received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment receivable or otherwise, but only as and when received) of such Transfer or Property Loss Event received by any Loan Party, net of broker’s fees and commissions, attorneys’ fees, accountants’ fees, investment banking fees, consulting fees, amounts (including premiums or penalties, if any) required to be applied to the repayment of Indebtedness secured by a Lien expressly permitted hereunder on any asset which is the subject of such Transfer or Property Loss Event (other than any Lien pursuant to a Security Document) and other reasonable fees and expenses (including legal fees and expenses) actually incurred by any Loan Party in connection therewith and net of Taxes paid or reasonably estimated to be payable by such Loan Party as a result thereof (after taking into account any available tax credits or deductions and any tax sharing arrangements) and any escrow or reserve for any adjustment in respect of the sale price of such asset or assets and indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of the applicable Transfer undertaken by a Loan Party or other liabilities in connection with such Transfer (provided that upon release of any such escrow or reserve, the amount released shall be considered Net Cash Proceeds) and (b) in connection with any (i) Qualified Equity Issuance or (ii) issuance or sale of debt securities or instruments or the incurrence of Indebtedness, in each case, the cash proceeds received from such issuance or incurrence, net of transaction costs, attorneys’ fees, investment banking fees, accountants’ fees, consulting fees, underwriting discounts and commissions, placement fees and other reasonable fees and expenses (including legal fees and expenses) actually incurred in connection therewith.

Net Income” has the meaning under and shall be determined in accordance with GAAP.

New Borrowers” has the meaning specified in the recitals hereto.

Non-Excluded Taxes” has the meaning specified in Section 2.17(a).

Non-U.S. Lender Party” has the meaning specified in Section 2.17(d).

Note” means a promissory note of Borrower, in substantially the form of Exhibit B, payable to a Lender and its assigns in a maximum principal amount equal to the amount of such Lender’s Revolving Credit Commitment.

Notice of Borrowing” has the meaning specified in Section 2.2(a).

 

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Notice of Conversion or Continuation” has the meaning specified in Section 2.10(b).

Notice of Intent to Cure” has the meaning specified in Section 5.6(b).

Obligations” means, with respect to any Loan Party, all amounts, obligations, liabilities, covenants and duties of every type and description owing by such Loan Party to Administrative Agent, any Lender, any L/C Issuer, any other Indemnitee, any participant, any SPV or any Secured Hedging Counterparty, other than any Environmental Indemnity and any Excluded Swap Obligations, arising out of, under, or in connection with, any Loan Document, whether direct or indirect (regardless of whether acquired by assignment), absolute or contingent, due or to become due, whether liquidated or not, now existing or hereafter arising and however acquired, and whether or not evidenced by any instrument or for the payment of money, including, without duplication, (a) if such Loan Party is a Borrower, all Loans and L/C Obligations, (b) all interest, whether or not accruing after the filing of any petition in bankruptcy or after the commencement of any insolvency, reorganization or similar proceeding, and whether or not a claim for post-filing or post-petition interest is allowed in any such proceeding, (c) all obligations under Secured Hedge Agreements, (d) all Cash Management Obligations, and (e) all other fees, expenses (including fees, charges and disbursement of counsel), interest, commissions, charges, costs, disbursements, indemnities and reimbursement of amounts paid and other sums chargeable to such Loan Party under any Loan Document (including those payable to L/C Issuers as described in Section 2.11).

OFAC” means the Officer of Foreign Assets Control of the United States Department of the Treasury.

Operations I” means GEN Operations I, LLC.

Operations II” means GEN Operations II, LLC.

Operator Designated Account” means, collectively, the “Operator Designated Account” specified in each Master Lease Intercreditor Agreement and as designated on Schedule 7.12(a) hereto.

Operator Designated Account Bank” means that bank at which any Operator Designated Account is maintained.

Original Credit Agreement” has the meaning set forth in the recitals hereto.

Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document.

Overadvance” has the meaning specified in Section 2.1(a).

Overpaying Borrower” has the meaning specified in Section 2.19(a).

Parent Company”  means, collectively, Ultimate Parent, LLC Parent, Operations I and Operations II.

Patient” means any Person receiving Medical Services from any Borrower and all Persons legally liable to pay a Borrower for such Medical Services other than Insurers.

Patriot Act” has the meaning specified in Section 4.18(a).

 

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PBGC” means the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA (or any successor).

Permit” means, with respect to any Person, any permit, approval, authorization, license, registration, certificate (including certificates of occupancy), concession, grant, franchise, variance or permission from any Governmental Authority, in each case whether or not having the force of law and applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.

Permitted Investor”  means, collectively, (i) any Person that is a member of LLC Parent as of the Closing Date to the extent such Person, directly or indirectly, owns or controls 10% or more of LLC Parent as of the Closing Date and to the extent such Person has satisfied the requirements regarding OFAC, Anti-Terrorism Laws, SEC, Healthcare Laws, and other similar regulations, (ii) GEN Management LLC or GEN Management Investors, LLC, and to the extent such entity has satisfied the requirements regarding OFAC, Anti-Terrorism Laws, SEC Healthcare Laws, and other similar regulations), or (iii) any successor of the foregoing pursuant to a Permitted Investor Transfer (which successors, to the extent such successors will, directly or indirectly, own or control 10% or more of any Loan Party, must satisfy requirements regarding OFAC, Anti-Terrorism Laws, SEC, Healthcare Laws, and other similar regulations).

Permitted Investor Transfer” means one or more of the following, and, in the case of clauses (ii) and (iii) below, with the prior consent of Administrative Agent, which consent shall not be unreasonably withheld, conditioned or delayed (provided that Borrowers provide timely information reasonably requested by Administrative Agent with respect to such proposed transferee which approval shall consider criteria including, but not limited to, Administrative Agent’s standards with respect to (x) previous relationships between the Administrative Agent, Lenders and the proposed transferee and its principals, (y) the reputation for integrity, honesty and veracity of the proposed transferee and its principals, owners, officers and directors, and (z) OFAC, Anti-Terrorism Laws, SEC, Healthcare Laws and regulations, and other similar regulations and activities):

(i) (xx) any Transfer by a Permitted Investor to another Permitted Investor;

(ii) (xxi) any Transfer of a direct or indirect interest in Ultimate Parent by a Permitted Investor to a family trust for estate planning purposes; provided that such Permitted Investor does not Transfer the power to direct or cause the direction of the management and policies of such Person, whether by contract or otherwise; or

(iii) (xxii) any Transfer from any Permitted Investor of any direct or indirect interest in Ultimate Parent to a Majority Controlled Affiliate, or the admission of a new member into a Permitted Investor, provided the Persons that had the power to direct or cause the direction of the management and policies of such Permitted Investor on the Closing Date retain such power over such Permitted Investor.

Permitted Lien” means any Lien on or with respect to the property of any Loan Party that is not prohibited by Section 8.2 or any other provision of any Loan Document.

Permitted Refinancing” means, with respect to any Person, any modification, refinancing, refunding, renewal or extension of any Indebtedness of such Person; provided that (a) the principal amount (or accreted value, if applicable) thereof does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so modified, refinanced, refunded, renewed or extended except by an amount equal to any interest capitalized in connection with, any premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such modification, refinancing, refunding,

 

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Second Amended and Restated Genesis Revolving Credit Agreement (HUD Facility)

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renewal or extension and by an amount equal to any existing commitments unutilized and undrawn letters of credit thereunder or as otherwise permitted pursuant to Section 8.1, (b) such modification, refinancing, refunding, renewal or extension has a final maturity date equal to or later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or longer than the Weighted Average Life to Maturity of, the Indebtedness being modified, refinanced, refunded, renewed or extended, (c) if the Indebtedness being modified, refinanced, refunded, renewed or extended is subordinated in right of payment to the Obligations, such modification, refinancing, refunding, renewal or extension is subordinated in right of payment to the Obligations on terms at least as favorable on the whole to the Lenders as those contained in the documentation governing the Indebtedness being modified, refinanced, refunded, renewed or extended, (d) solely with respect to any Master Lease, the financial covenants and events of default of any such modified, refinanced, refunded, renewed or extended Indebtedness are not, taken as a whole, materially more restrictive to the Loan Parties than the financial covenants and events of default of the Indebtedness being modified, refinanced, refunded, renewed or extended (it being understood and agreed that any such financial covenants or events of default that are substantially similar to those set forth herein shall be deemed not to be materially more restrictive to the Loan Parties) and (e) none of the Loan Parties shall be an obligor or guarantor of the Indebtedness being modified, refinanced, refunded, renewed or extended except to the extent that such Person was such an obligor or guarantor in respect of the Indebtedness being modified, refinanced, refunded, renewed or extended.

Permitted Reinvestment” means, with respect to the Net Cash Proceeds of any Transfer or Property Loss Event, to acquire (or make Capital Expenditures to finance the acquisition, repair, improvement or construction of), to the extent otherwise permitted hereunder, property useful in the business of a Borrower or any of its Subsidiaries or, if such Property Loss Event involves loss or damage to property, to repair such loss or damage.

Person” means an individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture, Governmental Authority or other entity of whatever nature.

Primary License” means, with respect to any Facility or Person operating such Facility, as the case may be, the certificate of need, Permit or license to operate as an assisted living, skilled nursing or independent living facility.

Pro Forma Basis” means, for any period, with respect to any proposed acquisition, investment, distribution or any other action which requires compliance with any test or covenant hereunder, compliance as of the transaction date will be determined giving the following pro forma effect to such proposed acquisition investment, distribution or any such other action:  (a) pro forma effect will be given to any Indebtedness incurred during or after the relevant period to the extent the Indebtedness is outstanding or is to be incurred on the transaction date as if the Indebtedness had been incurred on the first day of the relevant period; (b) pro forma calculations of interest on Indebtedness bearing a floating interest rate will be made as if the rate in effect on the transaction date (taking into account any Hedge Agreement applicable to the Indebtedness if the Hedge Agreement has a remaining term of at least 12 months) had been the applicable rate for the entire relevant period; (c) Consolidated Interest Expense related to any Indebtedness no longer outstanding or to be repaid or redeemed on the transaction date, except for Consolidated Interest Expense accrued during the relevant period under this Agreement to the extent of the Loans in effect on the transaction date, will be excluded; and (d) pro forma effect will be given to (i) the joinder or release of Loan Parties, and (ii) the acquisition or Transfer of companies, divisions or lines of businesses by the Borrowers, including any acquisition or Transfer of a company, division or line of business since the beginning of the relevant period by a Person that became a Borrower after the beginning of the relevant period that have occurred since the beginning of the relevant period as if such events had occurred, and, in the case of any Transfer, the proceeds thereof applied, on the first day of the relevant period. For purposes of determining

 

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Second Amended and Restated Genesis Revolving Credit Agreement (HUD Facility)

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Consolidated Interest Expense, Consolidated Rental Expense, Consolidated EBITDA, Consolidated EBITDAR and Consolidated Net Income, any discontinuation of discontinued operations as defined under Financial Accounting Standards Board Accounting Standards Codification 205-20 occurring during the relevant period shall be given effect in accordance with that standard.  To the extent that pro forma effect is to be given to an acquisition or Transfer of a company, division or line of business, the pro forma calculation will be based upon the most recent four full Fiscal Quarters for which the relevant financial information is available (including cost savings to the extent such cost savings would be consistent with the definition of “Consolidated EBITDA”).

Pro Forma Transaction” means any transaction consummated in accordance with this Agreement together with each other transaction relating thereto and consummated in connection therewith, including any incurrence or repayment of Indebtedness.

Pro Rata Outstandings”, with respect to any Lender at any time, means the sum of (i) the outstanding principal amount of Revolving Loans owing to such Lender and (ii) the amount of the participation of such Lender in the L/C Obligations outstanding with respect to all Letters of Credit.

Pro Rata Share” means, with respect to any Lender at any time, the percentage obtained by dividing (a) the sum of the Revolving Credit Commitments (or, if such Revolving Credit Commitments are terminated, the Pro Rata Outstandings hereunder) of such Lender then in effect by (b) the sum of the Revolving Credit Commitments (or, if such Revolving Credit  Commitments are terminated, the Pro Rata Outstandings hereunder) of all Lenders then in effect; provided,  however, that, if there are no Revolving Credit Commitments and no Pro Rata Outstandings hereunder, such Lender’s Pro Rata Share shall be determined based on the Pro Rata Share most recently in effect, after giving effect to any subsequent assignment and any subsequent non-pro rata payments of any Lender pursuant to Section 2.18.

Projections” means any document delivered pursuant to Section 6.1(g)

Property” means any right or interest in or to property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, including, without limitation, Equity Interests or Equity Equivalents.

Property Loss Event” means, with respect to any property, any loss of or damage to such property or any taking of such property or condemnation thereof.

Protective Advance” has the meaning specified in Section 11.10.

Qualified Capital Stock” means any Equity Interest that is not Disqualified Capital Stock.

Qualified Equity Issuance” means any issuance by Ultimate Parent of its Equity Interests in a public or private offering or contribution to its capital (in each case, other than in the form of Disqualified Capital Stock) which has been contributed in cash as common equity to the Borrowers.

Real Property” means the real property (including improvements thereon) subject to, and described in, a Master Lease, the Third-Party Leases or owned by a Borrower.

Real Property Financing Obligations” means, with respect to any Person, financing obligations and Capital Lease Obligations of such Person, to the extent such financing obligations or Capital Lease Obligations are related to real property.

Register” has the meaning specified in Section 2.14(b).

 

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Second Amended and Restated Genesis Revolving Credit Agreement (HUD Facility)

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Reinvestment Prepayment Amount” means, with respect to any Net Cash Proceeds on the Reinvestment Prepayment Date therefor, the amount of such Net Cash Proceeds less any amount paid or required to be paid by any Loan Party to make Permitted Reinvestments with such Net Cash Proceeds pursuant to a Contractual Obligation entered into prior to such Reinvestment Prepayment Date with any Person that is not an Affiliate of the Borrower.

Reinvestment Prepayment Date” means, with respect to any portion of any Net Cash Proceeds of any Transfer or Property Loss Event, the earliest of (a) one (1) year following the completion of the portion of such Transfer or Property Loss Event corresponding to such Net Cash Proceeds, (b) the date that is five (5) Business Days after the date on which the Borrower shall have notified the Administrative Agent of the Borrower’s determination not to make Permitted Reinvestments with such Net Cash Proceeds, (c) the occurrence of any Event of Default set forth in Section 9.1(f)(iii), and (d) five (5) Business Days after the delivery of a notice by the Administrative Agent or the Required Lenders to the Borrower during the continuance of any other Event of Default.

Related Documents” means, collectively, (i) each Master Lease, and (ii) each Master Lease Intercreditor Agreement, (iii) the HUD Loan Documents (as defined in the applicable Master Lease Intercreditor Agreement) and (iv) the UPL Documents.

Related Person” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, attorneys-in-fact, trustees, administrators, managers, advisors and representatives of such Person and of such Person’s Affiliates.  Solely with respect to MCF, “Related Person” shall include servicers and investment managers.

Release” means any release, threatened release, spill, emission, leaking, pumping, pouring, emitting, emptying, escape, injection, deposit, disposal, discharge, dispersal, dumping, leaching or migration of Hazardous Material into or through the environment.

Remedial Action” means all actions required to (a) clean up, remove, treat or in any other way address any Hazardous Material Released into the indoor or outdoor environment, (b) prevent or minimize any Release so that a Hazardous Material does not migrate or endanger or threaten to endanger public health or welfare or the indoor or outdoor environment or (c) perform pre-remedial studies and investigations and post-remedial monitoring and care with respect to any Hazardous Material.

Required Lenders” means, at any time, Lenders having at such time in excess of 50% of the aggregate Revolving Credit Commitments (or, if such Revolving Credit Commitments are terminated, the amounts of the Pro Rata Outstandings in the Revolving Credit Facility) then in effect, ignoring, in such calculation, the amounts held by any Restricted Person; provided,  however, at any time when there are two or more unaffiliated Lenders under this Agreement, “Required Lenders” shall include at least two unaffiliated Lenders.  Notwithstanding the foregoing, no Restricted Person shall be entitled to vote as a “Required Lender”.

Requirement of Law” means, with respect to any Person, the Constituent Documents of such Person, and any law, treaty, rule or regulation or determination of a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.

Reserve Requirements” means, with respect to any Interest Period and for any LIBOR Rate Loan, a rate per annum equal to the aggregate, without duplication, of the maximum rates (expressed as a decimal number) of reserve requirements in effect two (2) Business Days prior to the first day of such Interest Period (including basic, supplemental, marginal and emergency reserves) under any regulations of the Federal

 

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Second Amended and Restated Genesis Revolving Credit Agreement (HUD Facility)

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Reserve Board or other Governmental Authority having jurisdiction with respect thereto dealing with reserve requirements prescribed for eurocurrency funding (currently referred to as “eurocurrency liabilities” in Regulation D of the Federal Reserve Board) maintained by a member bank of the United States Federal Reserve System.

Resignation Effective Date” has the meaning specified in Section 10.9(a).

Responsible Officer”  means, with respect to any Person, any of the chief executive officer, president, senior vice president, chief financial officer (or similar title), chief operating officer, controller or treasurer (or similar title), managing member or general partner of such Person but, in any event, with respect to financial matters, the chief financial officer (or similar title) or treasurer (or similar title) of Ultimate Parent.

Restricted Payment” means any dividend or other distribution (whether in cash, securities or other property (other than Qualified Capital Stock)) with respect to any Equity Interests or Equity Equivalents of the Borrowers, or any payment (whether in cash, securities or other property (other than Qualified Capital Stock)), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Equity Interests or Equity Equivalents in any Loan Party.

Restricted Person” means (i) any Defaulting Lender, (ii) any Borrower, (iii) any Loan Party, (iv) any Permitted Investor, and (v) any officer, director or Affiliate of any of the foregoing.

Revolving Credit Commitment”  means, with respect to each Revolving Credit Lender, the commitment of such Lender to make Revolving Loans and acquire interests in other Revolving Credit Outstandings, which commitment is in the amount set forth opposite such Lender’s name on Schedule I under the caption “Revolving Credit Commitment” as it may be (i) amended to reflect Assignments and (ii) reduced pursuant to this Agreement.

Revolving Credit Facility” means the Revolving Credit Commitments and the provisions herein related to the Revolving Loans and Letters of Credit.

Revolving Credit Lender” means each Lender that has a Revolving Credit Commitment or holds a Revolving Loan or Letter of Credit.

Revolving Credit Outstandings” means, at any time, to the extent outstanding at such time, (a) the aggregate principal amount of the Revolving Loans and (b) the L/C Obligations for all Letters of Credit.

Revolving Credit Termination Date” means the earliest of (a) Scheduled Revolving Credit Termination Date, (b) the date of termination of the Revolving Credit Commitments pursuant to Section 2.5 or Section 9.2 and (c) the date on which the Obligations become due and payable pursuant to Section 9.2.

Revolving Loan” has the meaning specified in Section 2.1(a).

Sanctions” means any international economic sanction administered or enforced by OFAC, the United Nations Security Council, the European Union, Her Majesty’s Treasury or other relevant sanctions authority.

S&P” means Standard & Poor’s Rating Services.

 

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Second Amended and Restated Genesis Revolving Credit Agreement (HUD Facility)

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Scheduled Revolving Credit Termination Date” means the earliest to occur of (a) February 2, 2020, and (b) the “Scheduled Revolving Credit Termination Date” (as defined in the ABL Credit Agreement, as the same is in effect on the date hereof).

SEC” means the United States Securities and Exchange Commission.

Second Amendment” means Amendment No. 2 to Second Amended and Restated Revolving Credit Agreement, entered into as of the Second Amendment Effective Date, by and among Borrowers, Guarantors, the Lenders, and Administrative Agent (as defined therein).

“Second Amendment Effective Date” means March 6, 2018.

Secondary Market Investors” has the meaning specified in Section 11.2(f).

Secondary Market Transaction” has the meaning specified in Section 11.2(f).

Secured Hedge Agreement” means any Hedge Agreement in respect of the Obligations that (a) has been entered into with a Secured Hedging Counterparty, (b) in the case of a Hedge Agreement not entered into with or provided or arranged by Administrative Agent or an Affiliate of Administrative Agent, is expressly identified as being a “Secured Hedge Agreement” hereunder in a joint notice from such Loan Party and such Person delivered to Administrative Agent reasonably promptly after the execution of such Hedge Agreement and (c) meets the requirements of Section 8.4(f).

Secured Hedging Counterparty” means (a) a Person who has entered into a Hedge Agreement with a Loan Party if such Hedge Agreement was provided or arranged by Administrative Agent or an Affiliate of Administrative Agent, and any assignee of such Person or (b) a Lender or an Affiliate of a Lender who has entered into a Hedge Agreement with a Loan Party (or a Person who was a Lender or an Affiliate of a Lender at the time of execution and delivery of the Hedge Agreement).

Secured Parties” means the Lenders, the L/C Issuers, the Administrative Agent, any Secured Hedging Counterparty, each other Indemnitee and any other holder of any Obligation of any Loan Party.

Security” means all Equity Interests, Equity Equivalents, voting trust certificates, bonds, debentures, instruments and other evidence of Indebtedness, whether or not secured, convertible or subordinated, all certificates of interest, share or participation in, all certificates for the acquisition of, and all warrants, options and other rights to acquire, any Security.

Security Agreement” means that certain Second Amended and Restated Security Agreement, dated as of the Closing Date, among Loan Parties and Administrative Agent and the other entities from time to time party thereto, as it may be amended, restated, replaced or otherwise modified from time to time

Security Documents” means the collective reference to the Security Agreement, each Master Lease Intercreditor Agreement and all other security documents hereafter delivered to the Administrative Agent purporting to grant or specify the priority of a Lien on any Property of any Loan Party to secure the Obligations.

“Settlement Agreement” means that certain Settlement Agreement, dated June 9, 2017, entered into by and among, Ultimate Parent, the United States of America, and the relators party thereto.

Skilled Holdings” means Skilled Healthcare, LLC, a Delaware limited liability company.

 

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Second Amended and Restated Genesis Revolving Credit Agreement (HUD Facility)

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Skilled RE Credit Agreement” has the meaning provided for in the ABL Credit Agreement.

Skilled Subsidiary” each of its direct or indirect Subsidiary of Skilled holdings that is a Borrower.

Solvent” means, with respect to any Person, as of any date of determination, (a) the amount of the “present fair saleable value” of the assets of such Person will, as of such date, exceed the amount of all “liabilities of such Person, contingent or otherwise”, as of such date, as such quoted terms are determined in accordance with applicable federal and state laws governing determinations of the insolvency of debtors, (b) the present fair saleable value of the assets of such Person will, as of such date, be greater than the amount that will be required to pay the liability of such Person on its debts as such debts become absolute and matured, (c) such Person will not have, as of such date, an unreasonably small amount of capital with which to conduct its business and (d) such Person will be able to pay its debts as they mature.  For purposes of this definition, (i) “debt” means liability on a “claim”, (ii) “claim” means any (x) right to payment, whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured or (y) right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured or unmatured, disputed, undisputed, secured or unsecured and (iii) except as otherwise provided by applicable law, the amount of “contingent liabilities” at any time shall be the amount thereof which, in light of all the facts and circumstances existing at such time, can reasonably be expected to become actual or matured liabilities.

Sponsor” means Formation Capital LLC.

SPV” means any special purpose funding vehicle identified as such in a writing by any Lender to Administrative Agent.

Subordinated Debt” means any Indebtedness that is subordinated to the payment in full of the Obligations on terms and conditions reasonably satisfactory to Administrative Agent.

Subsidiary” means, with respect to any Person, a corporation, partnership, limited liability company or other entity of which shares of stock or other ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the board of directors or other managers of such corporation, partnership or other entity are at the time owned, directly or indirectly through one or more intermediaries, or both, by such Person.  Unless otherwise qualified, all references to a “Subsidiary” or to “Subsidiaries” in this Agreement shall refer to a direct or indirect Subsidiary or Subsidiaries of the Borrowers; provided that in determining the percentage of ownership interests of any Person controlled by another Person, no ownership interest in the nature of a director’s “qualifying share” of the former Person shall be deemed to be outstanding.

Substitute Lender” has the meaning specified in Section 2.18(a).

SunBridge Healthcare” means SunBridge Healthcare, LLC.

Supermajority Lenders” means, at any time, Lenders having at such time in excess of 66 2/3% of the aggregate Revolving Credit Commitments (or, if such Revolving Credit Commitments are terminated, the principal amount of the Pro Rata Outstandings in the Revolving Credit Facility) then in effect, ignoring, in such calculation, the amounts held by any Restricted Person and, at any time when there are more than three (3) unaffiliated Lenders under this Agreement, “Supermajority Lenders” shall include at least three (3) unaffiliated Lenders, and at any time when there are two (2) or three (3) unaffiliated Lenders under this

 

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Second Amended and Restated Genesis Revolving Credit Agreement (HUD Facility)

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Agreement, “Supermajority Lenders” shall include at least two (2) unaffiliated Lenders  Notwithstanding the foregoing, no Restricted Person shall be entitled to vote as a “Supermajority Lender”.

Swap Obligations” means with respect to any Loan Party, 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 Transaction” means any agreement, contract or transaction between the Loan Parties and any Secured Party that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.

Sweep Event” means the occurrence of any of the following events, whether or not declared by Administrative Agent as an Event of Default:

(i) (xxiii) an Event of Default;

(ii) (xxiv) Borrowers’ failure to comply with any financial covenant pursuant to Article 5 (without giving effect to any cure period applicable thereto);

(iii) (xxv) Borrowers shall have (A) failed to maintain the Concentration Account, or any Facility Lockbox Account or Control Agreements or other similar agreements related thereto or (B) received, transferred, or applied payments of Account Debtors, in either case in contravention of Section 7.12;

(iv) (xxvi) Administrative Agent or any Lender shall have commenced foreclosure or execution on any of the Collateral as permitted under any Loan Document; or

(v) (xxvii) there shall have been a draw in an amount in excess of $2,000,000 on any Letter of Credit.

Tax Affiliate” means (a) Borrowers and (b) any Affiliate of any Borrower with which such Borrower files or is eligible to file consolidated, combined or unitary Tax Returns.

Tax Returns” has the meaning specified in Section 4.8.

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

Termination Fee” means the fee payable upon prepayment of the Revolving Credit Facility pursuant to Sections 2.7 and 9.2 in an amount equal to (i) if such prepayment is made prior to the first anniversary of the Closing Date, 1% of the Revolving Credit Commitment terminated and (ii) on or after the first anniversary of the Closing Date but prior to the second anniversary of the Closing Date, 0.5% of the Revolving Credit Commitment terminated; provided, that following a refinancing of the Obligations in connection with which  HFSMCF serves as the administrative agent and a lender, HFSMCF’s Pro Rata Share of the Termination Fee shall be waived.

Third-Party Leases” means, collectively, leases, other than the Master Leases, of long term care facilities, nursing homes, assisted living facilities, independent living facilities, hospice facilities or other

 

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Second Amended and Restated Genesis Revolving Credit Agreement (HUD Facility)

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healthcare facilities, but not including rehabilitation facilities or medical office buildings, leased and operated by any Borrower, including but not limited to those listed on Schedule 4.16 hereto.

Third-Party Payor Programs” means Medicare, Medicaid, TRICARE, Blue Cross/Blue Shield or any other public program or private commercial insurance, managed care, or employee assistance program providing reimbursement or coverage for Medical Services and with which a Borrower or any of its Subsidiaries has entered into a participation agreement, provider agreement, or similar arrangement for coverage of eligible Patients.

Title IV Plan” means a pension plan subject to Title IV of ERISA, other than a Multiemployer Plan, to which any ERISA Affiliate incurs or otherwise has any obligation or liability, contingent or otherwise.

Transfer” means, with respect to any Property, any sale, sale and leaseback, assignment, conveyance, transfer or other effectively complete disposition thereof.

TRICARE” means (a) the United States of America acting under TRICARE, or (b) any agent, carrier, administrator or intermediary for any of the foregoing.

UCC” means the Uniform Commercial Code of any applicable jurisdiction as now or hereafter in effect and, if the applicable jurisdiction shall not have any Uniform Commercial Code, the Uniform Commercial Code as now or hereafter in effect in the State of New York.

Ultimate Parent” means Genesis Healthcare, Inc.

United States” means the United States of America.

Unused Daily Balance” has the meaning specified in Section 2.11(a).

UPL Borrower” means each Borrower that leases or manages a UPL Facility.

UPL Documents” means the UPL Program implementing documents, instruments, and agreements entered into between a UPL Hospital and the respective UPL Borrower (and/or any of their Affiliates), including but not limited to each lease, sublease, management agreement, license agreement, operations transfer agreement, intellectual property transfer agreement and/or license agreement.

UPL Facility” means each Facility that is the subject of a UPL Program.

UPL Hospital” means each county hospital or other unit of government that is or becomes an operator of a UPL Facility.

UPL Program” means a program under which, in exchange for certain payment of fees, costs and other reimbursements from the UPL Hospital, a Borrower agrees to manage one or more Facilities, the possession and operation of which has been transferred to such UPL Hospital and, subsequent to such transfer, the accounts related to such Facility or Facilities qualify under a Medicaid “upper payment limit” program.

U.S. Lender Party” has the meaning specified in Section 2.17(e).

Voting Stock” means Equity Interests of any Person having ordinary power to vote in the election of members of the board of directors, managers, trustees or other controlling Persons, of such Person

 

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Second Amended and Restated Genesis Revolving Credit Agreement (HUD Facility)

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(irrespective of whether, at the time, Equity Interests of any other class or classes of such entity shall have or might have voting power by reason of the occurrence of any contingency).

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 installment, 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; provided that for purposes of determining the Weighted Average Life to Maturity of any Indebtedness being refinanced or any Indebtedness that is being modified, refinanced, refunded, renewed, replaced or extended (the “Applicable Indebtedness”), the effects of any amortization or prepayments made on such Applicable Indebtedness prior to the date of the applicable modification, refinancing, refunding, renewal, replacement or extension shall be disregarded.

Wells Fargo Accounts” means account numbers 4010044609 and 4010011617 at Wells Fargo Bank, N.A.

Withdrawal Liability” means, at any time, any liability incurred (whether or not assessed) by any ERISA Affiliate and not yet satisfied or paid in full at such time with respect to any Multiemployer Plan pursuant to Section 4201 of ERISA.

Write-Down and Conversion Powers” means, 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.

Section 1.2 UCC Terms.  The following terms have the meanings given to them in the applicable UCC:  “commodity account”, “commodity contract”, “commodity intermediary”, “deposit account”, “depository bank”, “entitlement holder”, “entitlement order”, “equipment”, “financial asset”, “general intangible”, “goods”, “instruments”, “inventory”, “securities account”, “securities intermediary” and “security entitlement”.

Section 1.3 Accounting Terms and Principles.

(a) GAAP.  All accounting determinations required to be made pursuant hereto shall, unless expressly otherwise provided herein, be made in accordance with GAAP.  No change in the accounting principles used in the preparation of any Financial Statement hereafter adopted by the HUD Consolidated Group or any other Loan Party shall be given effect if such change would affect a calculation that measures compliance with any provision of Article 5 or Article 8 unless Borrowers, Administrative Agent and the Required Lenders agree to modify such provisions to reflect such changes in GAAP and, unless such provisions are modified, all Financial Statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAP.  Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to in Article 5 or Article 8 shall be made, without giving effect to any election under Statement of Financial Accounting Standards 159 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other liabilities of any Loan Party or any Subsidiary of any Loan Party at “fair value.”

 

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Second Amended and Restated Genesis Revolving Credit Agreement (HUD Facility)

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(b) Pro Forma.  All components of financial calculations made to determine compliance with Article 5 and calculation of Borrowing Base or other similar components, shall be adjusted on a Pro Forma Basis to include or exclude, as the case may be, without duplication, such components of such calculations attributable to any Pro Forma Transaction consummated after the first day of the applicable period of determination and prior to the end of such period, as determined in good faith by Borrowers based on assumptions expressed therein and that were reasonable based on the information available to Borrowers at the time of preparation of the Compliance Certificate setting forth such calculations.

Section 1.4 Interpretation.

(a) Certain Terms.  Except as set forth in any Loan Document, all accounting terms not specifically defined herein shall be construed in accordance with GAAP (except for the term “property”, which shall be interpreted as broadly as possible, including, in any case, cash, Securities, other assets, rights under Contractual Obligations and Permits and any right or interest in any property).  The terms “herein”, “hereof” and similar terms refer to this Agreement as a whole.  In the computation of periods of time from a specified date to a later specified date in any Loan Document, the terms “from” means “from and including” and the words “to” and “until” each mean “to but excluding” and the word “through” means “to and including.”  In any other case, the term “including” when used in any Loan Document means “including without limitation.”  The term “documents” means all writings, however evidenced and whether in physical or electronic form, including all documents, instruments, agreements, notices, demands, certificates, forms, financial statements, opinions and reports.  The term “incur” means incur, create, make, issue, assume or otherwise become directly or indirectly liable in respect of or responsible for, in each case whether directly or indirectly, and the terms “incurrence” and “incurred” and similar derivatives shall have correlative meanings.  The word “will” shall be construed to have the same meaning and effect as the word “shall”.  The term “indirect” Transfer shall include, without limitation, a Transfer of (including the grant of any Lien on) all or a portion of any Equity Interests in any Person that directly or indirectly through one or more Persons owns any Equity Interests in any Borrower.  If any clause or provision is qualified by “material” or “Material Adverse Effect” or other similar materiality threshold, such provision shall be deemed to be qualified only once by such threshold regardless of the number of times such term is used in any such clause or provision.  For the avoidance of doubt, there shall be no concept of “double materiality” applicable in this Agreement or in any other Loan Document.  To the extent that any provision of this Agreement requires or tests compliance with (or with respect to) the financial covenants set forth in Article 5 of this Agreement prior to the date that such covenants are first tested, such provision shall be deemed to refer to the first covenant level set forth in each applicable financial covenant.

(b) Certain References.  Unless otherwise expressly indicated, references (i) in this Agreement to an Exhibit, Schedule, Article, Section or clause refer to the appropriate Exhibit or Schedule to, or Article, Section or clause in, this Agreement and (ii) in any Loan Document, to (A) any agreement shall include, without limitation, all exhibits, schedules, appendixes and annexes to such agreement and, unless the prior consent of any Secured Party required therefor is not obtained, any modification to any term of such agreement, (B) any statute shall be to such statute as modified from time to time and to any successor legislation thereto, in each case as in effect at the time any such reference is operative and (C) any time of day shall be a reference to New York time.  Titles of articles, sections, clauses, exhibits, schedules and annexes contained in any Loan Document are without substantive meaning or content of any kind whatsoever and are not a part of the agreement between the parties hereto.  Unless otherwise expressly indicated, the meaning of any term defined (including by reference) in any Loan Document shall be equally applicable to both the singular and

 

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plural forms of such term and, whenever the context may require, any pronoun shall include the corresponding masculine feminine and neuter forms.

Article 2



THE CREDIT FACILITIES

Section 2.1 The Commitments.

(a) Revolving Credit Commitments.  On the terms and subject to the conditions contained in this Agreement, each Revolving Credit Lender severally, but not jointly, agrees to continue its loans made pursuant to the Original Credit Agreement and to make certain additional loans in Dollars (each, a “Revolving Loan”) to Borrowers from time to time on any Business Day during the period from the Closing Date until the Revolving Credit Termination Date in an aggregate principal amount at any time outstanding for all such loans not to exceed the aggregate amount of all the Lenders’ Revolving Credit Commitments and by such Lender not to exceed such Lender’s Revolving Credit Commitment; provided,  however, that, at no time shall any Revolving Credit Lender be obligated to make a Revolving Loan in excess of such Lender’s Pro Rata Share of the amount by which the then effective Revolving Credit Commitments exceed the aggregate Revolving Credit Outstandings at such time; provided,  further, that no Revolving Loan to be made shall, at any time, exceed the Borrowing Availability.  If, at any time, the Revolving Credit Outstandings exceed the lesser of (x) Borrowing Base and (y) the Revolving Credit Commitments of all Lenders then in effect (any such excess is herein referred to as an “Overadvance”), Lenders shall not be obligated to make any Revolving Loan and the Revolving Loans must be repaid immediately and Letters of Credit cash collateralized in an amount sufficient to eliminate any Overadvance.  Within the limits set forth in the first sentence of this clause (a), amounts of Revolving Loans repaid may be reborrowed under this Section 2.1.

(b) Subsequent Advances.  Upon request of Administrative Loan Party on behalf of Borrowers and upon satisfaction of the conditions precedent set forth in Section 3.2, each Revolving Credit Lender shall make Revolving Loans pursuant to the provisions set forth in this Article 2.

Section 2.2 Borrowing Procedures.

(a) Notice From Borrower.  Each Borrowing shall be made on notice given by Administrative Loan Party on behalf of Borrowers to Administrative Agent not later than 103:00 ap.m. on the date that is one (1) Business Day prior to the proposed Borrowing of a Base Rate Loan or 10:00 am on the date that is three (3two (2) Business Days prior to the proposed Borrowing of a LIBOR Rate Loan (provided that Borrowings made on the Second Amendment Effective Date may be made pursuant to a notice given on the Second Amendment Effective Date).  Each such notice may be made in a writing substantially in the form of Exhibit C (a “Notice of Borrowing”) duly completed and delivered prior to such Borrowing.  Revolving Loans shall be made as Base Rate Loans unless, outside of a suspension period pursuant to Section 2.15, the Notice of Borrowing specifies that all or a portion thereof shall be LIBOR Rate Loans.  Each Borrowing shall be in an aggregate amount that is an integral multiple of $100,000.  In the case of (i) the Borrowing on the Closing Date and (ii) each subsequent Borrowing in the event the Revolving Credit Outstandings are greater than or equal to 50% of the Revolving Credit Commitment, eachEach Notice of Borrowing shall be accompanied by a Borrowing Base Certificate.

(b) Notice to Each Lender.  Administrative Agent shall give to each Lender prompt notice of Administrative Agent’s receipt of a Notice of Borrowing and, if LIBOR Rate Loans are

 

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properly requested in such Notice of Borrowing, prompt notice of the applicable interest rate.  Each Lender shall, before 1:00 p.m. on the date of the proposed Borrowing, make available to Administrative Agent at its address referred to in Section 11.11, such Lender’s Pro Rata Share of such proposed Borrowing.  Upon fulfillment or due waiver (i) on the Closing Date, of the applicable conditions set forth in Section 3.1 and (ii) on the Closing Date and any time thereafter, of the applicable conditions set forth in Section 3.2, Administrative Agent shall make such funds available to Borrower.

(c) Defaulting Lenders.  Unless Administrative Agent shall have received notice from any Lender prior to the date such Lender is required to make any payment hereunder with respect to any Loan or any participation in any Letter of Credit that such Lender will not make such payment (or any portion thereof) available to Administrative Agent, Administrative Agent may assume that such Lender has made such payment available to Administrative Agent on the date such payment is required to be made in accordance with this Article 2 and Administrative Agent shall, in reliance upon such assumption, make available to Borrowers on such date a corresponding amount.  Borrowers agree to repay to Administrative Agent on demand such amount (until repaid by such Lender) with interest thereon for each day from the date such amount is made available to Borrowers until the date such amount is repaid to Administrative Agent, at the interest rate applicable to the Obligation that would have been created when Administrative Agent made available such amount to Borrowers had such Lender made a corresponding payment available; provided,  however, that such payment shall not relieve such Lender of any obligation it may have to Borrowers or any L/C Issuer.  In addition, any Defaulting Lender agrees to pay such amount to Administrative Agent on demand together with interest thereon, for each day from the date such amount is made available to Borrowers until the date such amount is repaid to Administrative Agent, at the Federal Funds Rate for the first Business Day and thereafter (i) in the case of a payment in respect of a Loan, at the interest rate applicable at the time to such Loan and (ii) otherwise, at the interest rate applicable to Base Rate Loans under the Revolving Credit Facility.  Such repayment shall then constitute the funding of the corresponding Loan (including any Loan deemed to have been made hereunder with such payment) or participation.  If the Borrowers and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrowers the amount of such interest paid by the Borrowers for such period.  The existence of any Defaulting Lender shall not relieve any other Lender of its obligations under any Loan Document, but no other Lender shall be responsible for the failure of any Defaulting Lender to make any payment required under any Loan Document. Nothing herein shall be deemed to limit the rights of the Administrative Agent or the Borrowers against any Defaulting Lender.

(d) Disbursements by Administrative Agent. 

(i) Administrative Agent shall have the right, on behalf of Lenders to disburse funds to Borrowers for all Loans requested or deemed requested by Borrowers pursuant to the terms of this Agreement.  Administrative Agent shall be conclusively entitled to assume, for purposes of the preceding sentence, that each Lender, other than any Defaulting Lenders, will fund its Pro Rata Share of all Loans requested by Borrowers.  Each Lender shall reimburse Administrative Agent on demand, in accordance with the provisions of Section 10.12, for all funds disbursed on its behalf by Administrative Agent  pursuant to the first sentence of this clause (i), or if Administrative Agent so requests, each Lender will remit to Administrative Agent its Pro Rata Share of any Loan before Administrative Agent disburses the same to a Borrower.  If Administrative Agent elects to require that each Lender make funds available to Administrative Agent, prior to a disbursement by Administrative Agent to a Borrower, Administrative Agent shall advise each Lender by

 

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telephone, facsimile or e-mail of the amount of such Lender’s Pro Rata Share of the Loan requested by such Borrower no later than noon (Eastern time) on the date of funding of such Loan, and each such Lender shall pay Administrative Agent on such date such Lender’s Pro Rata Share of such requested Loan, in same day funds, by wire transfer to the Agent Collection Account, or such other account as may be identified by Administrative Agent to Lenders from time to time.  If any Lender fails to pay the amount of its Pro Rata Share of any funds advanced by Agent pursuant to the first sentence of this clause (i) within one (1) Business Day after Administrative Agent’s demand, Administrative Agent shall promptly notify Borrower Representative, and Borrowers shall immediately repay such amount to Administrative Agent.  Any repayment required by Borrowers pursuant to this Section 2.2(d) shall be accompanied by accrued interest thereon from and including the date such amount is made available to a Borrower to but excluding the date of payment at the rate of interest then applicable to the tranche of Loan funded.  Nothing in this Section 2.2(d) or elsewhere in this Agreement or the other Loan Documents shall be deemed to require Administrative Agent to advance funds on behalf of any Lender or to relieve any Lender from its obligation to fulfill its commitments hereunder or to prejudice any rights that Administrative Agent or any Borrower may have against any Lender as a result of any default by such Lender hereunder.

(ii) On the Closing Date, Administrative Agent, on behalf of Lenders, may elect to advance to Borrowers the full amount of the initial Loans to be made on the Closing Date prior to receiving funds from Lenders, in reliance upon each Lender’s commitment to make its Pro Rata Share of such Loans to Borrowers in a timely manner on such date.  If Administrative Agent elects to advance the initial Loans to Borrowers in such manner, Administrative Agent shall be entitled to receive all interest that accrues on the Closing Date on each Lender’s Pro Rata Share of such Loans unless Agent receives such Lender’s Pro Rata Share of such Loans before 3:00 p.m. (Eastern time) on the Closing Date.

(iii) It is understood that for purposes of advances to Borrowers made pursuant to this Section 2.2(d), Administrative Agent will be using the funds of Administrative Agent, and pending settlement, (A) all funds transferred from the Agent Collection Account to the outstanding Loans shall be applied first to advances made by Agent to Borrowers pursuant to this Section 2.2(d), and (B) all interest accruing on such advances shall be payable to Administrative Agent.

(iv) The provisions of this Section 2.2(d) shall be deemed to be binding upon Administrative Agent and Lenders notwithstanding the occurrence of any Default or Event of Default, or any insolvency or bankruptcy proceeding pertaining to any Borrower or any other Loan Party.

Section 2.3 Reserved.

Section 2.4 Letters of Credit.

(a) Commitment and Conditions.  On the terms and subject to the conditions contained herein, each L/C Issuer agrees to Issue, at the request of Administrative Loan Party on behalf of Borrowers, in accordance with such L/C Issuer’s usual and customary business practices, and for the account of Borrowers (or, as long as Borrowers remain responsible for the payment in full of all amounts drawn thereunder and related fees, costs and expenses, for the account of any Loan Party), Letters of Credit (denominated in Dollars and with face amounts that are multiples of $100,000) from time to time on any Business Day during the period from the Closing Date through

 

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the earlier of the Revolving Credit Termination Date and seven (7) days prior to the Scheduled Revolving Credit Termination Date; provided,  however, that such L/C Issuer shall not be under any obligation to Issue any Letter of Credit upon the occurrence of any of the following, after giving effect to such Issuance:

(i) (A) the aggregate Revolving Credit Outstandings would exceed the Borrowing Availability, or (B) the L/C Obligations for all Letters of Credit would exceed the L/C Sublimit;

(ii) the expiration date of such Letter of Credit (A) is not a Business Day, (B) is more than one (1) year after the date of issuance thereof or (C) is later than seven (7) days prior to the Scheduled Revolving Credit Termination Date; provided,  however, that any Letter of Credit with a term not exceeding one (1) year may provide for its renewal for additional periods not exceeding one (1) year as long as (x) each Borrower and such L/C Issuer have the option to prevent such renewal before the expiration of such term or any such period and (y) neither such L/C Issuer nor Borrowers shall permit any such renewal to extend such expiration date beyond the date set forth in clause (C) above; or

(iii) (A) any fee due in connection with, and on or prior to, such Issuance has not been paid, (B) such Letter of Credit is requested to be Issued in a form that is not acceptable to such L/C Issuer or (C) such L/C Issuer shall not have received, each in form and substance reasonably acceptable to it and duly executed by Administrative Loan Party on behalf of the requesting Borrowers (and, if such Letter of Credit is issued for the account of any other Loan Party, such Loan Party), the documents that such L/C Issuer generally uses in the ordinary course of its business for the Issuance of letters of credit of the type of such Letter of Credit (collectively, the “L/C Reimbursement Agreement”).

Notwithstanding anything to the contrary set forth herein, Borrowers agree and acknowledge that no part of the Revolving Credit Commitments will be available for the issuance of a Letter of Credit until such times as Administrative Agent notifies Borrowers that a Lender party to this Agreement is an L/C Issuer.

For each such Issuance, the applicable L/C Issuer may, but shall not be required to, (A) determine that, or take notice whether, the conditions precedent set forth in Section 3.2 have been satisfied or waived in connection with the Issuance of any Letter of Credit; provided,  however, that no Letter of Credit shall be Issued during the period starting on the first Business Day after the receipt by such L/C Issuer of notice from Administrative Agent or the Required Lenders that any condition precedent contained in Section 3.2 is not satisfied and ending on the date all such conditions are satisfied or duly waived, and/or (B) elect to issue Letters of Credit in its own name to the extent permitted by applicable law (which Letters of Credit may not be accepted by certain beneficiaries such as insurance companies).

Notwithstanding anything else to the contrary herein, if any Lender is a Defaulting Lender, no L/C Issuer shall be obligated to Issue any Letter of Credit unless (w) the Defaulting Lender has been replaced in accordance with Section 11.2, (x) the Letter of Credit Obligations of such Defaulting Lender have been reallocated to other Lenders, (y) the Revolving Credit Commitments of the other Revolving Credit Lenders have been increased by an amount sufficient to satisfy the Administrative Agent that all future Letter of Credit Obligations will be covered by all Revolving Credit Lenders that are not Defaulting Lenders, or (z) if the replacement described in clause (w) and the reallocations described in clauses (x) and (y) cannot, or can only partially, be effected, the Letter of Credit Obligations of such Defaulting Lender have been cash collateralized by such Defaulting Lender or the Borrowers.  All or a portion of the Letter of Credit Obligations of a Defaulting Lender (unless such Defaulting Lender is the L/C Issuer that Issued such Letter of Credit) shall, at the Administrative Agent’s election at any time or upon any L/C Issuer’s written request

 

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delivered to the Administrative Agent (whether before or after the occurrence of any Default or Event of Default), be reallocated to and assumed by the Lenders that are not Defaulting Lenders pro rata in accordance with their percentage of the total Revolving Credit Commitment (calculated as if the Defaulting Lender’s Pro Rata Share in such tranche was reduced to zero and each other Lender’s Pro Rata Share in such tranche had been increased proportionately); provided that no Lender shall be reallocated any such amounts or be required to fund any amounts that would cause the sum of its outstanding Revolving Loans, outstanding Letter of Credit Obligations and its pro rata share of unparticipated amounts in Swing Loans to exceed its Revolving Credit Commitment.

(b) Notice of Issuance.  Administrative Loan Party on behalf of Borrowers shall give the relevant L/C Issuer and Administrative Agent a notice of any requested Issuance of any Letter of Credit, which shall be effective only if received by such L/C Issuer and Administrative Agent not later than 11:00 a.m. on the third Business Day prior to the date of such requested Issuance.  Such notice may be made in a writing substantially in the form of Exhibit E duly completed or in a writing in any other form acceptable to such L/C Issuer (an “L/C Request”) or by telephone if confirmed promptly, but in any event within one Business Day and prior to such Issuance, with such an L/C Request.

(c) Reporting Obligations of L/C Issuers.  Each L/C Issuer agrees to provide Administrative Agent (which, after receipt, Administrative Agent shall provide to each Revolving Credit Lender), in form and substance satisfactory to Administrative Agent, each of the following on the following dates:  (i) on or prior to (A) any Issuance of any Letter of Credit by such L/C Issuer, (B) any drawing under any such Letter of Credit or (C) any payment (or failure to pay when due) by Borrowers of any related L/C Reimbursement Obligation, notice thereof, which shall contain a reasonably detailed description of such Issuance, drawing or payment, (ii) upon the request of Administrative Agent (or any Revolving Credit Lender through Administrative Agent), copies of any Letter of Credit Issued by such L/C Issuer and any related L/C Reimbursement Agreement and such other documents and information as may reasonably be requested by Administrative Agent and (iii) on the first Business Day of each calendar month, a schedule of the Letters of Credit Issued by such L/C Issuer, in form and substance reasonably satisfactory to Administrative Agent, setting forth the L/C Obligations for such Letters of Credit outstanding on the last Business Day of the previous calendar month.

(d) Acquisition of Participations.  Upon any Issuance of a Letter of Credit in accordance with the terms of this Agreement resulting in any increase in the L/C Obligations, each Revolving Credit Lender shall be deemed to have acquired, without recourse or warranty, an undivided interest and participation in such Letter of Credit and the related L/C Obligations in an amount equal to such Lender’s Pro Rata Share of such L/C Obligations.

(e) Reimbursement Obligations of Borrower.  Borrowers agree to pay to the L/C Issuer of any Letter of Credit each L/C Reimbursement Obligation owing with respect to such Letter of Credit no later than the first Business Day after Administrative Loan Party receives notice from such L/C Issuer that payment has been made under such Letter of Credit or that such L/C Reimbursement Obligation is otherwise due (the “L/C Reimbursement Date”) with interest thereon computed as set forth in clause (i) below.  In the event that any L/C Issuer incurs any L/C Reimbursement Obligation not repaid by Borrowers as provided in this clause (e) (or any such payment by Borrowers is rescinded or set aside for any reason), such L/C Issuer shall promptly notify Administrative Agent of such failure (and, upon receipt of such notice, Administrative Agent shall forward a copy to each Revolving Credit Lender) and, irrespective of whether such notice is given, such L/C Reimbursement Obligation shall be payable on demand by Borrowers with interest thereon computed (i) from the date on which such L/C Reimbursement Obligation arose to the L/C

 

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Reimbursement Date, at the interest rate applicable during such period to Revolving Loans that are Base Rate Loans and (ii) thereafter until payment in full, at the interest rate applicable during such period to past due Revolving Loans that are Base Rate Loans.

(f) Reimbursement Obligations of the Revolving Credit Lenders.  Upon receipt of the notice described in clause (e) above from Administrative Agent, each Revolving Credit Lender shall pay to Administrative Agent for the account of such L/C Issuer its Pro Rata Share of such L/C Reimbursement Obligation.  By making such payment (other than during the continuation of an Event of Default under Section 9.1(g) or (h)), such Lender shall be deemed to have made a Revolving Loan to Borrower, which, upon receipt thereof by such L/C Issuer, Borrowers shall be deemed to have used in whole to repay such L/C Reimbursement Obligation.  Any such payment that is not deemed a Revolving Loan shall be deemed a funding by such Lender of its participation in the applicable Letter of Credit and the related L/C Obligations.  Such participation shall not otherwise be required to be funded.  Upon receipt by an L/C Issuer of any payment from any Lender pursuant to this clause (f) with respect to any portion of any L/C Reimbursement Obligation, such L/C Issuer shall promptly pay over to such Lender all payments received after such payment by such L/C Issuer with respect to such portion.

(g) Obligations Absolute.  The obligations of Borrowers and the Revolving Credit Lenders pursuant to clauses (d), (e) and (f) above shall be absolute, unconditional and irrevocable and performed strictly in accordance with the terms of this Agreement irrespective of (i) (A) the invalidity or unenforceability of any term or provision in any Letter of Credit, any document transferring or purporting to transfer a Letter of Credit, any Loan Document (including the sufficiency of any such instrument), or any modification to any provision of any of the foregoing, (B) any document presented under a Letter of Credit being forged, fraudulent, invalid, insufficient or inaccurate in any respect or failing to comply with the terms of such Letter of Credit or (C) any loss or delay, including in the transmission of any document, (ii) the existence of any setoff, claim, abatement, recoupment, defense or other right that any Person (including any Loan Party) may have against the beneficiary of any Letter of Credit or any other Person, whether in connection with any Loan Document or any other Contractual Obligation or transaction, or the existence of any other withholding, abatement or reduction, (iii) in the case of the obligations of any Revolving Credit Lender, (A) the failure of any condition precedent set forth in Section 3.2 to be satisfied (each of which conditions precedent the Revolving Credit Lenders hereby irrevocably waive) or (B) any adverse change in the condition (financial or otherwise) of any Loan Party and (iv) any other act or omission to act or delay of any kind of any Secured Party or any other Person or any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section 2.4, constitute a legal or equitable discharge of any obligation of Borrowers or any Revolving Credit Lender hereunder.

Section 2.5 Reduction and Termination of the Commitments.  All outstanding Revolving Credit Commitments shall terminate (i) on the Scheduled Revolving Credit Termination Date or, (ii) in connection with an optional repayment pursuant to Section 2.7 in the amount of such prepayment or (iii) in connection with a mandatory prepayment pursuant to Section 2.8(d).

Section 2.6 Repayment of Revolving Loan.  Borrowers promise to repay the entire unpaid principal amount of the Revolving Loans on or before the Scheduled Revolving Credit Termination Date.

Section 2.7 Optional Prepayments; Commitment Reductions.  On or before the 2nd anniversary of the Closing Date, upon 5 Business Days irrevocable prior written notice to Administrative Agent (provided that such notice may be conditioned on closing the applicable refinancing

 

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or Transfer for which such notice was given), Borrowers may prepay the outstanding principal amount of the Revolving Credit Facility and the other Obligations related thereto including the Obligations set forth in Section 2.16(a), and terminate the Revolving Credit Commitment, in whole or in part, subject to the payment of the Termination Fee, and thereafter, upon 5 Business Days irrevocable prior written notice to Administrative Agent (provided that such notice may be conditioned on closing the applicable refinancing or Transfer for which such notice was given), Borrowers may prepay the Revolving Credit Facility (and the other Obligations related thereto, including the Obligations set forth in Section 2.16(a)), and terminate the Revolving Credit Commitment, in whole or in part, without premium or penalty.  Any such prepayment made (i) in part shall be in an aggregate amount not less than $1,000,000 and that is an integral multiple of $100,000 or (ii) in full shall be in an amount equal to the entire remaining balance of the Obligations.

Section 2.8 Mandatory Prepayments.

(a) Asset Sales, Property Loss Events and Releases.  Subject to clause (e), below, upon receipt on or after the Closing Date by any Loan Party or any of its Subsidiaries of Net Cash Proceeds arising from (i) any Transfer by any Borrower of any of its property other than Transfers of its own Equity Interests and Transfers of property, each as permitted under Section 8.5 or (ii) any Property Loss Event with respect to any property of any Borrower to the extent resulting in the receipt by any Borrower of Net Cash Proceeds in excess of $1,000,000, the Borrower shall immediately pay or cause to be paid to the Administrative Agent an amount equal to 100% of such Net Cash Proceeds; provided,  however, that, upon any such receipt, as long as no Event of Default shall be continuing, any Loan Party may make Permitted Reinvestments with such Net Cash Proceeds and the Borrower shall not be required to make or cause such payment to the extent (x) such Net Cash Proceeds are intended to be used to make Permitted Reinvestments and (y) on each Reinvestment Prepayment Date for such Net Cash Proceeds, the Borrower shall pay or cause to be paid to the Administrative Agent an amount equal to the Reinvestment Prepayment Amount applicable to such Reinvestment Prepayment Date and such Net Cash Proceeds.

(b) Equity and Debt Issuances.  Subject to clause (e), below, upon receipt on or after the Closing Date by any Loan Party of Net Cash Proceeds arising from (i) the issuance or Transfer by any Borrower of its own Equity Interests (other than any issuance of common Equity Interests of any Borrower occurring in the ordinary course of business to any director, member of the management or employee of such Borrower or any Subsidiary of such Borrower), the Borrower shall immediately pay or cause to be paid to the Administrative Agent an amount equal to 100% of such Net Cash Proceeds or (ii) the incurrence by any Borrower of Indebtedness of the type specified in clause (a) or (b) of the definition thereof, the Borrower shall immediately pay or cause to be paid to the Administrative Agent an amount equal to 100% of such Net Cash Proceeds.

(c) Excess Outstandings.  On any date on which the aggregate principal amount of Revolving Credit Outstandings exceeds the lesser of the aggregate Revolving Credit Commitments and the Borrowing Base, Borrower shall pay to Administrative Agent an amount equal to such excess, together with the other Obligations then due and payable directly related thereto (including the Obligations set forth in Section 2.16(a)).

(d) ABL Credit Facility.  Upon termination of the ABL Credit Agreement, Borrower shall immediately pay to Administrative Agent an amount equal to the Revolving Credit Outstandings, and the Revolving Credit Facility shall terminate.

(e) Application of Payments.  Any payments made to Administrative Agent pursuant to this Section 2.8, unless specifically stated otherwise, shall be subject to the applicable Termination Fee, if any.  All payments pursuant to this Section 2.8 shall be applied to the

 

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Obligations in accordance with Section 2.12(b).  Notwithstanding the foregoing, if any Lease, including the Master Leases (as existing on the date hereof and not amended, modified or entered into in violation of this Agreement) requires the application of such proceeds in a manner inconsistent with clause (a), as applicable, above, Administrative Loan Party on behalf of Borrowers (1) shall provide notice to Administrative Agent, (2) shall apply, or shall cause the applicable Borrower to apply, the proceeds of such insurance as directed in the respective Lease and (3) shall not be required to apply such proceeds in accordance with clause (a) above.

Section 2.9 Interest.

(a) Rate.  All Loans and the outstanding amount of all other Obligations (other than pursuant to Secured Hedge Agreements) shall bear interest, in the case of Loans, on the unpaid principal amount thereof from the date such Loans are made, and, in the case of such other Obligations, from the date such other Obligations are due and payable until, in all cases, paid in full, except as otherwise provided in clause (c) below, as follows:  (i) in the case of Base Rate Loans, at a rate per annum equal to the sum of the Base Rate in effect from time to time plus the Applicable Margin, (ii) in the case of LIBOR Rate Loans, at a rate per annum equal to the sum of the LIBOR – Revolving Loan and the Applicable Margin – Revolving Credit LIBOR Loan, each as in effect for the applicable Interest Period, and (iii) in the case of other Obligations, at a rate per annum equal to the sum of the Base Rate and Applicable Margin – Base Rate Loan in effect from time to time.

(b) Payments.  Interest accrued shall be payable in arrears commencing on the Closing Date, and

(i) if accrued on the principal amount of any Loan,

(A) with respect to any Loan, at maturity (whether by acceleration or otherwise) or upon any prepayment of the principal amount on which such interest has accrued;

(B) (1) if such Loan is a Base Rate Loan, on the first day of each calendar month commencing on the first day of the calendar month following the making of such Loan, and (2) if such Loan is a LIBOR Rate Loan, on the last day of each Interest Period applicable to such Loan and, if applicable, on each date during such Interest Period occurring every three months from the first day of such Interest Period; and

(ii) if accrued on any other Obligation, on demand from and after the time such Obligation is due and payable (whether by acceleration or otherwise).

(iii) Notice of the amount to be paid shall be sent to Administrative Loan Party (for all Borrowers) on or about the first day of each month during which any amount is to be paid, which notice shall include each Obligation then due and owing.

(c) Default Interest.  Notwithstanding the rates of interest specified in clause (a) above or elsewhere in any Loan Document, effective immediately upon (i) the occurrence of any Event of Default under Section 9.1(a),  (g) or (h) or (ii) the delivery of a notice by Administrative Agent or the Required Lenders to Borrowers during the continuance of any other Event of Default and, in each case, for as long as such Event of Default shall be continuing, the principal balance of all Obligations (including any Obligation that bears interest by reference to the rate applicable to any

 

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other Obligation then due and payable) shall bear interest at a rate that is 2.0% per annum in excess of the interest rate then applicable to such Obligations, payable on demand or, in the absence of demand, on the date that would otherwise be applicable.

Section 2.10 Conversion and Continuation Options.

(a) Option.  Each LIBOR Rate Loan shall continue from one Interest Period to the succeeding Interest Period as a LIBOR Rate Loan unless (i) Administrative Loan Party on behalf of Borrowers requests such Loan to be converted to a Base Rate Loan, (ii) such continuation is prohibited by this Section 2.10 or (iii) the last day of such succeeding Interest Period is after the Scheduled Revolving Credit Termination Date (in which case, upon the expiration of the applicable Interest Period, such Loan shall be automatically converted to a Base Rate Loan).  Borrowers may convert any LIBOR Rate Loan to a Base Rate Loan at any time on any Business Day, upon prior written notice to Administrative Agent of Borrower’s desire to convert such LIBOR Rate Loan into a Base Rate Loan, subject to the payment of any breakage costs required by Section 2.16(a).  In the case of Base Rate Loans, Borrowers may convert such Base Rate Loans or any portion thereof into LIBOR Rate Loans at any time on any Business Day upon three (3) Business Days prior notice to Administrative Agent; provided,  however, that, no conversion in whole or in part of Base Rate Loans to LIBOR Rate Loans and no continuation in whole or in part of LIBOR Rate Loans shall be permitted at any time at which (1) an Event of Default shall be continuing and Administrative Agent or the Required Lenders shall have determined in their sole discretion not to permit such conversions or continuations or (2) such continuation or conversion would be made during a suspension imposed by Section 2.15.

(b) Procedure.  Each such election shall be made by giving Administrative Agent prior notice in accordance with clause (a) above, either (i) in substantially the form of Exhibit F (a “Notice of Conversion or Continuation”) duly completed or (ii) pursuant to an E-System (including “MyAccount”) designated for such purpose by Administrative Agent. Each partial conversion or continuation shall be allocated ratably among the Lenders in the Revolving Credit Facility in accordance with their Pro Rata Share.

Section 2.11 Fees.

(a) Unused Commitment Fee.  Borrowers agree to pay to Administrative Agent for the benefit of each Revolving Credit Lender a commitment fee on the actual daily amount by which the Revolving Credit Commitment exceeds the Revolving Credit Outstandings (the “Unused Daily Balance”) from the Closing Date through the Revolving Credit Termination Date at a rate per annum equal to 0.50% payable in arrears (x) on the first day of each calendar month and (y) on the Revolving Credit Termination Date. For purposes of this Section 2.11(a), the Revolving Credit Commitment of any Defaulting Lender shall be deemed to be zero.

(b) Letter of Credit Fees.  Borrowers agree to pay, with respect to all Letters of Credit issued by any L/C Issuer, (i) to such L/C Issuer, certain fees, documentary and processing charges as separately agreed between Borrowers and L/C Issuer or otherwise in accordance with such L/C Issuer’s standard schedule in effect at the time of determination thereof and (ii) to Administrative Agent, for the benefit of the Revolving Credit Lenders according to their Pro Rata Shares, a fee accruing at a rate per annum equal to the Applicable Margin LIBOR Loan on the maximum undrawn face amount of such Letters of Credit, payable in arrears (A) on the first day of each calendar month, ending after the issuance of such Letter of Credit and (B) on the Revolving Credit Termination Date; provided,  however, that the fee payable under this clause (ii) shall be increased by 2.0% per annum (which amounts are in lieu of and not in addition to amounts payable under

 

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Section 2.9(c)) and shall be payable (in addition to being payable on any date it is otherwise required to be paid hereunder) on demand effective immediately upon (x) the occurrence of any Event of Default under Section 9.1(a),  (g) or (h)) or (y) the delivery of a notice by Administrative Agent or the Required Lenders to Borrowers during the continuance of any other Event of Default and, in each case, for as long as such Event of Default shall be continuing; provided,  further, that in the event that any reallocation of Letter of Credit Obligations occurs pursuant to Section 2.4, during the period of time that such reallocation remains in effect, the Letter of Credit fee payable with respect to such reallocated portion shall be payable to (A) all Lenders based on their pro rata share of such reallocation or (B) to the L/C Issuer for any remaining portion not reallocated to any other Lenders.

(c) Additional Fees.  Borrowers shall pay to Administrative Agent and its Related Persons its reasonable and customary fees and expenses in connection with any payments made pursuant to Section 2.16(a) (Breakage Costs) and such other fees as described in the Fee Letter.

Section 2.12 Application of Payments.

(a) Application of Voluntary Prepayments.  Unless otherwise provided in this Section 2.12 or elsewhere in any Loan Document, all voluntary prepayments received by Administrative Agent shall be applied as designated by Administrative Loan Party on behalf of Borrowers.

(b) Application of Mandatory Prepayments.  Subject to the provisions of clause (c) below with respect to the application of payments during the continuance of an Acceleration Event of Default, any payment made by Borrowers to Administrative Agent pursuant to Section 2.8 or any other prepayment of the Obligations required to be applied in accordance with this clause (b) shall be applied to repay the outstanding principal balance of the Revolving Loans (in such order as Administrative Agent may from time to time elect) and, thereafter, any excess shall be retained by Borrower.

(c) Application of Payments During an Event of Default.  Each Loan Party hereby irrevocably waives, and agrees to cause each Loan Party to waive, the right to direct the application during the continuance of an Event of Default of any and all payments in respect of any Obligation and any proceeds of Collateral and agrees that, notwithstanding the provisions of clause (a) above, absent the occurrence and continuance of an Acceleration Event, Administrative Agent may apply any and all payments received by Administrative Agent in respect of the Obligations, and any and all proceeds of Collateral received by Administrative Agent, in such order as Administrative Agent may from time to time elect. Also notwithstanding the provisions of clause (a), during the occurrence and continuance of an Acceleration Event, Administrative Agent may, and, upon (1) the direction of the Required Lenders or (2) the termination of any Revolving Credit Commitment or the acceleration of any Obligation pursuant to Section 9.2,  shall apply all payments in respect of any Obligation and all proceeds of Collateral first, to pay Obligations in respect of any cost or expense reimbursements, fees or indemnities then due to Administrative Agent, second, to pay Obligations in respect of any cost or expense reimbursements, fees or indemnities then due to the Revolving Credit Lenders (in their capacity as Lenders) and the L/C Issuers, third, to pay interest then due and payable in respect of the Revolving Loans and the L/C Reimbursement Obligations, fourth, to repay the outstanding principal amounts of the Revolving Loans and the L/C Reimbursement Obligations and to provide cash collateral for Letters of Credit in the manner and to the extend described in Section 9.3 and to pay amounts owing with respect to Secured Hedge Agreements (but paid only to the extent and up to the amount of reserves against the Borrowing Base that have been established for “potential future exposure” as calculated by Administrative Agent in its sole credit judgment), and fifth, to the ratable payment of all other Obligations,

 

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including Cash Management Obligations; provided, that, notwithstanding anything to the contrary set forth above, in no event shall the proceeds of any Collateral owned, or any Guarantee Obligations provided, by any Loan Party under any Loan Document be applied to repay or cash collateralize any Excluded Swap Obligation with respect to such Loan Party.

(d) Application of Payments Generally.  All payments that would otherwise be allocated to the Revolving Credit Lenders pursuant to this Section 2.12 shall instead be allocated first, to repay interest on any portion of the Revolving Loans that Administrative Agent may have advanced on behalf of any Lender and on any L/C Reimbursement Obligations, in each case for which Administrative Agent or, as the case may be, the L/C Issuer has not then been reimbursed by such Lender or Borrower, second, to pay the outstanding principal amount of the foregoing obligations and third, to repay the Revolving Loans.  All repayments of any Revolving Loans shall be applied first, to repay such Loans outstanding as Base Rate Loans and then, to repay such Loans outstanding as LIBOR Rate Loans with those LIBOR Rate Loans having earlier expiring Interest Periods being repaid prior to those having later expiring Interest Periods.  If sufficient amounts are not available to repay all outstanding Obligations described in any priority level set forth in this Section 2.12, the available amounts shall be applied, unless otherwise expressly specified herein, to such Obligations ratably based on the proportion of the Secured Parties’ interest in such Obligations.  Any priority level set forth in this Section 2.12 that includes interest shall include all such interest, whether or not accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or similar proceeding, and whether or not a claim for post-filing or post-petition interest is allowed in any such proceeding.

Section 2.13 Payments and Computations.

(a) Procedure.  Administrative Loan Party on behalf of each Borrower shall make each payment under any Loan Document not later than 1:00 p.m. on the day when due to Administrative Agent by a single wire transfer for the Revolving Loan to the following accountAgent Collection Account (or at such other account or by such other means to such other address as Administrative Agent shall have notified AdministrativeAuthorized Loan Party for each Borrower in writing at least five (5) Business Days prior to such payment) in immediately available Dollars and without setoff or counterclaim:

ABA No. 021-001-033
Account Number 50271079
Deutsche Bank Trust Company Americas
Account Name:  HH Cash Flow Collections
Reference:  Genesis HealthCare LLC HFS# 2991
Administrative Agent shall promptly thereafter cause to be distributed immediately available funds relating to the payment of principal, interest or fees to the Lenders, in accordance with the application of payments set forth in Section 2.12.  The Lenders shall make any payment under any Loan Document in immediately available Dollars and without setoff or counterclaim.  Each Revolving Credit Lender shall make each payment for the account of any L/C Issuer required pursuant to Section 2.4 (A) if the notice or demand therefor was received by such Lender prior to 11:00 a.m. on any Business Day, on such Business Day and (B) otherwise, on the Business Day following such receipt.  Payments received by Administrative Agent after 1:00 p.m. shall be deemed to be received on the next Business Day.

 

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(b) Computations of Interests and Fees.  All computations of interest and of fees shall be made by Administrative Agent on the basis of a year of 360 days (or, in the case of Base Rate Loans whose interest rate is calculated based on the rate set forth in clause (a) of the definition of “Base Rate,” 365/366 days), in each case for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest and fees are payable.  Each determination of an interest rate or the amount of a fee hereunder shall be made by Administrative Agent (including determinations of a LIBOR – Revolving Loan or Base Rate in accordance with the definitions of LIBOR Rate and Base Rate, respectively) as set forth in the respective definition thereof and shall be conclusive, binding and final for all purposes, absent manifest error.

(c) Payment Dates.  Whenever any payment hereunder shall be stated to be due on a day other than a Business Day, the due date for such payment shall be extended to the next succeeding Business Day without any increase in such payment as a result of additional interest or fees; provided,  however, that such interest and fees shall continue accruing as a result of such extension of time.

(d) Advancing Payments.  Unless Administrative Agent shall have received notice from Administrative Loan Party on behalf of each Borrower to the Lenders prior to the date on which any payment is due hereunder that Borrowers will not make such payment in full, Administrative Agent may assume that Borrowers have made such payment in full to Administrative Agent on such date and Administrative Agent may, in reliance upon such assumption, cause to be distributed to each Lender on such due date an amount equal to the amount then due such Lender.  If and to the extent that Borrowers shall not have made such payment in full to Administrative Agent, each Lender shall repay to Administrative Agent on demand such amount distributed to such Lender together with interest thereon (at the Federal Funds Rate for the first Business Day and thereafter, at the rate applicable to Base Rate Loans under the Revolving Credit Facility) for each day from the date such amount is distributed to such Lender until the date such Lender repays such amount to Administrative Agent.

Section 2.14 Evidence of Debt.

(a) Records of Lenders.  Each Lender shall maintain in accordance with its usual practice accounts evidencing Indebtedness of each Borrower to such Lender resulting from each Loan of such Lender from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time under this Agreement.  In addition, each Lender having sold a participation in any of its Obligations or having identified an SPV as such to Administrative Agent, acting as agent of each Borrower solely for this purpose and solely for tax purposes, shall establish and maintain at its address referred to in Section 11.11 (or at such other address as such Lender shall notify Borrower) a record of ownership, in which such Lender shall register by book entry (A) the name and address of each such participant and SPV (and each change thereto, whether by assignment or otherwise) and (B) the rights, interest or obligation of each such participant and SPV in any Obligation, in any Revolving Credit Commitment and in any right to receive any payment hereunder.

(b) Records of Administrative Agent.  Administrative Agent, acting as agent of each Borrower solely for tax purposes and solely with respect to the actions described in this Section 2.14, shall establish and maintain at itsthe office of its servicer located at the address referred to in Section 11.11 (or at such other address as Administrative Agent may notify Borrower) (A) a record of ownership (the “Register”) in which Administrative Agent agrees to register by book entry the interests (including any rights to receive payment hereunder) of Administrative Agent, each Lender and each L/C Issuer in the Revolving Credit Outstandings, each of their obligations under this

 

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Agreement to participate in each Loan, Letter of Credit and L/C Reimbursement Obligation and any assignment of any such interest, obligation or right and (B) accounts in the Register in accordance with its usual practice in which it shall record (1) the names and addresses of the Lenders and the L/C Issuers (and each change thereto pursuant to Section 2.18 (Substitution of Lenders) and Section 11.2 (Assignments and Participations; Binding Effect)), (2) the Revolving Credit Commitments of each Lender, (3) the amount of each Loan and each funding of any participation described in clause (A) above, for LIBOR Rate Loans, the Interest Period applicable thereto, (4) the amount of any principal or interest due and payable or paid, (5) the amount of the L/C Reimbursement Obligations due and payable or paid and (6) any other payment received by Administrative Agent from any Borrower and its application to the Obligations.

(c) Registered Obligations.  Notwithstanding anything to the contrary contained in this Agreement, the Loans (including any Notes evidencing such Loans and the corresponding obligations to participate in L/C Obligations) and the L/C Reimbursement Obligations are registered obligations, the right, title and interest of the Lenders and the L/C Issuers and their assignees in and to such Loans or L/C Reimbursement Obligations, as the case may be, shall be transferable only upon notation of such transfer in the Register and no assignment thereof shall be effective until recorded therein.  This Section 2.14 and Section 11.2 shall be construed so that the Loans and L/C Reimbursement Obligations are at all times maintained in “registered form” within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the Code and any related regulations (and any successor provisions).

(d) Prima Facie Evidence.  The entries made in the Register and in the accounts maintained pursuant to clauses (a) and (b) above shall, to the extent permitted by applicable Requirements of Law, be prima facie evidence of the existence and amounts of the obligations recorded therein; provided,  however, that no error in such account and no failure of any Lender or Administrative Agent to maintain any such account shall affect the obligations of any Loan Party to repay the Loans in accordance with their terms.  In addition, the Loan Parties, Administrative Agent, the Lenders and the L/C Issuers shall treat each Person whose name is recorded in the Register as a Lender or L/C Issuer, as applicable, for all purposes of this Agreement.  Information contained in the Register with respect to any Lender or any L/C Issuer shall be available for access by Borrower, Administrative Agent, such Lender or such L/C Issuer at any reasonable time and from time to time upon reasonable prior notice.  No Lender or L/C Issuer shall, in such capacity, have access to or be otherwise permitted to review any information in the Register other than information with respect to such Lender or L/C Issuer unless otherwise agreed by Administrative Agent.

(e) Notes.  Upon any Lender’s request, Borrowers shall promptly execute and deliver Notes to such Lender evidencing the Loans of such Lender in the Revolving Credit Facility and substantially in the form of Exhibit B;  provided,  however, that only one Note for the Revolving Credit Facility shall be issued to each Lender, except (i) to an existing Lender exchanging existing Notes to reflect changes in the Register relating to such Lender, in which case the new Notes delivered to such Lender shall be dated the date of the original Notes and (ii) in the case of loss, destruction or mutilation of existing Notes and similar circumstances.  Each Note, if issued, shall only be issued as means to evidence the right, title or interest of a Lender or a registered assignee in and to the related Loan, as set forth in the Register, and in no event shall any Note be considered a bearer instrument or obligation.

Section 2.15 Suspension of LIBOR Rate Option.  Notwithstanding any provision to the contrary in this Article 2, the following shall apply:

 

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(a) Interest Rate Unascertainable, Inadequate or Unfair.  In the event that (A) Administrative Agent determines that adequate and fair means do not exist for ascertaining the applicable interest rates by reference to which the LIBOR – Revolving Loan is determined or (B) Required Lenders, as the case may be, notify Administrative Agent that the LIBOR – Revolving Loan, as the case may be, for any Interest Period will not adequately reflect the cost to such Lenders of making or maintaining such Loans for such Interest Period by reason of any changes arising after the Closing Date, Administrative Agent shall promptly so notify Administrative Loan Party and such Lenders, whereupon the obligation of each such Lender to make or to continue LIBOR Rate Loans shall be suspended as provided in clause (c) below until Administrative Agent shall notify Administrative Loan Party that the Required Lenders, as the case may be, have determined that the circumstances causing such suspension no longer exist.

(b) Illegality.  If any Lender determines that the introduction of, or any change in or in the interpretation of, any Requirement of Law after the date of this Agreement shall make it unlawful, or any Governmental Authority shall assert that it is unlawful, for any Lender or its applicable lending office to make LIBOR Rate Loans or to continue to fund or maintain LIBOR Rate Loans, then, on notice thereof and demand therefor by such Lender to Administrative Loan Party through Administrative Agent, the obligation of such Lender to make or to continue LIBOR Rate Loans shall be suspended as provided in clause (c) below until such Lender shall, through Administrative Agent, notify Administrative Loan Party that it has determined that it may lawfully make LIBOR Rate Loans.

(c) Effect of Suspension.  If the obligation of any Lender to make or to continue LIBOR Rate Loans is suspended, (A) the obligation of such Lender to convert Base Rate Loans into LIBOR Rate Loans shall be suspended, (B) such Lender shall make a Base Rate Loan at any time such Lender would otherwise be obligated to make a LIBOR Rate Loan, (C) Borrowers may revoke any pending Notice of Borrowing or Notice of Conversion or Continuation to make or continue any LIBOR Rate Loan or to convert any Base Rate Loan into a LIBOR Rate Loan and (D) each LIBOR Rate Loan of such Lender shall automatically and immediately (or, in the case of any suspension pursuant to clause (a) above, on the last day of the current Interest Period thereof) be converted into a Base Rate Loan.

Section 2.16 Breakage Costs; Increased Costs; Capital Requirements.

(a) Breakage Costs.   Borrowers shall compensate each Lender, upon demand from such Lender to such Borrower (with copy to Administrative Agent), for all Liabilities (including, in each case, those incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to prepare to fund, to fund or to maintain the LIBOR Rate Loans of such Lender to Borrowers but excluding any loss of the Applicable Margin on the relevant Loans) that such Lender may incur (A) to the extent, for any reason other than solely by reason of such Lender being a Defaulting Lender, a proposed Borrowing, conversion into or continuation of LIBOR Rate Loans does not occur on a date specified therefor in a Notice of Borrowing or a Notice of Conversion or Continuation or in a similar request made by telephone by Administrative Loan Party on behalf of Borrowers, (B) to the extent any LIBOR Rate Loan is paid (whether through a scheduled, optional or mandatory prepayment) or converted to a Base Rate Loan (including because of Section 2.15) on a date that is not the last day of the applicable Interest Period or (C) as a consequence of any failure by Borrowers to repay LIBOR Rate Loans when required by the terms hereof.  For purposes of this clause (a), each Lender shall be deemed to have funded each LIBOR Rate Loan made by it using a matching deposit or other borrowing in the London interbank market.

 

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(b) Increased Costs.  If at any time any Lender or L/C Issuer determines that, after the Closing Date, the adoption of, or any change in or in the interpretation, application or administration of, or compliance with, any Requirement of Law (other than any imposition or increase of Reserve Requirements) from any Governmental Authority shall have the effect of (i) increasing the cost to such Lender of making, funding or maintaining any LIBOR Rate Loan or to agree to do so or of participating, or agreeing to participate, in extensions of credit, (ii) increasing the cost to such L/C Issuer of Issuing or maintaining any Letter of Credit or of agreeing to do so or (iii) imposing any other cost to such Lender or L/C Issuer with respect to compliance with its obligations under any Loan Document, then, upon demand by such Lender or L/C Issuer (with copy to Administrative Agent), Borrowers shall pay to Administrative Agent for the account of such Lender or L/C Issuer amounts sufficient to compensate such Lender or L/C Issuer for such increased cost.

(c) Increased Capital Requirements.  If at any time any Lender or L/C Issuer determines that, after the Closing Date, the adoption of, or any change in or in the interpretation, application or administration of, or compliance with, any Requirement of Law (other than any imposition or increase of Reserve Requirements) from any Governmental Authority regarding capital adequacy, reserves, liquidity requirements, special deposits, compulsory loans, insurance charges against property of, deposits with or for the account of, Obligations owing to, or other credit extended or participated in by, any Lender or L/C Issuer or any similar requirement (in each case other than any imposition or increase of Reserve Requirements) shall have the effect of reducing the rate of return on the capital of such Lender or L/C Issuer (or any corporation controlling such Lender or L/C Issuer) as a consequence of its obligations under or with respect to any Loan Document or Letter of Credit to a level below that which, taking into account the capital adequacy policies of such Lender, L/C Issuer, or corporation, such Lender, L/C Issuer, or corporation could have achieved but for such adoption or change, then, upon demand from time to time by such Lender or L/C Issuer (with a copy of such demand to Administrative Agent), Borrowers shall pay to Administrative Agent for the account of such Lender amounts sufficient to compensate such Lender for such reduction.

(d) Compensation Certificate.  Each demand for compensation under this Section 2.16 shall be accompanied by a certificate of the Lender or L/C Issuer claiming such compensation, setting forth the amounts to be paid hereunder, which certificate shall be prima facie evidence of such, absent manifest error.  In determining such amount, such Lender or L/C Issuer may use any reasonable averaging and attribution methods.  Notwithstanding anything to the contrary in this Section, the Borrowers shall not be required to compensate a Lender or L/C Issuer pursuant to this Section for any amounts incurred more than six months prior to the date such Lender or L/C Issuer notifies the Borrowers of such Lender’s or L/C Issuer’s intention to claim compensation therefore; provided that if the circumstances giving rise to such claim have retroactive effect, then such six month period shall be extended to include such period of retroactive effect.

(e) Certain Regulatory Developments.  Notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements and directives thereunder, issued in connection therewith or in implementation thereof and (ii) 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 a Requirement of Law, regardless of the date enacted, adopted, issued or implemented.

 

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Section 2.17 Taxes.

(a) All payments made by or on behalf of any Loan Party under any Loan Document  shall be made free and clear of, and without deduction or withholding for or on account of, any Taxes, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority responsible for administering taxes, excluding (i) net income Taxes (however determined) and franchise Taxes (in lieu of net income Taxes) imposed on the Administrative Agent or any Secured Party as a result of a present, former or future connection between the Administrative Agent or such Secured Party and the jurisdiction of the Governmental Authority imposing such Tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Secured Party having executed, delivered or performed its obligations or received a payment under, or enforced, any Loan Document), (ii) any branch profits Taxes imposed by the United States, (iii) any United States withholding Tax that (A) is imposed on amounts payable to a Secured Party at the time such Secured Party becomes a party to this Agreement or designates a new lending office, except to the extent that such Secured Party (or its assignor, if any) was entitled at the time of designation of a new lending office (or assignment) to receive additional amounts from the Loan Party with respect to such withholding Tax pursuant to this Section or (B) or is attributable, in the case of a Non-U.S. Lender  Party (as defined below), to such Non-U.S. Lender Party’s failure to comply with Section 2.17(d) or is attributable, in the case of a U.S. Lender Party (as defined below) to such U.S. Lender Party’s failure to comply with Section 2.17(e), and (iv) any United States withholding Tax imposed under FATCA (together the amounts described in clauses (i) through (iv) are the “Excluded Taxes”).  If any such Taxes that are not Excluded Taxes (the “Non-Excluded Taxes”) or Other Taxes are required to be withheld from any amounts payable by or on behalf of any Loan Party, the amounts payable by the Loan Party shall be increased to the extent necessary to yield the Administrative Agent or such Secured Party (after deduction or withholding of all Non-Excluded Taxes and Other Taxes) interest or any such other amounts payable hereunder at the rates or in the amounts specified in this Agreement.  For avoidance of doubt, payments made to any Secured Party arising under a document or agreement other than a Loan Document (but including any Secured Hedge Agreement or Cash Management Document) shall not be subject to adjustment under this Section 2.17.

(b) The Borrowers shall pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law.

(c) Whenever any Non-Excluded Taxes or Other Taxes are payable by the Loan Parties, as promptly as possible thereafter the Loan Parties shall send to the Administrative Agent for the account of the Administrative Agent or the relevant Secured Party, as the case may be, a certified copy of an original official receipt received by the Loan Parties showing payment thereof if such receipt is obtainable, or, if not, other reasonable evidence of payment satisfactory to the Administrative Agent.

(d) Each Secured Party that is not a United States Person (as such term is defined in Section 7701(a)(30) of the Code) (a “Non-U.S. Lender Party”) shall deliver to Administrative Loan Party and the Administrative Agent (or, in the case of a participant, to Administrative Loan Party and to the Lender from which the related participation shall have been purchased) (i) two accurate and complete original, signed copies of IRS Form W-8ECI, W-8EXP, W-8BEN or W-8BEN-E (claiming benefits under an applicable treaty) or W-8IMY (together with any applicable underlying forms), whichever is applicable, (ii) in the case of a Non-U.S. Lender Party claiming exemption from United States federal withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest,” a statement substantially in the form of Exhibit L and two

 

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accurate and complete original, signed copies of IRS Form W-8BEN, or any subsequent versions or successors to such forms, in each case properly completed and duly executed by such Non-U.S. Lender Party.  Such forms shall be delivered by each Non-U.S. Lender Party on or before the date it becomes a party to this Agreement (or, in the case of any participant, on or before the date such participant purchases the related participation).  In addition, each Non-U.S. Lender Party shall deliver such forms promptly upon the obsolescence or invalidity of any form previously delivered by such Non-U.S. Lender Party.  Notwithstanding any other provision of this paragraph, a Non-U.S. Lender Party shall not be required to deliver any form pursuant to this paragraph that such Non-U.S. Lender Party is not legally able to deliver.

(e) Each Secured Party that is a United States Person (as such term is defined in Section 7701(a)(30) of the Code) (a “U.S. Lender Party”) shall deliver to Administrative Loan Party and the Administrative Agent two accurate and complete original, signed copies of IRS Form W-9, or any subsequent versions or successors to such form.  Such forms shall be delivered by each U.S. Lender Party on or before the date it becomes a party to this Agreement.  In addition, each U.S. Lender Party shall deliver such forms promptly upon the obsolescence or invalidity of any form previously delivered by such U.S. Lender Party.

(f) The Borrowers shall indemnify the Administrative Agent and any Secured Party, within 30 days after the written demand therefor, the full amount of any Non-Excluded Taxes or Other Taxes (including any Non-Excluded Taxes or Other Taxes imposed or asserted on amounts payable under this Section) payable or paid by the Administrative Agent or Secured Party whether or not such Taxes are correctly or legally asserted by the relevant Governmental Authority.  A certificate as to the amount of such amount or liability delivered to Administrative Loan Party by a Secured Party (with a copy to the Administrative Agent) or by the Administrative Agent on its behalf of on behalf of a Secured Party, shall be conclusive absent manifest error.

(g) If any Secured Party determines, in good faith, that it has received a refund of any Non-Excluded Taxes or Other Taxes as to which it has been indemnified by the Borrowers or with respect to which a Loan Party has paid additional amounts pursuant to this Section, it shall promptly pay over such refund to the Borrowers (but only to the extent of indemnity payments made, or additional amounts paid, by the Loan Party under this Section with respect to the Non-Excluded Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of the Administrative Agent or such Secured Party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that the Borrowers, upon the request of the Administrative Agent or such Secured Party, agree to repay the amount paid over to the Borrowers (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Secured Party in the event the Administrative Agent or such Secured Party is required to repay such refund to such Governmental Authority.  Notwithstanding anything to the contrary in this paragraph (g), in no event will the Administrative Agent or Lender be required to pay any amount to the Borrowers pursuant to this paragraph (g) the payment of which would place the Secured Party in a less favorable net after-Tax position than the Secured Party would have been in if the indemnification payments or additional amounts giving rise to such refund had never been paid.  This paragraph shall not be construed to require the Administrative Agent or any Secured Party 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.

(h) Each Lender shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Non-Excluded Taxes attributable to such Lender (but only to the extent that the Borrowers have not already indemnified the Administrative Agent for such Non-