UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported): June 23, 2017
Hanger, Inc.
(Exact name of registrant as specified in its charter)
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Delaware
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1-10670
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84-0904275
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10910 Domain Drive, Suite 300
Austin, Texas 78758
(Address of principal executive offices (zip code))
(512) 777-3800
(Registrant’s telephone number, including area code)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2 below):
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a - 12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13d-4(c))
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company o
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. o
Item 1.01. Entry into a Material Definitive Agreement.
In May 2017, Hanger, Inc. (the “ Company ”) filed with the Securities and Exchange Commission its Annual Report on Form 10-K for the year ended December 31, 2014, which included restated financial information for 2010, 2011, 2012 and 2013. The Company is currently working to complete its Annual Report on Form 10-K for the year ended December 31, 2016, which will include its audited 2015 and 2016 financial statements. The Company has not currently identified a timeline for the filing of its audited 2015 and 2016 financial statements.
Due to the ongoing preparation and audit of its 2015 and 2016 financial statements and as described in more detail in Item 1.01 of this Current Report on Form 8-K, the Company has entered into amendments to its Term B Credit Agreement and its Credit Agreement that, among other things, in each case extends from August 15, 2017 to February 15, 2018 the deadline by which the Company must deliver to the agent under the applicable credit agreement its audited 2015 and 2016 financial statements. Also as described in Item 1.01 below, the Company has entered into an amendment to the Rights Agreement, dated February 28, 2016, to extend the “Final Expiration Date” under the Rights Agreement to December 31, 2018.
Credit Agreement Amendments
Amendment to Term B Credit Agreement
On June 2, 2017, the Company entered into an Amendment (the “ Term B Amendment ”) among the Company, the guarantors party thereto, the lenders party thereto and Wilmington Trust, National Association, as administrative agent (the “ Term B Agent ”), that provided for amendments to its Credit Agreement dated as of August 1, 2016 (the “ Term B Credit Agreement ”) among the Company, the lenders from time to time party thereto and the Term B Agent, upon the satisfaction of certain conditions. The amendments to the Term B Credit Agreement set forth in the Term B Amendment became effective on June 23, 2017. The Amendment extends the deadline by which the Company must deliver to the Term B Agent its audited financial statements, the related audit report and a consolidated budget, in each case, for the fiscal year ending December 31, 2016, from August 15, 2017 to February 15, 2018. The Amendment also extends the deadline by which the Compliance Date (as defined in the Term B Credit Agreement) must occur from August 15, 2017 to February 15, 2018. The Company is otherwise required to comply with all other obligations and covenants contained in the Term B Credit Agreement, including the timely delivery to the lenders of future financial statements and related information.
In connection with the entry into the Term B Amendment, the Company will pay the agent for the account of each consenting lender an amendment fee in an amount equal to 50 basis points of the outstanding principal amount of the loan held by such consenting lender.
The Term B Credit Agreement provides for a $280 million senior unsecured term loan facility under which all outstanding principal is due at maturity on August 1, 2019. Borrowings under the Term B Credit Agreement bear interest at a fixed rate per annum equal to 11.50% payable quarterly in arrears. As of May 31, 2017, the Company had $275.8 million in outstanding borrowings, net of unamortized discount of $4.2 million, under the Term B Credit Agreement.
Sixth Amendment to Credit Agreement
On June 22, 2017, the Company entered into a Sixth Amendment (the “ Sixth Amendment ”) among the Company, the guarantors party thereto, the lenders party thereto and Bank of America, N.A., as agent (the “ Agent ”), that modified that certain Credit Agreement dated as of June 17, 2013 among the Company, the lenders from time to time party thereto and the Agent, as amended by the First Amendment and Waiver dated as of June 19, 2015, the Second Amendment and Waiver dated as of September 11,
2015, the Third Amendment and Waiver dated as of November 13, 2015, the Fourth Amendment and Waiver dated as of February 10, 2016, and the Fifth Amendment and Waiver dated as of July 15, 2016 (as amended, the “ Credit Agreement ”). The Sixth Amendment, which became effective June 23, 2017, extends the deadline by which the Company must deliver to the Agent the Required Financial Information (as defined in the Fifth Amendment and Waiver) from August 15, 2017 to February 15, 2018.
In addition, the Sixth Amendment amends the definition of “Consolidated EBITDA” in the Credit Agreement to provide that the amount of professional fees and expenses that may be added back to Consolidated EBITDA (other than certain professional fees and expenses reimbursed by the Company and the subsidiary guarantors under the Credit Agreement in accordance with the Second Amendment and Waiver, the entire aggregate amount of which may be added back) for any period of four consecutive fiscal quarters shall not exceed, for the period of four consecutive fiscal quarters ending on or prior to (1) March 31, 2016, $30,000,000, (2) June 30, 2016, $36,000,000, (3) September 30, 2016, $35,000,000, (4) December 31, 2016, $31,000,000, (5) March 31, 2017, $25,000,000, (6) June 30, 2017, $37,000,000, (7) September 30, 2017, $35,000,000, (8) December 31, 2017, $31,000,000, and (9) March 31, 2018, $25,000,000; provided that, with respect to the applicable four consecutive fiscal quarter period, the amounts set forth in (6), (7), (8), and (9) above shall be reduced by an amount, if any, equal to the amount by which the Prior Period Adjustment Period (defined below) exceeds $815,000. The Sixth Amendment also amends the reporting requirements in the Credit Agreement to require the Company to deliver to the Agent a certificate with each of the Company’s annual audited and quarterly unaudited financial statements stating the amount of professional fees and expenses incurred by the Company and the subsidiary guarantors from and after March 31, 2017 that are to be allocated to any fiscal quarter ended on or prior to March 31, 2017 as adjustments in accordance with GAAP (as defined in the Credit Agreement) of such professional fee and expense amounts previously included within the underlying financial statements provided to the lenders with the Company’s compliance certificate relating to the period ended March 31, 2017 (such amount, the “ Prior Period Adjustment Amount ”).
The Sixth Amendment amends the maximum permitted leverage ratio covenant in the Credit Agreement (defined as the ratio of (a) the principal amount of consolidated indebtedness minus the lesser of (1) $30,000,000 and (2) the consolidated aggregate amount of unrestricted cash and cash equivalents, to (b) the consolidated net income before interest expense, taxes, depreciation and amortization expense, certain non-cash charges and certain other items (“ EBITDA ”)) to be, as of the end of the Company’s fiscal quarter ending on (i) June 30, 2016, 5.00:1.00, (ii) September 30, 2016, 5.75:1.00, and (iii) any date thereafter, 5.00:1.00. The Sixth Amendment also amends the minimum interest coverage ratio covenant in the Credit Agreement (defined as, with certain adjustments, the ratio of the Company’s EBITDA to the Company’s consolidated interest expense) to be, as of the end of the Company’s fiscal quarter ending (i) on June 30, 2016, 3.50:1.00, (ii) on September 30, 2016, December 31, 2016, March 31, 2017, June 30, 2017, September 30, 2017 and December 31, 2017, 2.25:1.00, and (iii) thereafter, 2.00:1.00.
The Company is otherwise required to comply with all other obligations and covenants contained in the Credit Amendment, as amended through the Sixth Amendment, including the timely delivery to the lenders of future financial statements and related information.
In connection with the entry into the Sixth Amendment, the Company will pay the Agent for the account of each consenting lender an amendment fee in an amount equal to 50 basis points of the outstanding principal amount of the term loan held by such consenting lender plus the amount of such lender’s revolving commitment.
Effective January 1, 2017, borrowings under the Credit Agreement bear interest at a variable rate per annum equal to (i) LIBOR plus 5.25% or (ii) the base rate (which is the highest of (a) the administrative agent’s prime rate, (b) the federal funds rate plus 0.50% or (c) the sum of 1% plus one-month LIBOR) plus 4.25%. If the Company fails to deliver the Required Financial Information to the Agent on or before June 30, 2017, then the applicable interest rate for loans under the Credit Agreement will increase by an additional 0.50% per annum, effective July 1, 2017. Upon (a) the Company delivering to the Agent the Required Financial Information and (b) the Company achieving a Leverage Ratio, for the
Company’s then most recently ended fiscal quarter, of less than or equal to 4:00:1:00, the specified margin for borrowings based on LIBOR will decrease to 4.00% per annum and the specified margin for borrowings based on the base rate will decrease to 3.00% per annum.
As of May 31, 2017, the Company’s Aggregate Revolving Commitment under the Credit Agreement was $118.3 million. Of this amount, the Company had $20.7 million in limitations on its revolving availability under the Credit Agreement, had borrowed $18.0 million and had utilized a further $6.1 million for letters of credit, resulting in $73.5 million of available borrowing capacity. Additionally, as of May 31, 2017, the Company had $173.0 million in outstanding borrowings, net of unamortized discount of $1.4 million, under the term loan facility under the Credit Agreement.
Copies of the Term B Amendment and the Sixth Amendment are attached to this Current Report on Form 8-K as Exhibits 10.1 and 10.2, respectively, and are incorporated herein by reference. The foregoing description of the Term B Amendment and the Sixth Amendment is qualified in its entirety by reference to Exhibit 10.1 and Exhibit 10.2.
Rights Agreement Amendment
On February 28, 2016, the Company entered into a Rights Agreement (the “ Rights Agreement ”) between the Company and Computershare Inc., as the Rights Agent. The Company entered into the Rights Agreement at the time of the suspension of its common stock from trading on the New York Stock Exchange and the commencement of the trading of its common stock under the symbol “HNGR” on the OTC Pink, which is operated by OTC Markets Group Inc.
On June 23, 2017, the Company entered into an amendment (the “ Rights Agreement Amendment ”) to the Rights Agreement to extend the “Final Expiration Date” under the Rights Agreement to December 31, 2018. Pursuant to the terms of the Rights Agreement as amended by the Rights Agreement Amendment, the Company has the ability to redeem the rights prior to the “Final Expiration Date” or to further amend the Rights Agreement to provide for an earlier “Final Expiration Date.”
The “Final Expiration Date” under the Rights Agreement was not extended in response to any specific takeover bid or other proposal to acquire control of the Company.
A copy of the Rights Agreement Amendment is attached to this Current Report on Form 8-K as Exhibit 4.1 and is incorporated herein by reference. The foregoing description of the Rights Agreement Amendment is qualified in its entirety by reference to Exhibit 4.1.
Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The information included in Item 1.01 of this Current Report on Form 8-K under the subheading “Credit Agreement Amendments” is incorporated by reference into this Item 2.03.
Item 3.03. Material Modification to Rights of Security Holders.
The information included in Item 1.01 of this Current Report on Form 8-K under the subheading “Rights Agreement Amendment” is incorporated by reference into this Item 3.03.
Item 9.01. Financial Statements and Exhibits.
(a) Not applicable.
(b) Not applicable.
(c) Not applicable.
(d) Exhibits .
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(4.1) |
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Amendment, dated as of June 23, 2017, by and between Hanger, Inc. and Computershare Inc., as the Rights Agent. |
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(10.1) |
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Amendment, dated as of June 2, 2017, among Hanger, Inc., the guarantors party thereto, the lenders party thereto and Wilmington Trust, National Association, as administrative agent. |
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(10.2) |
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Sixth Amendment, dated as of June 22, 2017, among Hanger, Inc., the guarantors party thereto, the lenders party thereto and Bank of America, N.A., as agent. |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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HANGER, INC. |
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By: |
/s/ Thomas E. Hartman |
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Thomas E. Hartman |
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Senior Vice President and General Counsel |
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Dated: June 23, 2017 |
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EXHIBIT INDEX
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Exhibit No. |
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Description |
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(4.1) |
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Amendment, dated June 23, 2017, by and between Hanger, Inc. and Computershare Inc., as the Rights Agent. |
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(10.1) |
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Amendment, dated as of June 2, 2017, among Hanger, Inc., the guarantors party thereto, the lenders party thereto and Wilmington Trust, National Association, as administrative agent. |
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(10.2) |
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Sixth Amendment, dated as of June 22, 2017, among Hanger, Inc., the guarantors party thereto, the lenders party thereto and Bank of America, N.A., as agent. |
Exhibit 4.1
AMENDMENT NO. 1 TO RIGHTS AGREEMENT
This Amendment No. 1 to the Rights Agreement (as defined below) (this “Amendment”), dated and effective as of June 23, 2017 (the “Effective Time”), is by and between Hanger, Inc., a Delaware corporation (the “Company”), and Computershare Inc., a Delaware corporation (the “Rights Agent”).
RECITALS :
WHEREAS , the Company and the Rights Agent are parties to that certain Rights Agreement, dated as of February 28, 2016 (the “Rights Agreement”);
WHEREAS , pursuant to Section 27 of the Rights Agreement, under circumstances as set forth therein, the Company may supplement or amend any provision of the Rights Agreement;
WHEREAS , the Company has delivered to the Rights Agent a certificate from an appropriate officer of the Company stating that this Amendment is in compliance with the terms of Section 27 of the Rights Agreement; and
WHEREAS , the Board of Directors of the Company has determined that it is desirable and in the best interests of the Company and its stockholders to amend the Rights Agreement in the manner as set forth below.
AGREEMENT :
NOW, THEREFORE , for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the parties hereto agree as follows:
1. Amendment of Section 7(a) of the Rights Agreement . Section 7(a) of the Rights Agreement is hereby amended to read in its entirety as follows as of the Effective Time:
“(a) The registered holder of any Right Certificate may exercise the Rights evidenced thereby (except as otherwise provided herein), in whole or in part, at any time after the Distribution Date, upon surrender of the Right Certificate, with the form of election to purchase on the reverse side thereof duly executed, to the Rights Agent at the office(s) of the Rights Agent designated for such purpose, together with payment of the Purchase Price for each one one-thousandth of a Preferred Share as to which the Rights are exercised, at or prior to the earliest of (i) the Close of Business on December 31, 2018 (the “ Final Expiration Date ”), (ii) the time at which the Rights are redeemed as provided in Section 23 (the “ Redemption Date ”), or (iii) the time at which such Rights are exchanged as provided in Section 24.”
2. Amendment of Exhibits B and C to the Rights Agreement . Exhibit B and Exhibit C to the Rights Agreement are hereby amended and restated in their entirety and are attached to this Amendment as Exhibit A and Exhibit B, respectively.
3. No Further Amendment . Except as specifically supplemented and/or amended, changed or modified in Section 1 and Section 2 of this Amendment, the Rights Agreement shall be unaffected by this Amendment and shall remain in full force and effect.
4. Governing Law . This Amendment shall be deemed to be a contract made under the laws of the State of Delaware and for all purposes shall be governed by and construed in accordance with the laws of such State applicable to contracts to be made and performed entirely within such State.
5. Counterparts . This Amendment may be executed in any number of counterparts and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument. A signature to this Amendment executed and/or transmitted electronically shall have the same authority, effect, and enforceability as an original signature.
6. Descriptive Headings . Descriptive headings of the Sections of this Amendment are inserted for convenience only and shall not control or affect the meaning or construction of any of the provisions of this Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered, all as of the Effective Time.
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HANGER, INC. |
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COMPUTERSHARE INC. , as Rights Agent |
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By: |
/s/ Thomas E. Hartman |
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By: |
/s/ Patrick Hayes |
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Name: |
Thomas E. Hartman |
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Patrick Hayes |
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Title: |
Senior Vice President, Secretary and General Counsel |
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Title: |
Vice President & Manager |
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[Signature Page to Amendment No. 1 to the Rights Agreement]
Exhibit A to Amendment
Exhibit B
Form of Right Certificate
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Certificate No. R- |
Rights |
NOT EXERCISABLE AFTER DECEMBER 31, 2018 OR EARLIER IF REDEMPTION OR EXCHANGE OCCURS. THE RIGHTS ARE SUBJECT TO REDEMPTION AT $0.001 PER RIGHT AND TO EXCHANGE ON THE TERMS SET FORTH IN THE AGREEMENT.
Right Certificate
HANGER, INC.
This certifies that , or registered assigns, is the registered owner of the number of Rights set forth above, each of which entitles the owner thereof, subject to the terms, provisions and conditions of the Agreement, dated as of February 28 , 2016 and as amended as of June 23, 2017 (the “ Agreement ”), between Hanger, Inc., a Delaware corporation (the “ Company ”), and Computershare Inc., a Delaware corporation (the “ Rights Agent ”), to purchase from the Company at any time after the Distribution Date (as such term is defined in the Agreement) and prior to 5:00 P.M., New York, New York time, on December 31, 2018 at the office or offices of the Rights Agent designated for such purpose, or at the office(s) of its successor as Rights Agent, one one-thousandth of a fully paid non-assessable share of Series A Junior Participating Preferred Stock, par value $0.01 per share (the “ Preferred Shares ”), of the Company, at a purchase price of $65.00 per one one-thousandth of a Preferred Share (the “ Purchase Price ”), upon the presentation and surrender of this Right Certificate with the Form of Election to Purchase duly executed. The number of Rights evidenced by this Right Certificate (and the number of one one-thousandths of a Preferred Share which may be purchased upon the exercise hereof) set forth above, and the Purchase Price set forth above, are the number and Purchase Price as of February 26, 2016, based on the Preferred Shares as constituted at such date. As provided in the Agreement, the Purchase Price and the number of one one-thousandths of a Preferred Share, which may be purchased upon the exercise of the Rights evidenced by this Right Certificate, are subject to modification and adjustment upon the happening of certain events.
This Right Certificate is subject to all of the terms, provisions and conditions of the Agreement, which terms, provisions and conditions are hereby incorporated herein by reference and made a part hereof and to which Agreement reference is hereby made for a full description of the rights, limitations of rights, obligations, duties and immunities hereunder of the Rights Agent, the Company and the holders of the Right Certificates. Copies of the Agreement are on file at the principal executive offices of the Company and the offices of the Rights Agent.
This Right Certificate, with or without other Right Certificates, upon surrender at the office or offices of the Rights Agent designated for such purpose, may be exchanged for another Right Certificate or Right Certificates of like tenor and date evidencing Rights entitling
the holder to purchase a like aggregate number of Preferred Shares as the Rights evidenced by the Right Certificate or Right Certificates surrendered shall have entitled such holder to purchase. If this Right Certificate shall be exercised in part, the holder shall be entitled to receive upon surrender hereof another Right Certificate or Right Certificates for the number of whole Rights not exercised.
Subject to the provisions of the Agreement, the Rights evidenced by this Right Certificate in each case at the option of the Company (i) may be redeemed by the Company at a redemption price of $0.001 per Right or (ii) may be exchanged in whole or in part for Preferred Shares, shares of the Company’s Common Stock, par value $0.01 per share, or other securities of the Company.
No fractional Preferred Shares will be issued upon the exercise of any Right or Rights evidenced hereby (other than fractions which are integral multiples of one one-thousandth of a Preferred Share, which may, at the election of the Company, be evidenced by depositary receipts), but, in lieu thereof, a cash payment will be made, as provided in the Agreement.
No holder of this Right Certificate shall be entitled to vote or receive dividends or be deemed for any purpose the holder of the Preferred Shares or of any other securities of the Company which may at any time be issuable on the exercise hereof, nor shall anything contained in the Agreement or herein be construed to confer upon the holder hereof, as such, any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to such stockholder at any meeting thereof, or to give or withhold consent to any corporate action, or to receive notice of meetings or other actions affecting stockholders (except as provided in the Agreement), or to receive dividends or subscription rights, or otherwise, until the Right or Rights evidenced by this Right Certificate shall have been exercised as provided in the Agreement.
This Right Certificate shall not be valid or obligatory for any purpose until it shall have been countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the Company and its corporate seal. Dated as of:
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HANGER, INC. |
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By: |
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Name: |
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Title: |
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COMPUTERSHARE INC. |
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By: |
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Name: |
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Title: |
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Form of Reverse Side of Right Certificate
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Right Certificate.)
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FOR VALUE RECEIVED hereby sells, assigns and transfers unto |
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(Please print name and address of transferee) |
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this Right Certificate, together with all right, title and interest therein, and does hereby irrevocably constitute and appoint Attorney, to transfer the within Right Certificate on the books of the within-named Company, with full power of substitution. |
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Dated: |
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Signature |
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Signature Guaranteed:
Signatures must be guaranteed by a member or participant in the Securities Transfer Agent Medallion Program, the New York Stock Exchange Medallion Signature Program or the Stock Exchange Medallion Program.
The undersigned hereby certifies by checking the appropriate boxes that:
(1) this Right Certificate [ ] is [ ] is not being sold, assigned and transferred by or on behalf of a Person who is or was an Acquiring Person or an Affiliate or Associate of an Acquiring person (as such terms are defined pursuant to the Agreement); and
(2) after due inquiry and to the best knowledge of the undersigned, it [ ] did [ ] did not acquire the Rights evidenced by this Right Certificate from any Person who or which is, was or subsequently became an Acquiring Person or an Affiliate or Associate of an Acquiring Person.
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Signature |
Form of Reverse Side of Right Certificate — continued
FORM OF ELECTION TO PURCHASE
(To be executed if the holder desires to exercise
the Rights represented by the Right Certificate.)
To: HANGER, INC.
The undersigned hereby irrevocably elects to exercise Rights represented by this Right Certificate to purchase the Preferred Shares issuable upon the exercise of such Rights (or such other securities of the Company or of any other person which may be issuable upon the exercise of the Rights) and requests that certificates for such shares (or other securities) be issued in the name of:
Please insert social security
or other identifying number
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(Please print name and address) |
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If such number of Rights shall not be all of the Rights evidenced by this Right Certificate, a new Right Certificate for the balance remaining of such Rights shall be registered in the name of and delivered to:
Please insert social security
or other identifying number
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(Please print name and address) |
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Dated: |
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Signature |
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Signature Guaranteed:
Signatures must be guaranteed by a member or participant in the Securities Transfer Agent Medallion Program, the New York Stock Exchange Medallion Signature Program or the Stock Exchange Medallion Program.
The undersigned hereby certifies by checking the appropriate boxes that:
(1) this Right Certificate [ ] is [ ] is not being sold, assigned and transferred by or on behalf of a Person who is or was an Acquiring Person or an Affiliate or Associate of an Acquiring person (as such terms are defined pursuant to the Agreement); and
(2) after due inquiry and to the best knowledge of the undersigned, it [ ] did [ ] did not acquire the Rights evidenced by this Right Certificate from any Person who or which is, was or subsequently became an Acquiring Person or an Affiliate or Associate of an Acquiring Person.
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Dated: |
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Signature |
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NOTICE
The signature(s) in the Form of Assignment or Form of Election to Purchase, as the case may be, must conform to the name(s) as written upon the face of this Right Certificate in every particular, without alteration or enlargement or any change whatsoever.
In the event the certification set forth above in the Form of Assignment or the Form of Election to Purchase, as the case may be, is not completed, the Company and the Rights Agent will deem the Beneficial Owner of the Rights evidenced by this Right Certificate to be an Acquiring Person or an Affiliate or Associate thereof (as defined in the Agreement) and such Assignment or Election to Purchase will not be honored.
Exhibit B to Amendment
Exhibit C
SUMMARY OF RIGHTS TO PURCHASE
PREFERRED SHARES
On February 28 , 2016, the Board of Directors of Hanger, Inc., a Delaware corporation (the “ Company ”), declared a dividend of one preferred share purchase right (a “ Right ”) for each outstanding share of common stock, par value $0.01 per share (the “ Common Stock” ). The dividend was payable on March 10, 2016 to the stockholders of record on March 10, 2016 (the “ Record Date ”).
For those interested in the specific terms of the Rights Agreement as made between the Company and Computershare Inc. , as the Rights Agent, on February 28, 2016 and as amended on June 23, 2017, we provide the following summary description. Please note, however, that this description is only a summary, and is not complete, and should be read together with the entire Rights Agreement, which was filed with the Securities and Exchange Commission (the “ SEC ”) as an exhibit to a Current Report on Form 8-K dated as of February 28, 2016, and the amendment to the Rights Agreement, which was filed with the SEC as an exhibit to a Current Report on Form 8-K dated as of June 23, 2017. A copy of the Rights Agreement is available free of charge from the Company.
The Rights . Our Board of Directors authorized the issuance of a Right with respect to each outstanding share of Common Stock on the Record Date. The Rights initially trade with, and are inseparable from, the Common Stock. The Rights are evidenced only by certificates that represent shares of Common Stock or, in the case of uncertificated shares of Common Stock, the book-entry account that evidences record ownership of such shares. New Rights accompany any new shares of Common Stock we issue after the Record Date and prior to the earliest of the Distribution Date, the Redemption Date and the expiration date described below.
Exercise Price . Once exercisable, each Right allows its holder to purchase from the Company one one-thousandth of a share of Series A Junior Participating Preferred Stock, par value $0.01 per share (the “ Preferred Shares ”), for $65.00 (the “ Purchase Price ”), subject to adjustment. Prior to exercise, the Right does not give its holder any dividend, voting, or liquidation rights.
Exercisability . The Rights are not exercisable until the close of business on the earlier of (1) the tenth day after the public announcement that a person or group of affiliated or associated persons has acquired or obtained the right or obligation to acquire beneficial ownership of 10% or more of our outstanding Common Stock (the first date of such public announcement, the “Shares Acquisition Date”) or (2) the tenth business day (or such later date as our Board of Directors shall determine) following the commencement of a tender offer or an exchange offer that, if consummated, would result in a person or group becoming an “Acquiring Person.” If a stockholder’s beneficial ownership of our Common Stock as of the time of the public announcement of the Rights Agreement and associated dividend declaration is at or above the applicable threshold (including through entry into certain derivative positions), that stockholder’s
then-existing ownership percentage would be grandfathered, but the Rights would become exercisable if at any time after such announcement, the stockholder increases its ownership percentage.
Certain synthetic interests in securities created by derivative positions — whether or not such interests are considered to be ownership of the underlying Common Stock or are reportable for purposes of Regulation 13D of the Securities Exchange Act — are treated as beneficial ownership of the shares of Common Stock if such positions have an exercise or conversion privilege or a settlement payment or mechanism at a price related to the value of the Common Stock or a value determined in whole or in part with reference to, or derived in whole or in part from, the value of the Common Stock, and that increases in value as the value of the Common Stock increases or that provides to the holder an opportunity, directly or indirectly, to profit or share in any profit derived from any increase in the value of the Common Stock. Swaps dealers unassociated with any control intent or intent to evade the purposes of the Rights Agreement are excepted from such imputed beneficial ownership.
We refer to the date when the Rights become exercisable as the “Distribution Date.” Until that date, Common Stock certificates will also evidence the Rights, and any transfer of shares of Common Stock will constitute a transfer of the Rights. After that date, the Rights will separate from our Common Stock and be evidenced by book entry credits or by Rights certificates that we will mail to all eligible holders of Common Stock. Any Rights held by an Acquiring Person are void and may not be exercised.
Consequences of a Person or Group Becoming an Acquiring Person .
· Flip In . If a person or group becomes an Acquiring Person, all holders of Rights (other than the Acquiring Person and certain related parties, whose rights automatically become null and void) will have the right to receive, for the Purchase Price, shares of our Common Stock with a market value equal to twice the Purchase Price, based on the market price of our Common Stock prior to such acquisition.
· Flip Over . If our Company is acquired in a merger or similar transaction after the Shares Acquisition Date, all holders of Rights (other than the Acquiring Person and certain related parties, whose rights automatically become null and void) will have the right to receive, for the Purchase Price, shares of the acquiring corporation with a market value equal to twice the Purchase Price, based on the market price of the acquiring corporation’s stock, prior to such merger.
Preferred Share Provisions . Each Preferred Share, if issued:
· will not be redeemable;
· will entitle holders to quarterly dividend payments equal to the greater of (A) $1.00 per share or (B) 1,000 times the aggregate per share amount of all cash dividends and 1,000 times the aggregate per share amount (payable in kind) of all noncash dividends or other distributions declared on shares of Common Stock since the date of payment of the prior quarterly dividend payment;
· will entitle holders upon liquidation either to receive $1,000 per share or an amount equal to 1,000 times the payment made on one share of Common Stock, whichever is greater;
· will have the voting power equal to 1,000 shares of Common Stock; and
· if shares of Common Stock are exchanged via merger, consolidation, or a similar transaction, will entitle holders to a per share payment equal to 1,000 times the payment made on one share of Common Stock.
The value of one one-thousandth interest in a Preferred Share should approximate the value of one share of Common Stock.
Expiration . The Rights will expire on December 31, 2018.
Redemption . In general, the Company may redeem the Rights for $0.001 per Right at any time until the earlier of ten days following the Shares Acquisition Date and the expiration date. If the Company redeems any Rights, it must redeem all of the Rights. Once the Rights are redeemed, the only right of the holders of Rights will be to receive the redemption price of $0.001 per Right. The redemption price will be adjusted if we have a stock split or stock dividends of our Common Stock.
Exchange . After a person or group becomes an Acquiring Person, but before an Acquiring Person owns 50% or more of our outstanding Common Stock, the Company may exchange the Rights (other than the Rights held by the Acquiring Person and certain related parties, whose rights automatically become null and void) by exchanging one share of Common Stock, or one one-thousandth of a Preferred Share, (or an equivalent security) for each Right, subject to adjustment.
Anti-Dilution Provisions . The Company may adjust the Purchase Price of the Preferred Shares, the number of Preferred Shares issuable and the number of outstanding Rights to prevent dilution that may occur from a stock dividend, a stock split, a reclassification of the Preferred Shares or Common Stock. No adjustments to the Exercise Price of less than 1% will be made.
Amendments . The terms of the Rights Agreement may be amended by the Company and the Rights Agent without the consent of the holders of the Rights. After the Shares Acquisition Date, however, the Company may not amend the Rights Agreement in a way that materially adversely affects the holders of the Rights (other than the Acquiring Person, any affiliate or associate thereof or any transferee of the Acquiring Person or any affiliate or associate thereof).
Exhibit 10.1
EXECUTION VERSION
AMENDMENT
This AMENDMENT NO. 1 (this “ Amendment ”) dated as of June 2, 2017 is by and among HANGER, INC., a Delaware corporation (“ Borrower ”), the Guarantors identified on the signature pages hereto, the Lenders identified on the signature pages hereto and WILMINGTON TRUST, NATIONAL ASSOCIATION, in its capacity as administrative agent (in such capacity, the “ Agent ”).
RECITALS
WHEREAS, Borrower, the Lenders and the Agent are parties to the Credit Agreement dated as of August 1, 2016 (as amended, modified, supplemented, increased and extended from time to time prior to the date hereof, the “ Credit Agreement ”); and
WHEREAS, Borrower has requested that the Lenders agree, and the Lenders whose signatures appear below have agreed, to amend the Credit Agreement on the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual covenants hereinafter contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Defined Terms . Capitalized terms defined in the Credit Agreement and used herein without other definition shall have the meanings ascribed to such terms in the Credit Agreement.
2. Amendments to Credit Agreement . Effective on the Amendment No. 1 Effective Date (as defined below), the Credit Agreement is amended as follows:
(a) Each of Sections 7.01(a), 7.01(c) and 9.01(c)(ii) of the Credit Agreement is hereby amended by replacing each reference to “August 15, 2017” with “February 15, 2018”.
(b) Section 7.01(b) of the Credit Agreement is hereby amended and restated in its entirety to read as follows:
(b) as soon as available, but not later than 45 days (or, in the case of the fiscal quarters ending September 30, 2016 and March 31, 2017, 60 days) after the end of each of the first three fiscal quarters of each fiscal year, a copy of the unaudited consolidated balance sheet of Borrower and its Subsidiaries as of the end of such fiscal quarter and the related consolidated statements of income and cash flows for the period commencing on the first day and ending on the last day of such fiscal quarter, and certified by a Responsible Officer as fairly presenting, in accordance with GAAP (subject to good faith year-end and audit adjustments and the absence of footnotes), the financial position and the results of operations of Borrower and its Subsidiaries;
3. Amendment Fee . In consideration of the Lenders’ agreements set forth herein, Borrower agrees to pay to the Agent, for the account of each Consenting Lender (defined below), an amendment fee (the “ Amendment Fee ”) in an amount equal to fifty (50) basis points (0.50%) of the outstanding principal amount of the Loan held by such Consenting Lender on the Amendment No. 1 Effective Date (after giving effect to any repayments on or prior to such date). The Amendment Fee shall be fully-earned, payable and non-refundable as of the Amendment No. 1 Effective Date. As used herein, “ Consenting Lender ” means a Lender that executes and delivers to the Lead Arranger a signature page to this Amendment at or prior to 12:00 p.m. New York City time on June 2, 2017 (or, as to any Lender, such
later time or date as may be agreed by the Lead Arranger and Borrower) and that does not revoke or otherwise withdraw such signature page on or prior to the Amendment No. 1 Effective Date.
4. Effectiveness; Conditions Precedent . This Amendment, other than the amendments to the Credit Agreement set forth in Section 2 of this Amendment, shall become effective as of the date when the Agent and the Lead Arranger shall have received counterparts of this Amendment duly executed by Borrower and each of the Required Lenders. The amendments to the Credit Agreement set forth in Section 2 of this Amendment shall become effective as of the date (the “ Amendment No. 1 Effective Date ”) when, and only when, each of the following conditions shall have been satisfied (or, in the case of clause (b) below, will be substantially contemporaneously satisfied on such date):
(a) The Lead Arranger shall have received the Amendment Fee.
(b) An amendment to the Senior Secured Credit Agreement has, or on the Amendment No. 1 Effective Date will, become effective in accordance with the terms thereof which amends the Senior Secured Credit Agreement to provide for:
(i) a minimum Consolidated Interest Coverage Ratio (as defined in the Senior Secured Credit Agreement) of (a) 2.25:1.00 or greater as of the end of the fiscal quarters of Borrower ending on June 30, 2017, September 30, 2017 and December 31, 2017, and (b) 2.00:1.00 or greater as of the end of any fiscal quarter of Borrower ending thereafter;
(ii) a maximum Consolidated Leverage Ratio (as defined in the Senior Secured Credit Agreement) of 5.00:1.00 or less as of the end of the fiscal quarter of Borrower ending on June 30, 2017, and any fiscal quarter of Borrower ending thereafter;
(iii) a deadline for the delivery of the Required Financial Information (as defined in the Fifth Amendment and Waiver, dated as of July 15, 2016, to the Senior Secured Credit Agreement, and including, without limitation, for the avoidance of doubt, the 2016 Audited Financial Information as defined in such Fifth Amendment and Waiver) extended from August 15, 2017 to no earlier than February 15, 2018; and
(iv) an aggregate amount of professional fees and expenses that may be added back pursuant to clause (e) of the definition of “Consolidated EBITDA” in the Senior Secured Credit Agreement of not greater than each of the following specified amounts: (a) $37,000,000 for the period of four consecutive fiscal quarters ending on June 30, 2017, (b) $35,000,000 for the period of four consecutive fiscal quarters ending on September 30, 2017, (c) $31,000,000 for the period of four consecutive fiscal quarters ending on December 31, 2017, (d) $25,000,000 for the period of four consecutive fiscal quarters ending on March 31, 2018 and (e) for any period of four consecutive fiscal quarters ending thereafter, 15.0% of Consolidated EBITDA for such period, calculated without giving the effect to any add back of professional fees and expenses pursuant to this clause.
For the avoidance of doubt, such amendment may also amend the Senior Secured Credit Agreement in any other manner that does not conflict with the foregoing and does not conflict with the Credit Agreement.
(c) Borrower shall have paid all reasonable fees, costs and expenses of the Agent and the Lead Arranger incurred in connection with this Amendment, to the extent invoiced to Borrower at least one Business Day prior to the Amendment No. 1 Effective Date.
(d) The Agent and the Lead Arranger shall have received such other documents, instruments and certificates as the Agent, the Lead Arranger or any Lender may reasonably request.
5. Effect of Amendment . Except as expressly set forth herein, this Amendment shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other provision of the Credit Agreement or any other Loan Document, all of which are ratified and affirmed in all respects and shall continue in full force and effect. As of the Amendment No. 1 Effective Date, each reference in the Credit Agreement to “ this Agreement ,” “ hereunder ,” “ hereof ,” “ herein ,” or words of like import, and each reference in the other Loan Documents to the Credit Agreement (including, without limitation, by means of words like “ thereunder ,” “ thereof ” and words of like import), shall mean and be a reference to the Credit Agreement as amended hereby, and this Amendment and the Credit Agreement shall be read together and construed as a single instrument. This Amendment shall constitute a Loan Document.
6. Representations and Warranties . The Loan Parties hereby represent and warrant to the Agent, Lead Arranger and the Lenders as follows as of the Amendment No. 1 Effective Date:
(a) Each Loan Party has the corporate or other legal entity power and authority to execute, deliver and perform its obligations under this Amendment.
(b) The execution, delivery and performance by each Loan Party of this Amendment have been duly authorized by all necessary corporate or other legal entity action.
(c) This Amendment has been duly executed and delivered by such Loan Party.
(d) This Amendment constitutes a legal, valid and binding obligation of each Loan Party enforceable against such Loan Party in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally or by equity principles relating to enforceability.
(e) The execution, delivery and performance by each Loan Party of this Amendment does not and will not (i) contravene the terms of any of such Person’s Organization Documents, (ii) conflict with or result in any breach or contravention of, or the creation of any Lien under, any document evidencing any material Contractual Obligation to which such Person is a party or any order, injunction, writ or decree of any Governmental Authority to which such Person or its property is subject or (iii) violate any Requirement of Law.
(f) No approval, consent, exemption, authorization or other action by, or notice to, or filing with, any court Governmental Authority or any other Person (except those that have been obtained and remain in effect and disclosure filings that are required to be made with the SEC) is necessary or required to be made or obtained by any Loan Party in connection with the execution, delivery or performance by, or enforcement against, such Loan Party of this Amendment.
(g) After giving effect to this Amendment, (i) the representations and warranties of the Loan Parties contained in the Loan Documents are true and correct in all material respects on and as of the date hereof to the same extent as though made on and as of the date hereof except to the extent such representations and warranties specifically relate to an earlier date, in which case such
representations and warranties shall be true and correct in all material respects as of such earlier date, and (ii) no Default has occurred and is continuing.
I f any representation and warranty set forth in this Section 6 is incorrect on and as of the date hereof then such incorrect representation and warranty shall constitute a new and immediate Event of Default without regard to any otherwise applicable notice, cure or grace period.
7. Entirety . This Amendment and the other Loan Documents embody the entire agreement among the parties hereto and supersede all prior agreements and understandings, oral or written, if any, relating to the subject matter hereof. This Amendment and the other Loan Documents represent the final agreement between the parties and may not be contradicted by evidence of prior, contemporaneous or subsequent oral agreements of the parties.
8. Counterparts; Electronic Delivery . This Amendment may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, and it shall not be necessary in making proof of this Amendment to produce or account for more than one such counterpart. Delivery of an executed counterpart of this Amendment by facsimile or other electronic means shall be effective as an original.
9. Governing Law . This Amendment and the rights and obligations of the parties hereunder shall be governed by, and construed in accordance with, the law of the State of New York.
10. Consent to Jurisdiction; Service of Process; Waiver of Jury Trial . The jurisdiction, service of process and waiver of jury trial provisions set forth in Sections 11.15 and 11.16 of the Credit Agreement are hereby incorporated by reference, mutatis mutandis .
11. Miscellaneous . Section headings in this Amendment are included herein for convenience of reference only and shall not constitute a part of this Amendment for any other purpose. Wherever possible, each provision of this Amendment shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Amendment shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Amendment. Except as otherwise provided in this Amendment, if any provision contained in this Amendment is in conflict with, or inconsistent with, any provision in the Loan Documents, the provision contained in this Amendment shall govern and control.
12. Roles . It is agreed that Merrill, Lynch, Pierce, Fenner & Smith Incorporated shall act as the sole lead arranger in connection with the Amendment (in such capacity, together with any of its designated affiliates in such capacity, the “ Lead Arranger ”).
[Signature Pages Follow]
IN WITNESS WHEREOF , the parties hereto have caused this Amendment to be duly executed as of the date first above written.
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BORROWER: |
HANGER, INC., a Delaware corporation |
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By: |
/s/ Thomas E. Kiraly |
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Name: |
Thomas E. Kiraly |
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Title: |
Executive Vice President and Chief Financial Officer |
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GUARANTORS: |
ACCELERATED CARE PLUS CORP. |
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ACCELERATED CARE PLUS LEASING, INC. |
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ADVANCED PROSTHETICS OF AMERICA, INC. |
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CREATIVE ORTHOTICS & PROSTHETICS, INC. |
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DIBELLO’S DYNAMIC ORTHOTICS AND PROSTHETICS, INC. |
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DOSTEON WA HOLDING, INC. |
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FAITH PROSTHETIC-ORTHOTIC SERVICES, INC. |
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GENESIS MEDICAL GROUP, LLC |
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HANGER PROSTHETICS & ORTHOTICS, INC. |
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HANGER PROSTHETICS & ORTHOTICS EAST, INC. |
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HANGER PROSTHETICS & ORTHOTICS WEST, INC. |
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INNOVATIVE NEUROTRONICS, INC. |
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LINKIA, LLC |
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MK PROSTHETIC & ORTHOTIC SERVICES, INC. |
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NASCOTT, INC. |
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ORTHO-MEDICAL PRODUCTS, INC. |
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ORTHOTIC & PROSTHETIC TECHNOLOGIES, INC. |
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SCOPE ORTHOTICS & PROSTHETICS, INC. |
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SOUTHERN PROSTHETIC SUPPLY, INC. |
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THE BRACE SHOP PROSTHETIC ORTHOTIC CENTERS, INC. |
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By: |
/s/ Thomas E. Kiraly |
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Name: |
Thomas E. Kiraly |
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Title: |
Executive Vice President |
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AGENT: |
WILMINGTON TRUST, NATIONAL ASSOCIATION |
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By: |
/s/ Cora Holland-Koller |
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Name: |
Cora Holland-Koller |
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Title: |
Banking Officer |
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LENDERS: |
APOLLO THUNDER PARTNERS, L.P. |
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By: Apollo Thunder Management, LLC, |
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its Investment Manager |
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By: |
/s/ Joseph D. Glatt |
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Name: |
Joseph D. Glatt |
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Title: |
Vice President |
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APOLLO UNION STREET PARTNERS, L.P. |
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By: Apollo Union Street Management, LLC, |
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its Investment Manager |
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By: |
/s/ Joseph D. Glatt |
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Name: |
Joseph D. Glatt |
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Title: |
Vice President |
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APOLLO TACTICAL VALUE SPN INVESTMENTS, L.P. |
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By: Apollo Tactical Value SPN Management, LLC,
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By: |
/s/ Joseph D. Glatt |
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Name: |
Joseph D. Glatt |
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Title: |
Vice President |
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APOLLO ZEUS STRATEGIC INVESTMENTS, L.P. |
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By: Apollo Zeus Strategic Management, LLC, |
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its Investment Manager |
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By: |
/s/ Joseph D. Glatt |
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Name: |
Joseph D. Glatt |
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Title: |
Vice President |
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AESI (HOLDINGS) II, L.P. |
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By: Apollo European Strategic Management, L.P.,
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By: Apollo European Strategic Management GP, LLC,
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By: |
/s/ Joseph D. Glatt |
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Name: |
Joseph D. Glatt |
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Title: |
Vice President |
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APOLLO CENTRE STREET PARTNERSHIP, L.P. |
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By: Apollo Centre Street Management, LLC, |
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its Investment Manager |
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By: |
/s/ Joseph D. Glatt |
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Name: |
Joseph D. Glatt |
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Title: |
Vice President |
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APOLLO KINGS ALLEY CREDIT FUND, L.P. |
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By: Apollo Kings Alley Credit Fund Management, LLC,
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By: |
/s/ Joseph D. Glatt |
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Name: |
Joseph D. Glatt |
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Title: |
Vice President |
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APOLLO MOULTRIE CREDIT FUND, L.P. |
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By: Apollo Moultrie Credit Fund Management, LLC,
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By: |
/s/ Joseph D. Glatt |
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Name: |
Joseph D. Glatt |
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Title: |
Vice President |
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APOLLO CREDIT OPPORTUNITY TRADING FUND III |
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By: Apollo Credit Opportunity Fund (Offshore) III L.P.,
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By: Apollo Credit Opportunity Management III LLC,
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By: |
/s/ Joseph D. Glatt |
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Name: |
Joseph D. Glatt |
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Title: |
Vice President |
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By: Apollo Moultrie Credit Fund Management LLC, |
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its General Partner |
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By: Apollo Credit Opportunity Management III LLC,
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By: |
/s/ Joseph D. Glatt |
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Name: |
Joseph D. Glatt |
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Title: |
Vice President |
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APOLLO HERCULES PARTNERS, L.P. |
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By: Apollo Hercules Management, LLC, |
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its Investment Manager |
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By: |
/s/ Joseph D. Glatt |
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Name: |
Joseph D. Glatt |
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Title: |
Vice President |
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The undersigned Lender hereby irrevocably and unconditionally consents to this Amendment.
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Benefit Street Partners SMA C LP , as a lender |
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By: Benefit Street Partners L.L.C., its investment advisor |
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By: |
/s/ Nina Baryski |
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Name: Nina Baryski |
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Title: Director |
[Signature Page to Hanger Agreement]
The undersigned Lender hereby irrevocably and unconditionally consents to this Amendment.
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Providence Debt Fund III LP , as a lender |
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By: Providence Debt Fund III GP L.P., its general partner |
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By: Providence Debt Fund III Ultimate GP Ltd., its general partner, |
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By: |
/s/ Nina Baryski |
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Name: Nina Baryski |
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Title: Authorized Signer |
[Signature Page to Hanger Agreement]
The undersigned Lender hereby irrevocably and unconditionally consents to this Amendment.
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Providence Debt Fund III Master (Non-US) LP , as a lender |
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By: Providence Debt Fund III GP L.P., its general partner |
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By: Providence Debt Fund III Ultimate GP Ltd., its general partner |
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By: |
/s/ Nina Baryski |
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Name: Nina Baryski |
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Title: Authorized Signer |
[Signature Page to Hanger Agreement]
The undersigned Lender hereby irrevocably and unconditionally consents to this Amendment.
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Benefit Street Partners SMA LM LP , as a lender |
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By: Benefit Street Partners SMA LM GP L.P, its general partner |
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By: Benefit Street Partners SMA LM Ultimate GP LLC its general partner, |
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By: |
/s/ Nina Baryski |
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Name: Nina Baryski |
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Title: Authorized Signer |
[Signature Page to Hanger Agreement]
The undersigned Lender hereby irrevocably and unconditionally consents to this Amendment.
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Delta Master Trust,
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By: Guggenheim Partners Investment Management, LLC as Investment Manager |
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By: |
/s/ Kaitlin Trinh |
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Name: Kaitlin Trinh |
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Title: Authorized Person |
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If a second signature is necessary: |
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By: |
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Name: |
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Title: |
[Signature Page to Hanger Agreement]
The undersigned Lender hereby irrevocably and unconditionally consents to this Amendment.
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Guggenheim Credit Allocation Fund, |
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as a Lender |
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By: Guggenheim Partners Investment Management, LLC, as Sub-Adviser |
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By: |
/s/ Kaitlin Trinh |
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Name: Kaitlin Trinh |
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Title: Authorized Person |
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If a second signature is necessary: |
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By: |
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Name: |
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Title: |
[Signature Page to Hanger Agreement]
The undersigned Lender hereby irrevocably and unconditionally consents to this Amendment.
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Guggenheim Funds Trust — Guggenheim High Yield Fund, |
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as a Lender |
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By: Security Investors, LLC as Investment Adviser |
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By: |
/s/ Kaitlin Trinh |
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Name: Kaitlin Trinh |
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Title: Authorized Person |
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If a second signature is necessary: |
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By: |
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Name: |
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Title: |
[Signature Page to Hanger Agreement]
The undersigned Lender hereby irrevocably and unconditionally consents to this Amendment.
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Guggenheim Strategic Opportunities Fund, |
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as a Lender |
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By: Guggenheim Partners Investment Management, LLC |
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By: |
/s/ Kaitlin Trinh |
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Name: Kaitlin Trinh |
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Title: Authorized Person |
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If a second signature is necessary: |
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By: |
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Name: |
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Title: |
[Signature Page to Hanger Agreement]
The undersigned Lender hereby irrevocably and unconditionally consents to this Amendment.
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Hamilton Finance, LLC, |
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as a Lender |
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By: Guggenheim Partners Investment Management, LLC as Sub-Adviser |
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By: |
/s/ Kaitlin Trinh |
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Name: Kaitlin Trinh |
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Title: Authorized Person |
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If a second signature is necessary: |
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By: |
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Name: |
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Title: |
[Signature Page to Hanger Agreement]
The undersigned Lender hereby irrevocably and unconditionally consents to this Amendment.
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Maverick Enterprises, Inc, |
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as a Lender |
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By: Guggenheim Partners Investment Management, LLC as Investment Manager |
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By: |
/s/ Kaitlin Trinh |
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Name: Kaitlin Trinh |
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Title: Authorized Person |
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If a second signature is necessary: |
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By: |
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Name: |
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Title: |
[Signature Page to Hanger Agreement]
The undersigned Lender hereby irrevocably and unconditionally consents to this Amendment.
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NZC Guggenheim Master Fund Limited, |
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as a Lender |
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By: Guggenheim Partners Investment Management, LLC as Manager |
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By: |
/s/ Kaitlin Trinh |
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Name: Kaitlin Trinh |
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Title: Authorized Person |
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If a second signature is necessary: |
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By: |
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Name: |
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Title: |
[Signature Page to Hanger Agreement]
The undersigned Lender hereby irrevocably and unconditionally consents to this Amendment.
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Public Employees Retirement Association of New Mexico, |
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as a Lender |
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By: Guggenheim Partners Investment Management, LLC as Contractor |
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By: |
/s/ Kaitlin Trinh |
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Name: Kaitlin Trinh |
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Title: Authorized Person |
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If a second signature is necessary: |
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By: |
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Name: |
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Title: |
[Signature Page to Hanger Agreement]
The undersigned Lender hereby irrevocably and unconditionally consents to this Amendment.
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MERCER QIF FUND PLC — MERCER INVESTMENT FUND 1, as a Lender |
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By: |
DDJ Capital Management, LLC, in its capacity as Sub-Investment Manager of, and on behalf of, Mercer Investment Fund 1, a sub-fund of Mercer QIF Fund plc |
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By: |
/s/ David J. Breazzano |
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Name: David J. Breazzano |
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Title: President |
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STATE-BOSTON RETIREMENT SYSTEM, as a Lender |
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By: |
DDJ Capital Management, LLC in its capacity as investment manager |
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By: |
/s/ David J. Breazzano |
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Name: David J. Breazzano |
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Title: President |
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CATERPILLAR INC. MASTER RETIREMENT TRUST, as a Lender |
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By: |
DDJ Capital Management, LLC, on behalf of Caterpillar Inc. Master Retirement Trust, in its capacity as investment manager |
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By: |
/s/ David J. Breazzano |
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Name: David J. Breazzano |
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Title: President |
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CATERPILLAR INVESTMENT TRUST, as a Lender |
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By: |
DDJ Capital Management, LLC, on behalf of Caterpillar Investment Trust, in its capacity as investment manager |
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By: |
/s/ David J. Breazzano |
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Name: David J. Breazzano |
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Title: President |
[Signature Page to Hanger Agreement]
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DISTRICT OF COLUMBIA RETIREMENT BOARD, as a Lender |
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By: |
DDJ Capital Management, LLC, in its capacity as Investment Manger |
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By: |
/s/ David J. Breazzano |
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Name: David J. Breazzano |
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Title: President |
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STICHTING PENSIOENFONDS HOOGOVENS, as a Lender |
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By: |
DDJ Capital Management, LLC, on behalf of Stichting Pensioenfonds Hoogovens, in its capacity as Manager |
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By: |
/s/ David J. Breazzano |
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Name: David J. Breazzano |
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Title: President |
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HOUSTON MUNICIPAL EMPLOYEES PENSION SYSTEM, as a Lender |
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By: |
DDJ Capital Management, LLC, in its capacity as Manager |
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By: |
/s/ David J. Breazzano |
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Name: David J. Breazzano |
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Title: President |
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DDJ CAPITAL MANAGEMENT GROUP TRUST — HIGH YIELD INVESTMENT FUND, as a Lender |
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By: |
DDJ Capital Management, LLC, in its capacity as Investment Manager |
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By: |
/s/ David J. Breazzano |
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Name: David J. Breazzano |
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Title: President |
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STICHTING BEWAARDER SYNTRUS ACHMEA GLOBAL HIGH YIELD POOL, as a Lender |
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By: |
Achmea Investment Management, as asset manager |
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By: |
DDJ Capital Management, LLC, as subadvisor |
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By: |
/s/ David J. Breazzano |
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Name: David J. Breazzano |
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Title: President |
[Signature Page to Hanger Agreement]
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J.C. PENNEY CORPORATION, INC. PENSION PLAN TRUST, as a Lender |
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By: |
DDJ Capital Management, LLC, on behalf of J.C. Penney Corporation, Inc. Pension Plan Trust, in its capacity as investment manager |
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By: |
/s/ David J. Breazzano |
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Name: David J. Breazzano |
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Title: President |
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NATIONAL RAILROAD RETIREMENT INVESTMENT TRUST, as a Lender |
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By: |
DDJ Capital Management, LLC, in its capacity as Investment Manager |
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By: |
/s/ David J. Breazzano |
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Name: David J. Breazzano |
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Title: President |
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NORTHERN MULTI-MANAGER HIGH YIELD OPPORTUNITY FUND, as a Lender |
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By: |
DDJ Capital Management, LLC, in its capacity as Sub-Adviser |
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By: |
/s/ David J. Breazzano |
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Name: David J. Breazzano |
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Title: President |
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PRINCIPAL FUNDS, INC. — GLOBAL DIVERSIFIED INCOME FUND, as a Lender |
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By: |
DDJ Capital Management, LLC, in its capacity as Sub-Advisor |
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By: |
/s/ David J. Breazzano |
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Name: David J. Breazzano |
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Title: President |
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SEARS HOLDINGS PENSION TRUST, as a Lender |
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By: |
DDJ Capital Management, LLC, in its capacity as Investment Manager |
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By: |
/s/ David J. Breazzano |
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Name: David J. Breazzano |
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Title: President |
[Signature Page to Hanger Agreement]
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THE 1199SEIU HEALTH CARE EMPLOYEES PENSION FUND, as a Lender |
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By: |
DDJ Capital Management, LLC, in its capacity as Investment Manager |
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By: |
/s/ David J. Breazzano |
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Name: David J. Breazzano |
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Title: President |
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DDJ STRATEGIC INCOME PLUS FUND, L.P., as a Lender |
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By: |
DDJ/GP Strategic Income Plus, LLC, its General Partner |
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By: |
DDJ Capital Management, LLC, Manager |
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By: |
/s/ David J. Breazzano |
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Name: David J. Breazzano |
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Title: President |
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STICHTING PENSIOENFONDS VOOR FYSIOTHERAPEUTEN, as a Lender |
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By: |
DDJ Capital Management, LLC, in its capacity as investment manager |
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By: |
/s/ David J. Breazzano |
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Name: David J. Breazzano |
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Title: President |
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DDJ/TAF STRATEGIC INCOME FUND, L.P., as a Lender |
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By: |
DDJ/GP TAF Strategic Income, LLC, its General Partner |
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By: |
DDJ Capital Management, LLC, Manager |
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By: |
/s/ David J. Breazzano |
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Name: David J. Breazzano |
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Title: President |
[Signature Page to Hanger Agreement]
The undersigned Lender hereby irrevocably and unconditionally consents to this Amendment.
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UAW RETIREE MEDICAL BENEFITS TRUST, as a Lender |
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By: |
State Street Bank and Trust Company, solely in its capacity as Trustee for UAW Retiree Medical Benefits Trust, as directed by DDJ Capital Management, LLC, and not in its individual capacity |
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By: |
/s/ Janet Fennessy |
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Name: Janet Fennessy |
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Title: Vice President |
[Signature Page to Hanger Agreement]
The undersigned Lender hereby irrevocably and unconditionally consents to this Amendment.
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GN3 SIP Limited,
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By: |
GoldenTree Asset Management, LP |
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By: |
/s/ Karen Weber |
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Name: Karen Weber |
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Title: Authorized Signatory |
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If a second signature is necessary: |
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By: |
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Name: |
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Title: |
[Signature Page to Hanger Agreement]
The undersigned Lender hereby irrevocably and unconditionally consents to this Amendment.
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GoldenTree 2004 Trust, |
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as a Lender |
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By: |
GoldenTree Asset Management, LP |
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By: |
/s/ Karen Weber |
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Name: Karen Weber |
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Title: Authorized Signatory |
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If a second signature is necessary: |
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By: |
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Name: |
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Title: |
[Signature Page to Hanger Agreement]
The undersigned Lender hereby irrevocably and unconditionally consents to this Amendment.
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GoldenTree Insurance Fund Series Interests of the SALI Multi-Series Fund, L.P., |
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as a Lender |
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By: |
GoldenTree Asset Management, LP |
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By: |
/s/ Karen Weber |
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Name: Karen Weber |
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Title: Authorized Signatory |
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If a second signature is necessary: |
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By: |
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Name: |
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Title: |
[Signature Page to Hanger Agreement]
The undersigned Lender hereby irrevocably and unconditionally consents to this Amendment.
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GT NM, L.P., |
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as a Lender |
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By: |
GoldenTree Asset Management, LP |
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By: |
/s/ Karen Weber |
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Name: Karen Weber |
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Title: Authorized Signatory |
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If a second signature is necessary: |
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By: |
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Name: |
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Title: |
[Signature Page to Hanger Agreement]
The undersigned Lender hereby irrevocably and unconditionally consents to this Amendment.
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High Yield and Bank Loan Series Trust, |
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as a Lender |
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By: |
GoldenTree Asset Management, LP |
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By: |
/s/ Karen Weber |
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Name: Karen Weber |
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Title: Authorized Signatory |
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If a second signature is necessary: |
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By: |
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Name: |
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Title: |
[Signature Page to Hanger Agreement]
The undersigned Lender hereby irrevocably and unconditionally consents to this Amendment.
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Louisiana State Employees’ Retirement System, |
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as a Lender |
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By: |
GoldenTree Asset Management, LP |
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By: |
/s/ Karen Weber |
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Name: Karen Weber |
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Title: Authorized Signatory |
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If a second signature is necessary: |
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By: |
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Name: |
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Title: |
[Signature Page to Hanger Agreement]
The undersigned Lender hereby irrevocably and unconditionally consents to this Amendment.
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San Bernardino County Employees’ Retirement Association, |
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as a Lender |
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By: |
GoldenTree Asset Management, LP |
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By: |
/s/ Karen Weber |
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Name: Karen Weber |
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Title: Authorized Signatory |
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If a second signature is necessary: |
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By: |
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Name: |
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Title: |
[Signature Page to Hanger Agreement]
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LENDERS: |
Stonehill Master Fund Ltd. |
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By: Stonehill Capital Management LLC |
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||
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By: |
/s/ Paul Malek |
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Name: |
Paul Malek |
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Title: |
General Counsel |
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LENDERS: |
Stonehill Institutional Partners, L.P. |
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By: Stonehill Capital Management LLC, its advisor |
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By: |
/s/ Paul Malek |
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Name: |
Paul Malek |
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Title: |
General Counsel |
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Exhibit 10.2
EXECUTION VERSION
SIXTH AMENDMENT
This SIXTH AMENDMENT (this “ Amendment ”) dated as of June 22, 2017 is by and among HANGER, INC., a Delaware corporation (“ Borrower ”), the Guarantors identified on the signature pages hereto, the Lenders identified on the signature pages hereto and BANK OF AMERICA, N.A., in its capacity as Agent (in such capacity, the “ Agent ”).
RECITALS
WHEREAS, the Borrower, the Lenders and the Agent are parties to the Credit Agreement dated as of June 17, 2013, as amended by the First Amendment and Waiver dated as of June 19, 2015, the Second Amendment and Waiver dated as of September 11, 2015, the Third Amendment and Waiver dated as of November 13, 2015, the Fourth Amendment and Waiver dated as of February 10, 2016 and the Fifth Amendment and Waiver dated as of July 15, 2016 (as further amended, modified, supplemented, increased and extended from time to time, the “ Credit Agreement ”);
WHEREAS, the Borrower has requested that the Agent and Lenders (a) extend the date by which it must deliver to the Agent the Required Financial Information (as defined in the Fifth Amendment and Waiver) from August 15, 2017 to February 15, 2018 and (b) amend the Credit Agreement as set forth herein.
WHEREAS, the Agent and the Lenders have agreed to the requested extension and amendments on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual covenants hereinafter contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Defined Terms . Capitalized terms defined in the Credit Agreement and used herein without other definition shall have the meanings ascribed to such terms in the Credit Agreement.
2. Estoppel, Acknowledgement and Reaffirmation . Each of the Loan Parties acknowledges and confirms that as of June 15, 2017: (a) the aggregate outstanding principal amount of the Term A Loans is $174,375,000.00 and (b) the Total Revolving Usage is $24,050,000.00, each of which amounts constitutes a valid and subsisting obligation of the Loan Parties to the Lenders that is not subject to any credits, offsets, defenses, claims, counterclaims or adjustments of any kind (it being understood that the undrawn portion of the Stated Amount of outstanding Letters of Credit included in the Total Revolving Usage, if any, constitutes a contingent obligation for so long as the Loan Parties are not required to cash collateralize such obligation in accordance with the Credit Agreement). Each of the Loan Parties hereby acknowledges its obligations under the respective Loan Documents to which it is a party, reaffirms that each of the Liens created and granted in or pursuant to the Collateral Documents is valid and subsisting and agrees that this Amendment shall in no manner impair or otherwise adversely affect such obligations or Liens, except as explicitly set forth herein.
3. Required Financial Information Deliverable Extension . Notwithstanding anything to the contrary in the Fifth Amendment and Waiver, the Borrower shall deliver the Required Financial Information (as defined in the Fifth Amendment and Waiver) to the Agent for distribution to the Lenders promptly as soon as such information is filed with the SEC, but in no event later than February 15, 2018. For the avoidance of doubt, the paragraph addressing delivery of financial statements and related materials immediately following Section 7.02(e) of the Credit Agreement shall apply to the foregoing delivery requirement.
4. Amendments to Credit Agreement . The Credit Agreement is amended as follows:
(a) The following new definitions are hereby added to Section 1.01 of the Credit Agreement in the appropriate alphabetical order:
“ Sixth Amendment ” means the Sixth Amendment to this Agreement dated as of June 22, 2017.
“ Sixth Amendment Effective Date ” means June 22, 2017.
(b) Clause (e) of the definition of “Consolidated EBITDA” in Section 1.01 of the Credit Agreement is hereby amended and restated in its entirety to read as follows:
(e) any extraordinary, unusual or non-recurring expenses or losses (including, whether or not otherwise includable as a separate item in the statement of such Consolidated Net Income for such period, losses on sales of assets outside of the ordinary course of business and loss on early retirement of debt); provided that (i) the aggregate amount of professional fees and expenses (excluding the aggregate amount of professional fees and expenses reimbursed by the Loan Parties in accordance with the Second Amendment and Waiver, which are not subject to the limitation set forth in this proviso) that may be added back pursuant to this clause (e) for any period of four consecutive fiscal quarters shall not exceed, for the period of four consecutive fiscal quarters ending on or prior to (1) March 31, 2016, $30,000,000; (2) June 30, 2016, $36,000,000; (3) September 30, 2016, $35,000,000; (4) December 31, 2016, $31,000,000; (5) March 31, 2017, $25,000,000; (6) June 30, 2017, $37,000,000; (7) September 30, 2017, $35,000,000; (8) December 31, 2017, $31,000,000; and (9) March 31, 2018, $25,000,000, and (ii) this clause (e) may not be used to add back the write-down of current assets; provided further that, with respect to the applicable four consecutive fiscal quarter period, the amounts set forth in (6), (7), (8), and (9) above shall be reduced by an amount, if any, equal to the amount by which the Prior Period Adjustment Amount (as defined in Section 7.02(f) ) exceeds $815,000.
(c) Section 7.02 of the Credit Agreement is hereby amended (i) by deleting the word “and” at the end of clause (d) of such section, (ii) replacing the period at the end of clause (e) of such section with “; and” and (iii) adding the following new clause (f) to such section:
(f) concurrently with the delivery of the financial statements referred to in Sections 7.01(a) and (b) , a certificate executed by a Responsible Officer stating the amount of professional fees and expenses incurred by the Loan Parties from and after March 31, 2017 that are to be allocated to any fiscal quarter ended on or prior to March 31, 2017 as adjustments in accordance with GAAP of such professional fee and expense amounts previously included within the underlying financial statements provided to the Lenders with the Borrower’s Compliance Certificate, relating to the period ended March 31, 2017, dated as of May 12, 2017 (such amount, the “ Prior Period Adjustment Amount ”).
(d) Section 8.09 of the Credit Agreement is hereby amended and restated in its entirety to read as follows:
8.09 Consolidated Leverage Ratio .
The Borrower shall not permit the Consolidated Leverage Ratio to exceed (a) 5.00:1.00 as of the end of the fiscal quarter of the Borrower ending on June 30, 2016; (b) 5.75:1.00 as of the end of the fiscal quarter of the Borrower ending on September 30, 2016; and (c) 5.00:1.00 as of the end of any fiscal quarter of the Borrower ending thereafter.
(e) Section 8.10 of the Credit Agreement is hereby amended and restated in its entirety to read as follows:
8.10 Consolidated Interest Coverage Ratio .
The Borrower shall not permit the Consolidated Interest Coverage Ratio to be less than (a) 3.50:1.00 as of the end of the fiscal quarter of the Borrower ending on June 30, 2016; (b) 2.25:1.00 as of the end of any fiscal quarter of the Borrower ending on September 30, 2016, December 31, 2016, March 31, 2017, June 30, 2017, September 30, 2017 and December 31, 2017; and (c) 2.00:1.00 as of the end of any fiscal quarter of the Borrower ending thereafter.
(f) Section 9.01(c) of the Credit Agreement is hereby amended and restated in its entirety to read as follows:
(c) Specific Defaults . The Borrower fails to perform or observe any term, covenant or agreement contained in Section 7.03(a) , 7.04 (with respect to the Borrower), 7.11 , Article VIII , the First Amendment and Waiver (giving effect to the subsequent amendments and waivers), the Second Amendment and Waiver (giving effect to the subsequent amendments and waivers), the Third Amendment and Waiver (giving effect to the subsequent amendments and waivers), the Fourth Amendment and Waiver (giving effect to the subsequent amendments and waivers), the Fifth Amendment and Waiver or the Sixth Amendment; provided , a Default under Section 8.17 shall not become an Event of Default unless such Default remains unremedied for three (3) Business Days after the occurrence of such Default; or
5. Amendment Fee . In consideration of the Lenders’ agreements set forth herein, the Borrower agrees to pay to the Agent, for the account of each Consenting Lender (defined below), an amendment fee (the “ Sixth Amendment Fee ”) in an amount equal to fifty (50) basis points (0.50%) of the outstanding principal amount of the Term A Loan held by such Consenting Lender plus the amount of such Lender’s Revolving Commitments. The Sixth Amendment Fee shall be fully-earned, payable and non-refundable as of the Sixth Amendment Effective Date (defined below). As used herein, “ Consenting Lender ” means a Lender that executes and delivers to the Agent a signature page to this Amendment on or prior to 4:00 p.m. Central Time on June 22, 2017 (or, as to any Lender, such later time or date as may be agreed by the Agent and the Borrower) and that does not revoke or otherwise withdraw such signature page prior to the effectiveness of this Amendment on the Sixth Amendment Effective Date.
6. Effectiveness; Conditions Precedent . This Amendment shall become effective as of the date hereof (the “ Sixth Amendment Effective Date ”) when, and only when, each of the following conditions shall have been satisfied or waived (or, in the case of clause (d) below, will be substantially contemporaneously satisfied on such date), in the sole discretion of the Agent and the Required Lenders:
(a) The Agent shall have received counterparts of this Amendment duly executed by each of the Loan Parties and each of the Required Lenders;
(b) The Agent shall have received the Sixth Amendment Fee;
(c) The Loan Parties shall have paid all reasonable fees, costs and expenses of the Agent (including, without limitation, fees, costs and expenses of counsel and of the Agent Financial Advisor) incurred in connection with this Amendment, to the extent invoiced to the Borrower at least one Business Day prior to the Sixth Amendment Effective Date; and
(d) The Agent shall have received such other documents, instruments and certificates as the Agent or any Lender may reasonably request.
7. Incorporation of Amendment . Except as specifically modified herein, the terms of the Loan Documents shall remain in full force and effect. The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of the Agent under the Loan Documents, or constitute a waiver or amendment of any provision of the Loan Documents, except as expressly set forth herein. This Amendment shall constitute a Loan Document.
8. Representations and Warranties . The Loan Parties hereby represent and warrant to the Agent and the Lenders as follows as of the Sixth Amendment Effective Date:
(a) Each Loan Party has the corporate or other legal entity power and authority to execute, deliver and perform its obligations under this Amendment.
(b) The execution, delivery and performance by each Loan Party of this Amendment have been duly authorized by all necessary corporate or other legal entity action.
(c) This Amendment has been duly executed and delivered by such Loan Party.
(d) This Amendment constitutes a legal, valid and binding obligation of each Loan Party enforceable against such Loan Party in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally or by equity principles relating to enforceability.
(e) The execution, delivery and performance by each Loan Party of this Amendment does not and will not (i) contravene the terms of any of such Person’s Organization Documents, (ii) conflict with or result in any breach or contravention of, or the creation of any Lien under, any document evidencing any material Contractual Obligation to which such Person is a party or any order, injunction, writ or decree of any Governmental Authority to which such Person or its property is subject or (iii) violate any Requirement of Law.
(f) No approval, consent, exemption, authorization or other action by, or notice to, or filing with, any court Governmental Authority or any other Person (except those that have been obtained and remain in effect and disclosure filings that are required to be made with the SEC) is necessary or required to be made or obtained by any Loan Party in connection with the execution, delivery or performance by, or enforcement against, such Loan Party of this Amendment.
(g) After giving effect to this Amendment, (i) the representations and warranties of the Loan Parties contained in the Loan Documents are true and correct in all material respects on and as of the date hereof to the same extent as though made on and as of the date hereof except to the
extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, and (ii) no Default has occurred and is continuing.
(h) The Liens held by the Agent in the Collateral continue to be valid, binding and enforceable perfected Liens in accordance with the Collateral Documents that secure the Obligations subject only to the Permitted Liens.
If any representation and warranty set forth in this Section 8 is incorrect on and as of the date hereof then such incorrect representation and warranty shall constitute a new and immediate Event of Default without regard to any otherwise applicable notice, cure or grace period.
9. Release . In consideration of the Agent’s and the Required Lenders’ willingness to enter into this Amendment, each of the Loan Parties hereby releases and forever discharges the Agent, the Lenders and each of the Agent’s and the Lenders’ predecessors, successors, assigns, officers, managers, directors, employees, agents, attorneys, representatives, and affiliates (hereinafter all of the above collectively referred to as the “ Lender Group ”), from any and all claims, counterclaims, demands, damages, debts, suits, liabilities, actions and causes of action of any nature whatsoever, in each case to the extent arising in connection with the Loan Documents or any of the negotiations, activities, events or circumstances arising out of or related to the Loan Documents through the date of this Amendment, whether arising at law or in equity, whether known or unknown, whether liability be direct or indirect, liquidated or unliquidated, whether absolute or contingent, foreseen or unforeseen, and whether or not heretofore asserted, which each of the Loan Parties may have or claim to have against any member of the Lender Group.
10. No Third Party Beneficiaries . This Amendment and the rights and benefits hereof shall inure to the benefit of each of the parties hereto and their respective successors and assigns. No other Person shall have or be entitled to assert rights or benefits under this Amendment.
11. Entirety . This Amendment and the other Loan Documents embody the entire agreement among the parties hereto and supersede all prior agreements and understandings, oral or written, if any, relating to the subject matter hereof. This Amendment and the other Loan Documents represent the final agreement between the parties and may not be contradicted by evidence of prior, contemporaneous or subsequent oral agreements of the parties.
12. Counterparts; Electronic Delivery . This Amendment may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, and it shall not be necessary in making proof of this Amendment to produce or account for more than one such counterpart. Delivery of an executed counterpart of this Amendment by facsimile or other electronic means shall be effective as an original.
13. No Actions, Claim . As of the date hereof, each Loan Party hereby acknowledges and confirms that it has no actual knowledge of any actions, causes of action, claims, demands, damages or liabilities of whatever kind or nature, in law or in equity, against any of the Lender Group arising from any action by such Persons or failure of such Persons to act under the Loan Documents on or prior to the date hereof.
14. Governing Law . This Amendment and the rights and obligations of the parties hereunder shall be governed by, and construed in accordance with, the law of the State of New York.
15. Consent to Jurisdiction; Service of Process; Waiver of Jury Trial . The jurisdiction, service of process and waiver of jury trial provisions set forth in Sections 11.15 and 11.16 of the Credit Agreement are hereby incorporated by reference, mutatis mutandis .
16. Further Assurances . Each of the Loan Parties agrees to execute and deliver, or to cause to be executed and delivered, all such instruments that are consistent with the terms of this Amendment as may reasonably be requested by the Agent to effectuate the intent and purposes, and to carry out the terms, of this Amendment.
17. Miscellaneous .
(a) Section headings in this Amendment are included herein for convenience of reference only and shall not constitute a part of this Amendment for any other purpose.
(b) Wherever possible, each provision of this Amendment shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Amendment shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Amendment.
(c) Except as otherwise provided in this Amendment, if any provision contained in this Amendment is in conflict with, or inconsistent with, any provision in the Loan Documents, the provision contained in this Amendment shall govern and control.
[Signature Pages Follow]
IN WITNESS WHEREOF , the parties hereto have caused this Amendment to be duly executed as of the date first above written.
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BORROWER: |
HANGER, INC., a Delaware corporation |
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By: |
/s/ Paul A. Severt |
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Name: |
Paul A. Severt |
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Title: |
Vice President, Treasurer and Assistant Secretary |
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GUARANTORS: |
ACCELERATED CARE PLUS CORP., a Delaware corporation |
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ACCELERATED CARE PLUS LEASING, INC., a Delaware corporation |
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ADVANCED PROSTHETICS OF AMERICA, INC., a Florida corporation |
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CREATIVE ORTHOTICS & PROSTHETICS, INC., a New York corporation |
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DIBELLO’S DYNAMIC ORTHOTICS AND PROSTHETICS, INC., |
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a Texas corporation |
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DOSTEON WA HOLDING, INC., a Washington corporation |
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FAITH PROSTHETIC-ORTHOTIC SERVICES, INC., |
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a North Carolina corporation |
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GENESIS MEDICAL GROUP, LLC, an Oregon limited liability company |
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HANGER PROSTHETICS & ORTHOTICS, INC., a Delaware corporation |
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HANGER PROSTHETICS & ORTHOTICS EAST, INC., |
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a Delaware corporation |
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HANGER PROSTHETICS & ORTHOTICS WEST, INC., |
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a California corporation |
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INNOVATIVE NEUROTRONICS, INC., a Delaware corporation |
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LINKIA, LLC, a Maryland limited liability company |
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MK PROSTHETIC & ORHTOTIC SERVICES, INC., a Texas corporation |
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NASCOTT, INC., a Delaware corporation |
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ORTHO-MEDICAL PRODUCTS, INC., a New York corporation |
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ORTHOTIC & PROSTHETIC TECHNOLOGIES, INC., a Texas corporation |
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SCOPE ORTHOTICS & PROSTHETICS, INC., a California corporation |
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SOUTHERN PROSTHETIC SUPPLY, INC., a Georgia corporation |
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THE BRACE SHOP PROSTHETIC ORTHOTIC CENTERS, INC., |
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an Ohio corporation |
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By: |
/s/ Paul A. Severt |
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Name: |
Paul A. Severt |
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Title: |
Treasurer and Assistant Secretary of each of the foregoing Guarantors |
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Signature Page
Hanger Sixth Amendment
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AGENT: |
BANK OF AMERICA, N.A. |
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By: |
/s/ Christine Trotter |
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Name: Christine Trotter |
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Title: Assistant Vice President |
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Signature Page
Hanger Sixth Amendment
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LENDERS: |
ASSOCIATED BANK, NATIONAL ASSOCIATION |
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By: |
/s/ C. James Munhofen |
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Name: C. James Munhofen |
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Title: Senior Vice President |
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Signature Page
Hanger Sixth Amendment
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LENDERS: |
BANK OF AMERICA, N.A. |
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By: |
/s/ Heath Lipson |
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Name: |
Heath Lipson |
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Title: |
SVP |
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Signature Page
Hanger Sixth Amendment
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LENDERS: |
BOKF, NA dba Bank of Texas |
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By: |
/s/ Brynna Sehelbar |
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Name: |
Brynna Sehelbar |
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Title: |
Vice President |
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Signature Page
Hanger Sixth Amendment
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LENDERS: |
BRANCH BANKING AND TRUST COMPANY |
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By: |
/s/ Mary McElwain |
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Name: |
Mary McElwain |
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Title: |
Senior Vice President |
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Signature Page
Hanger Sixth Amendment
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LENDERS: |
COMPASS BANK |
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By: |
/s/ Jon McCurdy |
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Name: |
Jon McCurdy |
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Title: |
SVP |
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Signature Page
Hanger Sixth Amendment
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LENDERS: |
FIFTH THIRD BANK |
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By: |
/s/ Jennifer Camp |
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Name: |
Jennifer Camp |
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Title: |
V.P. |
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Signature Page
Hanger Sixth Amendment
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LENDERS: |
PROSPERITY BANK |
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By: |
/s/ Chris Giacomazzi |
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Name: |
Chris Giacomazzi |
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Title: |
Vice President |
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Signature Page
Hanger Sixth Amendment
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LENDERS: |
REGIONS BANK |
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By: |
/s/ Mike Zingraf |
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Name: |
Mike Zingraf |
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Title: |
SVP |
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Signature Page
Hanger Sixth Amendment
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LENDERS: |
ROYAL BANK OF CANADA |
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By: |
/s/ H. Christopher DeCotiis |
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Name: |
H. Christopher DeCotiis |
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Title: |
Attorney-in-Fact |
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Signature Page
Hanger Sixth Amendment
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LENDERS: |
SUMITOMO MITSUI BANKING CORPORATION |
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By: |
/s/ Toshitake Funaki |
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Name: |
Toshitake Funaki |
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Title: |
General Manager |
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Signature Page
Hanger Sixth Amendment
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LENDERS: |
SUNTRUST BANK |
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By: |
/s/ Jared Cohen |
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Name: |
Jared Cohen |
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Title: |
Vice President |
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Signature Page
Hanger Sixth Amendment
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LENDERS: |
WELLS FARGO BANK, NATIONAL ASSOCIATION |
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By: |
/s/ Kirk Tesch |
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Name: |
Kirk Tesch |
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Title: |
Managing Director |
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Signature Page
Hanger Sixth Amendment