UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
CURRENT REPORT
FORM 8-K
Pursuant to Section 13 or 15(d) of the Securities Exchange Act
Date of Report (Date of Earliest Event Reported): September 11, 2015
Hanger, Inc.
(Exact name of registrant as specified in its charter)
Delaware (State or other jurisdiction of incorporation |
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1-10670 (Commission File Number) |
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84-0904275 (IRS Employer Identification No.) |
10910 Domain Drive, Suite 300
Austin, Texas 78758
(Address of principal executive offices (zip code))
(512) 777-3800
(Registrants 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))
Item 1.01 Entry into a Material Definitive Agreement.
On September 11, 2015, Hanger, Inc. (the Company) entered into an agreement that modified its Credit Agreement (the Original Credit Agreement) dated as of June 17, 2013 among the Company, the lenders from time to time party thereto and Bank of America, N.A., as agent (the Agent), as the same was previously amended by the First Amendment and Waiver, dated June 19, 2015 among the Company, the lenders party thereto and the Agent (the First Amendment and Waiver; the Original Credit Agreement as amended by the First Amendment and Waiver, the Credit Agreement). As described below, this agreement, which is called the Second Amendment and Waiver (the Agreement), waives defaults and events of default under the Credit Agreement and also modifies certain of the terms and covenants contained in the Credit Agreement, with some of the modifications terminating at such time as the Company meets various conditions described more fully below.
The Agreement was negotiated with the lenders and the Agent in connection with the Companys failure to deliver to the lenders certain financial information and other materials for the periods ended September 30, 2014, December 31, 2014, March 31, 2015, and June 30, 2015 (the Financial Information) as required by the First Amendment and Waiver. The Agreement waives the events of default under the Credit Agreement arising from (a) the Companys failure to deliver the Financial Information to the Agent and (b) the failure by the Company to timely deliver the notice required by the Credit Agreement with respect to the Companys failure to deliver the Financial Information. The Agreement also provides that the failure by the Company to deliver the Financial Information to the Agent on or before October 30, 2015 shall be an additional event of default under the Credit Agreement.
Until such time as the Company has delivered to the Agent (a) annual and quarterly financial information that demonstrates that the Company would have been in compliance with the financial covenants in the Credit Agreement for the fiscal quarters ended September 30, 2014, December 31, 2014, March 31, 2015, and June 30, 2015 (giving retroactive effect to the amendments contained in the First Amendment and Waiver) and (b) projections for each fiscal quarter remaining during the term of the Credit Agreement (through June 17, 2018) demonstrating that (assuming the projections are realized) the Company will be in compliance with the financial covenants in the Credit Agreement as of the end of each fiscal quarter remaining during the term of the Credit Agreement, (i) the amount that the Company can borrow under the Credit Agreement in the form of revolving loans, swing line loans and/or letters of credit has been reduced from $200 million to $146.3 million, and (ii) certain baskets and exceptions to the restrictive covenants in the Credit Agreement have been reduced or eliminated.
In addition to the restrictions noted above, the Agreement permanently amends certain provisions of the Credit Agreement, including the definition of Consolidated EBITDA in the Credit Agreement to permit the Company to add back in its calculation of Consolidated EBITDA the entire aggregate amount of certain professional fees and expenses reimbursed by the Company and the subsidiary guarantors under the Credit Agreement in accordance with the Agreement.
On September 11, 2015 the Company had $146.3 million drawn on the revolving credit line (including outstanding letters of credit) and approximately $59.5 million of cash on hand. The Company believes it has sufficient liquidity to meet operating needs and planned capital expenditures through the remainder of the year.
In connection with the entry into the Agreement, the Company will pay the Agent for the account of each consenting lender an amendment fee in an amount equal to 5 basis points of the outstanding principal amount of the term loan held by such consenting lender plus the amount of such lenders revolving commitments.
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The foregoing description of the Agreement is qualified in its entirety by reference to the Agreement, a copy of which is filed as Exhibit 10.1 to this Current Report on Form 8-K.
Disclosures About Forward-Looking Statements
This Form 8-K contains certain forward-looking statements relating to the Company. All statements, other than statements of historical fact included herein, are forward-looking statements, including statements regarding the timing of filing of, and the outcome of the Companys work in connection with, completing certain financial statements and other financial data. These forward-looking statements are often identified by the use of forward-looking terminology such as intends, expects or similar expressions and involve known and unknown risks and uncertainties. Although the Company believes that the expectations reflected in these forward-looking statements are reasonable, they do involve assumptions, risks, and uncertainties, and these expectations may prove to be incorrect. Investors should not place undue reliance on these forward-looking statements, which speak only as of the date of this filing. The Company disclaims any intention or obligation to update or revise any forward-looking information, whether as a result of new information, future events or otherwise, except as required by applicable securities laws. These uncertainties include, but are not limited to, the risk that additional information may arise during the course of the Companys ongoing accounting review that would require the Company to make additional adjustments or revisions to its estimates or financial statements or to restate further its financial statements and other financial data for current or historical periods, the time required to complete the financial statements and other financial data and accounting review as well as the time required to prepare its periodic reports for filings with the Securities and Exchange Commission. For additional information and risk factors that could affect the Company, see its Form 10-K for the year ended December 31, 2013 and its Form 10-Q for the quarter ended June 30, 2014 as well as the risk factor set forth in Item 8.01 of the Companys Current Report on Form 8-K filed February 17, 2015, each as filed with the Securities and Exchange Commission. The information contained in this filing is made as of the date hereof, even if subsequently made available by the Company on its website or otherwise.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
(10.1) |
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Second Amendment and Waiver, dated as of September 11, 2015 among Hanger, Inc., the lenders party thereto and Bank of America, N.A., as Agent. |
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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.
HANGER, INC. |
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By: |
/s/Thomas E. Hartman |
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Thomas E. Hartman |
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Vice President and General Counsel |
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Dated: |
September 14, 2015 |
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EXHIBIT INDEX
Exhibit No. |
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Description |
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(10.1) |
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Second Amendment and Waiver, dated as of September 11, 2015 among Hanger, Inc., the lenders party thereto and Bank of America, N.A., as Agent. |
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Exhibit 10.1
EXECUTION VERSION
SECOND AMENDMENT AND WAIVER
This SECOND AMENDMENT AND WAIVER (this Amendment) dated as of September 11, 2015 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 (as further amended, modified, supplemented, increased and extended from time to time, the Credit Agreement);
WHEREAS, the Borrower, the Guarantors and the Agent are parties to the Guarantee and Collateral Agreement (as amended, modified and supplemented from time to time, the Security Agreement) dated as of June 17, 2013;
WHEREAS, as previously reported by the Borrower in Current Reports on Form 8-K filed with the SEC on February 17, 2015, March 23, 2015 and June 9, 2015, the Borrower will be restating certain previously filed financial statements and other financial data as a result of various accounting issues and related matters, and the Borrower also has not yet filed financial statements for the third quarter of 2014, the fourth quarter and full year ended December 31, 2014, or the first and second quarters of 2015;
WHEREAS, as disclosed by the Borrower in a Current Report on Form 8-K filed with the SEC on August 17, 2015, the Borrower believes that the earliest it will likely commence making its filings with the SEC is December 2015; and
WHEREAS, the Borrower has requested a waiver of a certain Event of Default under the Credit Agreement relating to the prior failures to deliver financial statements when due, and the Lenders have agreed to the requested waiver 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 the date hereof (a) the aggregate outstanding principal amount of the Term A Loans is $208,125,000 and (b) the Total Revolving Usage is $146,300,000, 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. Statement of Defaults. The Borrower has failed to deliver the Financial Information (as defined in the First Amendment and Waiver, the Financial Information) to the Agent for distribution to the Lenders on or before August 17, 2015 as required by Section 5.3(b) of the First Amendment and Waiver, which failure has resulted in an Event of Default under the Credit Agreement (the Existing Financial Reporting Default). The Borrowers failure to deliver the notice required by Section 7.03 of the Credit Agreement with respect to the occurrence of the Existing Financial Reporting Default constitutes an Event of Default under the Credit Agreement (together with the Existing Financial Reporting Default, the Existing Events of Default).
4. Waiver of Existing Events of Default.
4.1 Subject to the terms and conditions set forth herein, the Lenders waive the Existing Events of Default.
4.2 It is acknowledged and agreed that:
(a) The waiver set forth in Section 4.1 is a one-time waiver limited exclusively to the Existing Events of Default and shall not be construed to be a waiver of, or in any way obligate the Lenders to waive, any other Default or Event of Default that may have occurred or that may occur after the date hereof; and
(b) On or before October 30, 2015, the Borrower shall deliver the Financial Information to the Agent for distribution to the Lenders, and any failure to deliver any of the Financial Information on or prior to such date shall constitute a new and immediate Event of Default under the Credit Agreement without regard to any otherwise applicable notice, cure or grace period.
5. Additional Restrictions Pending Certain Deliveries. Notwithstanding anything in the Credit Agreement or the other Loan Documents to the contrary, until such time as (a) the Borrower shall have delivered to the Agent, for distribution to the Lenders, the Financial Information, (b) the Financial Information shall demonstrate that the Loan Parties would have been in compliance with Sections 8.09 and 8.10 of the Credit Agreement for the fiscal quarters ended September 30, 2014, December 31, 2014, March 31, 2015 and June 30, 2015 if the amendment to the definition of Consolidated EBITDA set forth in the First Amendment and Waiver had been effective as of the last day of such fiscal quarters (regardless of whether such amendment to such definition actually was effective at such time) and (c) the Borrower shall have delivered to the Agent, for distribution to the Lenders, Projections prepared on a quarterly basis for each fiscal quarter remaining during the term of the Credit Agreement demonstrating that (assuming the Projections will be realized) the Borrower will be in compliance with Sections 8.09 and 8.10 of the Credit Agreement as of the end of each fiscal quarter remaining during the term of the Credit Agreement, the following restrictions (the Additional Restrictions) in addition to those set forth in the Credit Agreement shall apply:
(a) no Credit Extension shall be permitted without the written consent of the Required Lenders unless, after giving effect to such Credit Extension, the Total Revolving Usage would be less than or equal to $146,300,000;
(b) the Borrower and its Subsidiaries shall not create, incur, assume or suffer to exist any Lien after the date hereof in reliance on Section 8.01(m) of the Credit Agreement securing Indebtedness or other obligations of the Borrower and its Subsidiaries exceeding in the aggregate, at any time, $15,000,000;
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(c) the aggregate value of all assets disposed of by the Borrower and its Subsidiaries after the date hereof pursuant to Section 8.02(j) of the Credit Agreement shall not exceed $5,000,000, except that assets may be disposed of pursuant to Section 8.02(j) in respect of the Dosteon and CARES businesses, whether pursuant to the plans to dispose of such businesses as described in the Borrowers Current Report on Form 8-K filed with the SEC on November 7, 2014 or otherwise, without reducing the availability under the foregoing $5,000,000 basket;
(d) the aggregate principal amount of Investments by the Borrower and its Subsidiaries after the date hereof pursuant to Section 8.04(e)(iii) of the Credit Agreement shall not exceed $5,000,000;
(e) no Acquisition shall be permitted after the date hereof (other than any Acquisition to which only Loan Parties are parties);
(f) the Borrower and its Subsidiaries shall not make any Investment after the date hereof in reliance on Section 8.04(j) of the Credit Agreement;
(g) the Borrower and its Subsidiaries shall not make any Investment after the date hereof in reliance on Section 8.04(m) of the Credit Agreement;
(h) the aggregate principal amount of Investments by the Borrower and its Subsidiaries after the date hereof pursuant to Section 8.04(n) of the Credit Agreement shall not exceed $5,000,000;
(i) the Borrower and its Subsidiaries shall not create, incur, assume, suffer to exist or otherwise become directly or indirectly liable with respect to any Indebtedness after the date hereof in reliance on Section 8.05(i) of the Credit Agreement;
(j) the Borrower and its Subsidiaries shall not create, incur, assume, suffer to exist or otherwise become directly or indirectly liable with respect to any Indebtedness after the date hereof in reliance on Section 8.05(l) of the Credit Agreement;
(k) Foreign Subsidiaries shall not create, incur, assume, suffer to exist or otherwise become directly or indirectly liable with respect to any Indebtedness after the date hereof in reliance on Section 8.05(o) of the Credit Agreement;
(l) the Borrower and its Subsidiaries shall not create, incur, assume, suffer to exist or otherwise become directly or indirectly liable with respect to any Indebtedness after the date hereof in reliance on Section 8.05(p) of the Credit Agreement, exceeding in the aggregate, at any time, $15,000,000;
(m) the Borrower and its Subsidiaries shall not declare or make any Restricted Payment after the date hereof in reliance on Section 8.08(a)(v) of the Credit Agreement;
(n) the Borrower and its Subsidiaries shall not declare or make any Restricted Payment after the date hereof in reliance on Section 8.08(a)(vi) of the Credit Agreement; and
(o) the Borrower and its Subsidiaries shall not declare or make any Restricted Payment after the date hereof in reliance on Section 8.08(b) of the Credit Agreement.
6. Amendment to Credit Agreement. The Credit Agreement is amended as follows:
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(a) The following new definition is added to Section 1.01 of the Credit Agreement in the appropriate alphabetical order:
Second Amendment and Waiver means the Second Amendment and Waiver to this Agreement dated as of September 11, 2015.
(b) In clause (e) of the definition of Consolidated EBITDA in Section 1.01 of the Credit Agreement, the following language is inserted immediately after the words 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)
7. Amendments to Security Agreement. The Security Agreement is amended as follows:
(a) Clauses (ii) and (iii) of the definition of Excluded Account in Section 1.1 of the Security Agreement are amended and restated as follows:
(ii) prior to September 30, 2015 (which date may be extended by up to thirty (30) calendar days by the Administrative Agent in its discretion) only, any Deposit Account the balance of which is swept at the end of each Business Day into another Deposit Account that is subject to the Administrative Agents control (within the meaning of Section 9-104 of the applicable Uniform Commercial Code) and (iii) any Deposit Account the maximum balance of which (A) individually shall not exceed (I) $1,000,000 at any time on a Business Day and (II) $300,000 for more than two (2) Business Days, and (B) in the aggregate, together with the balance of all such other Deposit Accounts of all Grantors excluded pursuant to this clause (iii), shall not exceed $2,500,000 at any time on a Business Day, and
(b) In clause Third of Section 6.5 of the Security Agreement, the following language is inserted immediately after the words held by the Secured Creditors:
; provided that the Administrative Agent shall not exercise rights or remedies pursuant to any Deposit Account control agreement to which the counterparty depository institution is not a Lender or an Affiliate of a Lender other than to (i) cause amounts on deposit in such Deposit Accounts to be applied to Obligations that are due and payable (past any applicable grace or notice period) at the time of such application or (ii) direct that withdrawals or transfers from the applicable Deposit Accounts by the applicable Grantor be prohibited pending further notice, other than any transfer to a Deposit Account as to which the depository institution is a Lender or an Affiliate of a Lender
8. Agent Financial Advisor. In the event that the Agent engages (or directs its counsel to engage) a financial advisor (including any replacement or successor financial advisor, the Agent Financial Advisor) to, among other things, perform a review of the Loan Parties financial performance, financial reporting, financial forecasts, accounting delays and other related matters, the Loan Parties shall provide the Agent Financial Advisor with reasonable access to the Loan Parties facilities, members of management and financial information as is necessary to perform the services within the scope of the engagement. The Agent acknowledges and agrees that any information provided by the Loan Parties to the Agent Financial Advisor shall be subject to Section 11.08 of the Credit Agreement. The Loan Parties shall reimburse the Agent promptly after demand for the reasonable fees and expenses incurred by the
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Agent in connection with the retention of the Agent Financial Advisor; provided that in the absence of an Event of Default, the Agent shall not be entitled to reimbursement for (a) more than one (1) Agent Financial Advisor engaged by (or on behalf of) the Agent at a time or (b) fees and expenses incurred by the Agent in connection with services performed or expenses incurred by the Agent Financial Advisor after October 30, 2015.
9. Waiver 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), a waiver fee (the Waiver Fee) in an amount equal to five (5) basis points (0.05%) of the outstanding principal amount of the Term A Loan held by such Consenting Lender and the amount of such Lenders Revolving Commitments. The Waiver Fee shall be fully-earned, payable and non-refundable as of the Second 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 12:00 p.m. Central time on September 11, 2015 (or, as to any Lender, such later time or date as may be agreed by the Agent and the Borrower).
10. Effectiveness; Conditions Precedent. This Amendment shall become effective as of the date hereof (the Second Amendment Effective Date) when, and only when, each of the following conditions shall have been satisfied or waived, in the sole discretion of the Agent and the 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 Waiver 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) incurred in connection with this Amendment, to the extent invoiced to the Borrower at least one Business Day prior to the Second 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.
11. 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.
12. Representations and Warranties. The Loan Parties hereby represent and warrant to the Agent and the Lenders as follows as of the Second 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.
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(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 Persons 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 12 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.
13. Release. In consideration of the Agents 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 Agents 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 of the Lender Group.
14. 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.
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15. 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.
16. 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.
17. 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 Parties 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.
18. 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
19. 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.
20. 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.
21. 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]
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IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment and Waiver to be duly executed as of the date first above written.
BORROWER: |
HANGER, INC., a Delaware corporation |
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By: |
/s/ Thomas E. Hartman |
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Name: |
Thomas E. Hartman |
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Title: |
Vice President, General Counsel and 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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DIBELLOS DYNAMIC ORTHOTICS AND PROSTHETICS, INC., a Texas corporation |
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DOSTEON CO HOLDING, INC., a Colorado corporation |
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DOSTEON SOLUTIONS, LLC, a Maryland limited liability company |
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EAST COAST ORTHOTICS, INC., a Florida corporation |
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EUGENE TEUFEL & SON ORTHOTICS & PROSTHETICS, INC., |
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a Pennsylvania 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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GREAT PLAINS ORTHOTICS & PROSTHETICS, INC., an Iowa corporation |
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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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LIBERTY HEALTH SERVICES, LLC, a Delaware limited liability company |
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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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OPNET, INC., a Nevada corporation |
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ORPRO, INC., a California 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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RAINIER SURGICAL INCORPORATED, a Washington 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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TEAM POST-OP, INC., a California 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/ Thomas E. Hartman |
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Name: |
Thomas E. Hartman |
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Title: |
Vice President, General Counsel and Secretary of each of the foregoing Guarantors |
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Hanger, Inc.
Second Amendment and Waiver
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 |
Hanger, Inc.
Second Amendment and Waiver
LENDERS: |
ASSOCIATED BANK, NATIONAL ASSOCIATION |
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By: |
/s/ James A. Goody |
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Name: |
James A. Goody |
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Title: |
Vice President |
Hanger, Inc.
Second Amendment and Waiver
LENDERS: |
BANK OF AMERICA, N.A. |
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By: |
/s/ Suzanne B. Smith |
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Name: |
Suzanne B. Smith |
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Title: |
SVP |
Hanger, Inc.
Second Amendment and Waiver
LENDERS: |
BRANCH BANKING AND TRUST COMPANY |
|
|
|
By: |
/s/ Sarah Bryson |
|
Name: |
Sarah Bryson |
|
Title: |
Vice President |
Hanger, Inc.
Second Amendment and Waiver
LENDERS: |
COMPASS BANK |
|
|
|
By: |
/s/ D. Sowards |
|
Name: |
Debbie Sowards |
|
Title: |
Senior Vice President |
Hanger, Inc.
Second Amendment and Waiver
LENDERS: |
REGIONS BANK |
|
|
|
By: |
/s/ Mike Zingraf |
|
Name: |
Mike Zingraf |
|
Title: |
SVP |
Hanger, Inc.
Second Amendment and Waiver
LENDERS: |
SUMITOMO MITSUI BANKING CORPORATION |
|
|
|
By: |
/s/ Katsuyuki Kubo |
|
Name: |
Katsuyuki Kubo |
|
Title: |
Managing Director |
Hanger, Inc.
Second Amendment and Waiver
LENDERS: |
SUNTRUST BANK |
|
|
|
By: |
/s/ Mary E. Coke |
|
Name: |
Mary E. Coke |
|
Title: |
Vice President |
Hanger, Inc.
Second Amendment and Waiver
LENDERS: |
WELLS FARGO BANK, NATIONAL ASSOCIATION |
|
|
|
By: |
/s/ Kirk Tesch |
|
Name: |
Kirk Tesch |
|
Title: |
Managing Director |
Hanger, Inc.
Second Amendment and Waiver
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