SENIOR SECURED CREDIT AGREEMENT
Reference No. RNB-HC-2025-0418
Execution Version
dated as of April 18, 2025
among
ARDENT HEALTHCARE HOLDINGS INC., as Borrower,
THE GUARANTORS PARTY HERETO,
RIDGELINE NATIONAL BANK, N.A., as Administrative Agent, Collateral Agent, Swing Line Lender, and an Issuing Bank,
and
THE LENDERS FROM TIME TO TIME PARTY HERETO
RIDGELINE NATIONAL BANK, N.A., as Sole Lead Arranger and Sole Bookrunner
TABLE OF CONTENTS
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RECITALS
WHEREAS, Ardent Healthcare Holdings Inc., a Delaware corporation (the "Borrower"), is a newly formed acquisition vehicle organized on January 8, 2025, under the laws of the State of Delaware (DE File No. 7201548; EIN 93-2047861), and an indirect wholly owned subsidiary of Ardent Capital Partners III LP, a Delaware limited partnership (the "Sponsor");
WHEREAS, the Sponsor has agreed to acquire (the "Acquisition") all of the outstanding equity interests of MedVance Health Systems, Inc., a Delaware corporation (the "Target"; DE File No. 4938217; EIN 62-7083149), pursuant to that certain Stock Purchase Agreement dated as of February 10, 2025 (the "Acquisition Agreement"), among the Borrower, Crestline Growth Equity Fund II LP, Ryland Family Holdings LLC, and the other sellers party thereto, for an aggregate purchase price of $620,000,000 (the "Purchase Price");
WHEREAS, in connection with the Acquisition, the Borrower has requested that the Lenders provide (a) a term loan facility in an aggregate principal amount of $340,000,000 (the "Term Loan B Facility") and (b) a revolving credit facility in an aggregate principal amount of $50,000,000 (the "Revolving Credit Facility" and, together with the Term Loan B Facility, the "Facilities");
WHEREAS, proceeds of the Term Loan B Facility, together with an equity contribution of $290,000,000 from the Sponsor and approximately $10,000,000 of excess cash of the Target rolled at closing, will be used on the Closing Date to (i) finance the Purchase Price, (ii) refinance and repay in full the existing indebtedness of the Target under that certain Credit Agreement dated as of June 15, 2021, with Granton Savings Bank, N.A. as administrative agent, in an outstanding principal amount of approximately $41,300,000, (iii) pay fees, costs, and expenses incurred in connection with the Transactions, and (iv) fund working capital of the Borrower and its Subsidiaries;
WHEREAS, the Revolving Credit Facility will be available for working capital and general corporate purposes of the Borrower and its Subsidiaries, and is expected to be undrawn on the Closing Date;
WHEREAS, the Lenders are willing to make the Facilities available to the Borrower on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I — DEFINITIONS AND ACCOUNTING TERMS
Section 1.01 — Defined Terms
As used in this Agreement, the following terms shall have the meanings set forth below:
"Acquisition" means the acquisition of 100% of the issued and outstanding equity interests of the Target by the Borrower pursuant to the Acquisition Agreement.
"Acquisition Agreement" means that certain Stock Purchase Agreement dated as of February 10, 2025, among the Borrower, Crestline Growth Equity Fund II LP, Ryland Family Holdings LLC, and the other sellers party thereto, as the same may be amended, supplemented, or otherwise modified from time to time (to the extent permitted under this Agreement).
"Administrative Agent" means Ridgeline National Bank, N.A., in its capacity as administrative agent for the Lenders hereunder, together with its successors and assigns in such capacity.
"Adjusted Term SOFR" means, with respect to any Interest Period, an interest rate per annum equal to the sum of (a) Term SOFR for such Interest Period plus (b) the SOFR Adjustment applicable to such Interest Period; provided that in no event shall Adjusted Term SOFR be less than (i) 0.50% per annum with respect to the Term Loan B Facility (the "SOFR Floor") or (ii) 0.00% per annum with respect to the Revolving Credit Facility.
"Affiliate" means, with respect to any Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified; provided that (a) no Secured Party shall be an Affiliate of any Loan Party solely by reason of being a Secured Party, and (b) for purposes of the definition of "Affiliate" as it relates to the Sponsor, portfolio companies of the Sponsor and its Affiliates that do not operate in the healthcare sector shall not be deemed to be Affiliates of the Borrower or any of its Subsidiaries.
"Agent Parties" means, collectively, the Administrative Agent, the Collateral Agent, the Swing Line Lender, and each Issuing Bank.
"Aggregate Revolving Commitments" means the aggregate amount of the Revolving Commitments of all of the Revolving Lenders, which as of the Closing Date is $50,000,000.
"Agreement" means this Senior Secured Credit Agreement, as it may be amended, restated, supplemented, or otherwise modified from time to time.
"Alternate Base Rate" or "ABR" means, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such day plus 0.50%, and (c) Adjusted Term SOFR for a one-month Interest Period as published two U.S. Government Securities Business Days prior to such day plus 1.00%; provided that in no event shall the Alternate Base Rate be less than 1.00% per annum.
"Anti-Corruption Laws" means the Foreign Corrupt Practices Act of 1977 (15 U.S.C. §§ 78dd-1 et seq.), the United Kingdom Bribery Act 2010, and all other applicable laws, rules, and regulations of any jurisdiction concerning or relating to bribery, corruption, or money laundering.
"Applicable Rate" means (a) with respect to Term Loans B, (i) 4.25% per annum in the case of Term SOFR Loans and (ii) 3.25% per annum in the case of ABR Loans; and (b) with respect to Revolving Loans, the applicable rate per annum set forth in Section 2.08(b), as determined by reference to the Total Net Leverage Ratio then in effect.
"Approved Fund" means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender, or (c) an entity or an Affiliate of an entity that administers or manages a Lender.
"Available Amount" means, at any time, an amount equal to (a) $15,000,000, plus (b) 50% of cumulative Consolidated Net Income (if positive) of the Borrower and its restricted Subsidiaries for each fiscal quarter commencing with the fiscal quarter beginning July 1, 2025, through the most recently ended fiscal quarter for which financial statements have been delivered, plus (c) 100% of the aggregate net cash proceeds of equity issuances by the Borrower after the Closing Date (other than equity issuances to the Sponsor or any Subsidiary and other than proceeds of issuances used to cure a financial covenant breach under Section 7.10), plus (d) the aggregate amount of cash returns on Investments made with the Available Amount, minus (e) the aggregate amount of Restricted Payments and Investments made in reliance on the Available Amount prior to such time.
"Bankruptcy Code" means Title 11 of the United States Code (11 U.S.C. §§ 101 et seq.).
"Benchmark Replacement" means, with respect to any Benchmark Transition Event, the first alternative set forth in the order below that can be determined by the Administrative Agent for the applicable Benchmark Replacement Date: (a) the sum of (i) the alternate benchmark rate that has been selected by the Administrative Agent and the Borrower as the replacement for the then-current Benchmark, giving due consideration to any evolving or then-prevailing market convention for determining a benchmark rate as a replacement for the then-current Benchmark for Dollar-denominated syndicated credit facilities at such time, and (ii) the related Benchmark Replacement Adjustment; or (b) the sum of (i) the alternate benchmark rate that has been selected by the Administrative Agent as the replacement for the then-current Benchmark, giving due consideration to any evolving or then-prevailing market convention for determining a benchmark rate as a replacement for the then-current Benchmark for Dollar-denominated syndicated credit facilities at such time, and (ii) the related Benchmark Replacement Adjustment.
"Benchmark Replacement Adjustment" means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Administrative Agent and the Borrower, giving due consideration to any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of the then-current Benchmark with the applicable Unadjusted Benchmark Replacement for Dollar-denominated syndicated credit facilities at such time.
"Benchmark Replacement Conforming Changes" means, with respect to any Benchmark Replacement, any technical, administrative, or operational changes (including changes to the definition of "Alternate Base Rate," the definition of "Business Day," the definition of "Interest Period," timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion, or continuation notices, the applicability and length of lookback periods, the applicability of breakage provisions, and other technical, administrative, or operational matters) that the Administrative Agent decides may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of such Benchmark Replacement exists, in such other manner of administration as the Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).
"Benchmark Transition Event" means the occurrence of one or more of the following events with respect to the then-current Benchmark: (a) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all available tenors of such Benchmark (or such component thereof), permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any available tenor of such Benchmark (or such component thereof); (b) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark, the Federal Reserve Board, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for such Benchmark, a resolution authority with jurisdiction over the administrator for such Benchmark, or a court or entity with similar insolvency or resolution authority over the administrator for such Benchmark, which states that the administrator of such Benchmark has ceased or will cease to provide all available tenors of such Benchmark permanently or indefinitely; or (c) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark announcing that all available tenors of such Benchmark are no longer, or as of a specified future date will no longer be, representative.
"Borrower" means Ardent Healthcare Holdings Inc., a Delaware corporation.
"Borrowing" means a borrowing consisting of Loans of the same Class, Type, and Interest Period made, converted, or continued on the same date by each applicable Lender.
"Borrowing Request" means a request by the Borrower for a Borrowing in accordance with Section 2.05, substantially in the form of Exhibit A or such other form as shall be approved by the Administrative Agent.
"Business Day" means any day that is not a Saturday, Sunday, or other day on which commercial banks in New York City are authorized or required by law to remain closed; provided that, when used in connection with a Term SOFR Loan or any other SOFR-related calculations, the term "Business Day" shall also exclude any day on which the Securities Industry and Financial Markets Association ("SIFMA") recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.
"Capital Expenditures" means, for any period, the aggregate of all expenditures (whether paid in cash or accrued as liabilities) by the Borrower and its Subsidiaries during such period that, in conformity with GAAP, are or should be included in "purchases of property, equipment, or assets" or similar items reflected in the statement of cash flows of the Borrower and its Subsidiaries on a consolidated basis; provided that Capital Expenditures shall not include (a) expenditures to the extent funded with the Net Cash Proceeds of casualty events or condemnation awards, (b) expenditures constituting Permitted Acquisitions, (c) expenditures of proceeds of equity issuances made after the Closing Date, or (d) expenditures made from any insurance proceeds to the extent replacing assets damaged or destroyed.
"Capital Lease Obligations" means, as to any Person, the obligations of such Person to pay rent or other amounts under a lease of (or other agreement conveying the right to use) real or personal property, which obligations are required to be classified and accounted for as a finance lease on a balance sheet of such Person under GAAP. The amount of such obligations at any date shall be the capitalized amount thereof at such date, determined in accordance with GAAP; provided that, notwithstanding any change in GAAP after the Closing Date (including under ASC 842), obligations under any operating lease that were not required to be classified as Capital Lease Obligations under GAAP as in effect on the Closing Date shall not be treated as Capital Lease Obligations.
"Cash Equivalents" means (a) securities issued or directly and fully guaranteed or insured by the United States of America or any agency or instrumentality thereof (provided that the full faith and credit of the United States is pledged in support thereof) maturing within one year from the date of acquisition thereof, (b) time deposits, certificates of deposit, and bankers' acceptances of any Lender or of any commercial bank having capital and surplus in excess of $500,000,000 and having a long-term unsecured debt rating of at least A-1 from S&P Global Ratings or P-1 from Moody's Ratings (or the equivalent from any other nationally recognized rating agency) maturing within one year from the date of acquisition thereof, (c) commercial paper of any issuer rated at least A-1 by S&P Global Ratings or P-1 by Moody's Ratings maturing within 270 days from the date of acquisition thereof, (d) repurchase obligations with a term of not more than 30 days for underlying securities of the type described in clause (a) above entered into with any commercial bank meeting the qualifications specified in clause (b) above, and (e) shares of money market mutual funds that invest exclusively in assets described in clauses (a) through (d) above.
"CDD Rule" means the customer due diligence requirements set forth in 31 C.F.R. § 1010.230.
"Change of Control" means the occurrence of any of the following: (a) the Sponsor (together with its controlled Affiliates) ceases to own, directly or indirectly, at least 50.1% of the economic and voting interests in the Borrower; (b) the Borrower ceases to own, directly or indirectly, 100% of the issued and outstanding equity interests of the Target; or (c) a "change of control," "change in control," "fundamental change," or similar event (however denominated) occurs under any agreement governing Material Indebtedness, resulting in an obligation to offer to repurchase, redeem, or repay such Material Indebtedness.
"Class" means, when used in reference to (a) any Loan or Borrowing, whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans, Term Loans B, or Swing Line Loans, and (b) any Commitment, whether such Commitment is a Revolving Commitment or a Term Loan B Commitment.
"Closing Date" means April 18, 2025.
"CMS" means the Centers for Medicare & Medicaid Services of the United States Department of Health and Human Services, or any successor agency thereto.
"Code" means the Internal Revenue Code of 1986, as amended from time to time.
"Collateral" means all property and assets of the Borrower and each Guarantor in which a Lien is purported to be granted pursuant to the Security Documents, subject to the exclusions set forth in the definition of "Excluded Assets."
"Collateral Agent" means Ridgeline National Bank, N.A., in its capacity as collateral agent for the Secured Parties hereunder and under the other Loan Documents, together with its successors and assigns in such capacity.
"Commitment Letter" means that certain commitment letter dated as of February 10, 2025, among the Borrower, the Sponsor, and Ridgeline National Bank, N.A., as the same may be amended, supplemented, or otherwise modified from time to time in accordance with the terms thereof.
"Commodity Exchange Act" means the Commodity Exchange Act (7 U.S.C. §§ 1 et seq.), as amended from time to time, and any successor statute.
"Compliance Certificate" means a certificate of a Responsible Officer of the Borrower substantially in the form of Exhibit D.
"Consolidated EBITDA" means, for any period, Consolidated Net Income for such period, plus the following to the extent deducted in calculating such Consolidated Net Income: (i) consolidated interest expense of the Borrower and its restricted Subsidiaries for such period, (ii) the provision for federal, state, local, and foreign income taxes payable by the Borrower and its restricted Subsidiaries for such period, (iii) depreciation and amortization expense of the Borrower and its restricted Subsidiaries for such period, (iv) non-cash stock-based compensation expense, (v) Transaction Costs (capped at $12,000,000 for any four consecutive fiscal quarter period including the fiscal quarter in which the Closing Date occurs), (vi) fees and expenses incurred in connection with Permitted Acquisitions (capped at $3,000,000 per transaction), (vii) restructuring charges, business optimization expenses, and one-time costs related to facility openings, closings, and consolidations (capped at the greater of $5,000,000 and 6.5% of Consolidated EBITDA for the applicable four consecutive fiscal quarter period, calculated before giving effect to such add-back), (viii) non-recurring losses or charges approved by the Administrative Agent in writing, (ix) any loss resulting from Hedging Agreements, and (x) other non-cash charges reducing Consolidated Net Income for such period (excluding any such non-cash charge to the extent that it represents an accrual of or reserve for cash expenditures in any future period); minus (a) non-cash gains increasing Consolidated Net Income for such period (excluding any non-cash gain to the extent it represents the reversal of an accrual or cash reserve for a potential cash item that reduced Consolidated EBITDA in any prior period) and (b) extraordinary gains; provided that:
(1) Consolidated EBITDA shall be subject to pro forma adjustment to give effect to any Permitted Acquisition or Disposition consummated during the relevant period (or after the relevant period but prior to or simultaneously with the event for which the calculation is being made) as if such Permitted Acquisition or Disposition had occurred on the first day of such period;
(2) for purposes of calculating Consolidated EBITDA on a pro forma basis, run-rate cost savings, operating expense reductions, and synergies projected by the Borrower in good faith to be achievable within 18 months of the event giving rise to such savings, reductions, or synergies may be included (without duplication of amounts otherwise added back), in an aggregate amount not to exceed 15% of Consolidated EBITDA for such period (calculated before giving effect to such projected cost savings, operating expense reductions, and synergies); and
(3) for the four consecutive fiscal quarters most recently ended prior to the Closing Date, Consolidated EBITDA shall be deemed to be $78,400,000.
"Consolidated Net Income" means, for any period, the net income (or loss) of the Borrower and its restricted Subsidiaries on a consolidated basis for such period, determined in accordance with GAAP; provided that there shall be excluded (a) the net income of any Person that is not a Subsidiary of the Borrower, except to the extent of the aggregate amount of dividends or distributions actually paid to the Borrower or a restricted Subsidiary by such Person during such period, (b) the net income (or loss) of any Person accrued prior to the date it becomes a Subsidiary or is merged into or consolidated with the Borrower or any of its Subsidiaries, (c) non-cash impairment charges or asset write-downs, (d) any extraordinary, non-recurring, or unusual gains or losses, (e) the net income of any Subsidiary that is not a Guarantor to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary is restricted by operation of its Organizational Documents, applicable law, or any contractual obligation, and (f) the cumulative effect of a change in accounting principles.
"Consolidated Total Debt" means, at any date, the aggregate outstanding principal amount of all Indebtedness of the Borrower and its restricted Subsidiaries on a consolidated basis (including Capital Lease Obligations, but excluding Hedging Agreements, undrawn letters of credit, and intercompany Indebtedness), minus Unrestricted Cash in an amount not to exceed $25,000,000.
"Control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract, or otherwise. "Controlling" and "Controlled" have meanings correlative thereto.
"D&O Tail Policy" means the directors' and officers' liability tail insurance policy issued by Sentinel Indemnity Group, with a six-year term commencing on the Closing Date, a premium of $485,000, and coverage for pre-Closing acts and omissions of the officers and directors of the Target, as required by Section 5.12 of the Acquisition Agreement.
"DEA" means the United States Drug Enforcement Administration, or any successor agency thereto.
"Debtor Relief Laws" means the Bankruptcy Code and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect.
"Default" means any event or condition that, with the giving of notice or the passage of time, or both, would constitute an Event of Default.
"Default Rate" means an interest rate per annum equal to 2.00% plus the interest rate otherwise applicable to such Obligation (including the Applicable Rate).
"Disposition" or "Dispose" means the sale, transfer, license, lease, or other disposition (including any Sale and Leaseback Transaction) of any property by any Person, including any sale, assignment, transfer, or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith; provided that "Disposition" and "Dispose" shall not include (a) any issuance of equity interests by the Borrower, (b) any disposition of inventory in the ordinary course of business, (c) dispositions of obsolete, worn-out, or surplus equipment in the ordinary course of business, (d) the lapse, abandonment, or other disposition of intellectual property that is, in the reasonable judgment of the Borrower, no longer economically practicable or commercially desirable to maintain or is not material to the conduct of the business of the Borrower and its Subsidiaries, or (e) any involuntary loss, damage, or destruction of property or any involuntary condemnation, seizure, or taking, by exercise of the power of eminent domain or otherwise, of property.
"Dollar" and "$" means lawful money of the United States of America.
"ECF Percentage" means, with respect to Excess Cash Flow for any fiscal year: (a) 50% if the Total Net Leverage Ratio as of the last day of such fiscal year is greater than 3.50:1.00; (b) 25% if the Total Net Leverage Ratio as of the last day of such fiscal year is equal to or less than 3.50:1.00 and greater than 2.50:1.00; and (c) 0% if the Total Net Leverage Ratio as of the last day of such fiscal year is equal to or less than 2.50:1.00.
"Environmental Laws" means any and all federal, state, local, and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements, or governmental restrictions relating to pollution, protection of the environment, or the release of any hazardous materials, including the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. §§ 9601 et seq.) ("CERCLA"), the Resource Conservation and Recovery Act of 1976, as amended (42 U.S.C. §§ 6901 et seq.) ("RCRA"), the Clean Air Act (42 U.S.C. §§ 7401 et seq.), the Federal Water Pollution Control Act (33 U.S.C. §§ 1251 et seq.) (the "Clean Water Act"), the Toxic Substances Control Act (15 U.S.C. §§ 2601 et seq.), and analogous state laws in Tennessee (including the Tennessee Hazardous Waste Management Act), Alabama, Georgia, and Kentucky, and all rules and regulations promulgated thereunder.
"Environmental Liability" means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties, or indemnities), directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment, or disposal of any hazardous material, (c) exposure to any hazardous material, or (d) the release or threatened release of any hazardous material.
"ERISA" means the Employee Retirement Income Security Act of 1974, as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not incorporated) under common control with the Borrower within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).
"ERISA Event" means (a) a Reportable Event with respect to a Plan; (b) the withdrawal of any Loan Party or ERISA Affiliate from a Plan subject to Section 4063 of ERISA during a plan year in which it was a "substantial employer" as defined in Section 4001(a)(2) of ERISA; (c) a complete or partial withdrawal by any Loan Party or ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate, the treatment of a Plan amendment as a termination under Section 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Plan or Multiemployer Plan; (e) an event or condition that constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan or Multiemployer Plan; or (f) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any Loan Party or ERISA Affiliate.
"Escrow Account" means Account No. CFT-ESC-2025-00327 maintained with the Escrow Agent in connection with the Acquisition Agreement.
"Escrow Agent" means Continental Fiduciary Trust Company.
"Event of Default" has the meaning set forth in Section 8.01.
"Excess Cash Flow" means, for any fiscal year, an amount equal to (a) Consolidated EBITDA for such fiscal year, minus (b) the sum of (i) cash interest expense actually paid in cash during such fiscal year (excluding amounts paid with the proceeds of Indebtedness), (ii) scheduled principal payments actually made on the Term Loans during such fiscal year (excluding any prepayments), (iii) the aggregate amount of federal, state, local, and foreign income taxes actually paid in cash during such fiscal year, (iv) Capital Expenditures actually made in cash during such fiscal year (to the extent not financed with the proceeds of Indebtedness), (v) the aggregate amount of any increase in Working Capital of the Borrower and its restricted Subsidiaries for such fiscal year (or, plus the aggregate amount of any decrease in Working Capital for such fiscal year), (vi) the aggregate amount of Permitted Acquisitions consummated during such fiscal year that were funded with internally generated cash, (vii) the aggregate amount of voluntary prepayments of the Term Loans actually made during such fiscal year (to the extent not funded with long-term Indebtedness), and (viii) cash restructuring charges actually paid during such fiscal year. Excess Cash Flow shall be measured on a fiscal year basis commencing with the fiscal year ending December 31, 2025.
"Excluded Assets" means (a) any fee-owned real property with a fair market value below $2,500,000 per parcel (but all facilities identified on Schedule 4.19 shall be included regardless of fair market value), (b) motor vehicles and other assets subject to certificates of title with a value below $100,000 individually, (c) letter-of-credit rights and commercial tort claims below $500,000 individually, (d) intent-to-use trademark applications to the extent that the grant of a security interest therein would impair the validity or enforceability thereof under applicable law, (e) any lease, license, contract, or agreement to the extent that a security interest therein is prohibited by the terms thereof (after giving effect to the applicable anti-assignment override provisions of the UCC and other applicable law), (f) Excluded Equity Interests, (g) any Healthcare Permits to the extent that the grant of a security interest therein is prohibited by applicable federal or state law, and (h) any property to the extent that the pledge or grant of a security interest therein would result in a material adverse tax consequence to the Borrower or any of its Subsidiaries, as reasonably determined by the Administrative Agent and the Borrower.
"Excluded Equity Interests" means (a) the equity interests of any Foreign Subsidiary in excess of 65% of the total outstanding voting equity interests of such Foreign Subsidiary and (b) the equity interests of any Subsidiary to the extent the pledge thereof would be prohibited by applicable law or by the Organizational Documents of such Subsidiary (after giving effect to applicable law).
"Existing Credit Agreement" means that certain Credit Agreement dated as of June 15, 2021, among the Target, the other borrowers and guarantors party thereto, and Granton Savings Bank, N.A., as administrative agent, as amended, restated, supplemented, or otherwise modified from time to time prior to its repayment in full on the Closing Date.
"Facilities" means the Term Loan B Facility and the Revolving Credit Facility, collectively.
"FATCA" means Sections 1471 through 1474 of the Code (or any amended or successor version that is substantively comparable), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code, and any fiscal or regulatory legislation, rules, or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such Sections of the Code.
"FDA" means the United States Food and Drug Administration, or any successor agency thereto.
"Federal Funds Effective Rate" means, for any day, the rate per annum calculated by the Federal Reserve Bank of New York based on such day's federal funds transactions by depository institutions (as determined in such manner as the Federal Reserve Bank of New York shall set forth on its public website from time to time) and published on the next succeeding Business Day by the Federal Reserve Bank of New York as the federal funds effective rate.
"Fee Letter" means the fee letter dated as of February 10, 2025, among the Borrower, the Sponsor, and Ridgeline National Bank, N.A., as the same may be amended, supplemented, or otherwise modified from time to time in accordance with the terms thereof.
"First Lien Net Leverage Ratio" means, as of any date of determination, the ratio of (a) Consolidated Total Debt secured by a first-priority Lien on all or substantially all of the Collateral (including, without duplication, the Obligations under this Agreement) as of such date to (b) Consolidated EBITDA for the most recently ended period of four consecutive fiscal quarters for which financial statements are available.
"Flood Zone Property" means any Mortgaged Property located in a Special Flood Hazard Area, as designated by the Federal Emergency Management Agency.
"Fund" means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding, or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities.
"GAAP" means generally accepted accounting principles in the United States, as in effect on the Closing Date; provided that if the Borrower notifies the Administrative Agent that the Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring after the Closing Date in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Borrower that the Required Lenders request such an amendment), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith (the "Frozen GAAP" convention). For financial covenant calculations, the Frozen GAAP convention shall apply unless the Borrower affirmatively elects to update to then-current GAAP by written notice to the Administrative Agent.
"Governmental Authority" means the government of the United States of America or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank, or other entity exercising executive, legislative, judicial, taxing, regulatory, or administrative powers or functions of or pertaining to government (including CMS, the Office of Inspector General of the United States Department of Health and Human Services ("OIG-HHS"), the DEA, the FDA, the Tennessee Department of Health, the Alabama Department of Public Health, the Georgia Department of Community Health, the Kentucky Cabinet for Health and Family Services, and each applicable state Medicaid agency).
"Guarantee Agreement" means the guarantee agreement to be executed by the Guarantors in favor of the Collateral Agent for the benefit of the Secured Parties.
"Guarantors" means (a) MedVance Health Systems, Inc. and (b) each Material Domestic Subsidiary that becomes a party to the Guarantee Agreement pursuant to Section 6.12, and their respective successors and permitted assigns.
"Healthcare Laws" means (a) the federal Anti-Kickback Statute (42 U.S.C. § 1320a-7b(b)), (b) the Physician Self-Referral Law (commonly known as the "Stark Law") (42 U.S.C. § 1395nn), (c) the False Claims Act (31 U.S.C. §§ 3729–3733), (d) the Health Insurance Portability and Accountability Act of 1996, as amended ("HIPAA"), (e) the Health Information Technology for Economic and Clinical Health Act ("HITECH"), (f) Title XVIII of the Social Security Act (Medicare), (g) Title XIX of the Social Security Act (Medicaid), (h) the Civil Monetary Penalties Law (42 U.S.C. § 1320a-7a), (i) the Program Fraud Civil Remedies Act (31 U.S.C. §§ 3801–3812), (j) applicable state healthcare fraud and abuse statutes in Tennessee, Alabama, Georgia, and Kentucky, and (k) all rules and regulations promulgated under any of the foregoing.
"Healthcare Permits" means all licenses, permits, certifications, accreditations (including from The Joint Commission and other accrediting bodies), Medicare and Medicaid provider agreements, DEA registrations, certificates of need, and other authorizations required under Healthcare Laws for the ownership and operation of the healthcare facilities and businesses of the Borrower and its Subsidiaries.
"Hedging Agreement" means any interest rate, currency, or commodity swap, cap, collar, floor, forward, option, or similar agreement, or any combination thereof.
"HSR Act" means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder.
"Incremental Facility" means any additional term loan facility or increase in the Revolving Commitments established pursuant to Section 2.14.
"Indemnified Taxes" means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in clause (a), Other Taxes.
"Indebtedness" means, as to any Person at any date, without duplication, (a) all indebtedness for borrowed money, (b) all obligations for the deferred purchase price of property or services (other than trade payables and accrued expenses incurred in the ordinary course of business), (c) all obligations evidenced by notes, bonds, debentures, or similar instruments, (d) all obligations under Capital Lease Obligations, (e) all obligations under conditional sale or other title retention agreements, (f) all reimbursement obligations in respect of letters of credit, bankers' acceptances, or similar credit transactions, (g) all Guarantees of Indebtedness of other Persons of the types described in clauses (a) through (f) above, and (h) all Indebtedness of the types described in clauses (a) through (g) above secured by a Lien on any property or asset of such Person.
"Information" has the meaning set forth in Section 11.07.
"intellectual Property" means all patents, patent applications, trademarks, trademark applications, service marks, trade names, copyrights, copyright registrations, domain names, licenses, trade secrets, and other intellectual property rights.
"Interest Election Request" means a request by the Borrower to convert or continue Loans in accordance with Section 2.06, substantially in the form of Exhibit B or such other form as shall be approved by the Administrative Agent.
"Interest Payment Date" means (a) with respect to any ABR Loan or Swing Line Loan, the last Business Day of each calendar quarter and the applicable Maturity Date, and (b) with respect to any Term SOFR Loan, the last day of each Interest Period applicable thereto and, in the case of any Interest Period exceeding three months in duration, each date that would have been an Interest Payment Date had successive Interest Periods of three months been selected, and the applicable Maturity Date.
"Interest Period" means, with respect to any Term SOFR Borrowing, the period commencing on the date of such Borrowing (or on the date of the conversion or continuation of such Borrowing, as applicable) and ending on the numerically corresponding day in the calendar month that is one, three, or six months (or, to the extent agreed to by each applicable Lender, twelve months) thereafter, as selected by the Borrower in its Borrowing Request or Interest Election Request, as applicable; provided that (i) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day, and (ii) no Interest Period shall extend beyond the applicable Maturity Date.
"Issuing Bank" means Ridgeline National Bank, N.A., in its capacity as issuer of Letters of Credit hereunder, and its successors in such capacity as provided in Section 2.04.
"LC Exposure" means, at any time, the sum of (a) the aggregate undrawn amount of all outstanding Letters of Credit at such time and (b) the aggregate amount of all LC Disbursements that have not yet been reimbursed by or on behalf of the Borrower at such time.
"Lender" means each Person listed on Schedule 2.01 (including Ridgeline National Bank, N.A. and Pinnacle Commercial Credit Corp.) and any other Person that shall have become a party hereto pursuant to an Assignment and Assumption, other than any such Person that shall have ceased to be a party hereto pursuant to an Assignment and Assumption.
"Letters of Credit" means letters of credit issued by the Issuing Bank for the account of the Borrower or any Guarantor pursuant to Section 2.04.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority, or other security interest or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way, or other encumbrance on title to real property, and any financing lease having substantially the same economic effect as any of the foregoing).
"Loan Documents" means this Agreement, the Guarantee Agreement, the Security Agreement, the Pledge Agreement, each Mortgage, each Note (if any), the Fee Letter, each Borrowing Request, each Interest Election Request, each Compliance Certificate, each Joinder Agreement, and each other agreement, instrument, certificate, or document delivered in connection herewith or therewith.
"Loan Parties" means the Borrower and each Guarantor.
"Loans" means the Term Loans B, the Revolving Loans, and the Swing Line Loans.
"Material Adverse Effect" means any event, development, circumstance, condition, or change that, individually or in the aggregate, has had, or could reasonably be expected to have, a material adverse effect on (a) the business, operations, property, condition (financial or otherwise), or prospects of the Borrower and its Subsidiaries, taken as a whole, (b) the ability of any Loan Party to perform its payment obligations under any Loan Document, or (c) the rights and remedies of the Administrative Agent and the Lenders under the Loan Documents; provided that none of the following, individually or in the aggregate, shall be deemed to constitute, or shall be taken into account in determining whether there has been, a "Material Adverse Effect": (i) general economic or political conditions (including changes in interest rates and currency exchange rates), (ii) conditions generally affecting the healthcare industry in the United States, (iii) changes in applicable law or GAAP (or the interpretation thereof), (iv) effects resulting from the announcement of this Agreement and the Transactions, or (v) effects arising from natural disasters, epidemics, pandemics, or acts of war or terrorism; provided, further, that clauses (i), (ii), (iii), and (v) shall not apply to the extent such events, developments, circumstances, conditions, or changes disproportionately affect the Borrower and its Subsidiaries relative to other participants in the industries in which they operate.
"Material Contract" means any contract or agreement to which the Borrower or any Subsidiary is a party (other than a Loan Document) (a) involving aggregate annual payments or receivables in excess of $2,500,000, (b) the breach, nonperformance, cancellation, or failure to renew of which could reasonably be expected to have a Material Adverse Effect, (c) constituting a material managed-care agreement, or (d) constituting a material real property lease. Schedule 5.24 sets forth a complete list of all Material Contracts as of the Closing Date.
"Material Domestic Subsidiary" means any Subsidiary of the Borrower that is organized under the laws of the United States, any state thereof, or the District of Columbia and that, as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered, had (a) total assets exceeding 5% of the consolidated total assets of the Borrower and its Subsidiaries or (b) total revenues exceeding 5% of the consolidated total revenues of the Borrower and its Subsidiaries; provided that if at any time the aggregate EBITDA of all Subsidiaries that are Guarantors (together with the Borrower) does not equal or exceed 95% of Consolidated EBITDA, or the aggregate total assets of all Subsidiaries that are Guarantors (together with the Borrower) does not equal or exceed 95% of the consolidated total assets of the Borrower and its Subsidiaries, the Borrower shall designate additional Domestic Subsidiaries as Guarantors to satisfy such threshold.
"Material Indebtedness" means Indebtedness (other than the Loans and Letters of Credit) of any one or more of the Loan Parties and their Subsidiaries in an aggregate principal amount exceeding $7,500,000.
"Maturity Date" means (a) with respect to the Term Loan B Facility, the Term Loan B Maturity Date, and (b) with respect to the Revolving Credit Facility, the Revolving Maturity Date.
"Maximum Rate" means the maximum rate of nonusurious interest permitted from time to time by applicable law, as in effect from time to time.
"Mortgaged Property" means each parcel of real property listed on Schedule 4.19 and subject to a Mortgage in favor of the Collateral Agent.
"Mortgages" means collectively, the deeds of trust, trust deeds, mortgage deeds, and similar instruments in favor of the Collateral Agent for the benefit of the Secured Parties, in form and substance reasonably satisfactory to the Collateral Agent, executed and delivered with respect to the Mortgaged Properties.
"Net Cash Proceeds" means, with respect to any event, (a) the cash and Cash Equivalents received in connection therewith (including any cash payments received by way of deferred payment pursuant to a promissory note, receivable, or otherwise, but only when received), minus (b) the sum of (i) all reasonable fees, commissions, costs, and other expenses incurred in connection therewith, (ii) all federal, state, provincial, foreign, and local taxes assessed or estimated (on a good faith basis) to be payable as a result thereof (after taking into account any available tax credits or deductions), (iii) in the case of a Disposition, the amount of any reasonable reserve established in accordance with GAAP against liabilities associated with the assets disposed of, and (iv) in the case of a Disposition, the principal amount, premium or penalty (if any), and interest on any Indebtedness (other than the Loans) that is secured by a Lien on the property disposed of and that is required to be repaid in connection with such Disposition.
"Obligations" means all advances, debts, liabilities, obligations, covenants, and duties of every type and description arising under or in connection with any Loan Document, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, and whether now existing or hereafter arising, including all principal, interest (including interest accruing after the commencement of any proceeding under any Debtor Relief Law), fees, charges, expenses, attorneys' fees, and indemnification obligations.
"OIG-HHS" means the Office of Inspector General of the United States Department of Health and Human Services, or any successor agency thereto.
"Organizational Documents" means (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction), (b) with respect to any limited liability company, the certificate or articles of formation or organization and the operating agreement, and (c) with respect to any limited partnership, the certificate of limited partnership and the partnership agreement. With respect to the Borrower, the Organizational Documents shall include the certificate of incorporation filed with the Secretary of State of Delaware on January 8, 2025 (DE File No. 7201548) and bylaws adopted on the same date. With respect to the Target, the Organizational Documents shall include the certificate of incorporation (DE File No. 4938217) and bylaws.
"Permitted Acquisition" has the meaning set forth in Section 7.04(e).
"Permitted Encumbrances" means (a) Liens imposed by law for Taxes not yet delinquent or being contested in good faith by appropriate proceedings, in each case for which adequate reserves have been established in accordance with GAAP, (b) carriers', warehousemen's, mechanics', materialmen's, repairmen's, and other like Liens imposed by law, arising in the ordinary course of business and securing obligations that are not overdue by more than 60 days or that are being contested in good faith by appropriate proceedings, (c) pledges and deposits made in the ordinary course of business in compliance with workers' compensation, unemployment insurance, and other social security laws, (d) deposits to secure the performance of bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds, and other obligations of a like nature, in each case in the ordinary course of business, (e) easements, zoning restrictions, rights-of-way, and similar encumbrances on real property imposed by law or arising in the ordinary course of business that do not secure any monetary obligations and do not materially detract from the value of the affected property or interfere with the ordinary conduct of business of the applicable Loan Party, and (f) Liens arising by virtue of any statutory or common law provision relating to banker's liens, rights of set-off, or similar rights.
"Permitted Indebtedness" has the meaning set forth in Section 7.01.
"Permitted Liens" has the meaning set forth in Section 7.02.
"Person" means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority, or other entity.
"Plan" means any "employee benefit plan" as defined in Section 3(3) of ERISA that is maintained by or contributed to by the Borrower or any ERISA Affiliate or with respect to which the Borrower or any ERISA Affiliate has or could have any liability.
"Prime Rate" means the rate of interest per annum last quoted by The Wall Street Journal as the "Prime Rate" in the United States.
"R&W Insurance Policy" means that certain Representations and Warranties Insurance Policy No. NSI-POLI-2025-04418 issued by Northbridge Specialty Insurance Company, with a policy limit of $62,000,000 and a retention of $6,200,000.
"Register" has the meaning set forth in Section 11.06(d).
"Related Parties" means, with respect to any Person, such Person's Affiliates and the directors, officers, employees, agents, trustees, administrators, managers, advisors, and representatives of such Person and of such Person's Affiliates.
"Required Lenders" means, at any time, Lenders having Revolving Exposures, outstanding Term Loans, and unused Commitments representing more than 50% of the sum of all Revolving Exposures, outstanding Term Loans, and unused Commitments at such time; provided that the Commitments and Loans of any Defaulting Lender shall be excluded for purposes of making such determination.
"Responsible Officer" means the chief executive officer, the president, the chief financial officer, the treasurer, the assistant treasurer, the controller, or the secretary of the Borrower, or any other officer of the Borrower designated by the foregoing officers and reasonably acceptable to the Administrative Agent.
"Restricted Payment" means any dividend or other distribution (whether in cash, securities, or other property) with respect to any equity interest in the Borrower or any Subsidiary, or any payment (whether in cash, securities, or other property) on account of the purchase, redemption, retirement, acquisition, cancellation, or termination of any such equity interest.
"Revolving Availability Period" means the period from and including the Closing Date to the earliest of (a) the Revolving Maturity Date, (b) the date of termination of the Revolving Commitments pursuant to Section 2.07, and (c) the date of termination of the Revolving Commitments pursuant to Section 8.02.
"Revolving Commitment" means, with respect to each Revolving Lender, the commitment of such Revolving Lender to make Revolving Loans and to acquire participations in Letters of Credit and Swing Line Loans, in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Revolving Lender's name on Schedule 2.01 under the caption "Revolving Commitment" (as adjusted from time to time in accordance with this Agreement). The aggregate Revolving Commitments as of the Closing Date are $50,000,000.
"Revolving Exposure" means, with respect to any Revolving Lender at any time, the aggregate amount of such Revolving Lender's outstanding Revolving Loans plus such Revolving Lender's Swing Line Exposure plus such Revolving Lender's LC Exposure at such time.
"Revolving Lender" means each Lender that has a Revolving Commitment or that holds outstanding Revolving Loans.
"Revolving Loans" means the revolving loans made by the Revolving Lenders to the Borrower pursuant to Section 2.02.
"Revolving Maturity Date" means April 18, 2030, or such later date as may result from an extension pursuant to Section 2.16.
"Sanctioned Country" means, at any time, a country, region, or territory that is itself, or whose government is, the subject or target of comprehensive Sanctions broadly prohibiting or restricting dealings with such country, region, territory, or government (as of the Closing Date: the Crimea region, Cuba, Iran, North Korea, and Syria).
"Sanctioned Person" means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the United States Department of the Treasury's Office of Foreign Assets Control ("OFAC"), the United States Department of State, the United Nations Security Council, the European Union, any member state of the European Union, or His Majesty's Treasury of the United Kingdom, (b) any Person operating, organized, or resident in a Sanctioned Country, or (c) any Person that is 50% or more owned, directly or indirectly, or otherwise controlled by any such Person or Persons described in clause (a) or (b).
"Sanctions" means all economic or financial sanctions or trade embargoes imposed, administered, or enforced from time to time by (a) OFAC, (b) the United States Department of State, (c) the United Nations Security Council, (d) the European Union or any member state thereof, or (e) His Majesty's Treasury of the United Kingdom.
"Secured Parties" means, collectively, the Administrative Agent, the Collateral Agent, each Lender, each Issuing Bank, the Swing Line Lender, and each other Person to whom any Obligation is owed.
"Security Agreement" means the security agreement to be executed by the Borrower and the Guarantors in favor of the Collateral Agent for the benefit of the Secured Parties, substantially in the form of Exhibit H.
"Security Documents" means the Security Agreement, the Pledge Agreement, the Mortgages, the Deposit Account Control Agreements, and each other agreement, instrument, or document executed and delivered to create or perfect any Lien on any Collateral in favor of the Collateral Agent.
"SOFR" means the Secured Overnight Financing Rate as administered by the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).
"SOFR Adjustment" means (a) 0.10% per annum for any Interest Period of one month, (b) 0.15% per annum for any Interest Period of three months, and (c) 0.25% per annum for any Interest Period of six months.
"Solvent" means, with respect to any Person on any date of determination, that on such date (a) the fair value of the assets of such Person exceeds the total amount of liabilities (including contingent liabilities) of such Person, (b) the present fair salable value of the assets of such Person exceeds the amount that will be required to pay the probable liability of such Person on its debts and other liabilities (including contingent liabilities) as they become absolute and matured, (c) such Person is able to pay its debts and liabilities as they become absolute and matured in the ordinary course of business, and (d) such Person does not have unreasonably small capital with which to conduct its business. For purposes of this definition, the amount of any contingent liability shall be computed as the amount that, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
"Specified Acquisition Agreement Representations" means the representations and warranties made by the sellers or the Target in the Acquisition Agreement that are material to the interests of the Lenders, but only to the extent the Borrower (or its Affiliates) has the right not to consummate the Acquisition (or has the right to terminate the Acquisition Agreement) as a result of a breach of such representations and warranties in the Acquisition Agreement.
"Specified Default" means any Event of Default under Section 8.01(a) (payment default) or Section 8.01(j) (bankruptcy).
"Specified Representations" means the representations and warranties set forth in Sections 5.01 (Existence, Qualification, and Power), 5.02 (Authorization; No Contravention), 5.04 (Binding Effect), 5.14 (Margin Regulations), 5.15 (Investment Company Act), 5.21 (Anti-Corruption Laws; Sanctions), 5.22 (Solvency), and 5.23 (Security Interest in Collateral), and the Specified Acquisition Agreement Representations.
"Sponsor" means Ardent Capital Partners III LP, a Delaware limited partnership.
"Subsidiary" means, with respect to any Person (the "parent") at any date, any corporation, limited liability company, partnership, association, or other entity the accounts of which would be consolidated with those of the parent in the parent's consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date, as well as any other corporation, limited liability company, partnership, association, or other entity of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power are, as of such date, owned, controlled, or held by the parent or one or more subsidiaries of the parent.
"Swap Obligation" mea