Exhibit (b)(i)
$1,115,000,000
CREDIT AGREEMENT
Dated as of April 26, 2002
Among
DAVITA INC.
as Borrower
-----------
CREDIT SUISSE FIRST BOSTON, CAYMAN ISLANDS BRANCH
as Administrative Agent
-----------------------
CREDIT SUISSE FIRST BOSTON, CAYMAN ISLANDS BRANCH
and
BANC OF AMERICA SECURITIES LLC,
as Joint Lead Arrangers and Joint Book Managers
-----------------------------------------------
BANK OF AMERICA, N.A.,
as Syndication Agent
--------------------
THE BANK OF NEW YORK, THE BANK OF NOVA SCOTIA, WACHOVIA BANK,
NATIONAL ASSOCIATION
as Documentation Agents
-----------------------
and
THE INITIAL LENDERS, INITIAL ISSUING BANK AND
SWING LINE BANK party hereto
TABLE OF CONTENTS
Section Page
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ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms ................................................................. 1
SECTION 1.02. Computation of Time Periods; Other Definitional Provisions ............................ 28
SECTION 1.03. Accounting Terms ...................................................................... 29
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES AND THE LETTERS OF CREDIT
SECTION 2.01. The Advances and the Letters of Credit. ............................................... 29
SECTION 2.02. Making the Advances. .................................................................. 31
SECTION 2.03. Issuance of and Drawings and Reimbursement Under Letters of Credit. ................... 34
SECTION 2.04. Repayment of Advances. ................................................................ 36
SECTION 2.05. Termination or Reduction of the Commitments. .......................................... 38
SECTION 2.06. Prepayments. .......................................................................... 39
SECTION 2.07. Interest .............................................................................. 41
SECTION 2.08. Fees. ................................................................................. 42
SECTION 2.09. Conversion of Advances. ............................................................... 44
SECTION 2.10. Increased Costs, Etc. ................................................................. 45
SECTION 2.11. Evidence of Debt. ..................................................................... 47
SECTION 2.12. Payments and Computations. ............................................................ 47
SECTION 2.13. Taxes. ................................................................................ 50
SECTION 2.14. Sharing of Payments, Etc .............................................................. 53
SECTION 2.15. Use of Proceeds ....................................................................... 53
SECTION 2.16. Defaulting Lenders. ................................................................... 54
ARTICLE III CONDITIONS OF LENDING AND ISSUANCES OF LETTERS OF CREDIT
SECTION 3.01. Conditions Precedent to Initial Extension of Credit ................................... 56
SECTION 3.02. Conditions Precedent to Each Borrowing and Issuance and Renewal ....................... 59
SECTION 3.03. Determinations Under Section 3.01 ..................................................... 60
ARTICLE IV REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower ........................................ 60
ARTICLE V COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants ................................................................. 65
SECTION 5.02. Negative Covenants .................................................................... 69
SECTION 5.03. Reporting Requirements ................................................................ 79
SECTION 5.04. Financial Covenants ................................................................... 82
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ARTICLE VI EVENTS OF DEFAULT
Section Page
------- ----
SECTION 6.01. Events of Default ..................................................................... 85
SECTION 6.02. Actions in Respect of the Letters of Credit upon Default .............................. 88
ARTICLE VII THE AGENTS
SECTION 7.01. Appointment, Powers and Immunity. ..................................................... 89
SECTION 7.02. Reliance by Agent ..................................................................... 90
SECTION 7.03. Defaults .............................................................................. 90
SECTION 7.04. CSFB and Affiliates ................................................................... 90
SECTION 7.05. Indemnification. ...................................................................... 91
SECTION 7.06. Non-Reliance on Agent and Other Lender Parties ........................................ 92
SECTION 7.07. Resignation of Administrative Agent ................................................... 92
SECTION 7.08. Release of Collateral ................................................................. 93
SECTION 7.09. Release of Guarantor .................................................................. 93
SECTION 7.10. Actions in Respect of Intercreditor Agreement ......................................... 93
ARTICLE VIII MISCELLANEOUS
SECTION 8.01. Amendments, Etc ....................................................................... 93
SECTION 8.02. Notices, Etc. ......................................................................... 95
SECTION 8.03. No Waiver; Remedies ................................................................... 95
SECTION 8.04. Costs and Expenses. ................................................................... 95
SECTION 8.05. Right of Set-off ...................................................................... 97
SECTION 8.06. Successors and Assigns ................................................................ 97
SECTION 8.07. Assignments and Participations. ....................................................... 98
SECTION 8.08. Execution in Counterparts ............................................................. 102
SECTION 8.09. No Liability of the Issuing Bank ...................................................... 102
SECTION 8.10. Confidentiality ....................................................................... 102
SECTION 8.11. Execution in Counterparts ............................................................. 103
SECTION 8.12. Governing Law, Jurisdiction, Etc. ..................................................... 103
SECTION 8.13. Designation as Designated Senior Debt ................................................. 103
SECTION 8.14. WAIVER OF JURY TRIAL .................................................................. 104
SCHEDULES
---------
Schedule I - Commitments and Applicable Lending Offices
Schedule II - Existing Letters of Credit
Schedule 4.01(b) - Subsidiaries
Schedule 4.01(d) - Authorizations
Schedule 4.01(f) - Litigation
Schedule 4.01(o) - Environmental Laws
Schedule 4.01(p) - Open Years
Schedule 4.01(q) - Liens
Schedule 4.01(r) - Investments
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Schedule 4.01(s) - Facilities
Schedule 5.02(b) - Debt
EXHIBITS
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Exhibit A-1 - Form of Term A Note
Exhibit A-2 - Form of Term B Note
Exhibit A-3 - Form of Revolving Credit Note
Exhibit B-1 - Form of Notice of Borrowing
Exhibit B-2 - Form of Notice of Swing Line Borrowing
Exhibit B-3 - Form of Notice of Conversion
Exhibit C - Form of Assignment and Assumption
Exhibit D - Form of Security Agreement
Exhibit E - Form of Subsidiary Guarantee
Exhibit F - Form of Opinion of Borrower's General Counsel
Exhibit G - Form of Opinion of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
Exhibit H - Entities that are not Subsidiaries
Exhibit I - Form of Notice of Covenant Reduction
CREDIT AGREEMENT
CREDIT AGREEMENT dated as of April 26, 2002 among DAVITA INC., a Delaware
corporation (the "Borrower"), the banks, financial institutions and other
institutional lenders listed on the signature pages hereof under the caption
"Initial Lenders" (the "Initial Lenders"), the banks party hereto as Issuing
Banks (as hereinafter defined), CREDIT SUISSE FIRST BOSTON, CAYMAN ISLANDS
BRANCH ("CSFB"), as the provider of the Swing Line Facility (as hereinafter
defined) (the "Swing Line Bank"), CSFB and BANC OF AMERICA SECURITIES LLC, as
the joint book running managers and joint lead arrangers (the "Book Managers")
for the Facilities (as hereinafter defined), CSFB as the administrative agent
(together with any successor thereto appointed pursuant to Article VII, the
"Administrative Agent") for the Lender Parties (as hereinafter defined), THE
BANK OF NEW YORK, THE BANK OF NOVA SCOTIA and WACHOVIA BANK, NATIONAL
ASSOCIATION, as documentation agents (the "Documentation Agents") and BANK OF
AMERICA, N.A. ("BofA"), as syndication agent (the "Syndication Agent").
PRELIMINARY STATEMENTS:
The Borrower has requested that the Lender Parties provide credit
facilities in an aggregate amount of $1,115,000,000 as provided herein, and the
Lender Parties have agreed to provide such credit facilities on the terms and
conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto hereby agree as
follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and the plural forms of the terms defined):
"Accepting Lender" has the meaning specified in Section 2.06(d).
"Administrative Agent" has the meaning specified in the recital of
parties to this Agreement.
"Administrative Agent's Account" means the account of the
Administrative Agent maintained by the Administrative Agent at The Bank of
New York, ABA No. ▇▇▇▇▇▇▇▇▇, Account Name: "CSFB Agency Cayman Account,"
Account No. 8900492627, Reference: DaVita Inc., or such other account
maintained by the Administrative Agent and designated by the Administrative
Agent from time to time as such in a written notice to the Borrower and
each of the Lender Parties.
"Administrative Questionnaire" means a questionnaire, in form and
substance satisfactory to the Administrative Agent, delivered by an
Eligible Assignee pursuant to Section 8.07(a)(iv) which provides the
administrative information relating to such Eligible Assignee.
"Advance" means a Term A Advance, a Term B Advance, a Revolving Credit
Advance, a Swing Line Advance or a Letter of Credit Advance, as the context
may require.
"Affiliate" means, with respect to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common
control with such Person or is a director or officer of such Person. For
purposes of this definition, the term "control" (including the terms
"controlling," "controlled by" and "under common control with") of a Person
means the possession, direct or indirect, of the power to vote 10% or more
of the Voting Interests in such Person or to direct or cause the direction
of the management and policies of such Person, whether through the
ownership of Voting Interests, by contract or otherwise.
"Agents" means, collectively, the Administrative Agent, the Book
Managers, the Syndication Agent, the Documentation Agents and each co-agent
or sub-agent appointed by the Administrative Agent from time to time
pursuant to Section 7.01(b).
"Agreement" means this Credit Agreement, as the same may be amended,
restated, supplemented or otherwise modified from time to time.
"Agreement Value" means, for each Hedge Agreement, on any date of
determination, an amount reasonably determined by the Administrative Agent
equal to: (a) in the case of a Hedge Agreement documented pursuant to the
Master Agreement (Multicurrency-Cross Border) published by the
International Swap and Derivatives Association, Inc. (the "Master
Agreement"), the amount, if any, that would be payable by any Loan Party to
its counterparty in respect of such Hedge Agreement, as if (i) such Hedge
Agreement was being terminated early on such date of determination, (ii)
such Loan Party was the sole "Affected Party", and (iii) the Administrative
Agent was the sole party determining such payment amount (with the
Administrative Agent making such determination pursuant to the provisions
of that specific form of Master Agreement); or (b) in the case of a Hedge
Agreement traded on an exchange, the ▇▇▇▇-to-market value of such Hedge
Agreement, which will be the unrealized gain or loss on such Hedge
Agreement to the Loan Party to such Hedge Agreement reasonably determined
by the Administrative Agent based on the settlement price of such Hedge
Agreement on such date of determination, or (c) in all other cases, the
▇▇▇▇-to-market value of such Hedge Agreement, which will be the unrealized
gain or loss on such Hedge Agreement to the Loan Party to such Hedge
Agreement reasonably determined by the Administrative Agent as the amount,
if any, by which (i) the present value of the future cash flows to be paid
by such Loan Party exceeds (ii) the present value of the future cash flows
to be received by such Loan Party pursuant to such Hedge Agreement;
capitalized terms used and not otherwise defined in this definition shall
have the respective meanings set forth in the above described Master
Agreement.
"Applicable Lending Office" means (a) with respect to each of the
Lenders, the Base Rate Lending Office of such Lender in the case of a Base
Rate Advance and the Eurodollar Lending Office of such Lender in the case
of a Eurodollar Rate Advance and (b) with respect to the Issuing Bank and
the Swing Line Bank, the Base Rate Lending Office of the Issuing Bank and
the Swing Line Bank, respectively, for all purposes of this Agreement.
"Applicable Margin" means (i) at any time during the period from the
date of this Agreement through the date of receipt by the Administrative
Agent of the Required Financial Information for the Measurement Period
ending March 31, 2002, 1.75% per annum for Base Rate Advances under the
Term A Facility and the Revolving Credit Facility and 2.00% per annum for
Base Rate Advances under the Term B Facility and 2.75% per annum for
Eurodollar Rate Advances under the Term A Facility and the Revolving Credit
Facility and 3.00% per annum for Eurodollar Rate Advances under the Term B
Facility and (ii) at any time and from time to time thereafter, on any date
of determination, a percentage per annum equal to the applicable
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percentage for the Performance Level set forth below as determined by
reference to the Leverage Ratio for the most recently completed Measurement
Period:
==============================================================================================================
Base Rate Advances Eurodollar Rate Advances
--------------------------------- --------------------------------------- -----------------------------
Performance Level Leverage Ratio Term A Facility/Revolving Term B Term A Term B
Credit Facility Facility Facility/Revolving Facility
Credit Facility
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I Less than 2.00x 0.50% 2.00% 1.50% 3.00%
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II Greater than or 1.00% 2.00% 2.00% 3.00%
equal to 2.00x
but less than
2.50x
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III Greater than or 1.25% 2.00% 2.25% 3.00%
equal to 2.50x
but less than
3.00x
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--------------------------------------------------------------------------------------------------------------
IV Greater than or 1.50% 2.00% 2.50% 3.00%
equal to 3.00x
but less than
3.50x
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
V Greater than or 1.75% 2.00% 2.75% 3.00%
equal to 3.50x
==============================================================================================================
For the purposes of:
(A) clause (ii) of the immediately preceding sentence,
the Applicable Margin for each Base Rate Advance shall be
determined by reference to the Performance Level in effect
from time to time and the Applicable Margin for each
Eurodollar Rate Advance shall be determined by reference to
the Performance Level in effect on the first day of each
Interest Period for such Eurodollar Rate Advance; and
(B) determining the Performance Level in respect of the
Applicable Margin at any date of determination, changes in
the Performance Level shall be effective on the date on
which the Administrative Agent and the Lender Parties
receive the Required Financial Information reflecting such
change; provided, however, that if the Borrower has not
delivered to the Administrative Agent and the Lender Parties
all of the information required under this clause (B) within
five Business Days after the date on which such information
is otherwise required under Section 5.03(b) or 5.03(c), as
applicable, the Performance Level shall be deemed to be at
Performance Level IV for so long as such information has not
been submitted.
"Applicable Percentage" means, with respect to the
Commitment Fee, (a) at any time during the period from the date
of this Agreement through the date of receipt by the
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Administrative Agent of the Required Financial Information for
the Measurement Period ending March 31, 2002, 0.50% per annum and
(b) at any time and from time to time thereafter, a rate per
annum equal to 0.375% if the Leverage Ratio for the most recently
completed Measurement Period is less than 3.00:1.00 and 0.50% if
such Leverage Ratio is greater than or equal to 3.00:1.00. For
the purposes of determining the Leverage Ratio in respect of the
Applicable Percentage at any date of determination, changes in
the Applicable Percentage shall be effective on the date on which
the Administrative Agent and the Lender Parties receive the
Required Financial Information reflecting such change; provided,
however, that if the Borrower has not delivered to the
Administrative Agent and the Lender Parties all of the
information required under this definition within five Business
Days after the date on which such information is otherwise
required under Section 5.03(b) or 5.03(c), as applicable, the
Applicable Percentage shall be 0.50% for so long as such
information has not been submitted.
"Appropriate Lender" means, at any time, (a) with respect to
the Term A Facility, the Term B Facility or the Revolving Credit
Facility, a Lender that has a Commitment with respect to such
Facility at such time, (b) with respect to the Letter of Credit
Facility, (i) the Issuing Bank and (ii) if the Revolving Credit
Lenders have made Letter of Credit Advances pursuant to Section
2.03(b) that are outstanding at such time, each such Revolving
Credit Lender and (c) with respect to the Swing Line Facility,
(i) the Swing Line Bank and (ii) if the Revolving Credit Lenders
have made Swing Line Advances pursuant to Section 2.02(b) that
are outstanding at such time, each such Revolving Credit Lender.
"Approved Fund" means any Person (other than a natural
Person) that (i) is (or will be) an "accredited investor" (as
defined in Regulation D under the Securities Act) engaged in
making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of
its business and (ii) is administered, advised or managed by (a)
a Lender, (b) an Affiliate of a Lender or (c) an entity or an
Affiliate of an entity that administers, advises or manages a
Lender.
"Assignment and Assumption" means an Assignment and
Assumption entered into by a Lender Party and an Eligible
Assignee, and accepted by the Administrative Agent and, if
applicable, the Borrower, in accordance with Section 8.07 and in
substantially the form of Exhibit C hereto.
"Available Amount" of any Letter of Credit means, at any
time, the maximum amount available to be drawn under such Letter
of Credit at such time (assuming compliance at such time with all
conditions to drawing).
"Base Rate" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times
be equal to the higher of:
(a) the rate of interest established by CSFB from time
to time as its prime rate (which rate of interest may not be
the lowest rate of interest charged by CSFB to its
customers); and
(b) the Federal Funds Rate plus 0.50%.
Any change in the Base Rate resulting from a change in the
prime rate established by CSFB shall become effective on the
Business Day on which such change in the prime rate is announced
by CSFB.
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"Base Rate Advance" means an Advance that bears interest as
provided in Section 2.07(a)(i).
"Base Rate Lending Office" means, with respect to each of
the Lender Parties, the office of such Lender Party specified as
its "Base Rate Lending Office" opposite its name on Schedule I
hereto or in the Assignment and Assumption pursuant to which it
became a Lender Party, as the case may be, or such other office
of such Lender Party as such Lender Party may from time to time
specify to the Borrower and the Administrative Agent for such
purpose.
"Borrower's Account" means such account of the Borrower as
is agreed from time to time in writing between the Borrower and
the Administrative Agent.
"Borrower's Percentage" means, in respect of the sale or
issuance of Equity Interests by any Subsidiary of the Borrower,
the percentage of the common Equity Interests of such Subsidiary
beneficially owned directly or indirectly by the Borrower after
giving effect to such sale or issuance.
"Borrowing" means a Term A Borrowing, a Term B Borrowing, a
Revolving Credit Borrowing or a Swing Line Borrowing, as the
context may require.
"Business Day" means a day of the year on which banks are
not required or authorized by law to close in New York, New York,
and, if the applicable Business Day relates to any Eurodollar
Rate Advances, on which dealings are carried on in U.S. dollar
deposits in the London interbank market.
"Capital Assets" means, with respect to any Person, all
equipment, fixed assets and real property or improvements of such
Person, or replacements or substitutions therefor or additions
thereto, that, in accordance with GAAP, have been or should be
reflected as additions to property, plant or equipment on the
balance sheet of such Person.
"Capital Expenditures" means, with respect to any Person for
any period, all expenditures made directly or indirectly by such
Person during such period for Capital Assets (whether paid in
cash or other consideration or accrued as a liability and
including, without limitation, all expenditures for maintenance
and repairs which are required, in accordance with GAAP, to be
capitalized on the books of such Person). For purposes of this
definition, the purchase price of equipment or other fixed assets
that are purchased simultaneously with the trade-in of existing
assets or with insurance proceeds shall be included in Capital
Expenditures only to the extent of the gross amount by which such
purchase price exceeds the credit granted by the seller of such
assets for the assets being traded in at such time or the amount
of such insurance proceeds, as the case may be.
"Capitalized Lease" means any lease with respect to which
the lessee is required to recognize concurrently the acquisition
of property or an asset and the incurrence of a liability in
accordance with GAAP.
"Capitalized Lease Obligations" means, with respect to any
Capitalized Lease, the amount required to be capitalized in the
financial statements of the lessee in accordance with GAAP.
"Cash Distributions" means, with respect to any Person for
any period, all dividends and other distributions on any of the
outstanding Equity Interests in such Person, all purchases,
5
redemptions, retirements, defeasances or other acquisitions of
any of the outstanding Equity Interests in such Person and all
returns of capital to the stockholders, partners or members (or
the equivalent persons) of such Person, in each case to the
extent paid in cash by or on behalf of such Person during such
period.
"Cash Equivalents" means (a) securities with maturities of
one year or less from the date of acquisition, issued, fully
guaranteed or insured by the United States Government, (b)
securities with maturities of one year or less from the date of
acquisition issued, fully guaranteed or insured by any State of
the United States of America or any political subdivision thereof
rated at least AA- by S&P's Ratings Services or Aa3 by ▇▇▇▇▇'▇,
or carrying an equivalent rating by a nationally recognized
rating agency if both of the two named rating agencies cease
publishing ratings of investments, (c) certificates of deposit,
time deposits, overnight bank deposits, bankers' acceptances and
repurchase agreements issued by a Qualified Issuer having
maturities of 270 days or less from the date of acquisition,
(d) commercial paper of an issuer rated at least A-2 by S&P's
Ratings Services or P-2 by ▇▇▇▇▇'▇, or carrying an equivalent
rating by a nationally recognized rating agency if both of the
two named rating agencies cease publishing ratings of
investments, and having maturities of 270 days or less from the
date of acquisition, (e) money market accounts or funds, a
substantial portion of the assets of which constitute Cash
Equivalents described in clauses (a) through (d) above, with,
issued by or managed by Qualified Issuers, and (f) money market
accounts or funds, a substantial portion of the assets of which
constitute Cash Equivalents described in clauses (a) through (d)
above, which money market accounts or funds have net assets of
not less than $500,000,000 and have the highest rating available
of either S&P's Ratings Services or Moody's, or carrying an
equivalent rating by a nationally recognized rating agency if
both of the two named rating agencies cease publishing ratings of
investments.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended from time to
time.
"CERCLIIS" means the Comprehensive Environmental Response,
Compensation and Liability Information System maintained by the
U.S. Environmental Protection Agency.
"CHAMPUS" means the United States Department of Defense
Human Civilian Health and Medical Program of the Uniformed
Services.
"Change of Control" means, at any time:
(a) any "person" or "group" (each as used in Sections
13(d)(3) and 14(d)(2) of the Exchange Act) (i) becomes the
"beneficial owner" (as defined in Rule 13d-3 of the Exchange
Act), directly or indirectly, of Voting Interests in the Borrower
(including through securities convertible into or exchangeable
for such Voting Interests) representing 35% or more of the
combined voting power of all of the Voting Interests in the
Borrower (on a fully diluted basis) or (ii) otherwise has the
ability, directly or indirectly, to elect a majority of the board
of directors of the Borrower; or
(b) during any period of 24 consecutive months, whether
commencing before or after the date of this Agreement,
individuals who at the beginning of such 24-month period were
Continuing Directors shall cease for any reason to constitute a
majority of the board of directors of the Borrower;
6
"Closing Date" means the first date on which all of the
conditions precedent to the Initial Extension of Credit set forth
in Article III are satisfied, which date shall occur on or prior
to May 15, 2002.
"Collateral" means all of the "Collateral" referred to in
the Collateral Documents and all of the other property and assets
that are or are intended under the terms of the Collateral
Documents to be subject to Liens in favor of the Administrative
Agent for the benefit of the Secured Parties.
"Collateral Documents" means, collectively, the Security
Agreement, collateral assignments, Security Agreement
Supplements, security agreements, pledge agreements, mortgages,
deeds of trust or other similar agreements delivered to the
Administrative Agent and the Lender Parties pursuant to Section
3.01(a) or Section 5.01(j), and each of the other agreements,
instruments or documents that creates or purports to create a
Lien in favor of the Administrative Agent for the benefit of the
Secured Parties.
"Commitment" means a Term Commitment, a Revolving Credit
Commitment or a Swing Line Commitment, as the context may
require.
"Commitment Fee" has the meaning specified in Section
2.08(a)(i).
"Confidential Information" means information that is
furnished to the Administrative Agent or any of the Lender
Parties by or on behalf of the Borrower or any of its
Subsidiaries in a writing that is marked as confidential or
otherwise on an expressly confidential basis, but does not
include any such information that (a) is or becomes generally
available to the public (other than as a result of a breach by
the Administrative Agent or such Lender Party of its
confidentiality obligations under this Agreement) or (b) is or
becomes available to the Administrative Agent or such Lender
Party from a source other than the Borrower or any of its
Subsidiaries that is not, to the knowledge of the Administrative
Agent or such Lender Party, acting in violation of a
confidentiality agreement with the Borrower or any such
Subsidiary.
"Consolidated" refers to the consolidation of accounts in
accordance with GAAP.
"Consolidated Cash Taxes" means, with respect to any Person
for any period, (a) the aggregate amount of all payments in
respect of income taxes made in cash by such Person and its
Subsidiaries to any applicable Governmental Authority during such
period less (b) the aggregate amount of all cash refunds in
respect of income taxes received by such Person and its
Subsidiaries from any applicable Governmental Authority during
such period, after giving effect, to the extent available, to the
application of net operating losses available to such Person or
any such Subsidiary.
"Consolidated EBITDA" means, with respect to any Person for
any period, the amount equal to (I) the sum of (a) the
Consolidated Net Income of such Person and its Subsidiaries for
such period plus (b) the sum of each of the following expenses
that have been deducted in the determination of the Consolidated
Net Income of such Person and its Subsidiaries for such period:
(i) the Consolidated Interest Expense of such Person and its
Subsidiaries for such period, (ii) all income tax expense
(whether federal, state, local, foreign or otherwise) of such
Person and its Subsidiaries for such period, (iii) all
depreciation expense of such Person and its Subsidiaries for such
period, (iv) all amortization expense of such Person and its
Subsidiaries for such period and (v) all non-cash charges
otherwise deducted in determining the Consolidated Net Income of
such Person and its Subsidiaries for such period less all
extraordinary gains added in determining
7
the Consolidated Net Income of such Person and its Subsidiaries
for such period; provided that for any period, the amount of
non-cash charges arising from the write-off of current assets
shall not be included in this subclause (v) plus (c) for each
such period ending during the twelve-month period immediately
following the closing of any acquisition permitted under Section
5.02(f), an amount equal to the Consolidated EBITDA (calculated
on the basis as provided herein) for each such acquisition
calculated on a pro forma basis as if such acquisition had
occurred on the first day of the twelve-month period then ended,
minus (d) any cash expenditures for such period relating to the
non-cash charges set forth in subclause (b)(v) hereof, whether
for such period or any prior period, plus (e) non-recurring
charges incurred during such period not exceeding in the
aggregate during the period from April 1, 2000 and continuing
through the term of this Agreement $45,000,000 resulting from the
write-off of accounts receivable and other related charges as a
result of the pending third party carrier review of claims for
Medicare reimbursement submitted by the Subsidiary of the
Borrower operating the Borrower's Florida laboratory or other
Governmental Reimbursement Program Costs, minus (II) in respect
of (a) any Subsidiary sold in such period or (b) any assets sold
or disposed of in such period as to which EBITDA attributable
thereto can be determined, an amount equal to the Consolidated
EBITDA (calculated on the basis as provided herein) for each such
sale or disposition otherwise included in Consolidated EBITDA for
such period.
"Consolidated Interest Expense" means, with respect to any
Person for any period, the gross interest expense accrued on all
Debt of such Person and its Subsidiaries during such period,
determined on a Consolidated basis and in accordance with GAAP
for such period, including, without limitation, (a) in the case
of the Borrower, all fees paid or payable pursuant to Section
2.08(a), (b) commissions, discounts and other fees and charges
paid or payable in connection with letters of credit (including,
without limitation, the Letters of Credit), (c) all amortization
of original issue discount in respect of all Debt of such Person
and its Subsidiaries, (d) all dividends on Redeemable Preferred
Interests, to the extent paid or payable in cash, and (e) the net
payment, if any, paid or payable in connection with Hedge
Agreements less the net credit, if any, received in connection
with Hedge Agreements.
"Consolidated Net Income" means, for any period, the net
income (or net loss) of any Person and its Subsidiaries for such
period, determined on a Consolidated basis and in accordance with
GAAP.
"Consolidated Pre-Minority EBITDA" means Consolidated EBITDA
plus minority interests in income of consolidated Subsidiaries of
the Borrower to the extent deducted in determining net income of
the Borrower and its Subsidiaries on a Consolidated basis in the
calculation of Consolidated EBITDA.
"Constitutive Documents" means, with respect to any Person,
the certificate of incorporation or registration (including, if
applicable, certificate of change of name), articles of
incorporation or association, memorandum of association, charter,
bylaws, certificate of limited partnership, partnership
agreement, trust agreement, joint venture agreement, certificate
of formation, articles of organization, limited liability company
operating or members agreement, joint venture agreement or one or
more similar agreements, instruments or documents constituting
the organization or formation of such Person.
"Contingent Obligation" means, with respect to any Person,
any Obligation or arrangement of such Person to guarantee or
intended to guarantee any Debt, leases, dividends or other
obligations ("primary obligations") of any other Person (the
"primary obligor") in any manner, whether directly or indirectly,
including, without limitation, (a) the direct or indirect
8
guarantee, endorsement (other than for collection or deposit in
the ordinary course of business), co-making, discounting with
recourse or sale with recourse by such Person of the Obligation
of a primary obligor, (b) the Obligation to make take-or-pay or
similar payments, if required, regardless of nonperformance by
any other party or parties to an agreement or (c) any Obligation
of such Person, whether or not contingent, (i) to purchase any
such primary obligation or any property constituting direct or
indirect security therefor, (ii) to advance or supply funds
(A) for the purchase or payment of any such primary obligation or
(B) to maintain working capital, equity capital, net worth or
other balance sheet condition or any income statement condition
of the primary obligor or otherwise to maintain the solvency of
the primary obligor, (iii) to purchase, lease or otherwise
acquire property, assets, securities or services primarily for
the purpose of assuring the owner of any such primary obligation
of the ability of the primary obligor to make payment of such
primary obligation or (iv) otherwise to assure or hold harmless
the holder of such primary obligation against loss in respect
thereof. The amount of any Contingent Obligation shall be deemed
to be an amount equal to the stated or determinable amount of the
primary obligation in respect of which such Contingent Obligation
is made (or, if less, the maximum amount of such primary
obligation for which such Person may be liable pursuant to the
terms of the agreement, instrument or other document evidencing
such Contingent Obligation) or, if not stated or determinable,
the maximum reasonably anticipated liability in respect thereof
(assuming such Person is required to perform thereunder), as
determined by such Person in good faith.
"Continuing Director" means, for any period, an individual
who is a member of the board of directors of the Borrower on the
first day of such period or who has been nominated to the board
of directors of the Borrower by a majority of the other
Continuing Directors who were members of the board of directors
of the Borrower at the time of such nomination.
"Conversion", "Convert" and "Converted" each refer to a
conversion of Advances of one Type into Advances of the other
Type pursuant to Section 2.09 or 2.10.
"Debt" means, with respect to any Person (without
duplication) (a) all indebtedness of such Person for borrowed
money, (b) all Obligations of such Person for the deferred
purchase price of property or services (other than unsecured
trade payables incurred in the ordinary course of such Person's
business, provided that at all times during which the aggregate
amount of such payables exceed 50% of Consolidated EBITDA for the
most recent Measurement Period, "Debt" shall include all such
payables which are past due for more than 60 days (excluding
payables being contested in good faith) after the date on which
such payable was first past due), (c) all Obligations of such
Person evidenced by notes, bonds, debentures or other similar
instruments, or upon which interest payments are customarily
made, (d) all Obligations of such Person created or arising under
any conditional sale or other title retention agreement with
respect to property acquired by such Person (even though the
rights and remedies of the seller or lender under such agreement
in the event of default are limited to repossession or sale of
such property), (e) all Capitalized Lease Obligations of such
Person, (f) all Obligations, contingent or otherwise, of such
Person under acceptance, letter of credit or similar facilities,
(g) all Obligations of such Person to purchase, redeem, retire,
defease or otherwise make any payment in respect of any preferred
Equity Interests in such Person or any other Person, valued, at
the greater of its voluntary or involuntary liquidation
preference plus accrued and unpaid dividends, (h) all Obligations
of such Person in respect of Hedge Agreements, take-or-pay
agreements or other similar arrangements, valued, in the case of
Hedge Agreements, at the Agreement Value thereof, (i) all
Obligations of such Person under any synthetic lease, tax
retention operating lease, off-balance sheet loan or similar
off-balance sheet financing if the transaction giving rise to
such Obligation is considered indebtedness for borrowed money for
tax purposes but is classified as an operating lease in
accordance with GAAP; (j) all Contingent Obligations, and (k) all
indebtedness and other
9
payment Obligations referred to in clauses (a) through (j) above
of another Person secured by (or for which the holder of such
indebtedness or other payment Obligations has an existing right,
contingent or otherwise, to be secured by) any Lien on property
(including, without limitation, accounts and contract rights)
owned by such Person, even though such Person has not assumed or
become liable for the payment of such indebtedness or other
payment Obligations: provided that for the purposes of this
subclause (k) the amount thereof shall be equal to the lesser of
(i) the amount of such indebtedness or other payment Obligations
and (ii) the fair market value of the property subject to such
Lien.
"Declining Lender" has the meaning specified in Section
2.06(d).
"Default" means any Event of Default or any event or
condition that would constitute an Event of Default but for the
requirement that notice be given or time elapse or both.
"Defaulted Advance" means, with respect to any Lender Party
at any time, the portion of any Advance required to be made by
such Lender Party to the Borrower pursuant to Section 2.01 or
2.02 at or prior to such time that has not been made by such
Lender Party or by the Administrative Agent for the account of
such Lender Party pursuant to Section 2.02(e) as of such time. In
the event that a portion of a Defaulted Advance shall be deemed
made pursuant to Section 2.16(a), the remaining portion of such
Defaulted Advance shall be considered a Defaulted Advance
originally required to be made pursuant to Section 2.01 on the
same date as the Defaulted Advance so deemed made in part.
"Defaulted Amount" means, with respect to any Lender Party
at any time, any amount required to be paid by such Lender Party
to the Administrative Agent or any other Lender Party hereunder
or under any other Loan Document at or prior to such time that
has not been so paid as of such time, including, without
limitation, any amount required to be paid by such Lender Party
to (a) the Swing Line Bank pursuant to Section 2.02(b) to
purchase a portion of a Swing Line Advance made by the Swing Line
Bank, (b) the Issuing Bank pursuant to Section 2.03(b) to
purchase a portion of a Letter of Credit Advance made by the
Issuing Bank, (c) the Administrative Agent pursuant to Section
2.02(e) to reimburse the Administrative Agent for the amount of
any Advance made by the Administrative Agent for the account of
such Lender Party, (d) any other Lender Party pursuant to Section
2.14 to purchase any participation in Advances owing to such
other Lender Party and (e) the Administrative Agent or the
Issuing Bank pursuant to Section 7.05 to reimburse the
Administrative Agent or the Issuing Bank for such Lender Party's
ratable share of any amount required to be paid by the Lender
Parties to the Administrative Agent or the Issuing Bank as
provided therein. In the event that a portion of a Defaulted
Amount shall be deemed paid pursuant to Section 2.16(b), the
remaining portion of such Defaulted Amount shall be considered a
Defaulted Amount originally required to be paid hereunder or
under any other Loan Document on the same date as the Defaulted
Amount so deemed paid in part.
"Defaulting Lender" means, at any time, any Lender Party
that, at such time, (a) owes a Defaulted Advance or a Defaulted
Amount or (b) shall take any action or be the subject of any
action or proceeding of a type described in Section 6.01(f).
"Dialysis Facilities" has the meaning specified in Section
4.01(s).
"Documentation Agents" has the meaning specified in the
recital of parties to this Agreement.
10
"Domestic Person" means a Person that is organized under the
laws of, or whose property is located in, a jurisdiction within
the United States.
"Domestic Subsidiary" means, at any time, any of the direct
or indirect Subsidiaries of the Borrower that is incorporated or
organized under the laws of any state of the United States of
America or the District of Columbia.
"Eligible Assignee" means (a) with respect to any Facility
(other than the Letter of Credit Facility), (i) a Lender; (ii) an
Affiliate of a Lender or an Approved Fund of a Lender; (iii) a
commercial bank organized under the laws of the United States, or
any State thereof having a combined capital and surplus of at
least $100,000,000; (iv) a savings and loan association or
savings bank organized under the laws of the United States, or
any State thereof having a combined capital and surplus of at
least $100,000,000; (v) a commercial bank organized under the
laws of any other country which is a member of the OECD, or a
political subdivision of any such country, and having a combined
capital and surplus of at least $100,000,000, provided that such
bank is acting through a branch, agency or Affiliate located in
the United States or managed and controlled by a branch, agency
or affiliate located in the United States; (vi) the central bank
of any country that is a member of the OECD; (vii) a finance
company, insurance company or other financial institution, fund
(whether a corporation, partnership, trust or other entity) or
other entity that is engaged in making, purchasing or otherwise
investing in commercial loans in the ordinary course of its
business and, except with respect to a Term Facility, having
total assets (inclusive of assets of Affiliates or Approved Funds
thereof) of at least $100,000,000; and (viii) any other Person
approved by the Administrative Agent and, provided no Event of
Default is continuing, the Borrower, provided that the approval
of the Administrative Agent and the Borrower, when required,
shall not be unreasonably withheld or delayed, and (b) with
respect to the Letter of Credit Facility, a Person that is an
Eligible Assignee under subclause (iii) or (v) of clause (a) of
this definition and is approved by the Administrative Agent (such
approval not to be unreasonably withheld or delayed); provided,
however, that neither any Loan Party nor any Affiliate of a Loan
Party shall qualify as an Eligible Assignee under this
definition.
"Environmental Action" means any outstanding action, suit,
demand, demand letter, claim, notice of noncompliance or
violation, notice of liability or potential liability,
investigation, proceeding, consent order or consent agreement,
abatement order or other order or directive (conditional or
otherwise) relating in any way to any Environmental Law, any
Environmental Permit or any Hazardous Materials or arising from
alleged injury or threat to health, safety, natural resources or
the environment, including, without limitation, (a) by any
Governmental Authority for enforcement, cleanup, removal,
response, remedial or other actions or damages and (b) by any
applicable Governmental Authority or any other third party for
damages, contribution, indemnification, cost recovery,
compensation or injunctive relief.
"Environmental Law" means any Requirement of Law relating to
(a) the generation, use, handling, transportation, treatment,
storage, disposal, release or discharge of Hazardous Materials,
(b) pollution or the protection of the environment, health,
safety or natural resources or (c) occupational safety and
health, industrial hygiene, land use or the protection of human,
plant or animal health or welfare, including, without limitation,
CERCLA, in each case as amended from time to time, and including
the regulations promulgated and the rulings issued from time to
time thereunder.
"Environmental Permit" means any permit, approval,
identification number, license or other authorization required
under any Environmental Law.
11
"Equipment" has the meaning specified in Section 1(a) of the
Security Agreement.
"Equity Interests" means, with respect to any Person, all of
the shares of capital stock of (or other ownership or profit
interests in) such Person, all of the warrants, options or other
rights for the purchase or other acquisition from such Person of
shares of capital stock of (or other ownership or profit
interests in) such Person, all of the securities convertible into
or exchangeable for shares of capital stock of (or other
ownership or profit interests in) such Person or warrants, rights
or options for the purchase or other acquisition from such Person
of such shares (or such other interests), and all of the other
ownership or profit interests in such Person (including, without
limitation, partnership, member or trust interests therein),
whether voting or nonvoting, and whether or not such shares,
warrants, options, rights or other interests are authorized or
otherwise existing on any date of determination.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations
promulgated and the rulings issued from time to time thereunder.
"ERISA Affiliate" means any Person that for purposes of
Title IV of ERISA is a member of the controlled group of any Loan
Party, or under common control with any Loan Party, within the
meaning of Section 414 of the Internal Revenue Code.
"ERISA Event" means (a)(i) the occurrence of a reportable
event, within the meaning of Section 4043 of ERISA, with respect
to any Plan unless the 30-day notice requirement with respect to
such event has been waived by the PBGC or (ii) the requirements
of Section 4043(b) of ERISA are met with respect to a
contributing sponsor, as defined in Section 4001(a)(13) of ERISA,
of a Plan, and an event described in paragraph (9), (10), (11),
(12) or (13) of Section 4043(c) of ERISA could reasonably be
expected to occur with respect to such Plan within the following
30 days; (b) the application for a minimum funding waiver with
respect to a Plan; (c) the provision by the administrator of any
Plan of a notice of intent to terminate such Plan pursuant to
Section 4041(a)(2) of ERISA (including any such notice with
respect to a plan amendment referred to in Section 4041(e) of
ERISA); (d) the cessation of operations at a facility of any Loan
Party or any ERISA Affiliate in the circumstances described in
Section 4062(e) of ERISA; (e) the partial or complete withdrawal
by any Loan Party or any ERISA Affiliate from a Plan or a
Multiple Employer Plan; (f) the conditions for imposition of a
lien under Section 302(f) of ERISA shall have been met with
respect to any Plan; (g) the adoption of an amendment to a Plan
requiring the provision of security to such Plan pursuant to
Section 307 of ERISA; or (h) the institution by the PBGC of
proceedings to terminate a Plan pursuant to Section 4042 of
ERISA, or the occurrence of any event or condition described in
Section 4042 of ERISA, that constitutes grounds for the
termination of, or the appointment of a trustee to administer, a
Plan.
"Eurodollar Lending Office" means, with respect to each of
the Lenders, the office of such Lender specified as its
"Eurodollar Lending Office" opposite its name on Schedule I
hereto or in the Assignment and Assumption pursuant to which it
became a Lender, as the case may be (or, if no such office is
specified, its Base Rate Lending Office), or such other office of
such Lender as such Lender may from time to time specify to the
Borrower and the Administrative Agent for such purpose.
"Eurodollar Rate" means, with respect to any Eurodollar Rate
Advance for any Interest Period, the rate per annum determined by
the Administrative Agent at approximately 11:00 a.m. (London
time) on the date which is two Business Days prior to the
beginning of such Interest Period by reference to the British
Bankers' Association Interest Settlement Rates for deposits in
12
U.S. dollars (as set forth by any service selected by the
Administrative Agent which has been nominated by the British
Bankers' Association as an authorized information vendor for the
purpose of displaying such rates) for a period equal to such
Interest Period; provided that, to the extent that an interest
rate is not ascertainable pursuant to the foregoing provisions of
this definition the Eurodollar Rate shall be the interest rate
per annum determined by the Administrative Agent to be the
average of the rates per annum at which deposits in U.S. dollars
are offered for such Interest Period to major banks in the London
interbank market in London, England by the Agent at approximately
11:00 a.m. (London time) on the date which is two Business Days
prior to the beginning of such Interest Period. Each
determination by the Administrative Agent pursuant to this
definition shall be conclusive absent manifest error.
"Eurodollar Rate Advance" means an Advance that bears
interest as provided in Section 2.07(a)(ii).
"Events of Default" has the meaning specified in Section
6.01.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, and the regulations promulgated and
the rulings issued thereunder.
"Existing Credit Agreement" means the Credit Agreement,
dated as of May 3, 2001, as amended, between the Borrower, the
lender parties thereto, CSFB, as Syndication Agent, The Bank of
New York, The Bank of Nova Scotia and Suntrust Bank, as
Documentation Agents, and BofA, as the Administrative Agent.
"Existing Issuing Bank" means BofA, as the issuer of
Existing Letters of Credit.
"Existing Letters of Credit" means all letters of credit
issued under the Existing Credit Agreement and outstanding on the
Closing Date, as more fully described on Schedule II hereto.
"Facility" means the Term A Facility, the Term B Facility,
the Revolving Credit Facility, the Swing Line Facility or the
Letter of Credit Facility, as the context may require.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to
the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged
by federal funds brokers, as published for such day (or, if such
day is not a Business Day, for the immediately preceding Business
Day) by the Federal Reserve Bank of New York or, if such rate is
not so published for any day that is a Business Day, the average
rate charged to the Administrative Agent (in its individual
capacity) on such day on such transactions as determined by the
Administrative Agent.
"Fiscal Quarter" means, with respect to the Borrower or any
of its Subsidiaries, the period commencing January 1 in any
Fiscal Year and ending on the next succeeding March 31, the
period commencing April 1 in any Fiscal Year and ending on the
next succeeding June 30, the period commencing July 1 in any
Fiscal Year and ending on the next succeeding September 30 or the
period commencing October 1 in any Fiscal Year and ending on the
next succeeding December 31, as the context may require, or, if
any such Subsidiary was not in existence on the first day of any
such period, the period commencing on the date on which such
Subsidiary is incorporated, organized, formed or otherwise
created and ending on the last day of such period.
"Fiscal Year" means, with respect to the Borrower or any of
its Subsidiaries, the period commencing on January 1 in any
calendar year and ending on the next succeeding December 31
13
or, if any such Subsidiary was not in existence on January 1 in
any calendar year, the period commencing on the date on which
such Subsidiary is incorporated, organized, formed or otherwise
created and ending on the next succeeding December 31.
"Fixed Charge Coverage Ratio" means, for any period, the
ratio of (a) the amount equal to (i) the sum of (A) Consolidated
Pre-Minority EBITDA and (B) Lease Expense less (ii) Capital
Expenditures, in each case for the Borrower and its Subsidiaries
for such period, to (b) the sum of (i) Consolidated Interest
Expense, (ii) the aggregate principal amount (or the equivalent
thereto) of all Required Principal Payments, (iii) the aggregate
amount of all Consolidated Cash Taxes, and (iv) Lease Expense, in
each case for the Borrower and its Subsidiaries for such period.
"Foreign Subsidiary" means, at any time, any direct or
indirect Subsidiary of the Borrower that is not a Domestic
Subsidiary.
"Funded Debt" of any Person means all Debt of such Person
that by its terms matures more than one year after the date of
determination or matures within one year from such date but is
renewable or extendible, at the option of such Person, to a date
more than one year after such date or arises under a revolving
credit or similar agreement that obligates the lender or lenders
to extend credit during a period of more than one year after such
date, in each case determined on a Consolidated basis in
accordance with GAAP, including, without limitation, (i) the
aggregate amount of Governmental Reimbursement Program Costs
(exclusive of, with respect to the determination of Funded Debt
in any period, the portion of Governmental Reimbursement Program
Costs paid in such period) and (ii) in the case of the Borrower,
the Advances; provided, however, that the term "Funded Debt"
shall not include (x) any Contingent Obligations of such Person
(if and to the extent such Contingent Obligations would otherwise
be included in such term on any date of determination) that are
incurred solely to support Debt or Governmental Reimbursement
Program Costs of the Borrower or one or more Subsidiaries of the
Borrower to the extent such Contingent Obligations are otherwise
expressly permitted to be incurred under Section 5.02(b), and
(y) all Obligations of such Person to purchase, redeem, retire,
defease or otherwise make any payment in respect of any
Redeemable Preferred Interests.
"GAAP" has the meaning specified in Section 1.03.
"Governmental Authority" means any nation or government, any
state, province, city, municipal entity or other political
subdivision thereof, and any governmental, executive,
legislative, judicial, administrative or regulatory agency,
department, authority, instrumentality, commission, board or
similar body, whether ▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇,
local or foreign.
"Governmental Authorization" means any authorization,
approval, consent, franchise, license, covenant, order, ruling,
permit, certification, exemption, notice, declaration or similar
right, undertaking or other action of, to or by, or any filing,
qualification or registration with, any Governmental Authority.
"Governmental Reimbursement Program Costs" means with
respect to and payable by the Borrower and its Subsidiaries the
sum of:
(i) all amounts (including punitive and other similar
amounts) agreed to be paid in settlement or payable as a
result of a final, non-appealable judgment, award or similar
order relating to participation in Medical Reimbursement
Programs;
14
(ii) all final, non-appealable fines, penalties,
forfeitures or other amounts rendered pursuant to criminal
indictments or other criminal proceedings relating to
participation in Medical Reimbursement Programs; and
(iii) the amount of final, non-appealable recovery,
damages, awards, penalties, forfeitures or similar amounts
rendered in any litigation, suit, arbitration, investigation
or other legal or administrative proceeding of any kind
relating to participation in Medical Reimbursement Programs.
"Guarantee Supplement" has the meaning specified in the
Subsidiary Guarantee.
"Guaranteed Obligations" has the meaning specified in the
Subsidiary Guarantee.
"Guarantor" means each Subsidiary of the Borrower party to
the Subsidiary Guarantee or, as the case may be, a Guarantee
Supplement.
"Hazardous Materials" means (a) petroleum or petroleum
products, by-products or breakdown products, radioactive
materials, asbestos-containing materials, polychlorinated
biphenyls and radon gas and (b) any other chemicals, materials or
substances designated, classified or regulated as hazardous or
toxic or as a pollutant or contaminant under any Environmental
Law.
"Hedge Agreements" means, collectively, interest rate swap,
cap or collar agreements, interest rate future or option
contracts, commodity future or option contracts, currency swap
agreements, currency future or option contracts, equity swap
agreements and other similar agreements.
"Hedge Bank" means any Person that is a Lender Party or an
Affiliate of a Lender Party, in its capacity as a party to a
Hedge Agreement.
"Indemnified Party" has the meaning specified in Section
8.04(b).
"Information Memorandum" means the information memorandum
dated March 2002 used by the Book Managers in connection with the
syndication of the Commitments.
"Initial Extension of Credit" means, collectively, the
initial Borrowings under one or more of the Facilities, and/or
the initial issuances of one or more Letters of Credit, made on
the Closing Date.
"Initial Lenders" has the meaning specified in the recital
of parties to this Agreement.
"Insufficiency" means, with respect to any Plan, the amount,
if any, of its unfunded benefit liabilities, as defined in
Section 4001(a)(18) of ERISA.
"Intercreditor Agreement" means an Intercreditor Agreement
dated as of the date hereof duly executed by the Agent on behalf
of the Lender Parties, the Collateral Agent, as defined therein,
and any Lender or an Affiliate thereof who is as of such date or
thereafter a party to a Hedge Agreement.
"Interest Period" means, for each Eurodollar Rate Advance
comprising part of the same Borrowing, the period commencing on
the date of such Eurodollar Rate Advance or the date of
15
the Conversion of any Base Rate Advance into such Eurodollar Rate
Advance, and ending on the last day of the period selected by the
Borrower pursuant to the provisions below and, thereafter, each
subsequent period commencing on the last day of the immediately
preceding Interest Period and ending on the last day of the
period selected by the Borrower pursuant to the provisions below.
The duration of each such Interest Period shall be one, two,
three or six months, as the Borrower may, upon notice received by
the Administrative Agent not later than 2:00 P.M. (New York, New
York time) on the third Business Day prior to the first day of
such Interest Period, select; provided, however, that:
(a) the Borrower may not select any Interest Period
with respect to any Eurodollar Rate Advance under a Facility
that ends after any principal repayment installment date for
such Facility unless, after giving effect to such selection,
the aggregate principal amount of Base Rate Advances and of
Eurodollar Rate Advances having Interest Periods that end on
or prior to such principal repayment installment date for
such Facility shall be at least equal to the aggregate
principal amount of Advances under such Facility due and
payable on or prior to such date;
(b) Interest Periods commencing on the same date for
Eurodollar Rate Advances comprising part of the same
Borrowing shall be of the same duration;
(c) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last
day of such Interest Period shall be extended to occur on
the next succeeding Business Day; provided, however, that,
if such extension would cause the last day of such Interest
Period to occur in the next following calendar month, the
last day of such Interest Period shall occur on the
immediately preceding Business Day; and
(d) whenever the first day of any Interest Period
occurs on a day of an initial calendar month for which there
is no numerically corresponding day in the calendar month
that succeeds such initial calendar month by the number of
months equal to the number of months in such Interest
Period, such Interest Period shall end on the last Business
Day of such succeeding calendar month.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended from time to time, and the regulations
promulgated and the rulings issued thereunder.
"Investment" means, with respect to any Person, any loan or
advance to such Person, any purchase or other acquisition of
Equity Interests in or Debt of, or the property and assets
comprising a division or business unit or all or a substantial
part of the business of, such Person, any capital contribution to
such Person or any other investment in such Person, including,
without limitation, any acquisition by way of a merger or
consolidation (or similar transaction) and any arrangement
pursuant to which the investor incurs Debt of the types referred
to in clause (j) or (k) of the definition of "Debt" set forth in
this Section 1.01 in respect of such Person.
"ISDA Master Agreement" means the Master Agreement
(Multicurrency-Cross Border) published by the International Swap
and Derivatives Association, Inc., as in effect from time to
time.
"Issuing Bank" means (i) CSFB or any Affiliate thereof that
may from time to time issue Letters of Credit for the account of
the Borrower, (ii) any other Revolving Credit Lender that
16
from time to time agrees in writing to issue Letters of Credit
hereunder, and (iii) solely with respect to the Existing Letters
of Credit, the Existing Issuing Bank.
"L/C Cash Collateral Account" has the meaning specified in
the Preliminary Statements to the Security Agreement.
"L/C Related Documents" has the meaning specified in Section
2.03(b)(ii).
"Lease Expense" means, with respect to any Person, for any
period for such Person and its subsidiaries on a Consolidated
basis, lease and rental expense accrued during such period under
all leases and rental agreements, other than Capitalized Leases
and leases of personal property, of renal treatment centers,
determined in conformity with GAAP.
"Lender Party" means any Lender, the Issuing Bank or the
Swing Line Bank.
"Lenders" means, collectively, the Initial Lenders and each
Person that becomes a Lender pursuant to Section 8.07 for so long
as such Initial Lender or Person, as the case may be, shall be a
party to this Agreement.
"Letter of Credit" has the meaning specified in Section
2.01(e).
"Letter of Credit Advance" means an advance made by an
Issuing Bank or any Revolving Credit Lender pursuant to Section
2.03(b).
"Letter of Credit Agreement" has the meaning specified in
Section 2.03(a).
"Letter of Credit Facility" means, at any time, an amount
equal to the lesser of (a) the aggregate amount of the Unused
Revolving Credit Commitments of the Issuing Banks at such time
and (b) $50,000,000, as such amount may be reduced at or prior to
such time pursuant to Section 2.05.
"Leverage Ratio" means, at any date of determination, the
ratio of (a) (i) all Funded Debt of the Borrower and its
Subsidiaries plus (ii) to the extent not otherwise included in
subclause (a)(i) of this definition, the face amount of all
Letters of Credit issued for the account of the Borrower or any
of its Subsidiaries minus (iii) cash and cash equivalents of the
Borrower and its Subsidiaries on a Consolidated basis to
(b) Consolidated Pre-Minority EBITDA of the Borrower and its
Subsidiaries for the most recently completed Measurement Period
prior to such date.
"Lien" means, with respect to any Person, (a) any mortgage,
lien (statutory or other), pledge, hypothecation, security
interest, charge or encumbrance of any kind (including, without
limitation, any agreement to give any of the foregoing), (b) any
sale of accounts receivable or chattel paper, or any assignment,
deposit arrangement or lease intended as, or having the effect
of, security, (c) any easement, right of way or other encumbrance
on title to real property or (d) any other interest or title of
any vendor, lessor, lender or other secured party to or of such
Person under any conditional sale or other title retention
agreement or any Capitalized Lease or upon or with respect to any
property or asset of such Person (including, in the case of
Equity Interests, voting trust agreements and other similar
arrangements).
"Loan Documents" means, collectively, this Agreement, the
Notes, the Subsidiary Guarantee, the Collateral Documents and
each Letter of Credit Agreement, in each case as
17
amended, supplemented or otherwise modified hereafter from time
to time in accordance with the terms thereof and Section 8.01.
"Loan Parties" means, collectively, the Borrower and each of
the Subsidiaries of the Borrower party to the Subsidiary
Guarantee or any of the Collateral Documents.
"Margin Stock" means `margin stock' as defined in Regulation
U of the Board of Governors of the Federal Reserve System, as the
same may be amended or supplemented from time to time.
"Material Adverse Change" means any material adverse change
in the business, condition (financial or otherwise), operations,
performance, properties or prospects of the Borrower and its
Subsidiaries, taken as a whole; provided that the occurrence or
subsistence of any such material adverse change which has been
disclosed by the Borrower in any filing made with the Securities
and Exchange Commission prior to the date of this Agreement shall
not constitute a Material Adverse Change.
"Material Adverse Effect" means a material adverse effect on
(a) the business, condition (financial or otherwise), operations,
performance, properties or prospects of the Borrower and its
Subsidiaries taken as a whole, (b) the rights and remedies of the
Administrative Agent or any Lender Party under any Loan Document
or (c) the ability of any Loan Party to perform its Obligations
under any Loan Document to which it is or is to be a party;
provided that the occurrence or subsistence of any such material
adverse effect which has been disclosed by the Borrower in any
filing made with the Securities and Exchange Commission prior to
the date of this Agreement shall not constitute a Material
Adverse Effect.
"Material Subsidiaries" means, as of any date, any
Subsidiary or Subsidiaries of the Borrower that either
individually or taken as a whole accounted for more than 5% of
Consolidated Net Income of the Borrower and its Subsidiaries for
the most recently completed Fiscal Quarter on or prior to such
date, in each case as reflected in the Required Financial
Information most recently delivered to the Administrative Agent
and the Lender Parties on or prior to such date and determined in
accordance with GAAP for such period.
"Measurement Period" means, at any date of determination,
the most recently completed four consecutive Fiscal Quarters
ended prior to such date for which financial information is
available.
"Medicaid" means that means-tested entitlement program under
Title XIX of the Social Security Act that provides federal grants
to states for medical assistance based on specific eligibility
criteria. (Social Security Act of 1965, Title XIX, P.L. 89-87, as
amended; 42 U.S.C. 1396 et seq.).
"Medical Reimbursement Programs" means the Medicare,
Medicaid and CHAMPUS programs and any other health care program
operated by or financed in whole or in part by any federal, state
or local government.
"Medicare" means that government-sponsored entitlement
program under Title XVIII of the Social Security Act that
provides for a health insurance system for eligible elderly and
disabled individuals. (Social Security Act of 1965, Title XVIII,
P.L. 89-87 as amended; 42 U.S.C. 1395 et seq.).
18
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan (as defined
in Section 4001(a)(3) of ERISA) to which any Loan Party or any
ERISA Affiliate is making or accruing an obligation to make
contributions, or has within any of the preceding five plan years
made or accrued an obligation to make contributions.
"Multiple Employer Plan" means a single employer plan (as
defined in Section 4001(a)(15) of ERISA) that (a) is maintained
for employees of any Loan Party or any ERISA Affiliate and at
least one Person other than the Loan Parties and the ERISA
Affiliates or (b) was so maintained and in respect of which any
Loan Party or any ERISA Affiliate could reasonably be expected to
have liability under Section 4064 or 4069 of ERISA in the event
such plan has been or were to be terminated.
"Net Cash Proceeds" means, with respect to any sale, lease,
transfer or other disposition of any property or asset, or the
incurrence or issuance of any Debt, or the sale or issuance of
any Equity Interests (including, without limitation, any capital
contribution) in any Person, the aggregate amount of cash
received from time to time (whether as initial consideration or
through payment or disposition of deferred consideration) by or
on behalf of such Person for its own account in connection with
any such transaction, after deducting therefrom only (without
duplication):
(a) out-of-pocket expenses, including brokerage
commissions, underwriting fees and discounts, legal fees,
finder's fees and other similar fees and commissions;
(b) the amount of taxes payable in connection with or
as a result of such transaction, and if not paid at the time
of the respective transaction, the amount thereof reserved
in accordance with GAAP as in effect on the date of
determination;
(c) in the case of any sale, lease, transfer or other
disposition of any property or asset, the outstanding
principal amount of, the premium or penalty, if any, on, and
any accrued and unpaid interest on, any Debt (other than the
Debt outstanding under the Loan Documents) that is secured
by a Lien on the property and assets subject to such sale,
lease, transfer or other disposition and is required to be
repaid under the terms thereof as a result of such sale,
lease, transfer or other disposition;
(d) in the case of any sale, lease, transfer or other
disposition of any property or asset, an amount reserved, in
accordance with GAAP as in effect on the date on which the
Net Cash Proceeds from such sale, lease, transfer or other
disposition are determined, and so reserved, against
liabilities under indemnification obligations, liabilities
related to environmental matters or other liabilities
associated with the property and assets subject to such
sale, lease, transfer or other disposition that are required
to be so provided for under the terms of the documentation
for such sale, lease, transfer or other disposition; and
(e) in the case of any sale, lease, transfer or other
disposition of any property or asset by a Subsidiary, the
amount of any payments or distributions required to be made
in respect of such transaction to owners of Equity Interests
in such Subsidiary other than the Borrower or any other
Subsidiary;
19
provided, however, in the case of clauses (b) and (d) of this
definition, that if, at the time such taxes or such contingent
liabilities are actually paid or otherwise satisfied, the amount
of the reserve therefor exceeds the amount paid or otherwise
satisfied, then the Borrower shall prepay the outstanding
Advances in accordance with the terms of Section 2.06(b), in an
amount equal to the amount of such excess reserve.
"Note" means a Term A Note, a Term B Note or a Revolving
Credit Note, as the context may require.
"Notice of Borrowing" has the meaning specified in Section
2.02(a).
"Notice of Conversion" has the meaning specified in Section
2.09(a).
"Notice of Covenant Reduction" means, with respect to any
restricted payment pursuant to Section 5.02(g)(vi)(C), a notice
substantially in the form of Exhibit I hereto duly executed by a
Responsible Officer of the Borrower specifying that (i)
immediately prior to such restricted payment and after giving pro
forma effect thereto the Leverage Ratio is less than 3.00:1.00
and the Senior Leverage Ratio is less than 1.75:1.00 and (ii) at
all times thereafter, for purposes of Section 5.04(a) and (e),
respectively, the Leverage Ratio shall be 3.00:1.00 and the
Senior Leverage Ratio shall be 1.75:1.00.
"Notice of Issuance" has the meaning specified in Section
2.03(a).
"Notice of Renewal" has the meaning specified in Section
2.01(e).
"Notice of Swing Line Borrowing" has the meaning specified
in Section 2.02(b).
"Notice of Termination" has the meaning specified in Section
2.01(e).
"NPL" means the National Priorities List under CERCLA.
"Obligation" means, with respect to any Person, any payment,
performance or other obligation of such Person of any kind,
including, without limitation, any liability of such Person on
any claim, whether or not the right of any creditor to payment in
respect of such claim is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, disputed, undisputed,
legal, equitable, secured or unsecured, and whether or not such
claim is discharged, stayed or otherwise affected by any
proceeding referred to in Section 6.01(f). Without limiting the
generality of the foregoing, the Obligations of the Loan Parties
under the Loan Documents include (a) the obligation to pay
principal, interest, Letter of Credit commissions, charges,
expenses, fees, attorneys' fees and disbursements, indemnity
payments and other amounts payable by any Loan Party under any
Loan Document and (b) the obligation of any Loan Party to
reimburse any amount in respect of any of the foregoing items
that any Lender Party, in its sole discretion, may elect to pay
or advance on behalf of such Loan Party.
"OECD" means the Organization for Economic Cooperation and
Development.
"Open Year" means, with respect to any Person, any year for
which United States federal income tax returns have been filed by
or on behalf of such Person and for which the expiration of the
applicable statute of limitations for assessment or collection
has not occurred (whether by reason of extension or otherwise).
20
"Other Taxes" has the meaning specified in Section 2.13(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any
successor thereto.
"Performance Level" means Performance Level I, Performance
Level II, Performance Level III, Performance Level IV or
Performance Level V, as identified in the definition of
"Applicable Margin", as the context may require.
"Permitted Liens" means the following types of Liens
(excluding any such Lien imposed pursuant to Section 401(a)(29)
or 412(n) of the Internal Revenue Code or by ERISA or any such
Lien relating to or imposed in connection with any Environmental
Action): (a) Liens for taxes, assessments and governmental
charges or levies to the extent not otherwise required to be paid
under Section 5.01(b); (b) Liens imposed by law, such as
materialmen's, mechanics', carriers', landlords', workmen's and
repairmen's Liens and other similar Liens arising in the ordinary
course of business securing obligations (other than Debt for
borrowed money) (i) that are not overdue for a period of more
than 60 days or (ii) the amount, applicability or validity of
which are being contested in good faith and by appropriate
proceedings diligently conducted and with respect to which the
Borrower or any of its Subsidiaries, as the case may be, has
established reserves in accordance with GAAP; (c) pledges or
deposits to secure obligations incurred in the ordinary course of
business under workers' compensation laws, unemployment insurance
or similar social security legislation (other than in respect of
employee benefit plans subject to ERISA) or to secure public or
statutory obligations; (d) Liens, pledges and deposits securing
the performance of, or payment in respect of, bids, tenders,
leases, contracts (other than for the repayment of borrowed
money), surety and appeal bonds, letters of credit, and other
obligations of a similar nature incurred in the ordinary course
of business; (e) any interest or title of a lessor or sublessor
and any restriction or encumbrance to which the interest or title
of such lessor or sublessor may be subject that is incurred in
the ordinary course of business and, either individually or when
aggregated with all other Permitted Liens in effect on any date
of determination, could not be reasonably expected to have a
Material Adverse Effect; (f) Liens in favor of customs and
revenue authorities arising as a matter of law or pursuant to a
bond to secure payment of customs duties in connection with the
importation of goods; (g) Liens arising out of judgments or
awards that do not constitute an Event of Default under Section
6.01(g) or 6.01(h) and in respect of which the Borrower or any of
its Subsidiaries subject thereto shall be prosecuting an appeal
or proceedings for review in good faith and, pending such appeal
or proceedings, shall have secured within 30 days after the entry
thereof a subsisting stay of execution and shall be maintaining
reserves, in accordance with GAAP, with respect to any such
judgment or award; (h) unperfected Liens of suppliers and vendors
to secure the purchase price of the property or assets sold;
(i) protective Uniform Commercial Code filings by lessors under
operating leases; and (j) any easements, rights of way,
restrictions, defects, encroachments and other encumbrances on
title to real property which either individually or when
aggregated with all other permitted Liens, would not be
reasonably expected to have a Material Adverse Effect.
"Person" means an individual, partnership, corporation
(including a business trust), limited liability company,
unlimited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a
government or any political subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer
Plan.
"Pledged Debt" has the meaning specified in Section 1 of the
Security Agreement.
21
"Pledged Shares" has the meaning specified in Section 1 of
the Security Agreement.
"Prepayment Date" has the meaning specified in Section
2.06(d).
"primary obligation" has the meaning specified in the
definition of "Contingent Obligation" set forth in this Section
1.01.
"primary obligor" has the meaning specified in the
definition of "Contingent Obligation" set forth in this Section
1.01.
"Pro Rata Share" of any amount means, with respect to any of
the Lenders at any time, the product of (a) a fraction the
numerator of which is the amount of such Lender's Commitment(s)
under the applicable Facility or Facilities at such time (or, if
the Commitments shall have been terminated pursuant to Section
2.05 or 6.01 at or prior to such time, such Lender's
Commitment(s) under the applicable Facility or Facilities as in
effect immediately prior to such termination) and the denominator
of which is the aggregate amount of such Facility or Facilities
at such time (or, if the Commitments shall have been terminated
pursuant to Section 2.05 or 6.01 at or prior to such time, the
applicable Facility or Facilities as in effect immediately prior
to such termination) multiplied by (b) such amount.
"Qualified Issuer" means (a) any Lender hereunder and (b)
any commercial bank that has a combined capital and surplus in
excess of $100,000,000.
"Reedemable Preferred Interest" means with respect to any
Person, (a) any Equity Interest of such Person that, by its terms
or by the terms of any security into which it is convertible,
exercisable or exchangeable, is, or upon the happening of an
event or the passage of time or both would be, required to be
redeemed or repurchased (including at the option of the holder
thereof) by such Person or any of its Subsidiaries, in whole or
in part, not earlier than July 1, 2009, and (b) any Equity
Interest of any Subsidiary of such Person other than any common
equity with no preferences, privileges, and no redemption or
repayment provisions; provided, however, that any Equity Interest
that would constitute a Redeemable Preferred Interest solely
because the holders thereof have the right to require the issuer
to repurchase such a Redeemable Preferred Interest upon the
occurrence of a change of control shall not be so treated if the
terms thereof (a) do not trigger any rights upon any circumstance
constituting a change of control under such Redeemable Preferred
Interest that would not constitute a Change of Control under this
Agreement and (b) do not permit either any repurchase by such
Person or any rights of the holder of such Equity Interest to
assert any claim in respect of such failure to purchase as long
as any Event of Default exists hereunder.
"Reduction Amount" has the meaning specified in Section
2.06(b)(iv).
"Register" has the meaning specified in Section 8.07(c).
"Regulation U" means Regulation U of the Board of Governors
of the Federal Reserve System, as in effect from time to time.
"Required Financial Information" means, at any date of
determination, the Consolidated financial statements of the
Borrower and its Subsidiaries most recently delivered to the
Administrative Agent and the Lender Parties on or prior to such
date pursuant to, and satisfying all of the requirements of,
Section 5.03(b) or 5.03(c) and accompanied by the certificates
and other information required to be delivered therewith.
22
"Required Lenders" means, at any time, Lenders owed or
holding at least a majority in interest of the sum of (a) the
aggregate principal amount of the Advances outstanding at such
time, (b) the aggregate Available Amount of all Letters of Credit
outstanding at such time, and (c) the aggregate Unused Revolving
Credit Commitments at such time; provided, however, that if any
Lender shall be a Defaulting Lender at such time, there shall be
excluded from the determination of Required Lenders at such time
(A) the aggregate principal amount of the Advances owing to such
Lender (in its capacity as a Lender) and outstanding at such
time, (B) such Lender's Pro Rata Share of the aggregate Available
Amount of all Letters of Credit issued by such Lender and
outstanding at such time, and (C) the Unused Revolving Credit
Commitment of such Lender at such time. For purposes of this
definition, the aggregate principal amount of Swing Line Advances
owing to the Swing Line Bank and of Letter of Credit Advances
owing to the Issuing Bank and the Available Amount of each Letter
of Credit shall be considered to be owed to the Revolving Credit
Lenders ratably in accordance with their respective Revolving
Credit Commitments.
"Required Principal Payments" means, with respect to any
Person for any period, the sum of all regularly scheduled
principal payments or redemptions and all required prepayments,
repurchases, redemptions or similar acquisitions for value of
outstanding Funded Debt made during such period.
"Requirements of Law" means, with respect to any Person, all
laws, constitutions, statutes, treaties, ordinances, rules and
regulations, all orders, writs, decrees, injunctions, judgments,
determinations and awards of an arbitrator, a court or any other
Governmental Authority, and all Governmental Authorizations,
binding upon or applicable to such Person or to any of its
properties, assets or businesses.
"Responsible Officer" means, with respect to the Borrower or
any of its Subsidiaries, the chief executive officer, the
president, the chief financial officer, the principal accounting
officer or the treasurer (or the equivalent of any of the
foregoing) or any other officer, partner or member (or person
performing similar functions) of the Borrower or any such
Subsidiary responsible for overseeing the administration of, or
reviewing compliance with, all or any portion of this Agreement
or any of the other Loan Documents.
"Revolving Credit Advance" has the meaning specified in
Section 2.01(c).
"Revolving Credit Borrowing" means a borrowing consisting of
simultaneous Revolving Credit Advances of the same Type made by
the Revolving Credit Lenders.
"Revolving Credit Commitment" means, with respect to any
Revolving Credit Lender at any time, the amount set forth
opposite such Revolving Credit Lender's name on Schedule I hereto
under the caption "Revolving Credit Commitment" or, if such
Revolving Credit Lender has entered into one or more Assignment
and Assumptions, the amount set forth for such Revolving Credit
Lender in the Register maintained by the Administrative Agent
pursuant to Section 8.07(c) as such Revolving Credit Lender's
"Revolving Credit Commitment", as such amount may be reduced at
or prior to such time pursuant to Section 2.05.
"Revolving Credit Facility" means, at any time, the
aggregate amount of the Revolving Credit Lenders' Revolving
Credit Commitments at such time.
"Revolving Credit Lender" means, at any time, any Lender
that has a Revolving Credit Commitment or Revolving Credit
Advance, as the case may be, at such time.
23
"Revolving Credit Note" means a promissory note of the
Borrower payable to the order of any Revolving Credit Lender, in
substantially the form of Exhibit A-3 hereto, evidencing the
aggregate indebtedness of the Borrower to such Revolving Credit
Lender resulting from the Revolving Credit Advances made by such
Revolving Credit Lender.
"S&P" means Standard & Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc.
"Secured Obligations" has the meaning specified in Section 2
of the Security Agreement.
"Secured Parties" means, collectively, the Agents, the
Lender Parties, and the other Persons the Obligations owing to
which are or are purported to be secured by the Collateral under
the terms of the Collateral Documents.
"Securities Act" means the Securities Act of 1933, as
amended, and the regulations promulgated and the rulings issued
thereunder.
"Security Agreement" has the meaning specified in Section
3.01(a)(ii).
"Security Agreement Supplement" has the meaning specified in
Section 24 of the Security Agreement.
"Senior Leverage Ratio" means, at any date of determination,
the ratio of (a)(i) all Funded Debt of the Borrower and its
Subsidiaries plus (ii) to the extent not otherwise included in
subclause (a)(i) of this definition, the face amount of all
outstanding Letters of Credit issued for the account of the
Borrower or any of its Subsidiaries minus (iii) cash and cash
equivalents of the Borrower and its Subsidiaries on a
Consolidated basis minus (iv) all Subordinated Debt of the
Borrower and its Subsidiaries to (b) Consolidated Pre-Minority
EBITDA of the Borrower and its Subsidiaries for the most recently
completed Measurement Period prior to such date.
"Single Employer Plan" means a single employer plan (as
defined in Section 4001(a)(15) of ERISA) that (a) is maintained
for employees of any Loan Party or any ERISA Affiliate and no
Person other than the Loan Parties and the ERISA Affiliates or
(b) was so maintained and in respect of which any Loan Party or
any ERISA Affiliate could have liability under Section 4069 of
ERISA in the event such plan has been or were to be terminated.
"Solvent" and "Solvency" mean, with respect to any Person on
any date of determination, that on such date (a) the fair value
of the property and assets of such Person is greater than the
total amount of liabilities (including, without limitation,
contingent liabilities), of such Person, (b) the present fair
salable value of the property and assets of such Person is not
less than the amount that will be required to pay the probable
liability of such Person on its debts as they become absolute and
matured, (c) such Person does not intend to, and does not believe
that it will, incur debts or liabilities beyond such Person's
ability to pay such debts and liabilities as they mature and (d)
such Person is not engaged in business or in a transaction, and
is not about to engage in business or in a transaction, for which
such Person's property and assets would constitute an
unreasonably small capital. The amount of contingent liabilities
of any such Person at any time shall be computed as the amount
that, in the light of all of the facts and circumstances existing
at such time, represents the amount that can reasonably be
expected to become an actual or matured liability.
"Special Purpose Licensed Entity" means any Person in a
related business of the Borrower and its Subsidiaries that (i)
the Borrower and its Subsidiaries are prohibited from
24
engaging in directly under applicable law, including provisions
of state law (a) prohibiting the ownership of healthcare
facilities by public companies, (b) prohibiting the corporate
practice of medicine or (c) otherwise restricting the ability of
the Borrower or one of its Subsidiaries to acquire directly a
required license to operate a healthcare facility, and (ii) has
entered into a transaction or series of transactions with the
Borrower or any of its Subsidiaries under which:
(x) the Borrower or any of its Subsidiaries provides
management, administrative or consulting services to the
Special Purpose Licensed Entity,
(y) the owners of the Special Purpose Licensed Entity
are prohibited from transferring any of their interests in
the Special Purpose Licensed Entity without the consent of
the Borrower or one of its Subsidiaries, and
(z) the Borrower or one of its Subsidiaries has the
right to require the owners of the Special Purpose Licensed
Entity to transfer all of their interests in the Special
Purpose Licensed Entity to a Person designated by the
Borrower or one of its Subsidiaries.
"Subordinated Debt" means the subordinated debt evidenced by
the Subordinated Notes or other subordinated Debt issued or
incurred by the Borrower subordinated in right of payment to the
payment in full of the Obligations of the Borrower to the Loan
Parties under the Loan Documents and other senior obligations of
the Borrower; provided that (i) the negative covenants in such
subordinated Debt are less burdensome than the negative covenants
in this Agreement as in effect at the time such subordinated Debt
is incurred, (ii) the affirmative covenants in such subordinated
Debt are no more burdensome than the affirmative covenants in
this Agreement as in effect at the time such subordinated Debt is
incurred, (iii) the events of default in such subordinated Debt
relating to insolvency and nonpayment of amounts owed thereunder
are no more restrictive than the corresponding defaults in this
Agreement as in effect at the time such subordinated Debt is
incurred, (iv) such subordinated Debt does not cross-default to
other Debt (but may cross-accelerate to other Debt of Borrower or
any Subsidiary that has guaranteed such subordinated Debt), (v)
the subordination provisions in such subordinated Debt are either
(A) reasonably satisfactory to the Administrative Agent or (B)
confirmed by a nationally recognized investment bank (that is not
the Administrative Agent) as market terms and conditions at such
time for similar debt securities issued by Persons whose debt
securities have credit ratings not greater than that of the
Borrower, and (vi) such subordinated Debt does not provide for
any scheduled payment or mandatory prepayment of principal
earlier than July 1, 2009, other than (x) redemptions made at the
option of the holders of such subordinated Debt upon a change in
control of the Borrower in circumstances that would also
constitute a Change of Control under this Agreement (provided
that any such redemption cannot be made fewer than 30 days after
such change in control and that any such redemption is fully and
absolutely subordinated to the indefeasible payment in full of
all principal, interest and other amounts under the Loan
Documents) and (y) mandatory prepayments required as a result of
asset dispositions if such subordinated Debt allows the Borrower
to satisfy such mandatory prepayment requirement by prepayment of
Loans under this Agreement or other senior obligations of the
Borrower or reinvestment of the asset disposition proceeds within
a specified period of time.
"Subordinated Notes" means (i) the 5 5/8% convertible
subordinated notes of Renal Treatment Centers, Inc. due 2006 in
the aggregate principal amount of $125,000,000 issued pursuant to
the Indenture dated June 12, 1996 between Rental Treatment
Centers, Inc. and PNC Bank, National Association as trustee; (ii)
the 7% convertible subordinated notes of the Borrower (f/k/a
Total Renal Care Holdings, Inc.) due 2009 in the aggregate
principal amount of
25
$345,000,000 issued pursuant to the Indenture dated November 18,
1998 between Total Renal Care Holdings, Inc. and United States
Trust Company of New York as trustee; and (iii) the 2001
Subordinated Notes.
"Subordinated Notes Documents" means the Subordinated Notes,
any indentures or other agreements, instruments and other
documents pursuant to which the Subordinated Notes or other
Subordinated Debt have been or will be issued or otherwise
setting forth the terms of the Subordinated Notes or such
Subordinated Debt, including guarantees in respect of the
Subordinated Debt referred to in clauses (i) and (iii) of the
definition of "Subordinated Notes," in each case as such
agreement, instrument or other document may be amended,
supplemented or otherwise modified from time to time in
accordance with the terms thereof, but only to the extent
permitted under the terms of the Loan Documents.
"Subsidiary Guarantee" has the meaning specified in Section
3.01(a)(iii).
"Subsidiary" of any Person means any corporation,
partnership, joint venture, limited liability company, unlimited
liability company, trust or estate of which (or in which) more
than 50% of (a) the issued and outstanding shares of capital
stock having ordinary voting power to elect a majority of the
board of directors of such corporation (irrespective of whether
at the time shares of capital stock of any other class or classes
of such corporation shall or might have voting power upon the
occurrence of any contingency), (b) the interest in the capital
or profits of such partnership, joint venture, limited liability
company or unlimited liability company or (c) the beneficial
interest in such trust or estate, is at the time directly or
indirectly owned or controlled by such Person, by such Person and
one or more of its other Subsidiaries or by one or more of such
Person's other Subsidiaries, provided however, that the entities
listed on Exhibit H attached hereto shall not be deemed
Subsidiaries for so long as the assets of each such entity does
not exceed $25,000.
"Swing Line Advance" means an advance made by (a) the Swing
Line Bank pursuant to Section 2.01(d) or (b) simultaneous Swing
Line Advances made by the Revolving Credit Lenders pursuant to
Section 2.02(b).
"Swing Line Bank" has the meaning specified in the recital
of parties to this Agreement.
"Swing Line Borrowing" means a borrowing consisting of a
Swing Line Advance made by the Swing Line Bank.
"Swing Line Commitment" means, with respect to the Swing
Line Bank at any time, the amount set forth opposite the Swing
Line Bank's name on Schedule I hereto under the caption "Swing
Line Commitment", as such amount may be reduced at or prior to
such time pursuant to Section 2.05.
"Swing Line Facility" means, at any time, an amount equal to
the lesser of (a) the amount of the Swing Line Commitment at such
time and (b) $25,000,000, as such amount may be reduced at or
prior to such time pursuant to Section 2.05.
"2001 Subordinated Notes" means the 91/4% senior
subordinated notes of the Borrower due April 15, 2011, in the
aggregate principal amount of $225,000,000 issued pursuant to the
Indenture dated April 11, 2001 between the Borrower, certain of
its Subsidiaries and U.S. Trust Company of Texas, N.A
26
"Taxes" has the meaning specified in Section 2.13(a).
"Term Advance" means a Term A Advance or a Term B Advance.
"Term A Advance" has the meaning specified in Section
2.01(a).
"Term A Borrowing" means a borrowing consisting of
simultaneous Term A Advances of the same Type made by the Term A
Lenders.
"Term A Commitment" means, with respect to any of the Term A
Lenders at any time, the amount set forth opposite such Term A
Lender's name on Schedule I hereto under the caption "Term A
Commitment" or, if such Term A Lender has entered into one or
more Assignment and Assumptions, the amount set forth for such
Term A Lender in the Register maintained by the Administrative
Agent pursuant to Section 8.07(c) as such Term A Lender's "Term
Commitment", as such amount may be reduced at or prior to such
time pursuant to Section 2.05.
"Term A Facility" means, at any time, the aggregate Term A
Commitments of all Term A Lenders at such time.
"Term A Lender" means, at any time, any Lender that has a
Term A Commitment or a Term A Advance, as the case may be, at
such time.
"Term A Note" means a promissory note of the Borrower
payable to the order of any Term A Lender, in substantially the
form of Exhibit A-1 hereto, evidencing the indebtedness of the
Borrower to such Term A Lender resulting from the Term A Advance
made by such Term A Lender.
"Term B Advance" has the meaning specified in Section
2.01(b).
"Term B Borrowing" means a borrowing consisting of
simultaneous Term B Advances of the same Type made by the Term B
Lenders.
"Term B Commitment" means, with respect to any of the Term B
Lenders at any time, the amount set forth opposite such Term B
Lender's name on Schedule I hereto under the caption "Term B
Commitment" or, if such Term B Lender has entered into one or
more Assignment and Assumptions, the amount set forth for such
Term B Lender in the Register maintained by the Administrative
Agent pursuant to Section 8.07(c) as such Term B Lender's "Term
Commitment", as such amount may be reduced at or prior to such
time pursuant to Section 2.05.
"Term B Facility" means, at any time, the aggregate Term B
Commitments of all Term B Lenders at such time.
"Term B Lender" means, at any time, any Lender that has a
Term B Commitment or a Term B Advance, as the case may be, at
such time.
"Term B Note" means a promissory note of the Borrower
payable to the order of any Term B Lender, in substantially the
form of Exhibit A-2 hereto, evidencing the indebtedness of the
Borrower to such Term B Lender resulting from the Term B Advances
made by such Term B Lender.
27
"Term Commitment" means a Term A Commitment or a Term B
Commitment, as the context requires.
"Term Facility" means a Term A Facility or a Term B
Facility, as the context requires.
"Term Lender" means a Term A Lender or a Term B Lender, as
the context requires.
"Termination Date" means the earlier of (a) April 26, 2007
and (b) the date of termination in whole of the Swing Line
Commitments and the Revolving Credit Commitments pursuant to
Section 2.05 or 6.01.
"Transaction" means, collectively, (a) the entering into by
the Loan Parties of the Loan Documents, to which they are or are
intended to be a party, (b) the purchase by the Borrower of the
2001 Subordinated Notes, (c) the purchase by the Borrower of its
common stock as contemplated in Section 5.02(g)(v) and (d) the
payment of the fees and expenses incurred in connection with the
consummation of the foregoing.
"TRC" means Total Renal Care, Inc., a California
corporation.
"Type" refers to the distinction between Advances bearing
interest at the Base Rate and Advances bearing interest at the
Eurodollar Rate.
"Unused Revolving Credit Commitment" means, with respect to
any Revolving Credit Lender at any time, (a) such Revolving
Credit Lender's Revolving Credit Commitment at such time minus
(b) the sum of (i) the aggregate principal amount of all
Revolving Credit Advances, Swing Line Advances and Letter of
Credit Advances made by such Revolving Credit Lender (in its
capacity as a Lender) and outstanding at such time and (ii) such
Lender's Pro Rata Share of (A) the aggregate Available Amount of
all Letters of Credit outstanding at such time, (B) the aggregate
principal amount of all Letter of Credit Advances made by the
Issuing Bank pursuant to Section 2.03(b) and outstanding at such
time and (C) the aggregate principal amount of all Swing Line
Advances made by the Swing Line Bank pursuant to Section 2.01(d)
and outstanding at such time.
"Voting Interests" means shares of capital stock issued by a
corporation, or equivalent Equity Interests in any other Person,
the holders of which are ordinarily, in the absence of
contingencies, entitled to vote for the election of directors (or
persons performing similar functions) of such Person, even if the
right so to vote has been suspended by the happening of such a
contingency.
"Welfare Plan" means a welfare plan (as defined in Section
3(1) of ERISA) that is maintained for employees of any Loan Party
or in respect of which any Loan Party could reasonably be
expected to have liability.
"Withdrawal Liability" has the meaning specified in Part I
of Subtitle E of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods; Other Definitional Provisions.
In this Agreement and the other Loan Documents, in the computation of periods of
time from a specified date to a later specified date, the word "from" means
"from and including", the word "through" means "through and including" and the
words "to" and "until" each means "to but excluding." References in this
Agreement or any of the other Loan Documents to any agreement , instrument or
other document "as amended" shall
28
mean and be a reference to such agreement , instrument or other document as
amended, amended and restated, supplemented or otherwise modified hereafter from
time to time in accordance with its terms, but solely to the extent permitted
hereunder. In this Agreement, the words "herein," "hereof" and words of similar
import refer to the entirety of this Agreement and not to any particular
Section, subsection, or Article of this Agreement.
SECTION 1.03. Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with generally accepted
accounting principles consistent with those applied in the preparation of the
Consolidated financial statements of the Borrower and its Subsidiaries as at
December 31, 2001 and for the Fiscal Year then ended referred to in Section
4.01(g) ("GAAP").
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
AND THE LETTERS OF CREDIT
SECTION 2.01. The Advances and the Letters of Credit.
--------------------------------------
(a) The Term A Advances. Each Term A Lender severally agrees, on the
terms and conditions hereinafter set forth, to make a single advance (a
"Term A Advance") in U.S. dollars to the Borrower at any time on or prior
to the tenth Business Day after the Closing Date in an amount not in excess
of the Term A Commitment of such Term A Lender at such time. The Term A
Borrowing shall consist of Term A Advances made simultaneously by the Term
A Lenders in accordance with their respective Pro Rata Shares of the Term A
Facility. Amounts borrowed under this Section 2.01(a) and repaid or prepaid
may not be reborrowed.
(b) The Term B Advances. Each Term B Lender severally agrees, on the
terms and conditions hereinafter set forth, to make two advances (each a
"Term B Advance") in U.S. dollars to the Borrower, the first on the Closing
Date and the second on the same date as the Term A Advances, in an
aggregate amount not in excess of the Term B Commitment of such Term B
Lender at such time. Each Term B Borrowing shall consist of Term B Advances
made simultaneously by the Term B Lenders in accordance with their
respective Pro Rata Shares of the Term B Facility. Amounts borrowed under
this Section 2.01(b) and repaid or prepaid may not be reborrowed.
(c) The Revolving Credit Advances. Each Revolving Credit Lender
severally agrees, on the terms and conditions hereinafter set forth, to
make advances (each a "Revolving Credit Advance") in U.S. dollars to the
Borrower from time to time until the Termination Date, in each case in an
amount not to exceed the Unused Revolving Credit Commitment of such
Revolving Credit Lender at such time. Each Revolving Credit Borrowing shall
be in an aggregate amount of $5,000,000 or an integral multiple of
$1,000,000 in excess thereof (other than a Borrowing the proceeds of which
shall be used solely to repay or prepay in full outstanding Swing Line
Advances or the outstanding Letter of Credit Advances) or, if less, the
amount of the aggregate Unused Revolving Credit Commitments at such time.
Each Revolving Credit Borrowing shall consist of Revolving Credit Advances
made simultaneously by the Revolving Credit Lenders in accordance with
their respective Pro Rata Shares of the Revolving Credit Facility. Within
the limits of each Revolving Credit Lender's Unused Revolving Credit
Commitment in effect from time to time, the Borrower may borrow under this
Section 2.01(c), prepay pursuant to Section 2.06(a) and reborrow under this
Section 2.01(c).
29
(d) The Swing Line Advances. The Borrower may request the Swing Line
Bank to make, and the Swing Line Bank shall on the terms and conditions
hereinafter set forth, make Swing Line Advances to the Borrower from time
to time on any Business Day during the period from the Closing Date until
the Termination Date (i) in an aggregate amount not to exceed $25,000,000
at any time outstanding (the "Swing Line Facility") and (ii) in an amount
for each such Swing Line Borrowing not to exceed the aggregate Unused
Revolving Credit Commitments of the Revolving Credit Lenders at such time.
No Swing Line Advance shall be used for the purpose of funding the payment
of principal of any other Swing Line Advance. Each Swing Line Borrowing
shall be in an amount of $500,000 or an integral multiple of $250,000 in
excess thereof and shall bear interest at a rate to be agreed on by the
Borrower and the Swing Line Bank. Within the limits of the first sentence
of this Section 2.01(d), the Borrower may borrow under this Section
2.01(d), repay pursuant to Section 2.04(c), prepay pursuant to Section
2.06(a) and reborrow under this Section 2.01(d).
(e) Letters of Credit.
(i) The Borrower, the Existing Issuing Bank and each of the
Revolving Credit Lenders hereby agree that each of the Existing
Letters of Credit shall, on and after the Closing Date, be deemed for
all purposes of this Agreement to be a Letter of Credit issued and
outstanding under the terms of this Agreement. Each Issuing Bank
agrees, on the terms and conditions hereinafter set forth, to issue
letters of credit (the "Letters of Credit") in U.S. dollars for the
account of the Borrower from time to time on any Business Day during
the period from the date hereof until five Business Days before the
Termination Date (A) in an Available Amount for each such Letter of
Credit not to exceed at any time the Unused Revolving Credit
Commitment of such Issuing Bank at such time and (B) in an aggregate
Available Amount for all Letters of Credit not to exceed the lesser of
(1) the Letter of Credit Facility at such time and (2) the aggregate
Unused Revolving Credit Commitments at such time. No Letter of Credit
shall have an expiration date (including all rights of the Borrower or
the beneficiary of such Letter of Credit to require renewal) later
than the earlier of (x) five Business Days prior to the Termination
Date and (y) one year after the date of issuance thereof, but any such
Letter of Credit may by its terms be renewable annually on the terms
set forth in clause (ii) of this Section 2.01(e). Within the limits of
the Letter of Credit Facility, and subject to the limits referred to
above, the Borrower may request the issuance of Letters of Credit
under this Section 2.01(e)(i), repay any Letter of Credit Advances
resulting from drawings thereunder pursuant to Section 2.03(c) and
request the issuance of additional Letters of Credit under this
Section 2.01(e)(i).
(ii) Each Letter of Credit may by its terms be renewable annually
upon notice (a "Notice of Renewal") given to the Issuing Bank and the
Administrative Agent on or prior to any date for notice of renewal set
forth in such Letter of Credit but in any event at least three
Business Days prior to the date of the proposed renewal of such Letter
of Credit and upon fulfillment of the applicable conditions set forth
in Article III unless such Issuing Bank has notified the Borrower
(with a copy to the Administrative Agent) on or prior to the date for
notice of termination set forth in such Letter of Credit but in any
event at least 30 Business Days prior to the date of automatic renewal
of its election not to renew such Letter of Credit (a "Notice of
Termination"); provided that the terms of each Letter of Credit that
is automatically renewable annually (A) shall require the Issuing Bank
to give the beneficiary of such Letter of Credit notice of any Notice
of Termination, (B) shall permit such beneficiary, upon receipt of
such notice, to draw under such Letter of Credit prior to the date
such Letter of Credit otherwise would have been
30
automatically renewed and (C) shall not permit the expiration date
(after giving effect to any renewal) of such Letter of Credit in any
event to be extended to a date later than five Business Days prior to
the Termination Date. If either a Notice of Renewal is not given by
the Borrower or a Notice of Termination is given by the Issuing Bank
pursuant to the immediately preceding sentence, such Letter of Credit
shall expire on the date on which it otherwise would have been
automatically renewed; provided, however, that in the absence of
receipt of a Notice of Renewal the Issuing Bank may in its discretion,
unless instructed to the contrary by the Administrative Agent or the
Borrower deem that a Notice of Renewal had been timely delivered and,
in such case, a Notice of Renewal shall be deemed to have been so
delivered for all purposes under this Agreement.
SECTION 2.02. Making the Advances.
-------------------
(a) Except as otherwise provided in Section 2.02(b) or 2.03, each
Borrowing (other than a Swing Line Borrowing) shall be made on notice,
given not later than 2:00 P.M. (New York, New York time) on the third
Business Day prior to the date of the proposed Borrowing in the case of a
Borrowing comprised of Eurodollar Rate Advances, or on the first Business
Day prior to the date of the proposed Borrowing in the case of a Borrowing
comprised of Base Rate Advances, by the Borrower to the Administrative
Agent, which shall give prompt notice thereof to each Appropriate Lender.
Each notice of a Borrowing (a "Notice of Borrowing") shall be by telephone,
confirmed immediately in writing, or by telecopier, in substantially the
form of Exhibit B-1 hereto, shall be duly executed by a Responsible Officer
of the Borrower, and shall specify therein: (i) the requested date of such
Borrowing (which shall be a Business Day); (ii) the Facility under which
such Borrowing is requested to be made; (iii) the Type of Advances
requested to comprise such Borrowing; (iv) the requested aggregate amount
of such Borrowing; and (v) in the case of a Borrowing comprised of
Eurodollar Rate Advances, the requested duration of the initial Interest
Period for each such Advance. Each Appropriate Lender shall, before 2:00
P.M. (New York, New York time) on the date of such Borrowing, make
available for the account of its Applicable Lending Office to the
Administrative Agent at the Administrative Agent's Account, in same day
funds, such Lender's Pro Rata Share of such Borrowing. After the
Administrative Agent's receipt of such funds and upon fulfillment of the
applicable conditions set forth in Article III, the Administrative Agent
will make such funds available to the Borrower by crediting the Borrower's
Account; provided, however, that, in the case of any Revolving Credit
Borrowing, the Administrative Agent shall first make a portion of such
funds equal to the aggregate principal amount of any Swing Line Advances
and Letter of Credit Advances made by the Swing Line Bank or the Issuing
Bank, as the case may be, and by any Revolving Credit Lender and
outstanding on the date of such Revolving Credit Borrowing, plus accrued
and unpaid interest thereon to and as of such date, available to the Swing
Line Bank or the Issuing Bank, as applicable, and such other Revolving
Credit Lenders for repayment of such Swing Line Advances and Letter of
Credit Advances.
(b) (i) Each Swing Line Borrowing shall be made on notice, given not
later than 2:00 P.M. (New York, New York time) on the date of the proposed
Swing Line Borrowing, by the Borrower to the Swing Line Bank and the
Administrative Agent. Each notice of a Swing Line Borrowing (a "Notice of
Swing Line Borrowing") shall be by telephone, confirmed immediately in
writing, or telecopier, shall be in substantially the form of Exhibit B-2
hereto and duly executed by a Responsible Officer of the Borrower, and
shall specify therein: (A) the requested date of such Borrowing (which
shall be a Business Day); (B) the requested amount of such Borrowing; and
(C) the requested maturity of such Borrowing (which maturity shall be no
later than the seventh day after the requested date of such Borrowing).
Upon fulfillment of the applicable conditions set
31
forth in Article III, the Swing Line Bank will make the amount thereof
available for the account of its Applicable Lending Office to the Borrower
by crediting the Borrower's Account.
(ii) Upon demand by the Swing Line Bank, with a copy of such
demand to the Administrative Agent (which shall give prompt notice
thereof to each Revolving Credit Lender), each Revolving Credit Lender
shall purchase from the Swing Line Bank, and the Swing Line Bank shall
sell and assign to each such Revolving Credit Lender, such Revolving
Credit Lender's Pro Rata Share of such outstanding Swing Line
Borrowing as of the date of such demand, by making available for the
account of its Applicable Lending Office to the Administrative Agent
at the Administrative Agent's Account for the account of the Swing
Line Bank, in same day funds, an amount equal to such Pro Rata Share.
Promptly after receipt of such funds, the Administrative Agent shall
transfer such funds to the Swing Line Bank at its Applicable Lending
Office. Each Revolving Credit Lender hereby agrees to purchase its Pro
Rata Share of an outstanding Swing Line Borrowing on (A) the Business
Day on which demand therefor is made by the Swing Line Bank so long as
notice of such demand is given not later than 12:00 Noon (New York,
New York time) on such Business Day or (B) the first Business Day next
succeeding such demand if notice of such demand is given after such
time. The Borrower hereby agrees to each such sale and assignment.
Upon any such assignment by the Swing Line Bank to any Revolving
Credit Lender of a portion of a Swing Line Borrowing, the Swing Line
Bank represents and warrants to such Revolving Credit Lender that the
Swing Line Bank is the legal and beneficial owner of such interest
being assigned by it, but makes no other representation or warranty
and assumes no responsibility with respect to such Swing Line
Borrowing, the Loan Documents or any Loan Party. If and to the extent
that any Revolving Credit Lender shall not have so made its Pro Rata
Share of any applicable Swing Line Borrowing available to the
Administrative Agent in accordance with the foregoing provisions of
this Section 2.02(b)(ii), such Revolving Credit Lender hereby agrees
to pay to the Administrative Agent forthwith on demand the amount of
its Pro Rata Share, together with interest thereon, for each day from
the date of demand by the Swing Line Bank therefor until the date such
amount is paid to the Administrative Agent, at the Federal Funds Rate.
If such Lender shall pay to the Administrative Agent the amount of its
Pro Rata Share for the account of the Swing Line Bank on any Business
Day, such amount so paid in respect of principal shall constitute a
Swing Line Advance made by such Lender on such Business Day for all
purposes of this Agreement, and the outstanding principal amount of
the Swing Line Advance made by the Swing Line Bank shall be reduced by
such amount on such Business Day.
(iii) The obligation of each Revolving Credit Lender to purchase
its Pro Rata Share of each outstanding Swing Line Borrowing upon
demand by the Swing Line Bank therefor pursuant to clause (ii) of this
Section 2.02(b) shall be absolute, unconditional and irrevocable, and
shall be made strictly in accordance with the terms of clause (ii) of
this Section 2.02(b) under all circumstances, including, without
limitation, the following circumstances:
(A) any lack of validity or enforceability of any Loan
Document or any other agreement or instrument relating thereto;
(B) the existence of any claim, set-off, defense or other
right that such Revolving Credit Lender may have at any time
against the Swing Line
32
Bank, the Borrower or any other Person, whether in connection
with the transactions contemplated by the Loan Documents or any
unrelated transaction;
(C) the occurrence and continuance of any Default or Event
of Default; or
(D) any other circumstance or happening whatsoever, whether
or not similar to any of the foregoing.
(c) Anything in subsection (a) of this Section 2.02 to the contrary
notwithstanding, (i) the Borrower may not select Eurodollar Rate Advances
if the obligation of the Appropriate Lenders to make Eurodollar Rate
Advances shall then be suspended pursuant to Section 2.09 or 2.10. In
addition, the Term Advances may not be outstanding as part of more than 10
separate Borrowings and the Revolving Credit Advances may not be
outstanding as part of more than 10 separate Borrowings.
(d) Each Notice of Borrowing and Notice of Swing Line Borrowing shall
be irrevocable and binding on the Borrower. In the case of any Borrowing
that the related Notice of Borrowing specifies is to be comprised of
Eurodollar Rate Advances, the Borrower shall indemnify each Appropriate
Lender against any loss, cost or expense incurred by such Lender as a
result of any failure to fulfill on or before the date specified in such
Notice of Borrowing for such Borrowing the applicable conditions set forth
in Article III, including, without limitation, any loss, cost or expense
incurred by reason of the liquidation or reemployment of deposits or other
funds acquired by such Lender to fund the Eurodollar Rate Advance to be
made by such Lender as part of such Borrowing when such Advance, as a
result of such failure, is not made on such date. A certificate of the
Lender requesting compensation pursuant to this subsection (d) submitted to
the Borrower by such Lender and specifying therein the amount of such
additional compensation (including the basis of calculation thereof) shall
be conclusive and binding for all purposes, absent manifest error.
(e) Unless the Administrative Agent shall have received notice from an
Appropriate Lender prior to the date of any Borrowing under a Facility
under which such Lender has a Commitment that such Lender will not make
available to the Administrative Agent such Lender's Pro Rata Share of such
Borrowing, the Administrative Agent may assume that such Lender has made
the amount of such Pro Rata Share available to the Administrative Agent on
the date of such Borrowing in accordance with subsection (a) or (b) of this
Section 2.02, as applicable, and the Administrative Agent may, in reliance
upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Lender shall not have
so made the amount of such Pro Rata Share available to the Administrative
Agent, such Lender and the Borrower severally agree to repay or to pay to
the Administrative Agent forthwith on demand such corresponding amount,
together with interest thereon, for each day from the date such amount is
made available to the Borrower until the date such amount is repaid or paid
to the Administrative Agent, at (i) in the case of the Borrower, the
interest rate applicable at such time under Section 2.07 to Advances
comprising such Borrowing and (ii) in the case of such Lender, the Federal
Funds Rate. If such Lender shall pay to the Administrative Agent such
corresponding amount, such amount so paid shall constitute such Lender's
Advance as part of such Borrowing for all purposes under this Agreement.
(f) The failure of any Lender to make the Advance to be made by it as
part of any Borrowing shall not relieve any other Lender of its obligation,
if any, hereunder to make its Advance on the date of such Borrowing, but no
Lender shall be responsible for the failure of any
33
other Lender to make the Advance to be made by such other Lender on the
date of any Borrowing.
SECTION 2.03. Issuance of and Drawings and Reimbursement Under Letters of
Credit.
-----------------------------------------------------------
(a) Request for Issuance. Each Letter of Credit shall be issued upon
notice, given not later than 2:00 P.M. (New York, New York time) on the
fifth Business Day prior to the date of the proposed issuance of such
Letter of Credit (or such later day as the Issuing Bank in its sole
discretion shall agree), by the Borrower to the Issuing Bank, which shall
give to the Administrative Agent and each Revolving Credit Lender prompt
notice thereof. Each notice of issuance of a Letter of Credit (a "Notice of
Issuance") shall be by telephone, confirmed immediately in writing, or by
telecopier, shall be duly executed by a Responsible Officer of the
Borrower, and shall specify therein: (i) the requested date of such
issuance (which shall be a Business Day); (ii) the requested Available
Amount of such Letter of Credit; (iii) the requested expiration date of
such Letter of Credit (which shall comply with the requirements of Section
2.01(e)); (iv) the name and address of the proposed beneficiary of such
Letter of Credit; and (v) the proposed form of such Letter of Credit, and
shall be accompanied by such application and agreement for letters of
credit as the Issuing Bank may specify to the Borrower for use in
connection with such requested Letter of Credit (such applications and
agreements, and all similar agreements entered into in connection with an
Existing Letter of Credit, a "Letter of Credit Agreement"). If the
requested form of such Letter of Credit is acceptable to the Issuing Bank
in its sole discretion, the Issuing Bank will, upon fulfillment of the
applicable conditions set forth in Article III, make such Letter of Credit
available to the Borrower at its office referred to in Section 8.02 or as
otherwise agreed with the Borrower in connection with the issuance of such
Letter of Credit. If and to the extent that the provisions of any Letter of
Credit Agreement shall conflict with this Agreement, the provisions of this
Agreement shall govern.
(b) Drawing and Reimbursement.
(i) The obligation of the Borrower to reimburse the Issuing Bank
for each payment made by the Issuing Bank under any Letter of Credit,
and to pay interest thereon as provided herein, shall be absolute,
unconditional and irrevocable, without regard to any circumstances,
including, without limitation, those referred to in Section 2.04(d)
below. The payment by the Issuing Bank of a draft drawn under any
Letter of Credit shall constitute for all purposes of this Agreement
the making by the Issuing Bank of a Letter of Credit Advance, which
shall be a Base Rate Advance, in the amount of such draft; provided
that such payment shall not be deemed a Base Rate Advance if the
Borrower reimburses the Issuing Bank therefor prior to 2:00 P.M. (New
York, New York time) on the date of such payment, or if such payment
by the Issuing Bank is made on or after 2:00 P.M. (New York, New York
time), then prior to 2:00 P.M. (New York, New York time), on the
Business Day immediately succeeding the date of such payment, together
with interest thereon from the date of such payment to the date of
such reimbursement at a rate per annum equal to the sum of the Base
Rate then in effect from time to time and the Applicable Margin for
Base Rate Advances that are Revolving Credit Advances then in effect
from time to time. Upon demand by the Issuing Bank, with a copy of
such demand to the Administrative Agent (which shall give prompt
notice thereof to each Revolving Credit Lender), each Revolving Credit
Lender shall purchase from the Issuing Bank, and the Issuing Bank
shall sell and assign to each such Revolving Credit Lender, such
Lender's Pro Rata Share of such outstanding Letter of Credit Advance
as of the date of such purchase, by making available for the account
of its Applicable Lending Office to the Administrative Agent for the
account of the Issuing
34
Bank, at the Administrative Agent's Account, in same day funds, an
amount equal to the portion of the outstanding principal amount of
such Letter of Credit Advance to be purchased by such Lender. Promptly
after receipt thereof, the Administrative Agent shall transfer such
funds to the Issuing Bank. The Borrower hereby agrees to each such
sale and assignment. Each Revolving Credit Lender agrees to purchase
its Pro Rata Share of an outstanding Letter of Credit Advance on (A)
the Business Day on which demand therefor is made by the Issuing Bank
so long as notice of such demand is given not later than 2:00 P.M.
(New York, New York time) on such Business Day or (B) the first
Business Day next succeeding such demand if notice of such demand is
given after such time. Upon any such assignment by the Issuing Bank to
any other Revolving Credit Lender of a portion of a Letter of Credit
Advance, the Issuing Bank represents and warrants to such other Lender
that the Issuing Bank is the legal and beneficial owner of such
interest being assigned by it, free and clear of any liens, but makes
no other representation or warranty and assumes no responsibility with
respect to such Letter of Credit Advance, the Loan Documents or any
Loan Party. If and to the extent that any Revolving Credit Lender
shall not have so made the amount of such Letter of Credit Advance
available to the Administrative Agent, such Revolving Credit Lender
agrees to pay to the Administrative Agent forthwith on demand such
amount, together with interest thereon, for each day from the date of
demand by the Issuing Bank until the date such amount is paid to the
Administrative Agent, at the Federal Funds Rate, for its account or
the account of the Issuing Bank, as applicable. If such Revolving
Credit Lender shall pay to the Administrative Agent such amount for
the account of the Issuing Bank on any Business Day, such amount so
paid in respect of principal shall constitute a Letter of Credit
Advance made by such Revolving Credit Lender on such Business Day for
all purposes of this Agreement, and the outstanding principal amount
of the Letter of Credit Advance made by the Issuing Bank shall be
reduced by such amount on such Business Day.
(ii) The Obligation of each Revolving Credit Lender to purchase
its Pro Rata Share of each outstanding Letter of Credit Advance upon
demand by the Issuing Bank therefor pursuant to clause (i) of this
Section 2.03(b) shall be absolute, unconditional and irrevocable, and
shall be made strictly in accordance with the terms of clause (i) of
this Section 2.03(b) under all circumstances, including, without
limitation, the following circumstances:
(A) any lack of validity or enforceability of any Loan
Document, any Letter of Credit Agreement, any Letter of Credit or
any other agreement or instrument relating thereto (collectively,
the "L/C Related Documents");
(B) the existence of any claim, set-off, defense or other
right that such Revolving Credit Lender may have at any time
against any beneficiary or any transferee of a Letter of Credit
(or any Person for whom any such beneficiary or any such
transferee may be acting), the Issuing Bank, the Borrower or any
other Person, whether in connection with the transactions
contemplated by the L/C Related Documents or any unrelated
transaction;
(C) the occurrence and continuance of any Default or Event
of Default; or
(D) any other circumstance or happening whatsoever, whether
or not similar to any of the foregoing.
35
(c) Failure to Make Letter of Credit Advances. The failure of any
Revolving Credit Lender to make the Letter of Credit Advance to be made by
it on the date specified in Section 2.03(b) shall not relieve any other
Revolving Credit Lender of its obligation hereunder to make its Letter of
Credit Advance on such date, but no Revolving Credit Lender shall be
responsible for the failure of any other Revolving Credit Lender to make
the Letter of Credit Advance to be made by such other Revolving Credit
Lender on such date.
SECTION 2.04. Repayment of Advances.
---------------------
(a) Term Advances.
(i) The Borrower shall repay to the Administrative Agent for the
ratable account of the Appropriate Lenders the aggregate principal
amount of all Term Advances outstanding on the following dates in the
respective amounts set forth opposite such dates (which amounts shall
be reduced as a result of the application of prepayments in accordance
with the order of priority set forth in Section 2.06):
================================== =============================================
DATE AMOUNT
---------------------------------- ---------------------- ----------------------
Term A Facility Term B Facility
---------------------------------- ---------------------- ----------------------
June 30, 2002 $5,625,000 $2,125,000
---------------------------------- ---------------------- ----------------------
September 30, 2002 $5,625,000 $2,125,000
---------------------------------- ---------------------- ----------------------
December 31, 2002 $5,625,000 $2,125,000
---------------------------------- ---------------------- ----------------------
March 31, 2003 $5,625,000 $2,125,000
---------------------------------- ---------------------- ----------------------
June 30, 2003 $7,500,000 $2,125,000
---------------------------------- ---------------------- ----------------------
September 30, 2003 $7,500,000 $2,125,000
---------------------------------- ---------------------- ----------------------
December 31, 2003 $7,500,000 $2,125,000
---------------------------------- ---------------------- ----------------------
March 31, 2004 $7,500,000 $2,125,000
---------------------------------- ---------------------- ----------------------
June 30, 2004 $7,500,000 $2,125,000
---------------------------------- ---------------------- ----------------------
September 30, 2004 $7,500,000 $2,125,000
---------------------------------- ---------------------- ----------------------
December 31, 2004 $7,500,000 $2,125,000
---------------------------------- ---------------------- ----------------------
March 31, 2005 $7,500,000 $2,125,000
---------------------------------- ---------------------- ----------------------
June 30, 2005 $7,500,000 $2,125,000
---------------------------------- ---------------------- ----------------------
September 30, 2005 $7,500,000 $2,125,000
---------------------------------- ---------------------- ----------------------
December 31, 2005 $7,500,000 $2,125,000
---------------------------------- ---------------------- ----------------------
March 31, 2006 $7,500,000 $2,125,000
---------------------------------- ---------------------- ----------------------
June 30, 2006 $9,375,000 $2,125,000
---------------------------------- ---------------------- ----------------------
September 30, 2006 $9,375,000 $2,125,000
---------------------------------- ---------------------- ----------------------
December 31, 2006 $9,375,000 $2,125,000
---------------------------------- ---------------------- ----------------------
March 31, 2007 $9,375,000 $2,125,000
---------------------------------- ---------------------- ----------------------
June 30, 2007 $100,937,500
---------------------------------- ---------------------- ----------------------
September 30, 2007 $100,937,500
---------------------------------- ---------------------- ----------------------
December 31, 2007 $100,937,500
---------------------------------- ---------------------- ----------------------
March 31, 2008 $100,937,500
---------------------------------- ---------------------- ----------------------
June 30, 2008 $100,937,500
---------------------------------- ---------------------- ----------------------
September 30, 2008 $100,937,500
---------------------------------- ---------------------- ----------------------
December 31, 2008 $100,937,500
---------------------------------- ---------------------- ----------------------
March 31, 2009 $100,937,500
================================== ====================== ======================
36
provided, however, that the final principal installment of the
respective Term Advances shall be in an amount equal to the aggregate
principal amount of all such Term Advances then outstanding.
(b) Revolving Credit Advances. The Borrower shall repay to the
Administrative Agent for the ratable account of the Revolving Credit
Lenders on the Termination Date the aggregate principal amount of all
Revolving Credit Advances outstanding on such date.
(c) Swing Line Advances. The Borrower shall repay to the
Administrative Agent for the account of the Swing Line Bank and each
Revolving Credit Lender that has made a Swing Line Advance on the earlier
of (i) the maturity date for each Swing Line Advance (as specified in the
applicable Notice of Swing Line Borrowing (which maturity shall be no later
than the seventh day after the date on which such Swing Line Borrowing was
initially made by the Swing Line Bank) and (ii) the Termination Date, the
principal amount of each such Swing Line Advance made by the Swing Line
Bank and each such Revolving Credit Lender and outstanding on such date.
(d) Letter of Credit Advances.
(i) The Borrower shall repay to the Administrative Agent for the
account of the Issuing Bank and each Revolving Credit Lender that has
made a Letter of Credit Advance on the earlier of (A) the date of
demand therefor and (B) the Termination Date, the principal amount of
each such Letter of Credit Advance made by the Issuing Bank and each
such Revolving Credit Lender and outstanding on such date.
(ii) The Obligations of the Borrower under this Agreement, any
Letter of Credit Agreement and any other agreement or instrument
relating to any Letter of Credit shall be absolute, unconditional and
irrevocable, and shall be paid strictly in accordance with the terms
of this Agreement, such Letter of Credit Agreement or such other
agreement or instrument under all circumstances, including, without
limitation, the following circumstances (it being understood that any
such payment by the Borrower is without prejudice to, and does not
constitute a waiver of, any rights the Borrower might have or might
acquire as a result of the payment by the Issuing Bank of any draft
drawn or the reimbursement by the Borrower thereof):
(A) any lack of validity or enforceability of any L/C
Related Document;
(B) any change in the time, manner or place of payment of,
or in any other term of, all or any of the Obligations of the
Borrower in respect of any L/C Related Document or any other
amendment or waiver of or any consent to departure from all or
any of the L/C Related Documents;
(C) the existence of any claim, set-off, defense or other
right that the Borrower may have at any time against any
beneficiary or any transferee of a Letter of Credit (or any
Person for whom any such beneficiary or any such transferee may
be acting), the Issuing Bank or any other Person, whether in
connection with the transactions contemplated by the L/C Related
Documents or any unrelated transaction;
37
(D) any statement or any other document presented under a
Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue
or inaccurate in any respect;
(E) payment by the Issuing Bank under a Letter of Credit
against presentation of a draft, certificate or other document
that does not strictly comply with the terms of such Letter of
Credit;
(F) any exchange, release or nonperfection of any Collateral
or other collateral, or any release or amendment or waiver of or
consent to departure from the Subsidiary Guarantee or any other
guarantee, for all or any of the Obligations of the Borrower in
respect of the L/C Related Documents; or
(G) any other circumstance or happening whatsoever, whether
or not similar to any of the foregoing, including, without
limitation, any other circumstance that might otherwise
constitute a defense available to, or a discharge of, the
Borrower or a guarantor.
SECTION 2.05. Termination or Reduction of the Commitments.
-------------------------------------------
(a) Optional. The Borrower may, upon at least three Business Days'
notice to the Administrative Agent, terminate in whole or reduce in part
the unused portions of the Letter of Credit Facility, the Unused Revolving
Credit Commitments or the unused portions of the Term A Facility or the
Term B Facility; provided, however, that each partial reduction of a
Facility shall be in an aggregate amount of $5,000,000 or an integral
multiple of $1,000,000 in excess thereof or, if less, the aggregate amount
of such Facility.
(b) Mandatory.
(i) The Revolving Credit Facility shall be automatically and
permanently reduced on each date on which the prepayment of Revolving
Credit Advances outstanding thereunder is required to be made pursuant
to Section 2.06(b)(i) by an amount equal to the applicable Reduction
Amount.
(ii) The Swing Line Facility shall be automatically and
permanently reduced on the date of each reduction in the Revolving
Credit Facility by the amount, if any, by which the amount of the
Swing Line Facility on such date exceeds the amount of the Revolving
Credit Facility on such date (after giving effect to such reduction of
the Revolving Credit Facility on such date).
(iii) The Letter of Credit Facility shall be automatically and
permanently reduced on the date of each reduction in the Revolving
Credit Facility by an amount equal to the amount, if any, by which (A)
the Letter of Credit Facility on such date exceeds (B) the Revolving
Credit Facility on such date, after giving effect to such reduction of
the Revolving Credit Facility.
(iv) The Term A Facility shall be automatically and permanently
reduced on the date of the Term A Advances to the amount equal to the
aggregate amount of all Term A Advances made on such date.
38
(v) The Term B Facility shall be automatically and permanently
reduced on the date of the second Term B Advances to the amount equal
to the aggregate amount of all Term B Advances theretofore made,
including the Term B Advances made on such date.
(c) Application of Commitment Reductions. Upon each reduction of a
Facility pursuant to this Section 2.05, the Commitment of each Appropriate
Lender under such Facility shall be reduced by such Lender's Pro Rata Share
of the amount by which such Facility is reduced.
SECTION 2.06. Prepayments.
-----------
(a) Optional. The Borrower may, (i) on any Business Day, prepay all or
any portions of any Swing Line Advance and (ii) upon at least three
Business Days' notice to the Administrative Agent for a Eurodollar Rate
Advance or upon at least one Business Days' notice to the Administrative
Agent for a Base Rate Advance, in each case, stating the Facility under
which Advances are proposed to be prepaid and the proposed date and
aggregate principal amount of the prepayment, and if such notice is given
the Borrower shall, prepay the aggregate principal amount of the Advances
comprising part of the same Borrowing and outstanding on such date, in
whole or ratably in part; provided, however, that each partial prepayment
of (i) Revolving Credit Advances shall be in an aggregate principal amount
of $1,000,000 or an integral multiple of $250,000 in excess thereof and
(ii) Term Advances shall be in an aggregate principal amount of $5,000,000
or an integral multiple of $500,000 in excess thereof or, if less, the
aggregate outstanding principal amount of such Facility. Each prepayment of
Term Advances made pursuant to this clause (a) shall be applied against the
principal repayment installments of the respective Term Facility designated
by the Borrower in the respective notice of prepayment.
(b) Mandatory.
(i) The Borrower shall, not later than three Business Days after
the date of receipt of the Net Cash Proceeds by the Borrower or any of
its Subsidiaries from:
(A) the sale, lease, transfer or other disposition of any
property or assets of the Borrower or any of its Subsidiaries
(other than any property or assets expressly permitted to be
sold, leased, transferred or otherwise disposed of pursuant to
clause (i), (ii), (iii), (iv) or (v) of Section 5.02(e));
(B) the incurrence or issuance by the Borrower or any of its
Subsidiaries of any Debt (other than Debt expressly permitted to
be incurred or issued pursuant to clause (i), (iii), (iv), (v),
(vi), (vii), (viii), (ix), (x), (xi) or (xiii) of Section
5.02(b)); and
(C) the issuance or sale by the Borrower or any Subsidiary
thereof (which is or will be as a result thereof subject to the
Securities Exchange Act of 1934, as amended) of any Equity
Interests therein (other than (i) the issuance by the Borrower of
(a) its common stock pursuant to equity incentive or benefit
plans of the Borrower, (b) Equity Interests to effect any
acquisition permitted under Section 5.02(f) hereof, provided that
in the case in which the proceeds of such issuance are
contemplated to be used to effect such acquisition, then all the
proceeds thereof are used within 180 days of such issuance to
effect such acquisition, and any such proceeds not so used by
such 180th day shall be applied
39
as a prepayment as provided herein, or (c) Equity Interests in
connection with a redemption of Subordinated Debt to the extent
contemplated in Section 5.02(i) and, (ii) the issuance by any
Subsidiary of the Borrower of any Equity Interests therein (a) to
the Borrower or to another Subsidiary thereof, or (b) to any
other Person or Persons in an aggregate amount in any one
transaction or series of related transactions not in excess of
$10,000,000),
prepay an aggregate principal amount of the Advances comprising part
of the same Borrowings equal to (x) 100% of the amount of the Net Cash
Proceeds in respect of any sale, lease, transfer or other disposition
of any property or assets of the Borrower or any of its Subsidiaries
referred to in subclause (b)(i)(A) above to the extent such Net Cash
Proceeds have not been reinvested within the applicable reinvestment
period as provided in Section 5.02(e)(vi); (y) the first $200,000,000
of Net Cash Proceeds from the incurrence or issuance by the Borrower
or any of its Subsidiaries of all Debt referred to in subclause
(b)(i)(B) above plus 50% of any such Net Cash Proceeds in excess of
$200,000,000; and (z) 50% of the amount of the Net Cash Proceeds of
the issuance or sale by the Borrower of any Equity Interests referred
to in subclause (b)(i)(C), and in the case of Net Cash Proceeds from
the issuance or sale by any Subsidiary of the Borrower of Equity
Interests referred to in subclause (b)(i)(C) above, 50% of an amount
equal to the Borrower's Percentage of such Net Cash Proceeds; provided
however, that prepayments of Net Cash Proceeds from the issuance or
sale by the Borrower or any Subsidiary of the Borrower of Equity
Interests referred to in subclause (b)(i)(C) above shall not be
required if, after giving pro forma effect to such issuance or sale,
the Borrower has a Leverage Ratio of less than 2.75:1.00. Each
prepayment of advances required to be made pursuant to this subclause
(i) shall first be applied on a pro rata basis between the Term
Facilities, and with respect to each Term Facility, applied on a pro
rata basis against the respective principal repayment installments
thereof, and thereafter applied to the Revolving Credit Facility in
the manner set forth in this Section 2.06(b).
(ii) The Borrower shall, on each Business Day, prepay an
aggregate principal amount of the Revolving Credit Advances comprising
part of the same Borrowings, the Letter of Credit Advances and the
Swing Line Advances and, if applicable, deposit an amount into the L/C
Cash Collateral Account equal to the amount by which (A) the sum of
(1) the aggregate principal amount of all Revolving Credit Advances,
Letter of Credit Advances and Swing Line Advances outstanding on such
Business Day and (2) the aggregate Available Amount of all Letters of
Credit outstanding on such Business Day exceeds (B) the Revolving
Credit Facility on such Business Day (after giving effect to any
permanent reduction thereof pursuant to Section 2.05 on such Business
Day).
(iii) The Borrower shall, on each Business Day, pay to the
Administrative Agent for deposit into the L/C Cash Collateral Account
an amount sufficient to cause the aggregate amount on deposit in the
L/C Cash Collateral Account on such Business Day to equal the amount
by which (A) the aggregate Available Amount of all Letters of Credit
outstanding on such Business Day exceeds (B) the Letter of Credit
Facility on such Business Day (after giving effect to any permanent
reduction thereof pursuant to Section 2.05 on such Business Day).
(iv) Prepayments of the Revolving Credit Facility made pursuant
to clause (i), (ii) or (iii) of this Section 2.06(b), first, shall be
applied to prepay Letter of Credit Advances outstanding at such time
until all such Letter of Credit Advances are paid in full, second,
shall be applied to prepay Swing Line Advances outstanding at such
time
40
until all such Swing Line Advances are paid in full, third, shall be
applied to prepay Revolving Credit Advances comprising part of the
same Borrowings and outstanding at such time until all such Revolving
Credit Advances are paid in full and, fourth, shall be deposited into
the L/C Cash Collateral Account to cash collateralize 100% of the
Available Amount of all Letters of Credit outstanding at such time;
and, in the case of prepayments of the Revolving Credit Facility
required pursuant to clause (i) or (ii) of this Section 2.06(b), the
amount remaining, if any, after the prepayment in full of all Advances
outstanding at such time and the 100% cash collateralization of the
aggregate Available Amount of all Letters of Credit outstanding at
such time (the sum of such prepayment amounts, cash collateralization
amounts and remaining amount being, collectively, the "Reduction
Amount") may be retained by the Borrower for use in the ordinary
course of its business, and the Letter of Credit Facility shall be
automatically and permanently reduced as set forth in Section
2.05(b)(iii). Upon the drawing of any Letter of Credit for which funds
are on deposit in the L/C Cash Collateral Account, such funds shall be
applied (without any further action by or notice to or from the
Borrower or any other Loan Party) to reimburse the Issuing Bank or the
Revolving Credit Lenders, as applicable.
(c) Prepayments to Include Accrued Interest, Etc. All prepayments
under this Section 2.06 shall be made together with (i) accrued and
unpaid interest to the date of such prepayment on the principal amount
so prepaid and (ii) in the case of any such prepayment of a Eurodollar
Rate Advance on a date other than the last day of an Interest Period
therefor, any amounts owing in respect of such Eurodollar Rate Advance
pursuant to 8.04(c).
(d) Term B Lender Opt-Out. Any Term B Lender may elect (upon such
election, such Term B Lender being a "Declining Lender"), by notice to
the Administrative Agent in writing (or by telecopy or telephone
promptly confirmed in writing) by 12:00 p.m., New York, New York time,
at least two Business Days prior to any prepayment of Term B Advances
required to be made by the Borrower for the account of such Declining
Lender pursuant to this Section 2.06(d), not to accept the portion of
such prepayment to which such Declining Lender would be entitled and
upon such election, such declined amount shall be applied instead to
prepay a portion of the Term A Advances (to the extent Term A Advances
remain outstanding after giving effect to such prepayment of the Term
A Advances) in accordance with subsection 2.06(b)(i) above and this
subsection 2.06(d). On the date of such prepayment (the "Prepayment
Date"), (i) an amount equal to that portion of the prepayment required
to be made to the Term B Lenders other than the Declining Lenders
(such Term B Lenders being the "Accepting Lenders") shall be applied
by the Administrative Agent on behalf of the Borrower to prepay Term B
Advances owing to such Accepting Lenders on a pro rata basis as
provided above, (ii) fifty percent of any amounts that would otherwise
have been applied to prepay Advances under the Term B Facility owing
to Declining Lenders shall instead be applied ratably to prepay the
remaining Term A Advances owing to Term A Lenders as provided above,
and (iii) the remaining fifty percent of such amounts shall be
credited to the Borrower's Account; provided that on prepayment in
full of all Term B Advances owing to Accepting Lenders and all Term A
Advances owing to Term A Lenders, the remainder of such amounts shall
be applied ratably to prepay Term B Advances owing to Declining
Lenders.
SECTION 2.07. Interest
--------
(a) Scheduled Interest. The Borrower shall pay interest on the unpaid
principal amount of each Advance owing to each Lender Party from the date
of such Advance until such principal amount shall be paid in full, at the
following rates per annum:
41
(i) Base Rate Advances. During such periods as such Advance is a
Base Rate Advance, a rate per annum equal at all times to the sum of
(A) the Base Rate in effect from time to time and (B) the Applicable
Margin for such Base Rate Advance in effect from time to time, payable
in arrears quarterly on the last Business Day of each March, June,
September and December during such periods and on the date such Base
Rate Advance shall be Converted or paid in full.
(ii) Eurodollar Rate Advances. During such periods as such
Advance is a Eurodollar Rate Advance, a rate per annum equal at all
times during each Interest Period for such Eurodollar Rate Advance to
the sum of (A) the Eurodollar Rate for such Eurodollar Rate Advance
for such Interest Period and (B) the Applicable Margin for such
Advance in effect on the first day of such Interest Period, payable in
arrears on the last day of such Interest Period and, if such Interest
Period has a duration of more than three months, on each day that
occurs during such Interest Period every three months from the first
day of such Interest Period and on the date such Eurodollar Rate
Advance shall be Converted or paid in full.
(iii) Default Interest. Upon the occurrence and during the
continuance of a Default under Section 6.01(a) or 6.01(f) or an Event
of Default, the Administrative Agent may, and upon the request of the
Required Lenders shall, require that the Borrower pay interest on (i)
the unpaid principal amount of each Advance owing to each Lender
Party, payable in arrears on the dates referred to in clause (i) or
(ii) of Section 2.07(a), as applicable, and on demand, at a rate per
annum equal at all times to 2% per annum above the rate per annum
required to be paid on such Advance pursuant to clause (i) or (ii) of
Section 2.07(a), as applicable, and (ii) to the fullest extent
permitted by applicable law, the amount of any interest, fee or other
amount payable under this Agreement or any other Loan Document to any
Agent or any Lender Party that is not paid when due, from the date
such amount shall be due until such amount shall be paid in full,
payable in arrears on the date such amount shall be paid in full and
on demand, at a rate per annum equal at all times to 2% per annum
above the rate per annum required to be paid, in the case of interest,
on the Type of Advance on which such interest has accrued pursuant to
clause (i) or (ii) of Section 2.07(a), as applicable, and, in all
other cases, on Base Rate Advances pursuant to clause (i) of Section
2.07(a).
(b) Notice of Interest Rate. Promptly after receipt of a Notice of
Borrowing pursuant to Section 2.02(a), a Notice of Conversion pursuant to
Section 2.09(a) or a notice of selection of an Interest Period pursuant to
the definition of "Interest Period" set forth in Section 1.01, the
Administrative Agent shall give notice to the Borrower and each Appropriate
Lender of the applicable interest rate determined by the Administrative
Agent for purposes of clause (i) or (ii) of Section 2.07(a), as applicable.
SECTION 2.08. Fees.
----
(a) Commitment Fee.
(i) The Borrower shall pay to the Administrative Agent for the
account of the Revolving Credit Lenders a commitment fee (the
"Commitment Fee"), from the date hereof in the case of each Initial
Lender and from the effective date specified in the Assignment and
Assumption pursuant to which it became a Revolving Credit Lender in
the case of each other Revolving Credit Lender until, in each case,
the Termination Date, payable in arrears on the date of the Initial
Extension of Credit, thereafter quarterly on the
42
last Business Day of each March, June, September and December,
commencing June 30, 2002, and on the Termination Date, at the
Applicable Percentage in effect from time to time on the sum of (i)
the average daily Unused Revolving Credit Commitment of each Revolving
Credit Lender plus (ii) such Revolving Credit Lender's Pro Rata Share
of the average daily outstanding Swing Line Advances during such
quarter; provided, however, that no Commitment Fee shall accrue on any
of the Commitments of a Defaulting Lender so long as such Lender shall
be a Defaulting Lender.
(ii) The Borrower shall pay to the Administrative Agent for the
account of the Term A Lenders a commitment fee, from the date hereof
in the case of each Initial Lender and from the effective date
specified in the Assignment and Assumption pursuant to which it became
a Term A Lender in the case of each other Term A Lender until the date
of the Term A Advances, payable on such date at the rate of 0.50% per
annum on the amount of the respective Term A Lender's respective Term
A Commitment.
(iii) The Borrower shall pay to the Administrative Agent for the
account of the Term B Lenders a commitment fee, from the date hereof
in the case of each Initial Lender and from the effective date
specified in the Assignment and Assumption pursuant to which it became
a Term B Lender in the case of each other Term B Lender until the date
of the second Term B Advance, payable on such date at the rate of
0.50% per annum on the unused amount of the respective Term B Lender's
respective Term B Commitment during such period.
(b) Letter of Credit Fees, Etc.
(i) The Borrower shall pay to the Administrative Agent for the
account of each Revolving Credit Lender a commission, payable in
arrears quarterly on the last Business Day of each March, June,
September and December, commencing June 30, 2002, and on the earliest
to occur of the full drawing, expiration, termination or cancellation
of any such Letter of Credit and on the Termination Date, on such
Revolving Credit Lender's Pro Rata Share of the average daily
aggregate Available Amount of all Letters of Credit outstanding from
time to time during such quarter at the rate per annum equal to the
Applicable Margin in effect at such time for Eurodollar Rate Advances
under the Revolving Credit Facility. Upon the occurrence and during
the continuance of a Default under Section 6.01(a) or 6.01(f) or an
Event of Default, the amount of commission payable by the Borrower
under this clause (b)(i) shall be increased by 2% per annum.
(ii) The Borrower shall pay to each Issuing Bank, for its own
account, an issuing bank fee, payable in arrears quarterly on the last
Business Day of each March, June, September and December, commencing
June 30, 2002, and on the earliest to occur of the full drawing,
expiration, termination or cancellation of any such Letter of Credit
issued by such Issuing Bank and on the Termination Date, on the
average daily aggregate Available Amount of all Letters of Credit
issued by such Issuing Bank and outstanding from time to time during
such quarter at the rate per annum equal to 0.25%, together with such
commissions, transfer fees and other fees and charges in connection
with the issuance or administration of each Letter of Credit as the
Borrower and such Issuing Bank shall from time to time agree.
43
(c) Agents' Fees. The Borrower shall pay to the Administrative Agent
for the account of the Agents such fees as may from time to time be agreed
between the Borrower and the Administrative Agent.
SECTION 2.09. Conversion of Advances.
----------------------
(a) Optional. The Borrower may on any Business Day, upon notice given
to the Administrative Agent not later than (i) 2:00 P.M. (New York, New
York time) on the third Business Day prior to the date of the proposed
Conversion in the case of a Conversion of Base Rate Advances into
Eurodollar Rate Advances or of Eurodollar Rate Advances of one Interest
Period into Eurodollar Rate Advances of another Interest Period, or (ii)
2:00 P.M. (New York, New York time) on the Business Day immediately
preceding the date of the proposed Conversion in the case of a Conversion
of Eurodollar Rate Advances into Base Rate Advances; provided, however,
that in each case:
(A) any Conversion of Base Rate Advances into Eurodollar Rate
Advances shall be made only if no Default under Section 6.01(f) or
Event of Default shall have occurred and be continuing and shall be in
an amount not less than the minimum amount specified in Section
2.01(c);
(B) no Conversion of any Advances shall result in more separate
Borrowings than permitted under Section 2.02(c); and
(C) each Conversion of Advances comprising part of the same
Borrowing under any Facility shall be made among the Appropriate
Lenders in accordance with their respective Pro Rata Shares of such
Borrowing.
Each notice of a Conversion (a "Notice of Conversion") shall be delivered
by telephone, confirmed immediately in writing, or by telecopier, in
substantially the form of Exhibit B-3 hereto, shall be duly executed by a
Responsible Officer of the Borrower, and shall, within the restrictions set
forth in the immediately preceding sentence, specify therein:
(1) the requested date of such Conversion (which shall be a Business
Day);
(2) the Advances requested to be Converted; and
(3) if such Conversion is into Eurodollar Rate Advances, the requested
duration of the Interest Period for such Eurodollar Rate Advances.
The Administrative Agent shall give each of the Appropriate Lenders prompt
notice of each Notice of Conversion received by it. Each Notice of
Conversion shall be irrevocable and binding on the Borrower.
(b) Mandatory.
(i) On the last day of any Interest Period during which the
aggregate unpaid principal amount of Eurodollar Rate Advances
comprising any Borrowing shall be reduced, by payment or prepayment or
otherwise, to less than $5,000,000, such Advances shall automatically
Convert into Base Rate Advances.
44
(ii) If the Borrower shall fail to select the duration of any
Interest Period for any Eurodollar Rate Advances in accordance with
the provisions contained in the definition of "Interest Period" set
forth in Section 1.01, the Administrative Agent will forthwith so
notify the Borrower and the Appropriate Lenders, whereupon each such
Eurodollar Rate Advance will automatically, on the last day of the
then existing Interest Period therefor, Convert into a Base Rate
Advance.
(iii) Upon the occurrence and during the continuance of any
Default under Section 6.01(f) or any Event of Default, (A) each
Eurodollar Rate Advance will automatically, on the last day of the
then existing Interest Period therefor, Convert into a Base Rate
Advance and (B) the obligation of the Lenders to make, or to Convert
Advances into, Eurodollar Rate Advances shall be suspended.
SECTION 2.10. Increased Costs, Etc.
---------------------
(a) If, after the date hereof, the adoption of any applicable
Requirement of Law, or any change in any applicable Requirement of Law, or
any change in the interpretation or administration thereof by any
Governmental Authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender (or
its Applicable Lending Office) with any request or directive (whether or
not having the force of law) of any such Governmental Authority, central
bank or comparable agency:
(i) shall subject such Lender (or its Applicable Lending Office)
to any tax, duty, or other charge with respect to any Eurodollar Rate
Advances, any of its Notes, or its obligation to make any Eurodollar
Rate Advances, or change the basis of taxation of any amounts payable
to such Lender (or its Applicable Lending Office) under this Agreement
or its Note in respect of any Eurodollar Rate Advances (other than,
for purposes of this Section 2.10, any such increased costs resulting
from (A) Taxes or Other Taxes (as to which Section 2.13 shall govern),
and (B) changes in the basis of taxation of overall net income or
overall gross income by the United States of America or the
jurisdiction under the laws of which such Lender Party has its
principal office or such Applicable Lending Office);
(ii) shall impose, modify, or deem applicable any reserve,
special deposit, assessment, or similar requirement relating to any
extensions of credit or other assets of, or any deposits with or other
liabilities or commitments of, such Lender (or its Applicable Lending
Office), including the Commitments of such Lender hereunder; or
(iii) shall impose on such Lender (or its Applicable Lending
Office) or on the United States market for certificates of deposit or
the London interbank market any other condition affecting this
Agreement or its Note or any of such extensions of credit or
liabilities or commitments;
and the result of any of the foregoing is to increase the cost to such
Lender (or its Applicable Lending Office) of making, Converting into or
maintaining any Eurodollar Rate Advances or to reduce any sum received or
receivable by such Lender (or its Applicable Lending Office) under this
Agreement or its Note with respect to any Eurodollar Rate Advances, then
the Borrower shall pay to such Lender on demand such amount or amounts as
will compensate such Lender for such increased cost or reduction. Each
Lender shall promptly notify the Borrower and the Administrative Agent of
any event of which it has knowledge, occurring after the date hereof, which
will entitle such Lender to compensation pursuant to this Section 2.10(a)
and will
45
designate a different Applicable Lending Office if such designation will
avoid the need for, or reduce the amount of, such compensation and will
not, in the judgment of such Lender, be otherwise disadvantageous to it
(other than by reason of administrative convenience or preference). Any
Lender claiming compensation under this Section 2.10(a) shall furnish to
the Borrower and the Administrative Agent a statement setting forth the
additional amount or amounts to be paid to it hereunder (including the
method of calculation), which shall be conclusive and binding, absent
manifest error. In determining such amount, such Lender may use any
reasonable averaging and attribution methods. If any Lender requests
compensation by the Borrower under this Section 2.10(a), the Borrower may,
by notice to such Lender (with a copy to the Administrative Agent), suspend
the obligation of such Lender to make or Convert Eurodollar Rate Advances,
or to Convert Base Rate Advances into Eurodollar Rate Advances, until the
event or condition giving rise to such request ceases to be in effect (in
which case the provisions of Section 2.10(e) shall be applicable); provided
that such suspension shall not affect the right of such Lender to receive
the compensation so requested.
(b) If, after the date hereof, any Lender shall have determined that
the adoption of any applicable Requirement of Law regarding capital
adequacy or any change therein or in the interpretation or administration
thereof by any Governmental Authority, central bank or comparable agency
charged with the interpretation or administration thereof, or any request
or directive regarding capital adequacy (whether or not having the force of
law) of any such Governmental Authority, central bank or comparable agency,
has or would have the effect of reducing the rate of return on the capital
of such Lender or any corporation controlling such Lender as a consequence
of such Lender's obligations hereunder to a level below that which such
Lender or such corporation could have achieved but for such adoption,
change, request or directive (taking into consideration its policies with
respect to capital adequacy), then from time to time upon demand the
Borrower shall pay to such Lender such additional amount or amounts as will
compensate such Lender for such reduction. Each Lender shall promptly
notify the Borrower and the Administrative Agent of any event of which it
has knowledge, occurring after the date hereof, which will entitle such
Lender to compensation pursuant to this Section 2.10(b) and will designate
a different Applicable Lending Office if such designation will avoid the
need for, or reduce the amount of, such compensation and will not, in the
judgment of such Lender, be otherwise disadvantageous to it. Any Lender
claiming compensation under this Section 2.10(b) shall furnish to the
Borrower and the Administrative Agent a statement setting forth the
additional amount or amounts to be paid to it hereunder (including the
method of calculation), which shall be conclusive and binding, absent
manifest error. In determining such amount, such Lender may use any
reasonable averaging and attribution methods.
(c) If, on or prior to the first day of any Interest Period for any
Eurodollar Rate Advance, the Required Lenders at any time notify the
Administrative Agent that the Eurodollar Rate for any Interest Period for
such Advances will not adequately and fairly reflect the cost to the
Appropriate Lenders of funding their Eurodollar Rate Advances for such
Interest Period, the Administrative Agent shall promptly so notify the
Borrower and the Appropriate Lenders, whereupon (i) each such Eurodollar
Rate Advance will automatically, on the last day of the then existing
Interest Period therefor, Convert into a Base Rate Advance and (ii) the
obligation of the Appropriate Lenders to make, or to Convert Advances into,
Eurodollar Rate Advances shall be suspended until the Administrative Agent
shall notify the Borrower (promptly following notice from the Appropriate
Lenders) that such Lenders have determined that the circumstances causing
such suspension no longer exist.
(d) Notwithstanding any other provision of this Agreement, in the
event that it becomes unlawful for any Lender or its Applicable Lending
Office to make, maintain, or fund
46
Eurodollar Rate Advances hereunder, then such Lender shall promptly notify
the Borrower thereof and such Lender's obligation to make Eurodollar Rate
Advances and to Convert Base Rate Advances into Eurodollar Rate Advances
shall be suspended until such time as such Lender may again make, maintain
and fund Eurodollar Rate Advances (in which case the provisions of Section
2.10(e) shall be applicable).
(e) If the obligation of any Lender to make a Eurodollar Rate Advance
or to Convert Base Rate Advances into Eurodollar Rate Advances shall be
suspended pursuant to any other provision of this Section 2.10, such
Lender's suspended Eurodollar Rate Advances shall be automatically
Converted into Base Rate Advances on the last day(s) of the then current
Interest Period(s) therefor (or, in the case of a Conversion required by
Section 2.10(d), on such earlier date as such Lender may specify to the
Borrower with a copy to the Administrative Agent) and, unless and until
such Lender gives notice as provided below that the circumstances specified
in such other provision of this Section 2.10 that gave rise to such
Conversion no longer exist:
(i) to the extent that such Lender's suspended Eurodollar Rate
Advances have been so Converted, all payments and prepayments of
principal that would otherwise be applied to such Lender's suspended
Eurodollar Rate Advances shall be applied instead to its Base Rate
Advances; and
(ii) all Eurodollar Rate Advances that would otherwise be made or
Converted by such Lender shall be made instead as (or shall remain as)
Base Rate Advances.
If such Lender gives notice to the Borrower (with a copy to the
Administrative Agent) that the circumstances otherwise specified in this
Section 2.10 that gave rise to the suspension of the making of Eurodollar
Rate Advances by such Lender no longer exist (which such Lender agrees to
do promptly upon such circumstances ceasing to exist) at a time when
Eurodollar Rate Advances by other Lenders with Commitments under the same
Facility are outstanding, such Lender's Base Rate Advances shall be
automatically Converted, on the first day(s) of the next succeeding
Interest Period(s) therefor, to the extent necessary into Eurodollar Rate
Advances.
SECTION 2.11. Evidence of Debt.
----------------
(a) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the debt of the Borrower to such Lender
resulting from each Advance owing to such Lender from time to time,
including the amounts of principal and interest payable and paid to such
Lender from time to time hereunder.
(b) The Register maintained by the Administrative Agent pursuant to
Section 8.07(e) shall include accounts for each Lender, in which accounts
(taken together) shall be recorded (i) the date and amount of each Advance
made hereunder, (ii) the terms of each Assignment and Assumption delivered
to and accepted by it, (iii) the amount of any principal or interest due
and payable or to become due and payable from the Borrower to each Lender
hereunder and (iv) the amount of any sum received by the Administrative
Agent from the Borrower hereunder and each Lender's share thereof.
(c) The entries made as provided in this Section 2.11 shall be
conclusive and binding for all purposes, absent manifest error.
47
SECTION 2.12. Payments and Computations.
-------------------------
(a) The Borrower shall make each payment hereunder and under the
Notes, irrespective of any right of counterclaim, deduction or set-off
(except as otherwise provided in Section 2.16), not later than 2:00 P.M.
(New York, New York time) on the day when due in U.S. dollars to the
Administrative Agent at the Administrative Agent's Account in same day
funds, with payments received by the Administrative Agent after such time
being deemed to have been received on the next succeeding Business Day. The
Administrative Agent will promptly thereafter cause like funds to be
distributed (i) if such payment by the Borrower is in respect of principal,
interest, commitment fees or any other Obligation then due and payable
hereunder and under the Notes to more than one Lender Party, to such Lender
Parties for the accounts of their respective Applicable Lending Offices in
accordance with their respective Pro Rata Shares of the amounts of such
respective Obligations due and payable to such Lender Parties at such time
and (ii) if such payment by the Borrower is in respect of any Obligation
then due and payable hereunder solely to one Lender Party, to such Lender
Party for the account of its Applicable Lending Office, in each case to be
applied in accordance with the terms of this Agreement. Upon its acceptance
of an Assignment and Assumption and recording of the information contained
therein in the Register pursuant to Section 8.07(c), from and after the
effective date of such Assignment and Assumption, the Administrative Agent
shall make all payments hereunder and under the Notes in respect of the
interest assigned thereby to the Lender Party assignee thereunder, and the
parties to such Assignment and Assumption shall make all appropriate
adjustments in such payments for periods prior to such effective date
directly between themselves.
(b) The Borrower hereby authorizes each Lender Party, if and to the
extent payment owed to such Lender Party is not made when due hereunder or,
in the case of a Lender, under the Note held by such Lender, to charge from
time to time against any or all of the Borrower's accounts with such Lender
Party any amount so due.
(c) All computations of interest based on the Base Rate shall be made
by the Administrative Agent on the basis of a year of 365 or 366 days, as
the case may be, and all computations of interest based on the Eurodollar
Rate or the Federal Funds Rate and of the letter of credit commissions and
commitment or letter of credit fees payable hereunder shall be made by the
Administrative Agent on the basis of a year of 360 days, in each case for
the actual number of days (including the first day but excluding the last
day) occurring in the period for which such interest, fees or commissions
are payable. Each determination by the Administrative Agent of an interest
rate, fee or commission hereunder shall be conclusive and binding for all
purposes, absent manifest error.
(d) Whenever any payment hereunder or under the Notes shall be stated
to be due on a day other than a Business Day, such payment shall be made on
the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest, letter of
credit commissions or commitment or letter of credit fees, as the case may
be; provided, however, that, if such extension would cause payment of
interest on or principal of Eurodollar Rate Advances to be made in the next
succeeding calendar month, such payment shall be made on the immediately
preceding Business Day.
(e) Unless the Borrower or any Lender Party has notified the
Administrative Agent prior to the date any payment is required to be made
by it to the Administrative Agent hereunder, that the Borrower or such
Lender Party, as the case may be, will not make such payment, the
Administrative Agent may assume that the Borrower or such Lender Party, as
the case may be, has timely made such payment and may (but shall not be so
required to), in reliance thereon, make available a corresponding amount to
the Person entitled thereto. If and to the extent that
48
such payment was not in fact made to the Administrative Agent in
immediately available funds, then:
(i) if the Borrower failed to make such payment, each Lender
Party shall forthwith on demand repay to the Administrative Agent the
portion of such assumed payment that was made available to such Lender
Party in immediately available funds, together with interest thereon
in respect of each day from and including the date such amount was
made available by the Administrative Agent to such Lender Party to the
date such amount is repaid to the Administrative Agent in immediately
available funds, at the Federal Funds Rate from time to time in
effect; and
(ii) if any Lender Party failed to make such payment, such Lender
Party shall forthwith on demand pay to the Administrative Agent the
amount thereof in immediately available funds, together with interest
thereon for the period from the date such amount was made available by
the Administrative Agent to the Borrower to the date such amount is
recovered by the Administrative Agent (the "Compensation Period") at a
rate per annum equal to the Federal Funds Rate from time to time in
effect. If such Lender Party pays such amount to the Administrative
Agent, then such amount shall constitute such Lender Party's Advance
included in the applicable Borrowing. If such Lender Party does not
pay such amount forthwith upon the Administrative Agent's demand
therefor, the Administrative Agent may make a demand therefor upon the
Borrower, and the Borrower shall pay such amount to the Administrative
Agent, together with interest thereon for the Compensation Period at a
rate per annum equal to the rate of interest applicable to the
applicable Borrowing. Nothing herein shall be deemed to relieve any
Lender Party from its obligation to fulfill its applicable Commitment
or to prejudice any rights which the Administrative Agent or the
Borrower may have against any Lender Party as a result of any default
by such Lender Party hereunder.
A notice from the Administrative Agent to any Lender Party with respect to
any amount owing under this subsection (e) shall be conclusive, absent
manifest error.
(f) Whenever any payment received by the Administrative Agent under
this Agreement or any of the other Loan Documents is insufficient to pay in
full all amounts due and payable to the Agents and the Lender Parties under
or in respect of this Agreement and the other Loan Documents on any date,
such payment shall be distributed by the Administrative Agent and applied
by the Agents and the Lender Parties in the following order of priority:
(i) first, to the payment of all of the fees, indemnification
payments, costs and expenses that are due and payable to the Agents
(solely in their respective capacities as Agents) under or in respect
of this Agreement and the other Loan Documents on such date, ratably
based upon the respective aggregate amounts of all such fees,
indemnification payments, costs and expenses owing to the Agents on
such date;
(ii) second, to the payment of all of the fees, indemnification
payments, costs and expenses that are due and payable to the Issuing
Bank and the Swing Line Bank (solely in their respective capacities as
such) under or in respect of this Agreement and the other Loan
Documents on such date, ratably based upon the respective aggregate
amounts of all such fees, indemnification payments, costs and expenses
owing to the Issuing Bank and the Swing Line Bank on such date;
49
(iii) third, to the payment of all of the indemnification
payments, costs and expenses that are due and payable to the Lenders
under Section 8.04 hereof, Section 12 of the Subsidiary Guarantee,
Section 21 of the Security Agreement and any similar section of any of
the other Loan Documents on such date, ratably based upon the
respective aggregate amounts of all such indemnification payments,
costs and expenses owing to the Lenders on such date;
(iv) fourth, to the payment of all of the amounts that are due
and payable to the Administrative Agent and the Lender Parties under
Sections 2.10 and 2.13 hereof and Section 5 of the Subsidiary
Guarantee on such date, ratably based upon the respective aggregate
amounts thereof owing to the Administrative Agent and the Lender
Parties on such date;
(v) fifth, to the payment of all of the accrued and unpaid
interest on the Obligations of the Borrower under or in respect of the
Loan Documents that is due and payable to the Administrative Agent and
the Lender Parties under Section 2.07(a) on such date and all of the
fees that are due and payable to the Lenders or the Issuing Bank under
Section 2.08(a) or 2.08(b) on such date, ratably based upon the
respective aggregate Commitments of the Lenders under the Facilities
on such date;
(vi) sixth, to the payment of the principal amount of all of the
outstanding Advances that is due and payable to the Administrative
Agent and the Lender Parties on such date, ratably based upon the
respective aggregate amounts of all such principal owing to the
Administrative Agent and the Lender Parties on such date; and
(vii) seventh, to the payment of all other Obligations of the
Loan Parties owing under or in respect of the Loan Documents that are
due and payable to the Administrative Agent and the other Secured
Parties on such date, ratably based upon the respective aggregate
amounts of all such Obligations owing to the Administrative Agent and
the other Secured Parties on such date.
If the Administrative Agent receives funds for application to the
Obligations of the Loan Parties under or in respect of the Loan Documents
under circumstances for which the Loan Documents do not specify the
Advances or the Facility to which, or the manner in which, such funds are
to be applied, the Administrative Agent may, but shall not be obligated to,
elect to distribute such funds to each of the Lender Parties in accordance
with such Lender Party's Pro Rata Share of the sum of (A) the aggregate
principal amount of all Advances outstanding at such time and (b) the
aggregate Available Amount of all Letters of Credit outstanding at such
time, in repayment or prepayment of such of the outstanding Advances or
other Obligations then owing to such Lender Party, and, in the case of the
Term Facility, for application to such principal repayment installments
thereof, as the Administrative Agent shall direct.
SECTION 2.13. Taxes.
-----
(a) Any and all payments by the Borrower to or for the account of any
Lender Party or any Agent hereunder or under any other Loan Document shall
be made, in accordance with Section 2.12 or the applicable provisions of
such other Loan Document, if any, free and clear of and without deduction
for any and all present or future taxes, levies, imposts, deductions,
charges or withholdings, and all liabilities with respect thereto,
excluding, in the case of each Lender Party and each Agent, taxes that are
imposed on its overall net income by the United States and taxes that are
imposed on its overall net income (and franchise taxes imposed in lieu
thereof) by
50
the state or foreign jurisdiction under the laws of which such Lender Party
or such Agent, as the case may be, is organized or is a resident, or has a
fixed place of business or a permanent establishment, or any political
subdivision of any of the foregoing, and, in the case of each Lender Party,
taxes that are imposed on its overall net income (and franchise taxes
imposed in lieu thereof) by the state or foreign jurisdiction of either of
its Applicable Lending Offices or any political subdivision thereof (all
such nonexcluded taxes, levies, imposts, deductions, charges, withholdings
and liabilities in respect of payments hereunder or under the Notes being,
collectively, "Taxes"). If the Borrower shall be required under applicable
Requirements of Law to deduct any Taxes from or in respect of any sum
payable hereunder or under any other Loan Document to any Lender Party or
any Agent, (i) the sum payable by the Borrower shall be increased as
necessary so that after the Borrower and the Administrative Agent have been
made all required deductions (including deductions applicable to additional
sums payable under this Section 2.13) such Lender Party or such Agent, as
the case may be, receives an amount equal to the sum it would have received
had no such deductions been made, (ii) the Borrower shall make such
deductions, (iii) the Borrower shall pay the full amount deducted to the
relevant taxation authority or other Governmental Authority in accordance
with applicable Requirements of Law and (iv) within 30 days after the date
of any payment of Taxes, the Borrower shall furnish to the Administrative
Agent, at its address referred to in Section 8.02, the original or a
certified copy of a receipt evidencing payment thereof, to the extent such
a receipt is issued therefor, or other written proof of payment thereof
that is reasonably satisfactory to the Administrative Agent.
(b) In addition, the Borrower agrees to pay any present or future
stamp, recording or documentary, excise, property or similar taxes, charges
or levies that arise from any payment made hereunder or under any other
Loan Document or from the execution, delivery of, or registration of, any
performance under, or otherwise with respect to, this Agreement or any
other Loan Document (collectively, "Other Taxes").
(c) The Borrower shall indemnify each of the Lender Parties and each
of the Agents for, and hold each of them harmless against, the full amount
of Taxes and Other Taxes, and the full amount of taxes of any kind imposed
by any jurisdiction on amounts payable under this Section 2.13, imposed on
or paid by such Lender Party or such Agent, as the case may be, and any
liability (including penalties, additions to tax, interest and expenses)
arising therefrom or with respect thereto. The indemnity by the Borrower
provided for in this subsection (c) shall apply and be made whether or not
the Taxes or Other Taxes for which indemnification hereunder is sought have
been correctly or legally asserted; provided, however, that such Lender or
such Agent seeking such indemnification shall take all reasonable actions
(consistent with its internal policy and legal and regulatory restrictions)
requested by the Borrower to assist the Borrower in recovering the amounts
paid thereby pursuant to this subsection (c) from the relevant taxation
authority or other Governmental Authority. Amounts payable by the Borrower
under the indemnity set forth in this subsection (c) shall be paid within
30 days from the date on which the applicable Lender or Agent, as the case
may be, makes written demand therefor (including the method of
calculation).
(d) In the case of any payment hereunder or under any other Loan
Document by or on behalf of the Borrower through an account or branch
outside the United States, or on behalf of the Borrower by a payor that is
not a United States person, if the Borrower determines that no Taxes are
payable in respect thereof, the Borrower shall furnish, or shall cause such
payor to furnish, to the Administrative Agent, at its address referred to
in Section 8.02, an opinion of counsel reasonably acceptable to the
Administrative Agent stating that such payment is exempt from Taxes. For
purposes of this subsection (d) and subsection (e) of this Section 2.13,
the terms
51
"United States" and "United States person" shall have the meanings
specified in Section 7701 of the Internal Revenue Code.
(e) Each Lender Party organized under the laws of a jurisdiction
outside the United States shall, on or prior to the date of its execution
and delivery of this Agreement in the case of each Initial Lender, the
Swing Line Bank or the Initial Issuing Bank, as the case may be, and on or
prior to the date of the Assignment and Assumption pursuant to which it
becomes a Lender Party in the case of each other Lender Party, and from
time to time thereafter as reasonably requested in writing by the Borrower
(but only so long thereafter as such Lender Party remains lawfully able to
do so), provide each of the Administrative Agent and the Borrower with two
original Internal Revenue Service forms ▇-▇▇▇▇, ▇-▇▇▇▇ or W-8IMY, or in the
case of a Lender Party that has certified in writing to the Administrative
Agent that it is claiming exemption from United States withholding tax
under Section 871(h) or 881(c) of the Internal Revenue Code with respect to
payments of "portfolio interest" from W-8BEN), (and, if such Lender Party
delivers a form W-8BEN, a certificate representing that such Lender Party
is not (i) a "bank" for purposes of Section 881(c) of the Internal Revenue
Code, (ii) a ten-percent shareholder (within the meaning of Section
871(h)(3)(B) of the Internal Revenue Code) of the Borrower or (iii) a
controlled foreign corporation related to the Borrower (within the meaning
of Section 864(d)(4) of the Internal Revenue Code)), as appropriate, or any
successor or other form prescribed by the Internal Revenue Service,
certifying that such Lender Party is exempt from or entitled to a reduced
rate of United States withholding tax on payments pursuant to this
Agreement or any other Loan Document or, in the case of a Lender Party
providing a form W-8BEN, certifying that such Lender Party is a foreign
corporation, partnership, estate or trust. If any such forms provided by a
Lender Party at the time such Lender Party first becomes a party to this
Agreement indicate a United States interest withholding tax rate in excess
of zero, withholding tax at such rate shall be considered excluded from
Taxes unless and until such Lender Party provides the appropriate form
certifying that a lesser rate applies, whereupon withholding tax at such
lesser rate only shall be considered excluded from Taxes solely for the
periods governed by such forms. However, if at the date of the Assignment
and Assumption pursuant to which a Lender Party becomes a party to this
Agreement, the Lender Party assignor was entitled to payments under
subsection (a) of this Section 2.13 in respect of United States withholding
tax with respect to interest paid at such date, then, to such extent, the
term Taxes shall include (in addition to withholding taxes that may be
imposed in the future or other amounts otherwise includable in Taxes)
United States withholding tax, if any, applicable with respect to the
Lender Party assignee on such date. None of the Lender Parties shall be
entitled to payment pursuant to subsection (a) or (c) of this Section 2.13
with respect to any additional Taxes that result solely and directly from a
change in either of the Applicable Lending Offices of such Lender Party
(other than any such additional Taxes that are imposed as a result of a
change in the applicable Requirements of Law, or in the interpretation of
application thereof, occurring after the date of such change), unless such
change is made pursuant to the terms of Section 2.10(e) or subsection (g)
of this Section 2.13 or as a result of a request therefor by the Borrower.
(f) For any period with respect to which a Lender Party has failed to
provide the Borrower with the appropriate form, certificate or other
document described in subsection (e) of this Section 2.13 (other than if
such failure is due to a change in the applicable Requirements of Law, or
in the interpretation or application thereof, occurring after the date on
which a form, certificate or other document originally was required to be
provided or if such form, certificate or other document otherwise is not
required under subsection (e) of this Section 2.13), such Lender Party
shall not be entitled to indemnification under subsection (a) or (c) of
this Section 2.13 with respect to Taxes imposed by the United States by
reason of such failure; provided, however, that should a Lender Party
become subject to Taxes because of its failure to deliver a form,
certificate
52
or other document required hereunder, the Borrower shall take such steps as
such Lender Party shall reasonably request to assist such Lender Party in
recovering such Taxes.
(g) Each of the Lender Parties hereby agrees that, upon the occurrence
of any circumstances entitling such Lender Party to additional amounts
pursuant to this Section 2.13, such Lender Party shall use reasonable
efforts (consistent with its internal policy and legal and regulatory
restrictions) to designate a different Applicable Lending Office if the
making of such a change would avoid the need for, or reduce the amount of,
any such additional amounts that may thereafter accrue and would not, in
the reasonable judgment of such Lender Party, be otherwise disadvantageous
to such Lender Party (other than by reason of administrative convenience or
preference).
SECTION 2.14. Sharing of Payments, Etc. If any Lender Party shall obtain at
------------------------
any time any payment (whether voluntary, involuntary, through the exercise of
any right of setoff, or otherwise) (a) on account of Obligations due and payable
to such Lender Party under or in respect of this Agreement or any of the other
Loan Documents at such time in excess of its ratable share (according to the
proportion of (i) the amount of such Obligations due and payable to such Lender
Party at such time (other than pursuant to Section 2.10, 2.13, 8.04 or 8.07) to
(ii) the aggregate amount of the Obligations due and payable to all Lender
Parties at such time) of payments on account of the Obligations due and payable
to all Lender Parties under or in respect of this Agreement and the other Loan
Documents at such time obtained by all the Lender Parties at such time or (b) on
account of Obligations owing (but not due and payable) to such Lender Party
under or in respect of this Agreement or any of the other Loan Documents at such
time in excess of its ratable share (according to the proportion of (i) the
amount of such Obligations owing to such Lender Party at such time (other than
pursuant to Section 2.10, 2.13, 8.04 or 8.07) to (ii) the aggregate amount of
the Obligations owing (but not due and payable) to all Lender Parties under or
in respect of this Agreement and the other Loan Documents at such time) of
payments on account of the Obligations owing (but not due and payable) to all
Lender Parties under or in respect of this Agreement and the other Loan
Documents at such time obtained by all of the Lender Parties at such time, such
Lender Party shall forthwith purchase from the other Lender Parties such
interests or participating interests in the Obligations due and payable or owing
to them, as the case may be, as shall be necessary to cause such purchasing
Lender Party to share the excess payment ratably with each of them; provided,
however, that if all or any portion of such excess payment is thereafter
recovered from such purchasing Lender Party, such purchase from each other
Lender Party shall be rescinded and such other Lender Party shall repay to the
purchasing Lender Party the purchase price to the extent of such Lender Party's
ratable share (according to the proportion of (A) the purchase price paid to
such Lender Party to (B) the aggregate purchase price paid to all Lender
Parties) of such recovery, together with an amount equal to such Lender Party's
ratable share (according to the proportion of (1) the amount of such other
Lender Party's required repayment to (2) the total amount so recovered from the
purchasing Lender Party) of any interest or other amount paid or payable by the
purchasing Lender Party in respect of the total amount so recovered; provided
further that, so long as the Obligations under the Loan Documents shall not have
been accelerated, any excess payment received by any Appropriate Lender shall be
shared on a pro rata basis only with other Appropriate Lenders. The Borrower
hereby agrees that any Lender Party so purchasing an interest or participating
interest from another Lender Party pursuant to this Section 2.14 may, to the
fullest extent permitted under applicable law, exercise all its rights of
payment (including the right of setoff) with respect to such an interest or
participating interest, as the case may be, as fully as if such Lender Party
were the direct creditor of the Borrower in the amount of such an interest or
participating interest.
SECTION 2.15. Use of Proceeds. The proceeds of the Advances and issuances
---------------
of Letters of Credit shall be available (and the Borrower agrees that it shall
use such proceeds and Letters of Credit) solely to purchase the 2001
Subordinated Notes, to purchase its common stock as contemplated in Section
53
5.02(g)(v), to repay all principal, accrued interest and fees to the lenders and
agents under the Existing Credit Agreement, for acquisitions as permitted herein
and for general corporate purposes of the Borrower and its Subsidiaries, and to
pay fees and expenses incurred in connection with the consummation of the
Transaction.
SECTION 2.16. Defaulting Lenders.
------------------
(a) In the event that, at any one time, (i) any Lender Party shall be
a Defaulting Lender, (ii) such Defaulting Lender shall owe a Defaulted
Advance to the Borrower and (iii) the Borrower shall be required to make
any payment hereunder or under any other Loan Document to or for the
account of such Defaulting Lender, then the Borrower may, so long as no
Default shall occur or be continuing at such time and to the fullest extent
permitted by applicable law, set off and otherwise apply the Obligation of
the Borrower to make such payment to or for the account of such Defaulting
Lender against the obligation of such Defaulting Lender to make such
Defaulted Advance. In the event that, on any date, the Borrower shall so
set off and otherwise apply its obligation to make any such payment against
the obligation of such Defaulting Lender to make any such Defaulted Advance
on or prior to such date, the amount so set off and otherwise applied by
the Borrower shall constitute for all purposes of this Agreement and the
other Loan Documents an Advance by such Defaulting Lender made on the date
of such setoff under the Facility pursuant to which such Defaulted Advance
was originally required to have been made pursuant to Section 2.01. Such
Advance shall be a Base Rate Advance and shall be considered, for all
purposes of this Agreement, to comprise part of the Borrowing in connection
with which such Defaulted Advance was originally required to have been made
pursuant to Section 2.01, even if the other Advances comprising such
Borrowing shall be Eurodollar Rate Advances on the date such Advance is
deemed to be made pursuant to this subsection (a). The Borrower shall
notify the Administrative Agent at any time the Borrower exercises its
right of set-off pursuant to this subsection (a) and shall set forth in
such notice (A) the name of the Defaulting Lender and the Defaulted Advance
required to be made by such Defaulting Lender and (B) the amount set off
and otherwise applied in respect of such Defaulted Advance pursuant to this
subsection (a). Any portion of such payment otherwise required to be made
by the Borrower to or for the account of such Defaulting Lender which is
paid by the Borrower, after giving effect to the amount set off and
otherwise applied by the Borrower pursuant to this subsection (a), shall be
applied by the Administrative Agent as specified in subsection (b) or (c)
of this Section 2.16.
(b) In the event that, at any one time, (i) any Lender Party shall be
a Defaulting Lender, (ii) such Defaulting Lender shall owe a Defaulted
Amount to the Administrative Agent or any of the other Lender Parties and
(iii) the Borrower shall make any payment hereunder or under any other Loan
Document to the Administrative Agent for the account of such Defaulting
Lender, then the Administrative Agent may, on its behalf or on behalf of
such other Lender Parties and to the fullest extent permitted by applicable
law, apply at such time the amount so paid by the Borrower to or for the
account of such Defaulting Lender to the payment of each such Defaulted
Amount to the extent required to pay such Defaulted Amount. In the event
that the Administrative Agent shall so apply any such amount to the payment
of any such Defaulted Amount on any date, the amount so applied by the
Administrative Agent shall constitute for all purposes of this Agreement
and the other Loan Documents payment, to such extent, of such Defaulted
Amount on such date. Any such amount so applied by the Administrative Agent
shall be retained by the Administrative Agent or distributed by the
Administrative Agent to such other Lender Parties, ratably in accordance
with the respective portions of such Defaulted Amounts payable at such time
to the Administrative Agent and such other Lender Parties and, if the
amount of such payment made by the Borrower shall at such time be
insufficient to pay all
54
Defaulted Amounts owing at such time to the Administrative Agent and the
other Lender Parties, in the following order of priority:
(A) first, to the Administrative Agent for any Defaulted
Amount then owing to the Administrative Agent;
(B) second, to the Issuing Bank and the Swing Line Bank for
any Defaulted Amount then owing to them, in their capacities as
such, ratably in accordance with such respective Defaulted
Amounts then owing to such Issuing Bank and such Swing Line Bank;
and
(C) third, to any other Lender Parties for any Defaulted
Amounts then owing to such other Lender Parties, ratably in
accordance with such respective Defaulted Amounts then owing to
such other Lender Parties.
Any portion of such amount paid by the Borrower for the account of such
Defaulting Lender remaining, after giving effect to the amount applied by
the Administrative Agent pursuant to this subsection (b), shall be applied
by the Administrative Agent as specified in subsection (c) of this Section
2.16.
(c) In the event that, at any one time, (i) any Lender Party shall be
a Defaulting Lender, (ii) such Defaulting Lender shall not owe a Defaulted
Advance or a Defaulted Amount and (iii) the Borrower, the Administrative
Agent or any other Lender Party shall be required to pay or distribute any
amount hereunder or under any other Loan Document to or for the account of
such Defaulting Lender, then the Borrower or such other Lender Party shall
pay such amount to the Administrative Agent to be held by the
Administrative Agent, to the fullest extent permitted by applicable law, in
escrow or the Administrative Agent shall, to the fullest extent permitted
by applicable law, hold in escrow such amount otherwise held by it. Any
funds held by the Administrative Agent in escrow under this subsection (c)
shall be deposited by the Administrative Agent in an account with CSFB, in
the name and under the control of the Administrative Agent, but subject to
the provisions of this subsection (c). The terms applicable to such
account, including the rate of interest payable with respect to the credit
balance of such account from time to time, shall be CSFB's standard terms
applicable to escrow accounts maintained with it. Any interest credited to
such account from time to time shall be held by the Administrative Agent in
escrow under, and applied by the Administrative Agent from time to time in
accordance with the provisions of, this subsection (c). The Administrative
Agent shall, to the fullest extent permitted by applicable law, apply all
funds so held in escrow from time to time to the extent necessary to make
any Advances required to be made by such Defaulting Lender and to pay any
amount payable by such Defaulting Lender hereunder and under the other Loan
Documents to the Administrative Agent or any other Lender Party, as and
when such Advances or amounts are required to be made or paid and, if the
amount so held in escrow shall at any time be insufficient to make and pay
all such Advances and amounts required to be made or paid at such time, in
the following order of priority:
(A) first, to the Administrative Agent for any amount then
due and payable by such Defaulting Lender to the Administrative
Agent hereunder;
(B) second, to the Issuing Bank and the Swing Line Bank for
any amounts then due and payable to them hereunder, in their
capacities as such, by such Defaulting Lender, ratably in
accordance with such amounts then due and payable to such Issuing
Bank and such Swing Line Bank;
55
(C) third, to any other Lender Parties for any amount then
due and payable by such Defaulting Lender to such other Lender
Parties hereunder, ratably in accordance with such respective
amounts then due and payable to such other Lender Parties; and
(D) fourth, to the Borrower for any Advance then required to
be made by such Defaulting Lender pursuant to a Commitment of
such Defaulting Lender.
In the event that any Lender Party that is a Defaulting Lender shall, at
any time, cease to be a Defaulting Lender, any funds held by the
Administrative Agent in escrow at such time with respect to such Lender
Party shall be distributed by the Administrative Agent to such Lender Party
and applied by such Lender Party to the Obligations owing to such Lender
Party at such time under this Agreement and the other Loan Documents
ratably in accordance with the respective amounts of such Obligations
outstanding at such time.
(d) The rights and remedies against a Defaulting Lender under this
Section 2.16 are in addition to other rights and remedies that the Borrower
may have against such Defaulting Lender with respect to any Defaulted
Advance and that the Administrative Agent or any Lender Party may have
against such Defaulting Lender with respect to any Defaulted Amount.
ARTICLE III
CONDITIONS OF LENDING AND
ISSUANCES OF LETTERS OF CREDIT
SECTION 3.01. Conditions Precedent to Initial Extension of Credit. The
---------------------------------------------------
obligation of each Lender to make an Advance or of the Issuing Bank to issue a
Letter of Credit on the occasion of the Initial Extension of Credit hereunder is
subject to the satisfaction of the following conditions precedent before or
concurrently with the Initial Extension of Credit:
(a) The Administrative Agent shall have received on or before the day
of the Initial Extension of Credit the following, each dated such day
(unless otherwise specified), in form and substance satisfactory to the
Administrative Agent (unless otherwise specified) and (except for the
Notes) in sufficient copies for each Lender Party:
(i) The Notes payable to the order of each respective Lender (if
requested by any such Lender).
(ii) A security agreement, in substantially the form of Exhibit D
hereto (together with each other security agreement and security
agreement supplement delivered pursuant to Section 5.01(j), in each
case as amended, the "Security Agreement"), duly executed by each Loan
Party, together with:
(A) where applicable, certificates representing the Pledged
Shares referred to therein accompanied by undated stock powers
executed in blank and instruments evidencing the Pledged Debt
referred to therein indorsed in blank,
(B) proper financing statements, in form for filing, under
the Uniform Commercial Code of the jurisdiction of incorporation
of each Loan
56
Party to the Security Agreement, covering the Collateral
described in the Security Agreement,
(C) all other documents for recording and filing, in proper
form, for or with respect to the Security Agreement that the
Administrative Agent may deem necessary or desirable in order to
perfect and protect the Liens created thereby,
(D) evidence of the insurance required by the terms of the
Security Agreement,
(E) evidence that all other action that the Administrative
Agent may deem necessary or desirable in order to perfect and
protect the first priority liens and security interests created
under the Security Agreement is ready to be taken concurrently
with the Initial Extension of Credit (including, without
limitation, receipt of UCC-3 termination statements with respect
to the Existing Credit Agreement).
(iii) A guarantee, in substantially the form of Exhibit E hereto
(together with each other guarantee and guarantee supplement delivered
pursuant to Section 5.01(j), in each case as amended, the "Subsidiary
Guarantee"), duly executed by each Guarantor.
(iv) An intellectual property security agreement, in
substantially the form annexed to the Security Agreement (together
with each other intellectual property security agreement and
intellectual property security agreement supplement delivered pursuant
to Section 5.01(j), in each case as amended, the "Intellectual
Property Security Agreement"), duly executed by each Loan Party,
together with evidence that all action that the Administrative Agent
may deem necessary or desirable in order to perfect and protect the
first priority liens and security interests created under the
Intellectual Property Security Agreement is ready to be taken
concurrently with the Initial Extension of Credit.
(v) Certified copies of the resolutions of the Board of Directors
of each Loan Party approving the Transaction and each Loan Document to
which it is or is to be a party, and of all documents evidencing other
necessary Governmental Authorizations and other necessary corporate
actions or third party approvals and consents, if any, with respect to
the Transaction and each Loan Document to which it is or is to be a
party.
(vi) A copy of a certificate of the Secretary of State of the
jurisdiction of incorporation of each Loan Party, dated reasonably
near the date of the Initial Extension of Credit, certifying (A) as to
a true and correct copy of the charter (or comparable Constitutive
Document) of such Loan Party and each amendment thereto on file in
such Secretary's office (B) that such amendments are the only
amendments to such Loan Party's (or comparable Constitutive Document)
on file in such Secretary's office, and (C) such Loan Party is duly
incorporated and in good standing or presently subsisting under the
laws of the State of the jurisdiction of its incorporation.
(vii) A certificate of each Loan Party, signed on behalf of such
Loan Party by its President or a Vice President and its Secretary or
any Assistant Secretary, dated the date of the Initial Extension of
Credit (the statements made in which certificate shall be true on and
as of the date of the Initial Extension of Credit), certifying as to
(A) the absence of any amendments to the charter (or comparable
Constitutive Document) of
57
such Loan Party since the date of the Secretary of State's certificate
referred to in Section 3.01(a)(vi), (B) a true and correct copy of the
bylaws (or comparable Constitutive Document) of such Loan Party as in
effect on the date on which the resolutions referred to in Section
3.01(a)(v) were adopted and on the date of the Initial Extension of
Credit, (C) the due incorporation and good standing or valid existence
of such Loan Party as a corporation organized under the laws of the
jurisdiction of its incorporation, and the absence of any proceeding
for the dissolution or liquidation of such Loan Party, and (D) the
truth of the representations and warranties contained in the Loan
Documents as though made on and as of the date of the Initial
Extension of Credit except for representations and warranties that by
their terms speak as of another specific date, which shall be true as
of such specific date.
(viii) A certificate of the Secretary or an Assistant Secretary
of each Loan Party certifying the names and true signatures of the
officers of such Loan Party authorized to sign each Loan Document to
which it is or is to be a party and the other documents to be
delivered hereunder and thereunder.
(ix) Such financial, business and other information regarding
each Loan Party and its Subsidiaries as the Lender Parties shall have
reasonably requested, including, without limitation, information as to
possible contingent liabilities, tax matters, environmental matters,
obligations under Plans, Multiemployer Plans and Welfare Plans,
collective bargaining agreements and other arrangements with
employees, audited annual financial statements dated December 31,
2001, interim financial statements dated the end of the most recent
fiscal quarter for which financial statements are available, pro forma
financial statements as to the Borrower and forecasts prepared by
management of the Company, of balance sheets, income statements and
cash flow statements on a quarterly basis for the first year following
the day of the Initial Extension of Credit and on an annual basis for
five years thereafter.
(x) Evidence of insurance naming the Administrative Agent as
additional insured and loss payee with such responsible and reputable
insurance companies or associations, and in such amounts and covering
such risks, as is satisfactory to the Lender Parties, including,
without limitation, business interruption insurance.
(xi) The Intercreditor Agreement duly executed by the Agent on
behalf of the Lenders, the Collateral Agent, as defined therein, and
any Lender or Affiliate thereof who is then a party to a Hedge
Agreement.
(xii) A Notice of Borrowing or Notice of Issuance, as applicable.
(xiii) A favorable opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, general counsel
for the Loan Parties, in substantially the form of Exhibit F hereto
and as to such other matters as any Lender Party through the
Administrative Agent may reasonably request.
(xiv) A favorable opinion of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel
to the Lender Parties, in substantially the form of Exhibit G hereto
and as to such other matters as any Lender Party through the
Administrative Agent may reasonably request.
(b) The Administrative Agent shall have received satisfactory evidence
that not less than 90% of the principal amount of the 2001 Subordinated
Notes has been tendered to, and purchased by, the Borrower pursuant to an
Offer to Purchase and Consent Solicitation dated
58
March 21, 2002 and that any covenants in the Indenture relating to such
notes prohibiting the Borrower entering into this Agreement or the
consummation of the transactions contemplated hereby have been eliminated,
waived or otherwise discharged pursuant to a duly executed Supplemental
Indenture or other instrument satisfactory to the Administrative Agent.
(c) All Governmental Authorizations and all third party consents and
approvals necessary in connection with the Transaction shall have been
obtained (without the imposition of any conditions that are not acceptable
to the Lender Parties) and shall remain in effect; and no Requirements of
Law shall be applicable in the judgment of the Lender Parties that
restrains, prevents or imposes materially adverse conditions upon the
Transaction.
(d) The Borrower shall have paid all accrued fees of the Agents and
the Lender Parties and all accrued expenses of the Agents.
(e) (i) All amounts owing by the Borrower or any of its Subsidiaries
to the lenders and agents under the Existing Credit Agreement shall have
been, or concurrently with the Initial Extension of Credit made on the
Closing Date shall be, paid in full, (ii) all commitments of the lenders
under the Existing Credit Agreement (except for the Existing Letters of
Credit) shall have been, or concurrently with the Initial Extension of
Credit made on the Closing Date shall be, terminated in accordance with the
terms of the Existing Credit Agreement, (iii) the lenders or any collateral
agent under the Existing Credit Agreement shall have executed such
instruments (including without limitation Uniform Commercial Code
termination statements) and agreed to take such other actions as are
reasonably necessary to terminate or release all security interests granted
in connection with the Existing Credit Agreement and (iv) adequate
arrangements shall have been made with the issuer of the Existing Letters
of Credit concerning the continuation thereof.
SECTION 3.02. Conditions Precedent to Each Borrowing and Issuance and
-------------------------------------------------------
Renewal.
--------
The obligation of each Appropriate Lender to make an Advance (other
than a Letter of Credit Advance made by the Issuing Bank or a Revolving Credit
Lender pursuant to Section 2.03(b) and a Swing Line Advance made by a Revolving
Credit Lender pursuant to Section 2.02(b)) on the occasion of each Borrowing
(including the initial Borrowing, but excluding any conversion of Advances
pursuant to Section 2.09 as provided therein), and the obligation of the Issuing
Bank to issue a Letter of Credit (including the initial issuance) or renew a
Letter of Credit and the right of the Borrower to request a Swing Line
Borrowing, shall be subject to the further conditions precedent that on the date
of such Borrowing or issuance or renewal (a) the following statements shall be
true and the Administrative Agent shall have received for the account of such
Lender or the Issuing Bank a certificate signed by a duly authorized officer of
the Borrower, dated the date of such Borrowing or issuance or renewal, stating
that (and each of the giving of the applicable Notice of Borrowing, Notice of
Swing Line Borrowing, Notice of Issuance or Notice of Renewal and the acceptance
by the Borrower of the proceeds of such Borrowing or of such Letter of Credit or
the renewal of such Letter of Credit shall constitute a representation and
warranty by the Borrower that both on the date of such notice and on the date of
such Borrowing or issuance or renewal such statements are true):
(i) the representations and warranties contained in each Loan Document
are correct on and as of such date, before and after giving effect to such
Borrowing or issuance or renewal and to the application of the proceeds
therefrom, as though made on and as of such date except (A) for any such
representations or warranties that, by their terms, refer to a specific
date other than the date of such Borrowing or issuance or renewal, in which
case as of such specific date and (B) if any Required Financial Information
has been delivered to the Administrative Agent and the Lender Parties on or
59
prior to the date of such Borrowing or issuance or renewal, that the
Consolidated financial statements of the Borrower and its Subsidiaries
referred to in Section 4.01(g)(i) shall be deemed at any time and from time
to time after the Closing Date to refer to the Consolidated financial
statements of the Borrower and its Subsidiaries comprising part of the
Required Financial Information most recently delivered to the
Administrative Agent and the Lender Parties pursuant to Sections 5.03(b)
and 5.03(c) (except that in the case of financial statements delivered
pursuant to Section 5.03(c), such financial statements may not contain all
notes and may be subject to year end audit adjustments), respectively, on
or prior to the date of such Borrowing, issuance or renewal; and
(ii) no Default has occurred and is continuing, or would result from
such Borrowing or issuance or renewal or from the application of the
proceeds therefrom;
and (b) the Administrative Agent shall have received such other approvals,
opinions or documents as any Appropriate Lender through the Administrative Agent
may reasonably request.
SECTION 3.03. Determinations Under Section 3.01. For purposes of determining
---------------------------------
compliance with the conditions specified in Section 3.01, each Lender Party
shall be deemed to have consented to, approved or accepted or to be satisfied
with each document or other matter required thereunder to be consented to or
approved by or acceptable or satisfactory to the Lender Parties unless an
officer of the Administrative Agent responsible for the transactions
contemplated by the Loan Documents shall have received notice from such Lender
Party prior to the Initial Extension of Credit specifying its objection thereto
and, if the Initial Extension of Credit consists of a Borrowing, such Lender
Party shall not have made available to the Administrative Agent such Lender
Party's ratable portion of such Borrowing.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower. The Borrower
----------------------------------------------
represents and warrants as follows:
(a) Each Loan Party and each of its Subsidiaries (i) is duly
organized, validly existing and in good standing (if such concept is
applicable) under the laws of the jurisdiction of its organization, (ii) is
duly qualified and in good standing as a foreign business enterprise (if
such concept is applicable) in each other jurisdiction in which it owns or
leases property or in which the conduct of its business requires it to so
qualify or be licensed except where the failure to be so qualified or
licensed would not result in a Material Adverse Effect and (iii) has all
requisite power and authority (including, without limitation, all material
Governmental Authorizations) to own or lease and operate its properties and
to carry on its business as now conducted and as proposed to be conducted.
60
(b) Set forth on Schedule 4.01(b) hereto is a complete and accurate
list of all Subsidiaries of the Borrower, showing as of the date hereof (as
to each such Subsidiary) the jurisdiction of its organization, the number
of shares or other units of each class of its Equity Interests authorized,
and the number outstanding, on the date hereof and the percentage of each
such class of its Equity Interests owned (directly or indirectly) by the
Borrower or any Subsidiary thereof and the number of shares or other units
covered by all outstanding options, warrants, rights of conversion or
purchase and similar rights at the date hereof, except for any obligations
or rights of the Borrower or any of its Subsidiaries to acquire any
minority interest in any Subsidiary of the Borrower that is a partnership
or a limited liability company. All of the
outstanding Equity Interests in each such Subsidiary have (A) (in the case
of Subsidiaries that are corporations) been validly issued, are fully paid
and non-assessable and are (B) to the extent owned by the Borrower or one
or more of its Subsidiaries, free and clear of all Liens, except those
created under the Collateral Documents or Permitted Liens.
(c) The execution, delivery and performance by each Loan Party of each
Loan Document to which it is or is to be a party, and the consummation of
the Transaction, are within such Loan Party's corporate, partnership or
limited liability company powers, as applicable, have been duly authorized
by all necessary corporate, partnership or limited liability company
action, as applicable, and do not (i) contravene such Loan Party's
Constitutive Documents, (ii) violate any Requirements of Law, (iii)
conflict with or result in the breach of, or constitute a default or
require any payment to be made under, any material contract, loan
agreement, indenture, mortgage, deed of trust, lease or other instrument
binding on or affecting any Loan Party or any of its properties or (iv)
except for the Liens created under the Loan Documents, result in or require
the creation or imposition of any Lien upon or with respect to any of the
properties of any Loan Party. No Loan Party is in violation of any such
Requirements of Law or in breach of any such contract, loan agreement,
indenture, mortgage, deed of trust, lease or other instrument, the
violation or breach of which would be reasonably likely to have a Material
Adverse Effect.
(d) No Governmental Authorization, and no other authorization or
approval or other action by, and no notice to or filing with, any
Governmental Authority or any other third party is required for (i) the due
execution, delivery, recordation, filing or performance by any Loan Party
of any Loan Document to which it is or is to be a party, or for the
consummation of the Transaction, (ii) the grant by any Loan Party of the
Liens granted by it pursuant to the Collateral Documents, (iii) the
perfection or maintenance of the Liens created under the Collateral
Documents on such of the Collateral located in the United States in which a
Lien may be perfected by the filing of financing statements, the
recordation of security agreements with the U.S. Patent and Trademark
Office or the U.S. Copyright Office or the delivery of Collateral
(including the first priority nature thereof) or (iv) the exercise by any
Agent or any Lender Party of its rights under the Loan Documents or the
remedies in respect of the Collateral pursuant to the Collateral Documents,
except for (A) the authorizations, approvals, filings and actions on
Schedule 4.01(d) hereto, all of which have been duly obtained and are in
full force and effect or will be obtained and in full force and effect
prior to the Initial Extension of Credit, (B) filings, notices, recordings
and other similar actions necessary for the creation or perfection of the
Liens and security interests contemplated by the Loan Documents and (C) the
actions required by laws generally with respect to the exercise by secured
creditors of their rights and remedies. All applicable waiting periods in
connection with the Transaction have expired without any action having been
taken by any competent authority restraining, preventing or imposing
materially adverse conditions upon the Transaction or the rights of the
Loan Parties or their Subsidiaries freely to transfer or otherwise dispose
of, or to create any Lien on, any properties now owned or hereafter
acquired by any of them.
(e) This Agreement has been, and each other Loan Document when
delivered hereunder will have been, duly executed and delivered by each
Loan Party thereto. This Agreement is, and each other Loan Document when
delivered hereunder will be, the legal, valid and binding obligation of
each Loan Party thereto, enforceable against such Loan Party in accordance
with its terms.
(f) There is no action, suit, investigation, litigation or proceeding
affecting any Loan Party or any of its Subsidiaries, including any
Environmental Action, pending or, to the knowledge of the Borrower,
threatened before any Governmental Authority or arbitrator that (i)
61
could be reasonably likely to have a Material Adverse Effect or (ii)
purports to affect the legality, validity or enforceability of any Loan
Document or the consummation of the Transaction, except as described on
Schedule 4.01(f) hereto or disclosed prior to the Closing Date in the
Borrower's filings made with the Securities and Exchange Commission.
(g) (i) The Consolidated balance sheet of the Borrower and its
Subsidiaries as at December 31, 2001, and the related Consolidated
statement of income and Consolidated statement of cash flows of the
Borrower and its Subsidiaries for the fiscal year then ended, accompanied
by an unqualified opinion of KPMG LLP, independent public accountants,
copies of which have been furnished to each Lender Party, fairly present
the Consolidated financial condition of the Borrower and its Subsidiaries
as at such date and the Consolidated results of operations of the Borrower
and its Subsidiaries for the period ended on such date, all in accordance
with generally accepted accounting principles applied on a consistent
basis, and (ii)since December 31, 2001, there has been no Material Adverse
Change.
(h) The Consolidated forecasted balance sheet, statement of income and
statement of cash flows of the Borrower and its Subsidiaries delivered to
the Lender Parties pursuant to Section 3.01(a)(ix) or Section 5.03 were
prepared in good faith on the basis of the assumptions stated therein,
which assumptions were believed to be reasonable in light of the conditions
existing at the time of delivery of such forecasts, and represented, at the
time of delivery, the Borrower's best estimate of its future financial
performance.
(i) Neither the Information Memorandum nor any other information,
exhibit or report furnished by any Loan Party to any Agent or any Lender
Party in connection with the negotiation and syndication of the Loan
Documents or pursuant to the terms of the Loan Documents contained any
untrue statement of a material fact or omitted to state a material fact
necessary to make the statements made therein not misleading.
(j) The Borrower is not engaged in the business of extending credit
for the purpose of purchasing or carrying Margin Stock, and no proceeds of
any Advance or drawings under any Letter of Credit will be used to purchase
or carry any Margin Stock or to extend credit to others for the purpose of
purchasing or carrying any Margin Stock, except for the purchase by the
Borrower of its common stock as contemplated in Sections 5.02(g)(v) and
(vi).
(k) Neither any Loan Party nor any of its Subsidiaries is an
"investment company", or an "affiliated person" of, or "promoter" or
"principal underwriter" for, an "investment company", as such terms are
defined in the Investment Company Act of 1940, as amended. Neither any Loan
Party nor any of its Subsidiaries is a "holding company", or a "subsidiary
company" of a "holding company", or an "affiliate" of a "holding company"
or of a "subsidiary company" of a "holding company", as such terms are
defined in the Public Utility Holding Company Act of 1935, as amended.
Neither the making of any Advances, nor the issuance of any Letters of
Credit, nor the application of the proceeds or repayment thereof by the
Borrower, nor the consummation of the other transactions contemplated by
the Loan Documents and Related Documents, will violate any provision of any
such Act or any rule, regulation or order of the Securities and Exchange
Commission thereunder.
(l) Upon making of the filings and taking of the other actions
necessary to create, perfect and protect the security interest in the
Collateral created under the Collateral Documents, the Collateral Documents
create in favor of the Administrative Agent for the benefit of the Secured
Parties a valid and, together with such filings and other actions,
perfected first priority security interest in the Collateral, securing the
payment of the Secured Obligations, subject to
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Permitted Liens. The Loan Parties are the legal and beneficial owners of
the Collateral free and clear of any Lien, except for the liens and
security interests created or permitted under the Loan Documents.
(m) Each Loan Party is, individually and together with its
Subsidiaries, Solvent.
(n) (i) No ERISA Event has occurred or is reasonably expected to
occur with respect to any Plan that has resulted in or is reasonably
expected to result in a material liability of any Loan Party or any
ERISA Affiliate.
(ii) Schedule B (Actuarial Information) to the most recent annual
report (Form 5500 Series) for each Plan, copies of which have been
filed with the Internal Revenue Service and furnished to the Lender
Parties, is complete and accurate and fairly presents the funding
status of such Plan, and since the date of such Schedule B there has
been no material adverse change in such funding status.
(iii) Neither any Loan Party nor any ERISA Affiliate has incurred
or is reasonably expected to incur any Withdrawal Liability exceeding
$100,000 to any Multiemployer Plan.
(iv) Neither any Loan Party nor any ERISA Affiliate has been
notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization or has been terminated, within
the meaning of Title IV of ERISA, and no such Multiemployer Plan is
reasonably expected to be in reorganization or to be terminated,
within the meaning of Title IV of ERISA.
(o) Except as described on Schedule 4.01(o) hereto:
(i) The operations and properties of each Loan Party comply in
all material respects with all applicable Environmental Laws and
Environmental Permits, except where any such failure to comply would
not be reasonably expected to have a Material Adverse Effect, all past
non-compliance with such Environmental Laws and Environmental Permits
has been resolved without ongoing obligations or costs, except where
any such failure to comply would not be reasonably expected to have a
Material Adverse Effect and, to Borrower's knowledge, no circumstances
exist that could be reasonably likely to (A) form the basis of an
Environmental Action against any Loan Party or any of their properties
that could have a Material Adverse Effect or (B) cause any such
property to be subject to any restrictions on ownership, occupancy,
use or transferability under any Environmental Law.
(ii) None of the properties currently or, to Borrower's
knowledge, formerly owned or operated by any Loan Party is listed or
proposed for listing on the NPL or on the CERCLIS or any analogous
foreign, state or local list or, to Borrower's knowledge, is adjacent
to any such property; and except to the extent that any of the
following would not have a Material Adverse Effect, (A) there are no
and, to Borrower's knowledge, never have been any underground or
aboveground storage tanks or any surface impoundments, septic tanks,
pits, sumps or lagoons in which Hazardous Materials are being or have
been treated, stored or disposed on any property currently owned or
operated by any Loan Party or, to its knowledge, on any property
formerly owned or operated by any Loan Party, (B) there is no asbestos
or asbestos-containing material on any property currently owned or
operated by any Loan Party, and (C) Hazardous
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Materials have not been released, discharged or disposed of on any
property currently or, to Borrower's knowledge, formerly owned or
operated by any Loan Party except in compliance with Environmental
Laws.
(iii) No Loan Party is undertaking, and has not completed, either
individually or together with other potentially responsible parties,
any investigation or assessment or remedial or response action
relating to any actual or threatened release, discharge or disposal of
Hazardous Materials at any site, location or operation, either
voluntarily or pursuant to the order of any Governmental Authority or
the requirements of any Environmental Law; and all Hazardous Materials
generated, used, treated, handled or stored at, or transported to or
from, any property currently or formerly owned or operated by any Loan
Party have been disposed of in a manner not reasonably expected to
result in liability to any Loan Party that, individually or in the
aggregate, would have a Material Adverse Effect.
(p) Each Loan Party and each of its Affiliates has filed, has caused
to be filed or has been included in all tax returns (Federal, state, local
and foreign) required to be filed and has paid all taxes shown thereon to
be due, together with applicable interest and penalties. Set forth on
Schedule 4.01(p) hereto is a complete and accurate list, as of the date
hereof, of each Open Year of each Loan Party and each of its Affiliates.
The aggregate unpaid amount, as of the date hereof, of adjustments to the
Federal income tax liability of each Loan Party and each of its Affiliates
proposed by the Internal Revenue Service with respect to Open Years does
not exceed $62,500,000. No issues have been raised by the Internal Revenue
Service in respect of Open Years that, in the aggregate, could be
reasonably likely to have a Material Adverse Effect.
(q) Set forth on Schedule 4.01(q) hereto is a complete and accurate
list of all Liens (other than Permitted Liens) on the property or assets of
any Loan Party, showing as of the date hereof the lienholder thereof, the
principal amount of the obligations secured thereby and the property or
assets of such Loan Party subject thereto.
(r) Set forth on Schedule 4.01(r) hereto is a complete and accurate
list of all Investments held by any Loan Party on the date hereof, showing
the amount, obligor or issuer and maturity, if any, thereof.
(s) Except as set forth on Schedule 4.01(s), the dialysis facilities
operated by each of the Borrower and its Subsidiaries (the "Dialysis
Facilities") are qualified for participation in the Medicare programs and
the Medicaid programs in which they participate (together with their
respective intermediaries or carriers, the "Government Reimbursement
Programs") and are entitled to reimbursement under the Medicare program for
services rendered to qualified Medicare beneficiaries, and comply in all
material respects with the conditions of participation in all Government
Reimbursement Programs in which they participate or have participated.
Except as set forth on Schedule 4.01(s), there is no pending or, to
Borrower's knowledge, threatened proceeding or investigation by any of the
Government Reimbursement Programs with respect to (i) the Borrower's or any
of its Subsidiaries' qualification or right to participate in any
Government Reimbursement Program in which they participate or have
participated, (ii) the compliance or non-compliance by the Borrower or any
of its Subsidiaries with the terms or provisions of any Government
Reimbursement Program in which they participate or have participated, or
(iii) the right of the Borrower or any of its Subsidiaries to receive or
retain amounts received or due or to become due from any Government
Reimbursement Program in which they participate or have participated, which
proceeding or investigation, together with all other such proceedings and
investigations, could reasonably be expected to (x) have a Material
64
Adverse Effect or (y) result in Consolidated net operating revenues for any
(including any future) four fiscal quarter period of the Borrower
constituting less than 95% of Consolidated net operating revenues for the
immediately preceding four fiscal quarter period of the Borrower.
(t) Neither the Borrower nor any of its Subsidiaries, nor any of their
respective officers or directors has, on behalf of the Borrower or any of
its Subsidiaries, knowingly or willfully violated the federal Medicare and
Medicaid statutes, 42 U.S.C. ss.1320a-7b, or the regulations promulgated
pursuant to such statutes or related state or local statutes or
regulations, including but not limited to the following: (i) knowingly and
willfully making or causing to be made a false statement or representation
of a material fact in any applications for any benefit or payment; (ii)
knowingly and willfully making or causing to be made any false statement or
representation of a material fact for use in determining rights to any
benefit or payment; (iii) failing to disclose knowledge by a claimant of
the occurrence of any event affecting the initial or continued right to any
benefit or payment on its own behalf or on behalf of another, with intent
to secure such benefit or payment fraudulently; (iv) knowingly and
willfully soliciting or receiving any remuneration (including any kickback,
bribe or rebate), directly or indirectly, overtly or covertly, in cash or
in kind or offering to pay such remuneration (a) in return for referring an
individual to a Person for the furnishing or arranging for the furnishing
of any item or service for which payment may be made in whole or in part by
Medicare, Medicaid or other applicable government payers, or (b) in return
for purchasing, leasing or ordering or arranging for or recommending the
purchasing, leasing or ordering of any good, facility, service or item for
which payment may be made in whole or in part by Medicare, Medicaid or
other applicable government payers. With respect to this Section, knowledge
of an individual director or officer of the Borrower or a Subsidiary of any
of the events described in this Section shall not be imputed to the
Borrower or such Subsidiary unless such knowledge was obtained or learned
by the director or officer in his or her official capacity as a director or
officer of the Borrower or such Subsidiary.
(u) The subordination provisions of (i) the Subordinated Notes
Documents, (ii) the Subordinated Notes, (iii) any Subordinated Debt now
existing or hereafter incurred or assumed by any Loan Party and (iv) any
guarantee by any Loan Party of any Subordinated Debt will be enforceable
against the holders thereof, and the Advances and all other monetary
obligations hereunder and all monetary obligations under the Subsidiary
Guarantee will constitute "Senior Indebtedness" and "Designated Senior
Indebtedness" (or any comparable terms) as defined in such provisions.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Advance or any
---------------------
other Obligation of any Loan Party under any Loan Document shall remain
unpaid, any Letter of Credit shall be outstanding or any Lender Party shall
have any Commitment hereunder, the Borrower will:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, in all material respects, with all applicable
Requirements of Law, such compliance to include, without limitation,
compliance with ERISA and the Racketeer Influenced and Corrupt
Organizations Chapter of the Organized Crime Control Act of 1970,
except to the extent that non-compliance could not be reasonably
expected to result in a Material Adverse Effect.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of
its Subsidiaries to pay and discharge, before the same shall become
delinquent, (i) all taxes, assessments and
65
governmental charges or levies imposed upon it or upon its property
and (ii) all lawful claims that, if unpaid, might by law become a Lien
upon its property; provided, however, that neither the Borrower nor
any of its Subsidiaries shall be required to pay or discharge any such
tax, assessment, charge or claim (A) the non-payment or non-discharge
of which could not be reasonably expected to result in a Material
Adverse Effect or (B) that is being contested in good faith and by
proper proceedings and as to which appropriate reserves are being
maintained, unless and until any Lien resulting therefrom attaches to
its property and becomes enforceable against its other creditors and
subjects the property to a substantial risk of forfeiture.
(c) Compliance with Environmental Laws. Comply, and cause each of
its Subsidiaries and all lessees and other Persons operating or
occupying its properties to comply, in all material respects, with all
applicable Environmental Laws and Environmental Permits; obtain and
renew and cause each of its Subsidiaries to obtain and renew all
Environmental Permits necessary for its operations and properties; and
conduct, and cause each of its Subsidiaries to conduct, any
investigation, study, sampling and testing, and undertake any cleanup,
removal, remedial or other action necessary to remove and clean up all
Hazardous Materials from any of its properties, in accordance with the
requirements of all Environmental Laws; provided, however, that
neither the Borrower nor any of its Subsidiaries shall be required to
undertake any such cleanup, removal, remedial or other action to the
extent that its obligation to do so is being contested in good faith
and by proper proceedings and appropriate reserves are being
maintained with respect to such circumstances.
(d) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations in such amounts and covering such
risks as is usually carried by companies engaged in similar businesses
and owning similar properties in the same general areas in which the
Borrower or such Subsidiary operates.
(e) Preservation of Corporate Existence, Etc. Preserve and
maintain, and cause each of its Subsidiaries to preserve and maintain,
its existence, legal structure, legal name, rights (charter and
statutory) and material franchises; provided, however, that neither
the Borrower nor any of its Subsidiaries shall be required to preserve
any right, privilege or franchise if the Board of Directors of the
Borrower or such Subsidiary shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the
Borrower or such Subsidiary, as the case may be, and that the loss
thereof is not disadvantageous in any material respect to the
Borrower, such Subsidiary or the Lender Parties and any Subsidiary may
merge with or into or be liquidated into another Subsidiary or the
Borrower as permitted under Section 5.02(d).
(f) Visitation Rights. At any reasonable time and from time to
time, and, unless a Default or an Event of Default shall have occurred
and be continuing, upon reasonable notice, permit any of the Agents or
any of the Lender Parties, or any agents or representatives thereof,
to examine and make copies of and abstracts from the records and books
of account of, and visit the properties of, the Borrower and any of
its Subsidiaries, and to discuss the affairs, finances and accounts of
the Borrower and any of its Subsidiaries with any of their officers or
directors and with their independent certified public accountants
(provided that representatives of the Borrower shall be entitled to
notice of and to participate in any such discussion).
(g) Keeping of Books. Keep, and cause each of its Subsidiaries to
keep, proper books of record and account, in which full and correct
entries shall be made of all financial transactions and the assets and
business of the Borrower and each such Subsidiary using sound
66
business practices sufficient to permit the preparation of financial
statements based thereon in accordance with generally accepted
accounting principles in effect from time to time.
(h) Maintenance of Properties, Etc. Maintain and preserve, and
cause each of its Subsidiaries to maintain and preserve, all of its
properties that are used or useful in the conduct of its business in
good working order and condition, ordinary wear and tear excepted.
(i) Transactions with Affiliates. Conduct, and cause each of its
Subsidiaries to conduct, all transactions otherwise permitted under
the Loan Documents with any of their Affiliates on terms that are fair
and reasonable and no less favorable to the Borrower or such
Subsidiary than it would obtain in a comparable arm's-length
transaction with a Person not an Affiliate.
(j) Covenant to Guarantee Obligations and Give Security. Upon (x)
the formation or acquisition of any new direct or indirect
Subsidiaries by any Loan Party or (y) the acquisition of any personal
property or real property fee interests (other than any real property
fee interest on which the only business conducted by the Borrower or
any of its Subsidiaries is the operation of a Dialysis Facility and
services related or incidental thereto) by any Loan Party, which, in
the judgment of the Administrative Agent, shall not already be subject
to a perfected first priority security interest in favor of the
Administrative Agent for the benefit of the Secured Parties, then the
Borrower shall, in each case at the Borrower's expense:
(i) in connection with the formation or acquisition of a
wholly-owned Domestic Subsidiary, not later than 15 Business Days
following the last day of the Fiscal Quarter in which such
formation or acquisition occurs, cause each such Domestic
Subsidiary, and cause each direct and indirect parent of such
Domestic Subsidiary (if it has not already done so), to duly
execute and deliver to the Administrative Agent a guarantee or
guarantee supplement, in form and substance satisfactory to the
Administrative Agent, guaranteeing the other Loan Parties'
obligations under the Loan Documents, and, in connection with the
formation or acquisition of a Foreign Subsidiary, not later than
15 Business Days following the last day of the Fiscal Quarter in
which such formation or acquisition occurs, pledge or, cause its
respective Subsidiary to pledge, to the Administrative Agent for
the benefit of the Secured Parties 65% of the Equity Interests in
such Foreign Subsidiary,
(ii) not later than 15 Business Days following the last day
of the Fiscal Quarter in which such formation or acquisition
occurs, furnish to the Administrative Agent a description of (A)
the material personal properties and such real property fee
interests of such wholly-owned Domestic Subsidiary and (B) such
property which was not previously subject to such perfected
security interest, in each case in detail satisfactory to the
Administrative Agent,
(iii) not later than 15 Business Days following the last day
of the Fiscal Quarter in which such formation or acquisition
occurs, duly execute and deliver, and cause each such
wholly-owned Domestic Subsidiary and each direct and indirect
parent of such wholly-owned Domestic Subsidiary (if it has not
already done so) to duly execute and deliver, to the
Administrative Agent pledges, assignments, mortgages, deeds of
trust, security agreements and security agreement supplements, as
specified by and in form and substance satisfactory to the
Administrative Agent, with respect to the Equity Interests in and
assets of such wholly-owned Domestic Subsidiary and such personal
property and such real property fee interests,
67
(iv) not later than 15 Business Days following the last day
of the Fiscal Quarter in which such formation or acquisition
occurs, take, and cause such wholly-owned Subsidiary or such
parent to take, whatever action (including, without limitation,
the filing of Uniform Commercial Code financing statements, the
filing of mortgages or deeds of trust, the giving of notices and
the endorsement of notices on title documents) may be necessary
or advisable in the opinion of the Administrative Agent to vest
in the Administrative Agent (or in any representative of the
Administrative Agent designated by it) valid and subsisting Liens
on the properties purported to be subject to the pledges,
assignments, mortgages, deeds of trust, security agreements and
security agreement supplements delivered pursuant to this Section
5.01(j), enforceable against all third parties in accordance with
their terms,
(v) not later than 45 days following the last day of the
Fiscal Quarter in which such formation or acquisition occurs,
deliver to the Administrative Agent, upon the request of the
Administrative Agent in its sole discretion, a signed copy of a
favorable opinion (subject to customary qualifications,
limitations and exceptions), addressed to the Administrative
Agent and the other Secured Parties, of counsel for the Loan
Parties acceptable to the Administrative Agent as to the matters
contained in clauses (i), (iii) and (iv) above, as to such
guarantees, guarantee supplements, pledges, assignments,
mortgages, deeds of trust, security agreements and security
agreement supplements being legal, valid and binding obligations
of the respective Loan Party thereto enforceable in accordance
with their terms, as to the matters contained in clause (iv)
above, as to such recordings, filings, notices, endorsements and
other actions being sufficient to create valid perfected Liens on
such properties, and as to such other matters as the
Administrative Agent may reasonably request, and
(vi) at any time and from time to time, promptly execute and
deliver any and all further instruments and documents and take
all such other action as the Administrative Agent may deem
necessary or desirable in obtaining the full benefits of, or in
perfecting and preserving the Liens of, such guaranties, pledges,
assignments, mortgages, deeds of trust, security agreements and
security agreement supplements.
(k) Further Assurances.
(i) Promptly upon request by any Agent, or any Lender Party
through the Administrative Agent, correct, and cause each of its
Subsidiaries promptly to correct, any material defect or error
that may be discovered in any Loan Document or in the execution,
acknowledgment, filing or recordation thereof; and
(ii) Promptly upon request by any Agent, or any Lender Party
through the Administrative Agent, do, execute, acknowledge,
deliver, record, re-record, file, re-file, register and
re-register any and all such further acts, pledge agreements,
assignments, financing statements and continuations thereof,
termination statements, notices of assignment, transfers,
certificates, assurances and other instruments as any Agent, or
any Lender Party through the Administrative Agent, may reasonably
require from time to time in order to (A) carry out more
effectively the purposes of the Loan Documents, (B) to the
fullest extent permitted by applicable law, subject any Loan
Party's properties, assets, rights or interests to the Liens now
or hereafter intended to be covered by any of the Collateral
Documents, (C) perfect and maintain the validity, effectiveness
and priority of any of the Collateral Documents and any of the
Liens intended to be created thereunder and (D) assure, convey,
grant, assign, transfer, preserve, protect and confirm
68
more effectively unto the Secured Parties the rights granted or
now or hereafter intended to be granted to the Secured Parties
under any Loan Document or under any other instrument executed in
connection with any Loan Document to which any Loan Party is or
is to be a party, and cause each of its Subsidiaries to do so.
SECTION 5.02. Negative Covenants. So long as any Advance or any other
------------------
Obligation of any Loan Party under any Loan Document shall remain unpaid, any
Letter of Credit shall be outstanding or any Lender Party shall have any
Commitment hereunder, the Borrower will not, at any time:
(a) Liens, Etc. Create, incur, assume or suffer to exist, or permit
any of its Subsidiaries to create, incur, assume or suffer to exist, any
Lien on or with respect to any of its properties of any character whether
now owned or hereafter acquired, or sign or file or suffer to exist, or
permit any of its Subsidiaries to sign or file or suffer to exist, under
the Uniform Commercial Code of any jurisdiction, a financing statement that
names the Borrower or any of its Subsidiaries as debtor, or sign or suffer
to exist, or permit any of its Subsidiaries to sign or suffer to exist, any
security agreement authorizing any secured party thereunder to file such
financing statement, or assign, or permit any of its Subsidiaries to
assign, any accounts or other right to receive income, except:
(i) Liens created under the Loan Documents;
(ii) Permitted Liens;
(iii) Liens existing on the Closing Date and described on
Schedule 4.01(q) hereto;
(iv) Liens upon or in real property or equipment acquired or held
by the Borrower or any of its Subsidiaries in the ordinary course of
business to secure the purchase price of such property or equipment or
to secure Debt incurred solely for the purpose of financing the
acquisition, construction or improvement of any such property or
equipment to be subject to such Liens, or Liens existing on any such
property or equipment at the time of acquisition (other than any such
Liens created in contemplation of such acquisition that do not secure
the purchase price), or extensions, renewals or replacements of any of
the foregoing for the same or a lesser amount; provided, however, that
(a) such Liens shall be created not more than 180 days after the date
of acquisition or completion of construction or improvement and (b) no
such Lien shall extend to or cover any property other than the
property or equipment being acquired, constructed or improved and any
attachments thereto and proceeds thereof, and no such extension,
renewal or replacement shall extend to or cover any property not
theretofore subject to the Lien being extended, renewed or replaced;
and provided further that the aggregate principal amount of the Debt
secured by Liens permitted by this clause (iv) shall not exceed the
amount permitted under Section 5.02(b)(v) at any time outstanding;
(v) Liens arising in connection with Capitalized Leases permitted
under Section 5.02(b)(vi); provided that no such Lien shall extend to
or cover any Collateral or assets other than the assets subject to
such Capitalized Leases; and
(vi) the replacement, extension or renewal of any Lien permitted
by clause (iii) above upon or in the same property theretofore subject
thereto or the replacement, extension or renewal (without increase in
the amount or change in any direct or contingent obligor) of the Debt
secured thereby.
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(b) Debt. Create, incur, assume or suffer to exist, or permit any of
its Subsidiaries to create, incur, assume or suffer to exist, any Debt,
except:
(i) Debt under the Loan Documents;
(ii) Debt existing on the Closing Date and described on Schedule
5.02(b) hereto;
(iii) Debt of the Borrower in respect of Hedge Agreements (A)
existing on the date of this Agreement and described in Schedule
5.02(b) hereto or (B) entered into from time to time after the date of
this Agreement with counter parties that are Lender Parties at the
time such Hedge Agreement is entered into (or Affiliates of such
Lender Party at such time); and which counter party is then a party to
the Intercreditor Agreement; provided that, in all cases under this
clause (iii), all such Hedge Agreements shall not be speculative in
nature (including, without limitation, with respect to the term and
purpose thereof);
(iv) Debt of (A) the Borrower owing to any other Loan Party, and
(B) any of the Subsidiaries owing to the Borrower or any other Loan
Party to the extent permitted under Section 5.02(f)(viii);
(v) Debt incurred after the date of this Agreement and secured by
Liens expressly permitted under Section 5.02(a)(iv) in an aggregate
principal amount not to exceed, when aggregated with the principal
amount of all Debt incurred under clause (vi) of this Section 5.02(b),
$50,000,000 any time outstanding;
(vi) Capitalized Leases incurred after the date of this Agreement
which, when aggregated with the principal amount of all Debt incurred
under clause (v) of this Section 5.02(b), do not exceed $50,000,000 at
any time outstanding;
(vii) Contingent Obligations of (A) the Borrower guaranteeing all
or any portion of the outstanding Obligations of any of the
Subsidiaries and (B) any Subsidiary of the Borrower guaranteeing any
Obligations of the Borrower or another Subsidiary thereof; provided
that each such primary Obligation is otherwise permitted under the
terms of the Loan Documents;
(viii) Unsecured Debt not otherwise permitted under this Section
5.02(b) in an aggregate amount not to exceed $50,000,000 at any time
outstanding;
(ix) Endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of business;
(x) Debt comprised of indemnities given by the Borrower or any of
its Subsidiaries, or guarantees or other similar undertakings by the
Borrower or any of its Subsidiaries entered into in lieu thereof, in
favor of the purchaser of property and assets of the Borrower and its
Subsidiaries being sold, leased, transferred or otherwise disposed of
in accordance with this Agreement and covering liabilities incurred by
the Borrower or its applicable Subsidiary in respect of such property
and assets prior to the date of consummation of the sale, lease,
transfer or other disposition thereof, which indemnities, guarantees
or undertakings are required under the terms of the documentation for
such sale, lease, transfer or other disposition;
70
(xi) Debt comprised of liabilities or other Obligations assumed
or retained by the Borrower or any of its Subsidiaries from
Subsidiaries of the Borrower that are, or all or substantially all of
the property and assets of which are, sold, leased, transferred or
otherwise disposed of pursuant to Section 5.02(e)(iii) or (vi);
provided that such liabilities or other Obligations were not created
or incurred in contemplation of the related sale, lease, transfer or
other disposition;
(xii) Unsecured Subordinated Debt or Redeemable Preferred
Interests not otherwise permitted under this Section 5.02(b), provided
that the aggregate amount of the outstanding principal amount of such
unsecured Subordinated Debt and the maximum amount of the purchase
price, redemption price or liquidation value (whichever is greater) of
such Redeemable Preferred Interests does not exceed $400,000,000 at
any time; provided further, that the Net Cash Proceeds thereof are
applied to prepay the Advances to the extent provided in Section
2.06(b); and
(xiii) Debt extending the maturity of, or refunding, refinancing
or replacing, in whole or in part, any Debt incurred under clause (ii)
of this Section 5.02(b); provided, however, that (A) the aggregate
principal amount of such extended, refunding, refinancing or
replacement Debt shall not be increased above the principal amount
thereof and the premium, if any, thereon outstanding immediately prior
to such extension, refunding, refinancing or replacement, (B) the
direct and contingent obligors therefor shall not be changed as a
result of or in connection with such extension, refunding, refinancing
or replacement, (C) such extended, refunding, refinancing or
replacement Debt shall not mature prior to the stated maturity date or
mandatory redemption date of the Debt being so extended, refunded,
refinanced or replaced, and (D) if the Debt being so extended,
refunded, refinanced or replaced is subordinated in right of payment
or otherwise to the Obligations of the Borrower or any of its
Subsidiaries under and in respect of the Loan Documents, such
extended, refunding, refinancing or replacement Debt shall be
subordinated to such Obligations to at least the same extent.
(xiv) Debt comprised of guarantees given by the Borrower or any
of its Subsidiaries in respect of any Special Purpose Licensed Entity
which obligations, when aggregated with the aggregate amount of all
Investments made under Section 5.02(f)(ix) hereof, shall not exceed
$20,000,000 at any time.
(c) Change in Nature of Business. Engage or permit any of its
Subsidiaries to engage in any business other than the businesses carried on
at the date hereof and any businesses incidental or related thereto.
(d) Mergers, Etc. Merge into or consolidate with any Person or permit
any Person to merge into it, or permit any of its Subsidiaries to do so,
except that:
(i) any of the Subsidiaries may merge into or consolidate with
the Borrower, provided that the Borrower is the surviving corporation;
(ii) any Subsidiary of the Borrower may merge into or consolidate
with any other Subsidiary of the Borrower, provided that, in the case
of any such merger or consolidation involving a wholly-owned
Subsidiary, the Person formed by or surviving such merger or
consolidation shall be a wholly-owned Subsidiary of the Borrower,
provided further that, in the case of any such merger or consolidation
to which a
71
Subsidiary Guarantor is a party, the Person formed by such merger or
consolidation shall be a Subsidiary Guarantor;
(iii) in connection with any purchase or other acquisition of
Equity Interests in, or property and assets of, any Person permitted
under Section 5.02(f)(v), the Borrower may permit any other Person to
merge into or consolidate with it (provided that the Borrower is the
surviving entity), and any of the Subsidiaries of the Borrower may
merge into or consolidate with any other Person or permit any other
Person to merge into or consolidate with it; provided that the Person
with which such Subsidiary is merging or consolidating (1) shall be
engaged in substantially the same lines of business as one or more of
the businesses of the Borrower and the Subsidiaries or in an
incidental or related business and (2) shall not have any contingent
liabilities that could reasonably be expected to be material and
adverse to the Borrower and its Subsidiaries, taken as a whole (as
determined in good faith by the board of directors (or persons
performing similar functions) of the Borrower or such Subsidiary if
the board of directors is otherwise approving such transaction, and in
each other case, by a Responsible Officer), and (3) in the case of any
wholly-owned Domestic Subsidiary, such Person shall take all actions
required under Section 5.01(j); and
(iv) in connection with any sale, transfer or other disposition
of all or substantially all of the Equity Interests in, or the
property and assets of, any Person permitted under Section
5.02(e)(vi), any of the Subsidiaries of the Borrower may merge into or
consolidate with any other Person or permit any other Person to merge
into or consolidate with it; and
provided, however, that in each case, immediately after giving effect thereto,
no event shall occur and be continuing that constitutes a Default.
(e) Sales, Etc., of Assets. Sell, lease, transfer or otherwise dispose
of, or permit any of its Subsidiaries to sell, lease, transfer or otherwise
dispose of, any assets, or grant any option or other right to purchase,
lease or otherwise acquire any assets, except:
(i) the Borrower and its Subsidiaries may sell inventory in the
ordinary course of business;
(ii) (A) the Borrower may sell, lease, transfer or otherwise
dispose of any of its property or assets to any of the Subsidiaries,
and (B) any of the Subsidiaries may sell, lease, transfer or otherwise
dispose of any of its property or assets to the Borrower or any of the
other Subsidiaries; provided that, in each case, no such sale, lease,
transfer or other disposition to non-wholly-owned Subsidiaries shall
be made unless, after giving pro forma effect thereto, the Borrower
and its Subsidiaries would be in compliance with Section 5.02(l) and
Section 5.04(d);
(iii) any Subsidiary of the Borrower that is no longer actively
engaged in any business or activities and does not have property and
assets with an aggregate book value in excess of $1,000,000 may be
wound up, liquidated or dissolved so long as such winding up,
liquidation or dissolution is determined in good faith by management
of the Borrower to be in the best interests of the Borrower and its
Subsidiaries;
72
(iv) the Borrower and its Subsidiaries may sell, lease, transfer
or otherwise dispose of any obsolete, damaged or worn out equipment
thereof or any other equipment that is otherwise no longer useful in
the conduct of their businesses;
(v) the Borrower and its Subsidiaries may lease or sublease real
property to the extent required for their respective businesses and
operations in the ordinary course so long as such lease or sublease is
not otherwise prohibited under the terms of the Loan Documents;
(vi) the Borrower and its Subsidiaries may sell, lease, transfer
or otherwise dispose of property and assets not otherwise permitted to
be sold, leased, transferred or disposed of pursuant to this Section
5.02(e) so long as the aggregate book value of all of the property and
assets of the Borrower and its Subsidiaries sold, leased, transferred
or otherwise disposed of pursuant to this clause (vi) does not exceed
$300,000,000 in the aggregate during the term of this Agreement;
provided that:
(A) the gross proceeds received from any such sale, lease,
transfer or other disposition shall be at least equal to the fair
market value of the property and assets so sold, leased,
transferred or otherwise disposed of, determined at the time of
such sale, lease, transfer or other disposition;
(B) at least 75% of the value of the aggregate consideration
received from any such sale, lease, transfer or other disposition
shall be in cash, provided, that up to one-third of such 75% may
consist of notes or other obligations received by the Borrower or
such Subsidiary that are due and payable or otherwise converted
by the Borrower or such Subsidiary into cash within 365 days of
receipt, which cash (to the extent received) shall constitute Net
Cash Proceeds attributable to the original transaction; and
provided further that any Debt of the Borrower or any of its
Subsidiaries (as shown on the Borrower's or such Subsidiary's
most recent balance sheet) that is assumed by the transferee of
any such assets shall constitute cash for purposes of this
Section 5.02(e)(vi), so long as the Borrower and all of its
Subsidiaries are fully and unconditionally released therefrom;
(C) immediately before and immediately after giving pro
forma effect to any such sale, lease, transfer or other
disposition, no Default shall have occurred and be continuing,
and
(D) within fifteen Business Days after each disposition
under this subsection, the Borrower shall deliver to the
Administrative Agent, on behalf of the Lender Parties, a
certificate identifying the property disposed of and stating (a)
that immediately before and after giving effect thereto, no
Default or Event or Default existed, (b) that the consideration
received or to be received by the Borrower or such Subsidiary for
such property has been determined by the Borrower or the
applicable Subsidiary to be not less than the fair market value
of such property and (c) the total consideration to be paid in
respect of such disposition and (d) the Net Cash Proceeds
resulting from such disposition; and
(E) if and to the extent that the Net Cash Proceeds of any
transaction effected pursuant to this Section 5.02(e)(vi) shall
not have been reinvested in assets or property of the Borrower or
any of its Subsidiaries with respect to any
73
transaction completed (1) on or prior to December 31, 2002, by
December 27, 2003 and (2) thereafter, within 360 days after the
date of receipt thereof, then such uninvested Net Cash Proceeds
shall be applied on the first Business Day following December 27,
2003 or the applicable 360-day period, as the case may be, to
prepay Advances in accordance with Section 2.06(b); and
(vii) the Borrower and its Subsidiaries may exchange assets and
properties with another Person; provided that:
(A) the assets or properties received by the Borrower or its
Subsidiaries shall be used in the business of the Borrower or
such Subsidiary as conducted immediately prior to such
transaction, or in an incidental or related business;
(B) the total consideration received by the Borrower or such
Subsidiary for such assets or property shall have been determined
by the Borrower or such Subsidiary to be not less than the fair
market value of the assets or property exchanged;
(C) immediately before and immediately after giving pro
forma effect to any such exchange, no Default shall have occurred
and be continuing;
(D) any cash received by the Borrower or any such Subsidiary
in connection with such exchange shall be treated as Net Cash
Proceeds subject to Section 2.06(b) and any cash paid by the
Borrower or any Subsidiary in connection with such exchange shall
be treated as an acquisition expenditure under Section
5.02(f)(v); and
(E) within fifteen Business Days after each exchange under
this Section 5.02(e)(vii), the Borrower shall deliver to the
Administrative Agent, on behalf of the Lender Parties, a
certificate identifying the assets or property disposed of and
acquired in such exchange, and stating (a) that immediately
before and after giving effect thereto, no Default or Event or
Default existed, (b) that the total consideration received by the
Borrower or such Subsidiary for such assets or property has been
determined by the Borrower or such Subsidiary to be not less than
the fair market value of the assets or property exchanged, and
(c) the amount, if any, of the cash paid or Net Cash Proceeds
received in connection with such exchange.
(f) Investments in Other Persons. Make or hold, or permit any of its
Subsidiaries to make or hold, any Investment in any Person, except:
(i) Investments by the Borrower and its Subsidiaries in Cash
Equivalents;
(ii) Investments existing on the Closing Date and described on
Schedule 4.01(r) hereto;
(iii) Investments by the Borrower in Hedge Agreements permitted
under Section 5.02(b) (iii);
74
(iv) Investments in accounts and notes payable in the ordinary
course of business, including notes received in transactions permitted
under Section 5.02(e)(vi);
(v) the purchase or other acquisition of (1) Equity Interests in
any Domestic Person that, upon the consummation thereof, will be more
than 50% owned by the Borrower or one or more of its wholly owned
Subsidiaries (including, without limitation, as a result of a merger
or consolidation) or (2) all or substantially all the property and
assets of a Person or consisting of a line of business or business
unit of a Person; provided that, with respect to each purchase or
other acquisition made pursuant to this clause (v):
(A) the lines of business of the Person to be (or the
property and assets of which are to be) so purchased or otherwise
acquired shall be substantially the same lines of business as one
or more of the businesses of the Borrower and its Subsidiaries or
a business that is incidental or related thereto;
(B) such purchase or other acquisition shall not include or
result in any contingent liabilities that could reasonably be
expected to be material and adverse to the business, financial
condition, operations or prospects of the Borrower and its
Subsidiaries, taken as a whole (as determined in good faith by
the board of directors (or the persons performing similar
functions) of the Borrower or such Subsidiary if the board of
directors is otherwise approving such transaction and, in each
other case, by a Responsible Officer);
(C) the total cash consideration (excluding all Equity
Interests issued or transferred to the sellers thereof but
including the aggregate amounts paid or to be paid under deferred
purchase price, noncompete, consulting and other similar
agreements with the sellers thereof and all assumptions of debt,
liabilities and other obligations in connection therewith) paid
by or on behalf of the Borrower and its Subsidiaries (1) for any
such purchase or other acquisition (or any series of related
purchases or acquisitions) shall not exceed $50,000,000 unless
such purchase or acquisition has been approved by the Required
Lenders, and (2) for all such purchases or acquisitions effected
during the term of this Agreement shall not exceed $200,000,000;
provided that such amount shall be increased to $400,000,000 at
all times after the Leverage Ratio is less than or equal to
2.75:1.00;
(D) (1) immediately before and immediately after giving pro
forma effect to any such purchase or other acquisition, no
Default shall have occurred and be continuing and (2) immediately
after giving effect to such purchase or other acquisition, the
Borrower and its Subsidiaries shall be in pro forma compliance
with all of the covenants set forth in Section 5.04, such
compliance to be determined on the basis of the Required
Financial Information most recently delivered to the
Administrative Agent and the Lender Parties as though such
purchase or other acquisition had been consummated as of the
first day of the fiscal period covered thereby; and
(E) the Borrower shall have delivered to the Administrative
Agent, on behalf of the Lender Parties, at least three Business
Days prior to the date on which any such purchase or other
acquisition in which the total cash consideration is more than
$30,000,000 is to be consummated, a certificate of a
75
Responsible Officer, in form and substance reasonably
satisfactory to the Administrative Agent, certifying that all of
the requirements set forth in this clause (v) have been satisfied
or will be satisfied on or prior to the consummation of such
purchase or other acquisition;
(vi) Investments by the Borrower or any Subsidiary in 50% or less
of the Equity Interests in another Person (the "Minority Investment"),
provided that (i) the Borrower or any Subsidiary owns at least 20% (on
a fully diluted basis) of the issued and outstanding Equity Interests
in such Person, (ii) the aggregate outstanding amount of Minority
Investments made by the Borrower and any Subsidiary shall not exceed
$60,000,000 at any one time, (iii) the Borrower or any Subsidiary
shall have full control over all bank accounts of such Person if the
Borrower or any Subsidiary is the largest holder of Equity Interests
in such Person, (iv) the Borrower or any Subsidiary shall control or
act as the managing general partner of such Person if such Person is a
partnership and if the Borrower or any Subsidiary is the largest
holder of Equity Interests in such Person, and (v) immediately before
and after giving effect thereto, no Default or Event of Default shall
exist;
(vii) notes from employees issued to the Borrower representing
payment for capital stock of the Borrower or representing payment of
the exercise price of options to purchase capital stock of the
Borrower, and employee relocation expenses incurred in the ordinary
course of business, in an aggregate amount at any time outstanding not
to exceed $10,000,000;
(viii) Investments of the Borrower or any of its Subsidiaries in
any Subsidiary of the Borrower; provided that no such Investments in
non-wholly-owned Subsidiaries shall be made unless, after giving pro
forma effect thereto, the Borrower and its Subsidiaries would be in
compliance with Section 5.02(l) and Section 5.04(d); and
(ix) Investments of the Borrower or any of its Subsidiaries in
any Special Purpose Licensed Entity which, when aggregated with the
aggregate amount of all obligations guaranteed under Section
5.02(b)(xiv) hereof, shall not exceed $20,000,000 at any time.
(g) Restricted Payments. Declare or pay any dividends, purchase,
redeem, retire, defease or otherwise acquire for value any of its Equity
Interests now or hereafter outstanding, return any capital to its
stockholders, partners or members (or the equivalent Persons thereof) as
such, make any distribution of assets, Equity Interests, obligations or
securities to its stockholders, partners or members (or the equivalent
Persons thereof) as such, or permit any of its Subsidiaries to do any of
the foregoing, or permit any of its Subsidiaries to purchase, redeem,
retire, defease or otherwise acquire for value any Equity Interests in the
Borrower, except that, so long as no Default shall have occurred and be
continuing at the time of any action described below or would result
therefrom:
(i) the Borrower may (A) declare and pay dividends and
distributions payable only in its common Equity Interests, (B) except
to the extent the Net Cash Proceeds thereof are required to be applied
to the prepayment of the Advances pursuant to Section 2.06(b),
purchase, redeem, retire, defease or otherwise acquire Equity
Interests with the proceeds received contemporaneously from the issue
of new Equity Interests with equal or inferior voting powers,
designations, preferences and rights, and (C) repurchase its Equity
Interests owned by management or employees and physicians under
76
contract with the Borrower or any of its Subsidiaries in an amount not
in excess of $10,000,000 in any twelve month period;
(ii) any Subsidiary of the Borrower may (A) declare and pay cash
dividends to the Borrower, and (B) declare and pay cash dividends to
any other Loan Party of which it is a Subsidiary;
(iii) any of the non-wholly owned Subsidiaries of the Borrower
may declare and pay or make dividends and other distributions to its
shareholders, partners or members (or the equivalent persons thereof)
generally so long as the Borrower and each of the Subsidiaries that
own any of the Equity Interests therein receive at least their
respective proportionate shares of any such dividend or distribution
(based upon their relative holdings of the Equity Interests therein
and taking into account the relative preferences, if any, of the
various classes of the Equity Interests therein);
(iv) purchase, redeem or otherwise acquire for value any of the
subordinated notes referred to in clause (i) or (ii) of the definition
of "Subordinated Notes", provided that (1) immediately prior to each
such transaction and after giving effect thereto the aggregate amount
of the Unused Revolving Credit Commitment is not less than
$75,000,000, and (2) at the time of each such transaction and
immediately after giving pro forma effect to each such transaction the
Senior Leverage Ratio is less than 2.50:1.00;
[DELETE]
77
(h) Accounting Changes. Make or permit, or permit any of its
Subsidiaries to make or permit, any change in (i) accounting policies or
reporting practices, except as allowed by generally accepted accounting
principles, or (ii) Fiscal Year.
(i) Prepayments, Etc., of Subordinated Debt. Except as permitted under
Section 5.02(g)(iv) or (vi) and except for the purchase of the 2001
Subordinated Notes, including those purchased pursuant to an Offer to
Purchase and Consent Solicitation dated March 21, 2002, (i) prepay, redeem,
purchase, defease or otherwise satisfy prior to the scheduled maturity
thereof in any manner, or make any payment in violation of any
subordination terms of, any Subordinated Debt, or give any notice in
respect thereof, or (ii) amend, modify or change in any manner any term or
condition of any of the Subordinated Notes Documents, or permit any of its
Subsidiaries to do any of the foregoing, except that if such Subordinated
Debt is convertible into common stock of the Borrower, the Borrower,
subject to the approval of the Administrative Agent (which approval shall
not unreasonably be withheld), may give notice with respect thereof if the
purpose of such notice is to force the holders of such Subordinated Debt to
convert such Subordinated Debt into common stock of the Borrower and
thereafter the Borrower may exercise any right it may have to so redeem all
or any part of such Subordinated Debt.
(j) Negative Pledge. Enter into or suffer to exist, or permit any of
its Subsidiaries to enter into or suffer to exist, any agreement
prohibiting or conditioning the creation or assumption of any Lien upon any
of its property or assets except (i) in favor of the Secured Parties or
(ii) in connection with (A) any Debt permitted by Section 5.02(b)(v) solely
to the extent that the agreement or instrument governing such Debt
prohibits a Lien on the property acquired with the proceeds of such Debt,
or (B) any Capitalized Lease permitted by Section 5.02(b)(vi) solely to the
extent that such Capitalized Lease prohibits a Lien on the property subject
thereto, or (C) any Debt outstanding on the date any Subsidiary of the
Borrower becomes such a Subsidiary (so long as such agreement was not
entered into solely in contemplation of such Subsidiary becoming a
Subsidiary of the Borrower), or (D) solely with respect to Subsidiaries
that are not Guarantors, restrictions contained in the Constitutive
Documents of such Subsidiaries.
(k) Payment Restrictions Affecting Subsidiaries. Directly or
indirectly, enter into or suffer to exist, or permit any of its
Subsidiaries to enter into or suffer to exist, any agreement or arrangement
limiting the ability of any of its Subsidiaries to declare or pay dividends
or other distributions in respect of its Equity Interests or repay or
prepay any Debt owed to, make loans or advances to, or otherwise transfer
assets to or invest in, the Borrower or any Subsidiary of the Borrower
(whether through a covenant restricting dividends, loans, asset transfers
or investments, a financial covenant or otherwise), except (i) the Loan
Documents, (ii) any agreement in effect at the time such Subsidiary becomes
a Subsidiary of the Borrower, so long as such agreement was not entered
into solely in contemplation of such Person becoming a Subsidiary of the
Borrower, (iii) restrictions on transfer contained in Debt incurred
pursuant to Sections 5.02(b)(v) and (vi); provided, that such restrictions
relate only to the transfer of the property financed with such Debt; (iv)
in connection with and pursuant to refinancing Debt under Section
5.02(b)(xiii), replacements of restrictions that are not more restrictive
than those being replaced and do not apply to any other
78
Person or assets than those that would have been covered by the
restrictions in the Debt so refinanced; and (v) solely with respect to
Subsidiaries that are not Guarantors, restrictions under the Constitutive
Documents governing such Subsidiary: (A) with respect to existing
Subsidiaries, existing on the date of this Agreement; and (B) with respect
to Subsidiaries created or acquired after the date of this Agreement: (1)
prohibiting such Subsidiary from guaranteeing Debt of the Borrower or
another Subsidiary; (2) on dividend payments and other distributions solely
to permit pro rata dividends and other distributions in respect of any
Equity Interests of such Subsidiary; (3) limiting transactions with the
Borrower or another Subsidiary to those with terms that are fair and
reasonable to such Subsidiary and no less favorable to such Subsidiary than
could have been obtained in an arm's length transaction with an unrelated
third party; and (vi) encumbrances or restrictions (A) that restrict in a
customary manner the subletting, assignment or transfer of any property or
asset that is subject to a lease, license or similar contract entered into
in the ordinary course of business, or the assignment or transfer of any
lease, license or contract entered into in the ordinary course of business
and (B) arising by virtue of any transfer of, agreement to transfer, option
or right with respect to, or Lien on, any property or assets of the
Borrower or any Subsidiary.
(l) Non-Wholly-Owned Subsidiaries. Permit at any time (x) the
aggregate total assets (calculated without duplication) at such time of all
Subsidiaries of the Borrower formed or acquired after April 30, 1998 that
are not Guarantors, plus (y) the aggregate total Investments made during
the period from April 30, 1998 to such time (calculated without duplication
and excluding Investments made pursuant to Section 5.02(f)(vi) to the
extent the proceeds thereof were used to acquire Equity Interests or assets
included in (x) above) by the Loan Parties in all Subsidiaries of the
Borrower that are not Guarantors, less (z) the aggregate total assets at
such time of all Subsidiaries of the Borrower existing on April 30, 1998
that became Guarantors after April 30, 1998, to exceed 10% of the
Consolidated total assets of the Borrower and its Subsidiaries.
(m) Issuance of Additional Stock. Permit any of its Subsidiaries to
issue any additional Equity Interests, except as follows:
(i) in connection with a permitted Investment or to employees or
consultants in the ordinary course of business;
(ii) the Borrower and any Subsidiary thereof may organize new
wholly-owned Subsidiaries and any Subsidiary may issue additional
Equity Interests to the Borrower or to a wholly-owned Subsidiary of
the Borrower;
(iii) subject to compliance with the provisions this Agreement,
including Section 5.02(1) and Section 5.04(d), the Borrower and its
Subsidiaries may (A) organize new non-wholly-owned Subsidiaries, and
(B) (i) cause Subsidiaries to issue additional Equity Interests or
(ii) sell outstanding Equity Interests therein, in each case to
Persons other than Affiliates of the Borrower or its Subsidiaries.
SECTION 5.03. Reporting Requirements. So long as any Advance or any other
----------------------
Obligation of any Loan Party under any Loan Document shall remain unpaid, any
Letter of Credit shall be outstanding or any Lender Party shall have any
Commitment hereunder, the Borrower will furnish to the Administrative Agent (for
distribution to the agents and Lender Parties):
(a) Default Notice. As soon as possible and in any event within five
days after the Borrower knows or reasonably should have known of the
occurrence of a Default or any event,
79
development or occurrence reasonably likely to have a Material Adverse
Effect continuing on the date of such statement, a statement of the chief
financial officer of the Borrower setting forth details of such Default or
other event, development or occurrence and the action that the Borrower has
taken and proposes to take with respect thereto.
(b) Annual Financials. As soon as available and in any event within 90
days after the end of each Fiscal Year, a copy of the annual audit report
for such year for the Borrower and its Subsidiaries, including therein
Consolidated and consolidating balance sheets of the Borrower and its
Subsidiaries as of the end of such Fiscal Year and a Consolidated and
consolidating statements of income and a Consolidated statement of cash
flows of the Borrower and its Subsidiaries for such Fiscal Year, in each
case accompanied by an unqualified opinion of KPMG LLP or other independent
public accountants of recognized national standing, together with (i) a
certificate of such accounting firm to the Lender Parties stating that in
the course of the regular audit of the business of the Borrower and its
Subsidiaries, which audit was conducted by such accounting firm in
accordance with generally accepted auditing standards, such accounting firm
has obtained no knowledge that a Default has occurred and is continuing, or
if, in the opinion of such accounting firm, a Default has occurred and is
continuing, a statement as to the nature thereof, (ii) a schedule in form
satisfactory to the Administrative Agent of the computations used by such
accountants in determining, as of the end of such Fiscal Year, compliance
with the covenants contained in Section 5.04, provided that in the event of
any change in generally accepted accounting principles used in the
preparation of such financial statements, the Borrower shall also provide,
if necessary for the determination of compliance with Section 5.04 from
GAAP, a statement of reconciliation conforming such financial statements to
GAAP and (iii) a certificate of the Chief Financial Officer of the Borrower
stating that to the best of such officer's knowledge, no Default has
occurred and is continuing or, if a Default has occurred and is continuing,
a statement as to the nature thereof and the action that the Borrower has
taken and proposes to take with respect thereto.
(c) Quarterly Financials. As soon as available and in any event within
45 days after the end of each of the first three quarters of each Fiscal
Year, Consolidated and consolidating balance sheets of the Borrower and its
Subsidiaries as of the end of such quarter and Consolidated and
consolidating statements of income for the period commencing at the end of
the previous fiscal quarter and ending with the end of such fiscal quarter
and Consolidated and consolidating statements of income and a Consolidated
statement of cash flows of the Borrower and its Subsidiaries for the period
commencing at the end of the previous Fiscal Year and ending with the end
of such quarter, setting forth in each case in comparative form the
corresponding figures for the corresponding date or period of the preceding
Fiscal Year, all in reasonable detail and duly certified (subject to normal
year-end audit adjustments) by the Chief Financial Officer of the Borrower
as having been prepared in accordance with generally accepted accounting
principles (except that such financial statements may not contain all
required notes and may be subject to year end audit adjustments), together
with (i) a certificate of said officer stating that to the best of such
officer's knowledge, no Default has occurred and is continuing or, if a
Default has occurred and is continuing, a statement as to the nature
thereof and the action that the Borrower has taken and proposes to take
with respect thereto, (ii) a schedule in form satisfactory to the
Administrative Agent of the computations used by the Borrower in
determining compliance with the covenants contained in Section 5.04,
provided that in the event of any change in generally accepted accounting
principles used in the preparation of such financial statements as compared
to GAAP, the Borrower shall also provide, if necessary for the
determination of compliance with Section 5.04, a statement of
reconciliation conforming such financial statements to GAAP, and (iii) a
report (in a form satisfactory to the Administrative Agent) specifying all
permitted
80
Investments made during such quarter and during the period from the date
hereof to the end of such quarter and specifying the total consideration
paid with respect to each such Investment.
(d) Annual Forecasts. As soon as available and in any event no later
than 30 days after the end of each Fiscal Year, forecasts prepared by
management of the Borrower, in form satisfactory to the Administrative
Agent, of Consolidated balance sheets, income statements and cash flow
statements of the Borrower and its Subsidiaries on a quarterly basis for
the Fiscal Year following such Fiscal Year and on an annual basis for each
Fiscal Year thereafter until the Termination Date.
(e) Litigation. (i) Promptly after the commencement thereof, notice of
all actions, suits, investigations, litigation and proceedings before any
Governmental Authority or arbitrator, affecting any Loan Party or any of
its Subsidiaries of the type described in Section 4.01(f), and promptly
after the occurrence thereof, notice of any material adverse change in the
status or the financial effect on any Loan Party or any of its Subsidiaries
of the litigation from that described on Schedule 4.01(f) hereto, and (ii)
prompt written notice of: (A) any citation, summons, subpoena, order to
show cause or other document naming the Borrower or any of its Subsidiaries
a party to any proceeding before any Governmental Authority that could
reasonably be expected to have a Material Adverse Effect or that expressly
calls into question the validity or enforceability of any of the Loan
Documents, and include with such notice a copy of such citation, summons,
subpoena, order to show cause or other document, (B) any lapse or other
termination of any material intellectual property, license, permit,
franchise or other authorization issued to the Borrower or any of its
Subsidiaries by any Person or Governmental Authority, or (C) any refusal by
any Person or Governmental Authority to renew or extend such material
intellectual property, license, permit, franchise or other authorization,
which lapse, termination, refusal or dispute could reasonably be expected
to have a Material Adverse Effect.
(f) Securities Reports. Promptly after the sending or filing thereof,
copies of all proxy statements, financial statements and reports that any
Loan Party or any of its Subsidiaries sends to its stockholders, and copies
of all regular, periodic and special reports, and all registration
statements, that any Loan Party or any of its Subsidiaries files with the
Securities and Exchange Commission or any governmental authority that may
be substituted therefor, or with any national securities exchange.
(g) ERISA.
(i) ERISA Events and ERISA Reports. (A) Promptly and in any event
within 10 days after any Loan Party or any ERISA Affiliate knows or
has reason to know that any ERISA Event has occurred, a statement of
the Chief Financial Officer of the Borrower describing such ERISA
Event and the action, if any, that such Loan Party or such ERISA
Affiliate has taken and proposes to take with respect thereto and (B)
on the date any records, documents or other information must be
furnished to the PBGC with respect to any Plan pursuant to Section
4010 of ERISA, a copy of such records, documents and information.
(ii) Plan Terminations. Promptly and in any event within two
Business Days after receipt thereof by any Loan Party or any ERISA
Affiliate, copies of each notice from the PBGC stating its intention
to terminate any Plan or to have a trustee appointed to administer any
Plan.
81
(iii) Plan Annual Reports. Promptly and in any event within 30
days after the filing thereof with the Internal Revenue Service,
copies of each Schedule B (Actuarial Information) to the annual report
(Form 5500 Series) with respect to each Plan.
(iv) Multiemployer Plan Notices. Promptly and in any event within
five Business Days after receipt thereof by any Loan Party or any
ERISA Affiliate from the sponsor of a Multiemployer Plan, copies of
each notice concerning (A) the imposition of Withdrawal Liability by
any such Multiemployer Plan, (B) the reorganization or termination,
within the meaning of Title IV of ERISA, of any such Multiemployer
Plan or (C) the amount of liability incurred, or that may be incurred,
by such Loan Party or any ERISA Affiliate in connection with any event
described in clause (A) or (B).
(h) Environmental Conditions. Promptly after the assertion or
occurrence thereof, notice of any Environmental Action against or of any
noncompliance by any Loan Party or any of its Subsidiaries with any
Environmental Law or Environmental Permit that could reasonably be expected
to have a Material Adverse Effect.
(i) Other Information. Such other information respecting the business,
condition (financial or otherwise), operations, performance, properties or
prospects of any Loan Party or any of its Subsidiaries as any Agent or any
Lender Party, through the Administrative Agent, may from time to time
reasonably request.
SECTION 5.04. Financial Covenants. So long as any Advance or any other
-------------------
Obligation of any Loan Party under any Loan Document shall remain unpaid, any
Letter of Credit shall be outstanding or any Lender Party shall have any
Commitment hereunder, the Borrower will:
(a) Leverage Ratio. Maintain a Leverage Ratio at all times during each
Measurement Period set forth below of not more than the amount set forth
below opposite such Measurement Period:
====================================================================
Measurement Period Ending In Ratio
====================================================================
June 30, 2002 4.50:1.00
====================================================================
September 30, 2002 4.50:1.00
====================================================================
December 31, 2002 4.50:1.00
====================================================================
March 31, 2003 4.50:1.00
====================================================================
June 30, 2003 4.50:1.00
====================================================================
September 30, 2003 4.25:1.00
====================================================================
December 31, 2003 4.25:1.00
====================================================================
March 31, 2004 4.00:1.00
====================================================================
June 30, 2004 4.00:1.00
====================================================================
September 30, 2004 3.75:1.00
====================================================================
December 31, 2004 3.75:1.00
====================================================================
March 31, 2005 3.50:1.00
====================================================================
82
====================================================================
June 30, 2005 3.50:1.00
====================================================================
September 30, 2005 3.25:1.00
====================================================================
December 31, 2005 3.25:1.00
====================================================================
March 31, 2006 and thereafter 3.00:1.00
====================================================================
provided, however, that upon receipt by the Administrative Agent of a
Notice of Covenant Reduction, the Leverage Ratio thereafter for purposes of
this covenant shall at all times be 3.00:1.00.
(b) Fixed Charge Coverage Ratio. Maintain a Fixed Charge Coverage
Ratio as of the last day of each Measurement Period set forth below of not
less than the amount set forth below opposite such Measurement Period:
====================================================================
Measurement Period Ending In Ratio
====================================================================
June 30, 2002 1.20:1.00
====================================================================
September 30, 2002 1.20:1.00
====================================================================
December 31, 2002 1.20:1.00
====================================================================
March 31, 2003 1.20:1.00
====================================================================
June 30, 2003 1.20:1.00
====================================================================
September 30, 2003 1.20:1.00
====================================================================
December 31, 2003 1.20:1.00
====================================================================
March 31, 2004 1.20:1.00
====================================================================
June 30, 2004 1.20:1.00
====================================================================
September 30, 2004 1.20:1.00
====================================================================
December 31, 2004 1.20:1.00
====================================================================
March 31, 2005 1.25:1.00
====================================================================
June 30, 2005 1.25:1.00
====================================================================
September 30, 2005 1.25:1.00
====================================================================
December 31, 2005 1.25:1.00
====================================================================
March 31, 2006 1.30:1.00
====================================================================
June 30, 2006 0.90:1.00
====================================================================
September 30, 2006 0.90:1.00
====================================================================
December 31, 2006 0.90:1.00
====================================================================
March 31, 2007 0.90:1.00
====================================================================
June 30, 2007 and thereafter 0.70:1.00
====================================================================
83
(c) Minimum Net Worth. Maintain at all times a Consolidated net worth
of the Borrower and its Subsidiaries of not less than (negative
$250,000,000), plus the sum of 75% of Consolidated Net Income of the
Borrower and its Subsidiaries (determined as of the end of each Fiscal
Quarter, but excluding net losses in any Fiscal Quarter) and 100% of the
Net Cash Proceeds received by the Borrower from its issuance of Equity
Interests, in each case determined on a cumulative basis for the period
commencing April 1, 2002, minus non-recurring charges incurred not
exceeding in the aggregate $45,000,000 resulting from the write-off of
accounts receivable and other related charges as a result of the pending
third party carrier review of claims for Medicare reimbursement submitted
by the Subsidiary of the Borrower operating the Borrower's Florida
laboratory or other Governmental Reimbursement Program Costs.
(d) Minimum Consolidated EBITDA Ratio. Maintain at all times a ratio
of Consolidated EBITDA to Consolidated Pre-Minority EBITDA of not less than
0.8:1.0.
(e) Senior Leverage Ratio. Maintain a Senior Leverage Ratio at all
times during each Measurement Period set forth below of not more than the
amount set forth below opposite such period.
====================================================================
Measurement Period Ending In Ratio
====================================================================
June 30, 2002 3.00:1.00
====================================================================
September 30, 2002 3.00:1.00
====================================================================
December 31, 2002 3.00:1.00
====================================================================
March 31, 2003 3.00:1.00
====================================================================
June 30, 2003 3.00:1.00
====================================================================
September 30, 2003 2.80:1.00
====================================================================
December 31, 2003 2.80:1.00
====================================================================
March 31, 2004 2.60:1.00
====================================================================
June 30, 2004 2.60:1.00
====================================================================
September 30, 2004 2.35:1.00
====================================================================
December 31, 2004 2.35:1.00
====================================================================
March 31, 2005 2.15:1.00
====================================================================
June 30, 2005 2.15:1.00
====================================================================
September 30, 2005 1.90:1.00
====================================================================
December 31, 2005 1.90:1.00
====================================================================
March 31, 2006 and thereafter 1.75:1.00
====================================================================
provided, however, that upon receipt by the Administrative Agent of a
Notice of Covenant Reduction, the Leverage Ratio thereafter for purposes of
this covenant shall at all times be 1.75:1.00.
84
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events ("Events of
-----------------
Default") shall occur and be continuing:
(a) the Borrower shall fail to pay (i) any principal of any Advance
when the same shall become due and payable, or (ii) within three Business
Days after the date due and payable, any interest on any Advance; or any of
the Loan Parties shall fail to make any other payment under or in respect
of any of the Loan Documents required to have been made by it, within three
Business Days after the same shall become due and payable, in each case
whether by scheduled maturity or at a date fixed for prepayment or by
acceleration, demand or otherwise; or
(b) any representation or warranty made by any of the Loan Parties (or
any of their respective officers) under or in connection with any of the
Loan Documents (including, without limitation, in any certificate, report,
statement or other writing at any time furnished (or deemed to have been
furnished) to the Administrative Agent or any of the Lender Parties by or
on behalf of any of the Loan Parties) shall prove to have been incorrect in
any material respect on the date as of which it was made or deemed made; or
(c) (i) the Borrower shall fail to perform or observe any term,
covenant or agreement contained in Section 5.01(e) or Section 5.02, 5.03 or
5.04 or (ii) any of the other Loan Parties shall fail to perform or observe
any term, covenant or agreement contained in Section 4 or 7 of the
Subsidiary Guarantee on its part to be performed or observed; or
(d) any of the Loan Parties shall fail to perform or observe any term,
covenant or agreement contained in any of the Loan Documents on its part to
be performed or observed that is not otherwise referred to in Section
6.01(c) if such failure shall remain unremedied for at least 30 consecutive
days after the earlier of the date on which (i) a Responsible Officer of
the Borrower or any of its Subsidiaries first becomes aware of such failure
and (ii) written notice thereof shall have been given to the Borrower by
the Administrative Agent or any of the Lender Parties; or
(e) (i) the Borrower or any of its Subsidiaries shall fail to pay any
principal of, premium or interest on, or any other amount payable in
respect of, one or more items of Debt of the Borrower and its Subsidiaries
(excluding Debt outstanding hereunder) that is outstanding (or under which
one or more Persons have a commitment to extend credit) in an aggregate
principal amount (or, in the case of any Hedge Agreement, having an
Agreement Value) of at least $10,000,000 at the time of such failure, when
the same becomes due and payable (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise), and such failure shall
continue after the applicable grace period, if any, specified in the
agreements or instruments relating to all such Debt; or (ii) any other
event shall occur or condition shall exist under the agreements or
instruments relating to one or more items of Debt of the Borrower and its
Subsidiaries (excluding Debt outstanding hereunder) that is outstanding (or
under which one or more Persons have a commitment to extend credit) in an
aggregate principal amount (or, in the case of any Hedge Agreement, having
an Agreement Value) of at least $10,000,000 at the time of such other event
or condition, and shall continue after the applicable grace period, if any,
specified in all such agreements or instruments, if the effect of such
event or condition is to accelerate, or to permit the acceleration of, the
maturity of such Debt or otherwise to cause, or to permit the holder
thereof to cause, such Debt to mature; or (iii) one or more items of Debt
of the Borrower and its Subsidiaries (excluding Debt outstanding hereunder)
that is outstanding (or
85
under which one or more Persons have a commitment to extend credit) in an
aggregate principal amount (or, in the case of any Hedge Agreement, having
an Agreement Value) of at least $10,000,000 shall be declared to be due and
payable or required to be prepaid or redeemed (other than by a regularly
scheduled or required prepayment or redemption), purchased or defeased, or
an offer to prepay, redeem, purchase or defease such Debt shall be required
to be made, in each case prior to the stated maturity thereof; or
(f) the Borrower or any Material Subsidiary or Subsidiaries shall
generally not pay its debts as such debts become due, or shall admit in
writing its inability to pay its debts generally, or shall make a general
assignment for the benefit of creditors; or any proceeding shall be
instituted by or against the Borrower or any Material Subsidiary or
Subsidiaries seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of debtors,
or seeking the entry of an order for relief or the appointment of a
receiver, trustee, administrator or other similar official for it or for
any substantial part of its property and assets and, in the case of any
such proceeding instituted against it (but not instituted by it) that is
being diligently contested by it in good faith, either such proceeding
shall remain undismissed or unstayed for a period of at least 60
consecutive days or any of the actions sought in such proceeding
(including, without limitation, the entry of an order for relief against,
or the appointment of a receiver, trustee, custodian or other similar
official for, it or any substantial part of its property and assets) shall
occur; or any event or action analogous to or having a substantially
similar effect to any of the events or actions set forth above in this
Section 6.01(f) (other than a solvent reorganization) shall occur under the
Requirements of Law of any jurisdiction applicable to the Borrower or any
Material Subsidiary or Subsidiaries; or the Borrower or any Material
Subsidiary or Subsidiaries shall take any corporate, partnership, limited
liability company or other similar action to authorize any of the actions
set forth above in this Section 6.01(f); or
(g) one or more judgments or orders for the payment of money in excess
of $10,000,000 in the aggregate shall be rendered against one or more of
the Borrower and its Subsidiaries and shall remain unsatisfied and there
shall be any period of at least 30 consecutive Business Days during which a
stay of enforcement of any such judgment or order, by reason of a pending
appeal or otherwise, shall not be in effect; provided, however, that any
such judgment or order shall not give rise to an Event of Default under
this Section 6.01(g) if and for so long as (A) the amount of such judgment
or order which remains unsatisfied is covered by a valid and binding policy
of insurance between the defendant and the insurer covering full payment
thereof and (B) such insurer has been notified, and has not disputed the
claim made for payment, of the amount of such judgment or order; or
(h) one or more nonmonetary judgments or orders (including, without
limitation, writs or warrants of attachment, garnishment, execution,
distraint or similar process) shall be rendered against the Borrower or any
of its Subsidiaries that, either individually or in the aggregate, is
reasonably expected to have a Material Adverse Effect and there shall be
any period of at least 30 consecutive Business Days during which a stay of
enforcement of any such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or
(i) any provision of any of the Loan Documents after delivery thereof
pursuant to Sections 3.01, 5.01(j) or 5.01(k) shall for any reason (other
than pursuant to the terms thereof) cease to be valid and binding on or
enforceable against any of the Loan Parties intended to be a party to it,
or any such Loan Party shall so state in writing;
86
(j) any Collateral Document or financing statement after delivery
thereof pursuant to Sections 3.01, 5.01(j) or 5.01(k) shall for any reason
(other than pursuant to the terms thereof) cease to create a valid and
perfected Lien on any material portion of the Collateral purported to be
covered thereby subject only to Liens permitted thereby; or
(k) any of the following events or conditions shall have occurred and
such event or condition, when aggregated with any and all other such events
or conditions set forth in this subsection (k), has resulted or is
reasonably expected to result in liabilities of the Loan Parties and/or the
ERISA Affiliates in an aggregate amount exceeding $10,000,000 at any time:
(i) any ERISA Event shall have occurred with respect to a Plan;
or
(ii) any of the Loan Parties or any of the ERISA Affiliates shall
have been notified by the sponsor of a Multiemployer Plan that it has
incurred Withdrawal Liability to such Multiemployer Plan; or
(iii) any of the Loan Parties or any of the ERISA Affiliates
shall have been notified by the sponsor of a Multiemployer Plan that
such Multiemployer Plan is in reorganization, is insolvent or is being
terminated, within the meaning of Title IV of ERISA, and, as a result
of such reorganization, insolvency or termination, the aggregate
annual contributions of the Loan Parties and the ERISA Affiliates to
all of the Multiemployer Plans that are in reorganization, are
insolvent or being terminated at such time have been or will be
increased over the amounts contributed to such Multiemployer Plans for
the plan years of such Multiemployer Plans immediately preceding the
plan year in which such reorganization, insolvency or termination
occurs; or
(iv) any "accumulated funding deficiency" (as defined in Section
302 of ERISA and Section 412 of the Internal Revenue Code), whether or
not waived, shall exist with respect to one or more of the Plans, or
any Lien shall exist on the property and assets of any of the Loan
Parties or any of the ERISA Affiliates in favor of the PBGC or any
Plan; or
(l) the Borrower or any of its Subsidiaries shall suspend or
discontinue all or any part of its businesses and operations other than in
the ordinary course of business and such suspension or discontinuance, in
the aggregate, is reasonably expected to have a Material Adverse Effect; or
(m) a Change of Control shall occur;
(n) an "Event of Default" (as defined in any of the Subordinated Notes
Documents) shall have occurred and be continuing under the respective
Subordinated Notes Documents; or
(o) The Borrower or any Subsidiary, in each case to the extent it is
engaged in the business of providing services for which Medicare or
Medicaid reimbursement is sought, shall for any reason, including, without
limitation, as the result of any finding, designation or decertification,
lose its right or authorization, or otherwise fail to be eligible, to
participate in Medicaid or Medicare programs or to accept assignments or
rights to reimbursements under Medicaid regulations or Medicare
regulations, or the Borrower or any Subsidiary has, for any reason, had its
right to receive reimbursements under Medicaid or Medicare regulations
suspended, and such loss, failure or suspension (together with all such
other losses, failures and suspensions continuing at such time) shall have
resulted in (x) a Material Adverse Effect or (y)
87
Consolidated net operating revenues for the immediately preceding four
fiscal quarter period of the Borrower constituting less than 95% of
Consolidated net operating revenues for any preceding four fiscal quarter
period of the Borrower;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Required Lenders, by notice to the Borrower,
declare the Commitments of each of the Lender Parties and the obligation of each
of the Lender Parties to make Advances (other than Letter of Credit Advances by
the Issuing Bank or any of the Revolving Credit Lenders pursuant to Section
2.03(c)(i) and Swing Line Advances by any of the Revolving Credit Lenders
pursuant to Section 2.02(b)(ii)) and of the Issuing Bank to issue Letters of
Credit to be terminated, whereupon the same shall forthwith terminate, and (ii)
shall at the request, or may with the consent, of the Required Lenders, (A) by
notice to the Borrower, declare the Notes, all interest thereon and all other
amounts payable under or in respect of this Agreement and the other Loan
Documents to be forthwith due and payable, whereupon the Notes, all such
interest and all such other amounts shall become and be forthwith due and
payable, without presentment, demand, protest or further notice of any kind, all
of which are hereby expressly waived by the Borrower and (B) by notice to each
party required under the terms of any agreement in support of which a Letter of
Credit is issued, request that all of the Obligations under such agreement be
declared to be due and payable; provided, however, that in the event of an
actual or deemed entry of an order for relief with respect to any Loan Party
under the United States Federal Bankruptcy Code or a similar order or action
under any other Requirements of Law covering the protection of creditors' rights
or the relief of debtors applicable to any Loan Party, (1) the Commitments of
each of the Lender Parties and the obligation of each of the Lender Parties to
make Advances (other than Letter of Credit Advances by the Issuing Bank or any
of the Revolving Credit Lenders pursuant to Section 2.03(c)(i) and Swing Line
Advances by any of the Revolving Credit Lenders pursuant to Section 2.02(b)(ii))
and of the Issuing Bank to issue Letters of Credit shall automatically be
terminated and (2) the Notes, all such interest and all such amounts shall
automatically become and be due and payable, without presentment, demand,
protest or any notice of any kind, all of which are hereby expressly waived by
the Borrower.
SECTION 6.02. Actions in Respect of the Letters of Credit upon Default. If
--------------------------------------------------------
any Event of Default shall have occurred and be continuing, the Administrative
Agent may, or shall at the request of the Required Lenders, irrespective of
whether it is taking any of the actions described in Section 6.01 or otherwise,
make demand upon the Borrower to, and forthwith upon such demand the Borrower
will, pay to the Administrative Agent in same day funds at the Administrative
Agent's office designated in such demand, for deposit in the L/C Cash Collateral
Account, an amount equal to the aggregate Available Amount of all Letters of
Credit then outstanding; provided, however, that in the event of an actual or
deemed entry of an order for relief with respect to any Loan Party under the
United States Federal Bankruptcy Code or a similar order or action under any
other Requirements of Law covering the protection of creditors' rights or the
relief of debtors applicable to any Loan Party, the Borrower, without
requirement of demand by the Administrative Agent or any other Person, will
forthwith pay to the Administrative Agent in same day funds at the
Administrative Agent's office for deposit in the L/C Cash Collateral Account an
amount equal to such aggregate Available Amount. If at any time the
Administrative Agent determines that any funds held in the L/C Cash Collateral
Account are subject to any right or claim of any Person other than the Secured
Parties or that the total amount of such funds is less than the aggregate
Available Amount of all Letters of Credit, the Borrower will, forthwith upon
demand by the Administrative Agent, pay to the Administrative Agent, as
additional funds to be deposited and held in the L/C Cash Collateral Account, an
amount equal to the excess of (a) such aggregate Available Amount over (b) the
total amount of funds, if any, then held in the L/C Cash Collateral Account that
the Administrative Agent determines to be free and clear of any such right and
claim. Upon the drawing of any Letter of Credit for which funds are on deposit
in the L/C Cash Collateral Account, such funds shall be applied to reimburse the
Issuing Bank or Revolving Credit Lenders, as applicable, in the manner provided
for in the Security Agreement and to the extent permitted by applicable law.
88
ARTICLE VII
THE AGENTS
SECTION 7.01. Appointment, Powers and Immunity.
--------------------------------
(a) Each Lender Party (in its capacities as a Lender, the Swing Line
Bank (if applicable), the Issuing Bank (if applicable) and on behalf of
itself and its Affiliates as potential Hedge Banks) hereby appoints and
authorizes the Administrative Agent to act as its agent under this
Agreement and the other Loan Documents with such powers and discretion as
are specifically delegated to the Administrative Agent by the terms of this
Agreement and the other Loan Documents, together with such other powers as
are reasonably incidental thereto. The Administrative Agent (which term as
used in this sentence and in Section 7.05(a) and the first sentence of
Section 7.06 shall include its affiliates and its own and its affiliates'
officers, directors, employees, and agents): (i) shall not have any duties
or responsibilities except those expressly set forth in this Agreement and
shall not be a trustee or fiduciary for any Lender Party; (ii) shall not be
responsible to the Lender Parties for any recital, statement,
representation, or warranty (whether written or oral) made in or in
connection with any Loan Document or any certificate or other document
referred to or provided for in, or received by any of them under, any Loan
Document, or for the value, validity, effectiveness, genuineness,
enforceability, or sufficiency of, or the perfection or priority of any
lien or security interest created or purported to be created under or in
connection with, any Loan Document, or any other document referred to or
provided for therein or for any failure by any Loan Party or any other
Person to perform any of its obligations thereunder; (iii) shall not be
responsible for or have any duty to ascertain, inquire into, or verify the
performance or observance of any covenants or agreements by any Loan Party
or the satisfaction of any condition or to inspect the property (including
the books and records) of any Loan Party or any of its Subsidiaries or
Affiliates; (iv) shall not be required to initiate or conduct any
litigation or collection proceedings under any Loan Document; and (v) shall
not be responsible for any action taken or omitted to be taken by it or any
of its directors, officers, agents or employees under or in connection with
any Loan Document, except for its or their own gross negligence or willful
misconduct.
(b) The Administrative Agent shall also act as the "collateral agent"
under the Loan Documents, and each of the Lender Parties (in its capacities
as a Lender, the Swing Line Bank (if applicable), Issuing Bank (if
applicable) hereby appoints and authorizes the Administrative Agent to act
as the agent of such Lender Party for purposes of acquiring, holding and
enforcing any and all Liens on Collateral granted by any of the Loan
Parties to secure any of the Secured Obligations, together with such powers
and discretion as are reasonably incidental thereto. The Administrative
Agent may from time to time in its discretion appoint any of the other
Lender Parties or any of the affiliates of a Lender Party to act as its
co-agent or sub-agent or its attorney-in-fact for any purpose, including
for purposes of holding or enforcing any Lien on the Collateral (or any
portion thereof) granted under the Collateral Documents or of exercising
any rights and remedies thereunder at the direction of the Administrative
Agent, and the Administrative Agent shall not be responsible for the
negligence or misconduct of any such co-agents, sub-agents or
attorneys-in-fact selected by it with reasonable care. In this connection,
the Administrative Agent, as "collateral agent", and such co-agents,
sub-agents and attorneys-in-fact shall be entitled to the benefits of all
provisions of this Article VII (including, without limitation, Section
7.05, as
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though such co-agents, sub-agents and attorneys-in-fact were the "collateral
agent" under the Loan Documents) as if set forth in full herein with respect
thereto.
(c) The Book Managers, the Syndication Agent and the Documentation
Agents shall not have any powers or discretion under this Agreement or any
of the other Loan Documents other than those bestowed upon it as a co-agent
or sub-agent from time to time by the Administrative Agent pursuant to
subsection (b) of this Section 7.01, and each of the Lender Parties hereby
acknowledges that the Book Managers, the Syndication Agent and the
Documentation Agents shall not have any liability under this Agreement or
any of the other Loan Documents.
SECTION 7.02. Reliance by Agent. The Administrative Agent shall be entitled
-----------------
to rely upon any certification, notice, instrument, writing, or other
communication (including, without limitation, any thereof by telephone or
telecopy) believed by it to be genuine and correct and to have been signed, sent
or made by or on behalf of the proper Person or Persons, and upon advice and
statements of legal counsel (including counsel for any Loan Party), independent
accountants, and other experts selected by the Administrative Agent. The
Administrative Agent may deem and treat the payee of any Note as the holder
thereof for all purposes hereof unless and until the Administrative Agent
receives and accepts an Assignment and Assumption executed in accordance with
Section 8.07. As to any matters not expressly provided for by this Agreement,
the Administrative Agent shall not be required to exercise any discretion or
take any action, but shall be required to act or to refrain from acting (and
shall be fully protected in so acting or refraining from acting) upon the
instructions of the Required Lenders or, to the extent any action requires the
consent of all Lenders as specifically provided in Section 8.01, upon the
instructions of all Lenders, and such instructions shall be binding on all of
the Lender Parties; provided, however, that the Administrative Agent shall not
be required to take any action that exposes the Administrative Agent to personal
liability or that is contrary to any Loan Document or applicable Requirements of
Law or unless it shall first be indemnified to its satisfaction by the Lender
Parties against any and all liability and expense which may be incurred by it by
reason of taking any such action.
SECTION 7.03. Defaults. The Administrative Agent shall not be deemed to
--------
have knowledge or notice of the occurrence of a Default or Event of Default
unless the Administrative Agent has received written notice from a Lender Party
or the Borrower specifying such Default or Event of Default and stating that
such notice is a "Notice of Default". In the event that the Administrative Agent
receives such a notice of the occurrence of a Default or Event of Default, the
Administrative Agent shall give prompt notice thereof to the Lender Parties. The
Administrative Agent shall (subject to Section 7.02) take such action with
respect to such Default or Event of Default as shall reasonably be directed by
the Required Lenders or, to the extent any action requires the consent of all
Lenders as specifically provided in Section 8.01, then as directed by all
Lenders; provided that, unless and until the Administrative Agent shall have
received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable in the best
interest of the Lender Parties.
SECTION 7.04. CSFB and Affiliates. With respect to its Commitments, the
-------------------
Advances made by it and the Note or Notes issued to it, CSFB (and any successor
acting as the Administrative Agent) in its capacity as a Lender Party hereunder
shall have the same rights and powers under the Loan Documents as any other
Lender Party and may exercise the same as though it were not acting as the
Administrative Agent; and the term "Lender Party" or "Lender Parties" shall,
unless otherwise expressly indicated, include CSFB in its individual capacity.
CSFB (and any successor acting as the Administrative Agent), and its affiliates
may (without having to account therefor to any Lender Party) accept deposits
from, lend money to, make investments in, provide services to, and generally
engage in any kind of lending, trust, or other business with any Loan Party or
any of its Subsidiaries or Affiliates as if it were not acting as an
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Agent, and CSFB (and any successor acting as the Administrative Agent), and its
affiliates may accept fees and other consideration from any Loan Party or any of
its Subsidiaries or Affiliates, or any Person that may do business with or own
securities of any Loan Party or any such Subsidiary or Affiliate, for services
in connection with this Agreement or otherwise without having to account for the
same to the Lender Parties.
SECTION 7.05. Indemnification.
---------------
(a) The Lenders severally agree to indemnify the Administrative Agent
(to the extent not promptly reimbursed under Section 8.04, but without
limiting the obligations of the Borrower under such Section) ratably in
accordance with their respective Commitments, for any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses (including attorneys' fees), or disbursements of any kind and
nature whatsoever that may be imposed on, incurred by or asserted against
the Administrative Agent in any way relating to or arising out of any Loan
Document or the transactions contemplated thereby or any action taken or
omitted by the Administrative Agent under any Loan Document (collectively,
the "Indemnified Costs"); provided that no Lender shall be liable for any
of the foregoing to the extent they arise from the gross negligence or
willful misconduct of the Person to be indemnified. In the case of any
claim, investigation, litigation or proceeding for which indemnity under
this Section 7.05(a) applies, such indemnity shall apply whether or not
such claim, investigation, litigation or proceeding is brought by the
Administrative Agent, any of the other Agents, any of the Lender Parties or
a third party. Without limitation of the foregoing, each Lender severally
agrees to reimburse the Administrative Agent promptly upon demand for its
ratable share of any costs or expenses payable by the Borrower under
Section 8.04, to the extent that the Administrative Agent is not promptly
reimbursed for such costs and expenses (including, without limitation, fees
and expenses of counsel) by the Borrower. In the case of any investigation,
litigation or proceeding giving rise to any Indemnified Costs, this Section
7.05 applies whether any such investigation, litigation or proceeding is
brought by any Lender Party or any other Person. The failure of any Lender
Party to reimburse the Administrative Agent promptly upon demand for its
ratable share of any amount required to be paid by the Lender Party to the
Administrative Agent as provided herein shall not relieve any other Lender
Party of its obligation hereunder to reimburse the Administrative Agent for
its ratable share of such amount, but no Lender Party shall be responsible
for the failure of any other Lender Party to reimburse the Administrative
Agent for such other Lender Party's ratable share of such amount. Without
prejudice to the survival of any other agreement of any Lender Party
hereunder, the agreement and obligations of each Lender contained in this
Section 7.05(a) shall survive the payment in full of principal, interest
and all other amounts payable hereunder and under the other Loan Documents.
(b) The Revolving Credit Lenders severally agree to indemnify the
Issuing Bank (to the extent not promptly reimbursed under Section 8.04, but
without limiting the obligations of the Borrower under such Section) for
such Revolving Credit Lender's Pro Rata Share of any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever that may be
imposed on, incurred by, or asserted against the Issuing Bank in any way
relating to or arising out of the Loan Documents or the transactions
contemplated thereby or any action taken or omitted by the Issuing Bank
under the Loan Documents; provided, however, that no Revolving Credit
Lender shall be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the Issuing Bank's gross negligence or willful
misconduct. In the case of any claim, investigation, litigation or
proceeding for which indemnity under this Section 7.05(b) applies, such
indemnity shall apply whether or not such claim, investigation, litigation
or proceeding is brought by the Issuing Bank, any of the other Lender
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Parties or a third party. Without limitation of the foregoing, each
Revolving Credit Lender severally agrees to reimburse the Issuing Bank
promptly upon demand for its Pro Rata Share of any costs and expenses
(including, without limitation, fees and expenses of counsel) payable by
the Borrower under Section 8.04, to the extent that the Issuing Bank is not
promptly reimbursed for such costs and expenses by the Borrower. The
failure of any Revolving Credit Lender to reimburse the Issuing Bank
promptly upon demand for its Pro Rata Share of any amount required to be
paid by the Revolving Credit Lenders to the Issuing Bank as provided herein
shall not relieve any other Revolving Credit Lender of its obligation
hereunder to reimburse the Issuing Bank for its Pro Rata Share of such
amount, but no Revolving Credit Lender shall be responsible for the failure
of any other Revolving Credit Lender to reimburse the Issuing Bank for such
other Revolving Credit Lender's Pro Rata Share of such amount. Without
prejudice to the survival of any other agreement of any Revolving Credit
Lender hereunder, the agreement and obligations of each Revolving Credit
Lender contained in this Section 7.05(b) shall survive the payment in full
of principal, interest and all other amounts payable hereunder and under
the other Loan Documents.
SECTION 7.06. Non-Reliance on Agent and Other Lender Parties. Each Lender
----------------------------------------------
Party agrees that it has, independently and without reliance on any Agent or any
other Lender Party, and based on such documents and information as it has deemed
appropriate, made its own credit analysis of the Loan Parties and their
Subsidiaries and decision to enter into this Agreement and that it will,
independently and without reliance upon any Agent or any other Lender Party, and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own analysis and decisions in taking or not taking
action under the Loan Documents. Except for notices, reports, and other
documents and information expressly required to be furnished to the Lender
Parties by the Administrative Agent hereunder, the Administrative Agent shall
not have any duty or responsibility to provide any Lender Party with any credit
or other information concerning the affairs, financial condition, or business of
any Loan Party or any of its Subsidiaries or Affiliates that may come into the
possession of the Administrative Agent or any of its affiliates.
SECTION 7.07. Resignation of Administrative Agent. The Administrative Agent
-----------------------------------
may resign at any time by giving notice thereof to the Lender Parties and the
Borrower. Upon any such resignation, the Required Lenders shall have the right
to appoint a successor Administrative Agent. If no successor Agent shall have
been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Administrative Agent's giving of
notice of resignation, then the retiring Administrative Agent may, on behalf of
the Lender Parties, appoint a successor Administrative Agent which shall be a
commercial bank organized under the laws of the United States of America or of
any state thereof and having combined capital and surplus of at least
$100,000,000. If within 30 days after written notice is given of the retiring
Administrative Agent's resignation under this Section 7.07 no successor
Administrative Agent shall have been appointed and shall have accepted such
appointment, then on such 30th day (a) the retiring Administrative Agent's
resignation shall become effective, (b) the retiring Administrative Agent shall
thereupon be discharged from its duties and obligations under the Loan Documents
and (c) the Required Lenders shall thereafter perform all duties and obligations
of the retiring Administrative Agent under the Loan Documents until such time,
if any, as the Required Lenders appoint a successor Administrative Agent as
provided above in this Section 7.07. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor and upon the execution and filing
or recording of such financing statements, or amendments thereto, and such other
instruments or notices, as may be necessary or desirable, or as the Required
Lenders may request, in order to continue the perfection of the Liens granted or
purported to be granted by the Collateral Documents, such successor
Administrative Agent shall thereupon succeed to and become vested with all the
rights, powers, discretion, privileges, and duties of the retiring Agent, and
the retiring Administrative Agent shall be discharged from its duties and
obligations under the Loan Documents. After any retiring Agent's
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resignation hereunder as Administrative Agent, the provisions of this Article
VII shall continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as Administrative Agent.
SECTION 7.08. Release of Collateral. Upon the payment of all Notes and all
---------------------
other amounts payable under the Loan Documents, the termination of all Letters
of Credit and the termination of all commitments of the Lender Parties
hereunder, the Lender Parties hereby agree that all Collateral is released from
the security interest granted under the respective Collateral Documents, and
upon (i) the sale, lease, transfer or other disposition of any item of
Collateral of any Loan Party, (ii) the issuance or sale pursuant to Section
5.02(m)(iii) of any Equity Interests causing a Subsidiary of the Borrower to
cease to be wholly-owned by the Borrower or any of its Subsidiaries, in each
case in accordance with the terms of the Loan Documents, the Lender Parties
hereby agree that such item of Collateral in the case of clause (i), or all
Collateral owned by such Subsidiary in the case of clause (ii), shall be
released from the security interest granted under the respective Collateral
Documents. In connection therewith, the Lender Parties hereby irrevocably
authorize the Administrative Agent to release any such Collateral. The
Administrative Agent will, at the Borrower's expense, execute and deliver to the
respective Loan Party such documents as such Loan Party may reasonably request
to evidence the release of such item of Collateral from the security interest
granted under the Collateral Documents.
SECTION 7.09. Release of Guarantor. Upon the sale of outstanding shares of
--------------------
capital stock and other equity, ownership and profit interests in any Guarantor
in a transaction which is permitted under Section 5.02(e) and, if applicable,
5.02(m)(iii), then upon request by the Borrower, the Administrative Agent, on
behalf of each Lender Party, shall confirm in writing that the liability of such
Guarantor under the Subsidiary Guarantee is released and discharged effective
when such transaction is consummated and all requirements hereunder in
connection therewith are satisfied, including with respect to the application of
the proceeds of such sale. Such confirmation from the Administrative Agent (a)
shall establish conclusively that the liability of such Guarantor under the
Subsidiary Guarantee is released and discharged and (b) may be relied on,
without further inquiry, by the purchaser in such transaction and each of its
transferees. Each Lender Party hereby irrevocably authorizes the Administrative
Agent to release any Guarantor from time to time to the extent provided for
herein and to execute any document reasonably required in connection therewith.
SECTION 7.10. Actions in Respect of Intercreditor Agreement. The Lenders
---------------------------------------------
and the Issuing Banks hereby authorize the Administrative Agent, in its capacity
as Administrative Agent on behalf of the Lenders and the Issuing Banks, to enter
into the Intercreditor Agreement and hereby consent to the Administrative Agent
acting as Collateral Agent under the Intercreditor Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any provision of
---------------
this Agreement, the Notes, or any of the other Loan Documents (except to the
extent otherwise expressly provided for therein), nor consent to any departure
by any of the Loan Parties therefrom, shall in any event be effective unless the
same shall be in writing and signed by the Required Lenders, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that:
(a) no amendment, waiver or consent shall, unless in writing and
signed by all of the Lenders (other than any of the Lenders that is, at
such time, a Defaulting Lender), do any of the following at any time:
93
(i) waive any of the conditions specified in Section 3.01 or, in
the case of the Initial Extensions of Credit, Section 3.02;
(ii) change the number of Lenders or the percentage of the
Commitments or the aggregate outstanding principal amount of Advances
or the aggregate Available Amount of outstanding Letters of Credit
that, in each case, shall be required for the Lender Parties or any of
them to take any action hereunder;
(iii) except to the extent contemplated herein, release all or
substantially all of the Guarantors that are a party to the Subsidiary
Guarantee from their Obligations thereunder in any transaction or
series of related transactions;
(iv) release all or substantially all of the Collateral in any
transaction or series of related transactions;
(v) amend Section 2.13 or this Section 8.01; or
(vi) amend the definition of Interest Period to include
additional monthly periods for setting the duration of an Interest
Period.
(b) no amendment, waiver or consent shall, unless in writing and
signed by the Required Lenders and each of the Lenders (other than any of
the Lenders that is, at such time, a Defaulting Lender) that has a
Commitment under the Term Facilities or the Revolving Credit Facility or is
owed any amounts under or in respect thereof, if such Lender is directly
affected by such amendment, waiver or consent:
(i) increase the Commitments of such Lender or subject such
Lender to any additional Obligations;
(ii) reduce the principal or interest rate of, or interest on,
any Advance of such Lender or any fees or other amounts payable
hereunder to such Lender;
(iii) postpone any date scheduled for any payment of principal
of, or interest on, any Advance of such Lender or any fees or other
amounts payable to such Lender; or
(iv) change the order of application of any prepayment set forth
in Section 2.06 in any manner that materially affects such Lender; and
provided further that no amendment, waiver or consent shall, unless in
writing and signed by the Swing Line Bank or the Issuing Bank, as the case
may be, in addition to the Lenders required above to take such action,
affect the rights or duties of the Swing Line Bank or the Issuing Bank,
respectively, under this Agreement or any of the other Loan Documents; and
provided further that no amendment, waiver or consent shall, unless in
writing and signed by the Administrative Agent in addition to the Lenders
required above to take such action, affect the rights or duties of the
Administrative Agent under this Agreement or any of the other Loan
Documents. Notwithstanding any of the foregoing provisions of this Section
8.01, none of the defined terms set forth in Section 1.01 shall be amended,
supplemented or otherwise modified hereafter in any manner that would
change the meaning, purpose or effect of this Section 8.01 or any Section
referred to herein unless such amendment, supplement or modification is
agreed to in writing by the number and percentage of Lenders (and the
Issuing Bank, the Swing Line Bank and
94
Administrative Agent, in each case if applicable) otherwise required to
amend such Section under the terms of this Section 8.01.
SECTION 8.02. Notices, Etc.
------------
(a) All notices and other communications provided for hereunder shall
be in writing (including telecopy communication) and mailed, telecopied or
delivered, if to the Borrower, at its address at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (Telecopier (▇▇▇) ▇▇▇-▇▇▇▇),
Attention: Chief Financial Officer with a copy to Borrower's general
counsel at the same address (Telecopier (▇▇▇) ▇▇▇-▇▇▇▇); if to any Initial
Lender, the Swing Line Bank or the Initial Issuing Bank, at its Base Rate
Lending Office specified opposite its name on Schedule I hereto; if to any
other Lender Party, at its Base Rate Lending Office specified in the
Assignment and Assumption pursuant to which it became a Lender Party; and
if to the Administrative Agent, at its address at Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Agency Group Manager; or, as to
the Borrower or the Administrative Agent, at such other address as shall be
designated by such party in a written notice to the other parties and, as
to each other party, at such other address as shall be designated by such
party in a written notice to the Borrower and the Administrative Agent. All
such notices and other communications shall, when mailed or telecopied, be
effective when deposited in the mails, or transmitted by telecopier,
respectively, except that notices and communications to any Agent pursuant
to Article II, III or VII shall not be effective until received by such
Agent. Delivery by telecopier of an executed counterpart of a signature
page to any amendment or waiver of any provision of this Agreement or the
Notes or of any Exhibit hereto to be executed and delivered hereunder shall
be effective as delivery of an original executed counterpart thereof.
(b) If any notice required under this Agreement is permitted to be
made, and is made, by telephone, actions taken or omitted to be taken in
reliance thereon by the Administrative Agent or any of the Lender Parties
shall be binding upon the Borrower and the other Loan Parties
notwithstanding any inconsistency between the notice provided by telephone
and any subsequent writing in confirmation thereof provided to the
Administrative Agent or such Lender Party; provided that any such action
taken or omitted to be taken by the Administrative Agent or such Lender
Party shall have been in good faith and in accordance with the terms of
this Agreement.
SECTION 8.03. No Waiver; Remedies. No failure on the part of any Lender
-------------------
Party or any Agent to exercise, and no delay in exercising, any right, power or
privilege hereunder or under any Note or any other Loan Document shall operate
as a waiver thereof or consent thereto; nor shall any single or partial exercise
of any such right, power or privilege preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The remedies
herein provided are cumulative and not exclusive of any remedies provided by
applicable law.
SECTION 8.04. Costs and Expenses.
------------------
(a) The Borrower agrees to pay on demand (i) all costs and expenses of
each Agent in connection with the syndication, preparation, execution,
delivery, administration, modification and amendment of, or any consent or
waiver under, the Loan Documents and the other documents to be delivered
thereunder (including, without limitation, (A) all due diligence,
collateral review, syndication, transportation, computer, duplication,
appraisal, audit, insurance, consultant, search, filing and recording fees
and expenses and (B) the reasonable fees and expenses of counsel for the
Administrative Agent (including the cost of internal counsel) with respect
thereto, with respect to advising such Agent as to its rights and
responsibilities, or the perfection, protection or preservation of rights
or interests, under the Loan Documents), and (ii) all costs and expenses of
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each Agent and each Lender Party in connection with the enforcement of the
Loan Documents and the other documents to be delivered thereunder, whether
in any action, suit or litigation, or any bankruptcy, insolvency or other
similar proceeding affecting creditors' rights generally (including,
without limitation, the reasonable fees and expenses of counsel (including
the cost of internal counsel) for the Administrative Agent and each Lender
Party with respect thereto).
(b) The Borrower agrees to indemnify, defend and save and hold
harmless each Agent, each Lender Party and each of their affiliates and
their respective affiliates, officers, directors, trustees, employees,
agents and advisors (each, an "Indemnified Party") from and against, and
shall pay on demand, any and all claims, damages, losses, liabilities and
expenses (including, without limitation, reasonable fees and expenses of
counsel) that may be incurred by or asserted or awarded against any
Indemnified Party, in each case arising out of or in connection with or by
reason of (including, without limitation, in connection with any
investigation, litigation or proceeding or preparation of a defense in
connection therewith) (i) the Transaction (or any aspect thereof),
Facilities, the actual or proposed use of the proceeds of the Advances or
the Letters of Credit, the Loan Documents, or any of the transactions
contemplated thereby; (ii) any acquisition or proposed acquisition by the
Borrower or any of its Subsidiaries or Affiliates of all or any portion of
the Equity Interests in or Debt securities or substantially all of the
property and assets of any other Person; or (iii) the actual or alleged
presence of Hazardous Materials on any property of any Loan Party or any of
its Subsidiaries or any Environmental Action relating in any way to any
Loan Party or any of its Subsidiaries, except to the extent such claim,
damage, loss, liability or expense is found in a final, non-appealable
judgment by a court of competent jurisdiction to have resulted from such
Indemnified Party's gross negligence or willful misconduct or have arisen
after such Loan Party or Subsidiary is dispossessed of or relinquishes its
interest in such property. In the case of an investigation, litigation or
other proceeding to which the indemnity in this Section 8.04(b) applies,
such indemnity shall be effective whether or not such investigation,
litigation or proceeding is brought by any Loan Party, its directors,
shareholders or creditors or an Indemnified Party or any other Person,
whether or not any Indemnified Party is otherwise a party thereto and
whether or not the Transaction or any of the other transactions
contemplated hereby is consummated. If and to the extent that the indemnity
in this subsection (b) is unenforceable for any reason other than by
operation of the last clause of the first sentence of this subsection
8.04(b), the Borrower hereby agrees to make to each applicable Indemnified
Party the maximum contribution to the payment of the claims, damages,
losses, liabilities and expenses (including, without limitation, reasonable
fees and expenses of counsel) for which the indemnity in this subsection
(b) has been determined to be unenforceable that is permitted under
applicable law. The Borrower also agrees not to assert any claim against
any Agent, any Lender Party or any of their respective affiliates,
officers, directors, trustees, employees, agents and advisors, on any
theory of liability, for special, indirect, consequential or punitive
damages arising out of or otherwise relating to the Transaction (or any
aspect thereof) Facilities, the actual or proposed use of the proceeds of
the Advances or the Letters of Credit, the Loan Documents, or any of the
other transactions contemplated hereby.
(c) If any payment of principal of, or Conversion of, any Eurodollar
Rate Advance is made by the Borrower to or for the account of a Lender
Party other than on the last day of the Interest Period for such Advance,
as a result of a payment or Conversion pursuant to Section 2.06, 2.09(b)(i)
or 2.10(d), acceleration of the maturity of the Notes pursuant to Section
6.01 or for any other reason, or by an Eligible Assignee to a Lender Party
other than on the last day of the Interest Period for such Advance upon an
assignment of rights and obligations under this Agreement pursuant to
Section 8.07 as a result of a demand by the Borrower pursuant to Section
8.07(a), or if the Borrower fails to make any payment or prepayment of an
Advance for which a notice of prepayment has been given or that is
otherwise required to be made, whether pursuant to
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Section 2.04, 2.06 or 6.01 or otherwise, the Borrower shall, upon demand by
such Lender Party (with a copy of such demand to the Administrative Agent),
pay to the Administrative Agent for the account of such Lender Party any
amounts required to compensate such Lender Party for any additional losses,
costs or expenses that it may reasonably incur as a result of such payment
or Conversion or such failure to pay or prepay, as the case may be,
including, without limitation, any loss, cost or expense incurred by reason
of the liquidation or reemployment of deposits or other funds acquired by
any Lender Party to fund or maintain such Advance.
(d) If any Loan Party fails to pay when due, after the expiration of
any grace period, if applicable, any costs, expenses or other amounts
payable by it under any Loan Document, including, without limitation, fees
and expenses of counsel and indemnification payments, such amount may be
paid on behalf of such Loan Party by the Administrative Agent or any Lender
Party, in its sole discretion.
(e) Without prejudice to the survival of any other agreement of any
Loan Party hereunder or under any other Loan Document, the agreements and
obligations of the Borrower contained in Sections 2.10 and 2.13 and this
Section 8.04 shall survive the payment in full of principal, interest and
all other amounts payable hereunder and under any of the other Loan
Documents.
SECTION 8.05. Right of Set-off. Upon (a) the occurrence and during the
----------------
continuance of any Event of Default and (b) the making of the request or the
granting of the consent specified by Section 6.01 to authorize the
Administrative Agent to declare the Notes due and payable pursuant to the
provisions of Section 6.01, each Agent and each Lender Party and each of their
respective Affiliates is hereby authorized at any time and from time to time, to
the fullest extent permitted by law, to set off and otherwise apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by such Agent, such Lender Party
or such Affiliate to or for the credit or the account of the Borrower against
any and all of the Obligations of the Borrower now or hereafter existing under
the Loan Documents, irrespective of whether such Agent or such Lender Party
shall have made any demand under this Agreement or such Note or Notes and
although such Obligations may be unmatured. Each Agent and each Lender Party
agrees promptly to notify the Borrower after any such set-off and application;
provided, however, that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of each Agent and each
Lender Party and their respective Affiliates under this Section are in addition
to other rights and remedies (including, without limitation, other rights of
set-off) that such Agent, such Lender Party and their respective Affiliates may
have.
SECTION 8.06. Successors and Assigns. (a) The provisions of this Agreement
----------------------
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that the Borrower may
not assign or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of each Lender Party and no Lender may assign
or otherwise transfer any of its rights or obligations hereunder except (i) to
an Eligible Assignee in accordance with Section 8.07(a), (ii) by way of
participation in accordance with Section 8.07(e), or (iii) by way of pledge or
assignment of a security interest subject to the restrictions of Section 8.07(f)
(and any other attempted assignment or transfer by any party hereto shall be
null and void). Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby, Participants to the extent
provided in Section 8.07(e) and, to the extent expressly contemplated hereby,
the Related Parties of each of the Administrative Agent and the Lender Parties)
any legal or equitable right, remedy or claim under or by reason of this
Agreement.
98
SECTION 8.07. Assignments and Participations.
------------------------------
(a) (i) Any Lender may, and (ii) so long as no Default under Section
6.01(a) or 6.01(f) or Event of Default has occurred and is continuing, if
demanded by the Borrower (following (x) a demand by such Lender for the
payment of additional compensation pursuant to Section 2.10(a), 2.10(b) or
2.13 or (y) an assertion by such Lender pursuant to Section 2.10(c) or
2.10(d) that it is impractical or unlawful for such Lender to make
Eurodollar Rate Advances), upon at least five Business Days' notice to such
Lender and the Administrative Agent, each of the Lenders will, at any time
assign to one or more Eligible Assignees all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Commitment or Commitments, the Advances owing to it, the
Note or Notes held by it and its participation in reimbursement obligations
of the Borrower in respect of Letters of Credit); provided that:
(A) except in the case of an assignment of the entire
remaining amount of the assigning Lender's Commitment or
Commitments, the Advances owing to it, the Note or Notes held by
it, its participation in reimbursement obligations of the
Borrower in respect of Letters of Credit or in the case of an
assignment to a Lender or an Affiliate of a Lender or an Approved
Fund with respect to a Lender, the aggregate amount of the
Commitment (which for this purpose includes Advances outstanding
thereunder) or, if the applicable Commitment is not then in
effect, the principal outstanding balance of the Advance of the
assigning Lender subject to each such assignment (determined as
of the date the Assignment and Assumption with respect to such
assignment is delivered to the Administrative Agent or, if "Trade
Date" is specified in the Assignment and Assumption, as of the
Trade Date) shall not be less than $2,500,000, in the case of any
assignment in respect of the Revolving Credit Facility, or
$1,000,000, in the case of any assignment in respect of the Term
Loan Facility, unless each of the Administrative Agent and, so
long as no Default under Section 6.01(a) or 6.01(f) or Event of
Default has occurred and is continuing, the Borrower otherwise
consent (each such consent not to be unreasonably withheld or
delayed);
(B) each partial assignment shall be made as an assignment
of a proportionate part of all the assigning Lender's rights and
obligations under this Agreement with respect to the Advance or
the Commitment assigned, except that this clause (B) shall not
prohibit any Lender from assigning all or a portion of its rights
and obligations among separate Facilities on a non-pro rata
basis;
(C) any assignment of a Revolving Credit Commitment must be
approved by the Administrative Agent and the Issuing Bank unless
the Person that is the proposed assignee is itself a Lender with
a Revolving Credit Commitment (whether or not the proposed
assignee would otherwise qualify as an Eligible Assignee);
(D) the parties to each assignment shall execute and deliver
to the Administrative Agent an Assignment and Assumption,
together with any Note or Notes subject to such assignment and,
except in the case of an assignment by any of the Lenders to an
Affiliate or an Approved Fund of such Lender, a processing and
recordation fee of $3,500 (and in the case of assignments on the
same day by a Lender to more than one fund managed or advised by
the same investment
99
advisor (which funds are not then Lenders hereunder), only a
single $3,500 processing and recordation fee shall be payable for
all such assignments by such Lender to such funds), at the
discretion of the Administrative Agent, and the Eligible
Assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire;
(E) the Swing Line Bank may not assign or otherwise transfer
to any other Person any of its rights or obligations under its
Swing Line Commitment.
(F) each such assignment made as a result of a demand by the
Borrower pursuant to this Section 8.07(a)(ii) shall be arranged
by the Borrower after consultation with the Administrative Agent
and shall be either an assignment of all of the rights and
obligations of the assigning Lender under this Agreement or an
assignment of a portion of such rights and obligations made
concurrently with another such assignment or other such
assignments that together cover all of the rights and obligations
of the assigning Lender under this Agreement.
(b) Subject to acceptance and recording thereof by the Administrative
Agent pursuant to Section 8.07(c), from and after the effective date
specified in each Assignment and Assumption, the Eligible Assignee
thereunder shall be a party to this Agreement and, to the extent of the
interest assigned by such Assignment and Assumption, have the rights and
obligations of a Lender or the Issuing Bank under this Agreement, and the
assigning Lender or Issuing Bank thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, relinquish its rights
and be released from its obligations under this Agreement (and, in the case
of an Assignment and Assumption covering all of the assigning Lender's or
Issuing Bank's rights and obligations under this Agreement, such Lender or
Issuing Bank shall cease to be a party hereto) but shall continue to be
entitled to the benefits of Sections 2.10, 2.13 and 8.04 (and other similar
provisions of the other Loan Documents to survive the payment in full of
the Obligations of the Loan Parties under or in respect of the Loan
Documents) with respect to facts and circumstances occurring prior to the
effective date of such assignment. Any assignment or transfer by a Lender
of rights or obligations under this Agreement that does not comply with
this paragraph shall be treated for purposes of this Agreement as a sale by
such Lender of a participation in such rights and obligations in accordance
with this Section 8.07(d).
(c) The Administrative Agent, acting solely for this purpose as an
agent of the Borrower, shall maintain at its office as set forth in Section
8.02, a copy of each Assignment and Assumption delivered to it and a
register for the recordation of the names and addresses of the Lender
Parties, and the Commitments of, and principal amounts of the Advances
owing to, each Lender pursuant to the terms hereof from time to time (the
"Register"). The entries in the Register shall be conclusive, and the
Borrower, the Administrative Agent and the Lender Parties may treat each
Person whose name is recorded in the Register pursuant to the terms hereof
as a Lender Party hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Administrative Agent shall (i)
upon the request by the Borrower or any Lender Party, provide a copy of the
Register to the Borrower or such Lender Party, and (ii) upon its receipt of
an Assignment and Assumption executed by an assigning Lender Party or
Issuing Bank and an assignee, together with any Note or Notes subject to
such assignment, if such Assignment and Assumption has been completed and
is in substantially the form of Exhibit C hereto, (x) accept such
Assignment and Assumption, and (y) record the information contained therein
in the Register. In the case of any assignment by a Lender Party, the
Borrower shall, at its own expense, and upon request by the Administrative
Agent or any assignee, execute and deliver to
100
the Administrative Agent in exchange for the surrendered Note or Notes a
new Note or Notes from the Borrower payable to or to the order of such
Eligible Assignee in an amount equal to the Commitment assumed by it under
each Facility pursuant to such assignment and Assumption and, if the
assigning Lender Party has retained a Commitment under such Facility, a new
Note or Notes from the Borrower payable to or to the order of the assigning
Lender Party in an amount equal to the Commitment retained by it under such
Facility. Each of the new Note or Notes shall be in an aggregate principal
amount equal to the aggregate principal amount of such surrendered Note or
Notes, shall be dated the effective date of such Assignment and Assumption
and shall otherwise be in substantially the form of Exhibit ▇-▇, ▇▇▇▇▇▇▇
▇-▇ or Exhibit A-3 hereto, as appropriate.
(d) Any Lender Party may at any time, without the consent of, or
notice to, the Borrower or the Administrative Agent, sell participations to
any Person (other than a natural person or the Borrower or any of the
Borrower's Affiliates or Subsidiaries) (each, a "Participant") in all or a
portion of such Lender Party's rights and/or obligations under this
Agreement (including all or a portion of its Commitment or Commitments, the
Advances owing to it, the Note or Notes, if any, held by it and its
participation, if any, in reimbursement obligations of the Borrower in
respect of Letters of Credit); provided that:
(i) such Lender Party's obligations under this Agreement shall
remain unchanged,
(ii) such Lender Party shall remain solely responsible to the
other parties hereto for the performance of such obligations and
(iii) the Borrower, the Administrative Agent and the other Lender
Parties shall continue to deal solely and directly with such Lender
Party in connection with such Lender Party's rights and obligations
under this Agreement.
Any agreement or instrument pursuant to which a Lender Party sells
such a participation shall provide that such Lender Party shall retain the
sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided that
such agreement or instrument may provide that such Lender Party will not,
without the consent of the Participant, agree to any amendment,
modification or waiver described in Section 8.01(a) or (b) that affects
such Participant. Subject to Section 8.07(e), the Borrower agrees that each
Participant shall be entitled to the benefits of Sections 2.10, 2.13 and
8.04 to the same extent as if it were a Lender Party and had acquired its
interest by assignment pursuant to Section 8.07(a). To the extent permitted
by law, each Participant also shall be entitled to the benefits of Section
8.05 as though it were a Lender Party.
(e) A Participant shall not be entitled to receive any greater payment
under Sections 2.10, 2.13 and 8.04 than the applicable Lender Party would
have been entitled to receive with respect to the participation sold to
such Participant, unless the sale of the participation to such Participant
is made with the Borrower's prior written consent. A Participant that would
be a foreign lender party if it were a Lender Party shall not be entitled
to the benefits of Section 2.13 unless the Borrower is notified of the
participation sold to such Participant and such Participant agrees, for the
benefit of the Borrower, to comply with Section 2.13 as though it were a
Lender Party.
(f) Any Lender Party may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to secure
obligations of such Lender Party,
101
including without limitation any pledge or assignment to secure obligations
to a Federal Reserve Bank; provided that no such pledge or assignment shall
release such Lender Party from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender Party as a party
hereto. In the case of any Lender that is a fund that invests in bank
loans, such Lender may, without the consent of the Borrower or
Administrative Agent, assign or pledge all or any portion of its rights
under this Agreement, including the Loans and Notes or any other instrument
evidencing its rights as a Lender under this Agreement, to any holder of,
trustee for, or any other representative of holders of, obligations owed or
securities issued, by such fund, as security for such obligations or
securities; provided that any foreclosure or similar action by such trustee
or representative shall be subject to the provisions of this Section 8.07
concerning assignments.
(g) Notwithstanding anything to the contrary contained herein, any
Lender Party (a "Granting Lender") may grant to a special purpose funding
vehicle identified as such in writing from time to time by the Granting
Lender to the Administrative Agent and the Borrower (an "SPC") the option
to provide all or any part of any Advance that such Granting Lender would
otherwise be obligated to make pursuant to this Agreement, provided that
(i) nothing herein shall constitute a commitment by any SPC to fund any
Advance, and (ii) if an SPC elects not to exercise such option or otherwise
fails to make all or any part of such Advance, the Granting Lender shall be
obligated to make such Advance pursuant to the terms hereof. The making of
an Advance by an SPC hereunder shall utilize the Commitment of the Granting
Lender to the same extent, and as if, such Advance were made by such
Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be
liable for any indemnity or similar payment obligation under this Agreement
for which a Lender Party would be liable, (ii) no SPC shall be entitled to
the benefits of Sections 2.10 and 2.13 (or any other increased costs
protection provision) and (iii) the Granting Lender shall for all purposes,
including, without limitation, the approval of any amendment or waiver of
any provision of any Loan Document, remain the Lender Party of record
hereunder. In furtherance of the foregoing, each party hereto hereby agrees
(which agreement shall survive the termination of this Agreement) that,
prior to the date that is one year and one day after the payment in full of
all outstanding commercial paper or other senior Debt of any SPC, it will
not institute against, or join any other person in instituting against,
such SPC any bankruptcy, reorganization, arrangement, insolvency, or
liquidation proceeding under the laws of the United States or any State
thereof. Notwithstanding anything to the contrary contained in this
Agreement, any SPC may (i) with notice to, but without prior consent of,
the Borrower and the Administrative Agent and without paying any processing
fee therefor, assign all or any portion of its interest in any Advance to
the Granting Lender and (ii) disclose on a confidential basis any
non-public information relating to its funding of Advances to any rating
agency, commercial paper dealer or provider of any surety or guarantee or
credit or liquidity enhancement to such SPC. This subsection (g) may not be
amended without the prior written consent of each Granting Lender, all or
any part of whose Advances are being funded by the SPC at the time of such
amendment.
(h) In the event that the Borrower shall request that the Lender
Parties enter into any amendment, modification, consent or waiver with
respect to this Agreement or any other Loan Document, and any Lender Party
elects not to enter into such amendment, modification, consent or waiver
(each such Lender Party being a "Dissenting Lender"), then the Borrower
shall have the right upon 10 days' written notice to the Administrative
Agent and such Dissenting Lender, to require each such Dissenting Lender to
assign 100% of the rights and obligations of the Dissenting Lender at par
to any Lender or any other financial institution which satisfies the
requirements of Section 8.07(a) and has been consented to by the
Administrative Agent, the Swing Line Lender and in the case of any
assignment of a Revolving Credit Commitment each Issuing Bank (which
consents in the case of the Administrative Agent and the Swing Line Lender
102
shall not be unreasonably withheld or delayed). Each such assignment shall
be made pursuant to an Assignment and Assumption and shall comply with the
other terms of this Section 8.07. The Borrower shall pay to such Dissenting
Lender, concurrently with the effectiveness of such assignment, any amounts
payable under this Agreement that would have been payable if the Borrower
had voluntarily prepaid such Advances. The Dissenting Lender shall not be
required to pay any fee relating to such assignment.
SECTION 8.08. Execution in Counterparts. This Agreement may be executed in
-------------------------
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
Delivery by telecopier of an executed counterpart of a signature page to this
Agreement shall be effective as delivery of an original executed counterpart of
this Agreement.
SECTION 8.09. No Liability of the Issuing Bank. The Borrower assumes all
--------------------------------
risks of the acts or omissions of any beneficiary or transferee of any Letter of
Credit with respect to its use of such Letter of Credit. Neither the Issuing
Bank nor any of its officers or directors shall be liable or responsible for:
(a) the use that may be made of any Letter of Credit or any acts or omissions of
any beneficiary or transferee in connection therewith; (b) the validity,
sufficiency or genuineness of documents, or of any endorsement thereon, even if
such documents should prove to be in any or all respects invalid, insufficient,
fraudulent or forged; (c) payment by the Issuing Bank against presentation of
documents that do not comply with the terms of a Letter of Credit, including
failure of any documents to bear any reference or adequate reference to the
Letter of Credit; or (d) any other circumstances whatsoever in making or failing
to make payment under any Letter of Credit, except that the Borrower shall have
a claim against the Issuing Bank, and the Issuing Bank shall be liable to the
Borrower, to the extent of any direct, but not consequential, damages suffered
by the Borrower that the Borrower proves were caused by (i) the Issuing Bank's
willful misconduct or gross negligence, or failure to conform with the standards
specified in Section 5-108 of the UCC, as determined in a final, non-appealable
judgment by a court of competent jurisdiction in determining whether documents
presented under any Letter of Credit comply with the terms of the Letter of
Credit or (ii) the Issuing Bank's willful failure to make lawful payment under a
Letter of Credit after the presentation to it of a draft and certificates
strictly complying with the terms and conditions of the Letter of Credit. In
furtherance and not in limitation of the foregoing, but subject to Section
5-109(a) of the UCC, the Issuing Bank may accept documents that appear on their
face to be in order, without responsibility for further investigation,
regardless of any notice or information to the contrary.
SECTION 8.10. Confidentiality. Neither any Agent nor any Lender Party shall
---------------
disclose any Confidential Information to any Person without the consent of the
Borrower, other than (a) to such Agent's or such Lender Party's Affiliates and
their officers, directors, employees, agents and advisors, to other Lender
Parties and to actual or prospective Eligible Assignees and participants, and
then only on a confidential basis, (b) as required by any law, rule or
regulation or judicial process, (c) as requested or required by any state,
Federal or foreign authority or examiner (including the National Association of
Insurance Commissioners or any similar organization or quasi-regulatory
authority) regulating such Lender Party, (d) to any rating agency when required
by it, provided that, prior to any such disclosure, such rating agency shall
undertake to preserve the confidentiality of any Confidential Information
relating to the Loan Parties received by it from such Lender Party in accordance
with such rating agency's internal procedures generally applicable to
information of the same type, (e) in connection with any litigation or
proceeding to which such Agent or such Lender Party or any of its Affiliates may
be a party, (f) in connection with the exercise of any remedy under this
Agreement or any other Loan Document, or (g) to any direct or indirect
contractual counterparty in swap agreements or such contractual counterparty's
professional advisor (so long as such contractual counterparty or professional
advisor to such contractual counterparty agrees to be bound by the provisions of
this Section 8.10).
103
SECTION 8.11. Execution in Counterparts. This Agreement may be executed in
-------------------------
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page to this Agreement by
telecopier shall be effective as delivery of a manually executed counterpart of
this Agreement.
SECTION 8.12. Governing Law, Jurisdiction, Etc.
---------------------------------
(a) This Agreement and the Notes shall be governed by, and construed
in accordance with, the laws of the State of New York (without reference to
conflict of laws provisions).
(b) Each of the parties hereto hereby irrevocably and unconditionally
submits, for itself and its property and assets, to the nonexclusive
jurisdiction of any New York State court or any federal court of the United
States of America sitting in New York City, New York, and any appellate
court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or any of the other Loan Documents to which it
is a party, or for recognition or enforcement of any judgment in respect
thereof, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in any such New York State court or,
to the fullest extent permitted under applicable law, in any such federal
court. Each of the parties hereto hereby irrevocably consents to the
service of copies of any summons and complaint and any other process which
may be served in any such action or proceeding by certified mail, return
receipt requested, or by delivering a copy of such process to such party,
at its address specified in Section 8.02, or by any other method permitted
under applicable law. Each of the parties hereto hereby agrees that a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other
manner provided by applicable law. Nothing in this Agreement shall affect
any right that any of the parties hereto may otherwise have to bring any
action or proceeding relating to this Agreement or any of the other Loan
Documents in the courts of any jurisdiction.
(c) Each of the parties hereto irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so, any objection
that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or any of
the other Loan Documents to which it is a party in any New York State or
federal court. Each of the parties hereto hereby irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum to
the maintenance of such action or proceeding in any such court.
SECTION 8.13. Designation as Designated Senior Debt. This Agreement, the
-------------------------------------
Subsidiary Guarantee, the Loan Documents and all monetary obligations hereunder
or thereunder are hereby expressly designated as "Designated Senior
Indebtedness" as that term (or any comparable term) is defined in the
Subordinated Notes Documents.
104
SECTION 8.14. WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE AGENTS AND
--------------------
THE LENDER PARTIES IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE)
ARISING OUT OF OR RELATING TO ANY OF THE LOAN DOCUMENTS, THE ADVANCES, THE
LETTERS OF CREDIT OR THE ACTIONS OF ANY AGENT OR ANY LENDER PARTY IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
DAVITA INC., as Borrower
By
-----------------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON, CAYMAN
ISLANDS BRANCH, as an Issuing Bank,
as Swing Line Bank, as an Initial
Lender, as a Book Manager and as
Administrative Agent
By
----------------------------------
Name:
Title:
By
----------------------------------
Name:
Title:
BANK OF AMERICA, N.A., as Syndication
Agent and an Initial Lender
By
----------------------------------
Name:
Title:
BANC OF AMERICA SECURITIES LLC, as a
Book Manager
By
----------------------------------
Name:
Title:
THE BANK OF NEW YORK, as a
Documentation Agent and an Initial
Lender
By
----------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA, as a
Documentation Agent and an Initial
Lender
By
---------------------------------
Name:
Title:
WACHOVIA BANK, NATIONAL ASSOCIATION,
as a Documentation Agent and an
Initial Lender
By
---------------------------------
Name:
Title:
CREDIT LYONNAIS NEW YORK BRANCH, as
an Initial Lender
By
--------------------------------
Name:
Title:
ABBEY NATIONAL TREASURY SERVICES
PLC (U.S. BRANCH)
By
-------------------------------
Name:
Title:
By
-------------------------------
Name:
Title:
SCHEDULE I
COMMITMENTS AND APPLICABLE LENDING OFFICES
=======================================================================================================================
Term A Term B Revolving Credit Swing Line Letter of Credit
Name of Initial Lender Party Commitment Commitment Commitment Commitment Commitment/1/
-----------------------------------------------------------------------------------------------------------------------
Credit Suisse First Boston, $33,962,264.15 $850,000,000.00 $26,037,735.85 $25,000,000.00 $38,548,000.00
Cayman Islands Branch
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇-▇▇▇▇
-----------------------------------------------------------------------------------------------------------------------
Bank of America, N.A. $33,962,264.15 $26,037,735.85 $11,452,000.00
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-----------------------------------------------------------------------------------------------------------------------
The Bank of New York $22,641,509.43 $17,358,490.57
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ $22,641,509.43 $17,358,490.57
Loan Accounting
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
=======================================================================================================================
===========================================================================================
Base Rate Eurodollar
Lending Lending
Name of Initial Lender Party Office Office
-------------------------------------------------------------------------------------------
Credit Suisse First Boston, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 11 Madison Avenue
Cayman Islands Branch New York, NY 10010-3629 ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Contact: ▇▇▇▇▇ ▇▇▇▇
New York, NY Phone: (▇▇▇) ▇▇▇-▇▇▇▇ Phone: (▇▇▇) ▇▇▇-▇▇▇▇
10010-3629 Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
-------------------------------------------------------------------------------------------
Bank of America, N.A. Independence Centre, 15th Fl. Independence Centre, 15th Fl.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ NC1-001-15-04 ▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇ Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
-------------------------------------------------------------------------------------------
The Bank of New York The Bank of New York The Bank of New York
One ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ One ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
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Contact: ▇▇▇▇ ▇▇▇▇▇▇▇ Contact: ▇▇▇▇ ▇▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇ Phone: (▇▇▇) ▇▇▇-▇▇▇▇
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▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ The Bank of Nova Scotia The Bank of Nova Scotia
Loan Accounting Loan Accounting Loan Accounting
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ One Liberty Plaza, 24th Floor ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Contact: ▇▇▇▇ ▇▇▇▇▇▇▇ Contact: ▇▇▇▇ ▇▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇ Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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/1/ Less the aggregate amount of Existing Letters of Credit pursuant to Section
2.01(e) in the amount of [$] as of the date hereof.
=======================================================================================================================
Term A Term B Revolving Credit Swing Line Letter of Credit
Name of Initial Lender Party Commitment Commitment Commitment Commitment Commitment/1/
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Wachovia Bank, $22,641,509.43 $17,358,490.57
National Association
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Credit Lyonnais $8,490,566.04 $6,509,433.96
New York Branch
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Abbey National Treasury $5,660,377.36 $4,339,622.64
Services plc (U.S. Branch)
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TOTAL: $150,000,000.00 $850,000,000.00 $115,000,000.00 $25,000,000.00 $50,000,000.00
========================================================================================
Name of Initial Lender Party Base Rate Eurodollar
Lending Lending
Office Office
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Wachovia Bank, Wachovia Bank, Wachovia Bank,
National Association National Association National Association
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▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ Charlotte, NC 28288-0760 ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Contact: ▇▇▇▇ ▇▇▇▇▇ Contact: ▇▇▇▇ ▇▇▇▇▇
Director Director
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Credit Lyonnais Credit Lyonnais Credit Lyonnais
New York Branch New York Branch New York Branch
1301 Avenue of the Americas 1301 Avenue of the Americas ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
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Loan Administrator Loan Administrator
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Email: gener.▇▇▇▇▇ Email: gener.▇▇▇▇▇
@▇▇▇▇▇▇▇▇▇▇.▇▇▇ @▇▇▇▇▇▇▇▇▇▇.▇▇▇
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Abbey National Treasury ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Services plc (U.S. Branch) ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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Email: hans.▇▇▇▇▇▇ Email: hans.▇▇▇▇▇▇
@▇▇▇▇▇▇.▇▇▇ @▇▇▇▇▇▇.▇▇▇
========================================================================================
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/1/ Less the aggregate amount of Existing Letters of Credit pursuant to Section
2.01(e) in the amount of [$] as of the date hereof.