EXHIBIT 10.3
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TERM LOAN AGREEMENT
by and among
TOTAL RENAL CARE HOLDINGS, INC.,
THE LENDERS PARTY HERETO,
DLJ CAPITAL FUNDING, INC.
as Syndication Agent,
and
THE BANK OF NEW YORK,
as Administrative Agent
with
BNY CAPITAL MARKETS, INC. AND ▇▇▇▇▇▇▇▇▇,
LUFKIN & ▇▇▇▇▇▇▇▇ SECURITIES CORPORATION,
as Co-Arrangers
________________
$250,000,000
________________
Dated as of October 24, 1997
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TABLE OF CONTENTS
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1. DEFINITIONS AND PRINCIPLES OF CONSTRUCTION............................... 1
1.1 Definitions.............................................................. 1
1.2 Principles of Construction............................................... 26
2. AMOUNT AND TERMS OF LOANS................................................ 27
2.1 Term Loans............................................................... 27
2.2 Term Loan Notes.......................................................... 27
2.3 Procedure for Borrowing.................................................. 27
2.4 Prepayments of the Term Loans............................................ 29
2.5 Conversions and Continuations............................................ 32
2.6 Interest Rate and Payment Dates.......................................... 34
2.7 Substituted Interest Rate................................................ 35
2.8 Taxes.................................................................... 36
2.9 Illegality............................................................... 38
2.10 Increased Costs.......................................................... 39
2.11 Indemnification for Loss................................................. 40
2.12 Option to Fund........................................................... 41
2.13 Use of Proceeds.......................................................... 41
2.14 Capital Adequacy......................................................... 41
2.15 Administrative Agent's Records........................................... 42
3. FEES; PAYMENTS........................................................... 42
3.1 Commitment Fee........................................................... 42
3.2 Pro Rata Treatment and Application of Principal Payments................. 42
3.3 Failure To Fund Fee...................................................... 43
4. REPRESENTATIONS AND WARRANTIES........................................... 43
4.1 Subsidiaries; Capitalization............................................. 43
4.2 Existence and Power...................................................... 44
4.3 Authority................................................................ 44
4.4 Binding Agreement........................................................ 44
4.5 Litigation............................................................... 44
4.6 Required Consents........................................................ 45
4.7 No Conflicting Agreements................................................ 45
4.8 Compliance with Applicable Laws.......................................... 45
4.9 Taxes.................................................................... 46
4.10 Governmental Regulations................................................. 46
4.11 Federal Reserve Regulations; Use of Loan Proceeds........................ 46
4.12 Plans.................................................................... 46
4.13 Financial Statements..................................................... 47
4.14 Property................................................................. 47
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4.15 Franchises, Intellectual Property, Etc................................... 48
4.16 Environmental Matters.................................................... 48
4.17 Labor Relations.......................................................... 49
4.18 Burdensome Obligations................................................... 49
4.19 Medicare Participation/Accreditation..................................... 49
4.20 Fraud and Abuse.......................................................... 50
4.21 No Misrepresentation..................................................... 50
5. CONDITIONS TO EFFECTIVENESS OF AGREEMENT................................. 50
5.1 Evidence of Action....................................................... 51
5.2 This Agreement........................................................... 51
5.3 Notes.................................................................... 51
5.4 Subsidiary Guaranty...................................................... 51
5.5 Borrower Pledge Agreement................................................ 52
5.6 Subsidiary Pledge Agreement.............................................. 52
5.7 Intercreditor Agreement.................................................. 52
5.8 Revolving Credit Facility................................................ 52
5.9 Litigation............................................................... 53
5.10 Existing Indebtedness.................................................... 53
5.11 Opinions of Counsel to the Credit Parties................................ 53
5.12 Opinion of Special Counsel............................................... 53
5.13 Fees..................................................................... 54
5.14 Fees and Expenses of Special Counsel..................................... 54
5.15 Documentation and Proceedings............................................ 54
5.16 Required Acts and Conditions............................................. 54
5.17 Officers' Certificate Regarding Certain Conditions....................... 54
5.18 Approval of Special Counsel.............................................. 55
5.19 Agent for Service of Process............................................. 55
5.20 Other Documents.......................................................... 55
6. CONDITIONS OF LENDING.................................................... 55
6.1 Compliance............................................................... 55
6.3 Borrowing Request........................................................ 56
6.9 No Injunction or Restraining Order....................................... 57
6.10 No Violation of Law...................................................... 57
6.11 No Adverse Litigation.................................................... 57
7. AFFIRMATIVE COVENANTS.................................................... 57
7.1 Financial Statements..................................................... 57
7.2 Certificates; Other Information.......................................... 58
7.3 Legal Existence.......................................................... 61
7.4 Taxes.................................................................... 61
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7.5 Insurance................................................................ 61
7.6 Payment of Indebtedness and Performance of Obligations................... 61
7.7 Condition of Property.................................................... 62
7.8 Observance of Legal Requirements......................................... 62
7.9 Inspection of Property; Books and Records; Discussions................... 62
7.10 Licenses, Intellectual Property.......................................... 62
7.11 Additional Guarantors; Additional Collateral............................. 63
8. NEGATIVE COVENANTS....................................................... 64
8.1 Incurrence of Indebtedness and Issuance of Disqualified Stock............ 64
8.2 Limitations on Liens..................................................... 66
8.3 Limitation on Merger, Consolidation and Certain Dispositions of Assets... 67
8.4 Limitations on Restricted Payments....................................... 68
8.5 Investments, Loans, Etc.................................................. 70
8.6 Business Change.......................................................... 72
8.7 Limitation on Asset Sales................................................ 72
8.8 Subsidiaries............................................................. 72
8.9 Certificate of Incorporation............................................. 72
8.10 ERISA.................................................................... 72
8.11 Acquisition or Issuance of Additional Stock.............................. 73
8.12 Dividend and Other Payment Restrictions Affecting Subsidiaries........... 73
8.13 Fiscal Year.............................................................. 74
8.14 Transactions with Affiliates............................................. 75
8.15 Limitation on Certain Amendments......................................... 75
9. DEFAULT.................................................................. 75
9.1 Events of Default........................................................ 75
10. THE AGENT................................................................ 79
10.1 Appointment.............................................................. 79
10.2 Delegation of Duties..................................................... 79
10.3 Exculpatory Provisions................................................... 80
10.4 Reliance by Administrative Agent......................................... 80
10.5 Notice of Default........................................................ 81
10.6 Non-Reliance on Administrative Agent and Other Lenders................... 81
10.7 Indemnification.......................................................... 82
10.8 Administrative Agent in Its Individual Capacity.......................... 82
10.9 Successor Administrative Agent........................................... 82
10.10 Appointment of Collateral Agent; Intercreditor Agreement; Collateral
Documents; Subsidiary Guaranty 83
10.11 The Co-Arrangers......................................................... 83
10.12 The Syndication Agent.................................................... 83
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11. OTHER PROVISIONS......................................................... 84
11.1 Amendments and Waivers................................................... 84
11.2 Notices.................................................................. 85
11.3 No Waiver; Cumulative Remedies........................................... 86
11.4 Survival of Representations and Warranties............................... 86
11.5 Payment of Expenses and Taxes............................................ 86
11.6 Lending Offices.......................................................... 87
11.7 Assignments and Participations........................................... 88
11.8 Counterparts............................................................. 90
11.9 Adjustments; Set-off..................................................... 90
11.10 Construction............................................................. 91
11.11 Indemnity................................................................ 91
11.12 GOVERNING LAW............................................................ 92
11.13 Headings Descriptive..................................................... 92
11.14 Severability............................................................. 92
11.15 Integration.............................................................. 92
11.16 Consent to Jurisdiction.................................................. 93
11.17 Service of Process....................................................... 93
11.18 No Limitation on Service or Suit......................................... 93
11.19 WAIVER OF TRIAL BY JURY.................................................. 93
EXHIBITS
Exhibit A - TERM LOAN COMMITMENTS; PRO RATA SHARES
Exhibit B - FORM OF TERM LOAN NOTES
Exhibit C - FORM OF BORROWING REQUEST
Exhibit D - FORM OF COMPLIANCE CERTIFICATE
Exhibit E - FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
Exhibit F-I - FORM OF OPINION OF GENERAL COUNSEL TO CREDIT PARTIES
Exhibit F-II - FORM OF OPINION OF SPECIAL COUNSEL TO CREDIT PARTIES
Exhibit G - FORM OF OPINION OF SPECIAL COUNSEL TO LENDERS
Exhibit H - FORM OF NOTICE OF CONVERSION/CONTINUATION
Exhibit I - FORM OF SUBSIDIARY GUARANTY
Exhibit J - FORM OF BORROWER PLEDGE AGREEMENT
Exhibit K - FORM OF SUBSIDIARY PLEDGE AGREEMENT
Exhibit L - FORM OF INTERCREDITOR AGREEMENT
Exhibit M - FORM OF FORM OF ACCEPTANCE BY AGENT FOR SERVICE OF PROCESS
SCHEDULES
Schedule 1.1(D) - DOMESTIC LENDING OFFICES; EURODOLLAR LENDING OFFICES
Schedule 1.1(E) - EXISTING LETTERS OF CREDIT
Schedule 1.1(P) - EXCLUDED PENSION PLANS
Schedule 4.1 - SUBSIDIARIES
Schedule 4.5 - LITIGATION
Schedule 4.9 - TAXES
Schedule 4.12 - EXISTING PENSION PLANS
Schedule 8.1 - CERTAIN EXISTING INDEBTEDNESS
Schedule 8.2 - EXISTING LIENS
Schedule 8.5 - EXISTING INVESTMENTS
TERM LOAN AGREEMENT
TERM LOAN AGREEMENT, dated as of October 24, 1997, by and among TOTAL RENAL
CARE HOLDINGS, INC., a Delaware corporation (the "Borrower"), the lenders party
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hereto and their respective successors and assigns, (the "Lenders", each a
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"Lender"), DLJ CAPITAL FUNDING, INC., as Syndication Agent (the "Syndication
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Agent"), and THE BANK OF NEW YORK, as administrative agent for the Lenders (in
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such capacity, the "Administrative Agent").
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1. DEFINITIONS AND PRINCIPLES OF CONSTRUCTION
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1.1 Definitions
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As used in this Agreement, terms defined in the preamble have the
meanings therein indicated, and the following terms have the following meanings:
"ABR Advances": the Term Loans (or any portions thereof) at such time
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as they (or such portions) are made and/or being maintained at a rate of
interest based upon the Alternate Base Rate.
"Accepting Lender" as defined in Section 2.4(d)(iii).
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"Accountants": Price Waterhouse LLP (or any successor thereto), or
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such other firm of certified public accountants of recognized national standing
selected by the Borrower.
"Accumulated Funding Deficiency": as defined in Section 302 of ERISA.
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"Acquisition": the acquisition by the Borrower or any Subsidiary of
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the Borrower of 50% or more of the capital Stock of or other equity interests in
another Person (such that, after giving effect thereto, such Person shall
qualify as a Subsidiary of the Borrower) or assets of another Person, which
Person is in an ESRD-Related Business or which assets have been and are to be
used in an ESRD-Related Business.
"Acquisition Debt": with respect to any specified Person, Indebtedness
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of any other Person (the "Acquired Person") existing at the time the Acquired
Person merges with or into, or becomes a Subsidiary of, such specified Person
and Indebtedness of such specified Person or such Acquired Person incurred in
connection with, or in contemplation of, the Acquired Person merging with or
into, or becoming a Subsidiary of, such specified Person.
"Additional Guarantor Event": any time when (i) any Person that is not
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a Guarantor becomes a First-Tier wholly-owned Domestic Subsidiary of the
Borrower after the Effective Date, or (ii) (x) the aggregate total assets
(without duplication) at such time of all Subsidiaries of the Borrower formed or
acquired after the Effective Date that are not Guarantors, plus (y) the
aggregate total Investments made during the period from the Effective Date to
such time
(calculated without duplication and excluding Investments made pursuant to
Section 8.5(g) to the extent the proceeds thereof were used to acquire Stock or
assets included in (x) above) by the Credit 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 the Effective Date that
became Guarantors after the Effective Date, exceeds 10% of the Consolidated
total assets of the Borrower and its Subsidiaries at such time.
"Advance": an ABR Advance or a Eurodollar Advance, as the case may be.
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"Affected Advance": as defined in Section 2.11.
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"Affected Principal Amount": in the event that (i) the Borrower shall
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fail for any reason to borrow, convert or continue after it shall have notified
the Administrative Agent of its intent to do so in any instance in which it
shall have requested a Eurodollar Advance, an amount equal to the principal
amount of such Eurodollar Advance; (ii) a Eurodollar Advance shall terminate for
any reason prior to the last day of the Interest Period applicable thereto, an
amount equal to the principal amount of such Eurodollar Advance; and (iii) the
Borrower shall prepay or repay all or any part of the principal amount of a
Eurodollar Advance prior to the last day of the Interest Period applicable
thereto, an amount equal to the principal amount of such Eurodollar Advance so
prepaid or repaid.
"Affiliate": as to any Person, any other Person that, directly or
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indirectly, is in control of, is controlled by, or is under common control with,
such Person. For purposes of this definition, control of a Person shall mean
the power, direct or indirect, (i) to vote 20% or more of the securities or
other interests having ordinary voting power for the election of directors or
other managing Persons thereof or (ii) to direct or cause the direction of the
management and policies of such Person, whether by contract or otherwise.
"Aggregate Credit Exposure": at any time, the Credit Exposures of all
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Lenders at such time.
"Aggregate Term Loan Commitments": on any date, the sum of the Term
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Loan Commitments of all Lenders on such date.
"Agreement": this Term Loan Agreement, as the same may be further
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amended, supplemented or otherwise modified from time to time.
"Alternate Base Rate": on any date, a rate of interest per annum equal
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to the higher of (i) the Federal Funds Rate in effect on such date plus 1/2 of
1% or (ii) the BNY Rate in effect on such date.
"Ancillary Services": services relating to the needs of patients with
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"End Stage Renal Disease" and ancillary to the provision of Dialysis Services,
including, but not limited to, the administration of erythropoietin,
intradialytic parenteral nutrition, bone densimetry studies, EKGs, nerve
conduction studies, Doppler Flow Testing, blood transfusions, pharmacy and
laboratory services, technical services with respect to equipment used in
connection with the provision of Dialysis Services and management services with
respect to the provision of Dialysis Services.
"Applicable Lending Office": in respect of any Lender, (i) in the case
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of such Lender's ABR Advances, its Domestic Lending Office, and (ii) in the case
of such Lender's Eurodollar Advances, its Eurodollar Lending Office.
"Applicable Margin": at all times, with respect to the unpaid
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principal amount of Eurodollar Advances and ABR Advances, and based on the most
recently delivered Compliance Certificate of the Borrower, the percentage set
forth below under the heading "Applicable Margin for Eurodollar Advances" or
"Applicable Margin for ABR Advances", as applicable, next to the applicable
period:
Applicable Margin Applicable
for Eurodollar Margin for ABR
Period Advances Advances
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When the Leverage Ratio
is equal to or greater
than 3.75:1.00 2.00% 0.75%
When the Leverage Ratio
is less than 3.75:1.00
but equal to or greater
than 3.00:1.00 1.75% 0.50%
When the Leverage Ratio
is less than 3.00:1.00
1.50% 0.25%
(b) Changes in the Applicable Margin resulting from a change in the
Leverage Ratio, as evidenced by a Compliance Certificate delivered to the
Administrative Agent pursuant to Section 7.1(c) evidencing such a change, shall
become effective upon delivery of such Compliance Certificate. If the Borrower
shall fail to deliver a Compliance Certificate in accordance with Section 7.1(c)
(each a "certificate delivery date"), for purposes of calculating the Applicable
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Margin, the Leverage Ratio from and including such certificate delivery date to
the date of delivery by the Borrower to the Administrative Agent of such
Compliance Certificate shall be conclusively presumed to be greater than
4.00:1.0.
(c) Notwithstanding the foregoing, until the Compliance Certificate for
the fiscal year ending December 31, 1997 shall have been delivered to the
Administrative Agent, the Applicable Margin for Eurodollar Advances shall be
1.75% and the Applicable Margin for ABR Advances
shall be 0.50% and any change in the Applicable Margin resulting from a change
in the Leverage Ratio, as evidenced by such Compliance Certificate, shall become
effective upon delivery of such Compliance Certificate.
"Approved Fund": with respect to any Lender that is a fund that
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invests in commercial loans, any other fund that invests in commercial loans and
is advised or managed by the same investment advisor as such Lender or by an
Affiliate of such investment advisor.
"Asset Sale": any direct or indirect sale, issuance, conveyance,
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transfer, lease (other than operating leases entered into in the ordinary course
of business), assignment or other transfer for value by the Borrower or any of
its Subsidiaries (including any sale and leaseback transaction) to any Person
other than the Borrower or a wholly owned Subsidiary of the Borrower of (a) any
capital Stock of any Subsidiary of the Borrower; or (b) any other Property or
assets of the Borrower or any Subsidiary of the Borrower other than in the
ordinary course of business; provided, however, that Asset Sales shall not
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include (i) a transaction or series of related transactions for which the
Borrower or its Subsidiaries receive aggregate consideration of less than
$1,000,000, (ii) any transfer of property or assets in connection with a
dividend to holders of capital Stock if such payment is permitted by Section
8.4, (iii) the granting of Permitted Liens, or (iv) the sale, lease, conveyance,
disposition or other transfer (w) of all or substantially all of the assets of
the Borrower as permitted under Section 8.3, (x) pursuant to any foreclosure of
assets or other remedy provided by applicable law to a creditor of the Borrower
or any Subsidiary of the Borrower with a Lien on such assets, which Lien is a
Permitted Lien; provided that such foreclosure or other remedy is conducted in a
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commercially reasonable manner or in accordance with any bankruptcy law, (y)
involving only Cash Equivalents or inventory in the ordinary course of business
or obsolete equipment in the ordinary course of business consistent with past
practices of the Borrower or (z) involving only the lease or sublease of any
real or personal property in the ordinary course of business.
"Assignment and Acceptance Agreement": an assignment and acceptance
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agreement executed by an assignor and an assignee pursuant to which the assignor
assigns to the assignee all or any portion of such assignor's Notes and
Commitment, substantially in the form of Exhibit E.
"Assignment Fee": as defined in Section 11.7(b).
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"Authorized Signatory": as to (i) any Person that is a corporation,
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the chairman of the board, the president, any vice president, the chief
financial officer or any other duly authorized officer (acceptable to the
Administrative Agent) of such Person and (ii) any Person that is not a
corporation, the general partner or other managing Person thereof.
"Benefited Lender": as defined in Section 11.9.
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"BNY": The Bank of New York.
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"BNY Rate": a rate of interest per annum equal to the rate of interest
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publicly announced in New York City by BNY from time to time as its prime
commercial lending rate, such rate to be adjusted automatically (without notice)
on the effective date of any change in such publicly announced rate.
"Borrower Pledge Agreement": the Borrower Pledge Agreement, dated the
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date hereof, by and between the Borrower and the Collateral Agent, substantially
in the form of Exhibit J, as the same may be amended, supplemented or otherwise
modified from time to time.
"Borrowing Date": any Business Day specified in a Borrowing Request as
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a date on which the Borrower requests the Lenders to make Term Loans.
"Borrowing Request": a request for Term Loans in the form of Exhibit
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C.
"Business Day":
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(i) for all purposes (other than as covered by clause (ii) below), any day
except Saturday, Sunday or a day which in New York City is a legal holiday or a
day on which banking institutions are authorized or required by law or other
government action to close, and
(ii) with respect to all notices and determinations in connection with, and
payments of principal and interest on a Eurodollar Advance, any day which is a
Business Day described in clause (i) above and is a day for trading by and
between banks in the London interbank market.
"Capital Lease Obligations": with respect to any Person, obligations
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of such Person with respect to leases that, in accordance with GAAP, are
required to be capitalized on the financial statements of such Person.
"Cash Equivalents": (a) securities with maturities of one year or less
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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 Standard & Poor's Ratings Services or Aa3 by ▇▇▇▇▇'▇ Investors Service, Inc.,
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 Standard & Poor's Ratings Services or
P-2 by ▇▇▇▇▇'▇ Investors Service, Inc., 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 by either Standard & Poor's Ratings Services or ▇▇▇▇▇'▇ Investors
Service, Inc., or carrying an equivalent rating by a nationally recognized
rating agency if both of the two named rating agencies cease publishing ratings
of investments.
"Change of Control": any of the following:
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(i) the acquisition, directly or indirectly, by any Person or group (as
such term is used in Section 13(d)(3) of the Exchange Act) of 33% (40% in the
case of the Original Principal Stockholders and the Related Parties,
collectively) or more of the voting power of the Stock of the Borrower by way of
merger, consolidation or otherwise; or
(ii) the Continuing Directors cease for any reason to constitute a
majority of the directors of the Borrower then in office.
"Co-Arrangers": BNY Capital Markets, Inc. and ▇▇▇▇▇▇▇▇▇, Lufkin &
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▇▇▇▇▇▇▇▇ Securities Corporation.
"Code": the Internal Revenue Code of 1986, as the same may be amended
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from time to time, or any successor thereto, and the rules and regulations
issued thereunder, as from time to time in effect.
"Collateral": collectively, the Collateral under and as defined in the
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Collateral Documents.
"Collateral Agent": BNY acting in its capacity as Collateral Agent
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under the Intercreditor Agreement, the Collateral Documents, and the Subsidiary
Guaranty, and its successors in such capacity.
"Collateral Documents": collectively, the Borrower Pledge Agreement,
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each Subsidiary Pledge Agreement, and all other instruments or documents
delivered by any Credit Party in order to grant to Collateral Agent Liens on any
Collateral.
"Commitment": a Term Loan Commitment.
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"Commitment Fee": as defined in Section 3.1.
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"Compensatory Interest Payment": as defined in Section 2.6(c).
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"Compliance Certificate": a certificate substantially in the form of
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Exhibit D.
"Consolidated": when applied to an accounting term used with respect
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to more than one Person, such accounting term determined on a consolidated basis
for such Persons in accordance with GAAP, including principles of consolidation
under GAAP.
"Consolidated EBITDA": EBITDA of the Borrower and its Subsidiaries on
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a Consolidated basis determined in accordance with GAAP.
"Consolidated Net Income": with respect to any period, the aggregate
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of the Net Income of the Borrower and its Subsidiaries for such period,
determined on a Consolidated basis in accordance with GAAP; provided that (i)
the Net Income of any Subsidiary that is accounted for by the equity method of
accounting shall be included only to the extent of the amount of dividends or
distributions paid to the Borrower or any of its wholly owned Subsidiaries, (ii)
the Net Income of any Subsidiary acquired directly or indirectly by the Borrower
in a pooling of interests transaction for any period prior to the date of such
acquisition shall be excluded, (iii) the cumulative effect of a change in
accounting principles shall be excluded and (iv) the Net Income (if positive) of
any Subsidiary shall be excluded to the extent that the declaration or payment
of dividends or similar distributions or intercompany loans or advances by that
Subsidiary to the Borrower of such Net Income is not at the time permitted by
operation of the terms of its charter or any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation applicable to that
Subsidiary.
"Consolidated Pre-Minority EBITDA": 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.
"Contingent Obligation": as to any Person (the "secondary obligor"),
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any obligation of such secondary obligor (i) guaranteeing or in effect
guaranteeing any return on any Investment made in another Person, or (ii)
guaranteeing or in effect guaranteeing any Indebtedness, lease, dividend or
other obligation ("primary obligation") of any other Person (the "primary
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obligor") in any manner, whether directly or indirectly, including, without
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limitation, any obligation of such secondary obligor, whether contingent, (A) to
purchase any such primary obligation or any Property constituting direct or
indirect security therefor, (B) to advance or supply funds (x) for the purchase
or payment of any such primary obligation or (y) to maintain working capital or
equity capital of the primary obligor or otherwise to maintain the net worth or
solvency of the primary obligor, (C) to purchase Property, securities or
services primarily for the purpose of assuring the beneficiary of any such
primary obligation of the ability of the primary obligor to make payment of such
primary obligation, (D) otherwise to assure or hold harmless the beneficiary of
such primary obligation against loss in respect thereof, and (E) in respect of
the liabilities of any partnership in which such secondary obligor is a general
partner, except to the extent that such liabilities of such partnership are
nonrecourse to such secondary obligor and its separate Property, provided,
however, that the term "Contingent Obligation" shall not include the indorsement
of instruments for deposit or collection in the ordinary course of business.
The amount of any Contingent Obligation of a Person 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 not stated or
determinable, the maximum reasonably anticipated liability in respect thereof as
determined by such Person in good faith.
"Continuing Director": means any member of the Board of Directors of
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the Borrower who (i) is a member of that Board of Directors on the Effective
Date or (ii) has been nominated for election by the Board of Directors a
majority of whom were directors at the Effective Date or whose election or
nomination for election has been previously approved by a majority of such
directors.
"Conversion/Continuation Date": the date on which (i) a Eurodollar
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Advance is converted to an ABR Advance, (ii) an ABR Advance is converted to a
Eurodollar Advance or (iii) a Eurodollar Advance is continued as a new
Eurodollar Advance.
"Credit Exposure": with respect to any Lender as at any time, (i)
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prior to the funding of the Term Loans, that Lender's Term Loan Commitment and
(ii) after the funding of the Term Loans, the outstanding principal balance of
such Lender's Term Loans.
"Credit Party": the Borrower, each Guarantor, and each Pledgor.
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"Currency Agreement": any foreign exchange contract, currency swap
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agreement, futures contract, option contract, synthetic cap or other similar
agreement or arrangement to which the Borrower or any of its Subsidiaries is a
party.
"Default": any event or condition that constitutes an Event of Default
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or that, with the giving of notice, the lapse of time, or any other condition,
would, unless cured or waived, become an Event of Default.
"Dialysis Services": hemodialysis services and peritoneal dialysis
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services, hemoperfusion, plasmapheresis, continuous arteriovenous hemofiltration
and bio-medical services related to the foregoing.
"Disqualified Stock": any capital Stock that, by its terms (or by the
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terms of any security into which it is convertible or for which it is
exchangeable, in either case at the option of the holder of such capital Stock),
or upon the happening of any event, matures or is mandatorily redeemable,
pursuant to a sinking fund obligation or otherwise, or is redeemable at the
option of the holder thereof (other than upon a change of control of the
Borrower in circumstances where the holders of the Term Loans would have similar
rights), in whole or in part, on or prior to September 30, 2007.
"Dollars" and "$": lawful currency of the United States of America.
------- -
"Domestic Lending Office": in respect of any Lender, initially, the
-----------------------
office or offices of such Lender designated as such on Schedule 1.1(D);
thereafter, such other office of such Lender through which it shall be making or
maintaining ABR Advances, as reported by such Lender to the Administrative Agent
and the Borrower.
"Domestic Subsidiary": any Subsidiary of the Borrower that is not a
-------------------
Foreign Subsidiary.
"EBITDA": for any period, for any Person, net income of such Person
------
for such period, determined in accordance with GAAP, plus the sum of, without
duplication, (i) Interest Expense of such Person, (ii) provision for income
taxes of such Person and (iii) depreciation, amortization and all other non-cash
charges (except minority interests in income of consolidated Subsidiaries) of
such Person, each to the extent deducted in determining net income of such
Person for such period. EBITDA shall be calculated without taking into account
(x) extraordinary gains and losses and (y) gains and losses on the sale,
transfer or other disposition of assets (other than inventory and cash
management investments sold in the ordinary course of business) ((x) and (y),
collectively, the "Gains and Losses"), provided that this sentence shall not be
applicable with respect to any fiscal quarter if the net aggregate amount of
Gains and Losses for such fiscal quarter is between ($100,000) and $100,000.
"Effective Date": the date that the Administrative Agent shall have
--------------
received executed counterparts hereof from all parties hereto and the conditions
set forth in Section 5 have been or simultaneously will be satisfied, provided
--------
that this Agreement shall not become effective or be binding on any party hereto
unless all such conditions are satisfied not later than October 31, 1997.
"Employee Benefit Plan": an employee benefit plan within the meaning
---------------------
of Section 3(3) of ERISA maintained, sponsored or contributed to by the
Borrower, any of its Subsidiaries or any ERISA Affiliate.
"Environmental Laws": any and all federal, state and local laws
------------------
relating to the environment, the use, storage, transporting, manufacturing,
handling, discharge, release, disposal or recycling of hazardous substances,
materials or pollutants or industrial hygiene, and including, without
limitation, (i) the Comprehensive Environmental Response, Compensation and
Liability Act, as amended, 42 USCA (S)9601 et seq.; (ii) the Resource
-- ---
Conservation and Recovery Act of 1976, as amended, 42 ▇▇▇▇ (▇)▇▇▇▇ et seq.;
-- ---
(iii) the Toxic Substance Control Act, as amended, 15 USCA (S)2601 et seq.; (iv)
-- ---
the Water Pollution Control Act, as amended, 33 USCA (S)1251 et seq.; (v) the
-- ---
Clean Air Act, as amended, 42 USCA (S)7401 et seq.; (vi) the Hazardous Materials
-- ---
Transportation Authorization Act of 1994, 49 U.S.C. 5101 et seq. and (vii) all
-- ---
rules, regulations, judgments, decrees, injunctions and restrictions thereunder
and any analogous state law.
"Equity Interests": capital Stock and all warrants, options or other
----------------
rights to acquire capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, capital Stock).
"ERISA": the Employee Retirement Income Security Act of 1974, as
-----
amended from time to time, and the rules and regulations issued thereunder, as
from time to time in effect.
"ERISA Affiliate": when used with respect to an Employee Benefit Plan,
---------------
ERISA, the PBGC or a provision of the Code pertaining to employee benefit plans,
any Person that is a member of
any group of organizations within the meaning of Sections 414(b), (c), (m) or
(o) of the Code of which the Borrower or any of its Subsidiaries is a member.
"ESRD-Related Business": the business of providing Dialysis Services
---------------------
and/or Ancillary Services.
"Eurodollar Advances": collectively, the Term Loans (or any portions
-------------------
thereof) at such time as they (or such portions) are made and/or being
maintained at a rate of interest based upon the Eurodollar Rate.
"Eurodollar Lending Office": in respect of any Lender, initially, the
-------------------------
office, branch or affiliate of such Lender designated as such on Schedule
1.1(D) (or, if no such office branch or affiliate is specified, its Domestic
Lending Office); thereafter, such other office, branch or affiliate of such
Lender through which it shall be making or maintaining Eurodollar Advances, as
reported by such Lender to the Administrative Agent and the Borrower.
"Eurodollar Rate": with respect to the Interest Period applicable to
---------------
any Eurodollar Advance, a rate of interest per annum, as determined by the
Administrative Agent, obtained by dividing (and then rounding to the nearest
1/16 of 1% or, if there is no nearest 1/16 of 1%, then to the next higher 1/16
of 1%):
(a) the rate, as reported by BNY to the Administrative Agent, quoted
by BNY to leading banks in the interbank eurodollar market as the rate at which
BNY is offering Dollar deposits in an amount equal approximately to the
Eurodollar Advance of BNY to which such Interest Period shall apply for a period
equal to such Interest Period, as quoted at approximately 11:00 A.M. two
Business Days prior to the first day of such Interest Period, by
(b) a number equal to 1.00 minus the aggregate of the then stated
maximum rates during such Interest Period of all reserve requirements
(including, without limitation, marginal, emergency, supplemental and special
reserves), expressed as a decimal, established by the Board of Governors of the
Federal Reserve System and any other banking authority to which BNY and other
major United States money center banks are subject, in respect of eurocurrency
funding (currently referred to as "Eurocurrency liabilities" in Regulation D of
the Board of Governors of the Federal Reserve System) or in respect of any other
category of liabilities including deposits by reference to which the interest
rate on Eurodollar Advances is determined or any category of extensions of
credit or other assets that includes loans by non-domestic offices of any Lender
to United States residents. Such reserve requirements shall include, without
limitation, those imposed under such Regulation D. Eurodollar Advances shall
be deemed to constitute Eurocurrency liabilities and as such shall be deemed to
be subject to such reserve requirements without benefit of credits for
proration, exceptions or offsets that may be available from time to time to any
Lender under such Regulation D. The Eurodollar Rate shall be adjusted
automatically on and as of the effective date of any change in any such reserve
requirement.
"Event of Default": any of the events specified in Section 9.1,
----------------
provided that any requirement for the giving of notice, the lapse of time, or
--------
any other condition has been satisfied.
"Exchange Act": the Securities Exchange Act of 1934, as amended, and
------------
the rules and regulations promulgated thereunder.
"Excluded Contingent Obligations": all Contingent Obligations of the
-------------------------------
Borrower and its Subsidiaries on a Consolidated basis in accordance with GAAP
that are not in respect of Indebtedness described in items (i), (ii), (iii),
(iv)(B), (v) or (vi) of the definition of Indebtedness.
"Existing Letters of Credit": the letters of credit set forth on
--------------------------
Schedule 1.1(E).
"Existing Pension Plans": as defined in Section 4.12.
----------------------
"Existing Indebtedness": collectively, the Indebtedness of the
---------------------
Borrower and its Subsidiaries (i) under the Credit Agreement, dated as of
October 11, 1996, by and among the Borrower, the lenders party thereto, BNY
Capital Markets, Inc. and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation, as
arrangers, DLJ Capital Funding, Inc., as documentation agent, and BNY, as
administrative agent, as amended and (ii) under the other Loan Documents (as
defined in such Credit Agreement), including, without limitation, in each case,
all outstanding principal, unpaid and accrued interest, unpaid and accrued fees
and other unpaid sums thereunder, but excluding the Existing Letters of Credit.
"Federal Funds Rate": for any day, a rate per annum (expressed as a
------------------
decimal, rounded upwards, if necessary, to the next higher 1/100 of 1%), equal
to the weighted average of the rates on overnight federal funds transactions
with members of the Federal Reserve System arranged by federal funds brokers on
such day, as published by the Federal Reserve Bank of New York on the Business
Day next succeeding such day, provided that (i) if the day for which such rate
is to be determined is not a Business Day, the Federal Funds Rate for such day
shall be such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day, and (ii) if such rate is not so
published for any day, the Federal Funds Rate for such day shall be the average
of the quotations for such day on such transactions received by BNY as
determined by BNY and reported to the Administrative Agent.
"Financial Statements": as defined in Section 4.13.
--------------------
"First-Tier": with respect to any Subsidiary of the Borrower, the
----------
direct ownership by the Borrower of such Subsidiary's capital Stock.
"Fixed Charges": with respect to any Person for any period, the sum of
-------------
(a) Interest Expense of such Person and its Subsidiaries for such period,
whether paid or accrued, to the extent such expense was deducted in computing
Net Income of such Person (including amortization of original issue discount,
non-cash interest payments and the interest component of capital leases
but excluding amortization of deferred financing fees) and (b) the product of
(i) all cash dividend payments (and non-cash dividend payments in the case of a
Person that is a Subsidiary) on any series of Preferred stock of such Person,
times (ii) a fraction, the numerator of which is one and the denominator of
which is one minus the then current combined federal, state and local statutory
tax rate of such Person, expressed as a decimal, in each case, on a Consolidated
basis and in accordance with GAAP.
"Foreign Subsidiary": any Subsidiary of the Borrower which is a
------------------
"controlled foreign corporation" within the meaning of Section 957 of the Code.
"Funded Current Liability Percentage": as defined in Section
-----------------------------------
401(a)(29) of the Code.
"Funding Date" means the date the Term Loans are made.
------------
"GAAP": generally accepted accounting principles set forth in the
----
opinions and pronouncements of the Accounting Principles Board and the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or such other principles as may be
approved by a significant segment of the accounting profession, that are
applicable to the circumstances as of the date of determination, consistently
applied. If at any time any change in GAAP would affect the computation of any
financial ratio or requirement set forth in this Agreement, and either the
Borrower or the Required Lenders shall so request, the Administrative Agent, the
Lenders and the Borrower shall negotiate in good faith to amend such ratio or
requirement to reflect such change in GAAP (subject to the approval of the
Required Lenders), provided that, until so amended, (i) such ratio or
requirement shall continue to be computed in accordance with GAAP prior to such
change therein and (ii) the Borrower shall provide to the Administrative Agent
and the Lenders financial statements and other documents required under this
Agreement or as reasonably requested hereunder setting forth a reconciliation
between calculations of such ratio or requirement made before and after giving
effect to such change in GAAP.
"Governmental Authority": any nation or government, any state or other
----------------------
political subdivision thereof, any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government
and any court or arbitrator.
"Guarantee": a guarantee (other than by endorsement of negotiable
---------
instruments for collection in the ordinary course of business), direct or
indirect, in any manner (including, without limitation, letters of credit and
reimbursement agreements in respect thereof), of all or any part of any
Indebtedness.
"Guarantors": collectively, (i) TRC, TRC West, Inc. and Total Renal
----------
Care Acquisition Corp., (ii) any other First-Tier wholly-owned Domestic
Subsidiary of the Borrower as of the Effective Date, and (iii) any other
Subsidiary of the Borrower that becomes a party to the Subsidiary Guaranty
pursuant to Section 7.11; each a "Guarantor".
"Hazardous Substance": any hazardous or toxic substance, material or
-------------------
waste, including, but not limited to, (i) those substances, materials, and
wastes listed in the United States Department of Transportation Hazardous
Materials Table (49 CFR 172.101) or by the Environmental Protection Agency as
hazardous substances (40 CFR Part 302) and amendments thereto and replacements
therefor and (ii) any substance, pollutant or material defined as, or designated
in, any Environmental Law as a "hazardous substance," "toxic substance,"
"hazardous material," "hazardous waste," "restricted hazardous waste,"
"pollutant," "toxic pollutant" or words of similar import.
"Hedging Obligations": with respect to any Person, the obligations of
-------------------
such Person under Interest Rate Agreements or Currency Agreements designed to
protect such Person against fluctuations in interest or currency exchange rates.
"Highest Lawful Rate": with respect to any Lender, the maximum rate of
-------------------
interest, if any, that at any time or from time to time may be contracted for,
taken, charged or received by such Lender on its Loans or that may be owing to
such Lender pursuant to this Agreement under the laws applicable to such Lender
and this Agreement.
"Immediate Family Member": with respect to any individual, such
-----------------------
individual's spouse (past or current), descendants (natural or adoptive, of the
whole or half blood) of the parents of such individual, such individual's
grandparents and parents (natural or adoptive), and the grandparents, parents
and descendants of parents (natural or adoptive, of the whole or half blood) of
such individual's spouse (past or current).
"Indebtedness": as to any Person, at a particular time, all items that
------------
constitute, without duplication, (i) indebtedness for borrowed money or the
deferred purchase price of Property (other than trade payables incurred in the
ordinary course of business), (ii) indebtedness evidenced by notes, bonds,
debentures or similar instruments, (iii) obligations with respect to any
conditional sale or title retention agreement, (iv) indebtedness arising under
(A) acceptance facilities and the amount available to be drawn under all letters
of credit issued for the account of such Person, and (B) without duplication,
all drafts drawn thereunder to the extent such Person shall not have reimbursed
the issuer in respect of the issuer's payment of such drafts, (v) all
liabilities secured by any Lien on any Property owned by such Person even though
such Person has not assumed or otherwise become liable for the payment thereof
(other than carriers', warehousemen's, mechanics', repairmen's or other like
non-consensual statutory Liens arising in the ordinary course of business), (vi)
the principal portion of obligations under Capital Lease Obligations and (vii)
Contingent Obligations.
"Indemnified Person": as defined in Section 11.11.
------------------
"Indemnified Tax": as to any Person, any Tax, except (i) a Tax on the
---------------
Income imposed on such Person and (ii) any interest, fees or penalties for late
payment imposed on such Person, in each case to the extent not attributable to
the failure of the Borrower or any of its Subsidiaries to obtain any necessary
approvals or consents of, or file or cause to be filed any reports,
applications, documents, instruments or information required to be filed
pursuant to any applicable law, rule, regulation or request of, any Governmental
Authority.
"Indemnified Tax Person": the Administrative Agent, the Collateral
----------------------
Agent, the Syndication Agent, a Co-Arranger, or any Lender, as the case may be.
"Intellectual Property": all copyrights, trademarks, servicemarks,
---------------------
patents, trade names and service names.
"Intercreditor Agreement": the Intercreditor and Collateral Agency
-----------------------
Agreement, dated the date hereof, among the Collateral Agent, the Administrative
Agent, BNY, as the administrative agent under the Revolving Credit Facility, the
Credit Parties listed on the signature pages thereof and such other Persons that
may become party thereto, substantially in the form of Exhibit L, as amended,
supplemented or otherwise modified from time to time.
"Interest Expense": for any Person, with respect to any period,
----------------
without duplication, the sum of all interest, including (whether in the form of
cash or Property) whether paid or required to be accrued (including, without
limitation, paid-in-kind or PIK interest) in respect of all Indebtedness of such
Person for such period determined in accordance with GAAP less capitalized
financing costs, each to the extent included in Interest Expense of such Person
for such period.
"Interest Payment Date": (i) as to any ABR Advance, the last day of
---------------------
each March, June, September and December commencing on the first of such days to
occur after such ABR Advance is made or any Eurodollar Advance is converted to
an ABR Advance, (ii) as to any Eurodollar Advance in respect of which the
Borrower has selected an Interest Period of one, two or three months, the last
day of such Interest Period, and (iii) as to any Eurodollar Advance in respect
of which the Borrower has selected an Interest Period of six months, the day
that is three months after the first day of such Interest Period and the last
day of such Interest Period.
"Interest Period": with respect to any Eurodollar Advance requested by
---------------
the Borrower, the period commencing on, as the case may be, the Borrowing Date
or Conversion/Continuation Date with respect to such Advance and ending one,
two, three or six months thereafter, as selected by the Borrower in its
irrevocable Borrowing Request or its irrevocable Notice of
Conversion/Continuation, provided, however, that (i) if any Interest Period
would otherwise end on a day that is not a Business Day, such Interest Period
shall be extended to the next succeeding Business Day unless the result of such
extension would be to carry such Interest Period into another calendar month, in
which event such Interest Period shall end on the immediately preceding Business
Day, (ii) any Interest Period that begins on the last Business Day of a calendar
month (or on a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall end on the last
Business Day of a calendar month, and (iii) the Borrower shall select Interest
Periods so as not to have more than ten different Interest Periods outstanding
at any one time for all Term Loans.
"Interest Rate Agreement": any interest rate swap agreement, interest
-----------------------
rate cap agreement, interest rate collar agreement or other similar agreement or
arrangement to which the Borrower or any of its Subsidiaries is a party.
"Investments": with respect to any Person, all investments by such
-----------
Person in other Persons (including Affiliates of such Person) in the form of
loans, Contingent Obligations, advances or capital contributions (excluding
commission, travel and similar advances to officers and employees made in the
ordinary course of business), purchases or other acquisitions for consideration
of Indebtedness, Equity Interests or other securities and all other items that
are or would be classified as investments on a balance sheet prepared in
accordance with GAAP. The amount of any Investment shall be the original cost
of such Investment plus the cost of all additions thereto, without any
----
adjustments for increases or decreases in value, or write-ups, write-downs or
write-offs with respect to such Investment.
"Leverage Ratio": at any date of determination, the ratio of (i) Total
--------------
Debt to (ii) Consolidated Pre-Minority EBITDA for the fiscal quarter period of
the Borrower ending on the date of determination multiplied by four.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit or
----
preferential arrangement, encumbrance, lien (statutory or other), or other
security agreement or security interest of any kind or nature whatsoever,
including, without limitation, any conditional sale or other title retention
agreement and any capital or financing lease having substantially the same
economic effect as any of the foregoing.
"Loan Documents": collectively, this Agreement, the Notes, the
--------------
Collateral Documents, the Subsidiary Guaranty and the Intercreditor Agreement.
"Loan": a Term Loan.
----
"Loans": the Term Loans.
-----
"Margin Stock": any "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": a material adverse change in (i) the
-----------------------
financial condition, operations, business, prospects or Property of the Borrower
and its Subsidiaries taken as a whole, (ii) the ability of any Credit Party to
perform its obligations under the Loan Documents to which it is a
party or (iii) the ability of the Administrative Agent, the Collateral Agent or
the Lenders to enforce the Loan Documents.
"Material Adverse Effect": a material adverse effect on (i) the
-----------------------
financial condition, operations, business, prospects or Property of the Borrower
and its Subsidiaries taken as a whole, (ii) the ability of any Credit Party to
perform its obligations under the Loan Documents to which it is a party or (iii)
the ability of the Administrative Agent, the Collateral Agent or the Lenders to
enforce the Loan Documents.
"Material Subsidiary": as of any date of determination, (i) any
-------------------
Subsidiary of the Borrower that has aggregate total assets in an amount in
excess of 10% of the Consolidated total assets of the Borrower and its
Subsidiaries at such date of determination and (ii) any Subsidiary of the
Borrower for which the net income of such Subsidiary and its Subsidiaries,
determined on a Consolidated basis in accordance with GAAP, during the four
fiscal quarters most recently ended preceding the date of determination,
exceeded 10% of the Net Income of the Borrower and its Subsidiaries during such
period.
"Maturity Date": September 30, 2007, or such earlier date on which the
-------------
Notes shall become due and payable, whether by acceleration or otherwise.
"Minority Investment": as defined in Section 8.5(h).
-------------------
"Multiemployer Plan": a Pension Plan that is a multiemployer plan as
------------------
defined in Section 4001(a)(3) of ERISA.
"Net Cash Proceeds": with respect to any Asset Sale by any Person, the
-----------------
excess, if any, of (i) the cash received by such Person and/or its Affiliates
(including any cash payments received by way of deferred payment pursuant to, or
monetization of, a note or installment receivable or otherwise, but only as and
when received) in connection with such Asset Sale, over (ii) the sum of (A) the
amount of any Indebtedness (other than Indebtedness under this Agreement or the
Revolving Credit Facility) that is secured by such asset and which is required
to be repaid by such Person in connection with such Asset Sale, plus (B) the
out-of-pocket expenses (1) incurred by such Person in connection with such Asset
Sale and (2) if such Person is a Subsidiary, incurred in connection with the
transfer of such amount to the parent company or entity of such Person, plus (C)
provision for taxes, including income taxes, attributable to the Asset Sale or
attributable to required prepayments or repayments of Indebtedness with the
proceeds of such Asset Sale, plus (D) a reasonable reserve for any
indemnification payments (fixed or contingent) attributable to seller's
indemnities and representations and warranties to purchaser in respect of such
Asset Sale undertaken by the Borrower or any of its Subsidiaries in connection
with such Asset Sale plus (E) if such Person is a Subsidiary, any dividends or
distributions payable to holders of minority interests in such Subsidiary from
the proceeds of such Asset Sale.
"Net Income": with respect to any Person for any period, the net
----------
income (loss) of such Person, determined in accordance with GAAP for such
period, excluding, however, any gain (but not loss), together with any related
provision for taxes on such gain (but not loss) realized in connection with any
sale of assets by such Person during such period (including, without limitation,
dispositions pursuant to sale and leaseback transactions), and excluding any
extraordinary gain or loss, together with any related provision for taxes on
such extraordinary gain or loss, realized by such Person during such period.
"Net Securities Proceeds": the cash proceeds, net of underwriting
-----------------------
discounts and commissions and other reasonable costs and expenses associated
therewith, including reasonable legal fees and expenses, from the issuance of
any Equity Interests of the Borrower after the Effective Date.
"New Subsidiary": as defined in Section 8.11.
--------------
"Note": a Term Loan Note.
----
"Notes": the Term Loan Notes.
-----
"Notice of Conversion/Continuation": a notice substantially in the
---------------------------------
form of Exhibit H.
"Obligations": all obligations of every nature of the Credit Parties
-----------
from time to time owed to the Administrative Agent, the Collateral Agent, the
Lenders or any of them under the Loan Documents, whether for principal,
interest, fees, expenses, indemnification or otherwise.
"Officers' Certificate": as applied to any corporation, a certificate
---------------------
executed on behalf of such corporation by its chairman of the board (if an
officer) or its president or one of its vice presidents and by its chief
financial officer or its treasurer; provided that every Officers' Certificate
--------
with respect to the compliance with a condition precedent to the making of the
Term Loans hereunder shall include (i) a statement that the officer or officers
making or giving such Officers' Certificate have read such condition and any
definitions or other provisions contained in this Agreement relating thereto,
(ii) a statement that, in the opinion of the signers, they have made or have
caused to be made such examination or investigation as is necessary to enable
them to express an informed opinion as to whether or not such condition has been
complied with, and (iii) a statement as to whether, in the opinion of the
signers, such condition has been complied with.
"Original Principal Stockholders": means ▇▇▇▇▇ Healthcare Corporation,
-------------------------------
THC Properties Corp. (a wholly-owned Subsidiary of ▇▇▇▇▇ Healthcare
Corporation), ▇▇▇▇▇▇ M.G. Chaltiel, the executive officers and directors of the
Borrower and/or TRC, the Borrower's equity compensation plans, employee stock
option plans, employee stock purchase plans and all other similar plans, and all
participants therein and beneficiaries thereof.
"PBGC": the Pension Benefit Guaranty Corporation established pursuant
----
to Subtitle A of Title IV of ERISA, or any Governmental Authority succeeding to
the functions thereof.
"Pension Plan": at any date of determination, any employee pension
------------
benefit plan (including a Multiemployer Plan) that is covered by Title IV of
ERISA or subject to the minimum funding standards under Section 412 of the Code,
the funding requirements of which (under Section 302 of ERISA or Section 412 of
the Code) are, or at any time within the five years immediately preceding such
date, were in whole or in part, the responsibility of the Borrower, any of its
Subsidiaries or any ERISA Affiliate, provided that the term Pension Plan shall
not include the employee benefit pension plans listed on Schedule 1.1(P).
"Permitted Acquisitions": any Acquisition permitted under Section
----------------------
8.5(g).
"Permitted Investments": any Investment permitted under Sections
---------------------
8.5(a)-(j).
"Permitted Lien": any Lien permitted under Section 8.2.
--------------
"Person": any individual, firm, partnership, joint venture,
------
corporation, association, business enterprise, joint stock company,
unincorporated association, trust, Governmental Authority or any other entity,
whether acting in an individual, fiduciary, or other capacity, and for the
purpose of the definition of "ERISA Affiliate", a trade or business.
"Pledgor" (i) the Borrower and (ii) each Subsidiary of the Borrower
-------
that executes and delivers to the Collateral Agent a Subsidiary Pledge Agreement
after the Effective Date pursuant to Section 7.11.
"Preferred Stock": any class of capital stock of a corporation that is
---------------
preferred over any other class of capital stock of such corporation as to the
payment of dividends or the payment of any amount upon liquidation or
dissolution of such corporation.
"Pro Forma Coverage Ratio": for any date of determination, the pro
------------------------
forma ratio of the sum of (a) the Consolidated EBITDA for the Reference Period
for such date of determination calculated before deduction for minority
interests (less any EBITDA from Permitted Acquisitions that occurred in such
Reference Period) multiplied by four plus (b) the EBITDA from Permitted
Acquisitions that occurred in such Reference Period (which Permitted
Acquisitions have been operated by the Borrower or any of its Subsidiaries or
included in the Consolidated results of operations of the Borrower, in either
case for at least 30 days during such Reference Period) calculated as if such
Permitted Acquisitions occurred on the first day of such Reference Period
multiplied by four (the sum of such amounts being "Adjusted EBITDA")
divided by the Fixed Charges of the Borrower for such Reference Period
----------
multiplied by four. The Pro Forma Coverage Ratio shall, as applicable, be
calculated on the following basis:
(i) if the Indebtedness which is being created, incurred or
assumed is Acquisition Debt, the Pro Forma Coverage Ratio shall be
determined after giving effect to both the Fixed Charges related to the
creation, incurrence or assumption of such Acquisition Debt and the
Adjusted EBITDA (A) of the person becoming a Subsidiary of such person
or (B) in the case of an acquisition of assets which constitute
substantially all of an operating unit or business, relating to the
assets being acquired by such person;
(ii) there shall be excluded from Fixed Charges any Fixed Charges
related to Indebtedness repaid during and subsequent to the Reference
Period and which is not outstanding on the measurement date;
(iii) Fixed Charges attributable to any Indebtedness (whether
existing or being incurred) bearing a floating rate of interest shall
be computed as if the rate in effect on the measurement date had been
the applicable rate for the entire Reference Period; and
(iv) the creation, incurrence or assumption of any Indebtedness
during the Reference Period or subsequent to the Reference Period and
prior to the measurement date, and the application of the proceeds
therefrom, shall be assumed to have occurred on the first day of the
Reference Period.
"Pro Rata Share": with respect to each Lender, the percentage obtained
--------------
by dividing (x) the Credit Exposure of that Lender by (y) the Aggregate Credit
-------- --
Exposure of all Lenders, as such percentage may be adjusted by assignments
permitted pursuant to subsection 11.7 and by prepayments made pursuant to
Section 2.4(d). The initial Pro Rata Share of each Lender is set forth opposite
the name of that Lender in Exhibit A.
"Process Administrative Agent": as defined in Section 11.17.
----------------------------
"Prohibited Transaction": a transaction that is prohibited under
----------------------
Section 4975 of the Code or Section 406 of ERISA and not exempt under Section
4975 of the Code or Section 408 of ERISA.
"Property": all types of real, personal, tangible, intangible or mixed
--------
property.
"Purchase Money Indebtedness": Indebtedness of the Borrower and its
---------------------------
Subsidiaries incurred in connection with the purchase or financing of the
acquisition, construction or improvement of property or assets for the business
of the Borrower and its Subsidiaries; provided that any Lien or encumbrance
--------
relating to such Indebtedness shall be placed on such property or asset not
later than 120 days after the date of such purchase or the completion of
construction or improvement.
"Qualified Issuer": (A) any Lender hereunder, (B) any lender that is a
----------------
party to the Revolving Credit Facility and (C) any commercial bank that has
capital and surplus in excess of $100,000,000.
"Real Property": all real property owned or leased by the Borrower or
-------------
any of its Subsidiaries.
"Redemption Price": with respect to any voluntary prepayment of Term
----------------
Loans during any period set forth below, an amount equal to the principal amount
of such prepayment multiplied by the percentage set forth below opposite such
----------
period:
Redemption Price
Period Percentage
---------- ----------
Funding Date to first
anniversary of Funding Date 101.5%
First anniversary of Funding
Date to second anniversary
of Funding Date 100.75%
Thereafter 100.00%
"Reference Period": for any date of determination, the most recently
----------------
concluded fiscal quarter preceding such date of determination for which
financial information is available.
"Refinancing Indebtedness": (i) Indebtedness of the Borrower incurred
------------------------
or given in exchange for, or the proceeds of which are used to, extend,
refinance, renew, replace, substitute, defease or refund any other Indebtedness
incurred by the Borrower in accordance with the terms of this Agreement and (ii)
Indebtedness of any Subsidiary incurred or given in exchange for, or the
proceeds of which are used to, extend, refinance, renew, replace, substitute,
defease or refund any other Indebtedness of such Subsidiary in accordance with
the terms of this Agreement.
"Register": as defined in Section 11.7(b).
--------
"Reinvested Proceeds": with respect to any Asset Sale as of any date of
-------------------
determination, the amount of Net Cash Proceeds from such Asset Sale that is used
by the Borrower or any of its Subsidiaries to acquire, during the Reinvestment
Period, Property that is to be used in the same or a related line of business of
the Borrower.
"Reinvestment Period": the period beginning on, and ending 365 days
-------------------
after, the date that proceeds from an Asset Sale are received by the Borrower or
any of its Subsidiaries, as the case may be.
"Related Party": with respect to any Original Principal Stockholder
-------------
means (i) any 80% (or more) owned Subsidiary or Immediate Family Member (in the
case of an individual) of such Original Principal Stockholder or (ii) any
Person, the beneficiaries, stockholders, partners, owners or Persons
beneficially holding an 80% or more controlling interest of which consist of
such Original Principal Stockholder or an Immediate Family Member, or (iii) any
Person employed by the Borrower or TRC in a management capacity as of the
Effective Date.
"Relevant Date": (i) in the case of each Lender listed on the
-------------
signature pages hereof, the Effective Date, and (ii) in the case of each other
Lender, the effective date of the Assignment and Acceptance Agreement or other
document pursuant to which it became a Lender.
"Remaining Interest Period": (i) in the event that the Borrower shall
-------------------------
fail for any reason to borrow a Term Loan in respect of which it shall have
requested a Eurodollar Advance or convert an Advance to, or continue an Advance
as, a Eurodollar Advance after it shall have notified the Administrative Agent
of its intent to do so, a period equal to the Interest Period that the Borrower
elected in respect of such Eurodollar Advance; or (ii) in the event that a
Eurodollar Advance shall terminate for any reason prior to the last day of the
Interest Period applicable thereto, a period equal to the remaining portion of
such Interest Period if such Interest Period had not been so terminated; or
(iii) in the event that the Borrower shall prepay or repay all or any part of
the principal amount of a Eurodollar Advance prior to the last day of the
Interest Period applicable thereto, a period equal to the period from and
including the date of such prepayment or repayment to but excluding the last day
of such Interest Period.
"Reportable Event": with respect to any Pension Plan, (i) any event
----------------
set forth in Sections 4043(b) (other than a Reportable Event as to which the 30
day notice requirement is waived by the PBGC under applicable regulations),
4062(c) or 4063(a) of ERISA or the regulations thereunder or (ii) an event
requiring the Borrower, any of its Subsidiaries or any ERISA Affiliate to
provide security to a Pension Plan under Section 401(a)(29) of the Code.
"Required Lenders": Lenders having Credit Exposure equal to at least
----------------
51% of the Aggregate Credit Exposure.
"Required Payment": as defined in Section 2.8(a).
----------------
"Restricted Investment": an Investment other than a Permitted
---------------------
Investment.
"Restricted Payment": (a) any dividend or other distribution declared
------------------
or paid on any Equity Interests of the Borrower or any of its Subsidiaries
(other than dividends or distributions payable in Equity Interests (other than
Disqualified Stock) of the Borrower or such Subsidiary or dividends or
distributions payable to the Borrower or any Subsidiary); (b) any payment to
purchase, redeem or otherwise acquire or retire for value any Equity Interests
of the Borrower or any Subsidiary or other Affiliate of the Borrower (other than
any Equity Interests owned by the Borrower or any Subsidiary); (c) any payment
to purchase, redeem, defease or otherwise acquire or retire for value any
Indebtedness that is subordinated in right of payment to the Term Loans (other
than with the proceeds of Indebtedness (including, but not limited to,
Refinancing Indebtedness) permitted under this Agreement), except in accordance
with the mandatory redemption or repayment provisions set forth in the original
documentation governing such Indebtedness; or (d) any Restricted Investment.
"Revolver Prepayment Fraction": on any date of calculation, a fraction
----------------------------
equal to 1.00 minus the Term Prepayment Fraction.
"Revolving Credit Commitments": as defined in the Revolving Credit
----------------------------
Facility.
"Revolving Credit Facility": the Revolving Credit Agreement, dated as
-------------------------
of the date hereof, by and among the Borrower, the lenders party thereto, BNY
Capital Markets, Inc. and ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation,
as co-arrangers, DLJ Capital Funding, Inc., as syndication agent, First Union
National Bank, as Documentation Agent, and BNY, as administrative agent,
together with all other documents executed in connection therewith, in each case
as such agreements may be amended, restated, supplemented or otherwise modified
from time to time, including any agreement extending the maturity of,
refinancing, replacing or otherwise restructuring (including increasing the
amount of available borrowings thereunder) all or any portion of the
Indebtedness under such agreement or any successor or replacement agreement and
whether by the same or any other agent, lender or group of lenders; provided,
--------
however, that any such amendment, restatement, replacement, refinancing or other
-------
restructuring of the Revolving Credit Facility as in effect from time to time
shall comply with the restrictions set forth in Sections 8.1 and 8.15. Upon any
amendment, restatement, replacement, refinancing or restructuring of the
Revolving Credit Facility, all references herein to definitions or sections in
the Revolving Credit Facility shall be deemed to refer to the corresponding
definitions or sections in the Revolving Credit Facility as so amended,
restated, replaced, refinanced or restructured.
"Revolving Loans": as defined in the Revolving Credit Facility.
---------------
"SEC": the Securities and Exchange Commission or any Governmental
---
Authority succeeding to the functions thereof.
"Special Counsel": O'Melveny & ▇▇▇▇▇ LLP, special counsel to the
---------------
Administrative Agent.
"Stock": any and all shares, rights, interests, participations,
-----
warrants or other equivalents (however designated) of corporate stock.
"Subordinated Indebtedness": any Indebtedness of the Borrower or any
-------------------------
Guarantor subordinated in right of payment to the Obligations of such party
pursuant to documentation containing maturities, amortization schedules,
covenants, defaults, remedies, subordination provisions and other material terms
in form and substance satisfactory to the Administrative Agent and Required
Lenders.
"Subsidiary": as to any Person, any corporation, association,
----------
partnership, joint venture or other business entity of which such Person or any
Subsidiary of such Person, directly or indirectly, either (i) in respect of a
corporation, owns or controls 50% or more of the outstanding Stock having
ordinary voting power to elect a majority of the board of directors or similar
managing body, irrespective of whether a class or classes shall or might have
voting power by reason of the happening of any contingency, or (ii) in respect
of an association, partnership, joint venture or other business entity, is
entitled to share in 50% or more of the profits and losses, however determined.
"Subsidiary Guaranty": the Subsidiary Guaranty, dated the date hereof,
-------------------
by the Guarantors in favor of the Collateral Agent, substantially in the form of
Exhibit I, as amended, supplemented or otherwise modified from time to time.
"Subsidiary Pledge Agreements": collectively, each Subsidiary Pledge
----------------------------
Agreement (i) delivered pursuant to Section 5.6 and (ii) delivered after the
Effective Date pursuant to Section 7.11(c), each such Subsidiary Pledge
Agreement by and between the Pledgor named therein and the Collateral Agent,
substantially in the form of Exhibit K, as each such agreement may be amended,
supplemented or otherwise modified from time to time.
"Surviving Entity": with respect to any transaction in which one
----------------
Person merges with or into or consolidates with another Person, or in which one
Person disposes by sale, assignment, conveyance, transfer, lease or disposition
all or substantially all of the properties and assets of such Person, the Person
formed by or surviving such merger or consolidation or that receives such
properties and assets.
"Tax": any present or future tax, levy, impost, duty, charge, fee,
---
deduction or withholding of any nature and whatever called, by a Governmental
Authority, imposed, levied, collected, withheld or assessed with respect to any
payment by the Borrower pursuant to this Agreement or any other Loan Document,
and all liabilities with respect thereto.
"Tax on the Income": as to any Person, a Tax imposed by one of the
-----------------
following jurisdictions or by any political subdivision or taxing authority
thereof: (i) the United States, (ii) the jurisdiction in which such Person is
organized, (iii) the jurisdiction in which such Person's principal office is
located, or (iv) in the case of each Lender, any jurisdiction in which such
Person is deemed to be doing business; which Tax is an income tax (or any tax
in lieu thereof or equivalent thereto) or franchise tax imposed on all or part
of the net income or net profits of such Person or with respect to the net
increase in the shareholders' or owners' equity or capital in such Person or
which Tax represents interest, fees or penalties for payment of any such income
tax or franchise tax.
"Termination Event": with respect to any Pension Plan, (i) a
-----------------
Reportable Event, (ii) the termination of a Pension Plan, or the filing of a
notice of intent to terminate a Pension Plan, or the treatment of a Pension Plan
amendment as a termination, in each case under Section 4041(c) of ERISA, (iii)
the institution of proceedings to terminate a Pension Plan under Section 4042 of
ERISA, or (iv) the appointment of a trustee to administer any Pension Plan under
Section 4042 of ERISA.
"Term Loan" and "Term Loans": as defined in Section 2.1.
--------- ----------
"Term Loan Commitment": as to any Lender, such Lender's undertaking
--------------------
during the Term Loan Commitment Period to make Term Loans, subject to the terms
and conditions hereof, in an aggregate outstanding principal amount not
exceeding the amount set forth next to the name of such Lender in Exhibit A
under the heading "Term Loan Commitment".
"Term Loan Commitment Period": the period commencing on the Effective
---------------------------
Date and ending on the earliest of (i) the Funding Date, (ii) the date which is
90 days after the Effective Date, and (iii) any date on which the Aggregate Term
Loan Commitments are terminated pursuant to Section 2.4(c) or 9.1.
"Term Loan Note" and "Term Loan Notes": as defined in Section 2.2.
-------------- ---------------
"Term Prepayment Fraction": on any date of calculation, a fraction
------------------------
determined by dividing (a) the aggregate principal amount of Term Loans
outstanding at such time by (b) the sum of (i) the aggregate principal amount of
Term Loans outstanding at such time plus (ii) the aggregate amount of Revolving
----
Credit Commitments at such time (or, if the Revolving Credit Commitments have
been terminated at such time, the aggregate principal amount of Revolving Loans
outstanding at such time).
"Total Debt": the difference between (i) all Indebtedness (less
----------
Excluded Contingent Obligations) and (ii) cash and cash equivalents, in each
case, of the Borrower and its Subsidiaries on a Consolidated basis in accordance
with GAAP.
"Total Prepayment Amount": as of any date of determination, an amount
-----------------------
equal to all Net Cash Proceeds received by the Borrower and its Subsidiaries
after the Effective Date that have not become Reinvested Proceeds during the
applicable Reinvestment Periods for such Net Cash Proceeds and with respect to
which the applicable Reinvestment Periods have terminated; provided, however,
------------------
that the "Total Prepayment Amount" shall exclude (i) an aggregate of $5,000,000
in Net Cash Proceeds received by the Borrower and its Subsidiaries after the
Effective Date that have not become Reinvested Proceeds during the applicable
Reinvestment Periods for such Net Cash Proceeds and (ii) the portion of such Net
Cash Proceeds that has been applied to the prepayment of the Term Loans and the
reduction of the Revolving Credit Commitments pursuant to Section 2.4(d)
(including amounts for which the applicable prepayment was waived by the Lenders
pursuant to Section 2.4(d)(iii)).
"Transactions": the transactions contemplated under this Agreement and
------------
the other Loan Documents on the Effective Date and the Funding Date, including
the repayment of the Existing Indebtedness, the borrowing of the Term Loans and
the Revolving Loans and other transactions related to any of the foregoing.
"TRC": Total Renal Care, Inc., a California corporation.
---
"Unfunded Pension Liabilities": with respect to any Pension Plan, at
----------------------------
any date of determination, the amount determined by taking the accumulated
benefit obligation, as disclosed in accordance with Statement of Accounting
Standards No. 87, "Employers' Accounting for Pensions", over the fair market
value of Pension Plan assets.
"United States": the United States of America (including the States
-------------
thereof and the District of Columbia).
"Unqualified Amount": as defined in Section 2.6(c).
------------------
"Unrecognized Retiree Welfare Liability": with respect to any Employee
--------------------------------------
Benefit Plan that provides postretirement benefits other than pension benefits,
the amount of the transition obligation, as determined in accordance with
Statement of Financial Accounting Standards No. 106, "Employers' Accounting for
Postretirement Benefits Other Than Pensions," as of the most recent valuation
date, that has not been recognized as an expense in an income statement of the
Borrower and its Subsidiaries, provided that (i) prior to the date such
Statement is applicable to the Borrower, such amount shall be based on an
estimate made in good faith of such transition obligation, and (ii) for purposes
of determining the aggregate amount of the Unrecognized Retiree Welfare
Liability, Plans maintained by a Subsidiary that is not otherwise an ERISA
Affiliate shall be included.
"Weighted Average Life to Maturity": when applied to any Indebtedness
---------------------------------
at any date, the number of years obtained by dividing (i) the sum of the
products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other maturity or other required
scheduled payment of principal, including payment at final maturity, in respect
thereof, with (b) the number of years (calculated to the nearest one-twelfth)
that will elapse between such date and the making of such payment, by (ii) the
then outstanding aggregate principal amount of such Indebtedness.
1.2 Principles of Construction
--------------------------
(a) All terms defined in this Agreement shall have the meanings given such
terms herein when used in the other Loan Documents or any certificate, opinion
or other document made or delivered pursuant hereto, unless otherwise expressly
provided therein.
(b) As used in the Loan Documents and in any certificate, opinion or other
document made or delivered pursuant thereto, accounting terms not defined in
Section 1.1, and accounting terms partly defined in Section 1.1, to the extent
not defined, shall have the respective meanings given to them under GAAP.
(c) The words "hereof", "herein", "hereto" and "hereunder" and similar
words when used in a Loan Document shall refer to such Loan Document as a whole
and not to any particular provision thereof, and Section, schedule and exhibit
references contained therein shall refer to Sections thereof or schedules or
exhibits thereto unless otherwise expressly provided therein.
(d) The phrase "may not" is prohibitive and not permissive.
(e) Unless the context otherwise requires, words in the singular number
include the plural, and words in the plural include the singular.
(f) Unless specifically provided in a Loan Document to the contrary,
references to a time shall refer to New York City time.
(g) Unless specifically provided in a Loan Document to the contrary, in
the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and "until"
each mean "to but excluding".
2. AMOUNT AND TERMS OF LOANS
-------------------------
2.1 Term Loans
----------
Subject to the terms and conditions hereof, each Lender severally
agrees to make term loans (each a "Term Loan" and, as the context may require,
---------
collectively with the Term Loans of all other Lenders, the "Term Loans") to the
----------
Borrower at any time during the Term Loan Commitment Period, provided, however,
that immediately after giving effect thereto (a) such Lender's Credit Exposure
shall not exceed such Lender's Term Loan Commitment and (b) the Aggregate Credit
Exposure of all Lenders shall not exceed the Aggregate Term Loan Commitments.
The Borrower may make only one borrowing under the Term Loan Commitments.
Amounts borrowed under this Section 2.1 and subsequently repaid or prepaid may
not be reborrowed.
2.2 Term Loan Notes
---------------
(a) The Term Loans made by a Lender shall be evidenced by a promissory
note of the Borrower, substantially in the form of Exhibit B (each, as indorsed
or modified from time to time, including all replacements thereof and
substitutions therefor, a "Term Loan Note" and, collectively with the Term Loan
--------------
Notes of all other Lenders, the "Term Loan Notes"), payable to the order of such
---------------
Lender for the account of its Applicable Lending Office and representing the
obligation of the Borrower to pay the lesser of (a) the original amount of the
Term Loan Commitment of such Lender and (b) the aggregate unpaid principal
balance of all Term Loans made by such Lender, with interest thereon as
prescribed in Section 2.6. Each Term Loan Note shall (i) be dated the Effective
Date, (ii) be stated to mature on the Maturity Date and (iii) bear interest from
the date thereof on the unpaid principal balance thereof at the applicable
interest rate or rates per annum determined as provided in Section 2.6.
Interest on each Term Loan Note shall be payable as specified in Section 2.6.
(b) The unpaid principal amount of the Term Loans shall be due and
payable on the Maturity Date.
2.3 Procedure for Borrowing
-----------------------
(a) The Borrower may borrow Term Loans in a single draw on any Business
Day during the Term Loan Commitment Period. When the Borrower desires to borrow
Term Loans, it shall deliver to the Administrative Agent a Borrowing Request
substantially in the form of Exhibit C no later than: 2:00 P.M. three Business
Days prior to the requested Borrowing Date in the case of Eurodollar Advances
and 2:00 P.M. one Business Day prior to the requested Borrowing
Date, in the case of ABR Advances, specifying (i) the aggregate principal amount
to be borrowed under the Aggregate Term Loan Commitments, (ii) the requested
Borrowing Date, (iii) whether such borrowing is to consist of one or more
Eurodollar Advances, ABR Advances, or a combination thereof and (iv) if the
borrowing is to consist of one or more Eurodollar Advances, the length of the
Interest Period for each such Eurodollar Advance, provided, however, that no
Interest Period selected in respect of any Term Loan shall end after the
Maturity Date. Such Borrowing Request shall be irrevocable. If the Borrower
fails to give timely notice in connection with a request for a Eurodollar
Advance, the Borrower shall be deemed to have elected that such Advance shall be
made as an ABR Advance. Such notice shall be irrevocable. Each ABR Advance shall
be in an aggregate principal amount equal to $1,000,000 or such amount plus a
whole multiple of $250,000 in excess thereof (or, if less, the unused amount of
the Aggregate Term Loan Commitments) and each Eurodollar Advance shall be in an
aggregate principal amount equal to $5,000,000 or such amount plus a whole
multiple of $500,000 in excess thereof.
(b) Upon receipt of the Borrowing Request from the Borrower, the
Administrative Agent shall promptly notify each Lender thereof. Subject to its
receipt of the notice referred to in the preceding sentence, each Lender will
make the amount of its Pro Rata Share of the Term Loans available to the
Administrative Agent for the account of the Borrower at the office of the
Administrative Agent set forth in Section 11.2 not later than 12:00 Noon on the
relevant Borrowing Date requested by the Borrower, in funds immediately
available to the Administrative Agent at such office. No Lenders shall be
responsible for any default by any other Lender in that other Lender's
obligation to make a Term Loan requested hereunder nor shall the Term Loan
Commitment of any Lender be increased or decreased as a result of a default by
any other Lender in that other Lender's obligation to make a Term Loan requested
hereunder. The amounts so made available to the Administrative Agent on such
Borrowing Date will then, subject to the satisfaction of the terms and
conditions of this Agreement, as determined by the Administrative Agent, be made
available on such date to the Borrower by the Administrative Agent at the office
of the Administrative Agent specified in Section 11.2 by crediting the account
of the Borrower on the books of such office with the aggregate of said amounts
received by the Administrative Agent.
(c) Unless the Administrative Agent shall have received prior notice from
a Lender (by telephone or otherwise, such notice to be promptly confirmed by fax
or other writing) that such Lender will not make available to the Administrative
Agent such Lender's Pro Rata Share of the Term Loans requested by the Borrower,
the Administrative Agent may assume that such Lender has made such share
available to the Administrative Agent on the Borrowing Date in accordance with
this Section, provided that such Lender received notice of the proposed
borrowing from the Administrative Agent, and the Administrative Agent may, in
reliance upon such assumption, make available to the Borrower on the Borrowing
Date a corresponding amount. If and to the extent such Lender shall not have so
made its Pro Rata Share of such Term Loans available to the Administrative
Agent, such Lender and the Borrower severally agree to pay to the Administrative
Agent forthwith on demand such corresponding amount (to the extent not
previously paid by the other), together with interest thereon for each day from
the date such
amount is made available to the Borrower to the date such amount is paid to the
Administrative Agent, at a rate per annum equal to, in the case of the Borrower,
the applicable interest rate set forth in Section 2.6 for ABR Advances, and, in
the case of such Lender, the Federal Funds Rate in effect on each such day (as
determined by the Administrative Agent) plus any processing fee per the
interbank compensation rules as then in effect. Such payment by the Borrower,
however, shall be without prejudice to its rights against such Lender. If such
Lender shall pay to the Administrative Agent such corresponding amount, such
amount so paid shall constitute such Lender's Term Loan as part of the Term
Loans for purposes of this Agreement, which Term Loan shall be deemed to have
been made by such Lender on the Borrowing Date applicable to such Term Loans.
(d) A Borrowing Request given by telecopy shall be deemed given when
received.
2.4 Prepayments of the Term Loans
-----------------------------
(a) Voluntary Prepayments.
---------------------
(i) Subject to clause 2.4(a)(ii) below, the Borrower may, at its
option, prepay the Term Loans in full at any time or in part from time
to time, by notifying the Administrative Agent in writing at least one
Business Day prior to the proposed prepayment date, in the case of Term
Loans consisting of ABR Advances, and at least three Business Days
prior to the proposed prepayment date, in the case of Term Loans
consisting of Eurodollar Advances, specifying the Term Loans to be
prepaid, whether such Term Loans consist of ABR Advances, Eurodollar
Advances, or a combination thereof, the amount to be prepaid, the
Redemption Price of the amount to be prepaid, and the date of
prepayment. Voluntary prepayments of Term Loans shall be at the
Redemption Price of the principal amount prepaid. Such notice shall be
irrevocable and an amount equal to the Redemption Price of the
principal amount of Term Loans specified in such notice shall be due
and payable on the date specified, together with accrued interest to
the date of such payment on the amount prepaid. Upon receipt of such
notice, the Administrative Agent shall promptly notify each Lender
thereof. Each partial prepayment made pursuant to this subsection
shall be in an aggregate principal amount of $1,000,000 or such amount
plus a whole multiple of $250,000 in excess thereof (or, if less, the
outstanding principal balance of the Term Loans). After giving effect
to any partial prepayment with respect to Eurodollar Advances that were
made (whether as the result of a borrowing or a conversion) on the same
date and that had the same Interest Period, the outstanding principal
amount of such Eurodollar Advances shall equal (subject to Section 2.5)
$5,000,000 or such amount plus a whole multiple of $500,000 in excess
thereof.
(ii) The Borrower may not make voluntary prepayments of the Term
Loans pursuant to clause 2.4(a)(i) unless, concurrently with such
prepayment, the Borrower permanently reduces the Revolving Credit
Commitments (and makes any prepayments of Revolving Loans required
under the Revolving Credit Facility in connection with such reduction)
in an amount equal to the amount of such voluntary prepayment of Term
Loans multiplied by the ratio of aggregate
-------------
amount of Revolving Credit Commitments immediately before such
prepayment to the aggregate amount of outstanding Term Loans
immediately before such prepayment.
(b) Scheduled Repayments of Term Loans. The Borrower shall make principal
----------------------------------
payments on the Term Loans in installments on the dates and in the amounts set
forth below:
Scheduled
Date Repayment of Term Loans
--------------------------------------
September 30, 1998 $ 2,500,000
September 30, 1999 $ 2,500,000
September 30, 2000 $ 2,500,000
September 30, 2001 $ 2,500,000
September 30, 2002 $ 2,500,000
September 30, 2003 $ 2,500,000
September 30, 2004 $ 2,500,000
September 30, 2005 $ 2,500,000
September 30, 2006 $ 2,500,000
September 30, 2007 $227,500,000
; provided that the scheduled installments of principal of the Term Loans set
--------
forth above shall be reduced in connection with any voluntary or mandatory
prepayments of the Term Loans in accordance with subsections 2.4(a), 2.4(c) or
2.4(d) and provided, further that the Term Loans and all other amounts owed
-------- -------
hereunder with respect to the Term Loans shall be paid in full no later than
September 30, 2007, and the final installment payable by the Borrower in respect
of the Term Loans on such date shall be in an amount, if such amount is
different from that specified above, sufficient to repay all amounts owing by
the Borrower under this Agreement with respect to the Term Loans.
(c) Mandatory Commitment Reductions and Prepayments Relating to a Change
--------------------------------------------------------------------
of Control. Upon the occurrence of a Change of Control, the Aggregate Term Loan
----------
Commitments shall terminate and the Borrower shall (i) prepay in full the
outstanding principal balance of the Term Loans, together with accrued and
unpaid interest thereon and (ii) pay in full all fees and other amounts payable
under the Loan Documents.
(d) Mandatory Prepayments Relating to Asset Sales; Reductions of
------------------------------------------------------------
Revolving Credit Commitments.
----------------------------
(i) The Borrower shall prepay the Term Loans from time to time in
an amount equal to the product of the Accepting Lenders' aggregate Pro
Rata Shares of the Term Prepayment Fraction multiplied by the Total
Prepayment Amount at such time. Each such prepayment shall be due and
payable on (x) each date on which the Total Prepayment Amount exceeds
$10,000,000 and
(y) the occurrence of an Event of Default. Each such prepayment shall
be at a price equal to 100% of the principal amount thereof plus
accrued interest thereon to the date of prepayment.
(ii) On each date on which any mandatory prepayments of Revolving
Loans are required under Section 2.7(e) of the Revolving Credit
Facility (or any other provision requiring prepayments of Revolving
Loans or reductions in Revolving Credit Commitments as a result of
sales of Property), the Borrower shall prepay an aggregate principal
amount of Term Loans equal to the Accepting Lenders' aggregate Pro Rata
Shares of the Total Prepayment Amount (as such term is defined in the
Revolving Credit Agreement, or any successor term referring to the
total amount of reductions in Revolving Credit Commitments and
prepayments in Revolving Loans and Term Loans required as a result of
sales of Property), multiplied by the Term Prepayment Fraction;
----------
provided, however, that if prepayments are required to be made under
------------------
Section 2.4(d)(i) on any date on which prepayments are required to be
made under this Section 2.4(d)(ii), for purposes of this Section
2.4(d)(ii), the "Total Prepayment Amount" (as such term is defined in
the Revolving Credit Agreement, or any successor term referring to the
total amount of reductions in Revolving Credit Commitments and
prepayments in Revolving Loans and Term Loans required as a result of
sales of Property) on such date shall be reduced by the "Total
Prepayment Amount" (as such term is defined herein) on such date. Each
such prepayment shall be at a price equal to 100% of the principal
amount thereof plus accrued interest thereon to the date of prepayment.
(iii) The Borrower may at its option elect to give the Lenders the
option to waive their rights to receive the prepayments under Section
2.4(d)(i) or Section 2.4(d)(ii) by notifying the Administrative Agent
in writing of such election not less than 10 Business Days before any
prepayment is due under Section 2.4(d)(i) or Section 2.4(d)(ii) (a
"Waivable Mandatory Prepayment"). The Administrative Agent shall, upon
------------------------------
receipt of such notice, notify each Lender thereof and of the amount of
such Waivable Mandatory Prepayment to be applied to such Lender's Term
Loan and of the designation of such Waivable Mandatory Prepayment as
such by the Borrower; provided, further that the Borrower shall use its
-------- -------
reasonable efforts to notify the Lenders of such Waivable Mandatory
Prepayment three Business Days prior to the date such Waivable
Mandatory Prepayment shall be due under Section 2.4(d)(i) or Section
2.4(d)(ii) (it being understood that the Borrower shall have no
liability for failing to so notify the Lenders). In the event any
Lender desires to waive such Lender's right to receive such Waivable
Mandatory Prepayment, such Lender shall so advise the Administrative
Agent in writing no later than the close of business not more than five
Business Days after it receives such notice from the Administrative
Agent. Each Lender that does not waive its right to receive a Waivable
Mandatory Prepayment is referred to herein as an "Accepting Lender." If
----------------
the does not elect to give the Lenders the option to waive their rights
to receive the prepayments under Section 2.4(d)(i) or Section
2.4(d)(ii), each Lender shall be deemed to be an Accepting Lender with
respect to such prepayments.
(iv) Concurrently with any mandatory prepayment of Term Loans made
pursuant to Section 2.4(d)(i), the Borrower shall permanently reduce
the Revolving Credit Commitments in an amount equal to the sum of (x)
the Revolver Prepayment Fraction multiplied by the Total
-------------
Prepayment Amount plus (y) 50% of the difference between (A) the Term
----
Prepayment Fraction multiplied by the Total Prepayment Amount minus (B)
---------- -----
the aggregate principal amount of the Term Loans that are prepaid to
the Accepting Lenders in connection with the receipt of such Total
Prepayment Amount.
(e) Application of Prepayments.
--------------------------
(i) Each prepayment of Term Loans shall first be applied to ABR
Advances. If any prepayment is made in respect of any Eurodollar
Advance, in whole or in part, prior to the last day of the applicable
Interest Period, the Borrower agrees to indemnify the Lenders in
accordance with Section 2.11.
(ii) Any voluntary prepayments of the Term Loans pursuant to
Section 2.4(a) and any mandatory prepayments of the Term Loans pursuant
to Sections 2.4(c) and 2.4(d) shall be applied on a pro rata basis (in
accordance with the respective outstanding principal amounts thereof)
to reduce each scheduled installment of principal of the Term Loans set
forth in Section 2.4(b) that is unpaid at the time of such prepayment.
2.5 Conversions and Continuations
-----------------------------
(a) The Borrower may elect from time to time to convert Eurodollar Advances
to ABR Advances by giving the Administrative Agent at least one Business Day's
prior irrevocable notice of such election (confirmed by the delivery of a Notice
of Conversion/Continuation), specifying the amount to be so converted. In
addition, the Borrower may elect from time to time to (i) convert ABR Advances
to Eurodollar Advances and (ii) continue Eurodollar Advances by selecting a new
Interest Period therefor, in each case by giving the Administrative Agent
irrevocable notice no later than 2:00 P.M. at least three Business Days prior to
such election (confirmed by the delivery of a Notice of
Conversion/Continuation), in the case of a conversion to, or continuation of,
Eurodollar Advances, specifying the amount to be so converted and the initial
Interest Period relating thereto, provided that any such conversion of ABR
Advances to Eurodollar Advances shall only be made on a Business Day and any
such continuation of Eurodollar Advances shall only be made on the last day of
the Interest Period applicable to the Eurodollar Advances that are to be
continued as such new Eurodollar Advances. The Administrative Agent shall
promptly provide the Lenders with a copy of each such Notice of
Conversion/Continuation. Advances may be converted or continued pursuant to this
Section in whole or in part, provided that conversions of ABR Advances to
Eurodollar Advances, or continuations of Eurodollar Advances, shall be in an
aggregate principal amount of $5,000,000 or such amount plus a whole multiple of
$500,000 in excess thereof.
(b) Notwithstanding anything in this Section to the contrary, no ABR
Advance may be converted to a Eurodollar Advance and no Eurodollar Advance may
be continued if the Borrower or the Administrative Agent has knowledge that a
Default or Event of Default has occurred and is continuing either (i) at the
time the Borrower shall notify the Administrative Agent of its election to
convert or continue or (ii) on the requested Conversion/Continuation Date. In
such event, (A)
each ABR Advance shall be automatically continued as an ABR Advance and (B) each
Eurodollar Advance shall be automatically converted to an ABR Advance on the
last day of the Interest Period applicable to such Eurodollar Advance.
(c) No Interest Period selected in respect of conversion or continuation
of any Eurodollar Advance shall end after the Maturity Date. Notwithstanding
anything herein to the contrary, the Borrower shall select Interest Periods such
that, on each date that a principal payment is scheduled to be made pursuant to
Section 2.4(b), the outstanding principal balance of all ABR Advances, when
added to the aggregate principal amount of each Eurodollar Advance, the
applicable Interest Period of which shall end on such date, shall equal or
exceed the aggregate principal amount of the Term Loans required to be paid on
such date pursuant to Section 2.4(b).
(d) Each conversion or continuation shall be effected by each Lender by
applying the proceeds of its new ABR Advance or Eurodollar Advance, as the case
may be, to its Advances (or portion thereof) being converted (it being
understood that such conversion shall not constitute a borrowing for purposes of
Sections 4 or 6).
(e) Notwithstanding anything to the contrary contained in any Loan
Document, if the Borrower shall fail, for any reason, to convert or continue a
Eurodollar Advance under this Section 2.5 in connection with the expiration of
an Interest Period with respect to any existing Eurodollar Advance, then such
Eurodollar Advance shall be converted to an ABR Advance until such time, if any,
as the Borrower shall elect a new Eurodollar Advance pursuant to this Section
2.5.
2.6 Interest Rate and Payment Dates
-------------------------------
(a) Prior to Maturity. Except as otherwise provided in Section 2.6(b),
-----------------
prior to maturity the Loans shall bear interest on the outstanding principal
balance thereof at the applicable interest rate or rates per annum set forth
below:
ADVANCES RATE
-------- ----
Each ABR Advance Alternate Base Rate plus
----
the Applicable Margin
Each Eurodollar Eurodollar Rate applicable
Advance to such Eurodollar Advance for the applicable
Interest Period plus the Applicable Margin.
----
(b) Event of Default. After the occurrence and during the continuance of
----------------
an Event of Default under Section 9.1(a), (b) (with respect to interest or the
Commitment Fee), (h) or (i), the outstanding principal balance of the Term Loans
shall bear interest at a rate per annum equal to 2% plus the rate that would
otherwise be applicable under Section 2.6(a) until, in the case of Eurodollar
Advances, the end of the applicable Interest Period therefor, and, thereafter,
at the
Alternate Base Rate plus 2%, payable in the case of interest on any
overdue principal, on demand. Any overdue interest or other amount payable
under the Loan Documents shall bear interest at a rate per annum equal to the
Alternate Base Rate plus 2% and shall be payable on demand.
(c) In General. Interest on (i) ABR Advances to the extent based on the
----------
BNY Rate, shall be calculated on the basis of a 365 or 366-day year (as the case
may be) and (ii) ABR Advances to the extent based on the Federal Funds Rate, and
on Eurodollar Advances shall be calculated on the basis of a 360-day year, in
each case for the actual number of days elapsed, including the first day but
excluding the last. Except as otherwise provided in Section 2.6(b), interest
shall be payable in arrears on each Interest Payment Date and upon each payment
(including prepayment) or conversion of the Loans. Any change in the interest
rate on the Loans resulting from a change in the Alternate Base Rate or reserve
requirements shall become effective as of the opening of business on the day on
which such change shall become effective. The Administrative Agent shall, as
soon as practicable, notify the Borrower and the Lenders of the effective date
and the amount of each such change in the BNY Rate, but any failure to so notify
shall not in any manner affect the obligation of the Borrower to pay interest on
the Loans in the amounts and on the dates required. Each determination of the
Alternate Base Rate or a Eurodollar Rate by the Administrative Agent pursuant to
this Agreement shall be conclusive and binding on the Borrower absent manifest
error. At no time shall the interest rate payable on the Loans, together with
the Commitment Fee, and all other amounts payable under the Loan Documents, to
the extent the same are construed to constitute interest, exceed the Highest
Lawful Rate. If in respect of any period during the term of this Agreement, any
amount paid hereunder, to the extent the same shall (but for the provisions of
this Section) constitute or be deemed to constitute interest, would exceed the
maximum amount of interest permitted by the Highest Lawful Rate during such
period (such excess amount being hereinafter referred to as an "Unqualified
-----------
Amount"), then (i) such Amount shall be applied or shall be deemed to have been
------
applied as a prepayment of the Loans, and (ii) if in any subsequent period
during the term of this Agreement, all amounts payable hereunder in respect of
such period that constitute or shall be deemed to constitute interest shall be
less than the maximum amount of interest permitted by the Highest Lawful Rate
during such period, then the Borrower shall pay to the Lender in respect of such
period an amount (each a "Compensatory Interest Payment") equal to the lesser of
-----------------------------
(x) a sum when added to all such amounts, would equal the maximum amount of
interest permitted by the Highest Lawful Rate during such period, and (y) an
amount equal to the Unqualified Amount less all other Compensatory Interest
Payments made in respect thereof. The Borrower acknowledges that to the extent
interest payable on ABR Advances is based on the BNY Rate, such Rate is only one
of the bases for computing interest on loans made by the Lenders, and by basing
interest payable on ABR Advances on the BNY Rate, the Lenders have not committed
to charge, and the Borrower has not in any way bargained for, interest based on
a lower or the lowest rate at which the Lenders may now or in the future make
loans to other borrowers.
2.7 Substituted Interest Rate
-------------------------
In the event that (i) the Administrative Agent shall have determined
(which determination shall be conclusive and binding upon the Borrower) that by
reason of circumstances affecting the interbank eurocurrency market either
adequate and reasonable means do not exist for ascertaining the Eurodollar Rate
applicable pursuant to Section 2.6 or (ii) the Required Lenders shall have
notified the Administrative Agent that they have determined (which determination
shall be conclusive and binding on the Borrower) that the applicable Eurodollar
Rate will not adequately and fairly reflect the cost to such Lenders of
maintaining or funding loans bearing interest based on such Eurodollar Rate with
respect to any portion of the Loans that the Borrower has requested be made as
Eurodollar Advances, or Eurodollar Advances that will result from the requested
conversion or continuation of any portion of the Advances into or as Eurodollar
Advances (each, an "Affected Advance"), the Administrative Agent shall promptly
----------------
notify the Borrower and the Lenders (by telephone or otherwise, to be promptly
confirmed in writing) of such determination and the reasons therefor, on or, to
the extent practicable, prior to the requested Borrowing Date or
Conversion/Continuation Date for such Affected Advances. If the Administrative
Agent shall give such notice, (a) any Affected Advances shall be made as ABR
Advances, (b) the Advances (or any portion thereof) that were to have been
converted to or continued as Affected Advances shall be converted to or
continued as ABR Advances and (b) any outstanding Affected Advances shall be
converted, on the last day of the then current Interest Period with respect
thereto, to ABR Advances. Until any notice under clauses (i) or
(ii), as the case may be, of this Section has been withdrawn by the
Administrative Agent (by notice to the Borrower and the Lenders promptly upon
either (x) the Administrative Agent having determined that such circumstances
affecting the interbank eurocurrency market no longer exist and that adequate
and reasonable means do exist for determining the Eurodollar Rate pursuant to
Section 2.6 or (y) the Administrative Agent having been notified by such
Required Lenders that circumstances no longer render the Advances (or any
portion thereof) Affected Advances), (1) no further Eurodollar Advances shall be
required to be made by the Lenders and (2) the Borrower shall not have the right
to convert or continue all or any portion of the Loans to or as Eurodollar
Advances.
2.8 Taxes
-----
(a) Payments to Be Free and Clear. Subject to Sections 2.8(d), 2.8(e)
-----------------------------
and 2.8(f), all payments by each Credit Party under the Loan Documents shall be
made free and clear of, and without any deduction or withholding for, any
Indemnified Tax. If any Credit Party or any other Person is required by any
law, rule, regulation, order, directive, treaty or guideline to make any
deduction or withholding (which deduction or withholding would constitute an
Indemnified Tax) from any amount required to be paid by any Credit Party to or
on behalf of any Indemnified Tax Person under any Loan Document (each a
"Required Payment"), then:
-----------------
(i) such Credit Party shall notify the Administrative Agent and such
Indemnified Tax Person of any such requirement or any change in any such
requirement as soon as such Credit Party becomes aware thereof;
(ii) such Credit Party shall pay such Indemnified Tax prior to the
date on which penalties attach thereto, such payment to be made (to the extent
that the liability to pay is imposed on such Credit Party) for its own account
or (to the extent that the liability to pay is imposed on such Indemnified Tax
Person) on behalf and in the name of such Indemnified Tax Person;
(iii) such Credit Party shall pay to such Indemnified Tax Person an
additional amount such that such Indemnified Tax Person shall receive on the due
date therefor an amount equal to the Required Payment had no such deduction or
withholding been required; and
(iv) such Credit Party shall, within 30 days after paying such
Indemnified Tax, deliver to the Administrative Agent and such Indemnified Tax
Person satisfactory evidence of such payment to the relevant Governmental
Authority.
(b) Other Indemnified Taxes. If any Indemnified Tax Person or any
-----------------------
affiliate thereof is required by any law, rule, regulation, order, directive,
treaty or guideline to pay any Indemnified Tax (excluding an Indemnified Tax
which is subject to Section 2.8(a)) with respect to any sum paid or payable by
any Credit Party to such Indemnified Tax Person under the Loan Documents, then,
within five days after such Indemnified Tax Person shall have notified such
Credit Party thereof (which notice shall be accompanied by a statement setting
forth the reasonable calculation thereof), such Credit Party shall pay to such
Indemnified Tax Person the amount of such Indemnified Tax.
(c) Tax on Indemnified Taxes. If any amounts are payable by any Credit
------------------------
Party in respect of Indemnified Taxes pursuant to Section 2.8(a) or (b), such
Credit Party agrees to pay to the applicable Indemnified Tax Person, within five
days of written request therefor (which request shall set forth the reasonable
calculations thereof), an amount equal to all Taxes imposed with respect to such
amounts as such Indemnified Tax Person shall determine in good faith are payable
by such Indemnified Tax Person or any affiliate thereof in respect of such
amounts and in respect of any amounts paid to or on behalf of such Indemnified
Tax Person pursuant to this Section 2.8(c).
(d) Exception for Existing Taxes. No amount shall be required to be
----------------------------
paid to any Indemnified Tax Person under Section 2.8(a) or (b) with respect to
any Indemnified Tax to the extent that such Indemnified Tax would have been
required to have been paid under any law, rule, regulation, order, directive,
treaty or guideline in effect on the Relevant Date.
(e) U.S. Tax Certificates. Each Lender that is organized under the laws
---------------------
of any jurisdiction other than the United States or any political subdivision
thereof shall deliver to the Administrative Agent for transmission to the
Borrower, on or prior to the Relevant Date, and at such other times as may be
necessary in the determination of the Borrower, any other Credit Party or the
Administrative Agent (each in the reasonable exercise of its discretion), such
certificates, documents or other evidence, properly completed and duly executed
by such Lender (including Internal Revenue Service Form 1001 or Form 4224 (or,
in each case, any equivalent or successor form)) to establish that such Lender
is not subject to deduction or withholding of
United States federal income tax under Section 1441 or 1442 of the Code or
otherwise (or under any comparable provisions of any successor statute) with
respect to any payments to such Lender of principal, interest, fees or other
amounts payable under the Loan Documents or in the case of a Lender that is
claiming an 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" two accurate and complete signed original Forms W-8 (or any successor
form prescribed by the Internal Revenue Service, certifying that such Lender is
exempt from United States withholding tax on payments under this Agreement or
the Notes) and, if such Lender delivers such Forms W-8 (or successor form), two
signed certificates that such Lender is not (1) a "bank" for purposes of Section
881(c) of the Internal Revenue Code, (2) is not a 10% shareholder (within the
meaning of Section 871(h)(3)(B) of the Internal Revenue Code) of the Borrower
and (3) is not a controlled foreign corporation related to the Borrower (within
the meaning of Section 864(d)(4) of the Internal Revenue Code). No Credit Party
shall be required to pay any additional amount to any such Lender under Section
2.8(a)(iii) if such Lender shall have failed to satisfy the requirements of the
immediately preceding sentence; provided that, if such Lender shall have
satisfied such requirements on the Relevant Date, nothing in this Section 2.8(e)
shall relieve any Credit Party of its obligation to pay any additional amounts
pursuant to Section 2.8(a)(iii) in the event that, as a result of any change in
applicable law (including any change in the interpretation thereof), such Lender
is no longer properly entitled to deliver certificates, forms, documents or
other evidence at a subsequent date establishing the fact that such Lender is
not subject to deduction or withholding as described in the immediately
preceding sentence.
(f) Other Tax Certificates. Each Indemnified Tax Person agrees to use
----------------------
reasonable efforts to deliver to any Credit Party or the Administrative Agent,
promptly upon any reasonable request therefor from time to time by such Credit
Party or the Administrative Agent, such certificates, forms, documents and
information as may be required by applicable law, regulation, order, directive,
guideline or treaty from time to time, provided, however, that if such
-------- -------
Indemnified Tax Person is or becomes unable by virtue of any change in
applicable law, regulation or treaty, to establish such exemption or reduction,
such Credit Party shall nonetheless remain obligated under Section 2.8(a) to pay
the amounts described therein, and provided further that no Indemnified Tax
-------- -------
Person shall be required to take any action under this Section 2.8(f) which, in
the sole discretion of such Indemnified Tax Person, would cause such Indemnified
Tax Person or any affiliate thereof to suffer a material economic, legal or
regulatory disadvantage.
(g) Other Taxes. Each Credit Party agrees to pay any current or future
-----------
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies that arise from any payment made hereunder or from the execution,
delivery or registration of, or any amendment, supplement or modification of, or
any waiver or consent under or in respect of, the Loan Documents or otherwise
with respect to, the Loan Documents.
(h) Refunds. Upon the reasonable request of a Credit Party, and at
-------
such Credit Party's expense, each Indemnified Tax Person shall cooperate with
the such Credit Party in seeking to obtain refunds of Taxes paid by such Credit
Party, provided that each such Indemnified Tax Person shall have no obligation
to (i) engage in any litigation, hearing or proceeding with respect
thereto or (ii) disclose any tax return or other confidential information other
than information reasonably requested by the applicable taxing authority which,
in the opinion of such Indemnified Tax Person, is not detrimental to such
Indemnified Tax Person. If an Indemnified Tax Person shall receive a refund (or
a refund in the form of a credit) from a taxing authority (as a result of any
error in the imposition of Tax by such taxing authority) of any Taxes paid by
such Credit Party pursuant to this Section 2.8, such Indemnified Tax Person, so
long as no Event of Default shall then exist, shall promptly pay to such Credit
Party the amount so received.
2.9 Illegality
----------
Notwithstanding any other provisions herein, if any law, regulation,
treaty or directive, or any change therein or in the interpretation or
application thereof, in each case enacted, adopted, promulgated, approved or
issued after the date hereof, shall make it unlawful for any Lender to make or
maintain its Eurodollar Advances as contemplated by this Agreement, (i) the
commitment of such Lender hereunder to (A) make Eurodollar Advances or (B)
convert ABR Advances to Eurodollar Advances, shall forthwith be suspended and
(ii) such Lender's Loans then outstanding as Eurodollar Advances affected
hereby, if any, shall be converted automatically to ABR Advances on the last day
of the then current Interest Period applicable thereto or within such earlier
period as required by law. If the commitment of any Lender with respect to
Eurodollar Advances is suspended pursuant to this Section and such Lender shall
notify the Administrative Agent and the Borrower that it is once again legal for
such Lender to make or maintain Eurodollar Advances, such Lender's commitment to
make or maintain Eurodollar Advances shall be reinstated.
2.10 Increased Costs
---------------
In the event that any law, regulation, treaty or directive hereafter
enacted, adopted, promulgated, approved or issued or any change in any existing
law, regulation, treaty or directive or in the interpretation or application
thereof by any Governmental Authority charged with the administration thereof or
compliance by any Lender (or any Person directly or indirectly owning or
controlling such Lender) with any request or directive from any central bank or
other Governmental Authority made or issued after the date hereof:
(a) does or shall subject any Lender to any Taxes of any kind whatsoever
with respect to any Eurodollar Advances or its obligations under this Agreement
to make Eurodollar Advances, or change the basis of taxation of payments to any
Lender of principal, interest or any other amount payable hereunder in respect
of its Eurodollar Advances, including any Taxes required to be withheld from any
amounts payable under the Loan Documents (except for imposition of, or change in
the rate of, Tax on the Income of such Lender or its Applicable Lending Office
for any of such Advances by the jurisdiction in which such Lender is
incorporated or has its principal office or such Applicable Lending Office,
including, in the case of Lenders incorporated in any State of the United
States, such tax imposed by the United States); or
(b) does or shall impose, modify or make applicable any reserve, special
deposit, compulsory loan, assessment, increased cost or similar requirement
against assets held by, or deposits of, or advances or loans by, or other credit
extended by, or any other acquisition of funds by, any office of such Lender in
respect of its Eurodollar Advances that is not otherwise included in the
determination of a Eurodollar Rate; and the result of any of the foregoing is to
increase the cost to such Lender of making, renewing, converting, continuing or
maintaining its Eurodollar Advances or its commitment to make such Eurodollar
Advances, or to reduce any amount receivable hereunder in respect of its
Eurodollar Advances then, in any such case, the Borrower shall pay such Lender,
upon its demand, any additional amounts necessary to compensate such Lender for
such additional cost or reduction in such amount receivable that such Lender
deems to be material as determined by such Lender; provided, however, that
nothing in this Section shall require the Borrower to indemnify the Lenders with
respect to Taxes for which the Borrower has no obligation under Section 2.8. No
failure by any Lender to demand compensation for any increased cost during any
Interest Period shall constitute a waiver of such Lender's right to demand such
compensation at any time. A statement setting forth the calculations of any
additional amounts payable pursuant to the foregoing sentence submitted by a
Lender to the Borrower shall be conclusive absent manifest error.
2.11 Indemnification for Loss
------------------------
Notwithstanding anything contained herein to the contrary, if (i) the
Borrower shall fail to borrow or convert or continue a Eurodollar Advance on the
Funding Date or Conversion/Continuation Date after it shall have given notice to
do so in which it shall have requested a Eurodollar Advance, (ii) a Eurodollar
Advance shall be terminated or repaid or prepaid for any reason prior to the
last day of the Interest Period applicable thereto, or (iii) while a Eurodollar
Advance is outstanding, any repayment or prepayment of such Eurodollar Advance
is made for any reason (including, without limitation, as a result of
acceleration or illegality) on a date which is prior to the last day of the
Interest Period applicable thereto, the Borrower agrees to indemnify each Lender
against, and to pay on demand directly to such Lender, any loss or expense
suffered by such Lender as a result of such failure to borrow, convert or
continue, termination, repayment or prepayment, including, without limitation,
an amount, if greater than zero, equal to:
A x (B-C) x D/360
where:
"A" equals, in the case of a Eurodollar Advance, such Lender's Pro Rata Share of
the Affected Principal Amount;
"B" equals the Eurodollar Rate (expressed as a decimal), applicable to such
Eurodollar Advance;
"C" equals the applicable Eurodollar Rate (expressed as a decimal), in effect on
or about the first day of the applicable Remaining Interest Period, based on the
applicable rates offered or
bid, as the case may be, on or about such date, for deposits in an amount equal
approximately to such Lender's Pro Rata Share of the Affected Principal Amount,
in each case, with an Interest Period equal approximately to the applicable
Remaining Interest Period, as determined by such Lender; and
"D" equals the number of days from and including the first day of the applicable
Remaining Interest Period to but excluding the last day of such Remaining
Interest Period;
and any other out-of-pocket loss or expense (including any internal processing
charge customarily charged by such Lender) suffered by such Lender in connection
with such Eurodollar Advance, including, without limitation, in liquidating or
employing deposits acquired to fund or maintain the funding of its Pro Rata
Share of the Affected Principal Amount, or redeploying funds prepaid or repaid,
in amounts that correspond to its Pro Rata Share of the Affected Principal
Amount. Each determination by the Administrative Agent or a Lender pursuant to
this Section shall be conclusive and binding on the Borrower absent manifest
error.
2.12 Option to Fund
--------------
Each Lender has indicated that, if the Borrower requests a Eurodollar
Advance, such Lender may wish to purchase one or more deposits in order to fund
or maintain its funding of such Eurodollar Advance during the Interest Period in
question; it being understood that the provisions of this Agreement relating to
such funding are included only for the purpose of determining the rate of
interest to be paid on such Eurodollar Advance and for purposes of determining
amounts owing under Sections 2.10, 2.11, and 2.14. Each Lender shall be
entitled to fund and maintain its funding of all or any part of each Eurodollar
Advance made by it in any manner it sees fit, but all such determinations shall
be made as if such Lender had actually funded and maintained its funding of such
Eurodollar Advance during the applicable Interest Period through the purchase of
deposits in an amount equal to such Eurodollar Advance and having a maturity
corresponding to such Interest Period. The obligations of the Borrower under
Sections 2.7, 2.8, 2.9, 2.10, 2.11, and 2.14 shall survive the termination of
the Aggregate Term Loan Commitments, the payment of the Notes, and all other
amounts payable under the Loan Documents.
2.13 Use of Proceeds
---------------
The proceeds of the Loans shall be used (i) initially, to pay in full
the Existing Indebtedness and cancel all commitments thereunder, and (ii)
thereafter, for Permitted Acquisitions and the general corporate purposes of the
Borrower and its Subsidiaries. Notwithstanding anything to the contrary
contained in any Loan Document, the Borrower agrees that no part of the proceeds
of any Loan will be used, directly or indirectly, for a purpose that violates
any law, including, without limitation, the provisions of Regulations G, U or X
of the Board of Governors of the Federal Reserve System, as amended.
2.14 Capital Adequacy
----------------
If (i) the enactment or promulgation of, or any change or phasing in
of, any United States or foreign law or regulation or in the interpretation
thereof by any Governmental Authority charged with the administration thereof
after the date hereof or (ii) compliance with any directive or guideline from
any central bank or United States or foreign Governmental Authority (whether
having the force of law) promulgated or made after the date hereof, affects or
would affect the amount of capital required to be maintained by a Lender (or any
lending office of such Lender) or any Person directly or indirectly owning or
controlling such Lender, or imposes any restriction on or otherwise adversely
affects such Lender (or any lending office of such Lender) or any Person
directly or indirectly owning or controlling such Lender, and such Lender shall
have determined that such enactment, promulgation, change or compliance has the
effect of reducing the rate of return on such Lender's (or such Person's)
capital or the asset value to such Lender of any Loan made by such Lender as a
consequence, directly or indirectly, of its obligations to make and maintain the
funding of its Loans at a level below that which such Lender (or such Person)
could have achieved but for such enactment, promulgation, change or compliance
(after taking into account such Lender's (or such Person's) policies regarding
capital adequacy) by an amount deemed by such Lender to be material, then, upon
demand by such Lender, the Borrower shall promptly pay to such Lender such
additional amount or amounts as shall be sufficient to compensate such Lender
(or such Person) for such reduction in such rate of return or asset value. A
certificate in reasonable detail as to such amounts submitted to the Borrower
and the Administrative Agent setting forth the determination of such amount or
amounts that will compensate such Lender for such reductions shall be presumed
correct absent manifest error.
2.15 Administrative Agent's Records
------------------------------
The Administrative Agent's records regarding the amount of each Loan,
each payment by the Borrower of principal and interest on the Loans and other
information relating to the Loans shall be presumptively correct absent manifest
error.
3. FEES; PAYMENTS
--------------
3.1. Commitment Fee
--------------
(a) The Borrower agrees to pay to the Administrative Agent, for the
account of the Lenders in accordance with each Lender's Pro Rata Share, a fee
(the "Commitment Fee") for each day during the Term Loan Commitment Period
--------------
(including the first day thereof but excluding the last day thereof), equal to
the Aggregate Term Loan Commitments on such day multiplied by 0.30% per annum.
(b) The Commitment Fee shall be payable on the last day of the Term Loan
Commitment Period. The Commitment Fee shall be calculated on the basis of a
360-day year for the actual number of days elapsed.
3.2 Pro Rata Treatment and Application of Principal Payments
--------------------------------------------------------
Each payment, including each prepayment, of principal and interest on
the Loans and of the Commitment Fee shall be made by the Borrower without set-
off or counterclaim and shall be made to the Administrative Agent at its office
set forth in Section 11.2 in Dollars and in funds immediately available to the
Administrative Agent at such office by 1:30 P.M. on the due date for such
payment, and, promptly upon receipt thereof by the Administrative Agent, shall
be remitted by the Administrative Agent, in like funds as received, to the
Lenders according to the Pro Rata Share of each Lender; provided, that each
--------
prepayment made pursuant to Section 2.4(d) shall be remitted by the
Administrative Agent, in like funds as received, to the Accepting Lenders
according to the Pro Rata Share of each Accepting Lender. The failure of the
Borrower to make any such payment by such time shall not constitute a default
hereunder, provided that such payment is made on such due date, but any such
payment made after 1:30 P.M. on such due date shall be deemed to have been made
on the next Business Day for the purpose of calculating interest on amounts
outstanding on the Loans. If any payment hereunder or under the Notes shall be
due and payable on a day that is not a Business Day, the due date thereof
(except as otherwise provided in the definition of Interest Period) shall be
extended to the next Business Day and (except with respect to payments in
respect of the Commitment Fee) interest shall be payable at the applicable rate
specified herein during such extension. If any payment is made with respect to
any Eurodollar Advance prior to the last day of the applicable Interest Period,
the Borrower shall indemnify each Lender in accordance with Section 2.11.
3.3 Failure To Fund Fee
-------------------
If the Term Loans are not borrowed during the Term Loan Commitment
Period, the Borrower agrees to pay to the Administrative Agent, for the account
of the Lenders in accordance with each Lender's Pro Rata Share, a fee equal to
the initial Aggregate Term Loan Commitments multiplied by 1.5%. Such fee shall
----------
be payable on the last day of the Term Loan Commitment Period, and shall
represent the amount that each Lender would have received had Borrower drawn on
the Term Loans during the Term Loan Commitment Period and immediately prepaid
the Term Loans.
4. REPRESENTATIONS AND WARRANTIES
------------------------------
In order to induce the Administrative Agent and the Lenders to enter into
this Agreement and to make the Term Loans, the Borrower makes the following
representations and warranties to the Administrative Agent and each Lender as of
the date of this Agreement and the Funding Date:
4.1 Subsidiaries; Capitalization
----------------------------
The Borrower has only the Subsidiaries permitted by this Agreement.
Schedule 4.1 sets forth the Subsidiaries of the Borrower as of the Effective
Date. The shares of each corporate Subsidiary are duly authorized, validly
issued, fully paid and nonassessable and are owned free and clear of any Liens.
The interest of the Borrower in each non-corporate Subsidiary is owned free and
clear of any Liens. The outstanding capital Stock of each corporate Subsidiary
of the Borrower on the Effective Date and the ownership interest in each non-
corporate Subsidiary are as set forth on Schedule 4.1. As of the Effective
Date, the owner of each issue of capital Stock listed on Schedule 4.1 is the
registered and beneficial owner thereof. No Subsidiary has issued any
securities convertible into Stock (or other equity interest) of such Subsidiary
and there are no outstanding options or warrants to purchase Stock of such
Subsidiary of any class or kind, and there are no voting trusts or similar
agreements with respect thereto or other agreements or understandings with
respect thereto which would restrict or limit the sale, pledge, assignment or
other disposition thereof, including, without limitation, any right
of first refusal, option, redemption, call or other rights with respect thereto,
whether similar or dissimilar to any of the foregoing, or which would dilute the
interest of the Borrower therein.
4.2 Existence and Power
-------------------
Each of the Borrower, its Subsidiaries and the Credit Parties is duly
organized or formed and validly existing in good standing under the laws of the
jurisdiction of its incorporation or formation, has all requisite power and
authority to own its Property and to carry on its business as now conducted, and
is in good standing and authorized to do business as a foreign corporation in
each jurisdiction in which the nature of the business conducted therein or the
Property owned therein makes such qualification necessary, except in each case
where such failure so to qualify could not reasonably be expected to have a
Material Adverse Effect.
4.3 Authority
---------
Each of the Borrower, its Subsidiaries and the Credit Parties has full
legal power and authority to enter into, execute, deliver and perform the terms
of the Loan Documents to which it is a party, and the transactions contemplated
thereby (including the Transactions) and, in the case of the Borrower, to make
the borrowings contemplated hereby and by the Notes, to execute, deliver and
carry out the terms of the Notes and to incur the obligations provided for
herein and therein, all of which have been duly authorized by all proper and
necessary corporate or other applicable action and are in full compliance with
its Certificate of Incorporation or By-Laws or its other organization documents.
4.4 Binding Agreement
-----------------
The Loan Documents (other than the Notes) constitute, and the Notes,
when issued and delivered pursuant hereto for value received, will constitute,
the valid and legally binding obligations of the Credit Parties in each case, to
the extent it is a party thereto, enforceable in
accordance with their respective terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights generally.
4.5 Litigation
----------
Except as set forth on Schedule 4.5, there are no actions, suits or
proceedings at law or in equity or by or before any Governmental Authority
(whether purportedly on behalf of the Borrower, any of its Subsidiaries or any
Credit Party) pending or, to the knowledge of the Borrower, threatened against
the Borrower, any of its Subsidiaries or any Credit Party or any of their
respective Properties or rights, that (i) if adversely determined, could
reasonably be expected to have a Material Adverse Effect, (ii) expressly call
into question the validity or enforceability of any of the Loan Documents, or
(iii) could reasonably be expected to result in the rescission, termination or
cancellation of any material franchise, right, license, permit or similar
authorization held by the Borrower or any of its Subsidiaries or any Credit
Party.
4.6 Required Consents
-----------------
Except for information filings required to be made in the ordinary
course of business that are not a condition to the Borrower's performance under
the Loan Documents, no consent, authorization or approval of, filing with,
notice to, or exemption by, stockholders, any Governmental Authority or any
other Person is required to authorize, or is required in connection with the
execution, delivery and performance of the Loan Documents and the transactions
contemplated thereby (including the Transactions), or is required as a condition
to the validity or enforceability of the Loan Documents.
4.7 No Conflicting Agreements
-------------------------
Neither the Borrower, any of its Subsidiaries nor any Credit Party is
in default under any mortgage, indenture, contract or agreement to which it is a
party, or by which it or any of its Property is bound, the effect of which
default could reasonably be expected to have a Material Adverse Effect. The
execution, delivery or carrying out of the terms of the Loan Documents and the
transactions contemplated hereby and thereby (including the Transactions), will
not constitute a default under, or result in the creation or imposition of, or
obligation to create, any Lien upon any Property of the Borrower or any of its
Subsidiaries or result in a breach of or require the mandatory repayment of or
other acceleration of payment under or pursuant to the terms of any such
mortgage, indenture, contract or agreement.
4.8 Compliance with Applicable Laws
-------------------------------
Neither the Borrower, any of its Subsidiaries nor any Credit Party is
in default with respect to any judgment, order, writ, injunction, decree or
decision of any Governmental Authority the effect of which default could
reasonably be expected to have a Material Adverse Effect. The Borrower, each of
its Subsidiaries and each Credit Party is complying in all material respects
with all statutes, regulations, rules and orders applicable to Borrower, such
Subsidiary or such Credit Party of all Governmental Authorities, including,
without limitation, Environmental Laws and ERISA, the violation of which could
reasonably be expected to have a Material Adverse Effect, provided that this
sentence shall not extend to matters relating to compliance with federal
Medicaid and Medicare statutes or the regulations promulgated pursuant to such
statutes or related state or local statutes or regulations to the extent such
matters are covered by Sections 4.19 and 4.20.
4.9 Taxes
-----
Except as provided on Schedule 4.9, all tax returns required to be
filed by or on behalf of the Borrower, its Subsidiaries and each Credit Party
have been filed and payment, and adequate provision for the payment, has been
made for all taxes shown to be due and payable on said returns or in any
assessments made against the Borrower, its Subsidiaries or any Credit Party
(other than those being contested as required under Section 7.4) that would be
material to the Borrower or its Subsidiaries taken as a whole, and no tax liens
(other than a Permitted Lien described in Section 8.2(a)) have been filed with
respect to the Borrower, its Subsidiaries or any Credit Party. The charges,
accruals and reserves on the books of the Borrower, each of its Subsidiaries and
each Credit Party with respect to all federal, state, local and other taxes are,
to the best knowledge of the Borrower, adequate for the payment of all such
material taxes, and the Borrower knows of no unpaid assessment that is due and
payable against it, any of its Subsidiaries or any Credit Party or any claims
being asserted that could reasonably be expected to have a Material Adverse
Effect, except such thereof as are being contested as required under Section
7.4, and for which adequate reserves have been set aside in accordance with
GAAP.
4.10 Governmental Regulations
------------------------
Neither the Borrower, any of its Subsidiaries nor any Credit Party is
subject to regulation under the Public Utility Holding Company Act of 1935, as
amended, the Federal Power Act or the Investment Company Act of 1940, as
amended, and neither the Borrower, any of its Subsidiaries nor any Credit Party
is subject to any statute or regulation that prohibits or restricts the
incurrence of Indebtedness under the Loan Documents, including, without
limitation, statutes or regulations relative to common or contract carriers or
to the sale of electricity, gas, steam, water, telephone, telegraph or other
public utility services.
4.11 Federal Reserve Regulations; Use of Loan Proceeds
-------------------------------------------------
Neither the Borrower, any of its Subsidiaries nor any Credit Party is
engaged principally, or as one of its important activities, in the business of
extending credit for the purpose of purchasing or carrying any Margin Stock. No
part of the proceeds of the Loans will be used, directly or indirectly, for a
purpose that violates any law, rule or regulation of any Governmental Authority,
including, without limitation, the provisions of Regulations G, T, U or X of the
Board of Governors of the Federal Reserve System, as amended. No part of the
proceeds of the
Loans will be used, directly or indirectly, to purchase or carry Margin Stock or
to extend credit to others for the purpose of purchasing or carrying Margin
Stock.
4.12 Plans
-----
The only Pension Plans in effect as of the Effective Date (the
"Existing Pension Plans") are listed on Schedule 4.12. Each Employee Benefit
-----------------------
Plan of the Borrower, its Subsidiaries, the Credit Parties and the ERISA
Affiliates is in compliance with ERISA and the Code, where applicable, in all
material respects. As of the Effective Date (i) the amount of all Unfunded
Pension Liabilities under the Pension Plans, excluding any plan that is a
Multiemployer Plan, does not exceed $0, and (ii) the amount of the aggregate
Unrecognized Retiree Welfare Liability under all applicable Employee Benefit
Plans does not exceed $100,000. Each of the Borrower, its Subsidiaries, the
Credit Parties and the ERISA Affiliates has complied with the requirements of
Section 515 of ERISA with respect to each Pension Plan that is a Multiemployer
Plan. As of the Effective Date, the aggregate potential annual withdrawal
liability payments, as determined in accordance with Title IV of ERISA, of the
Borrower, its Subsidiaries, the Credit Parties and the ERISA Affiliates with
respect to all Pension Plans that are Multiemployer Plans is approximately $0.
Each of the Borrower, its Subsidiaries, the Credit Parties and/or any ERISA
Affiliate has, as of the Effective Date, made all material contributions or
payments to or under each such Pension Plan required by law or the terms of such
Pension Plan or any contract or agreement with respect thereto. No material
liability to the PBGC has been, or is expected by the Borrower, any of its
Subsidiaries, any Credit Party or any ERISA Affiliate to be, incurred by the
Borrower, such Subsidiary, such Credit Party or any ERISA Affiliate. Liability,
as referred to in this Section includes any joint and several liability. Each
Employee Benefit Plan that is a group health plan within the meaning of Section
5000(b)(1) of the Code is in material compliance with the continuation of health
care coverage requirements of Section 4980B of the Code.
4.13 Financial Statements
--------------------
The Borrower has heretofore delivered to the Administrative Agent and
the Lenders copies of the audited consolidated balance sheet of the Borrower as
of December 31, 1996 and the related consolidated statements of income, retained
earnings and cash flows for the fiscal year then ended (with the related notes
and schedules, the "Financial Statements"). The Financial Statements fairly
--------------------
present the consolidated financial condition and results of the operations of
the Borrower and its Subsidiaries, as the case may be, as of the dates and for
the periods indicated therein and have been prepared in conformity with GAAP.
As of the Effective Date, except as reflected in the Financial Statements or in
the notes thereto, neither the Borrower nor any of its Subsidiaries has any
obligation or liability of any kind (whether fixed, accrued, contingent,
unmatured or otherwise) that, in accordance with GAAP, should have been shown on
the Financial Statements and was not. Since the date of the Financial
Statements there has been no Material Adverse Change.
4.14 Property
--------
Each of the Borrower, its Subsidiaries and each Credit Party has good
and marketable title to all of its Property, title to which is material to the
Borrower and its Subsidiaries taken as a whole, subject to no Liens, except for
Permitted Liens.
4.15 Franchises, Intellectual Property, Etc.
---------------------------------------
Each of the Borrower, its Subsidiaries and each Credit Party possesses
or has the right to use all franchises, Intellectual Property, licenses and
other rights as are material and necessary for the conduct of its business, and
with respect to which it is in compliance, with no known conflict with the valid
rights of others that would reasonably be expected to have a Material Adverse
Effect. No event has occurred that permits or, to the best knowledge of the
Borrower, after notice or the lapse of time or both, or any other condition,
could reasonably be expected to permit, the revocation or termination of any
such franchise, Intellectual Property, license or other right which revocation
or termination could reasonably be expected to have a Material Adverse Effect.
4.16 Environmental Matters
---------------------
(a) The Borrower, each of its Subsidiaries and each Credit Party is in
material compliance with the requirements of all applicable Environmental Laws.
(b) No Hazardous Substances have been generated or manufactured on,
transported to or from, treated at, stored at or discharged from any Real
Property in material violation of any Environmental Laws; no Hazardous
Substances have been discharged into subsurface waters under any Real Property
in material violation of any Environmental Laws; no Hazardous Substances have
been discharged from any Real Property on or into Property or waters (including
subsurface waters) adjacent to any Real Property in material violation of any
Environmental Laws; and there are not now, nor ever have been, on any Real
Property any underground or above ground storage tanks in material violation of
any Environmental Laws.
(c) Neither the Borrower, nor any of its Subsidiaries or any Credit Party
(i) has received notice (written or oral) or otherwise learned of any claim,
demand, suit, action, proceeding, event, condition, report, directive, Lien,
violation, non-compliance or investigation indicating or concerning any
potential or actual material liability (including, without limitation, potential
material liability for enforcement, investigatory costs, cleanup costs,
government response costs, removal costs, remedial costs, natural resources
damages, Property damages, personal injuries or penalties) arising in connection
with: (x) any non-compliance with or violation of the requirements of any
applicable Environmental Laws, or (y) the presence of any Hazardous Substance on
any Real Property (or any Real Property previously owned by the Borrower, any of
its Subsidiaries or any Credit Party) or the release or threatened release of
any Hazardous Substance into the environment, (ii) has knowledge of any
threatened or actual material liability in connection with the presence of any
Hazardous Substance on any Real Property (or any Real
Property previously owned by the Borrower, any of its Subsidiaries or any Credit
Party) or the release or threatened release of any Hazardous Substance into the
environment, (iii) has received notice of any federal or state investigation
evaluating whether any material remedial action is needed to respond to the
presence of any Hazardous Substance on any Real Property (or any Real Property
previously owned by the Borrower, any of its Subsidiaries or any Credit Party)
or a release or threatened release of any Hazardous Substance into the
environment for which the Borrower, any of its Subsidiaries or any Credit Party
is or may be liable, or (iv) has received notice that the Borrower, any of its
Subsidiaries or any Credit Party is or may be liable for a material amount to
any Person under any Environmental Law.
(d) For purposes of subsections (a), (b) and (c) of this Section 4.16
"material" shall mean any liability or potential liability of the Borrower and
its Subsidiaries on a Consolidated basis for an aggregate amount in excess of
$1,000,000.
4.17 Labor Relations
---------------
There are no material controversies pending between the Borrower, any
of its Subsidiaries or any Credit Party and any of their respective employees,
that could reasonably be expected to have a Material Adverse Effect.
4.18 Burdensome Obligations
----------------------
Neither the Borrower, any of its Subsidiaries nor any Credit Party is
a party to or bound by any franchise, agreement, deed, lease or other
instrument, or subject to any restriction that, in the opinion of the management
of the Borrower, is so unusual or burdensome, in the context of its business, as
in the foreseeable future might materially and adversely affect or impair the
revenue or cash flow of the Borrower and its Subsidiaries taken as a whole, or
the ability of the Borrower or its Subsidiaries taken as a whole to perform its,
or their, obligations under the Loan Documents to which it is, or they are, a
party. The Borrower does not presently anticipate that future expenditures by
the Borrower, any of its Subsidiaries or any Credit Party needed to meet the
provisions of federal or state statutes, orders, rules or regulations will be so
burdensome as to result in a Material Adverse Effect or Material Adverse Change.
4.19 Medicare Participation/Accreditation
------------------------------------
The facilities operated by the Borrower and its Subsidiaries (the
"Facilities") are qualified for participation in the Medicare and Medicaid
----------
programs (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. There is no pending or, to Borrower's
knowledge, threatened proceeding or investigation by any of the Government
Reimbursement Programs, or for reimbursement of amounts due or to become due to
the facilities from the Government Reimbursement Programs.
4.20 Fraud and Abuse
---------------
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 wilfully violated the federal Medicare and Medicaid
statutes, 42 U.S.C. (S)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 third-party 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 third-
party 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.
4.21 No Misrepresentation
--------------------
The information provided by the Borrower, any of its Subsidiaries or
any Credit Party in connection with the transactions contemplated hereby, taken
as a whole does not contain a misstatement of material fact, or, to the best
knowledge of the Borrower, omit to state a material fact required to be stated
in order to make the statements therein contained not misleading in the light of
the circumstances under which made. All financial projections, if any, delivered
by the Borrower to the Administrative Agent and the Lenders were based on good
faith estimates and assumptions believed by the Borrower to be reasonable at the
time made.
5. CONDITIONS TO EFFECTIVENESS OF AGREEMENT
----------------------------------------
The effectiveness of this Agreement and the obligation of each Lender to
make its Term Loan on the Funding Date shall be subject to the fulfillment of
the conditions precedent set forth in Section 6 and the following conditions
precedent:
5.1 Evidence of Action
------------------
(a) The Borrower. The Administrative Agent shall have received a
------------
certificate, dated the Effective Date of the Secretary or Assistant Secretary of
the Borrower (i) attaching a true and complete copy of the resolutions of its
Board of Directors and of all documents evidencing other necessary corporate
action (in form and substance satisfactory to the Administrative Agent) taken by
it to authorize the Loan Documents to which it is a party and the transactions
contemplated thereby, (ii) attaching a true and complete copy of its Certificate
of Incorporation and By-Laws, (iii) setting forth the incumbency of its officer
or officers who may sign such Documents, including therein a signature specimen
of such officer or officers and (iv) attaching a certificate of good standing of
the Secretary of State of the States of Delaware and California.
(b) The Guarantors. The Administrative Agent shall have received a
--------------
certificate, dated the Effective Date, of the Secretary or Assistant Secretary
of each Guarantor (i) attaching a true and complete copy of the resolutions of
its Board of Directors and of all documents evidencing other necessary corporate
action (in form and substance satisfactory to the Administrative Agent) taken by
it to authorize the Loan Documents to which it is a party and the transactions
contemplated thereby, (ii) attaching a true and complete copy of its Articles of
Incorporation and By-Laws, (iii) setting forth the incumbency of its officer or
officers who may sign such Documents, including therein a signature specimen of
such officer or officers and (iv) attaching a certificate of good standing of
the Secretary of State of such Guarantor's jurisdiction of organization and
principal place of business.
5.2 This Agreement
--------------
The Administrative Agent shall have received counterparts of this
Agreement signed by each of the parties hereto (or receipt by the Administrative
Agent from a party hereto of a fax signature page signed by such party which
shall have agreed to promptly provide the Administrative Agent with originally
executed counterparts hereof).
5.3 Notes
-----
The Administrative Agent shall have received the Term Loan Notes, duly
executed by an Authorized Signatory of the Borrower.
5.4 Subsidiary Guaranty
-------------------
The Collateral Agent shall have received the Subsidiary Guaranty dated
the date hereof duly executed by an Authorized Signatory of each Guarantor.
5.5 Borrower Pledge Agreement
-------------------------
The Collateral Agent shall have received the Borrower Pledge
Agreement, duly executed by an Authorized Signatory of the Borrower and dated
the date hereof, together with one or more
share certificates, representing (i) 100% of the issued and outstanding capital
Stock of each First-Tier wholly-owned Domestic Subsidiary of the Borrower, and
(ii) 66% of the issued and outstanding capital Stock of each First-Tier wholly-
owned Foreign Subsidiary of the Borrower, together with an undated stock power,
executed in blank by an Authorized Signatory of the Borrower and bearing a
signature guarantee in all respects satisfactory to the Collateral Agent, in
respect of each such certificate; provided that if the Borrower is unable to
--------
provide a pledge of the capital Stock of such Foreign Subsidiary on the date
hereof pursuant to the preceding clause (ii), the Borrower need not comply with
such clause (ii) on the date hereof so long as the Borrower provides such pledge
by December 24, 1997, together with, where reasonably available, the favorable
written opinions of counsel with respect to the validity, perfection and
priority of such Lien under the law of the jurisdictions governing such Lien.
5.6 Subsidiary Pledge Agreement
---------------------------
The Collateral Agent shall have received the Subsidiary Pledge
Agreement, duly executed by an Authorized Signatory of TRC and dated the date
hereof, together with one or more share certificates, representing (i) 100% of
the issued and outstanding capital Stock of each Guarantor owned by TRC, and
(ii) 66% of the issued and outstanding capital Stock of Total Renal Care
International Ltd., a Foreign Subsidiary of TRC, together with an undated stock
power, executed in blank by an Authorized Signatory of TRC and bearing a
signature guarantee in all respects satisfactory to the Collateral Agent, in
respect of each such certificate; provided that if TRC is unable to provide a
--------
pledge of the capital Stock of such Foreign Subsidiary on the date hereof
pursuant to the preceding clause (ii), TRC need not comply with such clause (ii)
on the date hereof so long as TRC provides such pledge by December 24, 1997,
together with, where reasonably available, the favorable written opinions of
counsel with respect to the validity, perfection and priority of such Lien under
the law of the jurisdictions governing such Lien.
5.7 Intercreditor Agreement
-----------------------
The Collateral Agent, the Administrative Agent, BNY, as administrative
agent under the Revolving Credit Facility, and the Credit Parties shall have
executed and delivered to each other the Intercreditor Agreement.
5.8 Revolving Credit Facility
-------------------------
The Revolving Credit Facility shall have been duly executed and shall
have become effective, and the first borrowing thereunder shall have been made,
and the Administrative Agent shall have received a certificate of an Authorized
Signatory of the Borrower attaching a true and correct copy of the executed
Revolving Credit Facility, which shall be in form and substance satisfactory to
the Administrative Agent and Required Lenders.
5.9 Litigation
----------
There shall be no injunction, writ, preliminary restraining order or
other order of any nature issued by any Governmental Authority in any respect
affecting the transactions provided for herein and no action or proceeding by or
before any Governmental Authority shall have been commenced and be pending or,
to the knowledge of the Borrower, threatened, seeking to prevent or delay the
transactions contemplated by the Loan Documents (including the Transactions) or
challenging any other terms and provisions thereof or seeking any damages in
connection therewith, and the Administrative Agent shall have received a
certificate of an Authorized Signatory of the Borrower to the foregoing effects.
5.10 Existing Indebtedness
---------------------
Prior to or simultaneously with the making of the first Loans, the
Administrative Agent shall have received evidence satisfactory to it that the
Existing Indebtedness has been repaid in full and all commitments thereunder
cancelled pursuant to Section 2.13. The Borrower shall have delivered to the
Administrative Agent all termination statements, satisfactions and releases as
to any financing statements which shall release all liens securing any and all
Existing Indebtedness and other releases relating to any guarantees executed in
connection therewith.
5.11 Opinions of Counsel to the Credit Parties
-----------------------------------------
The Administrative Agent shall have received opinions of (i) the
general counsel to the Borrower and the other Credit Parties, addressed to the
Administrative Agent, the Collateral Agent, the Syndication Agent, the Lenders,
and Special Counsel, and dated the Effective Date, substantially in the form of
Exhibit F-I and (ii) ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel to the Borrower and the
other Credit Parties, addressed to the Administrative Agent, the Collateral
Agent, the Syndication Agent, the Lenders, and the Special Counsel, and dated
the Effective Date, substantially in the form of Exhibit F-II. It is understood
that such opinions are being delivered to the Administrative Agent, the
Collateral Agent, the Syndication Agent, the Lenders, and Special Counsel, upon
the direction of the Credit Parties and that the Administrative Agent, the
Collateral Agent, the Syndication Agent, the Lenders, and Special Counsel may
and will rely upon such opinions.
5.12 Opinion of Special Counsel
--------------------------
The Administrative Agent shall have received an opinion of Special
Counsel, addressed to the Administrative Agent, the Collateral Agent, the
Syndication Agent and the Lenders and dated the Effective Date substantially in
the form of Exhibit G.
5.13 Fees
----
All fees payable to the Administrative Agent, the Co-Arrangers, the
Syndication Agent, and the Lenders on or before the Effective Date shall have
been paid.
5.14 Fees and Expenses of Special Counsel
------------------------------------
The fees and expenses of Special Counsel in connection with the
preparation, negotiation and closing of the Loan Documents shall have been paid.
5.15 Documentation and Proceedings
-----------------------------
All corporate or other organizational and legal proceedings and all
documents and papers in connection with the transactions contemplated by the
Loan Documents shall be satisfactory in form and substance to the Administrative
Agent and the Administrative Agent shall have received all information and
copies of all documents that the Administrative Agent or the Required Lenders
may reasonably have requested in connection therewith, such documents (where
appropriate) to be certified by an Authorized Signatory of the Borrower or
proper Governmental Authorities.
5.16 Required Acts and Conditions
----------------------------
All acts, conditions and things (including, without limitation, the
obtaining of any necessary regulatory approvals and the making of any filings,
recordings or registrations) required to be done, performed and to have happened
on or prior to the Funding Date and that are necessary for the continued
effectiveness of the Loan Documents shall have been done and performed and shall
have happened in due compliance with all applicable laws.
VI. Officers' Certificate Regarding Certain Conditions.
--------------------------------------------------
The following conditions shall be satisfied and the Borrower shall
have delivered to the Administrative Agent an Officers' Certificate, in form and
substance satisfactory to the Administrative Agent, to that effect:
(a) Representations and Warranties. The representations and
------------------------------
warranties contained herein and in the other Loan Documents shall
be true, correct and complete in all material respects on and as
of the Effective Date to the same extent as though made on and as
of that date, except to the extent such representations and
warranties specifically relate to an earlier date, in which case
such representations and warranties shall have been true, correct
and complete in all material respects on and as of such earlier
date.
(b) No Event of Default. No event shall have occurred and be
-------------------
continuing as of the Effective Date that would constitute a
Default or an Event of Default.
(c) Performance of Agreements. Each Credit Party shall have
-------------------------
performed in all material respects all agreements and satisfied
all conditions which the Loan Documents provide shall be performed
or satisfied by such Credit Party on or before the Effective Date.
6.1 Approval of Special Counsel
---------------------------
All legal matters in connection with the making of the Loans shall be
reasonably satisfactory to Special Counsel.
6.2 Agent for Service of Process
----------------------------
The Administrative Agent shall have received a written acceptance of
each Credit Party's agent for service of process referred to in Section 11.17,
substantially in the form of Exhibit M.
6.3 Other Documents
---------------
The Administrative Agent shall have received such other documents as
the Administrative Agent or the Required Lenders shall reasonably request.
7. CONDITIONS OF LENDING
---------------------
The obligation of each Lender to make its Term Loan on the Funding Date is
subject to satisfaction or waiver by Required Lenders of the conditions set
forth in Section 5 and the satisfaction of the following additional conditions
precedent as of the Funding Date:
7.1 Compliance
----------
On the Funding Date and after giving effect to the Loans to be made
thereon, (a) each Credit Party shall be in compliance with all of the terms,
covenants and conditions or each Loan Document to which it is a party, (b) there
shall exist no Default or Event of Default, (c) the representations and
warranties contained in the Loan Documents shall be true and correct with the
same effect as though such representations and warranties had been made on the
Funding Date, and (d) the aggregate outstanding principal balance of the Loans
will not exceed the Aggregate Term Loan Commitments. The borrowing by the
Borrower shall constitute a certification by the Borrower as of the Funding Date
that each of the foregoing matters is true and correct in all respects.
7.2 Loan Closings
-------------
All documents required by the provisions of the Loan Documents to be
executed or delivered to the Administrative Agent on or before the Funding Date
shall have been executed and shall have been delivered at the office of the
Administrative Agent set forth in Section 11.2 on or before the Funding Date.
7.3 Borrowing Request
-----------------
With respect to the making of the Term Loans on the Funding Date, the
Administrative Agent shall have received a Borrowing Request duly executed by an
Authorized Signatory of the Borrower.
7.4 Documentation and Proceedings
-----------------------------
All corporate or other organizational and legal proceedings and all
documents and papers in connection with the transactions contemplated by the
Loan Documents shall be satisfactory in form and substance to the Administrative
Agent and the Administrative Agent shall have received all information and
copies of all documents that the Administrative Agent or the Required Lenders
may reasonably have requested in connection therewith, such documents (where
appropriate) to be certified by an Authorized Signatory of the Borrower or
proper Governmental Authorities.
7.5 Required Acts and Conditions
----------------------------
All acts, conditions and things (including, without limitation, the
obtaining of any necessary regulatory approvals and the making of any filings,
recordings or registrations) required to be done, performed and to have happened
on or prior to such Borrowing Date and that are necessary for the continued
effectiveness of the Loan Documents, shall have been done and performed and
shall have happened in due compliance with all applicable laws.
7.6 Approval of Special Counsel
---------------------------
All legal matters in connection with the making of each Loan shall be
reasonably satisfactory to Special Counsel.
7.7 Supplemental Opinions
---------------------
If requested by the Administrative Agent with respect to the
applicable Borrowing Date, there shall have been delivered to the Administrative
Agent favorable supplementary opinions of counsel to the Borrower or the
Guarantors, addressed to the Administrative Agent, the Co-Arrangers, the
Syndication Agent, the Lenders and Special Counsel and dated such Borrowing
Date, covering such matters incident to the transactions contemplated herein as
the Administrative Agent may reasonably request.
7.8 Other Documents
---------------
The Administrative Agent shall have received such other documents as
the Administrative Agent or the Lenders shall reasonably request.
VIII. No Injunction or Restraining Order. No order, judgment or decree
----------------------------------
of any court, arbitrator or governmental authority shall purport to enjoin or
restrain any Lender from making the Loan to be made by it on the Funding Date.
IX. No Violation of Law. The making of the Loans requested on the
-------------------
Funding Date shall not violate any law including Regulation G, Regulation T,
Regulation U or Regulation X of the Board of Governors of the Federal Reserve
System.
X. No Adverse Litigation. As of the Funding Date, there shall not
---------------------
be pending or, to the knowledge of the Borrower, threatened, any action, suit,
proceeding, governmental investigation or arbitration against or affecting the
Borrower or any of its Subsidiaries or any property of the Borrower or any of
its Subsidiaries that has not been disclosed by the Borrower in writing pursuant
to Section 4.5 prior to the execution of this Agreement, and there shall have
occurred no development not so disclosed in any such action, suit, proceeding,
governmental investigation or arbitration so disclosed, that, in either event,
in the opinion of the Administrative Agent or of Required Lenders, would be
expected to have a Material Adverse Effect; and no injunction or other
restraining order shall have been issued and no hearing to cause an injunction
or other restraining order to be issued shall be pending or noticed with respect
to any action, suit or proceeding seeking to enjoin or otherwise prevent the
consummation of, or to recover any damages or obtain relief as a result of, the
transactions contemplated by this Agreement or the making of Loans hereunder.
11. AFFIRMATIVE COVENANTS
---------------------
The Borrower agrees that, so long as this Agreement is in effect, any
Loan remains outstanding and unpaid, or any other amount is owing under any Loan
Document to any Lender or the Administrative Agent, the Borrower shall:
11.1 Financial Statements
--------------------
Maintain a standard system of accounting in accordance with sound
business practices sufficient to permit preparation of financial statements in
conformity with GAAP, and furnish or cause to be furnished to the Administrative
Agent and each Lender:
(a) As soon as available, but in any event within 90 days after
the end of each fiscal year, (i) a copy of the consolidated balance sheet of the
Borrower and its Subsidiaries as at the end of such fiscal year, together with
the related consolidated statements of income, retained earnings and cash flows
as of and through the end of such fiscal year, setting forth in each case in
comparative form the figures for the preceding fiscal year, and (ii) a copy of
the letter (such letter to conform to the then existing AICPA reporting
guidelines) of the Accountants addressed to the board of directors of the
Borrower to the effect that, in connection with the procedures performed in
obtaining a basis for certification of the audited consolidated financial
statements of the Borrower, the Accountants obtained no knowledge, in the course
of performing their audit,
that would indicate that the Borrower was in violation of any financial covenant
contained in this Agreement or of the existence of any Default by the Borrower
under this Agreement. The consolidated balance sheet and consolidated statements
of income, retained earnings and cash flows shall be audited and certified
without qualification by the Accountants, which certification shall (i) state
that the examination by such Accountants in connection with such consolidated
financial statements has been made in accordance with generally accepted
auditing standards and, accordingly, included such tests of the accounting
records and such other auditing procedures as were considered necessary in the
circumstances, and (ii) include the opinion of such Accountants that such
consolidated financial statements have been prepared in accordance with GAAP in
a manner consistent with prior fiscal periods, except as otherwise specified in
such opinion.
(b) As soon as available, but in any event within 45 days after
the end of each fiscal quarter, a copy of the consolidated balance sheet of the
Borrower and its Subsidiaries as at the end of each such quarterly period,
together with the related consolidated statements of income, retained earnings
and cash flows for such period and for the elapsed portion of the fiscal year
through such date, setting forth in each case in comparative form the figures
for the corresponding periods of the preceding fiscal year, certified by the
chief financial officer of the Borrower (or such other officer acceptable to the
Administrative Agent), as being complete and correct in all material respects
and as presenting fairly the consolidated financial condition and the
consolidated results of operations of the Borrower and its Subsidiaries.
(c) Within 45 days after the end of each of the first three
fiscal quarters and within 90 days after the end of the last fiscal quarter, a
Compliance Certificate, certified by the chief financial officer of the Borrower
(or such other officer as shall be acceptable to the Administrative Agent) to
the effect that (i) the Borrower is in compliance with Section 7.11, (ii) no
Default or Event of Default exists as of such date, and (iii) all
representations and warranties contained in the Loan Documents are true and
correct as of such date.
(d) Such other information as the Administrative Agent, the
Syndication Agent or any Lender may reasonably request from time to time.
11.2 Certificates; Other Information
-------------------------------
Furnish to the Administrative Agent and each Lender:
(a) Prompt written notice if: (i) any Indebtedness of the
Borrower and/or any of its Subsidiaries in excess of $1,000,000 on an aggregate
basis is declared or shall become due and payable prior to its stated maturity,
or is called and not paid when due, (ii) a default shall have occurred under any
note (other than the Notes) or the holder of any such note, or other evidence of
Indebtedness, certificate or security evidencing any such Indebtedness or any
obligee with respect to any other Indebtedness of the Borrower and/or any of its
Subsidiaries in excess of $1,000,000 on an aggregate basis has the right to
declare any such Indebtedness due and payable
prior to its stated maturity, or (iii) there shall occur and be continuing a
Default or an Event of Default;
(b) Prompt written notice of: (i) 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, (ii) 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 (iii) any refusal by any Person or
Governmental Authority to renew or extend any 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;
(c) Promptly upon becoming available, copies of all (i) regular,
periodic or special reports, schedules and other material that the Borrower or
any of its Subsidiaries may now or hereafter be required to file with or deliver
to any securities exchange or the SEC, or any other Governmental Authority
succeeding to the functions thereof and (ii) material news releases and annual
reports relating to the Borrower or any of its Subsidiaries;
(d) Prompt written notice in the event that the Borrower, any of
its Subsidiaries or any ERISA Affiliate knows, or has reason to know, that (i)
any Termination Event with respect to a Pension Plan has occurred or will occur,
(ii) any condition exists with respect to a Pension Plan that presents a
material risk of termination of the Pension Plan, imposition of an excise tax,
requirement to provide security to the Pension Plan or other liability on the
Borrower, any of its Subsidiaries or any ERISA Affiliate, (iii) the Borrower,
any of its Subsidiaries or any ERISA Affiliate has applied for a waiver of the
minimum funding standard under Section 412 of the Code with respect to a Pension
Plan, (iv) the aggregate amount of the Unfunded Pension Liabilities under all
Pension Plans is in excess of $500,000, (v) the aggregate amount of Unrecognized
Retiree Welfare Liability under all applicable Employee Benefit Plans is in
excess of $500,000, (vi) the Borrower, any of its Subsidiaries or any ERISA
Affiliate has engaged in a Prohibited Transaction with respect to an Employee
Benefit Plan in which the aggregate "amount involved" (as defined in Section
4975(f) of the Code) is in excess of $500,000, (vii) the imposition of any tax
in excess of $500,000 in the aggregate on the Borrower, its Subsidiaries and
ERISA Affiliates under Section 4980B(a) of the Code or (viii) the assessment of
a civil penalty under Section 502(c) of ERISA in excess of $500,000 in the
aggregate on the Borrower, its Subsidiaries and ERISA Affiliates, together with
a certificate of the president or chief financial officer of the Borrower (or
such other officer as shall be acceptable to the Administrative Agent) setting
forth the details of such event and the action that the Borrower, such
Subsidiary or such ERISA Affiliate proposes to take with respect thereto,
together with a copy of all notices and filings with respect thereto.
(e) Prompt written notice in the event that Borrower, any of its
Subsidiaries or any ERISA Affiliate shall receive a demand letter from the PBGC
notifying the Borrower, such Subsidiary
or such ERISA Affiliate of any final decision finding liability in an aggregate
amount in excess of $500,000 and the date by which such liability must be paid,
together with a copy of such letter and a certificate of the president or chief
financial officer of the Borrower (or such other officer as shall be acceptable
to the Administrative Agent) setting forth the action that the Borrower, such
Subsidiary or such ERISA Affiliate proposes to take with respect thereto.
(f) Promptly upon the same becoming available, and in any event
by the date such amendment is adopted, a copy of any Pension Plan amendment that
the Borrower, any of its Subsidiaries or any ERISA Affiliate proposes to adopt
that would require the posting of security under Section 401(a)(29) of the Code,
together with a certificate of the president or chief financial officer of the
Borrower (or such other officer as shall be acceptable to the Administrative
Agent) setting forth the reasons for the adoption of such amendment and the
action that the Borrower, such Subsidiary or such ERISA Affiliate proposes to
take with respect thereto.
(g) As soon as possible and in any event by the tenth Business
Day after any required installment or other payment under Section 412 of the
Code owed to a Pension Plan shall have become due and owing and remain unpaid a
copy of the notice of failure to make required contributions provided to the
PBGC by the Borrower, any of its Subsidiaries or any ERISA Affiliate under
Section 412(n) of the Code, together with a certificate of the president or
chief financial officer of the Borrower (or such other officer as shall be
acceptable to the Administrative Agent) setting forth the action that the
Borrower, such Subsidiary or such ERISA Affiliate proposes to take with respect
thereto.
(h) Prompt written notice of any order, notice, claim or
proceeding received by, or brought against, the Borrower or any of its
Subsidiaries, or with respect to any of the Real Property, under any
Environmental Law that could have a Material Adverse Effect.
(i) Prompt written notice of any loss, forfeiture, non-renewal or
termination, or the commencement of any action or proceeding or the issuance of
any notice to effect any of the foregoing, with respect to any license,
agreement or authorization that could reasonably be expected to have a Material
Adverse Effect.
11.3 Legal Existence
---------------
Maintain, and cause each of its Subsidiaries so to maintain, its
corporate, partnership or other existence, as the case may be, in good standing
in the jurisdiction of its incorporation or formation and in each other
jurisdiction in which it is required to do so, except, in each case, where the
failure to do so could not reasonably be expected to have a Material Adverse
Effect.
11.4 Taxes
-----
Pay and discharge when due, and cause each of its Subsidiaries so
to do, all Taxes, assessments and governmental charges, license fees and levies
upon, or with respect to the Borrower or such Subsidiary and all Taxes upon the
income, profits and Property of the Borrower and its
Subsidiaries, that, if unpaid, could reasonably be expected to have a Material
Adverse Effect or become a Lien on the Property of the Borrower or such
Subsidiary (other than a Lien described in Section 8.2(a)), unless and to the
extent only that such Taxes, assessments, charges, license fees and levies shall
be contested in good faith and by appropriate proceedings diligently conducted
by the Borrower or such Subsidiary provided that the Borrower shall give the
Administrative Agent prompt notice of such contest and that such reserve or
other appropriate provision as shall be required by the Accountants in
accordance with GAAP shall have been made therefor.
11.5 Insurance
---------
Maintain, and cause each of its Subsidiaries to maintain,
insurance with financially sound insurance carriers on such of its Property,
against at least such risks, and in at least such amounts, as are usually
insured against by similar businesses, including, without limitation, public
liability (bodily injury and property damage), fidelity, and workers'
compensation, and file with the Administrative Agent within ten Business Days
after request therefor a detailed list of such insurance then in effect, stating
the names of the carriers thereof, the policy numbers, the insureds thereunder,
the amounts of insurance, dates of expiration thereof, and the Property and
risks covered thereby, together with a certificate of the chief financial
officer of the Borrower (or such other officer as shall be acceptable to the
Administrative Agent) certifying that in the opinion of such officer such
insurance is adequate in nature and amount, complies with the obligations of the
Borrower under this Section, and is in full force and effect.
11.6 Payment of Indebtedness and Performance of Obligations
------------------------------------------------------
Pay and discharge when due, and cause each of its Subsidiaries to
pay and discharge, all lawful Indebtedness, obligations and claims for labor,
materials and supplies or otherwise that, if unpaid, could reasonably be
expected to (i) have a Material Adverse Effect or (ii) become a Lien upon
Property of the Borrower or any of its Subsidiaries in excess of $1,000,000 on
an aggregate consolidated basis for the Borrower and its Subsidiaries, other
than a Permitted Lien, unless and to the extent only that the validity of such
Indebtedness, obligation or claim shall be contested in good faith and by
appropriate proceedings diligently conducted by it, provided that the Borrower
shall give the Administrative Agent prompt notice of any such contest and that
such reserve or other appropriate provision as shall be required by the
Accountants in accordance with GAAP shall have been made therefor.
11.7 Condition of Property
---------------------
At all times, maintain, protect and keep in good repair, working
order and condition (ordinary wear and tear excepted), and cause each of its
Subsidiaries so to do, all Property necessary to the operation of the Borrower's
or such Subsidiary's business.
11.8 Observance of Legal Requirements
--------------------------------
Observe and comply in all respects, and cause each of its
Subsidiaries so to do, with all laws, ordinances, orders, judgments, rules,
regulations, certifications, franchises, permits, licenses, directions and
requirements of all Governmental Authorities, that now or at any time hereafter
may be applicable to it, including, without limitation, ERISA and all
Environmental Laws, a violation of which could reasonably be expected to have a
Material Adverse Effect, except such thereof as shall be contested in good faith
and by appropriate proceedings diligently conducted by it, provided that the
Borrower shall give the Administrative Agent prompt notice of such contest and
that such reserve or other appropriate provision as shall be required by the
Accountants in accordance with GAAP shall have been made therefor.
11.9 Inspection of Property; Books and Records; Discussions
------------------------------------------------------
Keep proper books of record and account in which full, true and
correct entries sufficient to permit preparation of financial statements in
conformity with GAAP and all requirements of law shall be made of all dealings
and transactions in relation to its business and activities and permit
representatives of the Administrative Agent, the Syndication Agent and any
Lender to visit its offices, to inspect any of its Property and examine and make
copies or abstracts from any of its books and records at any reasonable time and
as often as may reasonably be desired, and to discuss the business, operations,
prospects, licenses, Property and financial condition of the Borrower and its
Subsidiaries with the officers thereof and the Accountants (provided that the
Borrower is given reasonable notice and an opportunity to attend or participate
in any such discussion).
11.10 Licenses, Intellectual Property
-------------------------------
Maintain, and cause each of its Subsidiaries to maintain, in
full force and effect, all licenses, franchises, Intellectual Property, permits,
licenses, authorizations and other rights as are necessary for the conduct of
its business, the failure to maintain which could reasonably be expected to have
a Material Adverse Effect.
11.11 Additional Guarantors; Additional Collateral
--------------------------------------------
Within 30 days after the occurrence of an Additional Guarantor
Event, (i) cause one or more Domestic Subsidiaries of the Borrower that are not
currently Guarantors to become a party to the Subsidiary Guaranty, in accordance
with the terms thereof, on and as of such date, to the extent that, after giving
effect thereto, such Additional Guarantor Event shall no longer exist, and (ii)
deliver or cause to be delivered to the Collateral Agent with respect to each
such Subsidiary, simultaneously with the execution and delivery of the same, (A)
a certificate, dated the date such Subsidiary shall have become a party to the
Subsidiary Guaranty, executed by such Subsidiary and substantially in the form
of, and with substantially the same attachments as, the certificate which would
have been required under Section 5.1 if such Subsidiary had become a party to
the Subsidiary Guaranty on or before the Effective Date, (B) an opinion of
counsel to
such Subsidiary, in form and substance satisfactory to the Administrative Agent,
(C) 100% of the issued and outstanding capital Stock of such Subsidiary,
together with an undated stock power, executed in blank by an Authorized
Signatory of the Pledgor of such Stock, and (D) such other documents as may by
required by the applicable Collateral Documents and as the Collateral Agent
shall request.
(b) As soon as practicable, and in any event within 90 days after
any Person becomes a First-Tier wholly-owned Foreign Subsidiary of the Borrower
after the Effective Date, deliver or cause to be delivered to the Administrative
Agent 66% of the issued and outstanding capital Stock (or equivalent) of such
Subsidiary, together with an undated stock power (or equivalent), executed in
blank by an Authorized Signatory of the Borrower, and deliver such other
documents and take such actions as may by required by the Borrower Pledge
Agreement and as the Collateral Agent shall request in order to grant to the
Collateral Agent a valid, perfected first priority Lien on such capital Stock
(or equivalent), and, where reasonably available, the favorable written opinions
of counsel with respect to the validity, perfection and priority of such Lien
under the law of the jurisdictions governing such Lien.
XII
If the capital Stock (or equivalent) of any Subsidiary that becomes
a Guarantor pursuant to Section 7.11(a) is owned by a Subsidiary that is not a
Pledgor, within 30 days of the applicable Additional Guarantor Event, (i) cause
the Subsidiary that owns such capital Stock (or equivalent) to execute and
deliver to the Collateral Agent a Subsidiary Pledge Agreement substantially in
the form of Exhibit K, duly completed and (ii) deliver or cause to be delivered
to the Collateral Agent with respect to such Subsidiary, simultaneously with the
execution and delivery of the same, (A) a certificate, dated the date such
Subsidiary shall have become a Pledgor, executed by such Subsidiary and
substantially in the form of, and with substantially the same attachments as,
the certificate which would have been required under Section 5.1 if such
Subsidiary had been a party to a Subsidiary Pledge Agreement on or before the
Effective Date, (B) an opinion of counsel to such Subsidiary, in form and
substance satisfactory to the Administrative Agent, and (C) such other documents
as may by required by the Subsidiary Pledge Agreement and as the Collateral
Agent shall request.
XIII
To the extent that the Borrower or TRC does not provide a pledge of the
capital Stock of any Foreign Subsidiary on the date of this Agreement as
required pursuant to clause (ii) of Section 5.5 or clause (ii) of Section 5.6,
respectively, the Borrower or TRC shall provide such pledge as specified in such
Section 5.5 or 5.6 by no later than December 24, 1997, together with, where
reasonably available, the favorable written opinions of counsel with respect to
the validity, perfection and priority of such Lien under the law of the
jurisdictions governing such Lien.
14. NEGATIVE COVENANTS
------------------
The Borrower agrees that, so long as this Agreement is in effect, any Loan
remains outstanding and unpaid, or any other amount is owing under any Loan
Document to any Lender or the
Administrative Agent, the Borrower shall perform, and cause each of its
Subsidiaries to perform, all of the covenants in this Section 8:
14.1 Incurrence of Indebtedness and Issuance of Disqualified Stock
-------------------------------------------------------------
(a) Subject to Section 8.1(b), the Borrower will not, and will
not permit any of its Subsidiaries to, create, incur, assume or directly or
indirectly guarantee or in any other manner become directly or indirectly liable
for ("incur") any Indebtedness (including Acquisition Debt) or issue any
Disqualified Stock; provided however, that the Borrower may incur Subordinated
-----------------
Indebtedness or issue Disqualified Stock if the Borrower's Pro Forma Coverage
Ratio for the Reference Period immediately preceding the date of such incurrence
or issuance would not be less than 2.50 to 1.00 after giving effect to such
incurrence or issuance and (if applicable) the application of the net proceeds
therefrom.
(b) Section 8.1(a) shall not limit the incurrence of any of the
following:
(i) Indebtedness of the Borrower under the Revolving Credit
Facility (including Guarantees thereof by the Borrower's Subsidiaries)
in an aggregate principal amount at any time outstanding not to exceed
$800,000,000 minus the aggregate amount of all permanent reductions in
the Revolving Credit Commitments pursuant to Section 2.7(e) of the
Revolving Credit Facility;
(ii) Indebtedness existing on the date hereof set forth on
Schedule 8.1;
(iii) Indebtedness of the Borrower represented by the Term
Loans (including Guarantees thereof by the Borrower's Subsidiaries);
(iv) Refinancing Indebtedness, provided, however, that (1)
the principal amount of such Refinancing Indebtedness shall not exceed
the principal amount of Indebtedness so extended, refinanced, renewed,
replaced, substituted, defeased or refunded (plus the amount of
expenses incurred and premiums paid in connection therewith), (2) the
Weighted Average Life to Maturity of such Refinancing Indebtedness
shall have be equal to or greater than the Weighted Average Life to
Maturity of the Indebtedness being extended, refinanced, renewed,
replaced, substituted, defeased or refunded, and (3) with respect to
Refinancing Indebtedness of Subordinated Indebtedness, such Refinancing
Indebtedness shall be at least as subordinated in right of payment to
the Term Loans (in the case of Refinancing Indebtedness incurred by the
Borrower) or to the Guarantees thereof (in the case of Refinancing
Indebtedness incurred by any Guarantor Subsidiary) as the Indebtedness
being extended, refinanced, replaced, renewed, substituted, defeased or
refunded;
(v) Indebtedness of the Borrower's Subsidiaries to the
Borrower to the extent permitted pursuant to Section 8.5(f);
(vi) Hedging Obligations that are incurred for the purpose
of fixing or hedging foreign currency exchange risk or interest rate
risks with respect to any floating rate Indebtedness that is permitted
by the terms of this Agreement to be outstanding;
(vii) Capital Lease Obligations and Purchase Money
Indebtedness of the Borrower and its Subsidiaries in an aggregate
principal amount not to exceed $35,000,000 on a Consolidated basis at
any one time outstanding;
(viii) Guarantees and other Contingent Obligations incurred
by the Borrower and its Subsidiaries in an aggregate amount not to
exceed $20,000,000 on a Consolidated basis at any one time outstanding,
and other Guarantees and other Contingent Obligations incurred by the
Borrower and its Subsidiaries for the benefit of the Borrower and its
Subsidiaries in an aggregate amount not to exceed $30,000,000 on a
Consolidated basis at any one time outstanding;
(ix) Acquisition Debt incurred in connection with the
acquisition of Domestic Subsidiaries of the Borrower in an aggregate
principal amount not to exceed $35,000,000 at any one time outstanding;
(x) Acquisition Debt incurred in connection with the
acquisition of Foreign Subsidiaries of the Borrower in an aggregate
principal amount not to exceed $25,000,000 at any one time outstanding;
(xi) unsecured Indebtedness of the Borrower to one or more
investors under an indenture subject to the Trust Indenture Act of
1939, as amended, provided that (A) immediately before and after giving
effect to the incurrence thereof no Default or Event of Default shall
exist, (B) such Indebtedness shall require no payment or prepayment
prior to one year after the Maturity Date and (C) the terms, conditions
and covenants of such Indebtedness shall be less restrictive as to the
Borrower and its Subsidiaries than the terms, covenants and conditions
of this Agreement and the terms, covenants and conditions of such
Indebtedness shall be reasonably satisfactory to the Required Lenders;
(xii) additional Indebtedness of the Borrower's Subsidiaries
in an aggregate principal amount not to exceed $30,000,000 at any one
time outstanding provided that not more than $15,000,000 in aggregate
--------
principal amount of such Indebtedness may be secured at any one time;
and
(xiii) additional unsecured Indebtedness of the Borrower in
an aggregate principal amount not to exceed $35,000,000 at any one time
outstanding.
14.2 Limitations on Liens
--------------------
The Borrower will not, and will not cause or permit any of its
Subsidiaries to, directly or indirectly, create, incur, assume or permit or
suffer to exist any Liens of any kind against or upon any property or assets of
the Borrower or any of its Subsidiaries whether owned on the
Effective Date or acquired after the Effective Date, or any proceeds therefrom,
or assign or otherwise convey any right to receive income or profits therefrom,
except for the following:
(a) Liens for Taxes, assessments or similar charges incurred in
the ordinary course of business that are not delinquent or that are being
contested in accordance with Section 7.4, provided that enforcement of such
Liens is stayed pending such contest;
(b) Liens in connection with workers' compensation, unemployment
insurance or other social security obligations (but not ERISA);
(c) deposits or pledges to secure bids, tenders, contracts (other
than contracts for the payment of money), leases, statutory obligations, surety
and appeal bonds and other obligations of like nature arising in the ordinary
course of business;
(d) zoning ordinances, easements, rights of way, minor defects,
irregularities, and other similar restrictions affecting Real Property that do
not adversely affect the value of such Real Property or the financial condition
of the Borrower or such Subsidiary or impair its use for the operation of the
business of the Borrower or such Subsidiary;
(e) Liens arising by operation of law such as mechanics',
materialmen's, carriers', and warehousemen's liens incurred in the ordinary
course of business that are not delinquent or that are being contested in
accordance with Section 7.6, provided that enforcement of such Liens is stayed
--------
pending such contest;
(f) Liens arising out of judgments or decrees that are being
contested in accordance with Section 7.6, provided that enforcement of such
--------
Liens is stayed pending such contest;
(g) Liens on Property of the Borrower or any of its Subsidiaries
acquired after the date hereof to secure Purchase Money Indebtedness and Capital
Lease Obligations permitted by Section 8.1(b)(vii) incurred in connection with
the acquisition or lease of such Property, provided that each such Lien is
--------
limited to such Property so acquired or leased, and replacement Liens on such
Property to secure refinancings of such Indebtedness permitted by Section
8.1(b)(iv);
(h) Liens on Property of the Borrower and its Subsidiaries
existing on the Effective Date as set forth on Schedule 8.2;
(i) Liens to secure Indebtedness of Foreign Subsidiaries
permitted by Section 8.1(b)(xii), provided that such Liens shall be limited to
--------
Liens on the assets of the Foreign Subsidiary incurring such Indebtedness, and
such Indebtedness shall not exceed $15,000,000 at any time;
(j) Liens to secure Acquisition Debt permitted by Section
8.1(b)(ix) or 8.1(b)(x), provided that such Liens shall be limited to Liens on
--------
the Property acquired with the proceeds of such Acquisition Debt or securing
such Acquisition Debt at the time the applicable Acquired Person becomes a
subsidiary of the Borrower; and
(k) Liens created under the Collateral Documents.
If the Borrower or any of its Subsidiaries shall create or assume any
Lien upon any of its Properties, whether now owned or hereafter acquired, other
than Liens permitted under the foregoing provisions of this Section 8.2, it
shall make or cause to be made effective provision whereby the Obligations of
the Credit Parties hereunder and under the other Loan Documents will be secured
by such Lien equally and ratably with any and all other Indebtedness secured
thereby as long as any such Indebtedness shall be so secured; provided that,
--------
notwithstanding the foregoing, this provision shall not be construed as a
consent by the Lenders to the creation or assumption of any Lien other than as
permitted by the foregoing provisions of this Section 8.2
14.3 Limitation on Merger, Consolidation and Certain Dispositions of
---------------------------------------------------------------
Assets
------
The Borrower shall not consolidate or merge with or into (whether or
not the Borrower is the Surviving Entity) or sell, assign, transfer, lease,
convey or otherwise dispose of all or substantially all of its properties or
assets in one or more related transactions, to another Person unless (i) either
(a) the Borrower is the Surviving Entity or (b) the Surviving Entity (if other
than the Borrower) in such transactions is a corporation duly organized and
validly existing under the laws of the United States of America, any state
thereof or the District of Columbia; (ii) the Surviving Entity (if other than
the Borrower) assumes all the obligations of the Borrower under the Loan
Documents to which the Borrower is a party in a form reasonably satisfactory to
the Required Lenders, and this Agreement shall remain in full force and effect;
(iii) immediately before and immediately after giving effect to such transaction
on a pro forma basis, no Default or Event of Default shall have occurred and be
continuing; (iv) the Surviving Entity will have Consolidated net worth
(immediately after such transaction but prior to any purchase accounting
adjustments resulting from the transaction) equal to or greater than the
Consolidated net worth of the Borrower immediately preceding such transaction;
and (v) immediately before and immediately after giving effect to such
transaction on a pro forma basis, the Borrower (or the Surviving Entity if the
Borrower is not the continuing obligor under this Agreement) could incur $1.00
of additional Subordinated Indebtedness pursuant to Section 8.1(a).
If the Borrower sells, assigns, transfers, conveys or otherwise
disposes of (other than pursuant to a lease) all or substantially all of its
assets in compliance with this Section 8.3, and another Person shall be the
Surviving Entity in such transaction, the Borrower shall be released and
discharged from its obligations hereunder.
14.4 Limitations on Restricted Payments
----------------------------------
(a) Subject to Section 8.4(b), the Borrower will not, and will
not permit any of its Subsidiaries to, directly or indirectly, make any
Restricted Payment, unless (i) at the time of and immediately after giving
effect to the proposed Restricted Payment, no Default or Event of Default shall
have occurred and be continuing or would occur as a consequence thereof, (ii) at
the time of and immediately after giving effect to the proposed Restricted
Payment (the value of any Restricted Payment, if other than cash, as determined
by the board of directors of the Borrower, whose
determination shall be conclusive and evidenced by a board resolution), on a pro
forma basis, the Borrower would be permitted to incur at least $1.00 of
additional Indebtedness pursuant to Section 8.1(a), and (iii) at the time of and
immediately after giving effect to the proposed Restricted Payment, the
aggregate amount of all Restricted Payments (excluding all payments,
investments, redemptions, repurchases, retirements and other acquisitions
described in clauses (ii) through (vii), inclusive, of Section 8.4(b) below)
declared or made after the Effective Date shall not exceed the sum of:
(x) $5,000,000;
(y) 50% of the aggregate cumulative Consolidated Net Income of
the Borrower for the period (taken as one accounting period) from the beginning
of the first full fiscal quarter ended immediately after the Effective Date to
and including the fiscal quarter ended immediately prior to the date of the
proposed Restricted Payment (or, if such Consolidated Net Income for such period
is a deficit, minus 100% of such deficit); plus
(z) 100% of the aggregate Net Securities Proceeds received by the
Borrower from the issuance or sale after the Effective Date of Equity Interests
of the Borrower (other than Equity Interests sold to a Subsidiary of the
Borrower and Equity Interests that constitute Disqualified Stock) plus 100% of
the net cash proceeds received by the Borrower from the issuance or sale of
Indebtedness and Disqualified Stock, to the extent such Indebtedness and
Disqualified Stock was originally sold for cash and is converted after the
Effective Date into or exchanged after the Effective Date for Equity Interests
(other than Disqualified Stock) of the Borrower (except, in each case, to the
extent such proceeds are used to purchase, redeem, or otherwise retire Equity
Interests or Subordinated Indebtedness as set forth below).
(b) Section 8.4(a) shall not prohibit the following actions:
(i) the payment of any dividend or distribution to the Borrower
or any wholly-owned Subsidiary of the Borrower within 60 days after
the date of declaration thereof, if at such date of declaration such
payment would be permitted by Section 8.4(a) without giving effect to
this Section 8.4(b); such payment shall be deemed to have been paid on
such date of declaration for purposes of the calculation required by
Section 8.4(a);
(ii) the redemption, repurchase, retirement or other acquisition
for value of any Equity Interests or any Indebtedness of the Borrower
or any Subsidiary in exchange for, or in an amount not in excess of
the Net Securities Proceeds received from, the substantially
concurrent sale (other than to the Borrower or a Subsidiary) of (a)
Equity Interests of the Borrower (other than any Disqualified Stock)
or (b) in the case of Equity Interests of any Subsidiary of the
Borrower, Equity Interests of such Subsidiary (other than any
Disqualified Stock); provided that the Net Securities Proceeds from
--------
the issuance of such Equity Interests are excluded from clause (z) of
Section 8.4(a);
(iii) the redemption, repurchase, retirement or other acquisition
for value of any Equity Interests of the Borrower or any Subsidiary of
the Borrower held at any time by any director of the Borrower or any
of its Subsidiaries or by any member of the Borrower's (or any of its
Subsidiaries') management or a permitted transferee of such director
or member pursuant to any management equity subscription agreement,
stockholders' agreement or stock option agreement if (a) no Default or
Event of Default shall have occurred and be continuing or would result
from such redemption, repurchase, retirement or other acquisition, and
(b) the aggregate price paid for all such redeemed, repurchased,
retired or acquired Equity Interests does not in any fiscal year
exceed the sum of (1) $5,000,000 and (2) the amount of Equity
Interests that could have been, but were not, so redeemed,
repurchased, retired or acquired pursuant to this clause (b)(iii) in
the immediately preceding fiscal year;
(iv) payments to redeem, repurchase, retire or otherwise acquire
for value Equity Interests of holders in any Subsidiary of the
Borrower; provided that the aggregate amount of all such payments made
since the Effective Date, together with the aggregate amount of all
Investments made since the Effective Date pursuant to Section 8.5(h),
shall not exceed $80,000,000 in the aggregate;
(v) the payment of dividends by a Subsidiary on its common stock
(or distributions to its partners if such Subsidiary is a partnership)
if such dividends or distributions are paid pro rata to all holders of
such common stock or to all partners, as the case may be;
(vi) the redemption, repurchase, retirement or other acquisition
for value of any Subordinated Indebtedness, in exchange for, or in an
amount not in excess of the net proceeds of, the substantially
concurrent sale (other than to the Borrower or a Subsidiary) of (a)
subordinated Refinancing Indebtedness of the Borrower or (b) in the
case of Subordinated Indebtedness of a Subsidiary, subordinated
Refinancing Indebtedness of such Subsidiary, in each case to the
extent such Refinancing Indebtedness is permitted pursuant to Section
8.1(b)(iv); and
(vii) any other Restricted Payment in an amount that, along with
all other Restricted Payments made pursuant to this clause (vii), does
not exceed $5,000,000.
14.5 Investments, Loans, Etc.
------------------------
The Borrower will not at any time, purchase or otherwise acquire, hold
or make any Investment in any Person, including without limitation, an
Acquisition, or permit any of its Subsidiaries so to do, except:
(a) Investments in Cash Equivalents;
(b) Investments in accounts and notes receivable acquired in the
ordinary course of business;
(c) 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;
(d) any securities received in connection with an Asset Sale
permitted under Section 8.7;
(e) Hedging Obligations permitted under Section 8.1(b)(vi);
(f) Investments of the Borrower or any of its Subsidiaries in any
Subsidiary of the Borrower for working capital and capital expenditure purposes
of such Subsidiary or to enable such Subsidiary to make Investments permitted by
subsections (g) and (h) below, provided that (i) such Investments in non-wholly
--------
owned Subsidiaries shall be made in the form of demand loans, the aggregate
outstanding principal amount of which shall not exceed $10,000,000 at any one
time, and (ii) such Investments in wholly-owned Subsidiaries shall be made
either in the form of (x) demand loans or (y) additional paid in equity provided
that the aggregate amount of all such additional paid in equity shall not exceed
$20,000,000 at any one time;
(g) Acquisitions by the Borrower or any wholly owned Subsidiary
of the Borrower, provided that (i) no Event of Default shall exist immediately
before or after giving effect to such Acquisition, (ii) each such Acquisition
was initially approved by the board of directors (or other Person performing
similar functions) of each of the parties thereto, (iii) if, after giving effect
to such Acquisition, an Additional Guarantor Event would occur, the Borrower
shall cause one or more Domestic Subsidiaries to become a Guarantor such that
the Additional Guarantor Event shall no longer exist, and (iv) the following
conditions shall have been satisfied: (x) upon the consummation of each stock
Acquisition, at least 50% of the Stock or other equity interest of the Person so
acquired shall be owned by the Borrower or its Subsidiaries, and (y) in the case
of Acquisitions of Stock or property of a Person that is not organized under the
laws of, or whose Property is not located in, a jurisdiction within the United
States, the total consideration to be paid in connection with all such
acquisitions made after the Effective Date shall not exceed $80,000,000 in the
aggregate;
(h) Investments by the Borrower or a Guarantor in 50% or less of
the voting Stock or other equity interest in another Person (the "Minority
--------
Investment"), provided that (i) the Borrower or such Guarantor owns at least 20%
----------
(on a fully diluted basis) of the issued and outstanding capital Stock or other
equity interest in such Person, (ii) the aggregate outstanding amount of
Minority Investments made by the Borrower and the Guarantors on and after the
Effective Date, together with the aggregate amount of all payments made after
the Effective Date pursuant to Section 8.4(b)(iv), shall not exceed $80,000,000
in the aggregate, (iii) the Borrower or such Guarantor shall have full control
over all bank accounts of such Person if the Borrower or such Guarantor is the
largest holder of voting Stock or other equity interests in such Person, (iv)
the Borrower or such Guarantor shall control or act as the managing general
partner of such Person if such Person is a partnership and if the Borrower or
such Guarantor is the largest holder of equity interests in such Person, and (v)
immediately before and after giving effect thereto, no Event of Default shall
exist;
(i) existing Investments set forth on Schedule 8.5;
(j) any other Investments not permitted by the preceding clauses
(a)-(i) above that do not exceed $20,000,000 at any time; and
(k) Restricted Investments to the extent permitted under Section
8.4.
14.6 Business Change
---------------
The Borrower will not, and will not permit its Subsidiaries to,
materially change the nature of their respective businesses as conducted on the
Effective Date.
14.7 Limitation on Asset Sales
-------------------------
The Borrower will not, and will not permit any of its Subsidiaries to,
directly or indirectly consummate any Asset Sale unless (a) the Borrower or such
Subsidiary, as the case may be, receives consideration at the time of such Asset
Sale at least equal to the fair market value (evidenced by (x) in the case of an
Asset Sale producing less than $5,000,000 in Net Cash Proceeds, by an Officers'
Certificate delivered to Administrative Agent or (y) in the case of an Asset
Sale producing more than $5,000,000 in Net Cash Proceeds, a resolution of the
board of directors of the Borrower set forth in an Officers' Certificate
delivered to the Administrative Agent) of the assets sold or otherwise disposed
of and (b) at least 75% of the Net Cash Proceeds from such Asset Sale are
received in cash; provided, however, that any notes or other obligations
-------- -------
received by the Borrower or any such Subsidiary from a transferee shall be
deemed to be cash for purposes of this Section 8.7 so long as and to the extent
such notes or other obligations are converted by the Borrower or such Subsidiary
into cash within six months of such Asset Sale; provided further, however, that
-------- ------- -------
the 75% limitation referred to above in clause (b) shall not apply to any Asset
Sale in which the cash portion of the consideration received therefor,
determined in accordance with the foregoing proviso, is equal to or greater than
what the after-tax net proceeds would have been had such transaction complied
with the aforementioned 75% limitation.
14.8 Subsidiaries
------------
The Borrower will not create or acquire any other Subsidiary, or
permit any of its Subsidiaries so to do, unless the provisions of Sections 7.11
and 8.11 are satisfied.
14.9 Certificate of Incorporation
----------------------------
The Borrower will not amend or otherwise modify its Articles of
Incorporation or By-Laws in any way that would adversely affect the interests of
the Administrative Agent, the Collateral Agent and the Lenders under any of the
Loan Documents or permit any of its Subsidiaries to do so.
14.10 ERISA
-----
The Borrower will not permit any Pension Plan to have a Funded
Current Liability Percentage of less than 60 percent.
14.11 Acquisition or Issuance of Additional Stock
-------------------------------------------
The Borrower will not create or acquire the Stock or other equity or
ownership in, or Property of, any Person that shall thereupon become a
Subsidiary (each, a "New Subsidiary"), or issue any additional Stock or other
--------------
equity or ownership interest, or permit any Subsidiary so to do, except as
follows:
(a) in connection with a Permitted Acquisition;
(b) any Subsidiary may issue additional Stock to the Borrower
or TRC;
(c) a non-wholly-owned Subsidiary of the Borrower may issue
additional Stock to its management or to physicians under contract, provided
that after giving effect to such issuance, such Subsidiary shall remain a
Subsidiary of the Borrower;
(d) TRC may create new wholly-owned Subsidiaries;
(e) all Stock issued pursuant to this Section shall constitute
common stock with no mandatory dividend, redemption or similar requirement.
14.12 Dividend and Other Payment Restrictions Affecting Subsidiaries
--------------------------------------------------------------
The Borrower will not, and will not permit any of its Subsidiaries to,
directly or indirectly, create or otherwise cause or suffer to exist or become
effective any encumbrance or restriction on the ability of any Subsidiary to (a)
pay dividends or make any other distributions to the Borrower or any other
Subsidiary on its Stock or in respect of any other interest or participation in,
or measured by, its profits, (b) pay any Indebtedness owed to the Borrower or
any other Subsidiary, (c) make loans or advances to the Borrower or any other
Subsidiary, or (d) transfer any of its properties or assets to the Borrower or
any other Subsidiary, except for such encumbrances or restrictions existing
under or by reason of any of the following:
(i) any Indebtedness existing on the date hereof listed on
Schedule 8.1;
(ii) the Revolving Credit Facility as in effect on the
Effective Date, and any amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacements or
refinancings thereof, provided that such amendments, modifications,
restatements, renewals, increases, supplements, refundings,
replacements or refinancings are no more restrictive in the aggregate
with respect to such dividend and other payment restrictions than
those contained in the Revolving Credit Facility (or, if more
restrictive, this Agreement) immediately prior to any
such amendment, modification, restatement, renewal, increase,
supplement, refunding, replacement or refinancing;
(iii) applicable law;
(iv) any instrument governing Indebtedness or Stock of a
Person acquired (an "Acquired Person") by the Borrower or any of its
Subsidiaries as in effect at the time of such acquisition (except to
the extent such Indebtedness was incurred or instrument was entered
into in connection with or in contemplation of such acquisition),
provided that (x) such restriction is not applicable to any Person, or
--------
the properties or assets of any Person, other than the Acquired
Person, and (y) the Consolidated Net Income of an Acquired Person for
any period prior to such acquisition shall be taken into account in
determining whether such acquisition was permitted by the terms of
this Agreement only to the extent that the declaration or payment of
dividends or similar distributions or intercompany loans or advances
by such Acquired Person to the Borrower or any of its Subsidiaries
would not be prohibited by operation of the terms of such Acquired
Person's charter or any agreement, instrument, judgment, decree,
order, statute, rule or governmental regulation applicable to such
Acquired Person;
(v) customary non-assignment provisions in leases or
agreements entered into in the ordinary course of business and
consistent with past practices;
(vi) Purchase Money Indebtedness for property acquired in the
ordinary course of business that only impose restrictions on the
property so acquired;
(vii) an agreement for the sale or disposition of the Stock or
assets of a Subsidiary, provided that such restriction is only
applicable to such Subsidiary or assets, as applicable;
(viii) Refinancing Indebtedness permitted hereunder provided
that the restrictions contained in the agreements governing such
Refinancing Indebtedness are no more restrictive in the aggregate than
those contained in the agreements governing the Indebtedness being
refinanced immediately prior to such refinancing;
(ix) restrictions imposed against a Foreign Subsidiary
contained in any agreement governing Indebtedness of such Foreign
Subsidiary permitted by Section 8.1(b)(xii); and
(x) management agreements between Subsidiaries of the
Borrower.
14.13 Fiscal Year
-----------
The Borrower will not change its fiscal year from that in effect on
the Effective Date, or permit any of its Subsidiaries so to do.
14.14 Transactions with Affiliates
----------------------------
The Borrower will not, and will not permit any of its Subsidiaries to,
sell, lease, transfer or otherwise dispose of any of its Properties to, or
purchase any Property from, or enter into any contract, agreement,
understanding, loan, advance or guarantee with, or for the benefit of, any
Affiliate of the Borrower or any Subsidiary (each of the foregoing, an
"Affiliate Transaction"), unless such Affiliate Transaction is on terms that are
no less favorable to the Borrower or the relevant Subsidiary than those that
would have been obtained in a comparable arm's-length transaction by the
Borrower or such Subsidiary with an unrelated Person; provided that this Section
--------
8.14 shall not restrict the ability of the Borrower to make Restricted Payments
otherwise permitted under Section 8.4.
14.15 Limitation on Certain Amendments
--------------------------------
(a) The Borrower will not, and will not permit any Subsidiary
to, enter into any amendment or make any payments with respect to, the Revolving
Credit Facility that would have the effect of (a) shortening the scheduled final
maturity of the Revolving Credit Facility, increasing the amount of any
scheduled reductions in the Revolving Credit Commitments, or shortening any
scheduled date for reductions in the Revolving Credit Commitments, (b) changing
the definition of "Required Lenders" in the Revolving Credit Facility, or (c)
changing any mandatory prepayments or commitment reductions required pursuant to
Section 2.7(e) of the Revolving Credit Facility (or any other provision
requiring mandatory prepayments or commitment reductions as a result of sales of
Property) in any way that, with respect to this clause (c), would adversely
affect the interests of the Lenders under any of the Loan Documents.
XV
The Borrower will not, and will not permit any Subsidiary to,
enter into any agreement that refinances, replaces or supersedes the Revolving
Credit Facility unless the terms and provisions of such agreement would be
permitted under Sections 8.1(b)(i) and 8.15(a) if the Revolving Credit Facility
were not being refinanced, replaced or superseded but were instead being amended
to contain such terms and provisions.
16. DEFAULT
-------
16.1 Events of Default
-----------------
The following shall each constitute an "Event of Default" hereunder:
----------------
(a) The failure of the Borrower to pay any principal of or
premium on any Loan on the date when due and payable; or
(b) The failure of the Borrower to pay any interest, fees,
expenses or other amounts payable under any Loan Document or otherwise to the
Administrative Agent, or to any other Person to
whom such payment is to be made with respect to the loan facilities established
hereunder within three Business Days of the date when due and payable; or
(c) The use of the proceeds of any Loan in a manner inconsistent
with or in violation of Section 2.13; or
(d) The failure of the Borrower to observe or perform any
covenant or agreement contained in Section 7.3, 8.3 or 8.4; or
(e) The failure of any Credit Party to observe or perform any
other term, covenant, or agreement contained in any Loan Document and such
failure shall have continued unremedied for a period of 30 days after the
Borrower shall have obtained knowledge thereof; or
(f) Any representation or warranty made in any Loan Document or
in any certificate, report, opinion (other than an opinion of counsel) or other
document delivered or to be delivered pursuant thereto, shall prove to have been
incorrect or misleading (whether because of misstatement or omission) in any
material respect when made; or
(g) Indebtedness under the Revolving Credit Facility or any other
obligation or obligations of the Borrower (other than its obligations under the
Notes) and/or any of its Subsidiaries (whether as principal, guarantor, surety,
lessee or other obligor) in excess of $10,000,000 on an aggregate basis for the
payment of any Indebtedness or operating leases (i) shall become or shall be
declared to be due and payable prior to the expressed maturity or expiry
thereof, or (ii) shall not be paid when due or within any grace period for the
payment thereof, or (iii) any holder of any such obligation shall have the
right, immediately or with the passage of time or the giving of notice, as a
result of any default thereunder to declare such obligation due and payable
prior to the expressed maturity thereof, and such default shall have continued
without cure or waiver for a period of 15 Business Days;
(h) The Borrower or any of its Material Subsidiaries shall (i)
make a general assignment for the benefit of creditors, (ii) generally not be
paying its debts as such debts become due, (iii) admit in writing its inability
to pay its debts as they become due, (iv) file a voluntary petition in
bankruptcy, (v) file any petition or answer seeking for itself any
reorganization, arrangement, composition, readjustment of debt, liquidation or
dissolution or similar relief under any present or future statute, law or
regulation of any jurisdiction, (vi) petition or apply to any tribunal for any
receiver, custodian or any trustee for any substantial part of its Property,
(vii) be the subject of any such proceeding filed against it that remains
undismissed for a period of 45 days, (viii) file any answer admitting or not
contesting the material allegations of any such petition filed against it or any
order, judgment or decree approving such petition in any such proceeding, (ix)
seek, approve, consent to, or acquiesce in any such proceeding, or in the
appointment of any trustee, receiver, sequestrator, custodian, liquidator, or
fiscal agent for it, or any substantial part of its Property, or an order is
entered appointing any such trustee, receiver, custodian, liquidator or fiscal
agent and such order remains in effect for 45 days, or (x) take any formal
action for the purpose of effecting any of the foregoing; or
(i) An order for relief is entered under the United States
bankruptcy laws or any other decree or order is entered by a court having
jurisdiction (i) adjudging the Borrower or any of its Material Subsidiaries
bankrupt or insolvent, (ii) approving as properly filed a petition seeking
reorganization, liquidation, arrangement, adjustment or composition of or in
respect of the Borrower or any of its Material Subsidiaries under the United
States bankruptcy laws or any other applicable Federal, state or foreign law,
(iii) appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator (or other similar official) of the Borrower or any of its Material
Subsidiaries or of any substantial part of the Property thereof, or (iv)
ordering the winding up or liquidation of the affairs of the Borrower or any of
its Material Subsidiaries, and any such decree or order continues unstayed and
in effect for a period of 45 days; or
(j) Judgments or decrees against the Borrower and/or any of its
Subsidiaries in excess of $5,000,000 on an aggregate basis shall remain unpaid,
unstayed on appeal, undischarged, unbonded or undismissed for a period of 30
days; or
(k) Any Loan Document shall cease, for any reason, to be in full
force and effect, or any Credit Party shall so assert in writing or shall
disavow any of its obligations thereunder; or
(l) (i) any Termination Event (other than an event which
constitutes a Termination Event solely because it is a Reportable Event) shall
occur that could reasonably be expected to result in a liability to the
Borrower, any of its Subsidiaries or any ERISA Affiliate in excess of $2,500,000
in the aggregate; (ii) any Accumulated Funding Deficiency in excess of
$2,500,000 in the aggregate, whether waived, shall exist with respect to any
Pension Plan; (iii) the Borrower, any of its Subsidiaries or any ERISA Affiliate
shall fail to pay when due an amount in excess of $2,500,000 in the aggregate
that is payable by it to the PBGC or to a Pension Plan under Title IV of ERISA;
or
(m) (i) any Guarantor shall not be a wholly-owned Subsidiary of
the Borrower, or (ii) any Guarantor that was a First-Tier Subsidiary of the
Borrower on the date such Guarantor became a party to the Subsidiary Guaranty
shall no longer be a First-Tier Subsidiary of the Borrower; or
(n) (A) A judgment creditor of the Borrower or any of its
Subsidiaries shall obtain possession of any material portion of the Collateral
under the Collateral Documents by any means, including, without limitation,
levy, distraint, replevin or self-help, (B) any of the Collateral Documents
shall cease for any reason to be in full force and effect, or any party thereto
shall purport to disavow its obligations thereunder or shall declare that it
does not have any further obligations thereunder or shall contest the validity
or enforceability thereof or the Collateral Agent, for the benefit of the
Lenders and others, shall cease to have a valid and perfected first priority
security interest in any material Collateral therein, or (C) the Collateral
Agent's security interests or liens on any material portion of the Collateral
under the Collateral Documents shall become otherwise impaired or unenforceable;
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, and such loss or failure shall continue for 20 Business Days (or,
in the case of a Subsidiary of the Borrower that became a Subsidiary pursuant to
a Permitted Acquisition, 180 days following the date such Permitted Acquisition
was consummated, provided that (x) such failure existed at the time such
Permitted Acquisition was consummated, (y) the consideration paid for such
Permitted Acquisition was less than $10,000,000, and (z) the aggregate
consideration paid for all Subsidiaries of the Borrower that became Subsidiaries
pursuant to a Permitted Acquisition then subject to any such failure is less
than $15,000,000).
Upon the occurrence of an Event of Default or at any time thereafter
during the continuance thereof, (a) if such event is an Event of Default
specified in clause (h) or (i) above, the Aggregate Term Loan Commitments shall
terminate and the Term Loans, all accrued and unpaid interest thereon, and all
other amounts owing under the Loan Documents shall immediately become due and
payable, and the Administrative Agent and the Collateral Agent may, and, upon
the direction of the Required Lenders shall, exercise any and all remedies and
other rights provided in the Loan Documents, and (b) if such event is any other
Event of Default, any or all of the following actions may be taken: (i) with
the consent of the Required Lenders, the Administrative Agent may, and upon the
direction of the Required Lenders shall, by notice to the Borrower, declare the
Aggregate Term Loan Commitments to be terminated forthwith, whereupon the
Aggregate Term Loan Commitments shall immediately terminate, and (ii) with the
consent of the Required Lenders, the Administrative Agent may, and upon the
direction of the Required Lenders shall, by notice of default to the Borrower,
declare the Loans, all accrued and unpaid interest thereon, and all other
amounts owing under the Loan Documents to be due and payable forthwith,
whereupon the same shall immediately become due and payable, and the
Administrative Agent and the Collateral Agent may, and upon the direction of the
Required Lenders shall, exercise any and all remedies and other rights provided
pursuant to the Loan Documents. Except as otherwise provided in this Section,
presentment, demand, protest and all other notices of any kind are hereby
expressly waived. To the extent permitted by applicable law, each Credit Party
hereby further expressly waives and covenants not to assert any appraisement,
valuation, stay, extension, redemption or similar laws, now or at any time
hereafter in force, that might delay, prevent or otherwise impede the
performance or enforcement of any Loan Document.
In the event that the Aggregate Term Loan Commitments shall have been
terminated or the Loans shall have been declared due and payable pursuant to the
provisions of this Section, any funds received by the Administrative Agent and
the Lenders from or on behalf of the Borrower shall be applied by the
Administrative Agent and the Lenders, subject to the Intercreditor Agreement, in
liquidation of the Loans and the obligations of the Borrower under the Loan
Documents and the applicable Currency Agreements and Interest Rate Agreements in
the following manner and order: (i) first, to the payment of interest on, and
then the principal portion of, any Loans that the Administrative Agent may have
advanced on behalf of any Lender for which the Administrative Agent has not then
been reimbursed by such Lender or the
Borrower; (ii) second, to the payment of any fees or expenses due the
Administrative Agent from the Borrower, (iii) third, to reimburse the
Administrative Agent and the Lenders for any expenses (to the extent not paid
pursuant to clause (ii) above) due from the Borrower pursuant to the provisions
of Section 11.5; (iv) fourth, to the payment of accrued Commitment Fees, and all
other fees, expenses and amounts due under the Loan Documents (other than
principal and interest on the Loans); (v) fifth, pro rata according to the
outstanding principal amount of the Loans, to the payment of interest due on the
Loans; (vi) sixth, pro rata according to the outstanding principal amount of the
Loans, the Secured Interest Rate Obligations and Secured Currency Obligations
(as each such term is defined in the Intercreditor Agreement) of the Lenders and
their Affiliates, to the payment of principal outstanding on the Loans and such
Secured Interest Rate Obligations and Secured Currency Obligations; and (vii)
seventh, to the payment of any other amounts owing to the Administrative Agent
and the Lenders under any Loan Document.
17. THE AGENT
---------
17.1 Appointment
-----------
Each Lender hereby irrevocably designates and appoints BNY as the
Administrative Agent of such Lender under the Loan Documents and each such
Lender hereby irrevocably authorizes BNY, as the Administrative Agent for such
Lender, to take such action on its behalf under the provisions of the Loan
Documents (including, without limitation, the Intercreditor Agreement) and to
exercise such powers and perform such duties as are expressly delegated to the
Administrative Agent by the terms of the Loan Documents, together with such
other powers as are reasonably incidental thereto. Notwithstanding any
provision to the contrary elsewhere in any Loan Document, the Administrative
Agent shall not have any duties or responsibilities other than those expressly
set forth therein, or any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into the Loan Documents or otherwise exist against the Administrative
Agent.
17.2 Delegation of Duties
--------------------
The Administrative Agent may execute any of its duties under the Loan
Documents by or through agents or attorneys-in-fact and shall be entitled to
rely upon the advice of counsel concerning all matters pertaining to such
duties.
17.3 Exculpatory Provisions
----------------------
Neither the Administrative Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates shall be (i) liable for any
action lawfully taken or omitted to be taken by the Administrative Agent or such
Person under or in connection with the Loan Documents (except the Administrative
Agent or such Person for its own gross negligence or willful misconduct), or
(ii) responsible in any manner to any of the Lenders for any recitals,
statements, representations or warranties made by any Credit Party or any
officer thereof contained in the Loan Documents or in any certificate, report,
statement or other document referred to or provided for in, or received by the
Administrative Agent under or in connection with, the Loan Documents or for the
value, validity, effectiveness, genuineness, perfection, enforceability or
sufficiency of any of the Loan Documents or for any failure of any Credit Party
or any other Person to perform its obligations thereunder. The Administrative
Agent shall not be under any obligation to any Lender to ascertain or to inquire
as to the observance or performance of any of the agreements contained in, or
conditions of, the Loan Documents, or to inspect the properties, books or
records of any Credit Party. The Administrative Agent shall not be under any
liability or responsibility whatsoever, as Administrative Agent, to any Credit
Party or any other Person as a consequence of any failure or delay in
performance, or any breach, by any Lender of any of its obligations under any of
the Loan Documents.
17.4 Reliance by Administrative Agent
--------------------------------
The Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, opinion, letter, cablegram, telegram, fax, telex or
teletype message, statement, order or other document or conversation believed by
it to be genuine and correct and to have been signed, sent or made by the proper
Person or Persons and upon advice and statements of legal counsel (including,
without limitation, counsel to any Credit Party), independent accountants and
other experts selected by the Administrative Agent. The Administrative Agent
may treat each Lender, or the Person designated in the last notice filed with it
under this Section, as the holder of all of the interests of such Lender in its
Loans and in its Notes until written notice of transfer, signed by such Lender
(or the Person designated in the last notice filed with the Administrative
Agent) and by the Person designated in such written notice of transfer, in form
and substance satisfactory to the Administrative Agent, shall have been filed
with the Administrative Agent. The Administrative Agent shall not be under any
duty to examine or pass upon the validity, effectiveness, enforceability,
perfection or genuineness of the Loan Documents or any instrument, document or
communication furnished pursuant thereto or in connection therewith, and the
Administrative Agent shall be entitled to assume that the same are valid,
effective and genuine, have been signed or sent by the proper parties and are
what they purport to be. The Administrative Agent shall be fully justified in
failing or refusing to take any action under the Loan Documents unless it shall
first receive such advice or concurrence of the Required Lenders as it deems
appropriate. The Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, under the Loan Documents in accordance
with a request or direction of the Required Lenders (or, when expressly required
by a Loan Document, all the Lenders), and such request or direction and any
action taken or failure to act pursuant thereto shall be binding upon all the
Lenders and all future holders of the Notes.
17.5 Notice of Default
-----------------
The Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default unless the
Administrative Agent has received written notice
thereof from a Lender or the Borrower. In the event that the Administrative
Agent receives such a notice, the Administrative Agent shall promptly give
notice thereof to the Lenders and the Borrower. The Administrative Agent shall
take such action with respect to such Default or Event of Default as shall be
directed by the Required Lenders, provided, however, 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 to be in the best interests of the Lenders.
17.6 Non-Reliance on Administrative Agent and Other Lenders
------------------------------------------------------
Each Lender expressly acknowledges that neither the Administrative
Agent nor any of its respective officers, directors, employees, agents,
attorneys-in-fact or affiliates has made any representations or warranties to it
and that no act by the Administrative Agent hereafter, including any review of
the affairs of any Credit Party, shall be deemed to constitute any
representation or warranty by the Administrative Agent to any Lender. Each
Lender represents to the Administrative Agent that it has, independently and
without reliance upon the Administrative Agent or any other Lender, and based on
such documents and information as it has deemed appropriate, made its own
evaluation of and investigation into the business, operations, Property,
financial and other condition and creditworthiness of the Credit Parties and
made its own decision to enter into this Agreement. Each Lender also represents
that it will, independently and without reliance upon the Administrative Agent
or any other Lender, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis,
evaluations and decisions in taking or not taking action under any Loan
Document, and to make such investigation as it deems necessary to inform itself
as to the business, operations, Property, financial and other condition and
creditworthiness of the Credit Parties. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent shall not have any duty
or responsibility to provide any Lender with any credit or other information
concerning the business, operations, Property, financial and other condition or
creditworthiness of the Credit Parties that may come into the possession of the
Administrative Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates.
17.7 Indemnification
---------------
Each Lender agrees to indemnify and reimburse the Administrative Agent
in its capacity as such (to the extent not promptly reimbursed by the Borrower
and without limiting the obligation of any Credit Party to do so), according to
its Pro Rata Share from and against any and all liabilities, obligations,
claims, losses, damages, penalties, actions, judgments, suits, costs, expenses
or disbursements of any kind whatsoever including, without limitation, any
amounts paid to the Lenders (through the Administrative Agent) by the Borrower
pursuant to the terms of the Loan Documents, that are subsequently rescinded or
avoided, or must otherwise be restored or returned, that may at any time
(including, without limitation, at any time following the payment of the Loans)
be imposed on, incurred by or asserted against the Administrative Agent
in any way relating to or arising out of the Loan Documents or any other
documents contemplated by or referred to therein or the transactions
contemplated thereby or any action taken or omitted to be taken by the
Administrative Agent under or in connection with any of the foregoing; provided,
however, that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements to the extent resulting from the gross
negligence or willful misconduct of the Administrative Agent. The agreements in
this Section shall survive the payment of all amounts payable under the Loan
Documents.
17.8 Administrative Agent in Its Individual Capacity
-----------------------------------------------
BNY and its respective affiliates may make loans to, accept deposits
from, issue letters of credit for the account of, and generally engage in any
kind of business with, any Credit Party as though BNY were not Administrative
Agent hereunder. With respect to the Commitment made or renewed by BNY and the
Notes issued to BNY, BNY shall have the same rights and powers under the Loan
Documents as any Lender and may exercise the same as though it were not the
Administrative Agent, and the terms "Lender" and "Lenders" shall in each case
include BNY.
17.9 Successor Administrative Agent
------------------------------
If at any time the Administrative Agent deems it advisable, in its
sole discretion, it may submit to each of the Lenders a written notice of its
resignation as Administrative Agent under the Loan Documents, such resignation
to be effective upon the earlier of (i) the written acceptance of the duties of
the Administrative Agent under the Loan Documents by a successor Administrative
Agent and (ii) on the 30th day after the date of such notice. Upon any such
resignation, the Required Lenders shall have the right to appoint from among the
Lenders a successor Administrative Agent. If no successor Administrative Agent
shall have been so appointed by the Required Lenders and accepted such
appointment in writing within 30 days after the retiring Administrative Agent's
giving of notice of resignation, then the retiring Administrative Agent may, on
behalf of the Lenders, appoint a successor Administrative Agent, which successor
Administrative Agent shall be a commercial bank organized under the laws of the
United States or any State thereof and having a combined capital, surplus, and
undivided profits of at least $100,000,000. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent's rights, powers,
privileges and duties as Administrative Agent under the Loan Documents shall be
terminated. The Borrower and the Lenders shall execute such documents as shall
be necessary to effect such appointment. After any retiring Administrative
Agent's resignation as Administrative Agent, the provisions of the Loan
Documents shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Administrative Agent under the Loan Documents. If at
any time there shall not be a duly appointed and acting Administrative Agent,
the Borrower agrees to make each payment due under the Loan Documents directly
to the Persons entitled thereto during such time.
17.10 Appointment of Collateral Agent; Intercreditor Agreement;
---------------------------------------------------------
Collateral Documents; Subsidiary Guaranty
-----------------------------------------
Each Lender hereby authorizes Administrative Agent to enter into the
Intercreditor Agreement on behalf of and for the benefit of that Lender and
agrees to be bound by the terms of the Intercreditor Agreement. Each Lender
hereby authorizes the Collateral Agent to enter into the Collateral Documents
and the Intercreditor Agreement and to accept the Subsidiary Guaranty and to
take all action contemplated by the Intercreditor Agreement, the Collateral
Documents, and Subsidiary Guaranty. Each Lender agrees that no Lender shall
have any right individually to seek or to enforce the Subsidiary Guaranty or to
realize upon the security granted by any Collateral Document, it being
understood and agreed that such rights and remedies may be exercised by
Collateral Agent for the benefit of Lenders and the parties to the Intercreditor
Agreement upon the terms of the Subsidiary Guaranty, the Collateral Documents
and the Intercreditor Agreement.
17.11 The Co-Arrangers
----------------
The Co-Arrangers shall have no duties or obligations under the Loan
Documents in their capacity as Co-Arrangers.
17.12 The Syndication Agent
---------------------
The Syndication Agent shall have no duties or obligations under the
Loan Documents in its capacity as Syndication Agent.
18. OTHER PROVISIONS
----------------
18.1 Amendments and Waivers
----------------------
With the written consent of the Required Lenders, the Administrative
Agent and the appropriate Credit Parties may, from time to time, enter into
written amendments, supplements or modifications of this Agreement, the Notes
and the Intercreditor Agreement and, with the consent of the Required Lenders,
the Administrative Agent on behalf of the Lenders may execute and deliver to any
such parties a written instrument waiving or a consent to a departure from, on
such terms and conditions as the Administrative Agent may specify in such
instrument, any of the requirements of this Agreement, the Notes and the
Intercreditor Agreement or any Default or Event of Default and its consequences;
provided that:
(a) no such amendment, supplement, modification, waiver or
consent shall, without the consent of all of the Lenders, (i) increase the
Commitment of any Lender or the Aggregate Term Loan Commitments, (ii) extend the
Maturity Date; (iii) decrease the rate or prepayment penalty or premium, or
extend the time of payment, of the Commitment Fee or of interest on, or change
or forgive the principal amount of, or change the pro rata allocation of
payments under, any Loan,
(iv) except as provided in Section 11.1(c), release or discharge any Credit
Party or release any Collateral; (v) change the provisions of Sections 2.8,
2.10, 2.11, 2.12, 2.14, 11.1 or 11.7(a), (vi) change the definition of Required
Lenders or Pro Rata Share, (vii) change the several nature of the obligations of
the Lenders, (viii) extend the date or decrease the amount of any scheduled
payment of Term Loans pursuant to Section 2.4(b) or (ix) add any new borrower
under this Agreement;
(b) without the written consent of the Administrative Agent, no
such amendment, supplement, modification or waiver shall amend, modify or waive
any provision of Section 10 or otherwise change any of the rights or obligations
of the Administrative Agent hereunder or under the other Loan Documents; and
(c) notwithstanding anything to the contrary contained in this
Section 11.1, (i) the Collateral Documents, the Intercreditor Agreement, and the
Subsidiary Guaranty may only be amended in accordance with the terms thereof and
of the Intercreditor Agreement, and (ii) the Collateral Agent may, at any time
and from time to time without the consent of any of the Lenders, release all or
any of the obligations of any one or more Subsidiaries under the Collateral
Documents in connection with a disposition of such Subsidiary as permitted by
Section 8.3 or 8.7, and release any Collateral or any security interest therein
in connection with any release specifically provided for in the Collateral
Documents.
Any such amendment, supplement, modification or waiver shall apply
equally to each of the Lenders and shall be binding upon the parties to the
applicable Loan Document, the Lenders, the Administrative Agent and all future
holders of the Notes. In the case of any waiver, the parties to the applicable
Loan Document, the Lenders and the Administrative Agent shall be restored to
their former position and rights hereunder and under the outstanding Notes and
other Loan Documents to the extent provided for in such waiver, and any Default
or Event of Default waived shall not extend to any subsequent or other Default
or Event of Default, or impair any right consequent thereon. The Loan Documents
may not be amended orally or by any course of conduct.
18.2 Notices
-------
All notices, requests and demands to or upon the respective parties to
the Loan Documents to be effective shall be in writing and, unless otherwise
expressly provided therein, shall be deemed to have been duly given or made when
delivered by hand, or when deposited in the mail, first-class postage prepaid,
or, in the case of notice by fax, when sent, addressed as follows in the case of
the Borrower or the Administrative Agent, at the Domestic Lending Office, in the
case of each Lender, and to the address of a Credit Party set forth in a Loan
Document, or to such other addresses as to which the Administrative Agent may be
hereafter notified by the respective parties thereto or any future holders of
the Notes:
The Borrower:
Total Renal Care Holdings, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇. ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇
Vice President, Finance
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
The Administrative Agent:
The Bank of ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Agency Function Administration
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ or 6366 or 6367
with a copy to:
The Bank of New York
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
except that any notice, request or demand by the Borrower to or upon the
Administrative Agent or the Lenders pursuant to Sections 2.3 or 2.5 shall not be
effective until received. Any party to a Loan Document may rely on signatures
of the parties thereto that are transmitted by fax or other electronic means as
fully as if originally signed.
18.3 No Waiver; Cumulative Remedies
------------------------------
No failure to exercise and no delay in exercising, on the part of the
Administrative Agent or any Lender, any right, remedy, power or privilege under
any Loan Document shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege under any Loan
Document preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights, remedies, powers and
privileges under the
Loan Documents are cumulative and not exclusive of any rights, remedies, powers
and privileges provided by law.
18.4 Survival of Representations and Warranties
------------------------------------------
All representations and warranties made under the Loan Documents and
in any document, certificate or statement delivered pursuant thereto or in
connection therewith shall survive the execution and delivery of the Loan
Documents.
18.5 Payment of Expenses and Taxes
-----------------------------
The Borrower agrees, promptly upon presentation of a statement or
invoice therefor, and whether any Loan is made (i) to pay or reimburse the
Administrative Agent, the Syndication Agent and the Co-Arrangers for all their
out-of-pocket costs and expenses reasonably incurred in connection with the
development, preparation and execution of the Loan Documents and any amendment,
supplement or modification thereto (whether or not executed), any documents
prepared in connection therewith and the consummation of the transactions
contemplated thereby, including, without limitation, the reasonable fees and
disbursements of Special Counsel, (ii) to pay or reimburse the Administrative
Agent, the Syndication Agent, the Co-Arrangers, and the Lenders for all of their
respective costs and expenses, including, without limitation, reasonable fees
and disbursements of counsel (including allocated costs of internal counsel),
incurred in connection with (A) any Default or Event of Default and any
enforcement or collection proceedings resulting therefrom or in connection with
the negotiation of any restructuring or "work-out" (whether consummated or not)
of the obligations of the Credit Parties under any of the Loan Documents and (B)
the enforcement of this Section, (iii) to pay, indemnify, and hold the
Administrative Agent, the Syndication Agent, the Co-Arrangers, and each Lender
harmless from and against, any and all recording and filing fees and any and all
liabilities with respect to, or resulting from any delay in paying, stamp,
excise and other similar taxes, if any, that may be payable or determined to be
payable in connection with the execution and delivery of, or consummation of any
of the transactions contemplated by, or any amendment, supplement or
modification of, or any waiver or consent under or in respect of, the Loan
Documents and any such other documents, and (iv) to pay, indemnify and hold the
Administrative Agent, the Syndication Agent, the Co-Arrangers, and each Lender,
and each of their respective officers, directors and employees, harmless from
and against any and all other liabilities, obligations, claims, losses, damages,
penalties, actions, judgments, suits, costs, expenses and disbursements of any
kind or nature whatsoever (including, without limitation, reasonable counsel
fees and disbursements) with respect to the enforcement and performance of the
Loan Documents, the use of the proceeds of the Loans and the enforcement and
performance of the provisions of any subordination agreement in favor of the
Administrative Agent and the Lenders (all the foregoing, collectively, the
"indemnified liabilities") and, if and to the extent that the foregoing
------------------------
indemnity may be unenforceable for any reason, the Borrower agrees to make the
maximum payment permitted or not prohibited under applicable law; provided,
however, that the Borrower shall have no obligation hereunder to pay indemnified
liabilities to the Administrative Agent, the Syndication Agent, the Co-
Arrangers, or any Lender to the extent
arising from such indemnified party's gross negligence or willful misconduct or
claims between one indemnified party and another indemnified party. The
agreements in this Section shall survive the termination of the Aggregate Term
Loan Commitments and the payment of all amounts payable under the Loan
Documents.
18.6 Lending Offices
---------------
(a) Each Lender shall have the right at any time and from time to
time to transfer its Loans to a different office, provided that such Lender
shall promptly notify the Administrative Agent and the Borrower of any such
change of office. Such office shall thereupon become such Lender's Domestic
Lending Office or Eurodollar Lending Office, as the case may be, provided,
however, that no such Lender shall be entitled to receive any greater amount
under Sections 2.8, 2.10, 2.11 and 2.14 as a result of a transfer of any such
Loans to a different office of such Lender than it would be entitled to
immediately prior thereto unless (i) such claim would have arisen even if such
transfer had not occurred, (ii) such transfer was made pursuant to subsection
(b) below, or (iii) such claims arose as a result of a change of law after such
transfer.
(b) Each Lender agrees that, upon the occurrence of any event
giving rise to any increased cost or indemnity under Sections 2.8, 2.10, 2.11 or
2.14 with respect to such Lender, it will, if requested by the Borrower, use
reasonable efforts (subject to overall policy considerations of such Lender) to
designate another lending office for any Loans affected by such event, provided
that such designation is made on such terms that such Lender and its lending
office suffer no economic, legal or regulatory disadvantage, with the object of
avoiding the consequence of the event giving rise to the operation of any such
Section.
18.7 Assignments and Participations
------------------------------
(a) The Loan Documents shall be binding upon and inure to the
benefit of the Borrower, the Lenders, the Administrative Agent, all future
holders of the Notes and their respective successors and assigns, except that no
Credit Party may assign, delegate or transfer any of its rights or obligations
under the Loan Documents without the prior written consent of the Administrative
Agent and each Lender.
(b) Each Lender shall have the right at any time, upon written
notice to the Administrative Agent of its intent to do so and the payment of a
fee (the "Assignment Fee") of $1,500 to the Administrative Agent by the
--------------
assigning or assignee Lender, to sell, assign, transfer or negotiate all or any
part of such Lender's rights and obligations under the Loan Documents (i) to one
or more of the other Lenders, (ii) to one or more of its affiliates or the
affiliates or Approved Funds of one or more of the other Lenders, (iii) to any
Federal Reserve Bank or (iv) with the prior written consent of the Borrower and
the Administrative Agent (which consents shall not be unreasonably withheld or
delayed, or with respect to the Borrower, required during the continuance of an
Event of Default), to any other bank, insurance company, pension fund, mutual
fund or other financial institution or fund, which in the normal course of its
business, purchases loans such as the Loans, provided that each such sale,
--------
assignment, transfer or
negotiation pursuant to clause (iv) shall be in a minimum amount of $1,000,000
(or, if less, a Lender's entire Credit Exposure). For each assignment, the
parties to such assignment shall execute and deliver to the Administrative Agent
for its acceptance an Assignment and Acceptance Agreement which the
Administrative Agent shall record in a register (the "Register") maintained by
the Administrative Agent on behalf of the Borrower, for the recordation of the
names and addresses of the Lenders and the Commitment of, and principal amount
of the Loans owing to, each Lender from time to time and the registered owners
of the obligation(s) evidenced by the Note(s). The entries in the Register shall
be presumptively correct absent manifest error. Upon such execution, delivery,
acceptance and recording by the Administrative Agent, from and after the
effective date specified in such Assignment and Acceptance Agreement, the
assignee thereunder, if not already a Lender, shall be a party hereto and, to
the extent provided in such Assignment and Acceptance Agreement, the assignor
Lender thereunder shall be released from its obligations under the Loan
Documents. The Borrower agrees upon written request of the Administrative Agent
and at the Borrower's expense to execute and deliver (i) to such assignee, a
Note, dated the effective date of such Assignment and Acceptance Agreement, in
an aggregate principal amount equal to the Loans assigned to, and Commitment
assumed by, such assignee and (ii) to such assignor Lender, Notes, dated the
effective date of such Assignment and Acceptance Agreement, in an aggregate
principal amount equal to the balance of such assignor Lender's Loans and
Commitment, if any, and each assignor Lender shall cancel and return to the
Borrower its existing Note. Upon any such sale, assignment or other transfer,
the Commitments and the Pro Rata Shares set forth in Exhibit A shall be adjusted
accordingly by the Administrative Agent.
(c) Each Lender may grant participations in all or any part of
its Loans, its Note and its Commitment to one or more banks, insurance
companies, financial institutions, pension funds, mutual funds or funds which in
the normal course of business purchase loans such as the Loans, provided that
(i) such Lender's obligations under the Loan Documents shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties to the
Loan Documents for the performance of such obligations, (iii) the Borrower, the
Administrative Agent and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under the Loan Documents, (iv) no sub-participations shall be
permitted and (v) the voting rights of any holder of any participation shall be
limited to decisions that require the consent of all Lenders as set forth in
Section 11.1(a). The Borrower acknowledges and agrees that any such participant
shall for purposes of Sections 2.8, 2.10, 2.11, and 2.14 be deemed to be a
"Lender"; provided, however, the Borrower shall not, at any time, be obligated
to pay any participant in any interest of any Lender hereunder any sum in excess
of the sum that the Borrower would have been obligated to pay to such Lender in
respect of such interest had such Lender not sold such participation.
(d) If any (i) assignment is made pursuant to subsection (b)
above or (ii) participation is granted pursuant to subsection (c) above, to any
Person that is not a U.S. Person, such Person shall furnish such certificates,
documents or other evidence to the Borrower and the Administrative Agent, in the
case of clause (i), and to the Borrower and the Lender that sold such
participation, in the case of clause (ii), as shall be required by Section
2.8(e).
(e) No Lender shall, as between and among the Borrower, the
Administrative Agent, the Syndication Agent, and such Lender, be relieved of any
of its obligations under the Loan Documents as a result of any sale, assignment,
transfer or negotiation of, or granting of participations in, all or any part of
its Loans, its Commitment or its Note, except that a Lender shall be relieved of
its obligations to the extent of any such sale, assignment, transfer, or
negotiation of all or any part of its Loans, its Commitment or its Note pursuant
to subsection (b) above.
(f) Notwithstanding anything to the contrary contained in this
Section, any Lender may at any time or from time to time assign or pledge all or
any portion of its rights under the Loan Documents to (i) a Federal Reserve Bank
or (ii) if such Lender is a fund which in the normal course of its business
purchases loans such as the Loans, to its lenders or a trustee under an
indenture for the benefit of its creditors, to secure such fund's obligations,
provided that any such assignment or pledge shall not release such assignor from
its obligations thereunder.
18.8 Counterparts
------------
Each Loan Document (other than the Notes) may be executed by one or
more of the parties thereto on any number of separate counterparts and all of
said counterparts taken together shall be deemed to constitute one and the same
document. It shall not be necessary in making proof of any Loan Document to
produce or account for more than one counterpart signed by the party to be
charged. A counterpart of any Loan Document or of any amendment, modification,
consent or waiver to or of any Loan Document transmitted by fax shall be deemed
to be an originally executed counterpart. A set of the copies of the Loan
Documents signed by all the parties thereto shall be deposited with each of the
Borrower and the Administrative Agent. Any party to a Loan Document may rely
upon the signatures of any other party thereto that are transmitted by fax or
other electronic means to the same extent as if originally signed.
18.9 Adjustments; Set-off
--------------------
(a) If any Lender shall at any time receive any payment of all or
any part of its Loans, or interest thereon, or receive any collateral in respect
thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or
proceedings of the nature referred to in Section 9.1 (h) or (i), or otherwise)
in a greater proportion than any such payment to and collateral received by any
other Lender in respect of such other Lender's Loans, or interest thereon (each
a "Benefited Lender"), such Benefited Lender shall purchase for cash from each
of the other Lenders such portion of each such other Lender's Loans, and shall
provide each of such other Lenders with the benefits of any such collateral, or
the proceeds thereof, as shall be necessary to cause such Benefited Lender to
share the excess payment or benefits of such collateral or proceeds ratably with
each of the Lenders, provided, however, that if all or any portion of such
excess payment or benefits is thereafter recovered from such Benefited Lender,
such purchase shall be rescinded, and the purchase price and benefits returned,
to the extent of such recovery, but without interest. The Borrower agrees that
each Lender so purchasing a portion of another Lender's Loans may exercise all
rights of payment (including, without limitation, rights of set-off, to the
extent not
prohibited by law) with respect to such portion as fully as if such Lender were
the direct holder of such portion.
(b) In addition to any rights and remedies of the Lenders
provided by law, upon the occurrence of an Event of Default and the acceleration
of the obligations owing in connection with the Loan Documents, or at any time
upon the occurrence and during the continuance of an Event of Default, under
Section 9.1(a) or (b), each Lender shall have the right, without prior notice to
the Borrower, any such notice being expressly waived by each Credit Party to the
extent not prohibited by applicable law, to set-off and apply against any
indebtedness, whether matured or unmatured, of such Credit Party to such Lender,
any amount owing from such Lender to such Credit Party, at, or at any time
after, the happening of any of the above-mentioned events. To the extent not
prohibited by applicable law, the aforesaid right of set-off may be exercised by
such Lender against such Credit Party or against any trustee in bankruptcy,
custodian, debtor in possession, assignee for the benefit of creditors,
receiver, or execution, judgment or attachment creditor of such Credit Party, or
against anyone else claiming through or against such Credit Party or such
trustee in bankruptcy, custodian, debtor in possession, assignee for the benefit
of creditors, receiver, or execution, judgment or attachment creditor,
notwithstanding the fact that such right of set-off shall not have been
exercised by such Lender prior to the making, filing or issuance, or service
upon such Lender of, or of notice of, any such petition, assignment for the
benefit of creditors, appointment or application for the appointment of a
receiver, or issuance of execution, subpoena, order or warrant. Each Lender
agrees promptly to notify the applicable Credit Party and the Administrative
Agent after any such set-off and application made by such Lender, provided that
the failure to give such notice shall not affect the validity of such set-off
and application.
18.10 Construction
------------
Each Credit Party represents that it has been represented by counsel
in connection with the Loan Documents and the transactions contemplated thereby
and that the principle that agreements are to be construed against the draftsman
shall be inapplicable.
18.11 Indemnity
---------
The Borrower agrees to indemnify and hold harmless the Administrative
Agent, the Syndication Agent, the Co-Arrangers, and each Lender and their
respective affiliates, directors, officers, employees, attorneys and agents
(each an "Indemnified Person") from and against any loss, cost, liability,
------------------
damage or expense (including the reasonable fees and disbursements of counsel of
such Indemnified Person, including all local counsel hired by any such counsel)
incurred by such Indemnified Person in investigating, preparing for, defending
against, or providing evidence, producing documents or taking any other action
in respect of, any commenced or threatened litigation, administrative proceeding
or investigation under any federal securities law or any other statute of any
jurisdiction, or any regulation, or at common law or otherwise, that is alleged
to arise out of or is based upon (i) any untrue statement or alleged untrue
statement of any material fact by any Credit Party in any document or schedule
executed or filed with any
Governmental Authority by or on behalf of any Credit Party; (ii) any omission or
alleged omission to state any material fact required to be stated in such
document or schedule, or necessary to make the statements made therein, in light
of the circumstances under which made, not misleading; (iii) any acts, practices
or omissions or alleged acts, practices or omissions of any Credit Party or its
agents relating to the use of the proceeds of any or all borrowings made by the
Borrower alleged to be in violation of Section 2.13, or in violation of any
federal securities law or of any other statute, regulation or other law of any
jurisdiction applicable thereto; or (iv) any acquisition or proposed acquisition
by any Credit Party of all or a portion of the Stock, or all or a portion of the
assets, of any Person whether such Indemnified Person is a party thereto,
provided that the Borrower shall have no obligation under this Section to an
Indemnified Person with respect to any of the foregoing to the extent any such
loss, cost, liability, damage or expense resulted from or arose out of the gross
negligence or wilful misconduct of such Indemnified Person or arose from claims
between one such Indemnified Person and another such Indemnified Person. The
indemnity set forth herein shall be in addition to any other obligations or
liabilities of the Borrower to each Indemnified Person under the Loan Documents
or at common law or otherwise, and shall survive any termination of the Loan
Documents, the expiration of the Commitments and the payment of all indebtedness
of the Borrower under the Loan Documents.
18.12 GOVERNING LAW
-------------
THE LOAN DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
THEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICT OF LAWS.
18.13 Headings Descriptive
--------------------
Section headings have been inserted in the Loan Documents for
convenience only and shall not be construed to be a part thereof.
18.14 Severability
------------
Every provision of the Loan Documents is intended to be severable, and
if any term or provision thereof shall be invalid, illegal or unenforceable for
any reason, the validity, legality and enforceability of the remaining
provisions thereof shall not be affected or impaired thereby, and any
invalidity, illegality or unenforceability in any jurisdiction shall not affect
the validity, legality or enforceability of any such term or provision in any
other jurisdiction.
18.15 Integration
-----------
All exhibits to a Loan Document shall be deemed to be a part thereof.
Except for agreements between the Administrative Agent and the Borrower with
respect to certain fees, the Loan Documents embody the entire agreement and
understanding among the Credit Parties, the
Administrative Agent and the Lenders with respect to the subject matter thereof
and supersede all prior agreements and understandings among the Credit Parties,
the Administrative Agent and the Lenders with respect to the subject matter
thereof.
18.16 Consent to Jurisdiction
-----------------------
Each Credit Party hereby irrevocably submits to the jurisdiction of
any New York State or Federal court sitting in the City of New York over any
suit, action or proceeding arising out of or relating to the Loan Documents.
Each Credit Party hereby irrevocably waives, to the fullest extent permitted or
not prohibited by law, any objection that it may now or hereafter have to the
laying of the venue of any such suit, action or proceeding brought in such a
court and any claim that any such suit, action or proceeding brought in such a
court has been brought in an inconvenient forum. Each Credit Party hereby agrees
that a final judgment in any such suit, action or proceeding brought in such a
court, after all appropriate appeals, shall be conclusive and binding upon it.
18.17 Service of Process
------------------
Each Credit Party hereby agrees that service of process in any such
suit, action or proceeding brought in the State of New York may be made upon CT
Corporation at its offices at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (or any
other location in New York City) (the "Process Administrative Agent") and each
----------------------------
Credit Party hereby irrevocably appoints the Process Administrative Agent its
authorized agent to accept such service of process, and agrees that the failure
of the Process Administrative Agent to give any notice of any such service shall
not impair or affect the validity of such service or of any judgment rendered in
any action or proceeding based thereon. Each Credit Party hereby further
irrevocably consents to the service of process in any suit, action or proceeding
by sending the same by first class mail, return receipt requested or by
overnight courier service, to the address of such Credit Party set forth in or
referred to in Section 11.2 or in the applicable Loan Document executed by such
Credit Party. Each Credit Party hereby agrees that any such service (i) shall
be deemed in every respect effective service of process upon it in any such
suit, action, or proceeding, and (ii) shall to the fullest extent enforceable by
law, be taken and held to be valid personal service upon and personal delivery
to it.
18.18 No Limitation on Service or Suit
--------------------------------
Nothing in the Loan Documents or any modification, waiver, consent or
amendment thereto shall affect the right of the Administrative Agent or any
Lender to serve process in any manner permitted by law or limit the right of the
Administrative Agent or any Lender to bring proceedings against any Credit Party
in the courts of any jurisdiction or jurisdictions in which such Credit Party
may be served.
18.19 WAIVER OF TRIAL BY JURY
-----------------------
THE ADMINISTRATIVE AGENT, THE SYNDICATION AGENT, THE CO-ARRANGERS, THE
LENDERS, AND EACH CREDIT PARTY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
ARISING OUT OF, UNDER OR IN CONNECTION WITH THE LOAN DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED THEREIN. FURTHER, EACH CREDIT PARTY HEREBY CERTIFIES
THAT NO REPRESENTATIVE OR AGENT OF THE ADMINISTRATIVE AGENT, THE SYNDICATION
AGENT, THE CO-ARRANGERS OR THE LENDERS, OR COUNSEL TO THE ADMINISTRATIVE AGENT,
THE SYNDICATION AGENT, THE CO-ARRANGERS OR THE LENDERS HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT THE ADMINISTRATIVE AGENT, THE SYNDICATION AGENT,
THE CO-ARRANGERS OR THE LENDERS WOULD NOT, IN THE EVENT OF SUCH LITIGATION, SEEK
TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION. EACH CREDIT PARTY
ACKNOWLEDGES THAT THE ADMINISTRATIVE AGENT, THE SYNDICATION AGENT, THE CO-
ARRANGERS AND THE LENDERS HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
INTER ALIA, THE PROVISIONS OF THIS SECTION.
----- ----
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
TOTAL RENAL CARE HOLDINGS, INC.
By: ___________________________________
Name: _________________________________
Title: ________________________________
THE BANK OF NEW YORK,
Individually, and as Administrative Agent
By: ___________________________________
Name: _________________________________
Title: ________________________________
DLJ CAPITAL FUNDING, INC.,
Individually and as Syndication Agent
By: ___________________________________
Name: _________________________________
Title: ________________________________