EXHIBIT 10.19
$400,000,000
CREDIT AGREEMENT
Dated as of May 3, 2001
Among
DAVITA INC.
as Borrower
-- --------
and
THE INITIAL LENDERS, INITIAL ISSUING BANK AND
SWING LINE BANK NAMED HEREIN
as Initial Lenders, Initial Issuing Bank and Swing Line Bank
-- ------- ------- ------- ------- ---- --- ----- ---- ----
and
BANK OF AMERICA, N.A.,
as Administrative Agent
-- -------------- -----
and
BANC OF AMERICA SECURITIES LLC
and
CREDIT SUISSE FIRST BOSTON
as Joint Lead Arrangers and Joint Book Managers
-- ----- ---- --------- --- ----- ---- --------
and
CREDIT SUISSE FIRST BOSTON
as Syndication Agent
-- ----------- -----
and
THE BANK OF NEW YORK, THE BANK OF NOVA SCOTIA and SUNTRUST BANK
as Documentation Agents
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TABLE OF CONTENTS
Section Page
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms..................................................... 1
SECTION 1.02. Computation of Time Periods; Other Definitional Provisions................ 29
SECTION 1.03. Accounting Terms.......................................................... 29
SECTION 1.04. Currency Equivalents Generally............................................ 29
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES AND THE LETTERS OF CREDIT
SECTION 2.01. The Advances and the Letters of Credit.................................... 30
SECTION 2.02. Making the Advances....................................................... 32
SECTION 2.03. Issuance of and Drawings and Reimbursement Under Letters of Credit........ 35
SECTION 2.04. Repayment of Advances..................................................... 37
SECTION 2.05. Termination or Reduction of the Commitments............................... 40
SECTION 2.06. Prepayments............................................................... 41
SECTION 2.07. Interest.................................................................. 44
SECTION 2.08. Fees...................................................................... 45
SECTION 2.09. Conversion of Advances.................................................... 45
SECTION 2.10. Increased Costs, Etc...................................................... 47
SECTION 2.11. Evidence of Debt.......................................................... 49
SECTION 2.12. Payments and Computations................................................. 49
SECTION 2.13. Taxes..................................................................... 52
SECTION 2.14. Sharing of Payments, Etc.................................................. 55
SECTION 2.15. Use of Proceeds........................................................... 55
SECTION 2.16. Defaulting Lenders........................................................ 55
ARTICLE III
CONDITIONS OF LENDING AND ISSUANCES OF LETTERS OF CREDIT
SECTION 3.01. Conditions Precedent to Initial Extension of Credit....................... 58
SECTION 3.02. Conditions Precedent to Each Borrowing and Issuance and Renewal........... 61
SECTION 3.03. Determinations Under Section 3.01......................................... 62
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower............................ 62
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ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants................................................ 67
SECTION 5.02. Negative Covenants................................................... 70
SECTION 5.03. Reporting Requirements............................................... 80
SECTION 5.04. Financial Covenants.................................................. 82
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default.................................................... 84
SECTION 6.02. Actions in Respect of the Letters of Credit upon Default ............ 87
ARTICLE VII
THE AGENTS
SECTION 7.01. Appointment, Powers and Immunity..................................... 88
SECTION 7.02. Reliance by Agent.................................................... 89
SECTION 7.03. Defaults............................................................. 89
SECTION 7.04. BofA, BAS and Affiliates............................................. 89
SECTION 7.05. Indemnification...................................................... 90
SECTION 7.06. Non-Reliance on Agent and Other Lender Parties....................... 91
SECTION 7.07. Resignation of Administrative Agent.................................. 91
SECTION 7.08. Release of Collateral................................................ 92
SECTION 7.09. Release of Guarantor................................................. 92
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc...................................................... 92
SECTION 8.02. Notices, Etc......................................................... 94
SECTION 8.03. No Waiver; Remedies.................................................. 94
SECTION 8.04. Costs and Expenses................................................... 94
SECTION 8.05. Right of Set-off..................................................... 96
SECTION 8.06. Binding Effect....................................................... 96
SECTION 8.07. Assignments and Participations....................................... 97
SECTION 8.08. Execution in Counterparts............................................ 101
SECTION 8.09. No Liability of the Issuing Bank..................................... 101
SECTION 8.10. Confidentiality...................................................... 101
SECTION 8.11. Execution in Counterparts............................................ 102
SECTION 8.12. Governing Law, Jurisdiction, Etc..................................... 102
SECTION 8.13. Designation as Designated Senior Debt................................ 102
SECTION 8.14. WAIVER OF JURY TRIAL................................................. 104
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SCHEDULES
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Schedule I - Commitments and Applicable Lending Offices
Schedule II - Existing Letters of Credit
Schedule 4.01(b) - Subsidiaries
Schedule 4.01(d) - Authorizations
Schedule 4.01(f) - Litigation
Schedule 4.01(o) - Environmental Laws
Schedule 4.01(p) - Open Years
Schedule 4.01(q) - Liens
Schedule 4.01(r) - Investments
Schedule 4.01(s) - Facilities
Schedule 5.02 (b) - Debt
EXHIBITS
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Exhibit A-1 - Form of Term A Note
Exhibit A-2 - Form of Term B Note
Exhibit A-3 - Form of Revolving Credit Note
Exhibit B-1 - Form of Notice of Borrowing
Exhibit B-2 - Form of Notice of Swing Line Borrowing
Exhibit B-3 - Form of Notice of Conversion
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Security Agreement
Exhibit E - Form of Subsidiary Guaranty
Exhibit F - Form of Opinion of Borrower's General Counsel
Exhibit G - Form of Opinion of Riordan & McKinzie
Exhibit H - Entities that are not Subsidiaries
CREDIT AGREEMENT
CREDIT AGREEMENT dated as of May 3, 2001 among DAVITA INC., a
Delaware corporation (the "Borrower"), the banks, financial institutions and
other institutional lenders listed on the signature pages hereof under the
caption "Initial Lenders" (the "Initial Lenders"), BANK OF AMERICA, N.A.
("BofA"), as the initial issuer of Letters of Credit (as hereinafter defined)
hereunder (the "Initial Issuing Bank"), and as the provider of the Swing Line
Facility (as hereinafter defined) hereunder (the "Swing Line Bank"), THE BANK OF
NEW YORK ("BONY"), as Issuing Bank (as hereinafter defined), BANC OF AMERICA
SECURITIES LLC ("BAS") and CREDIT SUISSE FIRST BOSTON ("CSFB"), as the joint
book managers and joint lead arrangers (the "Book Managers") for the Facilities
(as hereinafter defined), BofA as the administrative agent (together with any
successor thereto appointed pursuant to Article VII, the "Administrative Agent")
for the Lender Parties (as hereinafter defined), BONY, THE BANK OF NOVA SCOTIA
AND SUNTRUST BANK, as documentation agents (the "Documentation Agents") and
CSFB, as syndication agent (the "Syndication Agent").
PRELIMINARY STATEMENTS:
The Borrower has requested that the Lender Parties provide credit
facilities in an aggregate amount of $400,000,000 as provided herein, and the
Lender Parties have agreed to provide such credit facilities on the terms and
conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, the parties hereto hereby
agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
-----------------------------------
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and the plural forms of the terms defined):
"Administrative Agent" has the meaning specified in the recital
of parties to this Agreement.
"Administrative Agent's Account" means the account of the
Administrative Agent maintained by the Administrative Agent at its
office at 101 North Tryon Street, 15th Floor, NC1-001-15-04,
Charlotte, North Carolina 28255, ABA No. 053-000-196, Account No.
13662122506, Reference: DaVita Inc., Attention: Corporate Credit
Services, or such other account maintained by the Administrative Agent
and designated by the Administrative Agent from time to time as such
in a written notice to the Borrower and each of the Lender Parties.
"Advance" means a Term A Advance, a Term B Advance, a Revolving
Credit Advance, a Swing Line Advance or a Letter of Credit Advance, as
the context may require.
"Affiliate" means, with respect to any Person, any other Person
that, directly or indirectly, controls, is controlled by or is under
common control with such Person or is a director or officer of such
Person. For purposes of this definition, the term "control" (including
the terms "controlling," "controlled by" and "under common control
with") of a Person means the possession, direct or indirect, of the
power to vote 10% or more of the Voting Interests in such
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Person or to direct or cause the direction of the management and
policies of such Person, whether through the ownership of Voting
Interests, by contract or otherwise.
"Agents" means, collectively, the Administrative Agent, the Book
Managers, the Syndication Agent, the Documentation Agents and each co-
agent or sub-agent appointed by the Administrative Agent from time to
time pursuant to Section 7.01(b).
"Agreement" means this Credit Agreement, as the same may be
amended, restated, supplemented or otherwise modified from time to
time.
"Agreement Value" means, for each Hedge Agreement, on any date of
determination, an amount reasonably determined by the Administrative
Agent equal to: (a) in the case of a Hedge Agreement documented
pursuant to the Master Agreement (Multicurrency-Cross Border)
published by the International Swap and Derivatives Association, Inc.
(the "Master Agreement"), the amount, if any, that would be payable by
any Loan Party to its counterparty in respect of such Hedge Agreement,
as if (i) such Hedge Agreement was being terminated early on such date
of determination, (ii) such Loan Party was the sole "Affected Party",
and (iii) the Administrative Agent was the sole party determining such
payment amount (with the Administrative Agent making such
determination pursuant to the provisions of that specific form of
Master Agreement); or (b) in the case of a Hedge Agreement traded on
an exchange, the mark-to-market value of such Hedge Agreement, which
will be the unrealized gain or loss on such Hedge Agreement to the
Loan Party to such Hedge Agreement reasonably determined by the
Administrative Agent based on the settlement price of such Hedge
Agreement on such date of determination, or (c) in all other cases,
the mark-to-market value of such Hedge Agreement, which will be the
unrealized gain or loss on such Hedge Agreement to the Loan Party to
such Hedge Agreement reasonably determined by the Administrative Agent
as the amount, if any, by which (i) the present value of the future
cash flows to be paid by such Loan Party exceeds (ii) the present
value of the future cash flows to be received by such Loan Party
pursuant to such Hedge Agreement; capitalized terms used and not
otherwise defined in this definition shall have the respective
meanings set forth in the above described Master Agreement.
"Ancillary Services" means services relating to the needs of
patients with "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 densitometry 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" means (a) with respect to each of the
Lenders, the Base Rate Lending Office of such Lender in the case of a
Base Rate Advance and the Eurodollar Lending Office of such Lender in
the case of a Eurodollar Rate Advance and (b) with respect to the
Issuing Bank and the Swing Line Bank, the Base Rate Lending Office of
the Issuing Bank and the Swing Line Bank, respectively, for all
purposes of this Agreement.
"Applicable Margin" means (i) at any time during the period from
the date of this Agreement through the date of receipt by the
Administrative Agent of the Required Financial Information for the
Measurement Period ending March 31, 2001, 1.75% per annum for Base
Rate Advances under the Term A Facility and the Revolving Credit
Facility and 1.75% per annum for Base Rate Advances under the Term B
Facility and 2.75% per annum for Eurodollar Rate Advances under the
Term A Facility and the Revolving Credit Facility and 2.75% per annum
for
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Eurodollar Rate Advances under the Term B Facility and (ii) at any
time and from time to time thereafter, on any date of determination, a
percentage per annum equal to the applicable percentage for the
Performance Level set forth below as determined by reference to the
Leverage Ratio for the most recently completed Measurement Period:
======================================================================================================================
Base Rate Advances Eurodollar Rate Advances
- ----------------------------------------------------------------------------------------------------------------------
Term A Term A Term
Performance Leverage Facility/Revolving Credit Term B Facility/Revolving B
Level Ratio Facility Facility Credit Facility Facility
- ----------------------------------------------------------------------------------------------------------------------
I Less than 0.75% 1.75% 1.75% 2.75%
1.75x
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II Greater than or 1.25% 1.75% 2.25% 2.75%
equal to 1.75x
but less than
2.25x
- ----------------------------------------------------------------------------------------------------------------------
III Greater than or 1.50% 1.75% 2.50% 2.75%
equal to 2.25x
but less than
3.0x
- ----------------------------------------------------------------------------------------------------------------------
IV Greater than or 1.75% 1.75% 2.75% 2.75%
equal to 3.0x
but less than
3.75x
- ----------------------------------------------------------------------------------------------------------------------
V Greater than or 2.00% 1.75% 3.00% 2.75%
equal to 3.75x
======================================================================================================================
For the purposes of:
(A) clause (ii) of the immediately preceding sentence,
the Applicable Margin for each Base Rate Advance shall be
determined by reference to the Performance Level in effect
from time to time and the Applicable Margin for each
Eurodollar Rate Advance shall be determined by reference to
the Performance Level in effect on the first day of each
Interest Period for such Eurodollar Rate Advance; and
(B) determining the Performance Level in respect of
the Applicable Margin at any date of determination, changes
in the Performance Level shall be effective on the date on
which the Administrative Agent and the Lender Parties
receive the Required Financial Information reflecting such
change; provided, however, that if the Borrower has not
delivered to the Administrative Agent and the Lender Parties
all of the information required under this clause (B) within
five Business Days after the date on which such information
is otherwise required under Section 5.03(b) or 5.03(c), as
applicable, the Performance Level shall be deemed to be at
Performance Level IV for so long as such information has not
been submitted;
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"Applicable Percentage" means, with respect to the Commitment
Fee, (a) at any time during the period from the date of this Agreement
through the date of receipt by the Administrative Agent of the
Required Financial Information for the Measurement Period ending March
31, 2001, 0.50% per annum and (b) at any time and from time to time
thereafter, a rate per annum equal to the percentage set forth below
opposite the applicable Performance Level as determined by reference
to the Leverage Ratio for the most recently completed Measurement
Period:
============================================================================================================
Performance Level Leverage Ratio Commitment Fee
------------------------------------------------------------------------------------------------------------
I Less than 1.75x 0.375%
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II Greater than or equal to 1.75x but 0.375%
less than 2.25x
------------------------------------------------------------------------------------------------------------
III Greater than or equal to 2.25x but 0.375%
less than 3.0x
------------------------------------------------------------------------------------------------------------
IV Greater than or equal to 3.0x but 0.500%
less than 3.75x
------------------------------------------------------------------------------------------------------------
V Greater than or equal to 3.75x 0.500%
============================================================================================================
For the purposes of:
(A) clause (b) of the immediately preceding sentence,
the Applicable Percentage for the Commitment Fee shall be
determined by reference to the Performance Level in effect
from time to time; and
(B) determining the Performance Level in respect of
the Applicable Percentage at any date of determination,
changes in the Performance Level shall be effective on the
date on which the Administrative Agent and the Lender
Parties receive the Required Financial Information
reflecting such change; provided, however, that if the
Borrower has not delivered to the Administrative Agent and
the Lender Parties all of the information required under
this clause (B) within five Business Days after the date on
which such information is otherwise required under Section
5.03(b) or 5.03(c), as applicable, the Performance Level
shall be deemed to be at Performance Level IV for so long as
such information has not been submitted;
"Appropriate Lender" means, at any time, (a) with respect to the
Term A Facility, the Term B Facility or the Revolving Credit Facility,
a Lender that has a Commitment with respect to such Facility at such
time, (b) with respect to the Letter of Credit Facility, (i) the
Issuing Bank and (ii) if the Revolving Credit Lenders have made Letter
of Credit Advances pursuant to Section 2.03(c) that are outstanding at
such time, each such Revolving Credit Lender and (c) with respect to
the Swing Line Facility, (i) the Swing Line Bank and (ii) if the
Revolving Credit Lenders have made Swing Line Advances pursuant to
Section 2.02(b) that are outstanding at such time, each such Revolving
Credit Lender.
"Approved Fund" means any Person (other than a natural Person)
that (i) is (or will be) an "accredited investor" (as defined in
Regulation D under the Securities Act) engaged in making, purchasing,
holding or otherwise investing in commercial loans and similar
extensions of credit in the ordinary course of its business and (ii)
is administered, advised or managed by (a) a Lender, (b) an Affiliate
of a Lender or (c) an entity or an Affiliate of an entity that
administers, advises or manages a Lender.
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"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender Party and an Eligible Assignee, and accepted
by the Administrative Agent and, if applicable, the Borrower, in
accordance with Section 8.07 and in substantially the form of Exhibit
C hereto.
"Assuming Lender" means an Eligible Assignee not previously a
Lender that becomes a Lender hereunder pursuant to Section 2.05(d) and
is acceptable to the Administrative Agent (whose acceptance shall not
be unreasonably withheld or delayed) and to each Issuing Bank (in the
sole discretion of each Issuing Bank).
"Assumption Agreement" means an agreement by which an Eligible
Assignee agrees to become a Lender hereunder pursuant to Section
2.05(d), agreeing to be bound by all obligations of a Lender
hereunder.
"Available Amount" of any Letter of Credit means, at any time,
the maximum amount available to be drawn under such Letter of Credit
at such time (assuming compliance at such time with all conditions to
drawing).
"Base Rate" means a fluctuating interest rate per annum in effect
from time to time, which rate per annum shall at all times be equal to
the higher of:
(a) the rate of interest established by BofA from time to
time as its prime rate (which rate of interest may not be the
lowest rate of interest charged by BofA to its customers); and
(b) the Federal Funds Rate plus 0.50%.
Any change in the Base Rate resulting from a change in the prime
rate established by BofA shall become effective on the Business Day on
which such change in the prime rate is announced by BofA.
"Base Rate Advance" means an Advance that bears interest as
provided in Section 2.07(a)(i).
"Base Rate Lending Office" means, with respect to each of the
Lender Parties, the office of such Lender Party specified as its "Base
Rate Lending Office" opposite its name on Schedule I hereto or in the
Assignment and Acceptance pursuant to which it became a Lender Party,
as the case may be, or such other office of such Lender Party as such
Lender Party may from time to time specify to the Borrower and the
Administrative Agent for such purpose.
"Borrower's Account" means such account of the Borrower as is
agreed from time to time in writing between the Borrower and the
Administrative Agent.
"Borrower's Percentage" means, in respect of the sale or issuance
of Equity Interests by any Subsidiary of the Borrower, the percentage
of the common Equity Interests of such Subsidiary beneficially owned
directly or indirectly by the Borrower after giving effect to such
sale or issuance.
"Borrowing" means a Term A Borrowing, a Term B Borrowing, a
Revolving Credit Borrowing or a Swing Line Borrowing, as the context
may require.
6
"Business Day" means a day of the year on which banks are not
required or authorized by law to close in New York, New York or
Charlotte, North Carolina, and, if the applicable Business Day relates
to any Eurodollar Rate Advances, on which dealings are carried on in
U.S. dollar deposits in the London interbank market.
"Capital Assets" means, with respect to any Person, all
equipment, fixed assets and real property or improvements of such
Person, or replacements or substitutions therefor or additions
thereto, that, in accordance with GAAP, have been or should be
reflected as additions to property, plant or equipment on the balance
sheet of such Person.
"Capital Expenditures" means, with respect to any Person for any
period, all expenditures made directly or indirectly by such Person
during such period for Capital Assets (whether paid in cash or other
consideration or accrued as a liability and including, without
limitation, all expenditures for maintenance and repairs which are
required, in accordance with GAAP, to be capitalized on the books of
such Person). For purposes of this definition, the purchase price of
equipment or other fixed assets that are purchased simultaneously with
the trade-in of existing assets or with insurance proceeds shall be
included in Capital Expenditures only to the extent of the gross
amount by which such purchase price exceeds the credit granted by the
seller of such assets for the assets being traded in at such time or
the amount of such insurance proceeds, as the case may be.
"Capitalized Lease" means any lease with respect to which the
lessee is required to recognize concurrently the acquisition of
property or an asset and the incurrence of a liability in accordance
with GAAP.
"Capitalized Lease Obligations" means, with respect to any
Capitalized Lease, the amount required to be capitalized in the
financial statements of the lessee in accordance with GAAP.
"Cash Distributions" means, with respect to any Person for any
period, all dividends and other distributions on any of the
outstanding Equity Interests in such Person, all purchases,
redemptions, retirements, defeasances or other acquisitions of any of
the outstanding Equity Interests in such Person and all returns of
capital to the stockholders, partners or members (or the equivalent
persons) of such Person, in each case to the extent paid in cash by or
on behalf of such Person during such period.
"Cash Equivalents" means (a) securities with maturities of one
year or less from the date of acquisition, issued, fully guaranteed or
insured by the United States Government, (b) securities with
maturities of one year or less from the date of acquisition issued,
fully guaranteed or insured by any State of the United States of
America or any political subdivision thereof rated at least AA- by
S&P's Ratings Services or Aa3 by Moody's, or carrying an equivalent
rating by a nationally recognized rating agency if both of the two
named rating agencies cease publishing ratings of investments, (c)
certificates of deposit, time deposits, overnight bank deposits,
bankers' acceptances and repurchase agreements issued by a Qualified
Issuer having maturities of 270 days or less from the date of
acquisition, (d) commercial paper of an issuer rated at least A-2 by
S&P's Ratings Services or P-2 by Moody's, or carrying an equivalent
rating by a nationally recognized rating agency if both of the two
named rating agencies cease publishing ratings of investments, 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
7
Equivalents described in clauses (a) through (d) above, which money
market accounts or funds have net assets of not less than $500,000,000
and have the highest rating available of either S&P's Ratings Services
or Moody's, or carrying an equivalent rating by a nationally
recognized rating agency if both of the two named rating agencies
cease publishing ratings of investments.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended from time to time.
"CERCLIS" means the Comprehensive Environmental Response,
Compensation and Liability Information System maintained by the U.S.
Environmental Protection Agency.
"CHAMPUS" means the United States Department of Defense Human
Civilian Health and Medical Program of the Uniformed Services.
"Change of Control" means, at any time:
(a) any "person" or "group" (each as used in Sections 13(d)(3)
and 14(d)(2) of the Exchange Act) (i) becomes the "beneficial owner"
(as defined in Rule 13d-3 of the Exchange Act), directly or
indirectly, of Voting Interests in the Borrower (including through
securities convertible into or exchangeable for such Voting Interests)
representing 35% or more of the combined voting power of all of the
Voting Interests in the Borrower (on a fully diluted basis) or (ii)
otherwise has the ability, directly or indirectly, to elect a majority
of the board of directors of the Borrower; or
(b) during any period of 24 consecutive months, whether
commencing before or after the date of this Agreement, individuals who
at the beginning of such 24-month period were Continuing Directors
shall cease for any reason to constitute a majority of the board of
directors of the Borrower;
"Closing Date" means the first date on which all of the
conditions precedent to the Initial Extension of Credit set forth in
Article III are satisfied, which date shall occur on or prior to May
4, 2001.
"Collateral" means all of the "Collateral" referred to in the
Collateral Documents and all of the other property and assets that are
or are intended under the terms of the Collateral Documents to be
subject to Liens in favor of the Administrative Agent for the benefit
of the Secured Parties.
"Collateral Documents" means, collectively, the Security
Agreement, collateral assignments, Security Agreement Supplements,
security agreements, pledge agreements or other similar agreements
delivered to the Administrative Agent and the Lender Parties pursuant
to Section 3.01(a) or Section 5.01(j), and each of the other
agreements, instruments or documents that creates or purports to
create a Lien in favor of the Administrative Agent for the benefit of
the Secured Parties.
"Commitment" means a Revolving Credit Commitment, a Swing Line
Commitment or a Letter of Credit Commitment, as the context may
require.
"Commitment Fee" has the meaning specified in Section 2.08(a).
8
"Confidential Information" means information that is furnished to
the Administrative Agent or any of the Lender Parties by or on behalf
of the Borrower or any of its Subsidiaries in a writing that is marked
as confidential or otherwise on an expressly confidential basis, but
does not include any such information that (a) is or becomes generally
available to the public (other than as a result of a breach by the
Administrative Agent or such Lender Party of its confidentiality
obligations under this Agreement) or (b) is or becomes available to
the Administrative Agent or such Lender Party from a source other than
the Borrower or any of its Subsidiaries that is not, to the knowledge
of the Administrative Agent or such Lender Party, acting in violation
of a confidentiality agreement with the Borrower or any such
Subsidiary.
"Consolidated" refers to the consolidation of accounts in
accordance with GAAP.
"Consolidated Cash Taxes" means, with respect to any Person for
any period, (a) the aggregate amount of all payments in respect of
income taxes made in cash by such Person and its Subsidiaries to any
applicable Governmental Authority during such period less (b) the
aggregate amount of all cash refunds in respect of income taxes
received by such Person and its Subsidiaries from any applicable
Governmental Authority during such period, after giving effect, to the
extent available, to the application of net operating losses available
to such Person or any such Subsidiary.
"Consolidated EBITDA" means, with respect to any Person for any
period, the amount equal to (I) the sum of (a) the Consolidated Net
Income of such Person and its Subsidiaries for such period plus (b)
the sum of each of the following expenses that have been deducted in
the determination of the Consolidated Net Income of such Person and
its Subsidiaries for such period: (i) the Consolidated Interest
Expense of such Person and its Subsidiaries for such period, (ii) all
income tax expense (whether federal, state, local, foreign or
otherwise) of such Person and its Subsidiaries for such period, (iii)
all depreciation expense of such Person and its Subsidiaries for such
period, (iv) all amortization expense of such Person and its
Subsidiaries for such period and (v) all non-cash charges otherwise
deducted in determining the Consolidated Net Income of such Person and
its Subsidiaries for such period less all extraordinary gains added in
determining the Consolidated Net Income of such Person and its
Subsidiaries for such period; provided that for any period, the amount
of non-cash charges arising from the write-off of current assets shall
not be included in this subclause (v) plus (c) for each such period
ending during the twelve-month period immediately following the
closing of any acquisition permitted under Section 5.02(f), an amount
equal to the Consolidated EBITDA (calculated on the basis as provided
herein) for each such acquisition calculated on a pro forma basis as
if such acquisition had occurred on the first day of the twelve-month
period then ended, minus (d) any cash expenditures for such period
relating to the non-cash charges set forth in subclause (b)(v) hereof,
whether for such period or any prior period, plus (e) non-recurring
charges incurred during such period not exceeding in the aggregate
during the period from April 1, 2000 and continuing through the term
of this Agreement $45,000,000 resulting from the write-off of accounts
receivable and other related charges as a result of the pending third
party carrier review of claims for Medicare reimbursement submitted by
the Subsidiary of the Borrower operating the Borrower's Florida
laboratory or other Governmental Reimbursement Program Costs, minus
(II) in respect of (a) any Subsidiary sold in such period or (b) any
assets sold or disposed of in such period as to which EBITDA
attributable thereto can be determined, an amount equal to the
Consolidated EBITDA (calculated on the basis as provided herein) for
each such sale or disposition otherwise included in Consolidated
EBITDA for such period.
"Consolidated Interest Expense" means, with respect to any Person
for any period, the gross interest expense accrued on all Debt of such
Person and its Subsidiaries during such period,
9
determined on a Consolidated basis and in accordance with GAAP for
such period, including, without limitation, (a) in the case of the
Borrower, all fees paid or payable pursuant to Section 2.08(a), (b)
commissions, discounts and other fees and charges paid or payable in
connection with letters of credit (including, without limitation, the
Letters of Credit), (c) all amortization of original issue discount in
respect of all Debt of such Person and its Subsidiaries, (d) all
dividends on Redeemable Preferred Interests, to the extent paid or
payable in cash, and (e) the net payment, if any, paid or payable in
connection with Hedge Agreements less the net credit, if any, received
in connection with Hedge Agreements.
"Consolidated Net Income" means, for any period, the net income
(or net loss) of any Person and its Subsidiaries for such period,
determined on a Consolidated basis and in accordance with GAAP.
"Consolidated Pre-Minority EBITDA" means Consolidated EBITDA plus
minority interests in income of consolidated Subsidiaries of the
Borrower to the extent deducted in determining net income of the
Borrower and its Subsidiaries on a Consolidated basis in the
calculation of Consolidated EBITDA.
"Constitutive Documents" means, with respect to any Person, the
certificate of incorporation or registration (including, if
applicable, certificate of change of name), articles of incorporation
or association, memorandum of association, charter, bylaws,
certificate of limited partnership, partnership agreement, trust
agreement, joint venture agreement, certificate of formation, articles
of organization, limited liability company operating or members
agreement, joint venture agreement or one or more similar agreements,
instruments or documents constituting the organization or formation of
such Person.
"Contingent Obligation" means, with respect to any Person, any
Obligation or arrangement of such Person to guarantee or intended to
guarantee any Debt, leases, dividends or other obligations ("primary
obligations") of any other Person (the "primary obligor") in any
manner, whether directly or indirectly, including, without limitation,
(a) the direct or indirect guarantee, endorsement (other than for
collection or deposit in the ordinary course of business), co-making,
discounting with recourse or sale with recourse by such Person of the
Obligation of a primary obligor, (b) the Obligation to make take-or-
pay or similar payments, if required, regardless of nonperformance by
any other party or parties to an agreement or (c) any Obligation of
such Person, whether or not contingent, (i) to purchase any such
primary obligation or any property constituting direct or indirect
security therefor, (ii) to advance or supply funds (A) for the
purchase or payment of any such primary obligation or (B) to maintain
working capital, equity capital, net worth or other balance sheet
condition or any income statement condition of the primary obligor or
otherwise to maintain the solvency of the primary obligor, (iii) to
purchase, lease or otherwise acquire property, assets, securities or
services primarily for the purpose of assuring the owner of any such
primary obligation of the ability of the primary obligor to make
payment of such primary obligation or (iv) otherwise to assure or hold
harmless the holder of such primary obligation against loss in respect
thereof. The amount of any Contingent Obligation shall be deemed to be
an amount equal to the stated or determinable amount of the primary
obligation in respect of which such Contingent Obligation is made (or,
if less, the maximum amount of such primary obligation for which such
Person may be liable pursuant to the terms of the agreement,
instrument or other document evidencing such Contingent Obligation)
or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof (assuming such Person is required to
perform thereunder), as determined by such Person in good faith.
10
"Continuing Director" means, for any period, an individual who is
a member of the board of directors of the Borrower on the first day of
such period or who has been nominated to the board of directors of the
Borrower by a majority of the other Continuing Directors who were
members of the board of directors of the Borrower at the time of such
nomination.
"Conversion", "Convert" and "Converted" each refer to a
conversion of Advances of one Type into Advances of the other Type
pursuant to Section 2.09 or 2.10.
"Current Assets" means, with respect to any Person, all assets of
such Person that, in accordance with GAAP, would be classified as
current assets on the balance sheet of a company conducting a business
the same as or similar to that of such Person, after deducting
appropriate and adequate reserves therefrom in each case in which a
reserve is proper in accordance with GAAP.
"Current Liabilities" means, with respect to any Person, (a) all
Debt of such Person that by its terms is payable on demand or matures
within one year after the date of determination (excluding any Debt
renewable or extendible, at the option of such Person, to a date more
than one year from such date or arising under a revolving credit or
similar agreement that obligates the lender or lenders to extend
credit during a period of more than one year from such date), (b) all
amounts of Funded Debt of such Person required to be paid or prepaid
within one year after such date and (c) all other items (including,
without limitation, taxes accrued as estimated and trade payables
otherwise excluded from Debt under clause (b) of the definition
thereof) that, in accordance with GAAP, would be classified on the
balance sheet of such Person as current liabilities of such Person.
"Debt" means, with respect to any Person (without duplication)
(a) all indebtedness of such Person for borrowed money, (b) all
Obligations of such Person for the deferred purchase price of property
or services (other than unsecured trade payables incurred in the
ordinary course of such Person's business, provided that at all times
during which the aggregate amount of such payables exceed 50% of
Consolidated EBITDA for the most recent Measurement Period, "Debt"
shall include all such payables which are past due for more than 60
days (excluding payables being contested in good faith) after the date
on which such payable was first past due), (c) all Obligations of such
Person evidenced by notes, bonds, debentures or other similar
instruments, or upon which interest payments are customarily made, (d)
all Obligations of such Person created or arising under any
conditional sale or other title retention agreement with respect to
property acquired by such Person (even though the rights and remedies
of the seller or lender under such agreement in the event of default
are limited to repossession or sale of such property), (e) all
Capitalized Lease Obligations of such Person, (f) all Obligations,
contingent or otherwise, of such Person under acceptance, letter of
credit or similar facilities, (g) all Obligations of such Person to
purchase, redeem, retire, defease or otherwise make any payment in
respect of any preferred Equity Interests in such Person or any other
Person, valued, at the greater of its voluntary or involuntary
liquidation preference plus accrued and unpaid dividends, (h) all
Obligations of such Person in respect of Hedge Agreements, take-or-pay
agreements or other similar arrangements, valued, in the case of Hedge
Agreements, at the Agreement Value thereof, (i) all Obligations of
such Person under any synthetic lease, tax retention operating lease,
off-balance sheet loan or similar off-balance sheet financing if the
transaction giving rise to such Obligation is considered indebtedness
for borrowed money for tax purposes but is classified as an operating
lease in accordance with GAAP; (j) all Contingent Obligations, and (k)
all indebtedness and other payment Obligations referred to in clauses
(a) through (j) above of another Person secured by (or for which the
holder of such indebtedness or other payment Obligations has an
existing right, contingent or otherwise, to be secured by) any Lien on
property (including, without limitation,
11
accounts and contract rights) owned by such Person, even though such
Person has not assumed or become liable for the payment of such
indebtedness or other payment Obligations: provided that for the
purposes of this subclause (k) the amount thereof shall be equal to
the lesser of (i) the amount of such indebtedness or other payment
Obligations and (ii) the fair market value of the property subject to
such Lien.
"Default" means any Event of Default or any event or condition
that would constitute an Event of Default but for the requirement that
notice be given or time elapse or both.
"Defaulted Advance" means, with respect to any Lender Party at
any time, the portion of any Advance required to be made by such
Lender Party to the Borrower pursuant to Section 2.01 or 2.02 at or
prior to such time that has not been made by such Lender Party or by
the Administrative Agent for the account of such Lender Party pursuant
to Section 2.02(e) as of such time. In the event that a portion of a
Defaulted Advance shall be deemed made pursuant to Section 2.16(a),
the remaining portion of such Defaulted Advance shall be considered a
Defaulted Advance originally required to be made pursuant to Section
2.01 on the same date as the Defaulted Advance so deemed made in part.
"Defaulted Amount" means, with respect to any Lender Party at any
time, any amount required to be paid by such Lender Party to the
Administrative Agent or any other Lender Party hereunder or under any
other Loan Document at or prior to such time that has not been so paid
as of such time, including, without limitation, any amount required to
be paid by such Lender Party to (a) the Swing Line Bank pursuant to
Section 2.02(b) to purchase a portion of a Swing Line Advance made by
the Swing Line Bank, (b) the Issuing Bank pursuant to Section 2.03(b)
to purchase a portion of a Letter of Credit Advance made by the
Issuing Bank, (c) the Administrative Agent pursuant to Section 2.02(e)
to reimburse the Administrative Agent for the amount of any Advance
made by the Administrative Agent for the account of such Lender Party,
(d) any other Lender Party pursuant to Section 2.14 to purchase any
participation in Advances owing to such other Lender Party and (e) the
Administrative Agent or the Issuing Bank pursuant to Section 7.05 to
reimburse the Administrative Agent or the Issuing Bank for such Lender
Party's ratable share of any amount required to be paid by the Lender
Parties to the Administrative Agent or the Issuing Bank as provided
therein. In the event that a portion of a Defaulted Amount shall be
deemed paid pursuant to Section 2.16(b), the remaining portion of such
Defaulted Amount shall be considered a Defaulted Amount originally
required to be paid hereunder or under any other Loan Document on the
same date as the Defaulted Amount so deemed paid in part.
"Defaulting Lender" means, at any time, any Lender Party that, at
such time, (a) owes a Defaulted Advance or a Defaulted Amount or (b)
shall take any action or be the subject of any action or proceeding of
a type described in Section 6.01(f).
"Dialysis Services" means hemodialysis services and peritoneal
dialysis services, hemoperfusion, plasmapheresis, continuous
arteriovenous hemofiltration and bio-medical services related to the
foregoing.
"Documentation Agents" has the meaning specified in the recital
of parties to this Agreement.
"Domestic Person" means a Person that is organized under the laws
of, or whose property is located in, a jurisdiction within the United
States.
12
"Domestic Subsidiary" means, at any time, any of the direct or
indirect Subsidiaries of the Borrower that is incorporated or organized
under the laws of any state of the United States of America or the
District of Columbia.
"Eligible Assignee" means (a) with respect to any Facility
(other than the Letter of Credit Facility), (i) a Lender; (ii) an
Affiliate of a Lender or an Approved Fund of a Lender; (iii) a
commercial bank organized under the laws of the United States, or any
State thereof having a combined capital and surplus of at least
$100,000,000; (iv) a savings and loan association or savings bank
organized under the laws of the United States, or any State thereof
having a combined capital and surplus of at least $100,000,000; (v) a
commercial bank organized under the laws of any other country which is
a member of the OECD, or a political subdivision of any such country,
and having a combined capital and surplus of at least $100,000,000,
provided that such bank is acting through a branch, agency or Affiliate
located in the United States or managed and controlled by a branch,
agency or affiliate located in the United States; (vi) the central bank
of any country that is a member of the OECD; (vii) a finance company,
insurance company or other financial institution, fund (whether a
corporation, partnership, trust or other entity) or other entity that
is engaged in making, purchasing or otherwise investing in commercial
loans in the ordinary course of its business and having total assets
(inclusive of assets of Affiliates or Approved Funds thereof) of at
least $100,000,000; and (viii) any other Person approved by the
Administrative Agent and, provided no Event of Default is continuing,
the Borrower, provided that the approval of the Administrative Agent
and the Borrower, when required, shall not be unreasonably withheld or
delayed, and (b) with respect to the Letter of Credit Facility, a
Person that is an Eligible Assignee under subclause (iii) or (v) of
clause (a) of this definition and is approved by the Administrative
Agent (such approval not to be unreasonably withheld or delayed);
provided, however, that neither any Loan Party nor any Affiliate of a
Loan Party shall qualify as an Eligible Assignee under this definition.
"Environmental Action" means any outstanding action, suit,
demand, demand letter, claim, notice of noncompliance or violation,
notice of liability or potential liability, investigation, proceeding,
consent order or consent agreement, abatement order or other order or
directive (conditional or otherwise) relating in any way to any
Environmental Law, any Environmental Permit or any Hazardous Materials
or arising from alleged injury or threat to health, safety, natural
resources or the environment, including, without limitation, (a) by any
Governmental Authority for enforcement, cleanup, removal, response,
remedial or other actions or damages and (b) by any applicable
Governmental Authority or any other third party for damages,
contribution, indemnification, cost recovery, compensation or
injunctive relief.
"Environmental Law" means any Requirement of Law relating to
(a) the generation, use, handling, transportation, treatment, storage,
disposal, release or discharge of Hazardous Materials, (b) pollution or
the protection of the environment, health, safety or natural resources
or (c) occupational safety and health, industrial hygiene, land use or
the protection of human, plant or animal health or welfare, including,
without limitation, CERCLA, in each case as amended from time to time,
and including the regulations promulgated and the rulings issued from
time to time thereunder.
"Environmental Permit" means any permit, approval,
identification number, license or other authorization required under
any Environmental Law.
"Equipment" has the meaning specified in Section 1(a) of the
Security Agreement.
13
"Equity Interests" means, with respect to any Person, all of
the shares of capital stock of (or other ownership or profit interests
in) such Person, all of the warrants, options or other rights for the
purchase or other acquisition from such Person of shares of capital
stock of (or other ownership or profit interests in) such Person, all
of the securities convertible into or exchangeable for shares of
capital stock of (or other ownership or profit interests in) such
Person or warrants, rights or options for the purchase or other
acquisition from such Person of such shares (or such other interests),
and all of the other ownership or profit interests in such Person
(including, without limitation, partnership, member or trust interests
therein), whether voting or nonvoting, and whether or not such shares,
warrants, options, rights or other interests are authorized or
otherwise existing on any date of determination.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and
the rulings issued from time to time thereunder.
"ERISA Affiliate" means any Person that for purposes of Title
IV of ERISA is a member of the controlled group of any Loan Party, or
under common control with any Loan Party, within the meaning of Section
414 of the Internal Revenue Code.
"ERISA Event" means (a)(i) the occurrence of a reportable
event, within the meaning of Section 4043 of ERISA, with respect to any
Plan unless the 30-day notice requirement with respect to such event
has been waived by the PBGC or (ii) the requirements of Section 4043(b)
of ERISA are met with respect to a contributing sponsor, as defined in
Section 4001(a)(13) of ERISA, of a Plan, and an event described in
paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA
could reasonably be expected to occur with respect to such Plan within
the following 30 days; (b) the application for a minimum funding waiver
with respect to a Plan; (c) the provision by the administrator of any
Plan of a notice of intent to terminate such Plan pursuant to Section
4041(a)(2) of ERISA (including any such notice with respect to a plan
amendment referred to in Section 4041(e) of ERISA); (d) the cessation
of operations at a facility of any Loan Party or any ERISA Affiliate in
the circumstances described in Section 4062(e) of ERISA; (e) the
partial or complete withdrawal by any Loan Party or any ERISA Affiliate
from a Plan or a Multiple Employer Plan; (f) the conditions for
imposition of a lien under Section 302(f) of ERISA shall have been met
with respect to any Plan; (g) the adoption of an amendment to a Plan
requiring the provision of security to such Plan pursuant to Section
307 of ERISA; or (h) the institution by the PBGC of proceedings to
terminate a Plan pursuant to Section 4042 of ERISA, or the occurrence
of any event or condition described in Section 4042 of ERISA, that
constitutes grounds for the termination of, or the appointment of a
trustee to administer, a Plan.
"ESRD-Related Business" means the business of providing
Dialysis Services and/or Ancillary Services.
"Eurocurrency Liabilities" has the meaning specified in
Regulation D of the Board of Governors of the Federal Reserve System,
as in effect from time to time.
"Eurodollar Lending Office" means, with respect to each of the
Lenders, the office of such Lender specified as its "Eurodollar Lending
Office" opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender, as the case may be
(or, if no such office is specified, its Base Rate Lending Office), or
such other office of such Lender as such Lender may from time to time
specify to the Borrower and the Administrative Agent for such purpose.
14
"Eurodollar Rate" means, for any Interest Period for all
Eurodollar Rate Advances comprising part of the same Borrowing, an
interest rate per annum equal to the rate per annum obtained by
dividing (a) the rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) at which deposits in U.S. dollars appear on page
3750 (or any successor page thereto) of the Dow Jones Telerate Screen
two Business Days before the first day of such Interest Period and for
a term comparable to such Interest Period or, if such rate does not so
appear on the Dow Jones Telerate Screen on any date of determination,
on the Reuters Screen LIBO Page two Business Days before the first day
of such Interest Period and for a term comparable to such Interest
Period by (b) a percentage equal to 100% minus the Eurodollar Rate
Reserve Percentage for such Interest Period; provided, however, that if
the Reuters Screen LIBO Page is being used to determine the Eurodollar
Rate at any date of determination and more than one rate is specified
thereon as the London interbank offered rate for deposits in U.S.
dollars, the applicable rate shall be the average of all such rates
(rounded upward, if necessary, to the nearest whole multiple of 1/100
of 1% per annum).
"Eurodollar Rate Advance" means an Advance that bears interest
as provided in Section 2.07(a)(ii).
"Eurodollar Rate Reserve Percentage" for any Interest Period
for all Eurodollar Rate Advances comprising part of the same Borrowing
means the reserve percentage applicable two Business Days before the
first day of such Interest Period under regulations issued from time to
time by the Board of Governors of the Federal Reserve System (or any
successor thereto) for determining the maximum reserve requirement
(including, without limitation, any emergency, supplemental or other
marginal reserve requirement) for a member bank of the Federal Reserve
System in New York, New York, with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities (or with respect to
any other category of liabilities that includes deposits by reference
to which the interest rate on Eurodollar Rate Advances is determined)
having a term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, and the regulations promulgated and the
rulings issued thereunder.
"Existing Credit Agreement" means (a) the Second Amended and
Restated Revolving Credit Agreement, dated as of July 14, 2000, as
amended, between Total Renal Care Holdings, Inc., the lender parties
thereto, DLJ Capital Funding, Inc., as Syndication Agent, First Union
National Bank, as Documentation Agent, and The Bank of New York, as the
Administrative Agent and (b) the Second Amended and Restated Term Loan
Agreement, dated as of July 14, 2000, as amended, between Total Renal
Care Holdings, Inc., the lender parties thereto, DLJ Capital Funding,
Inc., as Syndication Agent, and The Bank of New York, as the
Administrative Agent.
"Existing Letters of Credit" means all letters of credit
issued under the Existing Credit Agreement and outstanding on the
Closing Date, as more fully described on Schedule II hereto.
"Facility" means the Term A Facility, the Term B Facility, the
Revolving Credit Facility, the Swing Line Facility or the Letter of
Credit Facility, as the context may require.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight federal funds
15
transactions with members of the Federal Reserve System arranged by
federal funds brokers, as published for such day (or, if such day is
not a Business Day, for the immediately preceding Business Day) by the
Federal Reserve Bank of New York or, if such rate is not so published
for any day that is a Business Day, the average rate charged to the
Administrative Agent (in its individual capacity) on such day on such
transactions as determined by the Administrative Agent.
"Fiscal Quarter" means, with respect to the Borrower or any of
its Subsidiaries, the period commencing January 1 in any Fiscal Year
and ending on the next succeeding March 31, the period commencing April
1 in any Fiscal Year and ending on the next succeeding June 30, the
period commencing July 1 in any Fiscal Year and ending on the next
succeeding September 30 or the period commencing October 1 in any
Fiscal Year and ending on the next succeeding December 31, as the
context may require, or, if any such Subsidiary was not in existence on
the first day of any such period, the period commencing on the date on
which such Subsidiary is incorporated, organized, formed or otherwise
created and ending on the last day of such period.
"Fiscal Year" means, with respect to the Borrower or any of
its Subsidiaries, the period commencing on January 1 in any calendar
year and ending on the next succeeding December 31 or, if any such
Subsidiary was not in existence on January 1 in any calendar year, the
period commencing on the date on which such Subsidiary is incorporated,
organized, formed or otherwise created and ending on the next
succeeding December 31.
"Fixed Charge Coverage Ratio" means, for any period, the ratio
of (a) the amount equal to (i) the sum of (A) Consolidated Pre-Minority
EBITDA and (B) Lease Expense less (ii) Capital Expenditures, in each
case for the Borrower and its Subsidiaries for such period, to (b) the
sum of (i) Consolidated Interest Expense, (ii) the aggregate principal
amount (or the equivalent thereto) of all Required Principal Payments,
(iii) the aggregate amount of all Consolidated Cash Taxes, and (iv)
Lease Expense, in each case for the Borrower and its Subsidiaries for
such period.
"Foreign Subsidiary" means, at any time, any direct or
indirect Subsidiary of the Borrower that is not a Domestic Subsidiary.
"Funded Debt" of any Person means all Debt of such Person that
by its terms matures more than one year after the date of determination
or matures within one year from such date but is renewable or
extendible, at the option of such Person, to a date more than one year
after such date or arises under a revolving credit or similar agreement
that obligates the lender or lenders to extend credit during a period
of more than one year after such date, in each case determined on a
Consolidated basis in accordance with GAAP, including, without
limitation, (i) the aggregate amount of Governmental Reimbursement
Program Costs (exclusive of, with respect to the determination of
Funded Debt in any period, the portion of Governmental Reimbursement
Program Costs paid in such period) and (ii) in the case of the
Borrower, the Advances; provided, however, that the term "Funded Debt"
shall not include (x) any Contingent Obligations of such Person (if and
to the extent such Contingent Obligations would otherwise be included
in such term on any date of determination) that are incurred solely to
support Debt or Governmental Reimbursement Program Costs of the
Borrower or one or more Subsidiaries of the Borrower to the extent such
Contingent Obligations are otherwise expressly permitted to be incurred
under Section 5.02(b), and (y) all Obligations of such Person to
purchase, redeem, retire, defease or otherwise make any payment in
respect of any Redeemable Preferred Interests.
"GAAP" has the meaning specified in Section 1.03.
16
"Governmental Authority" means any nation or government, any
state, province, city, municipal entity or other political subdivision
thereof, and any governmental, executive, legislative, judicial,
administrative or regulatory agency, department, authority,
instrumentality, commission, board or similar body, whether federal,
state, provincial, territorial, local or foreign.
"Governmental Authorization" means any authorization,
approval, consent, franchise, license, covenant, order, ruling, permit,
certification, exemption, notice, declaration or similar right,
undertaking or other action of, to or by, or any filing, qualification
or registration with, any Governmental Authority.
"Governmental Reimbursement Program Costs" means with respect
to and payable by the Borrower and its Subsidiaries the sum of:
(i) all amounts (including punitive and other similar
amounts) agreed to be paid in settlement or payable as a
result of a final, non-appealable judgment, award or similar
order relating to participation in Medical Reimbursement
Programs;
(ii) all final, non-appealable fines, penalties,
forfeitures or other amounts rendered pursuant to criminal
indictments or other criminal proceedings relating to
participation in Medical Reimbursement Programs; and
(iii) the amount of final, non-appealable recovery,
damages, awards, penalties, forfeitures or similar amounts
rendered in any litigation, suit, arbitration, investigation
or other legal or administrative proceeding of any kind
relating to participation in Medical Reimbursement Programs.
"Guarantee Supplement" has the meaning specified in the
Subsidiary Guaranty.
"Guaranteed Obligations" has the meaning specified in the
Subsidiary Guaranty.
"Guarantor" means each Subsidiary of the Borrower party to the
Subsidiary Guarantee or, as the case may be, a Guarantee Supplement.
"Hazardous Materials" means (a) petroleum or petroleum
products, by-products or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls and radon gas
and (b) any other chemicals, materials or substances designated,
classified or regulated as hazardous or toxic or as a pollutant or
contaminant under any Environmental Law.
"Hedge Agreements" means, collectively, interest rate swap,
cap or collar agreements, interest rate future or option contracts,
commodity future or option contracts, currency swap agreements,
currency future or option contracts, equity swap agreements and other
similar agreements.
"Hedge Bank" means any Person that is a Lender Party or an
Affiliate of a Lender Party, in its capacity as a party to a Hedge
Agreement.
"Indemnified Party" has the meaning specified in Section
8.04(b).
"Information Memorandum" means the information memorandum
dated March 2001 used by the Book Managers in connection with the
syndication of the Commitments.
17
"Initial Extension of Credit" means, collectively, the initial
Borrowings under one or more of the Facilities, and/or the initial
issuances of one or more Letters of Credit, made on the Closing Date.
"Initial Issuing Bank" has the meaning specified in the
recital of parties to this Agreement.
"Initial Lenders" has the meaning specified in the recital of
parties to this Agreement.
"Insufficiency" means, with respect to any Plan, the amount,
if any, of its unfunded benefit liabilities, as defined in Section
4001(a)(18) of ERISA.
"Interest Period" means, for each Eurodollar Rate Advance
comprising part of the same Borrowing, the period commencing on the
date of such Eurodollar Rate Advance or the date of the Conversion of
any Base Rate Advance into such Eurodollar Rate Advance, and ending on
the last day of the period selected by the Borrower pursuant to the
provisions below and, thereafter, each subsequent period commencing on
the last day of the immediately preceding Interest Period and ending on
the last day of the period selected by the Borrower pursuant to the
provisions below. The duration of each such Interest Period shall be
one, two, three or six months, as the Borrower may, upon notice
received by the Administrative Agent not later than 2:00 P.M.
(Charlotte, North Carolina time) on the third Business Day prior to the
first day of such Interest Period, select; provided, however, that:
(a) the Borrower may not select any Interest Period
with respect to any Eurodollar Rate Advance under a Facility
that ends after any principal repayment installment date for
such Facility unless, after giving effect to such selection,
the aggregate principal amount of Base Rate Advances and of
Eurodollar Rate Advances having Interest Periods that end on
or prior to such principal repayment installment date for such
Facility shall be at least equal to the aggregate principal
amount of Advances under such Facility due and payable on or
prior to such date;
(b) Interest Periods commencing on the same date for
Eurodollar Rate Advances comprising part of the same Borrowing
shall be of the same duration;
(c) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last
day of such Interest Period shall be extended to occur on the
next succeeding Business Day; provided, however, that, if such
extension would cause the last day of such Interest Period to
occur in the next following calendar month, the last day of
such Interest Period shall occur on the immediately preceding
Business Day; and
(d) whenever the first day of any Interest Period
occurs on a day of an initial calendar month for which there
is no numerically corresponding day in the calendar month that
succeeds such initial calendar month by the number of months
equal to the number of months in such Interest Period, such
Interest Period shall end on the last Business Day of such
succeeding calendar month.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended from time to time, and the regulations promulgated and
the rulings issued thereunder.
18
"Investment" means, with respect to any Person, any loan or
advance to such Person, any purchase or other acquisition of Equity
Interests in or Debt of, or the property and assets comprising a
division or business unit or all or a substantial part of the business
of, such Person, any capital contribution to such Person or any other
investment in such Person, including, without limitation, any
acquisition by way of a merger or consolidation (or similar
transaction) and any arrangement pursuant to which the investor incurs
Debt of the types referred to in clause (j) or (k) of the definition
of "Debt" set forth in this Section 1.01 in respect of such Person.
"ISDA Master Agreement" means the Master Agreement
(Multicurrency-Cross Border) published by the International Swap and
Derivatives Association, Inc., as in effect from time to time.
"Issuing Bank" means the Initial Issuing Bank and each other
Person to which the Letter of Credit Commitment hereunder has been
assigned pursuant to Section 8.07, in each case for so long as the
Initial Issuing Bank or such other Person, as the case may be, shall
be a party to this Agreement in such capacity, and solely with respect
to the Existing Letters of Credit, means The Bank of New York.
"L/C Cash Collateral Account" has the meaning specified in the
Preliminary Statements to the Security Agreement.
"L/C Related Documents" has the meaning specified in Section
2.03(b)(ii).
Lease Expense" means, with respect to any Person, for any period
for such Person and its subsidiaries on a Consolidated basis, lease
and rental expense accrued during such period under all leases and
rental agreements, other than Capitalized Leases and leases of
personal property, of renal treatment centers, determined in
conformity with GAAP.
"Lender Party" means any Lender, the Issuing Bank or the Swing
Line Bank.
"Lenders" means, collectively, the Initial Lenders and each
Person that becomes a Lender pursuant to Section 8.07 for so long as
such Initial Lender or Person, as the case may be, shall be a party to
this Agreement.
"Letter of Credit" has the meaning specified in Section 2.01(e).
"Letter of Credit Advance" means an advance made by the Issuing
Bank or any Revolving Credit Lender pursuant to Section 2.03(b).
"Letter of Credit Agreement" has the meaning specified in
Section 2.03(a).
"Letter of Credit Commitment" means, with respect to the Issuing
Bank at any time, the amount set forth opposite the Issuing Bank's
name on Part B of Schedule I hereto under the caption "Letter of
Credit Commitment" or, if the Issuing Bank has entered into one or
more Assignment and Acceptances, the amount set forth for the Issuing
Bank in the Register maintained by the Administrative Agent pursuant
to Section 8.07(d) as the Issuing Bank's "Letter of Credit
Commitment", as such amount may be reduced at or prior to such time
pursuant to Section 2.05.
19
"Letter of Credit Facility" means, at any time, an amount equal
to the lesser of (a) the amount of the Issuing Bank's Letter of Credit
Commitment at such time and (b) $50,000,000, as such amount may be
reduced at or prior to such time pursuant to Section 2.05.
"Leverage Ratio" means, at any date of determination, the ratio
of (a) (i) all Funded Debt of the Borrower and its Subsidiaries plus
(ii) to the extent not otherwise included in subclause (a)(i) of this
definition, the face amount of all Letters of Credit issued for the
account of the Borrower or any of its Subsidiaries minus (iii) cash
and cash equivalents of the Borrower and its Subsidiaries on a
Consolidated basis to (b) Consolidated Pre-Minority EBITDA of the
Borrower and its Subsidiaries for the most recently completed
Measurement Period prior to such date.
"Lien" means, with respect to any Person, (a) any mortgage, lien
(statutory or other), pledge, hypothecation, security interest, charge
or encumbrance of any kind (including, without limitation, any
agreement to give any of the foregoing), (b) any sale of accounts
receivable or chattel paper, or any assignment, deposit arrangement or
lease intended as, or having the effect of, security, (c) any
easement, right of way or other encumbrance on title to real property
or (d) any other interest or title of any vendor, lessor, lender or
other secured party to or of such Person under any conditional sale or
other title retention agreement or any Capitalized Lease or upon or
with respect to any property or asset of such Person (including, in
the case of Equity Interests, voting trust agreements and other
similar arrangements).
"Loan Documents" means, collectively, this Agreement, the Notes,
the Subsidiary Guaranty, the Collateral Documents, each Letter of
Credit Agreement and each Incremental Facility Agreement pursuant to
Section 2.05(d)(ii), in each case as amended, supplemented or
otherwise modified hereafter from time to time in accordance with the
terms thereof and Section 8.01.
"Loan Parties" means, collectively, the Borrower and each of the
Subsidiaries of the Borrower party to the Subsidiary Guaranty or any
of the Collateral Documents.
"Margin Stock" means `margin stock' as defined in Regulation U of
the Board of Governors of the Federal Reserve System, as the same may
be amended or supplemented from time to time.
"Material Adverse Change" means any material adverse change in
the business, condition (financial or otherwise), operations,
performance, properties or prospects of the Borrower and its
Subsidiaries, taken as a whole; provided that the occurrence or
subsistence of any such material adverse change which has been
disclosed by the Borrower in any filing made with the Securities and
Exchange Commission prior to the date of this Agreement shall not
constitute a Material Adverse Change.
"Material Adverse Effect" means a material adverse effect on (a)
the business, condition (financial or otherwise), operations,
performance, properties or prospects of the Borrower and its
Subsidiaries taken as a whole, (b) the rights and remedies of the
Administrative Agent or any Lender Party under any Loan Document or
any Related Document or (c) the ability of any Loan Party to perform
its Obligations under any Loan Document to which it is or is to be a
party; provided that the occurrence or subsistence of any such
material adverse effect which has been disclosed by the Borrower in
any filing made with the Securities and Exchange Commission prior to
the date of this Agreement shall not constitute a Material Adverse
Effect.
20
"Material Subsidiaries" means, as of any date, any Subsidiary or
Subsidiaries of the Borrower that either individually or taken as a
whole accounted for more than 5% of Consolidated Net Income of the
Borrower and its Subsidiaries for the most recently completed Fiscal
Quarter on or prior to such date, in each case as reflected in the
Required Financial Information most recently delivered to the
Administrative Agent and the Lender Parties on or prior to such date
and determined in accordance with GAAP for such period.
"Measurement Period" means, at any date of determination, the
most recently completed four consecutive Fiscal Quarters ended prior
to such date for which financial information is available.
"Medicaid" means that means-tested entitlement program under
Title XIX of the Social Security Act that provides federal grants to
states for medical assistance based on specific eligibility criteria.
(Social Security Act of 1965, Title XIX, P.L. 89-87, as amended; 42
U.S.C. 1396 et seq.).
"Medical Reimbursement Programs" means the Medicare, Medicaid and
CHAMPUS programs and any other health care program operated by or
financed in whole or in part by any federal, state or local
government.
"Medicare" means that government-sponsored entitlement program
under Title XVIII of the Social Security Act that provides for a
health insurance system for eligible elderly and disabled individuals.
(Social Security Act of 1965, Title XVIII, P.L. 89-87 as amended; 42
U.S.C. 1395 et seq.).
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan (as defined in
Section 4001(a)(3) of ERISA) to which any Loan Party or any ERISA
Affiliate is making or accruing an obligation to make contributions,
or has within any of the preceding five plan years made or accrued an
obligation to make contributions.
"Multiple Employer Plan" means a single employer plan (as defined
in Section 4001(a)(15) of ERISA) that (a) is maintained for employees
of any Loan Party or any ERISA Affiliate and at least one Person other
than the Loan Parties and the ERISA Affiliates or (b) was so
maintained and in respect of which any Loan Party or any ERISA
Affiliate could reasonably be expected to have liability under Section
4064 or 4069 of ERISA in the event such plan has been or were to be
terminated.
"Net Cash Proceeds" means, with respect to any sale, lease,
transfer or other disposition of any property or asset, or the
incurrence or issuance of any Debt, or the sale or issuance of any
Equity Interests (including, without limitation, any capital
contribution) in any Person, the aggregate amount of cash received
from time to time (whether as initial consideration or through payment
or disposition of deferred consideration) by or on behalf of such
Person for its own account in connection with any such transaction,
after deducting therefrom only (without duplication):
(a) out-of-pocket expenses, including brokerage
commissions, underwriting fees and discounts, legal fees,
finder's fees and other similar fees and commissions;
21
(b) the amount of taxes payable in connection with or as a
result of such transaction, and if not paid at the time of the
respective transaction, the amount thereof reserved in accordance
with GAAP as in effect on the date of determination;
(c) in the case of any sale, lease, transfer or other
disposition of any property or asset, the outstanding principal
amount of, the premium or penalty, if any, on, and any accrued
and unpaid interest on, any Debt (other than the Debt outstanding
under the Loan Documents) that is secured by a Lien on the
property and assets subject to such sale, lease, transfer or
other disposition and is required to be repaid under the terms
thereof as a result of such sale, lease, transfer or other
disposition;
(d) in the case of any sale, lease, transfer or other
disposition of any property or asset, an amount reserved, in
accordance with GAAP as in effect on the date on which the Net
Cash Proceeds from such sale, lease, transfer or other
disposition are determined, and so reserved, against liabilities
under indemnification obligations, liabilities related to
environmental matters or other liabilities associated with the
property and assets subject to such sale, lease, transfer or
other disposition that are required to be so provided for under
the terms of the documentation for such sale, lease, transfer or
other disposition; and
(e) in the case of any sale, lease, transfer or other
disposition of any property or asset by a Subsidiary, the amount
of any payments or distributions required to be made in respect
of such transaction to owners of Equity Interests in such
Subsidiary other than the Borrower or any other Subsidiary;
provided, however, in the case of clauses (b) and (d) of this
definition, that if, at the time such taxes or such contingent
liabilities are actually paid or otherwise satisfied, the amount of
the reserve therefor exceeds the amount paid or otherwise satisfied,
then the Borrower shall prepay the outstanding Advances in accordance
with the terms of Section 2.06(b), in an amount equal to the amount of
such excess reserve.
"Note" means a Term A Note, a Term B Note or a Revolving Credit
Note, as the context may require.
"Notice of Borrowing" has the meaning specified in Section
2.02(a).
"Notice of Conversion" has the meaning specified in Section
2.09(a).
"Notice of Issuance" has the meaning specified in Section
2.03(a).
"Notice of Renewal" has the meaning specified in Section
2.01(e).
"Notice of Swing Line Borrowing" has the meaning specified in
Section 2.02(b).
"Notice of Termination" has the meaning specified in Section
2.01(e).
"NPL" means the National Priorities List under CERCLA.
"Obligation" means, with respect to any Person, any payment,
performance or other obligation of such Person of any kind, including,
without limitation, any liability of such Person on any claim, whether
or not the right of any creditor to payment in respect of such claim
is
22
reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, disputed, undisputed, legal, equitable, secured or unsecured,
and whether or not such claim is discharged, stayed or otherwise
affected by any proceeding referred to in Section 6.01(f). Without
limiting the generality of the foregoing, the Obligations of the Loan
Parties under the Loan Documents include (a) the obligation to pay
principal, interest, Letter of Credit commissions, charges, expenses,
fees, attorneys' fees and disbursements, indemnity payments and other
amounts payable by any Loan Party under any Loan Document and (b) the
obligation of any Loan Party to reimburse any amount in respect of any
of the foregoing items that any Lender Party, in its sole discretion,
may elect to pay or advance on behalf of such Loan Party.
"OECD" means the Organization for Economic Cooperation and
Development.
"Open Year" means, with respect to any Person, any year for
which United States federal income tax returns have been filed by or
on behalf of such Person and for which the expiration of the
applicable statute of limitations for assessment or collection has not
occurred (whether by reason of extension or otherwise).
"Other Taxes" has the meaning specified in Section 2.13(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any
successor thereto.
"Performance Level" means Performance Level I, Performance
Level II, Performance Level III, Performance Level IV or Performance
Level V, as identified in the definition of "Applicable Margin" and
Applicable Percentage", as the context may require.
"Permitted Liens" means the following types of Liens (excluding
any such Lien imposed pursuant to Section 401(a)(29) or 412(n) of the
Internal Revenue Code or by ERISA or any such Lien relating to or
imposed in connection with any Environmental Action): (a) Liens for
taxes, assessments and governmental charges or levies to the extent
not otherwise required to be paid under Section 5.01(b); (b) Liens
imposed by law, such as materialmen's, mechanics', carriers',
landlords', workmen's and repairmen's Liens and other similar Liens
arising in the ordinary course of business securing obligations (other
than Debt for borrowed money) (i) that are not overdue for a period of
more than 60 days or (ii) the amount, applicability or validity of
which are being contested in good faith and by appropriate proceedings
diligently conducted and with respect to which the Borrower or any of
its Subsidiaries, as the case may be, has established reserves in
accordance with GAAP; (c) pledges or deposits to secure obligations
incurred in the ordinary course of business under workers'
compensation laws, unemployment insurance or similar social security
legislation (other than in respect of employee benefit plans subject
to ERISA) or to secure public or statutory obligations; (d) Liens,
pledges and deposits securing the performance of, or payment in
respect of, bids, tenders, leases, contracts (other than for the
repayment of borrowed money), surety and appeal bonds, letters of
credit, and other obligations of a similar nature incurred in the
ordinary course of business; (e) any interest or title of a lessor or
sublessor and any restriction or encumbrance to which the interest or
title of such lessor or sublessor may be subject that is incurred in
the ordinary course of business and, either individually or when
aggregated with all other Permitted Liens in effect on any date of
determination, could not be reasonably expected to have a Material
Adverse Effect; (f) Liens in favor of customs and revenue authorities
arising as a matter of law or pursuant to a bond to secure payment of
customs duties in connection with the importation of goods; (g) Liens
arising out of judgments or awards that do not constitute an Event of
Default under Section 6.01(g) or 6.01(h) and in respect of which the
Borrower or any of its Subsidiaries subject thereto shall be
prosecuting an appeal or proceedings for review in good faith and,
pending such appeal or
23
proceedings, shall have secured within 30 days after the entry thereof
a subsisting stay of execution and shall be maintaining reserves, in
accordance with GAAP, with respect to any such judgment or award; (h)
unperfected Liens of suppliers and vendors to secure the purchase
price of the property or assets sold; (i) protective Uniform
Commercial Code filings by lessors under operating leases; and (j) any
easements, rights of way, restrictions, defects, encroachments and
other encumbrances on title to real property which either individually
or when aggregated with all other permitted Liens, would not be
reasonably expected to have a Material Adverse Effect.
"Person" means an individual, partnership, corporation (including
a business trust), limited liability company, unlimited liability
company, joint stock company, trust, unincorporated association, joint
venture or other entity, or a government or any political subdivision
or agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Pledged Debt" has the meaning specified in Section 1 of the
Security Agreement.
"Pledged Shares" has the meaning specified in Section 1 of the
Security Agreement.
"primary obligation" has the meaning specified in the definition
of "Contingent Obligation" set forth in this Section 1.01.
"primary obligor" has the meaning specified in the definition of
"Contingent Obligation" set forth in this Section 1.01.
"Pro Rata Share" of any amount means, with respect to any of the
Lenders at any time, the product of (a) a fraction the numerator of
which is the amount of such Lender's Commitment(s) under the
applicable Facility or Facilities at such time (or, if the Commitments
shall have been terminated pursuant to Section 2.05 or 6.01 at or
prior to such time, such Lender's Commitment(s) under the applicable
Facility or Facilities as in effect immediately prior to such
termination) and the denominator of which is the aggregate amount of
such Facility or Facilities at such time (or, if the Commitments shall
have been terminated pursuant to Section 2.05 or 6.01 at or prior to
such time, the applicable Facility or Facilities as in effect
immediately prior to such termination) multiplied by (b) such amount.
"Qualified Issuer" means (a) any Lender hereunder and (b) any
commercial bank that has a combined capital and surplus in excess of
$100,000,000.
"Reedemable Preferred Interest" means with respect to any Person,
(a) any Equity Interest of such Person that, by its terms or by the
terms of any security into which it is convertible, exercisable or
exchangeable, is, or upon the happening of an event or the passage of
time or both would be, required to be redeemed or repurchased
(including at the option of the holder thereof) by such Person or any
of its Subsidiaries, in whole or in part, not earlier than July 1,
2007, and (b) any Equity Interest of any Subsidiary of such Person
other than any common equity with no preferences, privileges, and no
redemption or repayment provisions; provided, however, that any Equity
Interest that would constitute a Redeemable Preferred Interest solely
because the holders thereof have the right to require the issuer to
repurchase such a Redeemable Preferred Interest upon the occurrence of
a change of control shall not be so treated if the terms thereof (a)
do not trigger any rights upon any circumstance constituting a change
of control under such Redeemable Preferred Interest that would not
constitute a Change of Control under this Agreement and (b) do not
permit either any repurchase by such Person or any rights of
24
the holder of such Equity Interest to assert any claim in respect of
such failure to purchase as long as any Event of Default exists
hereunder.
"Reduction Amount" has the meaning specified in Section
2.06(b)(iv).
"Register" has the meaning specified in Section 8.07(d).
"Regulation U" means Regulation U of the Board of Governors of
the Federal Reserve System, as in effect from time to time.
"Required Financial Information" means, at any date of
determination, the Consolidated financial statements of the Borrower
and its Subsidiaries most recently delivered to the Administrative
Agent and the Lender Parties on or prior to such date pursuant to, and
satisfying all of the requirements of, Section 5.03(b) or 5.03(c) and
accompanied by the certificates and other information required to be
delivered therewith.
"Required Lenders" means, at any time, Lenders owed or holding at
least a majority in interest of the sum of (a) the aggregate principal
amount of the Advances outstanding at such time, (b) the aggregate
Available Amount of all Letters of Credit outstanding at such time,
and (c) the aggregate Unused Revolving Credit Commitments at such
time; provided, however, that if any Lender shall be a Defaulting
Lender at such time, there shall be excluded from the determination of
Required Lenders at such time (A) the aggregate principal amount of
the Advances owing to such Lender (in its capacity as a Lender) and
outstanding at such time, (B) such Lender's Pro Rata Share of the
aggregate Available Amount of all Letters of Credit issued by such
Lender and outstanding at such time, and (C) the Unused Revolving
Credit Commitment of such Lender at such time. For purposes of this
definition, the aggregate principal amount of Swing Line Advances
owing to the Swing Line Bank and of Letter of Credit Advances owing to
the Issuing Bank and the Available Amount of each Letter of Credit
shall be considered to be owed to the Revolving Credit Lenders ratably
in accordance with their respective Revolving Credit Commitments.
"Required Principal Payments" means, with respect to any Person
for any period, the sum of all regularly scheduled principal payments
or redemptions and all required prepayments, repurchases, redemptions
or similar acquisitions for value of outstanding Funded Debt made
during such period.
"Requirements of Law" means, with respect to any Person, all
laws, constitutions, statutes, treaties, ordinances, rules and
regulations, all orders, writs, decrees, injunctions, judgments,
determinations and awards of an arbitrator, a court or any other
Governmental Authority, and all Governmental Authorizations, binding
upon or applicable to such Person or to any of its properties, assets
or businesses.
"Responsible Officer" means, with respect to the Borrower or any
of its Subsidiaries, the chief executive officer, the president, the
chief financial officer, the principal accounting officer or the
treasurer (or the equivalent of any of the foregoing) or any other
officer, partner or member (or person performing similar functions) of
the Borrower or any such Subsidiary responsible for overseeing the
administration of, or reviewing compliance with, all or any portion of
this Agreement or any of the other Loan Documents.
"Revolving Credit Advance" has the meaning specified in Section
2.01(c).
25
"Revolving Credit Borrowing" means a borrowing consisting of
simultaneous Revolving Credit Advances of the same Type made by the
Revolving Credit Lenders.
"Revolving Credit Commitment" means, with respect to any
Revolving Credit Lender at any time, the amount set forth opposite
such Revolving Credit Lender's name on Part B of Schedule I hereto
under the caption "Revolving Credit Commitment" or, if such Revolving
Credit Lender has entered into one or more Assignment and Acceptances,
the amount set forth for such Revolving Credit Lender in the Register
maintained by the Administrative Agent pursuant to Section 8.07(d) as
such Revolving Credit Lender's "Revolving Credit Commitment", as such
amount may be reduced at or prior to such time pursuant to Section
2.05.
"Revolving Credit Facility" means, at any time, the aggregate
amount of the Revolving Credit Lenders' Revolving Credit Commitments
at such time.
"Revolving Credit Lender" means, at any time, any Lender that has
a Revolving Credit Commitment at such time.
"Revolving Credit Note" means a promissory note of the Borrower
payable to the order of any Revolving Credit Lender, in substantially
the form of Exhibit A-3 hereto, evidencing the aggregate indebtedness
of the Borrower to such Revolving Credit Lender resulting from the
Revolving Credit Advances made by such Revolving Credit Lender.
"S&P" means Standard & Poor's, a division of The McGraw-Hill
Companies, Inc.
"Secured Obligations" has the meaning specified in Section 2 of
the Security Agreement.
"Secured Parties" means, collectively, the Agents, the Lender
Parties, and the other Persons the Obligations owing to which are or
are purported to be secured by the Collateral under the terms of the
Collateral Documents.
"Securities Act" means the Securities Act of 1933, as amended,
and the regulations promulgated and the rulings issued thereunder.
"Security Agreement" has the meaning specified in Section
3.01(a)(ii).
"Security Agreement Supplement" has the meaning specified in
Section 24 of the Security Agreement.
"Share Repurchase Ratio" means, at any date of determination,
the ratio of (a) (i) all Funded Debt of the Borrower and its
Subsidiaries plus (ii) to the extent not otherwise included in
subclause (a)(i) of this definition, the face amount of all
outstanding Letters of Credit issued for the account of the Borrower
or any of its Subsidiaries minus (iii) cash and cash equivalents of
the Borrower and its Subsidiaries on a Consolidated basis minus (iv)
the outstanding principal amount of Subordinated Debt of the Borrower
and its Subsidiaries to (b) Consolidated Pre-Minority EBITDA of the
Borrower and its Subsidiaries on an annualized basis determined by
such Consolidated Pre-Minority EBITDA for the two Fiscal Quarters
immediately preceding such date.
"Single Employer Plan" means a single employer plan (as defined
in Section 4001(a)(15) of ERISA) that (a) is maintained for employees
of any Loan Party or any ERISA Affiliate and no Person other than the
Loan Parties and the ERISA Affiliates or (b) was so
26
maintained and in respect of which any Loan Party or any ERISA
Affiliate could have liability under Section 4069 of ERISA in the
event such plan has been or were to be terminated.
"Solvent" and "Solvency" mean, with respect to any Person on any
date of determination, that on such date (a) the fair value of the
property and assets of such Person is greater than the total amount of
liabilities (including, without limitation, contingent liabilities),
of such Person, (b) the present fair salable value of the property and
assets of such Person is not less than the amount that will be
required to pay the probable liability of such Person on its debts as
they become absolute and matured, (c) such Person does not intend to,
and does not believe that it will, incur debts or liabilities beyond
such Person's ability to pay such debts and liabilities as they mature
and (d) such Person is not engaged in business or in a transaction,
and is not about to engage in business or in a transaction, for which
such Person's property and assets would constitute an unreasonably
small capital. The amount of contingent liabilities of any such Person
at any time shall be computed as the amount that, in the light of all
of the facts and circumstances existing at such time, represents the
amount that can reasonably be expected to become an actual or matured
liability.
"Subordinated Debt" means the subordinated debt evidenced by the
Subordinated Notes or other subordinated Debt issued or incurred by
the Borrower subordinated in right of payment to the payment in full
of the Obligations of the Borrower to the Loan Parties under the Loan
Documents and other senior obligations of the Borrower; provided that
(i) the negative covenants in such subordinated Debt are less
burdensome than the negative covenants in this Agreement as in effect
at the time such subordinated Debt is incurred, (ii) the affirmative
covenants in such subordinated Debt are no more burdensome than the
affirmative covenants in this Agreement as in effect at the time such
subordinated Debt is incurred, (iii) the events of default in such
subordinated Debt relating to insolvency and nonpayment of amounts
owed thereunder are no more restrictive than the corresponding
defaults in this Agreement as in effect at the time such subordinated
Debt is incurred, (iv) such subordinated Debt does not cross-default
to other Debt (but may cross-accelerate to other Debt of Borrower or
any Subsidiary that has guaranteed such subordinated Debt), (v) the
subordination provisions in such subordinated Debt are either (A)
reasonably satisfactory to the Administrative Agent or (B) confirmed
by a nationally recognized investment bank (that is not the
Administrative Agent) as market terms and conditions at such time for
similar debt securities issued by Persons whose debt securities have
credit ratings not greater than that of the Borrower, and (vi) such
subordinated Debt does not provide for any scheduled payment or
mandatory prepayment of principal earlier than July 1, 2007, other
than (x) redemptions made at the option of the holders of such
subordinated Debt upon a change in control of the Borrower in
circumstances that would also constitute a Change of Control under
this Agreement (provided that any such redemption cannot be made fewer
than 30 days after such change in control and that any such redemption
is fully and absolutely subordinated to the indefeasible payment in
full of all principal, interest and other amounts under the Loan
Documents) and (y) mandatory prepayments required as a result of asset
dispositions if such subordinated Debt allows the Borrower to satisfy
such mandatory prepayment requirement by prepayment of Loans under
this Agreement or other senior obligations of the Borrower or
reinvestment of the asset disposition proceeds within a specified
period of time.
"Subordinated Notes" means (i) the 5 5/8% convertible
subordinated notes of Renal Treatment Centers, Inc. due 2006 in the
aggregate principal amount of $125,000,000 issued pursuant to the
Indenture dated June 12, 1996 between Rental Treatment Centers, Inc.
and PNC Bank, National Association as trustee; (ii) the 7% convertible
subordinated notes of the Borrower (f/k/a Total Renal Care Holdings,
Inc.) due 2009 in the aggregate principal amount of $345,000,000
issued pursuant to the Indenture dated November 18, 1998 between Total
Renal
27
Care Holdings, Inc. and United States Trust Company of New York as
trustee; and (iii) the 9 1/4% senior subordinated notes of the
Borrower due April 15, 2011, in the aggregate principal amount of
$225,000,000 issued pursuant to the Indenture dated April 11, 2001
between the Borrower, certain of its Subsidiaries and U.S. Trust
Company of Texas, N.A.
"Subordinated Notes Documents" means the Subordinated Notes, any
indentures or other agreements, instruments and other documents
pursuant to which the Subordinated Notes or other Subordinated Debt
have been or will be issued or otherwise setting forth the terms of
the Subordinated Notes or such Subordinated Debt, including guarantees
in respect of the Subordinated Debt referred to in clauses (i) and
(iii) of the definition of "Subordinated Notes," in each case as such
agreement, instrument or other document may be amended, supplemented
or otherwise modified from time to time in accordance with the terms
thereof, but only to the extent permitted under the terms of the Loan
Documents.
"Subsidiary Guaranty" has the meaning specified in Section
3.01(a)(iii).
"Subsidiary" of any Person means any corporation, partnership,
joint venture, limited liability company, unlimited liability company,
trust or estate of which (or in which) more than 50% of (a) the issued
and outstanding shares of capital stock having ordinary voting power
to elect a majority of the board of directors of such corporation
(irrespective of whether at the time shares of capital stock of any
other class or classes of such corporation shall or might have voting
power upon the occurrence of any contingency), (b) the interest in the
capital or profits of such partnership, joint venture, limited
liability company or unlimited liability company or (c) the beneficial
interest in such trust or estate, is at the time directly or
indirectly owned or controlled by such Person, by such Person and one
or more of its other Subsidiaries or by one or more of such Person's
other Subsidiaries, provided however, that the entities listed on
Exhibit H attached hereto shall not be Subsidiaries.
"Swing Line Advance" means an advance made by (a) the Swing Line
Bank pursuant to Section 2.01(d) or (b) simultaneous Swing Line
Advances made by the Revolving Credit Lenders pursuant to Section
2.02(b).
"Swing Line Bank" has the meaning specified in the recital of
parties to this Agreement.
"Swing Line Borrowing" means a borrowing consisting of a Swing
Line Advance made by the Swing Line Bank.
"Swing Line Commitment" means, with respect to the Swing Line
Bank at any time, the amount set forth opposite the Swing Line Bank's
name on Part B of Schedule I hereto under the caption "Swing Line
Commitment", as such amount may be reduced at or prior to such time
pursuant to Section 2.05.
"Swing Line Facility" means, at any time, an amount equal to the
lesser of (a) the amount of the Swing Line Commitment at such time and
(b) $25,000,000, as such amount may be reduced at or prior to such
time pursuant to Section 2.05.
"Taxes" has the meaning specified in Section 2.13(a).
"Term Advance" means a Term A Advance or a Term B Advance.
"Term A Advance" has the meaning specified in Section 2.01(a).
28
"Term A Borrowing" means a borrowing consisting of
simultaneous Term A Advances of the same Type made by the Term A
Lenders.
"Term A Facility" means, at any time, the aggregate Term A
Advances of all Term A Lenders at such time.
"Term A Lender" means, at any time, any Lender that has a Term
A Advance outstanding at such time.
"Term A Note" means a promissory note of the Borrower payable
to the order of any Term A Lender, in substantially the form of Exhibit
A-1 hereto, evidencing the indebtedness of the Borrower to such Term A
Lender resulting from the Term A Advance made by such Term A Lender.
"Term B Advance" has the meaning specified in Section 2.01(b).
"Term B Borrowing" means a borrowing consisting of
simultaneous Term B Advances of the same Type made by the Term B
Lenders.
"Term B Facility" means, at any time, the aggregate Term B
Advances of all Term B Lenders at such time.
"Term B Lender" means, at any time, any Lender that has a Term
B Advance outstanding at such time.
"Term B Note" means a promissory note of the Borrower payable
to the order of any Term B Lender, in substantially the form of Exhibit
A-2 hereto, evidencing the indebtedness of the Borrower to such Term B
Lender resulting from the Term B Advance made by such Term B Lender.
"Term Facility" means a Term A Facility or a Term B Facility,
as the context requires.
"Term Lender" means a Term A Lender or a Term B Lender, as the
context requires.
"Termination Date" means the earlier of (a) May 4, 2006 and
(b) the date of termination in whole of the Letter of Credit
Commitments, the Swing Line Commitments and the Revolving Credit
Commitments pursuant to Section 2.05 or 6.01.
"Transaction" means, collectively, (a) the entering into by
the Loan Parties of the Loan Documents, to which they are or are
intended to be a party, (b) the refinancing of certain outstanding Debt
of the Borrower and its Subsidiaries and the termination of all
commitments thereunder, and (c) the payment of the fees and expenses
incurred in connection with the consummation of the foregoing.
"TRC" means Total Renal Care, Inc., a California corporation.
"Type" refers to the distinction between Advances bearing
interest at the Base Rate and Advances bearing interest at the
Eurodollar Rate.
"Unused Revolving Credit Commitment" means, with respect to
any Revolving Credit Lender at any time, (a) such Revolving Credit
Lender's Revolving Credit Commitment at such
29
time minus (b) the sum of (i) the aggregate principal amount of all
Revolving Credit Advances, Swing Line Advances and Letter of Credit
Advances made by such Revolving Credit Lender (in its capacity as a
Lender) and outstanding at such time and (ii) such Lender's Pro Rata
Share of (A) the aggregate Available Amount of all Letters of Credit
outstanding at such time, (B) the aggregate principal amount of all
Letter of Credit Advances made by the Issuing Bank pursuant to Section
2.03(c) and outstanding at such time and (C) the aggregate principal
amount of all Swing Line Advances made by the Swing Line Bank pursuant
to Section 2.01(d) and outstanding at such time.
"Voting Interests" means shares of capital stock issued by a
corporation, or equivalent Equity Interests in any other Person, the
holders of which are ordinarily, in the absence of contingencies,
entitled to vote for the election of directors (or persons performing
similar functions) of such Person, even if the right so to vote has
been suspended by the happening of such a contingency.
"Welfare Plan" means a welfare plan (as defined in Section
3(1) of ERISA) that is maintained for employees of any Loan Party or in
respect of which any Loan Party could reasonably be expected to have
liability.
"Weighted Average Life to Maturity" means, on any date and
with respect to the Term A Facility, the Term B Facility or any
Incremental Loans (as defined in Section 2.05(d)) to supplement either
such Facility, an amount equal to (i) the sum of the products of (x)
the amount of each scheduled repayment of the Term A Facility, the Term
B Facility or Incremental Facility (as defined in Section 2.05(d)), as
the case may be, to be made after such date, multiplied by (y) the
number of days from such date to the date of such scheduled repayment
divided by (ii) the aggregate outstanding principal amount of such Term
A Facility, Term B Facility or Incremental Facility, as the case may
be.
"Withdrawal Liability" has the meaning specified in Part I of
Subtitle E of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods; Other Definitional
-------------------------------------------------------------
Provisions. In In this Agreement and the other Loan Documents, in the
- ----------
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including", the word "through" means "through
and including" and the words "to" and "until" each means "to but excluding."
References in this Agreement or any of the other Loan Documents to any
agreement, instrument or other document "as amended" shall mean and be a
reference to such agreement , instrument or other document as amended, amended
and restated, supplemented or otherwise modified hereafter from time to time in
accordance with its terms, but solely to the extent permitted hereunder. In this
Agreement, the words "herein," "hereof" and words of similar import refer to the
entirety of this Agreement and not to any particular Section, subsection, or
Article of this Agreement.
SECTION 1.03. Accounting Terms. All accounting terms not specifically
------------------------------
defined herein shall be construed in accordance with generally accepted
accounting principles consistent with those applied in the preparation of the
Consolidated financial statements of the Borrower and its Subsidiaries as at
December 31, 2000 and for the Fiscal Year then ended referred to in Section
4.01(g) ("GAAP").
SECTION 1.04. Currency Equivalents Generally. Any amount specified in
--------------------------------------------
this Agreement (other than in Articles II, VII and VIII) or any of the other
Loan Documents to be in U.S. dollars shall also include the equivalent of such
amount in any currency other than U.S. dollars, such equivalent amount to be
determined at the rate of exchange quoted by BofA in Charlotte, North Carolina
at the close
30
of business on the Business Day immediately preceding any date of determination
thereof, to prime banks in New York, New York for the spot purchase in the New
York foreign exchange market of such amount in U.S. dollars with such other
currency.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
AND THE LETTERS OF CREDIT
SECTION 2.01. The Advances and the Letters of Credit.
----------------------------------------------------
(a) The Term A Advances. Each Term A Lender severally agrees, on
-------------------
the terms and conditions hereinafter set forth, to make a single
advance (a "Term A Advance") in U.S. dollars to the Borrower on the
Closing Date in an amount equal to the respective amount set forth
opposite such Term A Lender's name on Schedule I hereto. The Term A
Borrowing shall consist of Term A Advances made simultaneously by the
Term A Lenders in accordance with their respective Pro Rata Shares of
the Term A Facility. Amounts borrowed under this Section 2.01(a) and
repaid or prepaid may not be reborrowed.
(b) The Term B Advances. Each Term B Lender severally agrees, on
-------------------
the terms and conditions hereinafter set forth, to make a single
advance (a "Term B Advance") in U.S. dollars to the Borrower on the
Closing Date in an amount equal to the respective amount set forth
opposite such Term B Lender's name on Schedule I hereto. The Term B
Borrowing shall consist of Term B Advances made simultaneously by the
Term B Lenders in accordance with their respective Pro Rata Shares of
the Term B Facility. Amounts borrowed under this Section 2.01(b) and
repaid or prepaid may not be reborrowed.
(c) The Revolving Credit Advances.
-----------------------------
(i) Each Revolving Credit Lender severally agrees, on the
terms and conditions hereinafter set forth, to make advances
(each a "Revolving Credit Advance") in U.S. dollars to the
Borrower from time to time on the Closing Date until the
Termination Date, in each case in an amount not to exceed the
Unused Revolving Credit Commitment of such Revolving Credit
Lender at such time. Each Revolving Credit Borrowing shall be in
an aggregate amount of $5,000,000 or an integral multiple of
$1,000,000 in excess thereof (other than a Borrowing the proceeds
of which shall be used solely to repay or prepay in full
outstanding Swing Line Advances or the outstanding Letter of
Credit Advances) or, if less, the amount of the aggregate Unused
Revolving Credit Commitments at such time. Each Revolving Credit
Borrowing shall consist of Revolving Credit Advances made
simultaneously by the Revolving Credit Lenders in accordance with
their respective Pro Rata Shares of the Revolving Credit
Facility. Within the limits of each Revolving Credit Lender's
Unused Revolving Credit Commitment in effect from time to time,
the Borrower may borrow under this Section 2.01(c), prepay
pursuant to Section 2.06(a) and reborrow under this Section
2.01(c).
(ii) The Revolving Credit Commitment of each of the
Revolving Credit Lenders shall be deemed utilized for the 60-day
period immediately following the date of each purchase by the
Borrower of any of its Equity Interests pursuant to Section
5.02(g)(iv)(B) or (C) by such Revolving Credit Lender's pro rata
share of $75,000,000.
31
(d) The Swing Line Advances. The Borrower may request the Swing
-----------------------
Line Bank to make, and the Swing Line Bank shall on the terms and
conditions hereinafter set forth, make Swing Line Advances to the
Borrower from time to time on any Business Day during the period from
the Closing Date until the Termination Date (i) in an aggregate amount
not to exceed $25,000,000 at any time outstanding (the "Swing Line
Facility") and (ii) in an amount for each such Swing Line Borrowing not
to exceed the aggregate Unused Revolving Credit Commitments of the
Revolving Credit Lenders at such time. No Swing Line Advance shall be
used for the purpose of funding the payment of principal of any other
Swing Line Advance. Each Swing Line Borrowing shall be in an amount of
$500,000 or an integral multiple of $250,000 in excess thereof and
shall bear interest at a rate to be agreed on by the Borrower and the
Swing Line Bank. Within the limits of the first sentence of this
Section 2.01(d), the Borrower may borrow under this Section 2.01(d),
repay pursuant to Section 2.04(c), prepay pursuant to Section 2.06(a)
and reborrow under this Section 2.01(d).
(e) Letters of Credit.
-----------------
(i) The Borrower, the Bank of New York as Issuing Bank and
each of the Revolving Credit Lenders hereby agree that each of
the Existing Letters of Credit shall, on and after the Closing
Date, be deemed for all purposes of this Agreement to be a Letter
of Credit issued and outstanding under the terms of this
Agreement. The Issuing Bank agrees, on the terms and conditions
hereinafter set forth, to issue letters of credit (the "Letters
of Credit") in U.S. dollars for the account of the Borrower from
time to time on any Business Day during the period from the date
hereof until five Business Days before the scheduled Termination
Date (A) in an Available Amount for each such Letter of Credit of
the Revolving Credit Lenders not to exceed at any time the Unused
Letter of Credit Commitment at such time and (B) in an aggregate
Available Amount for all Letters of Credit not to exceed the
lesser of (1) the Letter of Credit Facility at such time and (2)
the aggregate Unused Revolving Credit Commitments at such time.
No Letter of Credit shall have an expiration date (including all
rights of the Borrower or the beneficiary of such Standby Letter
of Credit to require renewal) later than the earlier of (x) five
Business Days prior to the scheduled Termination Date and (y) one
year after the date of issuance thereof, but any such Letter of
Credit may by its terms be renewable annually on the terms set
forth in clause (ii) of this Section 2.01(e). Within the limits
of the Letter of Credit Facility, and subject to the limits
referred to above, the Borrower may request the issuance of
Letters of Credit under this Section 2.01(e)(i), repay any Letter
of Credit Advances resulting from drawings thereunder pursuant to
Section 2.03(c) and request the issuance of additional Letters of
Credit under this Section 2.01(e)(i).
(ii) Each Letter of Credit may by its terms be renewable
annually upon notice (a "Notice of Renewal") given to the Issuing
Bank and the Administrative Agent on or prior to any date for
notice of renewal set forth in such Letter of Credit but in any
event at least three Business Days prior to the date of the
proposed renewal of such Letter of Credit and upon fulfillment of
the applicable conditions set forth in Article III unless such
Issuing Bank has notified the Borrower (with a copy to the
Administrative Agent) on or prior to the date for notice of
termination set forth in such Letter of Credit but in any event
at least 30 Business Days prior to the date of automatic renewal
of its election not to renew such Letter of Credit (a "Notice of
Termination"); provided that the terms of each Letter of Credit
that is automatically renewable annually (A) shall require the
Issuing Bank to give the beneficiary of such Letter of Credit
notice of any Notice of Termination, (B) shall permit such
beneficiary, upon receipt of such notice, to draw under such
Letter of Credit prior to the date such Letter of Credit
otherwise would have been
32
automatically renewed and (C) shall not permit the expiration
date (after giving effect to any renewal) of such Letter of
Credit in any event to be extended to a date later than five
Business Days prior to the scheduled Termination Date. If either
a Notice of Renewal is not given by the Borrower or a Notice of
Termination is given by the Issuing Bank pursuant to the
immediately preceding sentence, such Letter of Credit shall
expire on the date on which it otherwise would have been
automatically renewed; provided, however, that in the absence of
receipt of a Notice of Renewal the Issuing Bank may in its
discretion, unless instructed to the contrary by the
Administrative Agent or the Borrower deem that a Notice of
Renewal had been timely delivered and, in such case, a Notice of
Renewal shall be deemed to have been so delivered for all
purposes under this Agreement.
SECTION 2.02. Making the Advances.
---------------------------------
(a) Except as otherwise provided in Section 2.02(b) or 2.03 or
in respect of any Borrowing requested to be made on the date of the
Initial Extension of Credit, in which case notice will be given not
later than one Business Day prior to the date of the Initial Extension
of Credit and which Borrowing shall be comprised of Base Rate Advances,
each Borrowing (other than a Swing Line Borrowing) shall be made on
notice, given not later than 2:00 P.M. (Charlotte, North Carolina time)
on the third Business Day prior to the date of the proposed Borrowing
in the case of a Borrowing comprised of Eurodollar Rate Advances, or on
the first Business Day prior to the date of the proposed Borrowing in
the case of a Borrowing comprised of Base Rate Advances, by the
Borrower to the Administrative Agent, which shall give prompt notice
thereof to each Appropriate Lender by telecopier. Each notice of a
Borrowing (a "Notice of Borrowing") shall be by telephone, confirmed
immediately in writing, or by telecopier, in substantially the form of
Exhibit B-1 hereto, shall be duly executed by a Responsible Officer of
the Borrower, and shall specify therein: (i) the requested date of such
Borrowing (which shall be a Business Day); (ii) the Facility under
which such Borrowing is requested to be made; (iii) the Type of
Advances requested to comprise such Borrowing; (iv) the requested
aggregate amount of such Borrowing; and (v) in the case of a Borrowing
comprised of Eurodollar Rate Advances, the requested duration of the
initial Interest Period for each such Advance. Each Appropriate Lender
shall, before 2:00 P.M. (Charlotte, North Carolina time) on the date of
such Borrowing, make available for the account of its Applicable
Lending Office to the Administrative Agent at the Administrative
Agent's Account, in same day funds, such Lender's Pro Rata Share of
such Borrowing. After the Administrative Agent's receipt of such funds
and upon fulfillment of the applicable conditions set forth in Article
III, the Administrative Agent will make such funds available to the
Borrower by crediting the Borrower's Account; provided, however, that,
in the case of any Revolving Credit Borrowing, the Administrative Agent
shall first make a portion of such funds equal to the aggregate
principal amount of any Swing Line Advances and Letter of Credit
Advances made by the Swing Line Bank or the Issuing Bank, as the case
may be, and by any Revolving Credit Lender and outstanding on the date
of such Revolving Credit Borrowing, plus accrued and unpaid interest
thereon to and as of such date, available to the Swing Line Bank or the
Issuing Bank, as applicable, and such other Revolving Credit Lenders
for repayment of such Swing Line Advances and Letter of Credit
Advances.
(a) Each Swing Line Borrowing shall be made on notice,
given not later than 2:00 P.M. (Charlotte, North Carolina time)
on the date of the proposed Swing Line Borrowing, by the Borrower
to the Swing Line Bank and the Administrative Agent. Each notice
of a Swing Line Borrowing (a "Notice of Swing Line Borrowing")
shall be by telephone, confirmed immediately in writing, or
telecopier, shall be in substantially the form of Exhibit B-2
hereto and duly executed by a Responsible Officer of the
Borrower,
33
and shall specify therein: (A) the requested date of such
Borrowing (which shall be a Business Day); (B) the requested
amount of such Borrowing; and (C) the requested maturity of such
Borrowing (which maturity shall be no later than the seventh day
after the requested date of such Borrowing). The Swing Line Bank
will make the amount thereof available for the account of its
Applicable Lending Office to the Administrative Agent at the
Administrative Agent's Account, in same day funds. After the
Administrative Agent's receipt of such funds and upon fulfillment
of the applicable conditions set forth in Article III, the
Administrative Agent will make such funds available to the
Borrower by crediting the Borrower's Account.
(i) Upon demand by the Swing Line Bank, with a copy of
such demand to the Administrative Agent (which shall give prompt
notice thereof to each Revolving Credit Lender), each Revolving
Credit Lender shall purchase from the Swing Line Bank, and the
Swing Line Bank shall sell and assign to each such Revolving
Credit Lender, such Revolving Credit Lender's Pro Rata Share of
such outstanding Swing Line Borrowing as of the date of such
demand, by making available for the account of its Applicable
Lending Office to the Administrative Agent at the Administrative
Agent's Account for the account of the Swing Line Bank, in same
day funds, an amount equal to such Pro Rata Share. Promptly after
receipt of such funds, the Administrative Agent shall transfer
such funds to the Swing Line Bank at its Applicable Lending
Office. Each Revolving Credit Lender hereby agrees to purchase
its Pro Rata Share of an outstanding Swing Line Borrowing on (A)
the Business Day on which demand therefor is made by the Swing
Line Bank so long as notice of such demand is given not later
than 12:00 Noon (Charlotte, North Carolina time) on such Business
Day or (B) the first Business Day next succeeding such demand if
notice of such demand is given after such time. The Borrower
hereby agrees to each such sale and assignment. Upon any such
assignment by the Swing Line Bank to any Revolving Credit Lender
of a portion of a Swing Line Borrowing, the Swing Line Bank
represents and warrants to such Revolving Credit Lender that the
Swing Line Bank is the legal and beneficial owner of such
interest being assigned by it, but makes no other representation
or warranty and assumes no responsibility with respect to such
Swing Line Borrowing, the Loan Documents or any Loan Party. If
and to the extent that any Revolving Credit Lender shall not have
so made its Pro Rata Share of any applicable Swing Line Borrowing
available to the Administrative Agent in accordance with the
foregoing provisions of this Section 2.02(b)(ii), such Revolving
Credit Lender hereby agrees to pay to the Administrative Agent
forthwith on demand the amount of its Pro Rata Share, together
with interest thereon, for each day from the date of demand by
the Swing Line Bank therefor until the date such amount is paid
to the Administrative Agent, at the Federal Funds Rate. If such
Lender shall pay to the Administrative Agent the amount of its
Pro Rata Share for the account of the Swing Line Bank on any
Business Day, such amount so paid in respect of principal shall
constitute a Swing Line Advance made by such Lender on such
Business Day for all purposes of this Agreement, and the
outstanding principal amount of the Swing Line Advance made by
the Swing Line Bank shall be reduced by such amount on such
Business Day.
(ii) The obligation of each Revolving Credit Lender to
purchase its Pro Rata Share of each outstanding Swing Line
Borrowing upon demand by the Swing Line Bank therefor pursuant to
clause (ii) of this Section 2.02(b) shall be absolute,
unconditional and irrevocable, and shall be made strictly in
accordance with the terms of clause (ii) of this Section 2.02(b)
under all circumstances, including, without limitation, the
following circumstances:
34
(A) any lack of validity or enforceability of any Loan
Document or any other agreement or instrument relating thereto;
(B) the existence of any claim, set-off, defense or other
right that such Revolving Credit Lender may have at any time
against the Swing Line Bank, the Borrower or any other Person,
whether in connection with the transactions contemplated by the
Loan Documents or any unrelated transaction;
(C) the occurrence and continuance of any Default or Event
of Default; or
(D) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing.
(c) Anything in subsection (a) of this Section 2.02 to the contrary
notwithstanding, (i) the Borrower may not select Eurodollar Rate Advances if the
obligation of the Appropriate Lenders to make Eurodollar Rate Advances shall
then be suspended pursuant to Section 2.09 or 2.10. In addition, the Term
Advances may not be outstanding as part of more than 10 separate Borrowings and
the Revolving Credit Advances may not be outstanding as part of more than 10
separate Borrowings.
(d) Each Notice of Borrowing and Notice of Swing Line Borrowing shall
be irrevocable and binding on the Borrower. In the case of any Borrowing that
the related Notice of Borrowing specifies is to be comprised of Eurodollar Rate
Advances, the Borrower shall indemnify each Appropriate Lender against any loss,
cost or expense incurred by such Lender as a result of any failure to fulfill on
or before the date specified in such Notice of Borrowing for such Borrowing the
applicable conditions set forth in Article III, including, without limitation,
any loss, cost or expense incurred by reason of the liquidation or reemployment
of deposits or other funds acquired by such Lender to fund the Eurodollar Rate
Advance to be made by such Lender as part of such Borrowing when such Advance,
as a result of such failure, is not made on such date. A certificate of the
Lender requesting compensation pursuant to this subsection (d) submitted to the
Borrower by such Lender (with a copy to the Administrative Agent) and specifying
therein the amount of such additional compensation (including the basis of
calculation thereof) shall be conclusive and binding for all purposes, absent
manifest error.
(e) Unless the Administrative Agent shall have received notice from
an Appropriate Lender prior to the date of any Borrowing under a Facility under
which such Lender has a Commitment that such Lender will not make available to
the Administrative Agent such Lender's Pro Rata Share of such Borrowing, the
Administrative Agent may assume that such Lender has made the amount of such Pro
Rata Share available to the Administrative Agent on the date of such Borrowing
in accordance with subsection (a) or (b) of this Section 2.02, as applicable,
and the Administrative Agent may, in reliance upon such assumption, make
available to the Borrower on such date a corresponding amount. If and to the
extent that such Lender shall not have so made the amount of such Pro Rata Share
available to the Administrative Agent, such Lender and the Borrower severally
agree to repay or to pay to the Administrative Agent forthwith on demand such
corresponding amount, together with interest thereon, for each day from the date
such amount is made available to the Borrower until the date such amount is
repaid or paid to the Administrative Agent, at (i) in the case of the Borrower,
the interest rate applicable at such time under Section 2.07 to Advances
comprising such Borrowing and (ii) in the case of such Lender, the Federal Funds
Rate. If such Lender shall pay to the Administrative Agent such corresponding
35
amount, such amount so paid shall constitute such Lender's Advance as part of
such Borrowing for all purposes under this Agreement.
(f) The failure of any Lender to make the Advance to be made by it as
part of any Borrowing shall not relieve any other Lender of its obligation, if
any, hereunder to make its Advance on the date of such Borrowing, but no Lender
shall be responsible for the failure of any other Lender to make the Advance to
be made by such other Lender on the date of any Borrowing.
SECTION 2.03. Issuance of and Drawings and Reimbursement Under Letters of
- -------------------------------------------------------------------------
Credit.
- ------
(a) Request for Issuance. Each Letter of Credit shall be issued upon
--------------------
notice, given not later than 2:00 P.M. (Charlotte, North Carolina time) on the
fifth Business Day prior to the date of the proposed issuance of such Letter of
Credit (or such later day as the Issuing Bank in its sole discretion shall
agree), by the Borrower to the Issuing Bank, which shall give to the
Administrative Agent and each Revolving Credit Lender prompt notice thereof by
telecopier. Each notice of issuance of a Letter of Credit (a "Notice of
Issuance") shall be by telephone, confirmed immediately in writing, or by
telecopier, shall be duly executed by a Responsible Officer of the Borrower, and
shall specify therein: (i) the requested date of such issuance (which shall be a
Business Day); (ii) the requested Available Amount of such Letter of Credit;
(iii) the requested expiration date of such Letter of Credit (which shall comply
with the requirements of Section 2.01(e)); (iv) the name and address of the
proposed beneficiary of such Letter of Credit; and (v) the proposed form of such
Letter of Credit, and shall be accompanied by such application and agreement for
letters of credit as the Issuing Bank may specify to the Borrower for use in
connection with such requested Letter of Credit (such applications and
agreements, and all similar agreements entered into in connection with an
Existing Letter of Credit, a "Letter of Credit Agreement"). If the requested
form of such Letter of Credit is acceptable to the Issuing Bank in its sole
discretion, the Issuing Bank will, upon fulfillment of the applicable conditions
set forth in Article III, make such Letter of Credit available to the Borrower
at its office referred to in Section 8.02 or as otherwise agreed with the
Borrower in connection with the issuance of such Letter of Credit. If and to the
extent that the provisions of any Letter of Credit Agreement shall conflict with
this Agreement, the provisions of this Agreement shall govern.
(b) Drawing and Reimbursement.
-------------------------
(i) The obligation of the Borrower to reimburse the Issuing Bank
for each payment made by the Issuing Bank under any Letter of Credit,
and to pay interest thereon as provided herein, shall be absolute,
unconditional and irrevocable, without regard to any circumstances,
including, without limitation, those referred to in Section 2.04(d)
below. The payment by the Issuing Bank of a draft drawn under any
Letter of Credit shall constitute for all purposes of this Agreement
the making by the Issuing Bank of a Letter of Credit Advance, which
shall be a Base Rate Advance, in the amount of such draft; provided
that such payment shall not be deemed a Base Rate Advance if the
Borrower reimburses the Issuing Bank therefor prior to 2:00 P.M.
(Charlotte, North Carolina time) on the date of such payment, or if
such payment by the Issuing Bank is made on or after 2:00 P.M.
(Charlotte, North Carolina time), then prior to 2:00 P.M. (Charlotte,
North Carolina time), on the Business Day immediately succeeding the
date of such payment, together with interest thereon from the date of
such payment to the date of such reimbursement at a rate per annum
equal to the sum of the Base Rate then in effect from time to time and
the Applicable Margin for Base Rate Advances that are Revolving Credit
Advances then in effect from time to time. Upon demand by the
36
Issuing Bank, with a copy of such demand to the Administrative Agent,
each Revolving Credit Lender shall purchase from the Issuing Bank, and
the Issuing Bank shall sell and assign to each such Revolving Credit
Lender, such Lender's Pro Rata Share of such outstanding Letter of
Credit Advance as of the date of such purchase, by making available for
the account of its Applicable Lending Office to the Administrative
Agent for the account of the Issuing Bank, at the Administrative
Agent's Account, in same day funds, an amount equal to the portion of
the outstanding principal amount of such Letter of Credit Advance to be
purchased by such Lender. Promptly after receipt thereof, the
Administrative Agent shall transfer such funds to the Issuing Bank. The
Borrower hereby agrees to each such sale and assignment. Each Revolving
Credit Lender agrees to purchase its Pro Rata Share of an outstanding
Letter of Credit Advance on (A) the Business Day on which demand
therefor is made by the Issuing Bank so long as notice of such demand
is given not later than 2:00 P.M. (Charlotte, North Carolina time) on
such Business Day or (B) the first Business Day next succeeding such
demand if notice of such demand is given after such time. Upon any such
assignment by the Issuing Bank to any other Revolving Credit Lender of
a portion of a Letter of Credit Advance, the Issuing Bank represents
and warrants to such other Lender that the Issuing Bank is the legal
and beneficial owner of such interest being assigned by it, free and
clear of any liens, but makes no other representation or warranty and
assumes no responsibility with respect to such Letter of Credit
Advance, the Loan Documents or any Loan Party. If and to the extent
that any Revolving Credit Lender shall not have so made the amount of
such Letter of Credit Advance available to the Administrative Agent,
such Revolving Credit Lender agrees to pay to the Administrative Agent
forthwith on demand such amount, together with interest thereon, for
each day from the date of demand by the Issuing Bank until the date
such amount is paid to the Administrative Agent, at the Federal Funds
Rate, for its account or the account of the Issuing Bank, as
applicable. If such Revolving Credit Lender shall pay to the
Administrative Agent such amount for the account of the Issuing Bank on
any Business Day, such amount so paid in respect of principal shall
constitute a Letter of Credit Advance made by such Revolving Credit
Lender on such Business Day for all purposes of this Agreement, and the
outstanding principal amount of the Letter of Credit Advance made by
the Issuing Bank shall be reduced by such amount on such Business Day.
(ii) The Obligation of each Revolving Credit Lender to purchase
its Pro Rata Share of each outstanding Letter of Credit Advance upon
demand by the Issuing Bank therefor pursuant to clause (i) of this
Section 2.03(c) shall be absolute, unconditional and irrevocable, and
shall be made strictly in accordance with the terms of clause (i) of
this Section 2.03(c) under all circumstances, including, without
limitation, the following circumstances:
(A) any lack of validity or enforceability of any Loan
Document, any Letter of Credit Agreement, any Letter of Credit or
any other agreement or instrument relating thereto (collectively,
the "L/C Related Documents");
(B) the existence of any claim, set-off, defense or other
right that such Revolving Credit Lender may have at any time
against any beneficiary or any transferee of a Letter of Credit
(or any Person for whom any such beneficiary or any such
transferee may be acting), the Issuing Bank, the Borrower or any
other Person, whether in connection with the transactions
contemplated by the L/C Related Documents or any unrelated
transaction;
37
(C) the occurrence and continuance of any Default or Event of
Default; or
(D) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing.
(c) Failure to Make Letter of Credit Advances. The failure of any Revolving
-----------------------------------------
Credit Lender to make the Letter of Credit Advance to be made by it on the date
specified in Section 2.03(b) shall not relieve any other Revolving Credit Lender
of its obligation hereunder to make its Letter of Credit Advance on such date,
but no Revolving Credit Lender shall be responsible for the failure of any other
Revolving Credit Lender to make the Letter of Credit Advance to be made by such
other Revolving Credit Lender on such date.
SECTION 2.04. Repayment of Advances.
- -------------------------------------
(a) Term Advances.
-------------
(i) Subject to Section 2.04(a)(ii) with respect to the Term B
Facility, the Borrower shall repay to the Administrative Agent for the
ratable account of the Appropriate Lenders the aggregate principal amount
of all Term Advances outstanding on the following dates in the respective
amounts set forth opposite such dates (which amounts shall be reduced as a
result of the application of prepayments in accordance with the order of
priority set forth in Section 2.05):
=====================================================================
DATE AMOUNT
---------------------------------------------------------------------
Term A Facility Term B Facility
---------------------------------------------------------------------
June 30, 2001 $2,500,000 $500,000
---------------------------------------------------------------------
September 30, 2001 $2,500,000 $500,000
---------------------------------------------------------------------
December 31, 2001 $2,500,000 $500,000
---------------------------------------------------------------------
March 31, 2002 $2,500,000 $500,000
---------------------------------------------------------------------
June 30, 2002 $2,500,000 $500,000
---------------------------------------------------------------------
September 30, 2002 $2,500,000 $500,000
---------------------------------------------------------------------
December 31, 2002 $2,500,000 $500,000
---------------------------------------------------------------------
March 31, 2003 $2,500,000 $500,000
---------------------------------------------------------------------
June 30, 2003 $2,500,000 $500,000
---------------------------------------------------------------------
September 30, 2003 $2,500,000 $500,000
---------------------------------------------------------------------
December 31, 2003 $2,500,000 $500,000
---------------------------------------------------------------------
March 31, 2004 $2,500,000 $500,000
---------------------------------------------------------------------
June 30, 2004 $2,500,000 $500,000
---------------------------------------------------------------------
September 30, 2004 $2,500,000 $500,000
---------------------------------------------------------------------
December 31, 2004 $2,500,000 $500,000
---------------------------------------------------------------------
March 31, 2005 $2,500,000 $500,000
---------------------------------------------------------------------
June 30, 2005 $2,500,000 $500,000
---------------------------------------------------------------------
September 30, 2005 $2,500,000 $500,000
---------------------------------------------------------------------
December 31, 2005 $2,500,000 $500,000
---------------------------------------------------------------------
March 31, 2006 $2,500,000 $190,500,000
=====================================================================
38
provided, however, that the final principal installment of the
respective Term Advances shall be in an amount equal to the aggregate
principal amount of all such Term Advances then outstanding.
(ii) Notwithstanding Section 2.04(a)(i), if the maturity of the
subordinated notes referred to in clause (i) of the definition of
"Subordinated Notes" has been extended by March 1, 2006 to a date not
earlier than June 1, 2007, or if such subordinated notes have been
converted to Equity Interests of the Borrower by March 1, 2006, then
the Borrower shall repay to the Administrative Agent for the ratable
account of the Term B Lenders the aggregate principal amount of all
Term B Advances outstanding on the following dates in the respective
amounts set forth opposite such dates (which amounts shall be reduced
as a result of the application of prepayments in accordance with the
order of priority set forth in Section 2.05):
-------------------------------------------
DATE AMOUNT
-------------------------------------------
Term B Facility
-------------------------------------------
June 30, 2001 $500,000
-------------------------------------------
September 30, 2001 $500,000
-------------------------------------------
December 31, 2001 $500,000
-------------------------------------------
March 31, 2002 $500,000
-------------------------------------------
June 30, 2002 $500,000
-------------------------------------------
September 30, 2002 $500,000
-------------------------------------------
December 31, 2002 $500,000
-------------------------------------------
March 31, 2003 $500,000
-------------------------------------------
June 30, 2003 $500,000
-------------------------------------------
September 30, 2003 $500,000
-------------------------------------------
December 31, 2003 $500,000
-------------------------------------------
March 31, 2004 $500,000
-------------------------------------------
June 30, 2004 $500,000
-------------------------------------------
September 30, 2004 $500,000
-------------------------------------------
December 31, 2004 $500,000
-------------------------------------------
March 31, 2005 $500,000
-------------------------------------------
June 30, 2005 $500,000
-------------------------------------------
September 30, 2005 $500,000
-------------------------------------------
December 31, 2005 $500,000
-------------------------------------------
March 31, 2006 $500,000
-------------------------------------------
June 30, 2006 $500,000
-------------------------------------------
September 30, 2006 $500,000
-------------------------------------------
December 31, 2006 $500,000
-------------------------------------------
March 31, 2007 $188,500,000
-------------------------------------------
provided, however, that the final installment of the Term B Advances
shall be in an amount equal to the aggregate principal amount of all
Term B Advances then outstanding.
(b) Revolving Credit Advances. The Borrower shall repay to the
-------------------------
Administrative Agent for the ratable account of the Revolving Credit
Lenders on the Termination Date the aggregate principal amount of all
Revolving Credit Advances outstanding on such date.
39
(c) Swing Line Advances. The Borrower shall repay to the
-------------------
Administrative Agent for the account of the Swing Line Bank and each
Revolving Credit Lender that has made a Swing Line Advance on the earlier
of (i) the maturity date for each Swing Line Advance (as specified in the
applicable Notice of Swing Line Borrowing (which maturity shall be no later
than the seventh day after the date on which such Swing Line Borrowing was
initially made by the Swing Line Bank) and (ii) the Termination Date, the
principal amount of each such Swing Line Advance made by the Swing Line
Bank and each such Revolving Credit Lender and outstanding on such date.
(d) Letter of Credit Advances.
-------------------------
(i) The Borrower shall repay to the Administrative Agent for the
account of the Issuing Bank and each Revolving Credit Lender that has
made a Letter of Credit Advance on the earlier of (A) the date of
demand therefor and (B) the Termination Date, the principal amount of
each such Letter of Credit Advance made by the Issuing Bank and each
such Revolving Credit Lender and outstanding on such date.
(ii) The Obligations of the Borrower under this Agreement, any
Letter of Credit Agreement and any other agreement or instrument
relating to any Letter of Credit shall be absolute, unconditional and
irrevocable, and shall be paid strictly in accordance with the terms
of this Agreement, such Letter of Credit Agreement or such other
agreement or instrument under all circumstances, including, without
limitation, the following circumstances (it being understood that any
such payment by the Borrower is without prejudice to, and does not
constitute a waiver of, any rights the Borrower might have or might
acquire as a result of the payment by the Issuing Bank of any draft
drawn or the reimbursement by the Borrower thereof):
(A) any lack of validity or enforceability of any L/C
Related Document;
(B) any change in the time, manner or place of payment of,
or in any other term of, all or any of the Obligations of the
Borrower in respect of any L/C Related Document or any other
amendment or waiver of or any consent to departure from all or
any of the L/C Related Documents;
(C) the existence of any claim, set-off, defense or other
right that the Borrower may have at any time against any
beneficiary or any transferee of a Letter of Credit (or any
Person for whom any such beneficiary or any such transferee may
be acting), the Issuing Bank or any other Person, whether in
connection with the transactions contemplated by the L/C Related
Documents or any unrelated transaction;
(D) any statement or any other document presented under a
Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue
or inaccurate in any respect;
(E) payment by the Issuing Bank under a Letter of Credit
against presentation of a draft, certificate or other document
that does not strictly comply with the terms of such Letter of
Credit;
40
(F) any exchange, release or nonperfection of any
Collateral or other collateral, or any release or amendment or
waiver of or consent to departure from the Subsidiary Guaranty or
any other guarantee, for all or any of the Obligations of the
Borrower in respect of the L/C Related Documents; or
(G) any other circumstance or happening whatsoever, whether
or not similar to any of the foregoing, including, without
limitation, any other circumstance that might otherwise
constitute a defense available to, or a discharge of, the
Borrower or a guarantor.
SECTION 2.05. Termination or Reduction of the Commitments.
---------------------------------------------------------
(a) Optional. The Borrower may, upon at least three Business Days'
--------
notice to the Administrative Agent, terminate in whole or reduce in part
the unused portions of the Letter of Credit Facility or the Unused
Revolving Credit Commitments; provided, however, that each partial
reduction of a Facility shall be in an aggregate amount of $5,000,000 or an
integral multiple of $1,000,000 in excess thereof or, if less, the
aggregate amount of such Facility.
(b) Mandatory.
---------
(i) The Revolving Credit Facility shall be automatically and
permanently reduced on each date on which the prepayment of Revolving
Credit Advances outstanding thereunder is required to be made pursuant
to Section 2.06(b)(i) by an amount equal to the applicable Reduction
Amount.
(ii) The Swing Line Facility shall be automatically and
permanently reduced on the date of each reduction in the Revolving
Credit Facility by the amount, if any, by which the amount of the
Swing Line Facility on such date exceeds the amount of the Revolving
Credit Facility on such date (after giving effect to such reduction of
the Revolving Credit Facility on such date).
(iii) The Letter of Credit Facility shall be automatically and
permanently reduced on the date of each reduction in the Revolving
Credit Facility by an amount equal to the amount, if any, by which (A)
the Letter of Credit Facility on such date exceeds (B) the Revolving
Credit Facility on such date, after giving effect to such reduction of
the Revolving Credit Facility.
(c) Application of Commitment Reductions. Upon each reduction of a
------------------------------------
Facility pursuant to this Section 2.05, the Commitment of each Appropriate
Lender under such Facility shall be reduced by such Lender's Pro Rata Share
of the amount by which such Facility is reduced.
(d) Incremental Facilities and Commitments.
--------------------------------------
(i) At any time during the term of this Agreement, and so long
as no Default or Event of Default shall have occurred and be
continuing or would result therefrom, the Borrower may request, from
time to time, by notice to the Administrative Agent that one or more
Lenders (and/or one or more other Persons which shall become Lenders
as provided in Section 2.05(d)(iii) below) provide one or more
additional facilities to supplement the Revolving Credit Facility, the
Term A Facility or the Term B Facility (each, an "Incremental
Facility"), which Incremental Facilities together shall provide for
41
commitments ("Incremental Commitments") for loans in an aggregate
amount of not greater than $100,000,000 in excess of the aggregate
outstanding amount of the Term A Advances, the Term B Advances or the
Revolving Credit Commitment, as the case may be, at the time of the
respective request (collectively, "Incremental Loans") provided that
(A) no Lender shall have any obligation to provide any Incremental
Commitment, (B) any Lender (or any other Person which becomes a Lender
pursuant to Section 2.05(d)(iii) below) may provide Incremental
Commitments without the consent of any other Lender and (C) each of
the Term A Facility, the Term B Facility and the Revolving Credit
Facility, as the case may be, may only be supplemented once as
provided herein.
(ii) The maturity date, scheduled amortization and commitment
reductions, mandatory prepayments and commitment reductions, interest
rate, minimum borrowings and prepayments, commitment fees and other
amounts payable in respect of any Incremental Facility, and certain
agent determinations and other relevant provisions, shall be as set
forth in an agreement (an "Incremental Facility Agreement") among the
Loan Parties, the Administrative Agent, the Lenders and other Persons
agreeing to provide Incremental Commitments thereunder; provided that
any Incremental Loans to supplement the Term A Facility shall have a
Weighted Average Life to Maturity of no less than the Weighted Average
Life to Maturity of the Term A Advances then outstanding, any
Incremental Loans to supplement the Term B Facility shall have a
Weighted Average Life to Maturity of no less than the Weighted Average
Life to Maturity of the Term B Advances then outstanding and any
revolving Incremental Commitment to supplement the Revolving Credit
Commitment shall have a termination date not later than the then
scheduled Termination Date.
(iii) The effectiveness of any Incremental Facility to be created
under this Section 2.05(d), and the obligation of any Lender or other
Person providing any Incremental Commitment thereunder to make any
Incremental Loans pursuant thereto, is subject to, in addition to the
conditions set forth in Article III, the satisfaction of each of the
following conditions: (i) each Loan Party, the Administrative Agent,
and each Lender or other Person providing Incremental Commitments
thereunder (each, an "Incremental Lender") shall have executed and
delivered to the Administrative Agent an Incremental Facility
Agreement with respect to such Incremental Facility, (ii) the
Administrative Agent shall have received for its account and for the
respective accounts of any other agents and the Incremental Lenders,
all fees and other amounts payable by the Borrower in respect of such
Incremental Facility on or prior to such date of effectiveness and
(iii) the Administrative Agent (or its counsel) shall have received
such documents and certificates, and such legal opinions, as the
Administration Agent or its counsel shall reasonably request,
including documents, certificates and legal opinions relating to the
organization, existence and good standing of each Loan Party, the
authorization of such Incremental Facility and other legal matters
relating to the Loan Parties or the Loan Documents (including the
applicable Incremental Facility Agreement). The Administrative Agent
shall notify each Lender as to the effectiveness of each Incremental
Facility hereunder.
SECTION 2.06. Prepayments.
-------------------------
() Optional. The Borrower may, on any Business Day, prepay all or
--------
any portions of any Swing Line Advance and (ii) upon at least three
Business Days' notice to the Administrative Agent stating the Facility
under which Advances are proposed to be prepaid and the proposed date and
aggregate principal amount of the prepayment, and if such notice is given
the Borrower
42
shall, prepay the aggregate principal amount of the Advances comprising
part of the same Borrowing and outstanding on such date, in whole or
ratably in part; provided, however, that each partial prepayment of
(i) Revolving Credit Advances shall be in an aggregate principal amount of
$1,000,000 or an integral multiple of $250,000 in excess thereof and
(ii) Term Advances shall be in an aggregate principal amount of $5,000,000
or an integral multiple of $500,000 in excess thereof or, if less, the
aggregate outstanding principal amount of such Facility. Each prepayment of
Term Advances made pursuant to this clause (a) shall be applied against the
principal repayment installments of the respective Term Facility designated
by the Borrower in the respective notice of prepayment.
(b) Mandatory.
---------
(i) The Borrower shall, not later than one Business Day after
the date of receipt of the Net Cash Proceeds by the Borrower or any of
its Subsidiaries from:
(A) the sale, lease, transfer or other disposition of any
property or assets of the Borrower or any of its Subsidiaries
(other than any property or assets expressly permitted to be
sold, leased, transferred or otherwise disposed of pursuant to
clause (i), (ii), (iii), (iv) or (v) of Section 5.02(e));
(B) the incurrence or issuance by the Borrower or any of
its Subsidiaries of any Debt (other than Debt expressly permitted
to be incurred or issued pursuant to clause (i), (iii), (iv),
(v), (vi), (vii), (viii), (ix), (x), (xi) or (xiii) of Section
5.02(b)); and
(C) the issuance or sale by the Borrower or any Subsidiary
thereof (which is or will be as a result thereof subject to the
Securities Exchange Act of 1934, as amended) of any Equity
Interests therein (other than (i) the issuance by the Borrower of
(a) its common stock to employees of the Borrower or its
Subsidiaries pursuant to employee equity incentive or benefit
plans, (b) Equity Interests to effect any acquisition permitted
under Section 5.02(f) hereof, provided that in the case in which
the proceeds of such issuance are contemplated to be used to
effect such acquisition, then all the proceeds thereof are used
within 180 days of such issuance to effect such acquisition, and
any such proceeds not so used by such 180th day shall be applied
as a prepayment as provided herein, or (c) Equity Interests in
connection with a redemption of Subordinated Debt to the extent
contemplated in Section 5.02(i) and, (ii) the issuance by any
Subsidiary of the Borrower of any Equity Interests therein to the
Borrower or to another Subsidiary thereof), prepay an aggregate
principal amount of the Advances comprising part of the same
Borrowings equal to (x) 100% of the amount of the Net Cash
Proceeds in respect of any sale, lease, transfer or other
disposition of any property or assets of the Borrower or any of
its Subsidiaries referred to in subclause (b)(i)(A) above to the
extent such Net Cash Proceeds have not been reinvested within the
applicable reinvestment period as provided in
Section 5.02(e)(vi); (y) the first $150,000,000 of Net Cash
Proceeds from the incurrence or issuance by the Borrower or any
of its Subsidiaries of all Debt referred to in subclause
(b)(i)(B) above plus 50% of any such Net Cash Proceeds in excess
of $150,000,000; and (z) 50% of the amount of the Net Cash
Proceeds of the issuance or sale by the Borrower of any Equity
Interests other than common Equity Interests and 25% of the
amount of Net Cash Proceeds of the issuance or sale by the
Borrower of any common Equity Interests referred to in subclause
(b)(i)(C) above, and in the case of Net Cash Proceeds from the
issuance or sale by any Subsidiary of the Borrower of Equity
Interests
43
referred to in subclause (b)(i)(C) above other than common Equity
Interests, 50% of an amount equal to the Borrower's Percentage of
such Net Cash Proceeds and in the case of Net Cash Proceeds from
the issuance by any Subsidiary of the Borrower of common Equity
Interests referred to in subclause (b)(i)(C) above, 25% of an
amount equal to the Borrower's Percentage of such Net Cash
Proceeds. Each prepayment of advances required to be made
pursuant to this subclause (i) shall first be applied on a pro
rata basis between the Term Facilities, and with respect to each
Term Facility, applied on a pro rata basis against the respective
principal repayment installments thereof, and thereafter applied
to the Revolving Credit Facility in the manner set forth in this
Section 2.06(b).
(ii) The Borrower shall, on each Business Day, prepay an
aggregate principal amount of the Revolving Credit Advances comprising
part of the same Borrowings, the Letter of Credit Advances and the
Swing Line Advances and, if applicable, deposit an amount into the L/C
Cash Collateral Account equal to the amount by which (A) the sum of
(1) the aggregate principal amount of all Revolving Credit Advances,
Letter of Credit Advances and Swing Line Advances outstanding on such
Business Day and (2) the aggregate Available Amount of all Letters of
Credit outstanding on such Business Day exceeds (B) the Revolving
Credit Facility on such Business Day (after giving effect to any
permanent reduction thereof pursuant to Section 2.05 on such Business
Day).
(iii) The Borrower shall, on each Business Day, pay to the
Administrative Agent for deposit into the L/C Cash Collateral Account
an amount sufficient to cause the aggregate amount on deposit in the
L/C Cash Collateral Account on such Business Day to equal the amount
by which (A) the aggregate Available Amount of all Letters of Credit
outstanding on such Business Day exceeds (B) the Letter of Credit
Facility on such Business Day (after giving effect to any permanent
reduction thereof pursuant to Section 2.05 on such Business Day).
(iv) Prepayments of the Revolving Credit Facility made pursuant
to clause (i), (ii), or (iii) of this Section 2.06(b), first, shall be
applied to prepay Letter of Credit Advances outstanding at such time
until all such Letter of Credit Advances are paid in full, second,
shall be applied to prepay Swing Line Advances outstanding at such
time until all such Swing Line Advances are paid in full, third, shall
be applied to prepay Revolving Credit Advances comprising part of the
same Borrowings and outstanding at such time until all such Revolving
Credit Advances are paid in full and, fourth, shall be deposited into
the L/C Cash Collateral Account to cash collateralize 100% of the
Available Amount of all Letters of Credit outstanding at such time;
and, in the case of prepayments of the Revolving Credit Facility
required pursuant to clause (i) or (ii) of this Section 2.06(b), the
amount remaining, if any, after the prepayment in full of all Advances
outstanding at such time and the 100% cash collateralization of the
aggregate Available Amount of all Letters of Credit outstanding at
such time (the sum of such prepayment amounts, cash collateralization
amounts and remaining amount being, collectively, the "Reduction
Amount") may be retained by the Borrower for use in the ordinary
course of its business, and the Letter of Credit Facility shall be
automatically and permanently reduced as set forth in Section
2.05(b)(iii). Upon the drawing of any Letter of Credit for which funds
are on deposit in the L/C Cash Collateral Account, such
44
funds shall be applied (without any further action by or notice to or
from the Borrower or any other Loan Party) to reimburse the Issuing
Bank or the Revolving Credit Lenders, as applicable.
(c) Prepayments to Include Accrued Interest, Etc. All prepayments
--------------------------------------------
under this Section 2.06 shall be made together with (i) accrued and unpaid
interest to the date of such prepayment on the principal amount so prepaid
and (ii) in the case of any such prepayment of a Eurodollar Rate Advance on
a date other than the last day of an Interest Period therefor, any amounts
owing in respect of such Eurodollar Rate Advance pursuant to 8.04(c).
SECTION 2.07. Interest
- ----------------------
(a) Scheduled Interest. The Borrower shall pay interest on the unpaid
------------------
principal amount of each Advance owing to each Lender Party from the date
of such Advance until such principal amount shall be paid in full, at the
following rates per annum:
(i) Base Rate Advances. During such periods as such Advance is
------------------
a Base Rate Advance, a rate per annum equal at all times to the sum of (A)
the Base Rate in effect from time to time and (B) the Applicable Margin for
such Base Rate Advance in effect from time to time, payable in arrears
quarterly on the last day of each March, June, September and December
during such periods and on the date such Base Rate Advance shall be
Converted or paid in full.
(ii) Eurodollar Rate Advances. During such periods as such
------------------------
Advance is a Eurodollar Rate Advance, a rate per annum equal at all times
during each Interest Period for such Eurodollar Rate Advance to the sum of
(A) the Eurodollar Rate for such Eurodollar Rate Advance for such Interest
Period and (B) the Applicable Margin for such Advance in effect on the
first day of such Interest Period, payable in arrears on the last day of
such Interest Period and, if such Interest Period has a duration of more
than three months, on each day that occurs during such Interest Period
every three months from the first day of such Interest Period and on the
date such Eurodollar Rate Advance shall be Converted or paid in full.
(iii) Default Interest. Upon the occurrence and during the
----------------
continuance of a Default under Section 6.01(a) or 6.01(f) or an Event of
Default, the Administrative Agent may, and upon the request of the Required
Lenders shall, require that the Borrower pay interest on (i) the unpaid
principal amount of each Advance owing to each Lender Party, payable in
arrears on the dates referred to in clause (i) or (ii) of Section 2.07(a),
as applicable, and on demand, at a rate per annum equal at all times to 2%
per annum above the rate per annum required to be paid on such Advance
pursuant to clause (i) or (ii) of Section 2.07(a), as applicable, and (ii)
to the fullest extent permitted by applicable law, the amount of any
interest, fee or other amount payable under this Agreement or any other
Loan Document to any Agent or any Lender Party that is not paid when due,
from the date such amount shall be due until such amount shall be paid in
full, payable in arrears on the date such amount shall be paid in full and
on demand, at a rate per annum equal at all times to 2% per annum above the
rate per annum required to be paid, in the case of interest, on the Type of
Advance on which such interest has accrued pursuant to clause (i) or (ii)
of Section 2.07(a), as applicable, and, in all other cases, on Base Rate
Advances pursuant to clause (i) of Section 2.07(a).
45
(b) Notice of Interest Rate. Promptly after receipt of a Notice of
-----------------------
Borrowing pursuant to Section 2.02(a), a Notice of Conversion pursuant to
Section 2.09(a) or a notice of selection of an Interest Period pursuant to
the definition of "Interest Period" set forth in Section 1.01, the
Administrative Agent shall give notice to the Borrower and each Appropriate
Lender of the applicable interest rate determined by the Administrative
Agent for purposes of clause (i) or (ii) of Section 2.07(a), as applicable.
SECTION 2.08. Fees.
- ------------------
(a) Commitment Fee. The Borrower shall pay to the Administrative
--------------
Agent for the account of the Lenders a commitment fee (the "Commitment
Fee"), from May 4, 2001 in the case of each Initial Lender and from the
effective date specified in the Assignment and Acceptance pursuant to which
it became a Lender in the case of each other Lender until, in each case,
the Termination Date, payable in arrears on the date of the Initial
Extension of Credit, thereafter quarterly on the last Business Day of each
March, June, September and December, commencing June 30, 2001, and on the
Termination Date, at the Applicable Percentage in effect from time to time
on the sum of (i) the average daily Unused Revolving Credit Commitment of
each Revolving Credit Lender plus (ii) such Revolving Credit Lender's Pro
Rata Share of the average daily outstanding Swing Line Advances during such
quarter; provided, however, that no Commitment Fee shall accrue on any of
the Commitments of a Defaulting Lender so long as such Lender shall be a
Defaulting Lender.
(b) Letter of Credit Fees, Etc.
--------------------------
(i) The Borrower shall pay to the Administrative Agent for the
account of each Revolving Credit Lender a commission, payable in
arrears quarterly on the last Business Day of each March, June,
September and December, commencing June 30, 2001, and on the earliest
to occur of the full drawing, expiration, termination or cancellation
of any such Letter of Credit and on the Termination Date, on such
Revolving Credit Lender's Pro Rata Share of the average daily
aggregate Available Amount of all Letters of Credit outstanding from
time to time during such quarter at the rate per annum equal to the
Applicable Margin in effect at such time for Eurodollar Rate Advances
under the Revolving Credit Facility. Upon the occurrence and during
the continuance of a Default under Section 6.01(a) or 6.01(f) or an
Event of Default, the amount of commission payable by the Borrower
under this clause (b)(i) shall be increased by 2% per annum.
(ii) The Borrower shall pay to the Issuing Bank, for its own
account, such commissions, issuance fees, fronting fees, transfer fees
and other fees and charges in connection with the issuance or
administration of each Letter of Credit as the Borrower and the
Issuing Bank shall from time to time agree.
(c) Agents' Fees. The Borrower shall pay to the Administrative Agent
------------
for the account of the Agents such fees as may from time to time be agreed
between the Borrower and the Administrative Agent.
SECTION 2.09. Conversion of Advances.
------------------------------------
(a) Optional. The Borrower may on any Business Day, upon notice given
--------
to the Administrative Agent not later than (i) 2:00 P.M. (Charlotte, North
Carolina time) on the third Business Day prior to the date of the proposed
Conversion in the case of a Conversion of Base
46
Rate Advances into Eurodollar Rate Advances or of Eurodollar Rate Advances
of one Interest Period into Eurodollar Rate Advances of another Interest
Period, or (ii) 2:00 P.M. (Charlotte, North Carolina time) on the Business
Day immediately preceding the date of the proposed Conversion in the case
of a Conversion of Eurodollar Rate Advances into Base Rate Advances;
provided, however, that in each case:
(A) any Conversion of Base Rate Advances into Eurodollar Rate
Advances shall be made only if no Default under Section 6.01(f) or
Event of Default shall have occurred and be continuing and shall be in
an amount not less than the minimum amount specified in Section
2.01(c);
(B) no Conversion of any Advances shall result in more separate
Borrowings than permitted under Section 2.02(c); and
(C) each Conversion of Advances comprising part of the same
Borrowing under any Facility shall be made among the Appropriate
Lenders in accordance with their respective Pro Rata Shares of such
Borrowing.
Each notice of a Conversion (a "Notice of Conversion") shall be delivered
by telephone, confirmed immediately in writing, or by telecopier, in
substantially the form of Exhibit B-3 hereto, shall be duly executed by a
Responsible Officer of the Borrower, and shall, within the restrictions set
forth in the immediately preceding sentence, specify therein:
(1) the requested date of such Conversion (which shall be a Business
Day);
(2) the Advances requested to be Converted; and
(3) if such Conversion is into Eurodollar Rate Advances, the
requested duration of the Interest Period for such Eurodollar
Rate Advances.
The Administrative Agent shall give each of the Appropriate Lenders prompt
notice of each Notice of Conversion received by it, by telecopier. Each
Notice of Conversion shall be irrevocable and binding on the Borrower.
(b) Mandatory.
---------
(i) On the last day of any Interest Period during which the
aggregate unpaid principal amount of Eurodollar Rate Advances
comprising any Borrowing shall be reduced, by payment or prepayment or
otherwise, to less than $5,000,000, such Advances shall automatically
Convert into Base Rate Advances.
(ii) If the Borrower shall fail to select the duration of any
Interest Period for any Eurodollar Rate Advances in accordance with
the provisions contained in the definition of "Interest Period" set
forth in Section 1.01, the Administrative Agent will forthwith so
notify the Borrower and the Appropriate Lenders, whereupon each such
Eurodollar Rate Advance will automatically, on the last day of the
then existing Interest Period therefor, Convert into a Base Rate
Advance.
(iii) Upon the occurrence and during the continuance of any
Default under Section 6.01(f) or any Event of Default, (A) each
Eurodollar Rate Advance will automatically, on the last day of the
then existing Interest Period therefor, Convert into a
47
Base Rate Advance and (B) the obligation of the Lenders to make, or to
Convert Advances into, Eurodollar Rate Advances shall be suspended.
SECTION 2.10. Increased Costs, Etc.
----------------------------------
(a) If, after the date hereof, the adoption of any applicable
Requirement of Law, or any change in any applicable Requirement of Law, or
any change in the interpretation or administration thereof by any
Governmental Authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender (or
its Applicable Lending Office) with any request or directive (whether or
not having the force of law) of any such Governmental Authority, central
bank or comparable agency:
(i) subject such Lender (or its Applicable Lending Office) to
any tax, duty, or other charge with respect to any Eurodollar Rate
Advances, any of its Notes, or its obligation to make any Eurodollar
Rate Advances, or change the basis of taxation of any amounts payable
to such Lender (or its Applicable Lending Office) under this Agreement
or its Note in respect of any Eurodollar Rate Advances (other than,
for purposes of this Section 2.10, any such increased costs resulting
from (A) Taxes or Other Taxes (as to which Section 2.13 shall govern),
and (B) changes in the basis of taxation of overall net income or
overall gross income by the United States of America or the
jurisdiction under the laws of which such Lender Party has its
principal office or such Applicable Lending Office);
(ii) shall impose, modify, or deem applicable any reserve,
special deposit, assessment, or similar requirement (other than any
change by way of the imposition of or increase in reserve requirements
included in the Eurodollar Rate Reserve Percentage) relating to any
extensions of credit or other assets of, or any deposits with or other
liabilities or commitments of, such Lender (or its Applicable Lending
Office), including the Commitments of such Lender hereunder; or
(iii) shall impose on such Lender (or its Applicable Lending
Office) or on the United States market for certificates of deposit or
the London interbank market any other condition affecting this
Agreement or its Note or any of such extensions of credit or
liabilities or commitments;
and the result of any of the foregoing is to increase the cost to such
Lender (or its Applicable Lending Office) of making, Converting into or
maintaining any Eurodollar Rate Advances or to reduce any sum received or
receivable by such Lender (or its Applicable Lending Office) under this
Agreement or its Note with respect to any Eurodollar Rate Advances, then
the Borrower shall pay to such Lender on demand such amount or amounts as
will compensate such Lender for such increased cost or reduction. Each
Lender shall promptly notify the Borrower and the Administrative Agent of
any event of which it has knowledge, occurring after the date hereof, which
will entitle such Lender to compensation pursuant to this Section 2.10(a)
and will designate a different Applicable Lending Office if such
designation will avoid the need for, or reduce the amount of, such
compensation and will not, in the judgment of such Lender, be otherwise
disadvantageous to it (other than by reason of administrative convenience
or preference). Any Lender claiming compensation under this Section 2.10(a)
shall furnish to the Borrower and the Administrative Agent a statement
setting forth the additional amount or amounts to be paid to it hereunder
(including the method of calculation), which shall be conclusive and
binding, absent manifest error. In determining such amount, such Lender may
use any reasonable averaging and attribution methods. If any Lender
requests compensation by the
48
Borrower under this Section 2.10(a), the Borrower may, by notice to such
Lender (with a copy to the Administrative Agent), suspend the obligation of
such Lender to make or Convert Eurodollar Rate Advances, or to Convert Base
Rate Advances into Eurodollar Rate Advances, until the event or condition
giving rise to such request ceases to be in effect (in which case the
provisions of Section 2.10(e) shall be applicable); provided that such
suspension shall not affect the right of such Lender to receive the
compensation so requested.
(b) If, after the date hereof, any Lender shall have determined that
the adoption of any applicable Requirement of Law regarding capital
adequacy or any change therein or in the interpretation or administration
thereof by any Governmental Authority, central bank or comparable agency
charged with the interpretation or administration thereof, or any request
or directive regarding capital adequacy (whether or not having the force of
law) of any such Governmental Authority, central bank or comparable agency,
has or would have the effect of reducing the rate of return on the capital
of such Lender or any corporation controlling such Lender as a consequence
of such Lender's obligations hereunder to a level below that which such
Lender or such corporation could have achieved but for such adoption,
change, request or directive (taking into consideration its policies with
respect to capital adequacy), then from time to time upon demand the
Borrower shall pay to such Lender such additional amount or amounts as will
compensate such Lender for such reduction. Each Lender shall promptly
notify the Borrower and the Administrative Agent of any event of which it
has knowledge, occurring after the date hereof, which will entitle such
Lender to compensation pursuant to this Section 2.10(b) and will designate
a different Applicable Lending Office if such designation will avoid the
need for, or reduce the amount of, such compensation and will not, in the
judgment of such Lender, be otherwise disadvantageous to it. Any Lender
claiming compensation under this Section 2.10(b) shall furnish to the
Borrower and the Administrative Agent a statement setting forth the
additional amount or amounts to be paid to it hereunder (including the
method of calculation), which shall be conclusive and binding, absent
manifest error. In determining such amount, such Lender may use any
reasonable averaging and attribution methods.
(c) If, on or prior to the first day of any Interest Period for any
Eurodollar Rate Advance, the Required Lenders at any time notify the
Administrative Agent that the Eurodollar Rate for any Interest Period for
such Advances will not adequately and fairly reflect the cost to the
Appropriate Lenders of funding their Eurodollar Rate Advances for such
Interest Period, the Administrative Agent shall promptly so notify the
Borrower and the Appropriate Lenders, whereupon (i) each such Eurodollar
Rate Advance will automatically, on the last day of the then existing
Interest Period therefor, Convert into a Base Rate Advance and (ii) the
obligation of the Appropriate Lenders to make, or to Convert Advances into,
Eurodollar Rate Advances shall be suspended until the Administrative Agent
shall notify the Borrower (promptly following notice from the Appropriate
Lenders) that such Lenders have determined that the circumstances causing
such suspension no longer exist.
(d) Notwithstanding any other provision of this Agreement, in the
event that it becomes unlawful for any Lender or its Applicable Lending
Office to make, maintain, or fund Eurodollar Rate Advances hereunder, then
such Lender shall promptly notify the Borrower thereof and such Lender's
obligation to make Eurodollar Rate Advances and to Convert Base Rate
Advances into Eurodollar Rate Advances shall be suspended until such time
as such Lender may again make, maintain and fund Eurodollar Rate Advances
(in which case the provisions of Section 2.10(e) shall be applicable).
(e) If the obligation of any Lender to make a Eurodollar Rate Advance
or to Convert Base Rate Advances into Eurodollar Rate Advances shall be
suspended pursuant to any other
49
provision of this Section 2.10, such Lender's suspended Eurodollar Rate
Advances shall be automatically Converted into Base Rate Advances on the
last day(s) of the then current Interest Period(s) therefor (or, in the
case of a Conversion required by Section 2.10(d), on such earlier date as
such Lender may specify to the Borrower with a copy to the Administrative
Agent) and, unless and until such Lender gives notice as provided below
that the circumstances specified in such other provision of this Section
2.10 that gave rise to such Conversion no longer exist:
(i) to the extent that such Lender's suspended Eurodollar Rate
Advances have been so Converted, all payments and prepayments of
principal that would otherwise be applied to such Lender's suspended
Eurodollar Rate Advances shall be applied instead to its Base Rate
Advances; and
(ii) all Eurodollar Rate Advances that would otherwise be made
or Converted by such Lender shall be made instead as (or shall remain
as) Base Rate Advances.
If such Lender gives notice to the Borrower (with a copy to the
Administrative Agent) that the circumstances otherwise specified in this
Section 2.10 that gave rise to the suspension of the making of Eurodollar
Rate Advances by such Lender no longer exist (which such Lender agrees to
do promptly upon such circumstances ceasing to exist) at a time when
Eurodollar Rate Advances by other Lenders with Commitments under the same
Facility are outstanding, such Lender's Base Rate Advances shall be
automatically Converted, on the first day(s) of the next succeeding
Interest Period(s) therefor, to the extent necessary into Eurodollar Rate
Advances.
SECTION 2.11. Evidence of Debt.
--------------------------------
(a) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the debt of the Borrower to such Lender
resulting from each Advance owing to such Lender from time to time,
including the amounts of principal and interest payable and paid to such
Lender from time to time hereunder.
(b) The Register maintained by the Administrative Agent pursuant to
Section 8.07(e) shall include accounts for each Lender, in which accounts
(taken together) shall be recorded (i) the date and amount of each Advance
made hereunder, (ii) the terms of each Assignment and Acceptance delivered
to and accepted by it, (iii) the amount of any principal or interest due
and payable or to become due and payable from the Borrower to each Lender
hereunder and (iv) the amount of any sum received by the Administrative
Agent from the Borrower hereunder and each Lender's share thereof.
(c) The entries made as provided in this Section 2.11 shall be
conclusive and binding for all purposes, absent manifest error.
SECTION 2.12. Payments and Computations.
-----------------------------------------
(a) The Borrower shall make each payment hereunder and under the
Notes, irrespective of any right of counterclaim, deduction or set-off
(except as otherwise provided in Section 2.16), not later than 2:00 P.M.
(Charlotte, North Carolina time) on the day when due in U.S. dollars to the
Administrative Agent at the Administrative Agent's Account in same day
funds, with payments received by the Administrative Agent after such time
being deemed to have been received on the next succeeding Business Day. The
Administrative Agent will promptly thereafter cause like funds to be
distributed (i) if such payment by the Borrower is in respect of
50
principal, interest, Commitment Fees or any other Obligation then due and
payable hereunder and under the Notes to more than one Lender Party, to
such Lender Parties for the accounts of their respective Applicable Lending
Offices in accordance with their respective Pro Rata Shares of the amounts
of such respective Obligations due and payable to such Lender Parties at
such time and (ii) if such payment by the Borrower is in respect of any
Obligation then due and payable hereunder solely to one Lender Party, to
such Lender Party for the account of its Applicable Lending Office, in each
case to be applied in accordance with the terms of this Agreement. Upon its
acceptance of an Assignment and Acceptance and recording of the information
contained therein in the Register pursuant to Section 8.07(d), from and
after the effective date of such Assignment and Acceptance, the
Administrative Agent shall make all payments hereunder and under the Notes
in respect of the interest assigned thereby to the Lender Party assignee
thereunder, and the parties to such Assignment and Acceptance shall make
all appropriate adjustments in such payments for periods prior to such
effective date directly between themselves.
(b) The Borrower hereby authorizes each Lender Party, if and to the
extent payment owed to such Lender Party is not made when due hereunder or,
in the case of a Lender, under the Note held by such Lender, to charge from
time to time against any or all of the Borrower's accounts with such Lender
Party any amount so due.
(c) All computations of interest based on the Base Rate shall be made
by the Administrative Agent on the basis of a year of 365 or 366 days, as
the case may be, and all computations of interest based on the Eurodollar
Rate or the Federal Funds Rate and of fees and Letter of Credit commissions
shall be made by the Administrative Agent on the basis of a year of 360
days, in each case for the actual number of days (including the first day
but excluding the last day) occurring in the period for which such
interest, fees or commissions are payable. Each determination by the
Administrative Agent of an interest rate, fee or commission hereunder shall
be conclusive and binding for all purposes, absent manifest error.
(d) Whenever any payment hereunder or under the Notes shall be stated
to be due on a day other than a Business Day, such payment shall be made on
the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest or Commitment
Fees or Letter of Credit commissions or fees, as the case may be; provided,
however, that, if such extension would cause payment of interest on or
principal of Eurodollar Rate Advances to be made in the next succeeding
calendar month, such payment shall be made on the immediately preceding
Business Day.
(e) Unless the Borrower or any Lender Party has notified the
Administrative Agent prior to the date any payment is required to be made
by it to the Administrative Agent hereunder, that the Borrower or such
Lender Party, as the case may be, will not make such payment, the
Administrative Agent may assume that the Borrower or such Lender Party, as
the case may be, has timely made such payment and may (but shall not be so
required to), in reliance thereon, make available a corresponding amount to
the Person entitled thereto. If and to the extent that such payment was not
in fact made to the Administrative Agent in immediately available funds,
then:
(i) if the Borrower failed to make such payment, each Lender
Party shall forthwith on demand repay to the Administrative Agent the
portion of such assumed payment that was made available to such Lender
Party in immediately available funds, together with interest thereon
in respect of each day from and including the date such amount was
made available by the Administrative Agent to such Lender Party to the
date
51
such amount is repaid to the Administrative Agent in immediately
available funds, at the Federal Funds Rate from time to time in
effect; and
(ii) if any Lender Party failed to make such payment, such
Lender Party shall forthwith on demand pay to the Administrative Agent
the amount thereof in immediately available funds, together with
interest thereon for the period from the date such amount was made
available by the Administrative Agent to the Borrower to the date such
amount is recovered by the Administrative Agent (the "Compensation
Period") at a rate per annum equal to the Federal Funds Rate from time
to time in effect. If such Lender Party pays such amount to the
Administrative Agent, then such amount shall constitute such Lender
Party's Advance included in the applicable Borrowing. If such Lender
Party does not pay such amount forthwith upon the Administrative
Agent's demand therefor, the Administrative Agent may make a demand
therefor upon the Borrower, and the Borrower shall pay such amount to
the Administrative Agent, together with interest thereon for the
Compensation Period at a rate per annum equal to the rate of interest
applicable to the applicable Borrowing. Nothing herein shall be deemed
to relieve any Lender Party from its obligation to fulfill its
applicable Commitment or to prejudice any rights which the
Administrative Agent or the Borrower may have against any Lender Party
as a result of any default by such Lender Party hereunder.
A notice from the Administrative Agent to any Lender Party with respect to
any amount owing under this subsection (e) shall be conclusive, absent
manifest error.
(f) Whenever any payment received by the Administrative Agent under
this Agreement or any of the other Loan Documents is insufficient to pay in
full all amounts due and payable to the Agents and the Lender Parties under
or in respect of this Agreement and the other Loan Documents on any date,
such payment shall be distributed by the Administrative Agent and applied
by the Agents and the Lender Parties in the following order of priority:
(i) first, to the payment of all of the fees, indemnification
payments, costs and expenses that are due and payable to the Agents
(solely in their respective capacities as Agents) under or in respect
of this Agreement and the other Loan Documents on such date, ratably
based upon the respective aggregate amounts of all such fees,
indemnification payments, costs and expenses owing to the Agents on
such date;
(ii) second, to the payment of all of the fees, indemnification
payments, costs and expenses that are due and payable to the Issuing
Bank and the Swing Line Bank (solely in their respective capacities as
such) under or in respect of this Agreement and the other Loan
Documents on such date, ratably based upon the respective aggregate
amounts of all such fees, indemnification payments, costs and expenses
owing to the Issuing Bank and the Swing Line Bank on such date;
(iii) third, to the payment of all of the indemnification
payments, costs and expenses that are due and payable to the Lenders
under Section 8.04 hereof, Section 12 of the Subsidiary Guaranty,
Section 23 of the Security Agreement and any similar section of any of
the other Loan Documents on such date, ratably based upon the
respective aggregate amounts of all such indemnification payments,
costs and expenses owing to the Lenders on such date;
(iv) fourth, to the payment of all of the amounts that are due
and payable to the Administrative Agent and the Lender Parties under
Sections 2.10 and 2.13 hereof and
52
Section 5 of the Subsidiary Guaranty on such date, ratably based upon
the respective aggregate amounts thereof owing to the Administrative
Agent and the Lender Parties on such date;
(v) fifth, to the payment of all of the accrued and unpaid
interest on the Obligations of the Borrower under or in respect of the
Loan Documents that is due and payable to the Administrative Agent and
the Lender Parties under Section 2.07(a) on such date and all of the
fees that are due and payable to the Lenders under Section 2.08(a) on
such date, ratably based upon the respective aggregate Commitments of
the Lenders under the Facilities on such date;
(vi) sixth, to the payment of the principal amount of all of the
outstanding Advances that is due and payable to the Administrative
Agent and the Lender Parties on such date, ratably based upon the
respective aggregate amounts of all such principal owing to the
Administrative Agent and the Lender Parties on such date; and
(vii) seventh, to the payment of all other Obligations of the
Loan Parties owing under or in respect of the Loan Documents that are
due and payable to the Administrative Agent and the other Secured
Parties on such date, ratably based upon the respective aggregate
amounts of all such Obligations owing to the Administrative Agent and
the other Secured Parties on such date.
If the Administrative Agent receives funds for application to the
Obligations of the Loan Parties under or in respect of the Loan Documents
under circumstances for which the Loan Documents do not specify the
Advances or the Facility to which, or the manner in which, such funds are
to be applied, the Administrative Agent may, but shall not be obligated to,
elect to distribute such funds to each of the Lender Parties in accordance
with such Lender Party's Pro Rata Share of the sum of (A) the aggregate
principal amount of all Advances outstanding at such time and (b) the
aggregate Available Amount of all Letters of Credit outstanding at such
time, in repayment or prepayment of such of the outstanding Advances or
other Obligations then owing to such Lender Party, and, in the case of the
Term Facility, for application to such principal repayment installments
thereof, as the Administrative Agent shall direct.
SECTION 2.13. Taxes.
--------------------
(a) Any and all payments by the Borrower to or for the account of any
Lender Party or any Agent hereunder or under any other Loan Document shall
be made, in accordance with Section 2.12 or the applicable provisions of
such other Loan Document, if any, free and clear of and without deduction
for any and all present or future taxes, levies, imposts, deductions,
charges or withholdings, and all liabilities with respect thereto,
excluding, in the case of each Lender Party and each Agent, taxes that are
imposed on its overall net income by the United States and taxes that are
imposed on its overall net income (and franchise taxes imposed in lieu
thereof) by the state or foreign jurisdiction under the laws of which such
Lender Party or such Agent, as the case may be, is organized or is a
resident, or has a fixed place of business or a permanent establishment, or
any political subdivision of any of the foregoing, and, in the case of each
Lender Party, taxes that are imposed on its overall net income (and
franchise taxes imposed in lieu thereof) by the state or foreign
jurisdiction of either of its Applicable Lending Offices or any political
subdivision thereof (all such nonexcluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities in respect of payments
hereunder or under the Notes being, collectively, "Taxes"). If the Borrower
shall be required under applicable Requirements of Law to deduct any Taxes
from or in respect of any sum payable hereunder or under any other Loan
53
Document to any Lender Party or any Agent, (i) the sum payable by the
Borrower shall be increased as necessary so that after the Borrower and the
Administrative Agent have been made all required deductions (including
deductions applicable to additional sums payable under this Section 2.13)
such Lender Party or such Agent, as the case may be, receives an amount
equal to the sum it would have received had no such deductions been made,
(ii) the Borrower shall make such deductions, (iii) the Borrower shall pay
the full amount deducted to the relevant taxation authority or other
Governmental Authority in accordance with applicable Requirements of Law
and (iv) within 30 days after the date of any payment of Taxes, the
Borrower shall furnish to the Administrative Agent, at its address referred
to in Section 8.02, the original or a certified copy of a receipt
evidencing payment thereof, to the extent such a receipt is issued
therefor, or other written proof of payment thereof that is reasonably
satisfactory to the Administrative Agent.
(b) In addition, the Borrower agrees to pay any present or future
stamp, recording or documentary, excise, property or similar taxes, charges
or levies that arise from any payment made hereunder or under any other
Loan Document or from the execution, delivery of, or registration of, any
performance under, or otherwise with respect to, this Agreement or any
other Loan Document (collectively, "Other Taxes").
(c) The Borrower shall indemnify each of the Lender Parties and each
of the Agents for, and hold each of them harmless against, the full amount
of Taxes and Other Taxes, and the full amount of taxes of any kind imposed
by any jurisdiction on amounts payable under this Section 2.13, imposed on
or paid by such Lender Party or such Agent, as the case may be, and any
liability (including penalties, additions to tax, interest and expenses)
arising therefrom or with respect thereto. The indemnity by the Borrower
provided for in this subsection (c) shall apply and be made whether or not
the Taxes or Other Taxes for which indemnification hereunder is sought have
been correctly or legally asserted; provided, however, that such Lender or
such Agent seeking such indemnification shall take all reasonable actions
(consistent with its internal policy and legal and regulatory restrictions)
requested by the Borrower to assist the Borrower in recovering the amounts
paid thereby pursuant to this subsection (c) from the relevant taxation
authority or other Governmental Authority. Amounts payable by the Borrower
under the indemnity set forth in this subsection (c) shall be paid within
30 days from the date on which the applicable Lender or Agent, as the case
may be, makes written demand therefor (including the method of
calculation).
(d) In the case of any payment hereunder or under any other Loan
Document by or on behalf of the Borrower through an account or branch
outside the United States, or on behalf of the Borrower by a payor that is
not a United States person, if the Borrower determines that no Taxes are
payable in respect thereof, the Borrower shall furnish, or shall cause such
payor to furnish, to the Administrative Agent, at its address referred to
in Section 8.02, an opinion of counsel reasonably acceptable to the
Administrative Agent stating that such payment is exempt from Taxes. For
purposes of this subsection (d) and subsection (e) of this Section 2.13,
the terms "United States" and "United States person" shall have the
meanings specified in Section 7701 of the Internal Revenue Code.
(e) Each Lender Party organized under the laws of a jurisdiction
outside the United States shall, on or prior to the date of its execution
and delivery of this Agreement in the case of each Initial Lender, the
Swing Line Bank or the Initial Issuing Bank, as the case may be, and on or
prior to the date of the Assignment and Acceptance pursuant to which it
becomes a Lender Party in the case of each other Lender Party, and from
time to time thereafter as reasonably requested in writing by the Borrower
(but only so long thereafter as such Lender Party remains lawfully able to
do so), provide each of the Administrative Agent and the Borrower with two
54
original Internal Revenue Service forms W-8BEN, W-8ECI or W-8IMY, or in the
case of a Lender Party that has certified in writing to the Administrative
Agent that it is claiming exemption from United States withholding tax
under Section 871(h) or 881(c) of the Internal Revenue Code with respect to
payments of "portfolio interest" from W-8BEN), (and, if such Lender Party
delivers a form W-8BEN, a certificate representing that such Lender Party
is not (i) a "bank" for purposes of Section 881(c) of the Internal Revenue
Code, (ii) a ten-percent shareholder (within the meaning of Section
871(h)(3)(B) of the Internal Revenue Code) of the Borrower or (iii) a
controlled foreign corporation related to the Borrower (within the meaning
of Section 864(d)(4) of the Internal Revenue Code)), as appropriate, or any
successor or other form prescribed by the Internal Revenue Service,
certifying that such Lender Party is exempt from or entitled to a reduced
rate of United States withholding tax on payments pursuant to this
Agreement or any other Loan Document or, in the case of a Lender Party
providing a form W-8BEN, certifying that such Lender Party is a foreign
corporation, partnership, estate or trust. If any such forms provided by a
Lender Party at the time such Lender Party first becomes a party to this
Agreement indicate a United States interest withholding tax rate in excess
of zero, withholding tax at such rate shall be considered excluded from
Taxes unless and until such Lender Party provides the appropriate form
certifying that a lesser rate applies, whereupon withholding tax at such
lesser rate only shall be considered excluded from Taxes solely for the
periods governed by such forms. However, if at the date of the Assignment
and Acceptance pursuant to which a Lender Party becomes a party to this
Agreement, the Lender Party assignor was entitled to payments under
subsection (a) of this Section 2.13 in respect of United States withholding
tax with respect to interest paid at such date, then, to such extent, the
term Taxes shall include (in addition to withholding taxes that may be
imposed in the future or other amounts otherwise includable in Taxes)
United States withholding tax, if any, applicable with respect to the
Lender Party assignee on such date. None of the Lender Parties shall be
entitled to payment pursuant to subsection (a) or (c) of this Section 2.13
with respect to any additional Taxes that result solely and directly from a
change in either of the Applicable Lending Offices of such Lender Party
(other than any such additional Taxes that are imposed as a result of a
change in the applicable Requirements of Law, or in the interpretation of
application thereof, occurring after the date of such change), unless such
change is made pursuant to the terms of Section 2.10(e) or subsection (g)
this Section 2.13 or as a result of a request therefor by the Borrower.
(f) For any period with respect to which a Lender Party has failed to
provide the Borrower with the appropriate form, certificate or other
document described in subsection (e) of this Section 2.13 (other than if
such failure is due to a change in the applicable Requirements of Law, or
in the interpretation or application thereof, occurring after the date on
which a form, certificate or other document originally was required to be
provided or if such form, certificate or other document otherwise is not
required under subsection (e) of this Section 2.13), such Lender Party
shall not be entitled to indemnification under subsection (a) or (c) of
this Section 2.13 with respect to Taxes imposed by the United States by
reason of such failure; provided, however, that should a Lender Party
become subject to Taxes because of its failure to deliver a form,
certificate or other document required hereunder, the Borrower shall take
such steps as such Lender Party shall reasonably request to assist such
Lender Party in recovering such Taxes.
(g) Each of the Lender Parties hereby agrees that, upon the
occurrence of any circumstances entitling such Lender Party to additional
amounts pursuant to this Section 2.13, such Lender Party shall use
reasonable efforts (consistent with its internal policy and legal and
regulatory restrictions) to designate a different Applicable Lending Office
if the making of such a change would avoid the need for, or reduce the
amount of, any such additional amounts that may thereafter accrue and would
not, in the reasonable judgment of such Lender Party, be otherwise
55
disadvantageous to such Lender Party (other than by reason of
administrative convenience or preference).
SECTION 2.14. Sharing of Payments, Etc. If any Lender Party shall obtain
---------------------------------------
at any time any payment (whether voluntary, involuntary, through the exercise of
any right of setoff, or otherwise) (a) on account of Obligations due and payable
to such Lender Party under or in respect of this Agreement or any of the other
Loan Documents at such time in excess of its ratable share (according to the
proportion of (i) the amount of such Obligations due and payable to such Lender
Party at such time (other than pursuant to Section 2.10, 2.13, 8.04 or 8.07) to
(ii) the aggregate amount of the Obligations due and payable to all Lender
Parties at such time) of payments on account of the Obligations due and payable
to all Lender Parties under or in respect of this Agreement and the other Loan
Documents at such time obtained by all the Lender Parties at such time or (b) on
account of Obligations owing (but not due and payable) to such Lender Party
under or in respect of this Agreement or any of the other Loan Documents at such
time in excess of its ratable share (according to the proportion of (i) the
amount of such Obligations owing to such Lender Party at such time (other than
pursuant to Section 2.10, 2.13, 8.04 or 8.07) to (ii) the aggregate amount of
the Obligations owing (but not due and payable) to all Lender Parties under or
in respect of this Agreement and the other Loan Documents at such time) of
payments on account of the Obligations owing (but not due and payable) to all
Lender Parties under or in respect of this Agreement and the other Loan
Documents at such time obtained by all of the Lender Parties at such time, such
Lender Party shall forthwith purchase from the other Lender Parties such
interests or participating interests in the Obligations due and payable or owing
to them, as the case may be, as shall be necessary to cause such purchasing
Lender Party to share the excess payment ratably with each of them; provided,
however, that if all or any portion of such excess payment is thereafter
recovered from such purchasing Lender Party, such purchase from each other
Lender Party shall be rescinded and such other Lender Party shall repay to the
purchasing Lender Party the purchase price to the extent of such Lender Party's
ratable share (according to the proportion of (A) the purchase price paid to
such Lender Party to (B) the aggregate purchase price paid to all Lender
Parties) of such recovery, together with an amount equal to such Lender Party's
ratable share (according to the proportion of (1) the amount of such other
Lender Party's required repayment to (2) the total amount so recovered from the
purchasing Lender Party) of any interest or other amount paid or payable by the
purchasing Lender Party in respect of the total amount so recovered; provided
further that, so long as the Obligations under the Loan Documents shall not have
been accelerated, any excess payment received by any Appropriate Lender shall be
shared on a pro rata basis only with other Appropriate Lenders. The Borrower
hereby agrees that any Lender Party so purchasing an interest or participating
interest from another Lender Party pursuant to this Section 2.14 may, to the
fullest extent permitted under applicable law, exercise all its rights of
payment (including the right of setoff) with respect to such an interest or
participating interest, as the case may be, as fully as if such Lender Party
were the direct creditor of the Borrower in the amount of such an interest or
participating interest.
SECTION 2.15. Use of Proceeds. The proceeds of the Advances and issuances
------------------------------
of Letters of Credit shall be available (and the Borrower agrees that it shall
use such proceeds and Letters of Credit) solely to refinance certain Debt of the
Borrower and its Subsidiaries outstanding on the date of the Initial Extension
of Credit, for acquisitions as permitted herein and for general corporate
purposes of the Borrower and its Subsidiaries, and to pay fees and expenses
incurred in connection with the consummation of the Transaction.
SECTION 2.16. Defaulting Lenders.
---------------------------------
(a) In the event that, at any one time, (i) any Lender Party shall be
a Defaulting Lender, (ii) such Defaulting Lender shall owe a Defaulted
Advance to the Borrower and (iii) the Borrower shall be required to make
any payment hereunder or under any other Loan Document to
56
or for the account of such Defaulting Lender, then the Borrower may, so
long as no Default shall occur or be continuing at such time and to the
fullest extent permitted by applicable law, set off and otherwise apply the
Obligation of the Borrower to make such payment to or for the account of
such Defaulting Lender against the obligation of such Defaulting Lender to
make such Defaulted Advance. In the event that, on any date, the Borrower
shall so set off and otherwise apply its obligation to make any such
payment against the obligation of such Defaulting Lender to make any such
Defaulted Advance on or prior to such date, the amount so set off and
otherwise applied by the Borrower shall constitute for all purposes of this
Agreement and the other Loan Documents an Advance by such Defaulting Lender
made on the date of such setoff under the Facility pursuant to which such
Defaulted Advance was originally required to have been made pursuant to
Section 2.01. Such Advance shall be a Base Rate Advance and shall be
considered, for all purposes of this Agreement, to comprise part of the
Borrowing in connection with which such Defaulted Advance was originally
required to have been made pursuant to Section 2.01, even if the other
Advances comprising such Borrowing shall be Eurodollar Rate Advances on the
date such Advance is deemed to be made pursuant to this subsection (a). The
Borrower shall notify the Administrative Agent at any time the Borrower
exercises its right of set-off pursuant to this subsection (a) and shall
set forth in such notice (A) the name of the Defaulting Lender and the
Defaulted Advance required to be made by such Defaulting Lender and (B) the
amount set off and otherwise applied in respect of such Defaulted Advance
pursuant to this subsection (a). Any portion of such payment otherwise
required to be made by the Borrower to or for the account of such
Defaulting Lender which is paid by the Borrower, after giving effect to the
amount set off and otherwise applied by the Borrower pursuant to this
subsection (a), shall be applied by the Administrative Agent as specified
in subsection (b) or (c) of this Section 2.16.
(b) In the event that, at any one time, (i) any Lender Party shall be
a Defaulting Lender, (ii) such Defaulting Lender shall owe a Defaulted
Amount to the Administrative Agent or any of the other Lender Parties and
(iii) the Borrower shall make any payment hereunder or under any other Loan
Document to the Administrative Agent for the account of such Defaulting
Lender, then the Administrative Agent may, on its behalf or on behalf of
such other Lender Parties and to the fullest extent permitted by applicable
law, apply at such time the amount so paid by the Borrower to or for the
account of such Defaulting Lender to the payment of each such Defaulted
Amount to the extent required to pay such Defaulted Amount. In the event
that the Administrative Agent shall so apply any such amount to the payment
of any such Defaulted Amount on any date, the amount so applied by the
Administrative Agent shall constitute for all purposes of this Agreement
and the other Loan Documents payment, to such extent, of such Defaulted
Amount on such date. Any such amount so applied by the Administrative Agent
shall be retained by the Administrative Agent or distributed by the
Administrative Agent to such other Lender Parties, ratably in accordance
with the respective portions of such Defaulted Amounts payable at such time
to the Administrative Agent and such other Lender Parties and, if the
amount of such payment made by the Borrower shall at such time be
insufficient to pay all Defaulted Amounts owing at such time to the
Administrative Agent and the other Lender Parties, in the following order
of priority:
(A) first, to the Administrative Agent for any Defaulted
Amount then owing the Administrative Agent;
(B) second, to the Issuing Bank and the Swing Line Bank for
any Defaulted Amount then owing to them, in their capacities as
such, ratably in accordance with such respective Defaulted
Amounts then owing to such Issuing Bank and such Swing Line Bank;
and
57
(C) third, to any other Lender Parties for any Defaulted
Amounts then owing to such other Lender Parties, ratably in
accordance with such respective Default Amounts then owing to
such other Lender Parties; and
Any portion of such amount paid by the Borrower for the account of such
Defaulting Lender remaining, after giving effect to the amount applied by
the Administrative Agent pursuant to this subsection (b), shall be applied
by the Administrative Agent as specified in subsection (c) of this Section
2.16.
(c) In the event that, at any one time, (i) any Lender Party shall be
a Defaulting Lender, (ii) such Defaulting Lender shall not owe a Defaulted
Advance or a Defaulted Amount and (iii) the Borrower, the Administrative
Agent or any other Lender Party shall be required to pay or distribute any
amount hereunder or under any other Loan Document to or for the account of
such Defaulting Lender, then the Borrower or such other Lender Party shall
pay such amount to the Administrative Agent to be held by the
Administrative Agent, to the fullest extent permitted by applicable law, in
escrow or the Administrative Agent shall, to the fullest extent permitted
by applicable law, hold in escrow such amount otherwise held by it. Any
funds held by the Administrative Agent in escrow under this subsection (c)
shall be deposited by the Administrative Agent in an account with BofA, in
the name and under the control of the Administrative Agent, but subject to
the provisions of this subsection (c). The terms applicable to such
account, including the rate of interest payable with respect to the credit
balance of such account from time to time, shall be BofA's standard terms
applicable to escrow accounts maintained with it. Any interest credited to
such account from time to time shall be held by the Administrative Agent in
escrow under, and applied by the Administrative Agent from time to time in
accordance with the provisions of, this subsection (c). The Administrative
Agent shall, to the fullest extent permitted by applicable law, apply all
funds so held in escrow from time to time to the extent necessary to make
any Advances required to be made by such Defaulting Lender and to pay any
amount payable by such Defaulting Lender hereunder and under the other Loan
Documents to the Administrative Agent or any other Lender Party, as and
when such Advances or amounts are required to be made or paid and, if the
amount so held in escrow shall at any time be insufficient to make and pay
all such Advances and amounts required to be made or paid at such time, in
the following order of priority:
(A) first, to the Administrative Agent for any amount then due
and payable by such Defaulting Lender to the Administrative Agent
hereunder;
(B) second, to the Issuing Bank and the Swing Line Bank for any
amounts then due and payable to them hereunder, in their capacities as
such, by such Defaulting Lender, ratably in accordance with such
amounts then due and payable to such Issuing Bank and such Swing Line
Bank;
(C) third, to any other Lender Parties for any amount then due
and payable by such Defaulting Lender to such other Lender Parties
hereunder, ratably in accordance with such respective amounts then due
and payable to such other Lender Parties; and
(D) fourth, to the Borrower for any Advance then required to be
made by such Defaulting Lender pursuant to a Commitment of such
Defaulting Lender.
58
In the event that any Lender Party that is a Defaulting Lender shall, at
any time, cease to be a Defaulting Lender, any funds held by the
Administrative Agent in escrow at such time with respect to such Lender
Party shall be distributed by the Administrative Agent to such Lender Party
and applied by such Lender Party to the Obligations owing to such Lender
Party at such time under this Agreement and the other Loan Documents
ratably in accordance with the respective amounts of such Obligations
outstanding at such time.
(d) The rights and remedies against a Defaulting Lender under this
Section 2.16 are in addition to other rights and remedies that the Borrower
may have against such Defaulting Lender with respect to any Defaulted
Advance and that the Administrative Agent or any Lender Party may have
against such Defaulting Lender with respect to any Defaulted Amount.
ARTICLE III
CONDITIONS OF LENDING AND
ISSUANCES OF LETTERS OF CREDIT
SECTION 3.01. Conditions Precedent to Initial Extension of Credit. The
------------------------------------------------------------------
obligation of each Lender to make an Advance or of the Issuing Bank to issue a
Letter of Credit on the occasion of the Initial Extension of Credit hereunder is
subject to the satisfaction of the following conditions precedent before or
concurrently with the Initial Extension of Credit:
(a) The Administrative Agent shall have received on or before the day
of the Initial Extension of Credit the following, each dated such day
(unless otherwise specified), in form and substance satisfactory to the
Administrative Agent (unless otherwise specified) and (except for the
Notes) in sufficient copies for each Lender Party:
(i) The Notes payable to the order of each respective Lender (if
requested by any such Lender).
(ii) A security agreement, in substantially the form of Exhibit D
hereto (together with each other security agreement and security
agreement supplement delivered pursuant to Section 5.01(j), in each
case as amended, the "Security Agreement"), duly executed by each Loan
Party, together with:
(A) where applicable, certificates representing the Pledged
Shares referred to therein accompanied by undated stock powers
executed in blank and instruments evidencing the Pledged Debt
referred to therein indorsed in blank,
(B) proper financing statements, in form for filing, under
the Uniform Commercial Code of all jurisdictions that the
Administrative Agent may deem necessary or desirable in order to
perfect and protect the first priority liens and security
interests created under the Security Agreement, covering the
Collateral described in the Security Agreement,
(C) all other documents for recording and filing, in proper
form, for or with respect to the Security Agreement that the
Administrative Agent may deem necessary or desirable in order to
perfect and protect the Liens created thereby,
59
(D) evidence of the insurance required by the terms of
the Security Agreement,
(E) evidence that all other action that the
Administrative Agent may deem necessary or desirable in order to
perfect and protect the first priority liens and security
interests created under the Security Agreement is ready to be
taken concurrently with the Initial Extension of Credit
(including, without limitation, receipt of duly executed payoff
letters and UCC-3 termination statements with respect to the
Existing Credit Agreement).
(iii) A guaranty, in substantially the form of Exhibit E
hereto (together with each other guaranty and guaranty supplement
delivered pursuant to Section 5.01(j), in each case as amended, the
"Subsidiary Guaranty"), duly executed by each Subsidiary Guarantor.
(iv) An intellectual property security agreement, in
substantially the form annexed to the Security Agreement (together
with each other intellectual property security agreement and
intellectual property security agreement supplement delivered pursuant
to Section 5.01(j), in each case as amended, the "Intellectual
Property Security Agreement"), duly executed by each Loan Party,
together with evidence that all action that the Administrative Agent
may deem necessary or desirable in order to perfect and protect the
first priority liens and security interests created under the
Intellectual Property Security Agreement is ready to be taken
concurrently with the Initial Extension of Credit.
(v) Certified copies of the resolutions of the Board of
Directors of each Loan Party approving the Transaction and each Loan
Document to which it is or is to be a party, and of all documents
evidencing other necessary Governmental Authorizations and other
necessary corporate actions or third party approvals and consents, if
any, with respect to the Transaction and each Loan Document to which
it is or is to be a party.
(vi) A copy of a certificate of the Secretary of State of the
jurisdiction of incorporation of each Loan Party, dated reasonably
near the date of the Initial Extension of Credit, certifying (A) as to
a true and correct copy of the charter (or comparable Constitutive
Document) of such Loan Party and each amendment thereto on file in
such Secretary's office (B) that such amendments are the only
amendments to such Loan Party's (or comparable Constitutive Document)
on file in such Secretary's office, and (C) such Loan Party is duly
incorporated and in good standing or presently subsisting under the
laws of the State of the jurisdiction of its incorporation.
(vii) A certificate of each Loan Party, signed on behalf of
such Loan Party by its President or a Vice President and its Secretary
or any Assistant Secretary, dated the date of the Initial Extension of
Credit (the statements made in which certificate shall be true on and
as of the date of the Initial Extension of Credit), certifying as to
(A) the absence of any amendments to the charter (or comparable
Constitutive Document) of such Loan Party since the date of the
Secretary of State's certificate referred to in Section 3.01(a)(vi),
(B) a true and correct copy of the bylaws (or comparable Constitutive
Document) of such Loan Party as in effect on the date on which the
resolutions referred to in Section 3.01(a)(v) were adopted and on the
date of the Initial Extension of Credit, (C) the due incorporation and
good standing or valid existence of such Loan Party as a corporation
organized under the laws of the jurisdiction of its incorporation, and
the absence of any proceeding for the dissolution or liquidation of
such Loan Party, and (D)
60
the truth of the representations and warranties contained in the Loan
Documents as though made on and as of the date of the Initial
Extension of Credit except for representations and warranties that by
their terms speak as of another specific date, which shall be true as
of such specific date.
(viii) A certificate of the Secretary or an Assistant Secretary
of each Loan Party certifying the names and true signatures of the
officers of such Loan Party authorized to sign each Loan Document to
which it is or is to be a party and the other documents to be
delivered hereunder and thereunder.
(ix) Such financial, business and other information regarding
each Loan Party and its Subsidiaries as the Lender Parties shall have
reasonably requested, including, without limitation, information as to
possible contingent liabilities, tax matters, environmental matters,
obligations under Plans, Multiemployer Plans and Welfare Plans,
collective bargaining agreements and other arrangements with
employees, audited annual financial statements dated December 31,
2000, interim financial statements dated the end of the most recent
fiscal quarter for which financial statements are available, pro forma
financial statements as to the Borrower and forecasts prepared by
management of the Company, of balance sheets, income statements and
cash flow statements on a quarterly basis for the first year following
the day of the Initial Extension of Credit and on an annual basis for
five years thereafter.
(x) Evidence of insurance naming the Administrative Agent as
additional insured and loss payee with such responsible and reputable
insurance companies or associations, and in such amounts and covering
such risks, as is satisfactory to the Lender Parties, including,
without limitation, business interruption insurance.
(xi) A Notice of Borrowing or Notice of Issuance, as
applicable.
(xii) A favorable opinion of Steven J. Udicious, general
counsel for the Loan Parties, in substantially the form of Exhibit F
hereto and as to such other matters as any Lender Party through the
Administrative Agent may reasonably request.
(xiii) A favorable opinion of Riordan & McKinzie, special
counsel to the Lender Parties, in substantially the form of Exhibit G
hereto and as to such other matters as any Lender Party through the
Administrative Agent may reasonably request.
(b) All Governmental Authorizations and all third party consents and
approvals necessary in connection with the Transaction shall have been
obtained (without the imposition of any conditions that are not acceptable
to the Lender Parties) and shall remain in effect; and no Requirements of
Law shall be applicable in the judgment of the Lender Parties that
restrains, prevents or imposes materially adverse conditions upon the
Transaction.
(c) The Borrower shall have paid all accrued fees of the Agents and
the Lender Parties and all accrued expenses of the Agents.
(d) The Borrower shall have issued the subordinated notes referred to
in clause (iii) of the definition of "Subordinated Notes."
(e) (i) All amounts owing by the Borrower or any of its Subsidiaries
to the lenders and agents under the Existing Credit Agreement shall have
been, or concurrently with the Initial
61
Extension of Credit made on the Closing Date shall be, paid in full and
evidenced by a payoff letter or payoff letters delivered by such lenders
and agents to the Administrative Agent, (ii) all commitments of the lenders
under the Existing Credit Agreement (except for the Existing Letters of
Credit) shall have been, or concurrently with the Initial Extension of
Credit made on the Closing Date shall be, terminated in accordance with the
terms of the Existing Credit Agreement, (iii) the lenders or any collateral
agent under the Existing Credit Agreement shall have executed such
instruments (including without limitation Uniform Commercial Code
termination statements) and agreed to take such other actions as are
reasonably necessary to terminate or release all security interests granted
in connection with the Existing Credit Agreement and (iv) adequate
arrangements shall have been made with the issuer of the Existing Letters
of Credit concerning the continuation thereof.
SECTION 3.02. Conditions Precedent to Each Borrowing and Issuance and
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Renewal. The obligation of each Appropriate Lender to make an Advance (other
- -------
than a Letter of Credit Advance made by the Issuing Bank or a Revolving Credit
Lender pursuant to Section 2.03(b) and a Swing Line Advance made by a Revolving
Credit Lender pursuant to Section 2.02(b)) on the occasion of each Borrowing
(including the initial Borrowing, but excluding any conversion of Advances
pursuant to Section 2.09 as provided therein), and the obligation of
the Issuing Bank to issue a Letter of Credit (including the initial issuance) or
renew a Letter of Credit and the right of the Borrower to request a Swing Line
Borrowing, shall be subject to the further conditions precedent that on the date
of such Borrowing or issuance or renewal (a) the following statements shall be
true and the Administrative Agent shall have received for the account of such
Lender or the Issuing Bank a certificate signed by a duly authorized officer of
the Borrower, dated the date of such Borrowing or issuance or renewal, stating
that (and each of the giving of the applicable Notice of Borrowing, Notice of
Swing Line Borrowing, Notice of Issuance or Notice of Renewal and the acceptance
by the Borrower of the proceeds of such Borrowing or of such Letter of Credit or
the renewal of such Letter of Credit shall constitute a representation and
warranty by the Borrower that both on the date of such notice and on the date of
such Borrowing or issuance or renewal such statements are true):
(i) the representations and warranties contained in each Loan
Document are correct on and as of such date, before and after giving
effect to such Borrowing or issuance or renewal and to the application
of the proceeds therefrom, as though made on and as of such date
except (A) for any such representations or warranties that, by their
terms, refer to a specific date other than the date of such Borrowing
or issuance or renewal, in which case as of such specific date and (B)
if any Required Financial Information has been delivered to the
Administrative Agent and the Lender Parties on or prior to the date of
such Borrowing or issuance or renewal, that the Consolidated financial
statements of the Borrower and its Subsidiaries referred to in Section
4.01(g)(i) shall be deemed at any time and from time to time after the
Closing Date to refer to the Consolidated financial statements of the
Borrower and its Subsidiaries comprising part of the Required
Financial Information most recently delivered to the Administrative
Agent and the Lender Parties pursuant to Sections 5.03(b) and 5.03(c)
(except that in the case of financial statements delivered pursuant to
Section 5.03(c), such financial statements may not contain all notes
and may be subject to year end audit adjustments), respectively, on or
prior to the date of such Borrowing, issuance or renewal; and
(ii) no Default has occurred and is continuing, or would result
from such Borrowing or issuance or renewal or from the application of
the proceeds therefrom;
and (b) the Administrative Agent shall have received such other approvals,
opinions or documents as any Appropriate Lender Party through the Administrative
Agent may reasonably request.
62
SECTION 3.03. Determinations Under Section 3.01. For purposes of
-----------------------------------------------
determining compliance with the conditions specified in Section 3.01, each
Lender Party shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lender Parties unless an
officer of the Administrative Agent responsible for the transactions
contemplated by the Loan Documents shall have received notice from such Lender
Party prior to the Initial Extension of Credit specifying its objection thereto
and, if the Initial Extension of Credit consists of a Borrowing, such Lender
Party shall not have made available to the Administrative Agent such Lender
Party's ratable portion of such Borrowing.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower. The Borrower
------------------------------------------------------------
represents and warrants as follows:
(a) Each Loan Party and each of its Subsidiaries (i) is duly
organized, validly existing and in good standing (if such concept is
applicable) under the laws of the jurisdiction of its organization, (ii) is
duly qualified and in good standing as a foreign business enterprise (if
such concept is applicable) in each other jurisdiction in which it owns or
leases property or in which the conduct of its business requires it to so
qualify or be licensed except where the failure to be so qualified or
licensed would not result in a Material Adverse Effect and (iii) has all
requisite power and authority (including, without limitation, all material
Governmental Authorizations) to own or lease and operate its properties and
to carry on its business as now conducted and as proposed to be conducted.
(b) Set forth on Schedule 4.01(b) hereto is a complete and accurate
list of all Subsidiaries of the Borrower, showing as of the date hereof (as
to each such Subsidiary) the jurisdiction of its organization, the number
of shares or other units of each class of its Equity Interests authorized,
and the number outstanding, on the date hereof and the percentage of each
such class of its Equity Interests owned (directly or indirectly) by the
Borrower or any Subsidiary thereof and the number of shares or other units
covered by all outstanding options, warrants, rights of conversion or
purchase and similar rights at the date hereof, except for any obligations
or rights of the Borrower or any of its Subsidiaries to acquire any
minority interest in any Subsidiary of the Borrower that is a partnership.
All of the outstanding Equity Interests in each such Subsidiary have (A)
(in the case of Subsidiaries that are corporations) been validly issued,
are fully paid and non-assessable and are (B) to the extent owned by the
Borrower or one or more of its Subsidiaries, free and clear of all Liens,
except those created under the Collateral Documents or Permitted Liens.
(c) The execution, delivery and performance by each Loan Party of each
Loan Document to which it is or is to be a party, and the consummation of
the Transaction, are within such Loan Party's corporate, partnership or
limited liability company powers, as applicable, have been duly authorized
by all necessary corporate, partnership or limited liability company
action, as applicable, and do not (i) contravene such Loan Party's
Constitutive Documents, (ii) violate any Requirements of Law, (iii)
conflict with or result in the breach of, or constitute a default or
require any payment to be made under, any material contract, loan
agreement, indenture, mortgage, deed of trust, lease or other instrument
binding on or affecting any Loan Party or any of its properties or (iv)
except for the Liens created under the Loan Documents, result in or require
the creation or imposition of any Lien upon or with respect to any of the
properties of any Loan Party. No Loan Party is in violation of any such
Requirements of Law or in breach of any
63
such contract, loan agreement, indenture, mortgage, deed of trust, lease or
other instrument, the violation or breach of which would be reasonably
likely to have a Material Adverse Effect.
(d) No Governmental Authorization, and no other authorization or
approval or other action by, and no notice to or filing with, any
Governmental Authority or any other third party is required for (i) the due
execution, delivery, recordation, filing or performance by any Loan Party
of any Loan Document to which it is or is to be a party, or for the
consummation of the Transaction, (ii) the grant by any Loan Party of the
Liens granted by it pursuant to the Collateral Documents, (iii) the
perfection or maintenance of the Liens created under the Collateral
Documents on such of the Collateral located in the United States in which a
Lien may be perfected by the filing of financing statements, the
recordation of security agreements with the U.S. Patent and Trademark
Office or the U.S. Copyright Office or the delivery of Collateral
(including the first priority nature thereof) or (iv) the exercise by any
Agent or any Lender Party of its rights under the Loan Documents or the
remedies in respect of the Collateral pursuant to the Collateral Documents,
except for (A) the authorizations, approvals and actions on Schedule
4.01(d) hereto, all of which have been duly obtained and are in full force
and effect, (B) filings, notices, recordings and other similar actions
necessary for the creation or perfection of the Liens and security
interests contemplated by the Loan Documents and (C) the actions required
by laws generally with respect to the exercise by secured creditors of
their rights and remedies. All applicable waiting periods in connection
with the Transaction have expired without any action having been taken by
any competent authority restraining, preventing or imposing materially
adverse conditions upon the Transaction or the rights of the Loan Parties
or their Subsidiaries freely to transfer or otherwise dispose of, or to
create any Lien on, any properties now owned or hereafter acquired by any
of them.
(e) This Agreement has been, and each other Loan Document when
delivered hereunder will have been, duly executed and delivered by each
Loan Party thereto. This Agreement is, and each other Loan Document when
delivered hereunder will be, the legal, valid and binding obligation of
each Loan Party thereto, enforceable against such Loan Party in accordance
with its terms.
(f) There is no action, suit, investigation, litigation or proceeding
affecting any Loan Party or any of its Subsidiaries, including any
Environmental Action, pending or, to the knowledge of the Borrower,
threatened before any Governmental Authority or arbitrator that (i) could
be reasonably likely to have a Material Adverse Effect or (ii) purports to
affect the legality, validity or enforceability of any Loan Document or the
consummation of the Transaction, except as described on Schedule 4.01(f)
hereto or disclosed prior to the Closing Date in the Borrower's filings
made with the Securities and Exchange Commission.
(g) The Consolidated balance sheet of the Borrower and its
Subsidiaries as at December 31, 2000, and the related Consolidated
statement of income and Consolidated statement of cash flows of the
Borrower and its Subsidiaries for the fiscal year then ended, accompanied
by an unqualified opinion of KPMG LLP, independent public accountants,
copies of which have been furnished to each Lender Party, fairly present
the Consolidated financial condition of the Borrower and its Subsidiaries
as at such date and the Consolidated results of operations of the Borrower
and its Subsidiaries for the period ended on such date, all in accordance
with generally accepted accounting principles applied on a consistent
basis, and since December 31, 2000, there has been no Material Adverse
Change.
(h) The Consolidated forecasted balance sheet, statement of income and
statement of cash flows of the Borrower and its Subsidiaries delivered to
the Lender Parties pursuant to
64
Section 3.01(a)(ix) or Section 5.03 were prepared in good faith on the
basis of the assumptions stated therein, which assumptions were believed to
be reasonable in light of the conditions existing at the time of delivery
of such forecasts, and represented, at the time of delivery, the Borrower's
best estimate of its future financial performance.
(i) Neither the Information Memorandum nor any other information,
exhibit or report furnished by any Loan Party to any Agent or any Lender
Party in connection with the negotiation and syndication of the Loan
Documents or pursuant to the terms of the Loan Documents contained any
untrue statement of a material fact or omitted to state a material fact
necessary to make the statements made therein not misleading.
(j) The Borrower is not engaged in the business of extending credit
for the purpose of purchasing or carrying Margin Stock, and no proceeds of
any Advance or drawings under any Letter of Credit will be used to purchase
or carry any Margin Stock or to extend credit to others for the purpose of
purchasing or carrying any Margin Stock.
(k) Neither any Loan Party nor any of its Subsidiaries is an
"investment company", or an "affiliated person" of, or "promoter" or
"principal underwriter" for, an "investment company", as such terms are
defined in the Investment Company Act of 1940, as amended. Neither any Loan
Party nor any of its Subsidiaries is a "holding company", or a "subsidiary
company" of a "holding company", or an "affiliate" of a "holding company"
or of a "subsidiary company" of a "holding company", as such terms are
defined in the Public Utility Holding Company Act of 1935, as amended.
Neither the making of any Advances, nor the issuance of any Letters of
Credit, nor the application of the proceeds or repayment thereof by the
Borrower, nor the consummation of the other transactions contemplated by
the Loan Documents and Related Documents, will violate any provision of any
such Act or any rule, regulation or order of the Securities and Exchange
Commission thereunder.
(l) Upon making of the filings and taking of the other actions
necessary to create, perfect and protect the security interest in the
Collateral created under the Collateral Documents, the Collateral Documents
create in favor of the Administrative Agent for the benefit of the Secured
Parties a valid and, together with such filings and other actions,
perfected first priority security interest in the Collateral, securing the
payment of the Secured Obligations, subject to Permitted Liens. The Loan
Parties are the legal and beneficial owners of the Collateral free and
clear of any Lien, except for the liens and security interests created or
permitted under the Loan Documents.
(m) Each Loan Party is, individually and together with its
Subsidiaries, Solvent.
(n) No ERISA Event has occurred or is reasonably expected to occur
with respect to any Plan that has resulted in or is reasonably expected to
result in a material liability of any Loan Party or any ERISA Affiliate.
(i) Schedule B (Actuarial Information) to the most recent annual
report (Form 5500 Series) for each Plan, copies of which have been
filed with the Internal Revenue Service and furnished to the Lender
Parties, is complete and accurate and fairly presents the funding
status of such Plan, and since the date of such Schedule B there has
been no material adverse change in such funding status.
65
(ii) Neither any Loan Party nor any ERISA Affiliate has incurred
or is reasonably expected to incur any Withdrawal Liability exceeding
$100,000 to any Multiemployer Plan.
(iii) Neither any Loan Party nor any ERISA Affiliate has been
notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization or has been terminated, within
the meaning of Title IV of ERISA, and no such Multiemployer Plan is
reasonably expected to be in reorganization or to be terminated,
within the meaning of Title IV of ERISA.
(o) Except as described on Schedule 4.01(o) hereto:
(i) The operations and properties of each Loan Party comply in
all material respects with all applicable Environmental Laws and
Environmental Permits, except where any such failure to comply would
not be reasonably expected to have a Material Adverse Effect, all past
non-compliance with such Environmental Laws and Environmental Permits
has been resolved without ongoing obligations or costs, except where
any such failure to comply would not be reasonably expected to have a
Material Adverse Effect and, to Borrower's knowledge, no circumstances
exist that could be reasonably likely to (A) form the basis of an
Environmental Action against any Loan Party or any of their properties
that could have a Material Adverse Effect or (B) cause any such
property to be subject to any restrictions on ownership, occupancy,
use or transferability under any Environmental Law.
(ii) None of the properties currently or, to Borrower's
knowledge, formerly owned or operated by any Loan Party is listed or
proposed for listing on the NPL or on the CERCLIS or any analogous
foreign, state or local list or, to Borrower's knowledge, is adjacent
to any such property; and except to the extent that any of the
following would not have a Material Adverse Effect, (A) there are no
and, to Borrower's knowledge, never have been any underground or
aboveground storage tanks or any surface impoundments, septic tanks,
pits, sumps or lagoons in which Hazardous Materials are being or have
been treated, stored or disposed on any property currently owned or
operated by any Loan Party or, to its knowledge, on any property
formerly owned or operated by any Loan Party, (B) there is no asbestos
or asbestos-containing material on any property currently owned or
operated by any Loan Party, and (C) Hazardous Materials have not been
released, discharged or disposed of on any property currently or, to
Borrower's knowledge, formerly owned or operated by any Loan Party
except in compliance with Environmental Laws.
(iii) No Loan Party is undertaking, and has not completed, either
individually or together with other potentially responsible parties,
any investigation or assessment or remedial or response action
relating to any actual or threatened release, discharge or disposal of
Hazardous Materials at any site, location or operation, either
voluntarily or pursuant to the order of any Governmental Authority or
the requirements of any Environmental Law; and all Hazardous Materials
generated, used, treated, handled or stored at, or transported to or
from, any property currently or formerly owned or operated by any Loan
Party have been disposed of in a manner not reasonably expected to
result in liability to any Loan Party that, individually or in the
aggregate, would have a Material Adverse Effect.
66
(p) Each Loan Party and each of its Affiliates has filed, has caused
to be filed or has been included in all tax returns (Federal, state, local
and foreign) required to be filed and has paid all taxes shown thereon to
be due, together with applicable interest and penalties. Set forth on
Schedule 4.01(p) hereto is a complete and accurate list, as of the date
hereof, of each Open Year of each Loan Party and each of its Affiliates.
The aggregate unpaid amount, as of the date hereof, of adjustments to the
Federal income tax liability of each Loan Party and each of its Affiliates
proposed by the Internal Revenue Service with respect to Open Years does
not exceed $62,500,000. No issues have been raised by the Internal Revenue
Service in respect of Open Years that, in the aggregate, could be
reasonably likely to have a Material Adverse Effect.
(q) Set forth on Schedule 4.01(q) hereto is a complete and accurate
list of all Liens (other than Permitted Liens) on the property or assets of
any Loan Party, showing as of the date hereof the lienholder thereof, the
principal amount of the obligations secured thereby and the property or
assets of such Loan Party subject thereto.
(r) Set forth on Schedule 4.01(r) hereto is a complete and accurate
list of all Investments held by any Loan Party on the date hereof, showing
the amount, obligor or issuer and maturity, if any, thereof.
(s) Except as set forth on Schedule 4.01(s), the dialysis facilities
operated by each of the Borrower and its Subsidiaries (the "Dialysis
--------
Facilities") are qualified for participation in the Medicare programs and
----------
the Medicaid programs in which they participate (together with their
respective intermediaries or carriers, the "Government Reimbursement
------------------------
Programs") and are entitled to reimbursement under the Medicare program for
--------
services rendered to qualified Medicare beneficiaries, and comply in all
material respects with the conditions of participation in all Government
Reimbursement Programs in which they participate or have participated.
Except as set forth on Schedule 4.01(s), there is no pending or, to
Borrower's knowledge, threatened proceeding or investigation by any of the
Government Reimbursement Programs with respect to (i) the Borrower's or any
of its Subsidiaries' qualification or right to participate in any
Government Reimbursement Program in which they participate or have
participated, (ii) the compliance or non-compliance by the Borrower or any
of its Subsidiaries with the terms or provisions of any Government
Reimbursement Program in which they participate or have participated, or
(iii) the right of the Borrower or any of its Subsidiaries to receive or
retain amounts received or due or to become due from any Government
Reimbursement Program in which they participate or have participated, which
proceeding or investigation, together with all other such proceedings and
investigations, could reasonably be expected to (x) have a Material Adverse
Effect or (y) result in Consolidated net operating revenues for any
(including any future) four fiscal quarter period of the Borrower
constituting less than 95% of Consolidated net operating revenues for the
immediately preceding four fiscal quarter period of the Borrower.
(t) Neither the Borrower nor any of its Subsidiaries, nor any of their
respective officers or directors has, on behalf of the Borrower or any of
its Subsidiaries, knowingly or willfully violated the federal Medicare and
Medicaid statutes, 42 U.S.C. (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
67
any remuneration (including any kickback, bribe or rebate), directly or
indirectly, overtly or covertly, in cash or in kind or offering to pay such
remuneration (a) in return for referring an individual to a Person for the
furnishing or arranging for the furnishing of any item or service for which
payment may be made in whole or in part by Medicare, Medicaid or other
applicable government payers, or (b) in return for purchasing, leasing or
ordering or arranging for or recommending the purchasing, leasing or
ordering of any good, facility, service or item for which payment may be
made in whole or in part by Medicare, Medicaid or other applicable
government payers. With respect to this Section, knowledge of an individual
director or officer of the Borrower or a Subsidiary of any of the events
described in this Section shall not be imputed to the Borrower or such
Subsidiary unless such knowledge was obtained or learned by the director or
officer in his or her official capacity as a director or officer of the
Borrower or such Subsidiary.
(u) The subordination provisions of (i) the Subordinated Notes
Documents, (ii) the Subordinated Notes, (iii) any Subordinated Debt now
existing or hereafter incurred or assumed by any Loan Party and (iv) any
guarantee by any Loan Party of any Subordinated Debt will be enforceable
against the holders thereof, and the Advances and all other monetary
obligations hereunder and all monetary obligations under the Subsidiary
Guaranty will constitute "Senior Indebtedness" and "Designated Senior
Indebtedness" (or any comparable terms) as defined in such provisions.
ARTICLE IV
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Advance or any other
-----------------------------------
Obligation of any Loan Party under any Loan Document shall remain unpaid, any
Letter of Credit shall be outstanding or any Lender Party shall have any
Commitment hereunder, the Borrower will:
(a) Compliance with Laws, Etc. Comply, and cause each of its
-------------------------
Subsidiaries to comply, in all material respects, with all applicable
Requirements of Law, such compliance to include, without limitation,
compliance with ERISA and the Racketeer Influenced and Corrupt
Organizations Chapter of the Organized Crime Control Act of 1970, except to
the extent that non-compliance could not be reasonably expected to result
in a Material Adverse Effect.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of its
---------------------
Subsidiaries to pay and discharge, before the same shall become delinquent,
(i) all taxes, assessments and governmental charges or levies imposed upon
it or upon its property and (ii) all lawful claims that, if unpaid, might
by law become a Lien upon its property; provided, however, that neither the
Borrower nor any of its Subsidiaries shall be required to pay or discharge
any such tax, assessment, charge or claim (A) the non-payment or non-
discharge of which could not be reasonably expected to result in a Material
Adverse Effect or (B) that is being contested in good faith and by proper
proceedings and as to which appropriate reserves are being maintained,
unless and until any Lien resulting therefrom attaches to its property and
becomes enforceable against its other creditors and subjects the property
to a substantial risk of forfeiture.
(c) Compliance with Environmental Laws. Comply, and cause each of its
----------------------------------
Subsidiaries and all lessees and other Persons operating or occupying its
properties to comply, in all material respects, with all applicable
Environmental Laws and Environmental Permits; obtain and renew and cause
each of its Subsidiaries to obtain and renew all Environmental Permits
necessary for its operations and properties; and conduct, and cause each of
its Subsidiaries to conduct, any investigation, study, sampling and
testing, and undertake any cleanup, removal,
68
remedial or other action necessary to remove and clean up all Hazardous
Materials from any of its properties, in accordance with the requirements
of all Environmental Laws; provided, however, that neither the Borrower nor
any of its Subsidiaries shall be required to undertake any such cleanup,
removal, remedial or other action to the extent that its obligation to do
so is being contested in good faith and by proper proceedings and
appropriate reserves are being maintained with respect to such
circumstances.
(d) Maintenance of Insurance. Maintain, and cause each of its
------------------------
Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations in such amounts and covering such risks
as is usually carried by companies engaged in similar businesses and owning
similar properties in the same general areas in which the Borrower or such
Subsidiary operates.
(e) Preservation of Corporate Existence, Etc. Preserve and maintain,
----------------------------------------
and cause each of its Subsidiaries to preserve and maintain, its existence,
legal structure, legal name, rights (charter and statutory) and material
franchises; provided, however, that neither the Borrower nor any of its
Subsidiaries shall be required to preserve any right, privilege or
franchise if the Board of Directors of the Borrower or such Subsidiary
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Borrower or such Subsidiary, as the case may
be, and that the loss thereof is not disadvantageous in any material
respect to the Borrower, such Subsidiary or the Lender Parties and any
Subsidiary may merge with or into or be liquidated into another Subsidiary
or the Borrower as permitted under Section 5.02(d).
(f) Visitation Rights. At any reasonable time and from time to time,
-----------------
and, unless a Default or an Event of Default shall have occurred and be
continuing, upon reasonable notice, permit any of the Agents or any of the
Lender Parties, or any agents or representatives thereof, to examine and
make copies of and abstracts from the records and books of account of, and
visit the properties of, the Borrower and any of its Subsidiaries, and to
discuss the affairs, finances and accounts of the Borrower and any of its
Subsidiaries with any of their officers or directors and with their
independent certified public accountants (provided that representatives of
the Borrower shall be entitled to notice of and to participate in any such
discussion).
(g) Keeping of Books. Keep, and cause each of its Subsidiaries to
----------------
keep, proper books of record and account, in which full and correct entries
shall be made of all financial transactions and the assets and business of
the Borrower and each such Subsidiary using sound business practices
sufficient to permit the preparation of financial statements based thereon
in accordance with generally accepted accounting principles in effect from
time to time.
(h) Maintenance of Properties, Etc. Maintain and preserve, and cause
------------------------------
each of its Subsidiaries to maintain and preserve, all of its properties
that are used or useful in the conduct of its business in good working
order and condition, ordinary wear and tear excepted.
(i) Transactions with Affiliates. Conduct, and cause each of its
----------------------------
Subsidiaries to conduct, all transactions otherwise permitted under the
Loan Documents with any of their Affiliates on terms that are fair and
reasonable and no less favorable to the Borrower or such Subsidiary than it
would obtain in a comparable arm's-length transaction with a Person not an
Affiliate.
(j) Covenant to Guarantee Obligations and Give Security. Upon (x) the
---------------------------------------------------
formation or acquisition of any new direct or indirect Subsidiaries by any
Loan Party or (y) the acquisition of any property by any Loan Party, which,
in the judgment of the Administrative Agent, shall not
69
already be subject to a perfected first priority security interest in
favor of the Administrative Agent for the benefit of the Secured
Parties, then the Borrower shall, in each case at the Borrower's
expense:
(i) in connection with the formation or acquisition of a
wholly-owned Domestic Subsidiary, within 30 days after such
formation or acquisition, cause each such Domestic Subsidiary,
and cause each direct and indirect parent of such Domestic
Subsidiary (if it has not already done so), to duly execute and
deliver to the Administrative Agent a guaranty or guaranty
supplement, in form and substance satisfactory to the
Administrative Agent, guaranteeing the other Loan Parties'
obligations under the Loan Documents, and, in connection with the
formation or acquisition of a Foreign Subsidiary, within 30 days
after such formation or acquisition, pledge or, cause its
respective Subsidiary to pledge, to the Administrative Agent for
the benefit of the Secured Parties 65% of the Equity Interests in
such Foreign Subsidiary,
(ii) within 10 days after such formation or acquisition,
furnish to the Administrative Agent a description of (A) the
material personal properties of such wholly-owned Domestic
Subsidiary and (B) such property which was not previously subject
to such perfected security interest, in each case in detail
satisfactory to the Administrative Agent,
(iii) within 30 days after such formation or acquisition,
duly execute and deliver, and cause each such wholly-owned
Domestic Subsidiary and each direct and indirect parent of such
wholly-owned Domestic Subsidiary (if it has not already done so)
to duly execute and deliver, to the Administrative Agent pledges,
assignments, security agreements and security agreement
supplements, as specified by and in form and substance
satisfactory to the Administrative Agent, with respect to the
Equity Interests in and assets of such wholly-owned Domestic
Subsidiary,
(iv) within 30 days after such formation or acquisition,
take, and cause such wholly-owned Subsidiary or such parent to
take, whatever action (including, without limitation, the filing
of Uniform Commercial Code financing statements, the giving of
notices and the endorsement of notices on title documents) may be
necessary or advisable in the opinion of the Administrative Agent
to vest in the Administrative Agent (or in any representative of
the Administrative Agent designated by it) valid and subsisting
Liens on the properties purported to be subject to the pledges,
assignments, security agreements and security agreement
supplements delivered pursuant to this Section 5.01(j),
enforceable against all third parties in accordance with their
terms,
(v) within 60 days after such formation or acquisition,
deliver to the Administrative Agent, upon the request of the
Administrative Agent in its sole discretion, a signed copy of a
favorable opinion (subject to customary qualifications,
limitations and exceptions), addressed to the Administrative
Agent and the other Secured Parties, of counsel for the Loan
Parties acceptable to the Administrative Agent as to the matters
contained in clauses (i), (iii) and (iv) above, as to such
guaranties, guaranty supplements, pledges, assignments, security
agreements and security agreement supplements being legal, valid
and binding obligations of the respective Loan Party thereto
enforceable in accordance with their terms, as to the matters
contained in clause (iv) above, as to such recordings, filings,
notices, endorsements and other actions being sufficient to
create valid perfected Liens on such properties, and as to such
other matters as the Administrative Agent may reasonably request,
and
70
(vi) at any time and from time to time, promptly execute
and deliver any and all further instruments and documents and
take all such other action as the Administrative Agent may deem
necessary or desirable in obtaining the full benefits of, or in
perfecting and preserving the Liens of, such guaranties, pledges,
assignments, security agreements and security agreement
supplements.
(k) Further Assurances.
------------------
(i) Promptly upon request by any Agent, or any Lender
Party through the Administrative Agent, correct, and cause each
of its Subsidiaries promptly to correct, any material defect or
error that may be discovered in any Loan Document or in the
execution, acknowledgment, filing or recordation thereof, and
(ii) Promptly upon request by any Agent, or any Lender
Party through the Administrative Agent, do, execute, acknowledge,
deliver, record, re-record, file, re-file, register and re-
register any and all such further acts, pledge agreements,
assignments, financing statements and continuations thereof,
termination statements, notices of assignment, transfers,
certificates, assurances and other instruments as any Agent, or
any Lender Party through the Administrative Agent, may reasonably
require from time to time in order to (A) carry out more
effectively the purposes of the Loan Documents, (B) to the
fullest extent permitted by applicable law, subject any Loan
Party,s properties, assets, rights or interests to the Liens now
or hereafter intended to be covered by any of the Collateral
Documents, (C) perfect and maintain the validity, effectiveness
and priority of any of the Collateral Documents and any of the
Liens intended to be created thereunder and (D) assure, convey,
grant, assign, transfer, preserve, protect and confirm more
effectively unto the Secured Parties the rights granted or now or
hereafter intended to be granted to the Secured Parties under any
Loan Document or under any other instrument executed in
connection with any Loan Document to which any Loan Party is or
is to be a party, and cause each of its Subsidiaries to do so.
SECTION 5.02. Negative Covenants. So long as any Advance or any other
--------------------------------
Obligation of any Loan Party under any Loan Document shall remain unpaid, any
Letter of Credit shall be outstanding or any Lender Party shall have any
Commitment hereunder, the Borrower will not, at any time:
(a) Liens, Etc. Create, incur, assume or suffer to exist, or
----------
permit any of its Subsidiaries to create, incur, assume or suffer to exist,
any Lien on or with respect to any of its properties of any character
whether now owned or hereafter acquired, or sign or file or suffer to
exist, or permit any of its Subsidiaries to sign or file or suffer to
exist, under the Uniform Commercial Code of any jurisdiction, a financing
statement that names the Borrower or any of its Subsidiaries as debtor, or
sign or suffer to exist, or permit any of its Subsidiaries to sign or
suffer to exist, any security agreement authorizing any secured party
thereunder to file such financing statement, or assign, or permit any of
its Subsidiaries to assign, any accounts or other right to receive income,
except:
(i) Liens created under the Loan Documents;
(ii) Permitted Liens;
(iii) Liens existing on the Closing Date and described on
Schedule 4.01(q) hereto;
71
(iv) Liens upon or in real property or equipment acquired
or held by the Borrower or any of its Subsidiaries in the
ordinary course of business to secure the purchase price of such
property or equipment or to secure Debt incurred solely for the
purpose of financing the acquisition, construction or improvement
of any such property or equipment to be subject to such Liens, or
Liens existing on any such property or equipment at the time of
acquisition (other than any such Liens created in contemplation
of such acquisition that do not secure the purchase price), or
extensions, renewals or replacements of any of the foregoing for
the same or a lesser amount; provided, however, that (a) such
Liens shall be created not more than 180 days after the date of
acquisition or completion of construction or improvement and
(b) no such Lien shall extend to or cover any property other than
the property or equipment being acquired, constructed or improved
and any attachments thereto and proceeds thereof, and no such
extension, renewal or replacement shall extend to or cover any
property not theretofore subject to the Lien being extended,
renewed or replaced; and provided further that the aggregate
principal amount of the Debt secured by Liens permitted by this
clause (iv) shall not exceed the amount permitted under Section
5.02(b)(v) at any time outstanding;
(v) Liens arising in connection with Capitalized Leases
permitted under Section 5.02(b)(vi); provided that no such Lien
shall extend to or cover any Collateral or assets other than the
assets subject to such Capitalized Leases; and
(vi) the replacement, extension or renewal of any Lien
permitted by clause (iii) above upon or in the same property
theretofore subject thereto or the replacement, extension or
renewal (without increase in the amount or change in any direct
or contingent obligor) of the Debt secured thereby.
(b) Debt. Create, incur, assume or suffer to exist, or permit
----
any of its Subsidiaries to create, incur, assume or suffer to exist, any
Debt, except:
(i) Debt under the Loan Documents;
(ii) Debt existing on the Closing Date and described on
Schedule 5.02(b) hereto;
(iii) Debt of the Borrower in respect of Hedge Agreements
(A) existing on the date of this Agreement and described in
Schedule 5.02(b) hereto or (B) entered into from time to time
after the date of this Agreement with counter parties that are
Lender Parties at the time such Hedge Agreement is entered into
(or Affiliates of such Lender Party at such time); provided that,
in all cases under this clause (iii), all such Hedge Agreements
shall not be speculative in nature (including, without
limitation, with respect to the term and purpose thereof);
(iv) Debt of (A) the Borrower owing to any other Loan
Party, and (B) any of the Subsidiaries owing to the Borrower or
any other Loan Party to the extent permitted under Section
5.02(f)(viii);
(v) Debt incurred after the date of this Agreement and
secured by Liens expressly permitted under Section 5.02(a)(iv) in
an aggregate principal amount not to exceed, when aggregated with
the principal amount of all Debt incurred under clause (vi) of
this Section 5.02(b), $50,000,000 any time outstanding;
72
(vi) Capitalized Leases incurred after the date of this
Agreement which, when aggregated with the principal amount of all
Debt incurred under clause (v) of this Section 5.02(b), do not
exceed $50,000,000 at any time outstanding;
(vii) Contingent Obligations of (A) the Borrower
guaranteeing all or any portion of the outstanding Obligations of
any of the subsidiaries and (B) any Subsidiary of the Borrower
guaranteeing any Obligations of the Borrower or another
subsidiary thereof; provided that each such primary Obligation is
otherwise permitted under the terms of the Loan Documents ;
(viii) Unsecured Debt not otherwise permitted under this
Section 5.02(b) in an aggregate amount not to exceed $50,000,000
at any time outstanding;
(ix) Endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of
business;
(x) Debt comprised of indemnities given by the Borrower
or any of its Subsidiaries, or guarantees or other similar
undertakings by the Borrower or any of its Subsidiaries entered
into in lieu thereof, in favor of the purchaser of property and
assets of the Borrower and its Subsidiaries being sold, leased,
transferred or otherwise disposed of in accordance with this
Agreement and covering liabilities incurred by the Borrower or
its applicable Subsidiary in respect of such property and assets
prior to the date of consummation of the sale, lease, transfer or
other disposition thereof, which indemnities, guarantees or
undertakings are required under the terms of the documentation
for such sale, lease, transfer or other disposition;
(xi) Debt comprised of liabilities or other Obligations
assumed or retained by the Borrower or any of its Subsidiaries
from Subsidiaries of the Borrower that are, or all or
substantially all of the property and assets of which are, sold,
leased, transferred or otherwise disposed of pursuant to Section
5.02(e)(iii) or (vi); provided that such liabilities or other
Obligations were not created or incurred in contemplation of the
related sale, lease, transfer or other disposition;
(xii) Unsecured Subordinated Debt or Redeemable Preferred
Interests not otherwise permitted under this Section 5.02(b),
provided that the aggregate amount of the outstanding principal
amount of such unsecured Subordinated Debt and the maximum amount
of the purchase price, redemption price or liquidation value
(whichever is greater) of such Redeemable Preferred Interests
does not exceed $300,000,000 at any time; provided further, that
the Net Cash Proceeds thereof are applied to prepay the Advances
to the extent provided in Section 2.06(b); and
(xiii) Debt extending the maturity of, or refunding,
refinancing or replacing, in whole or in part, any Debt incurred
under clause (ii) of this Section 5.02(b); provided, however,
that (A) the aggregate principal amount of such extended,
refunding, refinancing or replacement Debt shall not be increased
above the principal amount thereof and the premium, if any,
thereon outstanding immediately prior to such extension,
refunding, refinancing or replacement, (B) the direct and
contingent obligors therefor shall not be changed as a result of
or in connection with such extension, refunding, refinancing or
replacement, (C) such extended, refunding, refinancing or
replacement Debt shall not mature prior to the stated maturity
date or mandatory redemption date of the Debt being so extended,
refunded, refinanced or replaced, and (D) if the Debt being
73
so extended, refunded, refinanced or replaced is subordinated in
right of payment or otherwise to the Obligations of the Borrower
or any of its Subsidiaries under and in respect of the Loan
Documents, such extended, refunding, refinancing or replacement
Debt shall be subordinated to such Obligations to at least the
same extent.
(c) Change in Nature of Business. Engage or permit any of its
----------------------------
Subsidiaries to engage in any business other than the businesses carried on
at the date hereof and any businesses incidental or related thereto.
(d) Mergers, Etc. Merge into or consolidate with any Person or
------------
permit any Person to merge into it, or permit any of its Subsidiaries to do
so, except that:
(i) any of the Subsidiaries may merge into or consolidate
with the Borrower, provided that the Borrower is the surviving
corporation;
(ii) any Subsidiary of the Borrower may merge into or
consolidate with any other Subsidiary of the Borrower, provided
that, in the case of any such merger or consolidation involving a
wholly-owned Subsidiary, the Person formed by or surviving such
merger or consolidation shall be a wholly-owned Subsidiary of the
Borrower, provided further that, in the case of any such merger
or consolidation to which a Subsidiary Guarantor is a party, the
Person formed by such merger or consolidation shall be a
Subsidiary Guarantor;
(iii) in connection with any purchase or other acquisition
of Equity Interests in, or property and assets of, any Person
permitted under Section 5.02(f)(v), the Borrower may permit any
other Person to merge into or consolidate with it (provided that
the Borrower is the surviving entity), and any of the
Subsidiaries of the Borrower may merge into or consolidate with
any other Person or permit any other Person to merge into or
consolidate with it; provided that the Person with which such
Subsidiary is merging or consolidating (1) shall be engaged in
substantially the same lines of business as one or more of the
businesses of the Borrower and the Subsidiaries or in an
incidental or related business and (2) shall not have any
contingent liabilities that could reasonably be expected to be
material and adverse to the Borrower and its Subsidiaries, taken
as a whole (as determined in good faith by the board of directors
(or persons performing similar functions) of the Borrower or such
Subsidiary if the board of directors is otherwise approving such
transaction, and in each other case, by a Responsible Officer),
and (3) in the case of any wholly-owned Domestic Subsidiary, such
Person shall take all actions required under Section 5.01(j); and
(iv) in connection with any sale, transfer or other
disposition of all or substantially all of the Equity Interests
in, or the property and assets of, any Person permitted under
Section 5.02(e)(vi), any of the Subsidiaries of the Borrower may
merge into or consolidate with any other Person or permit any
other Person to merge into or consolidate with it; and
provided, however, that in each case, immediately after giving effect
thereto, no event shall occur and be continuing that constitutes a Default.
(e) Sales, Etc., of Assets. Sell, lease, transfer or otherwise
----------------------
dispose of, or permit any of its Subsidiaries to sell, lease, transfer or
otherwise dispose of, any assets, or grant any option or other right to
purchase, lease or otherwise acquire any assets, except:
74
(i) the Borrower and its Subsidiaries may sell inventory
in the ordinary course of business;
(ii) (A) the Borrower may sell, lease, transfer or
otherwise dispose of any of its property or assets to any of the
Subsidiaries, and (B) any of the Subsidiaries may sell, lease,
transfer or otherwise dispose of any of its property or assets to
the Borrower or any of the other Subsidiaries;
(iii) any Subsidiary of the Borrower that is no longer
actively engaged in any business or activities and does not have
property and assets with an aggregate book value in excess of
$1,000,000 may be wound up, liquidated or dissolved so long as
such winding up, liquidation or dissolution is determined in good
faith by management of the Borrower to be in the best interests
of the Borrower and its Subsidiaries;
(iv) the Borrower and its Subsidiaries may sell, lease,
transfer or otherwise dispose of any obsolete, damaged or worn
out equipment thereof or any other equipment that is otherwise no
longer useful in the conduct of their businesses;
(v) the Borrower and its Subsidiaries may lease or
sublease real property to the extent required for their
respective businesses and operations in the ordinary course so
long as such lease or sublease is not otherwise prohibited under
the terms of the Loan Documents;
(vi) the Borrower and its Subsidiaries may sell, lease,
transfer or otherwise dispose of property and assets not
otherwise permitted to be sold, leased, transferred or disposed
of pursuant to this Section 5.02(e) so long as the aggregate book
value of all of the property and assets of the Borrower and its
Subsidiaries sold, leased, transferred or otherwise disposed of
pursuant to this clause (vi) does not exceed $300,000,000 in the
aggregate during the term of this Agreement; provided that:
(A) the gross proceeds received from any such sale,
lease, transfer or other disposition shall be at least equal
to the fair market value of the property and assets so sold,
leased, transferred or otherwise disposed of, determined at
the time of such sale, lease, transfer or other disposition;
(B) at least 75% of the value of the aggregate
consideration received from any such sale, lease, transfer
or other disposition shall be in cash, provided, that up to
one-third of such 75% may consist of notes or other
obligations received by the Borrower or such Subsidiary that
are due and payable or otherwise converted by the Borrower
or such Subsidiary into cash within 365 days of receipt,
which cash (to the extent received) shall constitute Net
Cash Proceeds attributable to the original transaction; and
provided further that any Debt of the Borrower or any of its
Subsidiaries (as shown on the Borrower's or such
Subsidiary's most recent balance sheet) that is assumed by
the transferee of any such assets shall constitute cash for
purposes of this Section 5.02(e)(vi), so long as the
Borrower and all of its Subsidiaries are fully and
unconditionally released therefrom;
(C) immediately before and immediately after giving
pro forma effect to any such sale, lease, transfer or other
disposition, no Default shall have occurred and be
continuing, and
75
(D) within fifteen Business Days after each
disposition under this subsection, the Borrower shall
deliver to the Administrative Agent, on behalf of the Lender
Parties, a certificate identifying the property disposed of
and stating (a) that immediately before and after giving
effect thereto, no Default or Event or Default existed, (b)
that the consideration received or to be received by the
Borrower or such Subsidiary for such property has been
determined by the Borrower or the applicable Subsidiary to
be not less than the fair market value of such property and
(c) the total consideration to be paid in respect of such
disposition and (d) the Net Cash Proceeds resulting from
such disposition; and
(E) if and to the extent that the Net Cash Proceeds
of any transaction effected pursuant to this Section
5.02(e)(vi) shall not have been reinvested in assets or
property of the Borrower or any of its Subsidiaries with
respect to any transaction completed (1) on or prior to
December 31, 2001, by December 27, 2002 and (2) thereafter,
within 360 days after the date of receipt thereof, then such
uninvested Net Cash Proceeds shall be applied on the first
Business Day following December 27, 2002 or the applicable
360-day period, as the case may be, to prepay Advances in
accordance with Section 2.06(b); and
(vii) the Borrower and its Subsidiaries may exchange assets and
properties with another Person; provided that:
(A) the assets or properties received by the
Borrower or its Subsidiaries shall be used in the business
of the Borrower or such Subsidiary as conducted immediately
prior to such transaction, or in an incidental or related
business;
(B) the total consideration received by the
Borrower or such Subsidiary for such assets or property
shall have been determined by the Borrower or such
Subsidiary to be not less than the fair market value of the
assets or property exchanged;
(C) immediately before and immediately after giving
pro forma effect to any such exchange, no Default shall have
occurred and be continuing;
(D) any cash received by the Borrower or any such
Subsidiary in connection with such exchange shall be treated
as Net Cash Proceeds subject to Section 2.06(b) and any cash
paid by the Borrower or any Subsidiary in connection with
such exchange shall be treated as an acquisition expenditure
under Section 5.02(f)(v); and
(E) within fifteen Business Days after each
exchange under this Section 5.02(e)(vii), the Borrower shall
deliver to the Administrative Agent, on behalf of the Lender
Parties, a certificate identifying the assets or property
disposed of and acquired in such exchange, and stating (a)
that immediately before and after giving effect thereto, no
Default or Event or Default existed, (b) that the total
consideration received by the Borrower or such Subsidiary
for such assets or property has been determined by the
Borrower or such Subsidiary to be not less than the fair
market value of the assets or property exchanged, and (c)
the amount, if any, of the cash paid or Net Cash Proceeds
received in connection with such exchange.
76
(f) Investments in Other Persons. Make or hold, or permit
----------------------------
any of its Subsidiaries to make or hold, any Investment in any
Person, except:
(i) Investments by the Borrower and its
Subsidiaries in Cash Equivalents;
(ii) Investments existing on the Closing Date and
described on Schedule 4.01(b) hereto;
(iii) Investments by the Borrower in Hedge Agreements
permitted under Section 5.02(b) (iii);
(iv) Investments in accounts and notes payable in
the ordinary course of business, including notes received in
transactions permitted under Section 5.02(e)(vi);
(v) the purchase or other acquisition of (1) Equity
Interests in any Domestic Person that, upon the consummation
thereof, will be more than 50% owned by the Borrower or one
or more of its wholly owned Subsidiaries (including, without
limitation, as a result of a merger or consolidation) or
(2) all or substantially all the property and assets of a
Person or consisting of a line of business or business unit
of a Person; provided that, with respect to each purchase or
other acquisition made pursuant to this clause (v):
(A) the lines of business of the Person to be
(or the property and assets of which are to be) so
purchased or otherwise acquired shall be
substantially the same lines of business as one or
more of the businesses of the Borrower and its
Subsidiaries or a business that is incidental or
related thereto;
(B) such purchase or other acquisition shall
not include or result in any contingent liabilities
that could reasonably be expected to be material and
adverse to the business, financial condition,
operations or prospects of the Borrower and its
Subsidiaries, taken as a whole (as determined in good
faith by the board of directors (or the persons
performing similar functions) of the Borrower or such
Subsidiary if the board of directors is otherwise
approving such transaction and, in each other case,
by a Responsible Officer);
(C) the total cash consideration (excluding
all Equity Interests issued or transferred to the
sellers thereof but including the aggregate amounts
paid or to be paid under deferred purchase price,
noncompete, consulting and other similar agreements
with the sellers thereof and all assumptions of debt,
liabilities and other obligations in connection
therewith) paid by or on behalf of the Borrower and
its Subsidiaries for any such purchase or other
acquisition (or any series of related purchases or
acquisitions) shall not exceed $50,000,000 unless
such purchase or acquisition has been approved by the
Required Lenders, and for all such purchases or
acquisitions effected during the term of this
Agreement shall not exceed $250,000,000; provided
that such amount shall be increased to $450,000,000
at all times after the Leverage Ratio is less than or
equal to 2.75:1;
(D) (1) immediately before and immediately
after giving pro forma effect to any such purchase or
other acquisition, no Default shall have occurred and
be continuing and (2) immediately after giving effect
to such purchase or other acquisition, the Borrower
and its Subsidiaries shall be in pro forma
77
compliance with all of the covenants set forth in
Section 5.04, such compliance to be determined on the
basis of the Required Financial Information most
recently delivered to the Administrative Agent and
the Lender Parties as though such purchase or other
acquisition had been consummated as of the first day
of the fiscal period covered thereby; and
(E) the Borrower shall have delivered to the
Administrative Agent, on behalf of the Lender
Parties, at least three Business Days prior to the
date on which any such purchase or other acquisition
in which the total cash consideration is more than
$30,000,000 is to be consummated, a certificate of a
Responsible Officer, in form and substance reasonably
satisfactory to the Administrative Agent, certifying
that all of the requirements set forth in this clause
(v) have been satisfied or will be satisfied on or
prior to the consummation of such purchase or other
acquisition;
(vi) Investments by the Borrower or any Subsidiary
in 50% or less of the Equity Interests in another Person
(the "Minority Investment"), provided that (i) the Borrower
or any Subsidiary owns at least 20% (on a fully diluted
basis) of the issued and outstanding Equity Interests in
such Person, (ii) the aggregate outstanding amount of
Minority Investments made by the Borrower and any Subsidiary
shall not exceed $60,000,000 at any one time, (iii) the
Borrower or any Subsidiary shall have full control over all
bank accounts of such Person if the Borrower or any
Subsidiary is the largest holder of Equity Interests in such
Person, (iv) the Borrower or any Subsidiary shall control or
act as the managing general partner of such Person if such
Person is a partnership and if the Borrower or any
Subsidiary is the largest holder of Equity Interests in such
Person, and (v) immediately before and after giving effect
thereto, no Default or Event of Default shall exist;
(vii) notes from employees issued to the Borrower
representing payment for capital stock of the Borrower or
representing payment of the exercise price of options to
purchase capital stock of the Borrower, and employee
relocation expenses incurred in the ordinary course of
business, in an aggregate amount at any time outstanding not
to exceed $10,000,000; and
(viii) Investments of the Borrower or any of its
Subsidiaries in any Subsidiary of the Borrower; provided
that no such Investments in non-wholly-owned Subsidiaries
shall be made unless, after giving pro forma effect thereto,
the Borrower and its Subsidiaries would be in compliance
with Section 5.02(l) and Section 5.04(d).
(g) Restricted Payments. Declare or pay any dividends,
-------------------
purchase, redeem, retire, defease or otherwise acquire for value any
of its Equity Interests now or hereafter outstanding, return any
capital to its stockholders, partners or members (or the equivalent
Persons thereof) as such, make any distribution of assets, Equity
Interests, obligations or securities to its stockholders, partners
or members (or the equivalent Persons thereof) as such, or permit
any of its Subsidiaries to do any of the foregoing, or permit any of
its Subsidiaries to purchase, redeem, retire, defease or otherwise
acquire for value any Equity Interests in the Borrower, except that,
so long as no Default shall have occurred and be continuing at the
time of any action described below or would result therefrom:
(i) the Borrower may (A) declare and pay
dividends and distributions payable only in its common
Equity Interests, (B) except to the extent the Net Cash
78
Proceeds thereof are required to be applied to the
prepayment of the Advances pursuant to Section 2.06(b),
purchase, redeem, retire, defease or otherwise acquire
Equity Interests with the proceeds received
contemporaneously from the issue of new Equity Interests
with equal or inferior voting powers, designations,
preferences and rights, and (C) repurchase its Equity
Interests owned by management or employees and physicians
under contract with the Borrower or any of its Subsidiaries
in an amount not in excess of $10,000,000 in any twelve
month period;
(ii) any Subsidiary of the Borrower may (A)
declare and pay cash dividends to the Borrower, and (B)
declare and pay cash dividends to any other Loan Party of
which it is a Subsidiary;
(iii) any of the non-wholly owned Subsidiaries of
the Borrower may declare and pay or make dividends and other
distributions to its shareholders, partners or members (or
the equivalent persons thereof) generally so long as the
Borrower and each of the Subsidiaries that own any of the
Equity Interests therein receive at least their respective
proportionate shares of any such dividend, distribution
(based on upon their relative holdings of the Equity
Interests therein and taking into account the relative
preferences, if any, of the various classes of the Equity
Interests therein); and
(iv) the Borrower may purchase, redeem or
otherwise acquire for value any of its Equity Interests in
an aggregate amount not in excess of (A) $50,000,000 in the
aggregate during the term of this Agreement; plus (B)
$50,000,000, in the aggregate during the term of this
Agreement, provided that (1) the Share Repurchase Ratio is
not more than 0.85:1, and (2) for the 60 day period
immediately preceding each such purchase the sum of the
aggregate outstanding amount of all Revolving Credit
Borrowings shall not exceed $75,000,000; plus (C) commencing
after the second anniversary of the Closing Date,
$50,000,000 in the aggregate during the term of this
Agreement; provided that (1) the Share Repurchase Ratio is
not more than 0.85:1, and (2) for the 60 day period
immediately preceding each such purchase the sum of the
aggregate outstanding amount of all Revolving Credit
Borrowings shall not exceed $75,000,000.
(h) Accounting Changes. Make or permit, or permit any of
------------------
its Subsidiaries to make or permit, any change in (i) accounting
policies or reporting practices, except as allowed by generally
accepted accounting principles, or (ii) Fiscal Year.
(i) Prepayments, Etc., of Subordinated Debt. Except as
---------------------------------------
permitted under Section 5.02(g)(iv), (i) Prepay, redeem, purchase,
defease or otherwise satisfy prior to the scheduled maturity thereof
in any manner, or make any payment in violation of any subordination
terms of, any Subordinated Debt, or give any notice in respect
thereof, or (ii) amend, modify or change in any manner any term or
condition of any of the Subordinated Notes Documents, or permit any
of its Subsidiaries to do any of the foregoing, except that if such
Subordinated Debt is convertible into common stock of the Borrower,
the Borrower, subject to the approval of the Administrative Agent
(which approval shall not unreasonably be withheld), may give notice
with respect thereof if the purpose of such notice is to force the
holders of such Subordinated Debt to convert such Subordinated Debt
into common stock of the Borrower and thereafter the Borrower may
exercise any right it may have to so redeem all or any part of such
Subordinated Debt.
(j) Negative Pledge. Enter into or suffer to exist, or
---------------
permit any of its Subsidiaries to enter into or suffer to exist, any
agreement prohibiting or conditioning the creation or assumption of
any Lien upon any of its property or assets except (i) in favor of
the Secured Parties or (ii) in
79
connection with (A) any Debt permitted by Section 5.02(b)(v) solely to the
extent that the agreement or instrument governing such Debt prohibits a
Lien on the property acquired with the proceeds of such Debt, or (B) any
Capitalized Lease permitted by Section 5.02(b)(vi) solely to the extent
that such Capitalized Lease prohibits a Lien on the property subject
thereto, or (C) any Debt outstanding on the date any Subsidiary of the
Borrower becomes such a Subsidiary (so long as such agreement was not
entered into solely in contemplation of such Subsidiary becoming a
Subsidiary of the Borrower), or (D)solely with respect to Subsidiaries
that are not Guarantors, restrictions contained in the Constitutive
Documents of such Subsidiaries.
(k) Payment Restrictions Affecting Subsidiaries. Directly or
-------------------------------------------
indirectly, enter into or suffer to exist, or permit any of its
Subsidiaries to enter into or suffer to exist, any agreement or arrangement
limiting the ability of any of its Subsidiaries to declare or pay dividends
or other distributions in respect of its Equity Interests or repay or
prepay any Debt owed to, make loans or advances to, or otherwise transfer
assets to or invest in, the Borrower or any Subsidiary of the Borrower
(whether through a covenant restricting dividends, loans, asset transfers
or investments, a financial covenant or otherwise), except (i) the Loan
Documents, (ii) any agreement in effect at the time such Subsidiary becomes
a Subsidiary of the Borrower, so long as such agreement was not entered
into solely in contemplation of such Person becoming a Subsidiary of the
Borrower, (iii) restrictions on transfer contained in Debt incurred
pursuant to Sections 5.02(b)(v) and (vi); provided, that such restrictions
relate only to the transfer of the property financed with such Debt; (iv)
in connection with and pursuant to refinancing Debt under Section
5.02(b)(xiii), replacements of restrictions that are not more restrictive
than those being replaced and do not apply to any other Person or assets
than those that would have been covered by the restrictions in the Debt so
refinanced; and (v) solely with respect to Subsidiaries that are not
Guarantors, restrictions under the Constitutive Documents governing such
Subsidiary: (A) with respect to existing Subsidiaries, existing on the date
of this Agreement; and (B) with respect to Subsidiaries created or acquired
after the date of this Agreement: (1) prohibiting such Subsidiary from
guaranteeing Debt of the Borrower or another Subsidiary; (2) on dividend
payments and other distributions solely to permit pro rata dividends and
other distributions in respect of any Equity Interests of such Subsidiary;
(3) limiting transactions with the Borrower or another Subsidiary to those
with terms that are fair and reasonable to such Subsidiary and no less
favorable to such Subsidiary than could have been obtained in an arm's
length transaction with an unrelated third party; and (vi) encumbrances or
restrictions (A) that restrict in a customary manner the subletting,
assignment or transfer of any property or asset that is subject to a lease,
license or similar contract entered into in the ordinary course of
business, or the assignment or transfer of any lease, license or contract
entered into in the ordinary course of business and (B) arising by virtue
of any transfer of, agreement to transfer, option or right with respect to,
or Lien on, any property or assets of the Borrower or any Subsidiary.
(l) Non-Wholly-Owned Subsidiaries. Permit at any time (x) the
-----------------------------
aggregate total assets (calculated without duplication) at such time of all
Subsidiaries of the Borrower formed or acquired after April 30, 1998 that
are not Guarantors, plus (y) the aggregate total Investments made during
the period from April 30, 1998 to such time (calculated without duplication
and excluding Investments made pursuant to Section 5.02(f)(vi) to the
extent the proceeds thereof were used to acquire Equity Interests or assets
included in (x) above) by the Loan Parties in all Subsidiaries of the
Borrower that are not Guarantors, less (z) the aggregate total assets at
such time of all Subsidiaries of the Borrower existing on April 30, 1998
that became Guarantors after April 30, 1998, to exceed 10% of the
Consolidated total assets of the Borrower and its Subsidiaries.
80
(m) Issuance of Additional Stock. Permit any of its Subsidiaries to
----------------------------
issue any additional Equity Interests, except as follows:
(i) in connection with a permitted Investment or to employees
or consultants in the ordinary course of business;
(ii) the Borrower and any Subsidiary thereof msy organize new
wholly-owned Subsidiaries and any Subsidiary may issue additional
Equity Interests to the Borrower or to a wholly-owned Subsidiary of
the Borrower;
(iii) subject to compliance with the provisions this Agreement,
including Section 5.02(1) and Section 5.04(d), the Borrower and its
Subsidiaries may (A) organize new non-wholly-owned Subsidiaries, and
(B) (i) cause Subsidiaries to issue additional Equity Interests or
(ii) sell outstanding Equity Interests therein, in each case to
Persons other than Affiliates of the Borrower or its Subsidiaries.
SECTION 5.03. Reporting Requirements. So long as any Advance or any other
------------------------------------
Obligation of any Loan Party under any Loan Document shall remain unpaid, any
Letter of Credit shall be outstanding or any Lender Party shall have any
Commitment hereunder, the Borrower will furnish to the Agents and the Lender
Parties:
(a) Default Notice. As soon as possible and in any event within five
--------------
days after the Borrower knows or reasonably should have known of the
occurrence of a Default or any event, development or occurrence reasonably
likely to have a Material Adverse Effect continuing on the date of such
statement, a statement of the chief financial officer of the Borrower
setting forth details of such Default or other event, development or
occurrence and the action that the Borrower has taken and proposes to take
with respect thereto.
(b) Annual Financials. As soon as available and in any event within
-----------------
90 days after the end of each Fiscal Year, a copy of the annual audit
report for such year for the Borrower and its Subsidiaries, including
therein Consolidated and consolidating balance sheets of the Borrower and
its Subsidiaries as of the end of such Fiscal Year and a Consolidated and
consolidating statements of income and a Consolidated statement of cash
flows of the Borrower and its Subsidiaries for such Fiscal Year, in each
case accompanied by an unqualified opinion of KPMG LLP or other independent
public accountants of recognized national standing, together with (i) a
certificate of such accounting firm to the Lender Parties stating that in
the course of the regular audit of the business of the Borrower and its
Subsidiaries, which audit was conducted by such accounting firm in
accordance with generally accepted auditing standards, such accounting firm
has obtained no knowledge that a Default has occurred and is continuing, or
if, in the opinion of such accounting firm, a Default has occurred and is
continuing, a statement as to the nature thereof, (ii) a schedule in form
satisfactory to the Administrative Agent of the computations used by such
accountants in determining, as of the end of such Fiscal Year, compliance
with the covenants contained in Section 5.04, provided that in the event of
any change in generally accepted accounting principles used in the
preparation of such financial statements, the Borrower shall also provide,
if necessary for the determination of compliance with Section 5.04 from
GAAP, a statement of reconciliation conforming such financial statements to
GAAP and (iii) a certificate of the Chief Financial Officer of the Borrower
stating that to the best of such officer's knowledge, no Default has
occurred and is continuing or, if a Default has occurred and is continuing,
a statement as to the nature thereof and the action that the Borrower has
taken and proposes to take with respect thereto.
81
(c) Quarterly Financials. As soon as available and in any event
--------------------
within 45 days after the end of each of the first three quarters of each
Fiscal Year, Consolidated and consolidating balance sheets of the Borrower
and its Subsidiaries as of the end of such quarter and Consolidated and
consolidating statements of income for the period commencing at the end of
the previous fiscal quarter and ending with the end of such fiscal quarter
and Consolidated and consolidating statements of income and a Consolidated
statement of cash flows of the Borrower and its Subsidiaries for the period
commencing at the end of the previous Fiscal Year and ending with the end
of such quarter, setting forth in each case in comparative form the
corresponding figures for the corresponding date or period of the preceding
Fiscal Year, all in reasonable detail and duly certified (subject to normal
year-end audit adjustments) by the Chief Financial Officer of the Borrower
as having been prepared in accordance with generally accepted accounting
principles (except that such financial statements may not contain all
required notes and may be subject to year end audit adjustments), together
with (i) a certificate of said officer stating that to the best of such
officer's knowledge, no Default has occurred and is continuing or, if a
Default has occurred and is continuing, a statement as to the nature
thereof and the action that the Borrower has taken and proposes to take
with respect thereto, (ii) a schedule in form satisfactory to the
Administrative Agent of the computations used by the Borrower in
determining compliance with the covenants contained in Section 5.04,
provided that in the event of any change in generally accepted accounting
principles used in the preparation of such financial statements as compared
to GAAP, the Borrower shall also provide, if necessary for the
determination of compliance with Section 5.04, a statement of
reconciliation conforming such financial statements to GAAP, and (iii) a
report (in a form satisfactory to the Administrative Agent) specifying all
permitted Investments made during such quarter and during the period from
the date hereof to the end of such quarter and specifying the total
consideration paid with respect to each such Investment.
(d) Annual Forecasts. As soon as available and in any event no later
----------------
than 30 days after the end of each Fiscal Year, forecasts prepared by
management of the Borrower, in form satisfactory to the Administrative
Agent, of Consolidated balance sheets, income statements and cash flow
statements of the Borrower and its Subsidiaries on a quarterly basis for
the Fiscal Year following such Fiscal Year and on an annual basis for each
Fiscal Year thereafter until the Termination Date.
(e) Litigation. (i) Promptly after the commencement thereof, notice
----------
of all actions, suits, investigations, litigation and proceedings before
any Governmental Authority or arbitrator, affecting any Loan Party or any
of its Subsidiaries of the type described in Section 4.01(f), and promptly
after the occurrence thereof, notice of any material adverse change in the
status or the financial effect on any Loan Party or any of its Subsidiaries
of the litigation from that described on Schedule 4.01(f) hereto, and (ii)
prompt written notice of: (A) any citation, summons, subpoena, order to
show cause or other document naming the Borrower or any of its Subsidiaries
a party to any proceeding before any Governmental Authority that could
reasonably be expected to have a Material Adverse Effect or that expressly
calls into question the validity or enforceability of any of the Loan
Documents, and include with such notice a copy of such citation, summons,
subpoena, order to show cause or other document, (B) any lapse or other
termination of any material intellectual property, license, permit,
franchise or other authorization issued to the Borrower or any of its
Subsidiaries by any Person or Governmental Authority, or (C) any refusal by
any Person or Governmental Authority to renew or extend such material
intellectual property, license, permit, franchise or other authorization,
which lapse, termination, refusal or dispute could reasonably be expected
to have a Material Adverse Effect.
(f) Securities Reports. Promptly after the sending or filing thereof,
------------------
copies of all proxy statements, financial statements and reports that any
Loan Party or any of its Subsidiaries
82
sends to its stockholders, and copies of all regular, periodic and special
reports, and all registration statements, that any Loan Party or any of its
Subsidiaries files with the Securities and Exchange Commission or any
governmental authority that may be substituted therefor, or with any
national securities exchange.
(g) ERISA.
-----
(i) ERISA Events and ERISA Reports. (A) Promptly and in any
------------------------------
event within 10 days after any Loan Party or any ERISA Affiliate knows
or has reason to know that any ERISA Event has occurred, a statement
of the Chief Financial Officer of the Borrower describing such ERISA
Event and the action, if any, that such Loan Party or such ERISA
Affiliate has taken and proposes to take with respect thereto and (B)
on the date any records, documents or other information must be
furnished to the PBGC with respect to any Plan pursuant to Section
4010 of ERISA, a copy of such records, documents and information.
(ii) Plan Terminations. Promptly and in any event within two
-----------------
Business Days after receipt thereof by any Loan Party or any ERISA
Affiliate, copies of each notice from the PBGC stating its intention
to terminate any Plan or to have a trustee appointed to administer any
Plan.
(iii) Plan Annual Reports. Promptly and in any event within 30
-------------------
days after the filing thereof with the Internal Revenue Service,
copies of each Schedule B (Actuarial Information) to the annual report
(Form 5500 Series) with respect to each Plan.
(iv) Multiemployer Plan Notices. Promptly and in any event
--------------------------
within five Business Days after receipt thereof by any Loan Party or
any ERISA Affiliate from the sponsor of a Multiemployer Plan, copies
of each notice concerning (A) the imposition of Withdrawal Liability
by any such Multiemployer Plan, (B) the reorganization or termination,
within the meaning of Title IV of ERISA, of any such Multiemployer
Plan or (C) the amount of liability incurred, or that may be incurred,
by such Loan Party or any ERISA Affiliate in connection with any event
described in clause (A) or (B).
(h) Environmental Conditions. Promptly after the assertion or
------------------------
occurrence thereof, notice of any Environmental Action against or of any
noncompliance by any Loan Party or any of its Subsidiaries with any
Environmental Law or Environmental Permit that could reasonably be expected
to have a Material Adverse Effect.
(i) Other Information. Such other information respecting the
-----------------
business, condition (financial or otherwise), operations, performance,
properties or prospects of any Loan Party or any of its Subsidiaries as any
Agent or any Lender Party, through the Administrative Agent, may from time
to time reasonably request.
SECTION 5.04. Financial Covenants. So long as any Advance or any other
----------------------------------
Obligation of any Loan Party under any Loan Document shall remain unpaid, any
Letter of Credit shall be outstanding or any Lender Party shall have any
Commitment hereunder, the Borrower will:
83
(a) Leverage Ratio. Maintain a Leverage Ratio at all times during each
--------------
period set forth below of not more than the amount set forth below opposite such
period:
===================================================================
Period Ratio
===================================================================
June 30, 2001 through 4.00:1
September 30, 2001
===================================================================
From and including October 1, 2001 through 3.75:1
September 30, 2002
===================================================================
From and including October 1, 2002 through 3.50:1
September 30, 2003
===================================================================
From and including October 1, 2003 and 3.25:1
thereafter
===================================================================
(b) Fixed Charge Coverage Ratio. Maintain a Fixed Charge Coverage Ratio as
---------------------------
of the last day of each Measurement Period set forth below of not less than the
amount set forth below opposite such Measurement Period:
==================================================================
Measurement Period Ending In Ratio
==================================================================
March 31, 2001 1.25:1
==================================================================
June 30, 2001 1.25:1
==================================================================
September 30, 2001 1.25:1
==================================================================
December 31, 2001 1.25:1
==================================================================
March 31, 2002 1.375:1
==================================================================
June 30, 2002 1.375:1
==================================================================
September 30, 2002 1.375:1
==================================================================
December 31, 2002 1.375:1
==================================================================
March 31, 2003 1.375:1
==================================================================
June 30, 2003 1.375:1
==================================================================
September 30, 2003 1.375:1
==================================================================
December 31, 2003 and thereafter 1.50:1
==================================================================
(c) Minimum Net Worth. Maintain at all times a Consolidated net worth of
-----------------
the Borrower and its Subsidiari of not less than $250,000,000, plus the sum of
75% of Consolidated Net Income of the Borrower and its Subsidiaries (determined
as of the end of each Fiscal Quarter, but excluding net losses in any Fiscal
Quarter) and 100% of the Net Cash Proceeds received by the Borrower from its
issuance of Equity Interests, in each case determined
84
on a cumulative basis for the period commencing April 1, 2001, minus non-
recurring charges incurred not exceeding in the aggregate $45,000,000
resulting from the write-off of accounts receivable and other related
charges as a result of the pending third party carrier review of claims for
Medicare reimbursement submitted by the Subsidiary of the Borrower
operating the Borrower's Florida laboratory or other Governmental
Reimbursement Program Costs.
(d) Minimum Consolidated EBITDA Ratio. Maintain at all times a
---------------------------------
ratio of Consolidated EBITDA to Consolidated Pre-Minority EBITDA of not
less than 0.8:1.00.
ARTICLE II
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events ("Events of
-------------------------------
Default") shall occur and be continuing:
(a) the Borrower shall fail to pay (i) any principal of any
Advance when the same shall become due and payable, or (ii) within three
Business Days after the date due and payable, any interest on any Advance;
or any of the Loan Parties shall fail to make any other payment under or in
respect of any of the Loan Documents required to have been made by it,
within three Business Days after the same shall become due and payable, in
each case whether by scheduled maturity or at a date fixed for prepayment
or by acceleration, demand or otherwise; or
(b) any representation or warranty made by any of the Loan
Parties (or any of their respective officers) under or in connection with
any of the Loan Documents (including, without limitation, in any
certificate, report, statement or other writing at any time furnished (or
deemed to have been furnished) to the Administrative Agent or any of the
Lender Parties by or on behalf of any of the Loan Parties) shall prove to
have been incorrect in any material respect on the date as of which it was
made or deemed made; or
(c) (i) the Borrower shall fail to perform or observe any term,
covenant or agreement contained in Section 5.01(e) or Section 5.02, 5.03 or
5.04 or (ii) any of the other Loan Parties shall fail to perform or observe
any term, covenant or agreement contained in Section 4 or 7 of the
Subsidiaries Guarantee on its part to be performed or observed; or
(d) any of the Loan Parties shall fail to perform or observe any
term, covenant or agreement contained in any of the Loan Documents on its
part to be performed or observed that is not otherwise referred to in
Section 6.01(c) if such failure shall remain unremedied for at least 30
consecutive days after the earlier of the date on which (i) a Responsible
Officer of the Borrower or any of its Subsidiaries first becomes aware of
such failure and (ii) written notice thereof shall have been given to the
Borrower by the Administrative Agent or any of the Lender Parties; or
(e) (i) the Borrower or any of its Subsidiaries shall fail to
pay any principal of, premium or interest on, or any other amount payable
in respect of, one or more items of Debt of the Borrower and its
Subsidiaries (excluding Debt outstanding hereunder) that is outstanding (or
under which one or more Persons have a commitment to extend credit) in an
aggregate principal amount (or, in the case of any Hedge Agreement, having
an Agreement Value) of at least $10,000,000 at the time of such failure,
when the same becomes due and payable (whether by scheduled maturity,
required prepayment, acceleration, demand or otherwise), and such failure
shall continue after the applicable grace period, if any, specified in the
agreements or instruments relating to all such Debt; or (ii) any other
event shall occur or condition shall exist under the
85
agreements or instruments relating to one or more items of Debt of the
Borrower and its Subsidiaries (excluding Debt outstanding hereunder) that
is outstanding (or under which one or more Persons have a commitment to
extend credit) in an aggregate principal amount (or, in the case of any
Hedge Agreement, having an Agreement Value) of at least $10,000,000 at the
time of such other event or condition, and shall continue after the
applicable grace period, if any, specified in all such agreements or
instruments, if the effect of such event or condition is to accelerate, or
to permit the acceleration of, the maturity of such Debt or otherwise to
cause, or to permit the holder thereof to cause, such Debt to mature; or
(iii) one or more items of Debt of the Borrower and its Subsidiaries
(excluding Debt outstanding hereunder) that is outstanding (or under which
one or more Persons have a commitment to extend credit) in an aggregate
principal amount (or, in the case of any Hedge Agreement, having an
Agreement Value) of at least $10,000,000 shall be declared to be due and
payable or required to be prepaid or redeemed (other than by a regularly
scheduled or required prepayment or redemption), purchased or defeased, or
an offer to prepay, redeem, purchase or defease such Debt shall be required
to be made, in each case prior to the stated maturity thereof; or
(f) the Borrower or any Material Subsidiary or Subsidiaries shall
generally not pay its debts as such debts become due, or shall admit in
writing its inability to pay its debts generally, or shall make a general
assignment for the benefit of creditors; or any proceeding shall be
instituted by or against the Borrower or any Material Subsidiary or
Subsidiaries seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of debtors,
or seeking the entry of an order for relief or the appointment of a
receiver, trustee, administrator or other similar official for it or for
any substantial part of its property and assets and, in the case of any
such proceeding instituted against it (but not instituted by it) that is
being diligently contested by it in good faith, either such proceeding
shall remain undismissed or unstayed for a period of at least 60
consecutive days or any of the actions sought in such proceeding
(including, without limitation, the entry of an order for relief against,
or the appointment of a receiver, trustee, custodian or other similar
official for, it or any substantial part of its property and assets) shall
occur; or any event or action analogous to or having a substantially
similar effect to any of the events or actions set forth above in this
Section 6.01(f) (other than a solvent reorganization) shall occur under the
Requirements of Law of any jurisdiction applicable to the Borrower or any
Material Subsidiary or Subsidiaries; or the Borrower or any Material
Subsidiary or Subsidiaries shall take any corporate, partnership, limited
liability company or other similar action to authorize any of the actions
set forth above in this Section 6.01(f); provided that any action or
circumstance permitted under Section 5.01(h) shall not be deemed to result
in an Event of Default under this Section 6.01(f); or
(g) one or more judgments or orders for the payment of money in
excess of $10,000,000 in the aggregate shall be rendered against one or
more of the Borrower and its Subsidiaries and shall remain unsatisfied and
there shall be any period of at least 30 consecutive Business Days during
which a stay of enforcement of any such judgment or order, by reason of a
pending appeal or otherwise, shall not be in effect; provided, however,
that any such judgment or order shall not give rise to an Event of Default
under this Section 6.01(g) if and for so long as (A) the amount of such
judgment or order which remains unsatisfied is covered by a valid and
binding policy of insurance between the defendant and the insurer covering
full payment thereof and (B) such insurer has been notified, and has not
disputed the claim made for payment, of the amount of such judgment or
order; or
(h) one or more nonmonetary judgments or orders (including, without
limitation, writs or warrants of attachment, garnishment, execution,
distraint or similar process) shall be
86
rendered against the Borrower or any of its Subsidiaries that, either
individually or in the aggregate, is reasonably expected to have a Material
Adverse Effect and there shall be any period of at least 30 consecutive Business
Days during which a stay of enforcement of any such judgment or order, by reason
of a pending appeal or otherwise, shall not be in effect; or
(i) any provision of any of the Loan Documents after delivery thereof
pursuant to Sections 3.01, 5.01(j) or 5.01(k) shall for any reason (other than
pursuant to the terms thereof) cease to be valid and binding on or enforceable
against any of the Loan Parties intended to be a party to it, or any such Loan
Party shall so state in writing;
(j) any Collateral Document or financing statement after delivery thereof
pursuant to Sections 3.01, 5.01(j) or 5.01(k) shall for any reason (other than
pursuant to the terms thereof) cease to create a valid and perfected Lien on any
material portion of the Collateral purported to be covered thereby subject only
to Liens permitted thereby; or
(k) any of the following events or conditions shall have occurred and such
event or condition, when aggregated with any and all other such events or
conditions set forth in this subsection (k), has resulted or is reasonably
expected to result in liabilities of the Loan Parties and/or the ERISA
Affiliates in an aggregate amount exceeding $10,000,000 at any time:
(i) any ERISA Event shall have occurred with respect to a Plan; or
(ii) any of the Loan Parties or any of the ERISA Affiliates shall
have been notified by the sponsor of a Multiemployer Plan that it has
incurred Withdrawal Liability to such Multiemployer Plan; or
(iii) any of the Loan Parties or any of the ERISA Affiliates shall
have been notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization, is insolvent or is being
terminated, within the meaning of Title IV of ERISA, and, as a result of
such reorganization, insolvency or termination, the aggregate annual
contributions of the Loan Parties and the ERISA Affiliates to all of the
Multiemployer Plans that are in reorganization, are insolvent or being
terminated at such time have been or will be increased over the amounts
contributed to such Multiemployer Plans for the plan years of such
Multiemployer Plans immediately preceding the plan year in which such
reorganization, insolvency or termination occurs; or
(iv) any "accumulated funding deficiency" (as defined in Section 302
of ERISA and Section 412 of the Internal Revenue Code), whether or not
waived, shall exist with respect to one or more of the Plans, or any Lien
shall exist on the property and assets of any of the Loan Parties or any of
the ERISA Affiliates in favor of the PBGC or any Plan; or
(l) the Borrower or any of its Subsidiaries shall suspend or discontinue
all or any part of its businesses and operations other than in the ordinary
course of business and such suspension or discontinuance, in the aggregate, is
reasonably expected to have a Material Adverse Effect; or
(m) a Change of Control shall occur;
(n) an "Event of Default" (as defined in any of the Subordinated Notes
Documents) shall have occurred and be continuing under the respective
Subordinated Notes Documents; or
87
(o) The Borrower or any Subsidiary, in each case to the extent it is
engaged in the business of providing services for which Medicare or
Medicaid reimbursement is sought, shall for any reason, including, without
limitation, as the result of any finding, designation or decertification,
lose its right or authorization, or otherwise fail to be eligible, to
participate in Medicaid or Medicare programs or to accept assignments or
rights to reimbursements under Medicaid regulations or Medicare
regulations, or the Borrower or any Subsidiary has, for any reason, had its
right to receive reimbursements under Medicaid or Medicare regulations
suspended, and such loss, failure or suspension (together with all such
other losses, failures and suspensions continuing at such time) shall have
resulted in (x) a Material Adverse Effect or (y) Consolidated net operating
revenues for the immediately preceding four fiscal quarter period of the
Borrower constituting less than 95% of Consolidated net operating revenues
for any preceding four fiscal quarter period of the Borrower;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Required Lenders, by notice to the Borrower,
declare the Commitments of each of the Lender Parties and the obligation of each
of the Lender Parties to make Advances (other than Letter of Credit Advances by
the Issuing Bank or any of the Revolving Credit Lenders pursuant to Section
2.03(c)(i) and Swing Line Advances by any of the Revolving Credit Lenders
pursuant to Section 2.02(b)(ii)) and of the Issuing Bank to issue Letters of
Credit to be terminated, whereupon the same shall forthwith terminate, and (ii)
shall at the request, or may with the consent, of the Required Lenders, (A) by
notice to the Borrower, declare the Notes, all interest thereon and all other
amounts payable under or in respect of this Agreement and the other Loan
Documents to be forthwith due and payable, whereupon the Notes, all such
interest and all such other amounts shall become and be forthwith due and
payable, without presentment, demand, protest or further notice of any kind, all
of which are hereby expressly waived by the Borrower and (B) by notice to each
party required under the terms of any agreement in support of which a Letter of
Credit is issued, request that all of the Obligations under such agreement be
declared to be due and payable; provided, however, that in the event of an
actual or deemed entry of an order for relief with respect to any Loan Party
under the United States Federal Bankruptcy Code or a similar order or action
under any other Requirements of Law covering the protection of creditors' rights
or the relief of debtors applicable to any Loan Party, (1) the Commitments of
each of the Lender Parties and the obligation of each of the Lender Parties to
make Advances (other than Letter of Credit Advances by the Issuing Bank or any
of the Revolving Credit Lenders pursuant to Section 2.03(c)(i) and Swing Line
Advances by any of the Revolving Credit Lenders pursuant to Section 2.02(b)(ii))
and of the Issuing Bank to issue Letters of Credit shall automatically be
terminated and (2) the Notes, all such interest and all such amounts shall
automatically become and be due and payable, without presentment, demand,
protest or any notice of any kind, all of which are hereby expressly waived by
the Borrower.
SECTION 6.02. Actions in Respect of the Letters of Credit upon Default. If
----------------------------------------------------------------------
any Event of Default shall have occurred and be continuing, the Administrative
Agent may, or shall at the request of the Required Lenders, irrespective of
whether it is taking any of the actions described in Section 6.01 or otherwise,
make demand upon the Borrower to, and forthwith upon such demand the Borrower
will, pay to the Administrative Agent in same day funds at the Administrative
Agent's office designated in such demand, for deposit in the L/C Cash Collateral
Account, an amount equal to the aggregate Available Amount of all Letters of
Credit then outstanding; provided, however, that in the event of an actual or
deemed entry of an order for relief with respect to any Loan Party under the
United States Federal Bankruptcy Code or a similar order or action under any
other Requirements of Law covering the protection of creditors' rights or the
relief of debtors applicable to any Loan Party, the Borrower, without
requirement of demand by the Administrative Agent or any other Person, will
forthwith pay to the Administrative Agent in same day funds at the
Administrative Agent's office for deposit in the L/C Cash Collateral Account an
amount equal to such aggregate Available Amount. If at any time the
Administrative Agent determines that any funds held in the L/C Cash Collateral
Account are subject to
88
any right or claim of any Person other than the Secured Parties or that the
total amount of such funds is less than the aggregate Available Amount of all
Letters of Credit, the Borrower will, forthwith upon demand by the
Administrative Agent, pay to the Administrative Agent, as additional funds to be
deposited and held in the L/C Cash Collateral Account, an amount equal to the
excess of (a) such aggregate Available Amount over (b) the total amount of
funds, if any, then held in the L/C Cash Collateral Account that the
Administrative Agent determines to be free and clear of any such right and
claim. Upon the drawing of any Letter of Credit for which funds are on deposit
in the L/C Cash Collateral Account, such funds shall be applied to reimburse the
Issuing Bank or Revolving Credit Lenders, as applicable, in the manner provided
for in the Security Agreement and to the extent permitted by applicable law.
ARTICLE VII
THE AGENTS
SECTION 7.01. Appointment, Powers and Immunity.
------------------------------------------------
(a) Each Lender Party (in its capacities as a Lender, the Swing Line
Bank (if applicable), the Issuing Bank (if applicable) and on behalf of
itself and its Affiliates as potential Hedge Banks) hereby appoints and
authorizes the Administrative Agent to act as its agent under this
Agreement and the other Loan Documents with such powers and discretion as
are specifically delegated to the Administrative Agent by the terms of this
Agreement and the other Loan Documents, together with such other powers as
are reasonably incidental thereto. The Administrative Agent (which term as
used in this sentence and in Section 7.05(a) and the first sentence of
Section 7.06 shall include its affiliates and its own and its affiliates'
officers, directors, employees, and agents): (i) shall not have any duties
or responsibilities except those expressly set forth in this Agreement and
shall not be a trustee or fiduciary for any Lender Party; (ii) shall not be
responsible to the Lender Parties for any recital, statement,
representation, or warranty (whether written or oral) made in or in
connection with any Loan Document or any certificate or other document
referred to or provided for in, or received by any of them under, any Loan
Document, or for the value, validity, effectiveness, genuineness,
enforceability, or sufficiency of, or the perfection or priority of any
lien or security interest created or purported to be created under or in
connection with, any Loan Document, or any other document referred to or
provided for therein or for any failure by any Loan Party or any other
Person to perform any of its obligations thereunder; (iii) shall not be
responsible for or have any duty to ascertain, inquire into, or verify the
performance or observance of any covenants or agreements by any Loan Party
or the satisfaction of any condition or to inspect the property (including
the books and records) of any Loan Party or any of its Subsidiaries or
Affiliates; (iv) shall not be required to initiate or conduct any
litigation or collection proceedings under any Loan Document; and (v) shall
not be responsible for any action taken or omitted to be taken by it or any
of its directors, officers, agents or employees under or in connection with
any Loan Document, except for its or their own gross negligence or willful
misconduct.
(b) The Administrative Agent shall also act as the "collateral agent"
under the Loan Documents, and each of the Lender Parties (in its capacities
as a Lender, the Swing Line Bank (if applicable), Issuing Bank (if
applicable) hereby appoints and authorizes the Administrative Agent to act
as the agent of such Lender Party for purposes of acquiring, holding and
enforcing any and all Liens on Collateral granted by any of the Loan
Parties to secure any of the Secured Obligations, together with such powers
and discretion as are reasonably incidental thereto. The Administrative
Agent may from time to time in its discretion appoint any of the other
Lender Parties or any of the affiliates of a Lender Party to act as its co-
agent or sub-agent or its attorney-
89
in-fact for any purpose, including for purposes of holding or
enforcing any Lien on the Collateral (or any portion thereof) granted
under the Collateral Documents or of exercising any rights and
remedies thereunder at the direction of the Administrative Agent, and
the Administrative Agent shall not be responsible for the negligence
or misconduct of any such co-agents, sub-agents or attorneys-in-fact
selected by it with reasonable care. In this connection, the
Administrative Agent, as "collateral agent", and such co-agents, sub-
agents and attorneys-in-fact shall be entitled to the benefits of all
provisions of this Article VII (including, without limitation, Section
7.05, as though such co-agents, sub-agents and attorneys-in-fact were
the "collateral agent" under the Loan Documents) as if set forth in
full herein with respect thereto.
(c) The Book Managers, the Syndication Agent and the
Documentation Agents shall not have any powers or discretion under
this Agreement or any of the other Loan Documents other than those
bestowed upon it as a co-agent or sub-agent from time to time by the
Administrative Agent pursuant to subsection (b) of this Section 7.01,
and each of the Lender Parties hereby acknowledges that the Book
Managers, the Syndication Agent and the Documentation Agents shall not
have any liability under this Agreement or any of the other Loan
Documents.
SECTION 7.02. Reliance by Agent. The Administrative Agent shall be
-------------------------------
entitled to rely upon any certification, notice, instrument, writing, or other
communication (including, without limitation, any thereof by telephone or
telecopy) believed by it to be genuine and correct and to have been signed, sent
or made by or on behalf of the proper Person or Persons, and upon advice and
statements of legal counsel (including counsel for any Loan Party), independent
accountants, and other experts selected by the Administrative Agent. The
Administrative Agent may deem and treat the payee of any Note as the holder
thereof for all purposes hereof unless and until the Administrative Agent
receives and accepts an Assignment and Acceptance executed in accordance with
Section 8.07. As to any matters not expressly provided for by this Agreement,
the Administrative Agent shall not be required to exercise any discretion or
take any action, but shall be required to act or to refrain from acting (and
shall be fully protected in so acting or refraining from acting) upon the
instructions of the Required Lenders or, to the extent any action requires the
consent of all Lenders as specifically provided in Section 8.01, upon the
instructions of all Lenders, and such instructions shall be binding on all of
the Lender Parties; provided, however, that the Administrative Agent shall not
be required to take any action that exposes the Administrative Agent to personal
liability or that is contrary to any Loan Document or applicable Requirements of
Law or unless it shall first be indemnified to its satisfaction by the Lender
Parties against any and all liability and expense which may be incurred by it by
reason of taking any such action.
SECTION 7.03. Defaults. The Administrative Agent shall not be deemed
----------------------
to have knowledge or notice of the occurrence of a Default or Event of Default
unless the Administrative Agent has received written notice from a Lender Party
or the Borrower specifying such Default or Event of Default and stating that
such notice is a "Notice of Default". In the event that the Administrative Agent
receives such a notice of the occurrence of a Default or Event of Default, the
Administrative Agent shall give prompt notice thereof to the Lender Parties. The
Administrative Agent shall (subject to Section 7.02) take such action with
respect to such Default or Event of Default as shall reasonably be directed by
the Required Lenders or, to the extent any action requires the consent of all
Lenders as specifically provided in Section 8.01, then as directed by all
Lenders; provided that, unless and until the Administrative Agent shall have
received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable in the best
interest of the Lender Parties.
SECTION 7.04. BofA, BAS and Affiliates. With respect to its
--------------------------------------
Commitments, the Advances made by it and the Note or Notes issued to it, BofA
(and any successor acting as the Administrative
90
Agent) in its capacity as a Lender Party hereunder shall have the same rights
and powers under the Loan Documents as any other Lender Party and may exercise
the same as though it were not acting as the Administrative Agent; and the
term"Lender Party" or"Lender Parties" shall, unless otherwise expressly
indicated, include BofA in its individual capacity. BofA (and any successor
acting as the Administrative Agent), BAS and their respective affiliates may
(without having to account therefor to any Lender Party) accept deposits from,
lend money to, make investments in, provide services to, and generally engage in
any kind of lending, trust, or other business with any Loan Party or any of its
Subsidiaries or Affiliates as if it were not acting as an Agent, and BofA (and
any successor acting as the Administrative Agent), BAS and their respective
affiliates may accept fees and other consideration from any Loan Party or any of
its Subsidiaries or Affiliates, or any Person that may do business with or own
securities of any Loan Party or any such Subsidiary or Affiliate, for services
in connection with this Agreement or otherwise without having to account for the
same to the Lender Parties.
SECTION 7.05. Indemnification.
-----------------------------
(a) The Lenders severally agree to indemnify the Administrative
Agent (to the extent not promptly reimbursed under Section 8.04, but
without limiting the obligations of the Borrower under such Section)
ratably in accordance with their respective Commitments, for any and
all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses (including attorneys' fees), or
disbursements of any kind and nature whatsoever that may be imposed
on, incurred by or asserted against the Administrative Agent in any
way relating to or arising out of any Loan Document or the
transactions contemplated thereby or any action taken or omitted by
the Administrative Agent under any Loan Document (collectively, the
"Indemnified Costs"); provided that no Lender shall be liable for any
of the foregoing to the extent they arise from the gross negligence or
willful misconduct of the Person to be indemnified. In the case of any
claim, investigation, litigation or proceeding for which indemnity
under this Section 7.05(a) applies, such indemnity shall apply whether
or not such claim, investigation, litigation or proceeding is brought
by the Administrative Agent, any of the other Agents, any of the
Lender Parties or a third party. Without limitation of the foregoing,
each Lender severally agrees to reimburse the Administrative Agent
promptly upon demand for its ratable share of any costs or expenses
payable by the Borrower under Section 8.04, to the extent that the
Administrative Agent is not promptly reimbursed for such costs and
expenses (including, without limitation, fees and expenses of counsel)
by the Borrower. In the case of any investigation, litigation or
proceeding giving rise to any Indemnified Costs, this Section 7.05
applies whether any such investigation, litigation or proceeding is
brought by any Lender Party or any other Person. The failure of any
Lender Party to reimburse the Administrative Agent promptly upon
demand for its ratable share of any amount required to be paid by the
Lender Party to the Administrative Agent as provided herein shall not
relieve any other Lender Party of its obligation hereunder to
reimburse the Administrative Agent for its ratable share of such
amount, but no Lender Party shall be responsible for the failure of
any other Lender Party to reimburse the Administrative Agent for such
other Lender Party's ratable share of such amount. Without prejudice
to the survival of any other agreement of any Lender Party hereunder,
the agreement and obligations of each Lender contained in this Section
7.05(a) shall survive the payment in full of principal, interest and
all other amounts payable hereunder and under the other Loan
Documents.
(b) The Revolving Credit Lenders severally agree to indemnify
the Issuing Bank (to the extent not promptly reimbursed under Section
8.04, but without limiting the obligations of the Borrower under such
Section) for such Revolving Credit Lender's Pro Rata Share of any and
all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever that may be imposed on, incurred by, or asserted
against the Issuing Bank in any way relating to or arising out of the
Loan Documents or the
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transactions contemplated thereby or any action taken or omitted by
the Issuing Bank under the Loan Documents; provided, however, that no
Revolving Credit Lender shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the
Issuing Bank's gross negligence or willful misconduct. In the case of
any claim, investigation, litigation or proceeding for which indemnity
under this Section 7.05(b) applies, such indemnity shall apply whether
or not such claim, investigation, litigation or proceeding is brought
by the Issuing Bank, any of the other Lender Parties or a third party.
Without limitation of the foregoing, each Revolving Credit Lender
severally agrees to reimburse the Issuing Bank promptly upon demand
for its Pro Rata Share of any costs and expenses (including, without
limitation, fees and expenses of counsel) payable by the Borrower
under Section 8.04, to the extent that the Issuing Bank is not
promptly reimbursed for such costs and expenses by the Borrower. The
failure of any Revolving Credit Lender to reimburse the Issuing Bank
promptly upon demand for its Pro Rata Share of any amount required to
be paid by the Revolving Credit Lenders to the Issuing Bank as
provided herein shall not relieve any other Revolving Credit Lender of
its obligation hereunder to reimburse the Issuing Bank for its Pro
Rata Share of such amount, but no Revolving Credit Lender shall be
responsible for the failure of any other Revolving Credit Lender to
reimburse the Issuing Bank for such other Revolving Credit Lender's
Pro Rata Share of such amount. Without prejudice to the survival of
any other agreement of any Revolving Credit Lender hereunder, the
agreement and obligations of each Revolving Credit Lender contained in
this Section 7.05(b) shall survive the payment in full of principal,
interest and all other amounts payable hereunder and under the other
Loan Documents.
SECTION 7.06. Non-Reliance on Agent and Other Lender Parties. Each
------------------------------------------------------------
Lender Party agrees that it has, independently and without reliance on any Agent
or any other Lender Party, and based on such documents and information as it has
deemed appropriate, made its own credit analysis of the Loan Parties and their
Subsidiaries and decision to enter into this Agreement and that it will,
independently and without reliance upon any Agent or any other Lender Party, and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own analysis and decisions in taking or not taking
action under the Loan Documents. Except for notices, reports, and other
documents and information expressly required to be furnished to the Lender
Parties by the Administrative Agent hereunder, the Administrative Agent shall
not have any duty or responsibility to provide any Lender Party with any credit
or other information concerning the affairs, financial condition, or business of
any Loan Party or any of its Subsidiaries or Affiliates that may come into the
possession of the Administrative Agent or any of its affiliates.
SECTION 7.07. Resignation of Administrative Agent. The Administrative
-------------------------------------------------
Agent may resign at any time by giving notice thereof to the Lender Parties and
the Borrower. Upon any such resignation, the Required Lenders shall have the
right to appoint a successor Administrative Agent. If no successor Agent shall
have been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Administrative Agent's giving of
notice of resignation, then the retiring Administrative Agent may, on behalf of
the Lender Parties, appoint a successor Administrative Agent which shall be a
commercial bank organized under the laws of the United States of America or of
any state thereof and having combined capital and surplus of at least
$100,000,000. If within 45 days after written notice is given of the retiring
Administrative Agent's resignation under this Section 7.07 no successor
Administrative Agent shall have been appointed and shall have accepted such
appointment, then on such 45th day (a) the retiring Administrative Agent's
resignation shall become effective, (b) the retiring Administrative Agent shall
thereupon be discharged from its duties and obligations under the Loan Documents
and (c) the Required Lenders shall thereafter perform all duties and obligations
of the retiring Administrative Agent under the Loan Documents until such time,
if any, as the Required Lenders appoint a successor Administrative Agent as
provided above in this Section 7.07. Upon the acceptance of
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any appointment as Administrative Agent hereunder by a successor and upon the
execution and filing or recording of such financing statements, or amendments
thereto, and such other instruments or notices, as may be necessary or
desirable, or as the Required Lenders may request, in order to continue the
perfection of the Liens granted or purported to be granted by the Collateral
Documents, such successor Administrative Agent shall thereupon succeed to and
become vested with all the rights, powers, discretion, privileges, and duties of
the retiring Agent, and the retiring Administrative Agent shall be discharged
from its duties and obligations under the Loan Documents. After any retiring
Agent's resignation hereunder as Administrative Agent, the provisions of this
Article VII shall continue in effect for its benefit in respect of any actions
taken or omitted to be taken by it while it was acting as Administrative Agent.
SECTION 7.08. Release of Collateral. Upon the payment of all Notes and all
-----------------------------------
other amounts payable under the Loan Documents, the termination of all Letters
of Credit and the termination of all commitments of the Lender Parties
hereunder, the Lender Parties hereby agree that all Collateral is released from
the security interest granted under the respective Collateral Documents, and
upon (i) the sale, lease, transfer or other disposition of any item of
Collateral of any Loan Party, (ii) the issuance or sale pursuant to Section
5.02(m)(iii) of any Equity Interests causing a Subsidiary of the Borrower to
cease to be wholly-owned by the Borrower or any of its Subsidiaries, in each
case in accordance with the terms of the Loan Documents, the Lender Parties
hereby agree that such item of Collateral in the case of clause (i), or all
Collateral owned by such Subsidiary in the case of clause (ii), shall be
released from the security interest granted under the respective Collateral
Documents. In connection therewith, the Lender Parties hereby irrevocably
authorize the Administrative Agent to release any such Collateral. The
Administrative Agent will, at the Borrower's expense, execute and deliver to the
respective Loan Party such documents as such Loan Party may reasonably request
to evidence the release of such item of Collateral from the security interest
granted under the Collateral Documents.
SECTION 7.09. Release of Guarantor. Upon the sale of outstanding shares of
----------------------------------
capital stock and other equity, ownership and profit interests in any Guarantor
in a transaction which is permitted under Section 5.02(e) and, if applicable,
5.02(m)(iii), then upon request by the Borrower, the Administrative Agent, on
behalf of each Lender Party, shall confirm in writing that the liability of such
Guarantor under the Subsidiary Guaranty is released and discharged effective
when such transaction is consummated and all requirements hereunder in
connection therewith are satisfied, including with respect to the application of
the proceeds of such sale. Such confirmation from the Administrative Agent (a)
shall establish conclusively that the liability of such Guarantor under the
Subsidiaries Guarantee is released and discharged and (b) may be relied on,
without further inquiry, by the purchaser in such transaction and each of its
transferees. Each Lender Party hereby irrevocably authorizes the Administrative
Agent to release any Guarantor from time to time to the extent provided for
herein and to execute any document reasonably required in connection therewith.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any provision of
-----------------------------
this Agreement, the Notes, or any of the other Loan Documents (except to the
extent otherwise expressly provided for therein), nor consent to any departure
by any of the Loan Parties therefrom, shall in any event be effective unless the
same shall be in writing and signed by the Required Lenders, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that:
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(a) no amendment, waiver or consent shall, unless in writing and
signed by all of the Lenders (other than any of the Lenders that is, at such
time, a Defaulting Lender), do any of the following at any time:
(i) waive any of the conditions specified in Section 3.01 or,
in the case of the Initial Extensions of Credit, Section 3.02;
(ii) change the number of Lenders or the percentage of the
Commitments or the aggregate outstanding principal amount of Advances
or the aggregate Available Amount of outstanding Letters of Credit
that, in each case, shall be required for the Lender Parties or any of
them to take any action hereunder;
(iii) except to the extent contemplated herein, release all or
substantially all of the Guarantors that are a party to the Subsidiary
Guarantee from their Obligations thereunder in any transaction or
series of related transactions;
(iv) release all or substantially all of the Collateral in any
transaction or series of related transactions;
(v) amend Section 2.13 or this Section 8.01; or
(vi) amend the definition of Interest Period to include
additional monthly periods for setting the duration of an Interest
Period.
(b) no amendment, waiver or consent shall, unless in writing and
signed by the Required Lenders and each of the Lenders (other than any of
the Lenders that is, at such time, a Defaulting Lender) that has a
Commitment under the Term Facilities or the Revolving Credit Facility or is
owed any amounts under or in respect thereof, if such Lender is directly
affected by such amendment, waiver or consent:
(i) increase the Commitments of such Lender or subject such
Lender to any additional Obligations;
(ii) reduce the principal or interest rate of, or interest on,
the Notes held by such Lender or any fees or other amounts payable
hereunder to such Lender;
(iii) postpone any date scheduled for any payment of principal
of, or interest on, the Notes held by such Lender or any fees or other
amounts payable to such Lender; or
(iv) change the order of application of any prepayment set
forth in Section 2.06 in any manner that materially affects such
Lender; and
provided further that no amendment, waiver or consent shall, unless in
writing and signed by the Swing Line Bank or the Issuing Bank, as the case
may be, in addition to the Lenders required above to take such action,
affect the rights or duties of the Swing Line Bank or the Issuing Bank,
respectively, under this Agreement or any of the other Loan Documents; and
provided further that no amendment, waiver or consent shall, unless in
writing and signed by the Administrative Agent in addition to the Lenders
required above to take such action, affect the rights or duties of the
Administrative Agent under this Agreement or any of the other Loan
Documents. Notwithstanding any of the foregoing provisions of this Section
8.01, none of the defined terms
94
set forth in Section 1.01 shall be amended, supplemented or otherwise
modified hereafter in any manner that would change the meaning, purpose or
effect of this Section 8.01 or any Section referred to herein unless such
amendment, supplement or modification is agreed to in writing by the number
and percentage of Lenders (and the Issuing Bank, the Swing Line Bank and
Administrative Agent, in each case if applicable) otherwise required to
amend such Section under the terms of this Section 8.01.
SECTION 8.02. Notices, Etc.
--------------------------
(a) All notices and other communications provided for hereunder shall
be in writing (including telecopy communication) and mailed, telecopied or
delivered, if to the Borrower, at its address at 21250 Hawthorne Blvd.,
Suite 800, Torrance, California 90503 (Telecopier (310) 792-9281),
Attention: Chief Financial Officer with a copy to Borrower's general
counsel at the same address (Telecopier (310) 792-0044); if to any Initial
Lender, the Swing Line Bank or the Initial Issuing Bank, at its Base Rate
Lending Office specified opposite its name on Schedule I hereto; if to any
other Lender Party, at its Base Rate Lending Office specified in the
Assignment and Acceptance pursuant to which it became a Lender Party; and
if to the Administrative Agent, at its address at Independence Center, 101
North Tryon Street, 15th Floor, Charlotte, North Carolina 28255 (Telecopier
(704) 386-9923), Attention: Corporate Credit Services; or, as to the
Borrower or the Administrative Agent, at such other address as shall be
designated by such party in a written notice to the other parties and, as
to each other party, at such other address as shall be designated by such
party in a written notice to the Borrower and the Administrative Agent. All
such notices and other communications shall, when mailed or telecopied, be
effective when deposited in the mails, or transmitted by telecopier,
respectively, except that notices and communications to any Agent pursuant
to Article II, III or VII shall not be effective until received by such
Agent. Delivery by telecopier of an executed counterpart of a signature
page to any amendment or waiver of any provision of this Agreement or the
Notes or of any Exhibit hereto to be executed and delivered hereunder shall
be effective as delivery of an original executed counterpart thereof.
(b) If any notice required under this Agreement is permitted to be
made, and is made, by telephone, actions taken or omitted to be taken in
reliance thereon by the Administrative Agent or any of the Lender Parties
shall be binding upon the Borrower and the other Loan Parties
notwithstanding any inconsistency between the notice provided by telephone
and any subsequent writing in confirmation thereof provided to the
Administrative Agent or such Lender Party; provided that any such action
taken or omitted to be taken by the Administrative Agent or such Lender
Party shall have been in good faith and in accordance with the terms of
this Agreement.
SECTION 8.03. No Waiver; Remedies. No failure on the part of any Lender
---------------------------------
Party or any Agent to exercise, and no delay in exercising, any right, power or
privilege hereunder or under any Note or any other Loan Document shall operate
as a waiver thereof or consent thereto; nor shall any single or partial exercise
of any such right, power or privilege preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The remedies
herein provided are cumulative and not exclusive of any remedies provided by
applicable law.
SECTION 8.04. Costs and Expenses.
--------------------------------
(a) The Borrower agrees to pay on demand (i) all costs and expenses
of each Agent in connection with the syndication, preparation, execution,
delivery, administration, modification and amendment of, or any consent or
waiver under, the Loan Documents and the other documents to be delivered
thereunder (including, without limitation, (A) all due diligence,
collateral review,
95
syndication, transportation, computer, duplication, appraisal, audit,
insurance, consultant, search, filing and recording fees and expenses and
(B) the reasonable fees and expenses of counsel for the Administrative
Agent (including the cost of internal counsel) with respect thereto, with
respect to advising such Agent as to its rights and responsibilities, or
the perfection, protection or preservation of rights or interests, under
the Loan Documents), and (ii) all costs and expenses of each Agent and each
Lender Party in connection with the enforcement of the Loan Documents and
the other documents to be delivered thereunder, whether in any action, suit
or litigation, or any bankruptcy, insolvency or other similar proceeding
affecting creditors' rights generally (including, without limitation, the
reasonable fees and expenses of counsel (including the cost of internal
counsel) for the Administrative Agent and each Lender Party with respect
thereto).
(b) The Borrower agrees to indemnify, defend and save and hold
harmless each Agent, each Lender Party and each of their affiliates and
their respective affiliates, officers, directors, trustees, employees,
agents and advisors (each, an"Indemnified Party") from and against, and
shall pay on demand, any and all claims, damages, losses, liabilities and
expenses (including, without limitation, reasonable fees and expenses of
counsel) that may be incurred by or asserted or awarded against any
Indemnified Party, in each case arising out of or in connection with or by
reason of (including, without limitation, in connection with any
investigation, litigation or proceeding or preparation of a defense in
connection therewith) (i) the Transaction (or any aspect thereof),
Facilities, the actual or proposed use of the proceeds of the Advances or
the Letters of Credit, the Loan Documents, or any of the transactions
contemplated thereby; (ii) any acquisition or proposed acquisition by the
Borrower or any of its Subsidiaries or Affiliates of all or any portion of
the Equity Interests in or Debt securities or substantially all of the
property and assets of any other Person; or (iii) the actual or alleged
presence of Hazardous Materials on any property of any Loan Party or any of
its Subsidiaries or any Environmental Action relating in any way to any
Loan Party or any of its Subsidiaries, except to the extent such claim,
damage, loss, liability or expense is found in a final, non-appealable
judgment by a court of competent jurisdiction to have resulted from such
Indemnified Party's gross negligence or willful misconduct or have arisen
after such Loan Party or Subsidiary is dispossessed of or relinquishes its
interest in such property. In the case of an investigation, litigation or
other proceeding to which the indemnity in this Section 8.04(b) applies,
such indemnity shall be effective whether or not such investigation,
litigation or proceeding is brought by any Loan Party, its directors,
shareholders or creditors or an Indemnified Party or any other Person,
whether or not any Indemnified Party is otherwise a party thereto and
whether or not the Transaction or any of the other transactions
contemplated hereby is consummated. If and to the extent that the indemnity
in this subsection (b) is unenforceable for any reason other than by
operation of the last clause of the first sentence of this
subsection 8.04(b), the Borrower hereby agrees to make to each applicable
Indemnified Party the maximum contribution to the payment of the claims,
damages, losses, liabilities and expenses (including, without limitation,
reasonable fees and expenses of counsel) for which the indemnity in this
subsection (b) has been determined to be unenforceable that is permitted
under applicable law. The Borrower also agrees not to assert any claim
against any Agent, any Lender Party or any of their respective affiliates,
officers, directors, trustees, employees, agents and advisors, on any
theory of liability, for special, indirect, consequential or punitive
damages arising out of or otherwise relating to the Transaction (or any
aspect thereof) Facilities, the actual or proposed use of the proceeds of
the Advances or the Letters of Credit, the Loan Documents, or any of the
other transactions contemplated hereby.
(c) If any payment of principal of, or Conversion of, any Eurodollar
Rate Advance is made by the Borrower to or for the account of a Lender
Party other than on the last day of the Interest Period for such Advance,
as a result of a payment or Conversion pursuant to Section 2.05(d), 2.06,
2.09(b)(i) or 2.10(d), acceleration of the maturity of the Notes pursuant
to Section
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6.01 or for any other reason, or by an Eligible Assignee to a Lender Party
other than on the last day of the Interest Period for such Advance upon an
assignment of rights and obligations under this Agreement pursuant to
Section 8.07 as a result of a demand by the Borrower pursuant to Section
8.07(a), or if the Borrower fails to make any payment or prepayment of an
Advance for which a notice of prepayment has been given or that is
otherwise required to be made, whether pursuant to Section 2.04, 2.06 or
6.01 or otherwise, the Borrower shall, upon demand by such Lender Party
(with a copy of such demand to the Administrative Agent), pay to the
Administrative Agent for the account of such Lender Party any amounts
required to compensate such Lender Party for any additional losses, costs
or expenses that it may reasonably incur as a result of such payment or
Conversion or such failure to pay or prepay, as the case may be, including,
without limitation, any loss, cost or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by any
Lender Party to fund or maintain such Advance.
(d) If any Loan Party fails to pay when due, after the expiration of
any grace period, if applicable, any costs, expenses or other amounts
payable by it under any Loan Document, including, without limitation, fees
and expenses of counsel and indemnification payments, such amount may be
paid on behalf of such Loan Party by the Administrative Agent or any Lender
Party, in its sole discretion.
(e) Without prejudice to the survival of any other agreement of any
Loan Party hereunder or under any other Loan Document, the agreements and
obligations of the Borrower contained in Sections 2.10 and 2.13 and this
Section 8.04 shall survive the payment in full of principal, interest and
all other amounts payable hereunder and under any of the other Loan
Documents.
SECTION 8.05. Right of Set-off. Upon (a) the occurrence and during the
------------------------------
continuance of any Event of Default and (b) the making of the request or the
granting of the consent specified by Section 6.01 to authorize the
Administrative Agent to declare the Notes due and payable pursuant to the
provisions of Section 6.01, each Agent and each Lender Party and each of their
respective Affiliates is hereby authorized at any time and from time to time, to
the fullest extent permitted by law, to set off and otherwise apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by such Agent, such Lender Party
or such Affiliate to or for the credit or the account of the Borrower against
any and all of the Obligations of the Borrower now or hereafter existing under
the Loan Documents, irrespective of whether such Agent or such Lender Party
shall have made any demand under this Agreement or such Note or Notes and
although such Obligations may be unmatured. Each Agent and each Lender Party
agrees promptly to notify the Borrower after any such set-off and application;
provided, however, that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of each Agent and each
Lender Party and their respective Affiliates under this Section are in addition
to other rights and remedies (including, without limitation, other rights of
set-off) that such Agent, such Lender Party and their respective Affiliates may
have.
SECTION 8.06. Binding Effect. This Agreement shall become effective when it
----------------------------
shall have been executed by the Borrower and each Agent and the Administrative
Agent shall have been notified by each Initial Lender, the Swing Line Bank and
the Initial Issuing Bank that such Initial Lender, the Swing Line Bank or the
Initial Issuing bank has executed it and thereafter shall be binding upon and
inure to the benefit of the Borrower, each Agent and each Lender Party and their
respective successors and assigns, except that the Borrower shall not have the
right to assign its rights hereunder or any interest herein without the prior
written consent of all the Lender Parties.
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SECTION 8.07. Assignments and Participations.
--------------------------------------------
(a) With the consent of the Administrative Agent (which consent shall
not be unreasonably withheld or delayed) and, in the case of any assignment
of a Revolving Credit Commitment, each Issuing Bank (which consent shall be
granted in its sole discretion), each Lender may assign to one or more
Eligible Assignees all or a portion of its rights and obligations under
this Agreement (including, without limitation, all or a portion of its
Commitment or Commitments, the Advances owing to it and the Note or Notes
held by it); provided, however, that (i) each such assignment shall be of a
uniform, and not a varying, percentage of all rights and obligations under
and in respect of any or all Facilities, (ii) except in the case of an
assignment to a Person that, immediately prior to such assignment, was a
Lender, an Affiliate of any Lender or an Approved Fund of any Lender or an
assignment of all of a Lender's rights and obligations under this
Agreement, the aggregate amount of the Commitments being assigned to such
Eligible Assignee pursuant to such assignment (determined as of the date of
the Assignment and Acceptance with respect to such assignment) shall in no
event be less than $1,000,000 (or such lesser amount as shall be approved
by the Administrative Agent and, so long as no Default shall have occurred
and be continuing at the time of effectiveness of such assignment, the
Borrower (in each case, such approval not to be unreasonably withheld or
delayed)) under each Facility for which a Commitment is being assigned,
(iii) each such assignment shall be to an Eligible Assignee, (iv) each such
assignment made as a result of a demand by the Borrower pursuant to Section
8.07(l) shall be arranged by the Borrower after consultation with the
Administrative Agent and shall be either an assignment of all of the rights
and obligations of the assigning Lender under this Agreement or an
assignment of a portion of such rights and obligations made concurrently
with another such assignment or other such assignments that together cover
all of the rights and obligations of the assigning Lender under this
Agreement, (v) no Lender shall be obligated to make any such assignment as
a result of a demand by the Borrower pursuant to Section 8.07(l) unless and
until such Lender shall have received one or more payments from either the
Borrower or one or more Eligible Assignees in an aggregate amount at least
equal to the aggregate outstanding principal amount of the Advances owing
to such Lender, together with accrued interest thereon to the date of
payment of such principal amount and all other amounts payable to such
Lender under this Agreement and (vi) the parties to each such assignment
shall execute and deliver to the Administrative Agent, for its acceptance
and recording in the Register, an Assignment and Acceptance, together with
any Note or Notes subject to such assignment, provided further however,
that the consent of the Administrative Agent will not be required for an
assignment from any Lender to another Lender, an Affiliate of such other
Lender or an Approved Fund of such other Lender.
(b) Upon such execution, delivery, acceptance and recording, from and
after the effective date specified in such Assignment and Acceptance, (i)
the assignee thereunder shall be a party hereto and, to the extent that
rights and obligations hereunder have been assigned to it pursuant to such
Assignment and Acceptance, have the rights and obligations of a Lender or
Issuing Bank, as the case may be, hereunder and (ii) the Lender or Issuing
Bank assignor thereunder shall, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such Assignment and
Acceptance, relinquish its rights (other than its rights under Sections
2.10, 2.13 and 8.04 (and other similar provisions of the Loan Documents
that are specified under the terms of such other Loan Documents to survive
the payment in full of the Obligations of the Loan Parties under or in
respect of the Loan Documents) to the extent any claim thereunder relates
to an event arising prior to such assignment) and be released from its
obligations (other than its obligations under Section 7.05 to the extent
any claim thereunder relates to an event arising prior to such assignment)
under this Agreement (and, in the case of an Assignment and Acceptance
covering all of the remaining portion of an assigning Lender's or
98
Issuing Bank's rights and obligations under this Agreement, such Lender or
Issuing Bank shall cease to be a party hereto). If the assignee is not
incorporated under the laws of the United States of America or a state
thereof, it shall deliver to the Borrower and the Administrative Agent
certification as to exemption from deduction or withholding of Taxes in
accordance with Section 2.13.
(c) By executing and delivering an Assignment and Acceptance, each
Lender Party assignor thereunder and each assignee thereunder confirm to
and agree with each other and the other parties thereto and hereto as
follows: (i) other than as provided in such Assignment and Acceptance, such
assigning Lender Party makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with any Loan Document or the
execution, legality, validity, enforceability, genuineness, sufficiency or
value of, or the perfection or priority of any lien or security interest
created or purported to be created under or in connection with, any Loan
Document or any other instrument or document furnished pursuant thereto;
(ii) such assigning Lender Party makes no representation or warranty and
assumes no responsibility with respect to the financial condition of any
Loan Party or the performance or observance by any Loan Party of any of its
obligations under any Loan Document or any other instrument or document
furnished pursuant thereto; (iii) such assignee confirms that it has
received a copy of this Agreement, together with copies of such documents
and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance; (iv)
such assignee will, independently and without reliance upon any Agent, such
assigning Lender Party or any other Lender Party and based on such
documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action
under this Agreement; (v) such assignee confirms that it is an Eligible
Assignee; (vi) such assignee appoints and authorizes each Agent to take
such action as agent on its behalf and to exercise such powers and
discretion under the Loan Documents as are delegated to such Agent by the
terms hereof and thereof, together with such powers and discretion as are
reasonably incidental thereto; and (vii) such assignee agrees that it will
perform in accordance with their terms all of the obligations that by the
terms of this Agreement are required to be performed by it as a Lender or
Issuing Bank, as the case may be.
(d) The Administrative Agent, acting for this purpose (but only for
this purpose) as the agent of the Borrower, shall maintain at its address
referred to in Section 8.02 a copy of each Assignment and Acceptance
delivered to and accepted by it and a register for the recordation of the
names and addresses of the Lender Parties and the Commitment under each
Facility of, and principal amount of the Advances owing under each Facility
to, each Lender Party from time to time (the "Register"). The entries in
the Register shall be conclusive and binding for all purposes, absent
manifest error, and the Borrower, the Agents and the Lender Parties shall
treat each Person whose name is recorded in the Register as a Lender Party
hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Borrower or any Agent or any Lender Party
at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender Party and an assignee, together with any Note or Notes
subject to such assignment, the Administrative Agent shall, subject, if
applicable, to the approvals specified in Section 8.07(a), if such
Assignment and Acceptance has been completed and is in substantially the
form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii)
record the information contained therein in the Register and (iii) give
prompt notice thereof to the Borrower and each other Agent. In the case of
any assignment by a Lender, promptly after its receipt of such notice, the
Borrower, at its own expense, shall execute and deliver to the
Administrative Agent in exchange for the
99
surrendered Note or Notes a new Note to the order of such Eligible Assignee
in an amount equal to the Commitment assumed by it under each Facility
pursuant to such Assignment and Acceptance and, if any assigning Lender has
retained a Commitment hereunder under such Facility, a new Note to the
order of such assigning Lender in an amount equal to the Commitment
retained by it hereunder. Such new Note or Notes shall be in an aggregate
principal amount equal to the aggregate principal amount of such
surrendered Note or Notes, shall be dated the effective date of such
Assignment and Acceptance and shall otherwise be in substantially the form
of Exhibit A-1, A-2 or A-3 hereto, as the case may be.
(f) Each Issuing Bank may assign to one or more Eligible Assignees
all or a portion of its rights and obligations under the undrawn portion of
its Letter of Credit Commitment at any time; provided, however, that (i)
except in the case of an assignment to a Person that immediately prior to
such assignment was an Issuing Bank or an assignment of all of an Issuing
Bank's rights and obligations under this Agreement, the amount of the
Letter of Credit Commitment of the assigning Issuing Bank being assigned
pursuant to each such assignment (determined as of the date of the
Assignment and Acceptance with respect to such assignment) shall in no
event be less than $10,000,000 and shall be in an integral multiple of
$1,000,000 in excess thereof, (ii) each such assignment shall be to an
Eligible Assignee and (iii) the parties to each such assignment shall
execute and deliver to the Administrative Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance.
(g) Each Lender Party may sell participations to one or more Persons
(other than any Loan Party or any of its Affiliates) in or to all or a
portion of its rights, obligations or rights and obligations under this
Agreement (including, without limitation, all or a portion of its
Commitments, the Advances owing to it and the Note or Notes (if any) held
by it); provided, however, that (i) such Lender Party's obligations under
this Agreement (including, without limitation, its Commitments) shall
remain unchanged, (ii) such Lender Party shall remain solely responsible to
the other parties hereto for the performance of such obligations, (iii)
such Lender Party shall remain the holder of any such Note for all purposes
of this Agreement, (iv) the Borrower, the Agents and the other Lender
Parties shall continue to deal solely and directly with such Lender Party
in connection with such Lender Party's rights and obligations under this
Agreement, (v) the participant shall be entitled to the benefit of the
yield protection provisions contained in Sections 2.10, 2.13 and 8.04 and
the right of set-off contained in Section 8.05 and (vi) no participant
under any such participation shall have any right to approve any amendment
or waiver of any provision of any Loan Document, or any consent to any
departure by any Loan Party therefrom, except to the extent that such
amendment, waiver or consent would reduce the principal of, or stated rate
of interest on, the Notes or any fees or other amounts payable hereunder,
in each case to the extent subject to such participation, postpone any date
scheduled for any payment of principal of, or interest on, the Notes
pursuant to Section 2.04 or 2.07 or any date fixed for any payment of fees
hereunder or any Guaranteed Obligations payable under the Subsidiary
Guaranty, in each case to the extent subject to such participation, or
release all or substantially all of the Collateral.
(h) Any Lender Party may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this
Section 8.07, disclose to the assignee or participant or proposed assignee
or participant any information relating to the Borrower furnished to such
Lender Party by or on behalf of the Borrower; provided, however, that,
prior to any such disclosure, the assignee or participant or proposed
assignee or participant shall agree to preserve the confidentiality of any
Confidential Information received by it from such Lender Party.
100
(i) Notwithstanding any other provision set forth in this Agreement,
any Lender Party may at any time create a security interest in all or any
portion of its rights under this Agreement (including, without limitation,
the Advances owing to it and the Note or Notes held by it) in favor of any
Federal Reserve Bank in accordance with Regulation A of the Board of
Governors of the Federal Reserve System and any Operating Circular issued
by such Federal Reserve Bank. No such assignment shall release the
assigning Lender from its obligations hereunder.
(j) Notwithstanding anything to the contrary contained herein, any
Lender that is a fund that invests in bank loans may create a security
interest in all or any portion of the Advances owing to it and the Note or
Notes held by it to its creditors the trustee or agent or other
representative for holders of obligations owed, or securities issued, by
such fund as security for such obligations or securities, provided, that
unless and until such creditors, trustee or agent or other representative
actually becomes a Lender in compliance with the other provisions of this
Section 8.07, (i) no such pledge shall release the pledging Lender from any
of its obligations under the Loan Documents and (ii) such creditors,
trustee or agent or other representative shall not be entitled to exercise
any of the rights of a Lender under the Loan Documents even though such
creditors, trustee or agent or other representative may have acquired
ownership rights with respect to the pledged interest through foreclosure
or otherwise.
(k) Notwithstanding anything to the contrary contained herein, any
Lender Party (a"Granting Lender") may grant to a special purpose funding
vehicle identified as such in writing from time to time by the Granting
Lender to the Administrative Agent and the Borrower (an"SPC") the option to
provide all or any part of any Advance that such Granting Lender would
otherwise be obligated to make pursuant to this Agreement, provided that
(i) nothing herein shall constitute a commitment by any SPC to fund any
Advance, and (ii) if an SPC elects not to exercise such option or otherwise
fails to make all or any part of such Advance, the Granting Lender shall be
obligated to make such Advance pursuant to the terms hereof. The making of
an Advance by an SPC hereunder shall utilize the Commitment of the Granting
Lender to the same extent, and as if, such Advance were made by such
Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be
liable for any indemnity or similar payment obligation under this Agreement
for which a Lender Party would be liable, (ii) no SPC shall be entitled to
the benefits of Sections 2.10 and 2.13 (or any other increased costs
protection provision) and (iii) the Granting Lender shall for all purposes,
including, without limitation, the approval of any amendment or waiver of
any provision of any Loan Document, remain the Lender Party of record
hereunder. In furtherance of the foregoing, each party hereto hereby agrees
(which agreement shall survive the termination of this Agreement) that,
prior to the date that is one year and one day after the payment in full of
all outstanding commercial paper or other senior Debt of any SPC, it will
not institute against, or join any other person in instituting against,
such SPC any bankruptcy, reorganization, arrangement, insolvency, or
liquidation proceeding under the laws of the United States or any State
thereof. Notwithstanding anything to the contrary contained in this
Agreement, any SPC may (i) with notice to, but without prior consent of,
the Borrower and the Administrative Agent and without paying any processing
fee therefor, assign all or any portion of its interest in any Advance to
the Granting Lender and (ii) disclose on a confidential basis any non-
public information relating to its funding of Advances to any rating
agency, commercial paper dealer or provider of any surety or guarantee or
credit or liquidity enhancement to such SPC. This subsection (k) may not be
amended without the prior written consent of each Granting Lender, all or
any part of whose Advances are being funded by the SPC at the time of such
amendment.
101
(l) In the event that the Borrower shall request that the Lender
Parties enter into any amendment, modification, consent or waiver with
respect to this Agreement or any other Loan Document, and any Lender Party
elects not to enter into such amendment, modification, consent or waiver
(each such Lender Party being a "Dissenting Lender"), then the Borrower
shall have the right upon 10 days' written notice to the Administrative
Agent and such Dissenting Lender, to require each such Dissenting Lender to
assign 100% of the rights and obligations of the Dissenting Lender at par
to any Lender or any other financial institution which satisfies the
requirements of Section 8.07(a) and has been consented to by the
Administrative Agent, the Swing Line Lender and in the case of any
assignment of a Revolving Credit Commitment each Issuing Bank (which
consents in the case of the Administrative Agent and the Swing Line Lender
shall not be unreasonably withheld or delayed). Each such assignment shall
be made pursuant to an Assignment and Acceptance and shall comply with the
other terms of this Section 8.07. The Borrower shall pay to such Dissenting
Lender, concurrently with the effectiveness of such assignment, any amounts
payable under this Agreement that would have been payable if the Borrower
had voluntarily prepaid such Advances. The Dissenting Lender shall not be
required to pay any fee relating to such assignment.
SECTION 8.08. Execution in Counterparts. This Agreement may be executed in
---------------------------------------
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
Delivery by telecopier of an executed counterpart of a signature page to this
Agreement shall be effective as delivery of an original executed counterpart of
this Agreement.
SECTION 8.09. No Liability of the Issuing Bank. The Borrower assumes all
----------------------------------------------
risks of the acts or omissions of any beneficiary or transferee of any Letter of
Credit with respect to its use of such Letter of Credit. Neither the Issuing
Bank nor any of its officers or directors shall be liable or responsible for:
(a) the use that may be made of any Letter of Credit or any acts or omissions of
any beneficiary or transferee in connection therewith; (b) the validity,
sufficiency or genuineness of documents, or of any endorsement thereon, even if
such documents should prove to be in any or all respects invalid, insufficient,
fraudulent or forged; (c) payment by the Issuing Bank against presentation of
documents that do not comply with the terms of a Letter of Credit, including
failure of any documents to bear any reference or adequate reference to the
Letter of Credit; or (d) any other circumstances whatsoever in making or failing
to make payment under any Letter of Credit, except that the Borrower shall have
a claim against the Issuing Bank, and the Issuing Bank shall be liable to the
Borrower, to the extent of any direct, but not consequential, damages suffered
by the Borrower that the Borrower proves were caused by (i) the Issuing Bank's
willful misconduct or gross negligence, or failure to conform with the standards
specified in Section 5-108 of the UCC, as determined in a final, non-appealable
judgment by a court of competent jurisdiction in determining whether documents
presented under any Letter of Credit comply with the terms of the Letter of
Credit or (ii) the Issuing Bank's willful failure to make lawful payment under a
Letter of Credit after the presentation to it of a draft and certificates
strictly complying with the terms and conditions of the Letter of Credit. In
furtherance and not in limitation of the foregoing, but subject to Section
5-109(a) of the UCC, the Issuing Bank may accept documents that appear on their
face to be in order, without responsibility for further investigation,
regardless of any notice or information to the contrary.
SECTION 8.10. Confidentiality. Neither any Agent nor any Lender Party shall
-----------------------------
disclose any Confidential Information to any Person without the consent of the
Borrower, other than (a) to such Agent's or such Lender Party's Affiliates and
their officers, directors, employees, agents and advisors, to other Lender
Parties and to actual or prospective Eligible Assignees and participants, and
then only on a confidential basis, (b) as required by any law, rule or
regulation or judicial process, (c) as requested or required by any state,
Federal or foreign authority or examiner (including the National Association of
Insurance Commissioners or any similar organization or quasi-regulatory
authority) regulating such
102
Lender Party, (d) to any rating agency when required by it, provided that, prior
to any such disclosure, such rating agency shall undertake to preserve the
confidentiality of any Confidential Information relating to the Loan Parties
received by it from such Lender Party in accordance with such rating agency's
internal procedures generally applicable to information of the same type, (e) in
connection with any litigation or proceeding to which such Agent or such Lender
Party or any of its Affiliates may be a party, (f) in connection with the
exercise of any remedy under this Agreement or any other Loan Document, or (g)
to any direct or indirect contractual counterparty in swap agreements or such
contractual counterparty's professional advisor (so long as such contractual
counterparty or professional advisor to such contractual counterparty agrees to
be bound by the provisions of this Section 8.10).
SECTION 8.11. Execution in Counterparts. This Agreement may be executed in
---------------------------------------
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page to this Agreement by
telecopier shall be effective as delivery of a manually executed counterpart of
this Agreement.
SECTION 8.12. Governing Law, Jurisdiction, Etc.
----------------------------------------------
(a) This Agreement and the Notes shall be governed by, and construed
in accordance with, the laws of the State of New York.
(b) Each of the parties hereto hereby irrevocably and unconditionally
submits, for itself and its property and assets, to the nonexclusive
jurisdiction of any New York State court or any federal court of the United
States of America sitting in New York City, New York, and any appellate
court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or any of the other Loan Documents to which it
is a party, or for recognition or enforcement of any judgment in respect
thereof, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in any such New York State court or,
to the fullest extent permitted under applicable law, in any such federal
court. Each of the parties hereto hereby irrevocably consents to the
service of copies of any summons and complaint and any other process which
may be served in any such action or proceeding by certified mail, return
receipt requested, or by delivering a copy of such process to such party,
at its address specified in Section 8.02, or by any other method permitted
under applicable law. Each of the parties hereto hereby agrees that a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other
manner provided by applicable law. Nothing in this Agreement shall affect
any right that any of the parties hereto may otherwise have to bring any
action or proceeding relating to this Agreement or any of the other Loan
Documents in the courts of any jurisdiction.
(c) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any
suit, action or proceeding arising out of or relating to this Agreement or
any of the other Loan Documents to which it is a party in any New York
State or federal court. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any
such court.
SECTION 8.13. Designation as Designated Senior Debt. This Agreement, the
---------------------------------------------------
Subsidiary Guaranty, the Loan Documents and all monetary obligations hereunder
or thereunder are hereby expressly
103
designated as "Designated Senior Indebtedness" as that term (or any comparable
term) is defined in the Subordinated Notes Documents.
SECTION 8.14. WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE AGENTS AND
----------------------------------
THE LENDER PARTIES IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE)
ARISING OUT OF OR RELATING TO ANY OF THE LOAN DOCUMENTS, THE ADVANCES, THE
LETTERS OF CREDIT OR THE ACTIONS OF ANY AGENT OR ANY LENDER PARTY IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
DAVITA INC., as Borrower
By ___________________________
Name:
Title:
BANK OF AMERICA, N.A., as Administrative
Agent, Initial Issuing Bank, Swing Line
Bank, and an Initial Lender
By _________________________________________
Name:
Title:
BANC OF AMERICA SECURITIES LLC, as
Joint Lead Arranger and Joint Book
Manager
By _________________________________________
Name:
Title:
CREDIT SUISSE FIRST BOSTON, as Joint
Lead Arranger and Joint Bank Manager, and
an Initial Lender
By ________________________________________
Name:
Title:
THE BANK OF NEW YORK, as an Issuing
Bank under the Existing Credit Agreement,
a Documentation Agent and an Initial
Lender
By __________________________________________
Name:
Title:
SUNTRUST BANK, as a Documentation Agent
and an Initial Lender
By __________________________________________
Name:
Title:
THE BANK OF NOVA SCOTIA, as a
Documentation Agent and an Initial Lender
By _________________________________________
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION, as
an Initial Lender
By _______________________________
Name:
Title:
CREDIT LYONNAIS NEW YORK BRANCH,
as an Initial Lender
By _______________________________
Name:
Title:
KZH CNC LLC, as an Initial Lender
By _____________________________________
Name:
Title:
KZH STERLING LLC, as an Initial
Lender
By ____________________________________
Name:
Title:
KZH CYPRESSTREE-1 LLC, as an Initial
Lender
By ________________________________________
Name:
Title:
KZH SHOSHONE LLC, as an Initial Lender
By ____________________________________
Name:
Title:
KZH SOLEIL LLC, as an Initial Lender
By ____________________________________
Name:
Title:
WINGED FOOT FUNDING TRUST, as an
Initial Lender
By ____________________________________
Name:
Title:
OPPENHEIMER SENIOR FLOATING RATE
FUND, as an Initial Lender
By ____________________________________
Name:
Title:
PPM SPYGLASS FUNDING TRUST, as an
Initial Lender
By ____________________________________
Name:
Title:
SCHEDULE I
COMMITMENTS AND APPLICABLE LENDING OFFICES
====================================================================================================================================
Letter
Term A Term B Revolving Credit of Credit
Name of Initial Lender Party Commitment Commitment Commitment Commitment/1/
====================================================================================================================================
Bank of America, N.A. $ 10,000,000 $ 175,500,000 $ 30,000,000 $ 50,000,000
101 North Tryon Street, 15/th/ Floor
Charlotte, NC 28255
- ------------------------------------------------------------------------------------------------------------------------------------
Credit Suisse First Boston $ 10,000,000 $ 30,000,000
11 Madison Avenue
New York, NY 10010-3629
- ------------------------------------------------------------------------------------------------------------------------------------
SunTrust Bank $ 8,750,000 $ 26,250,000
201 4th Avenue North
Nashville, TN 37219
- ------------------------------------------------------------------------------------------------------------------------------------
The Bank of New York $ 6,250,000 $ 18,750,000 $ 15,261,813
10990 WilshiBlvd., Suite 1125
Los Angeles, CA 90024
- ------------------------------------------------------------------------------------------------------------------------------------
Base Rate Eurodollar
Lending Lending
Name of Initial Lender Party Office Office
- ------------------------------------------------------------------------------------------------------------------------------------
Bank of America, N.A. Independence Centre, 15/th/ Fl. Independence Centre, 15/th/ Fl.
101 North Tryon Street, 15/th/ Floor NC1-001-15-04 NC1-001-15-04
Charlotte, NC 28255 Charlotte, NC 28255 Charlotte, NC 28255
Attention: Elizabeth Garver Attention: Elizabeth Garver
Phone: (704) 388-1107 Phone: (704) 388-1107
Fax: (704) 386-9923 Fax: (704) 386-9923
- ------------------------------------------------------------------------------------------------------------------------------------
Credit Suisse First Boston 11 Madison Avenue Five World Trade Center
11 Madison Avenue New York, NY 10010-3629 8/th/ Floor
New York, NY 10010-3629 Contact: William Lutkins New York, NY 10048-0928
Phone: (212) 325-9705 Contact: Nilsa Ware
Fax: (212) 325-8319 Phone: (212) 322-5094
Fax: (212) 335-0593
- ------------------------------------------------------------------------------------------------------------------------------------
SunTrust Bank 201 4/th/ Avenue, North 201 4/th/ Avenue, North
201 4th Avenue North 3/rd/ Floor 5th Floor
Nashville, TN 37219 Nashville, TN 37219 Nashville, TN 37219
Contact: Brooks Hubbard Contact: Leigh Anne Gregory
Phone: (615) 748-4465 Phone: (615) 748-5461
Fax: (615) 748-5269 Fax: (615) 748-4611
- ------------------------------------------------------------------------------------------------------------------------------------
The Bank of New York 10990 Wilshire Blvd. 1 Wall Street
10990 WilshiBlvd., Suite 1125 Los Angeles, CA 90024 New York, NY 10286
Los Angeles, CA 90024 Contact: Rebecca K. Levine Contact: Rosa Leonard
Phone: (310) 996-8650 Phone: (212) 635-6787
Fax: (310) 996-8667 Fax: (212) 635-6397-6426
- ------------------------------------------------------------------------------------------------------------------------------------
- -------------------------------
/1/ Less the aggregate amount of Existing Letters of Credit pursuant to Section
2.01(e) in the amount of $15,261,813 as of the date hereof.
====================================================================================================================================
Letter of
Term A Term B Revolving Credit Credit
Name of Initial Lender Party Commitment Commitment Commitment Commitment/1/
====================================================================================================================================
The Bank of Nova Scotia $6,250,000 $18,750,000
580 California Street, Suite 2100
San Francisco, CA 94104
- ------------------------------------------------------------------------------------------------------------------------------------
U.S. Bank National Association $5,000,000 $15,000,000
555 S.W. Oak Street
Portland, OR 97204
- ------------------------------------------------------------------------------------------------------------------------------------
Credit Lyonnais New York Branch $3,750,000 $5,000,000 $11,250,000
1301 Avenue of the Americas
New York, NY 10019
- ------------------------------------------------------------------------------------------------------------------------------------
KZH CNC LLC $2,500,000
c/o The Chase Manhattan Bank
140 East 45/th/ Street, 11/th/ Floor
New York, NY 10017
- ------------------------------------------------------------------------------------------------------------------------------------
KZH Sterling, LLC $1,000,000
c/o The Chase Manhattan Bank
140 East 45/th/ Street, 11/th/ Floor
New York, NY 10017
- ------------------------------------------------------------------------------------------------------------------------------------
====================================================================================================================================
Base Rate Eurodollar
Lending Lending
Name of Initial Lender Party Office Office
====================================================================================================================================
The Bank of Nova Scotia Atlanta Agency, Suite 2700 Atlanta Agency, Suite 2700
580 California Street, Suite 2100 600 Peachtree Street, NE 600 Peachtree Street, NE
San Francisco, CA 94104 Atlanta, GA 30308 Atlanta, GA 30308
Contact: San Francisco Loan Contact: San Francisco Loan
Servicing, Lily Hsieh Servicing, Lily Hsieh
Phone: (404) 877-1523 Phone: (404) 877-1523
Fax: (404) 888-8998 Fax: (404) 888-8998
- ------------------------------------------------------------------------------------------------------------------------------------
U.S. Bank National Association 555 S.W. Oak Street 555 S.W. Oak Street
555 S.W. Oak Street PL-0631 PL-0631
Portland, OR 97204 Portland, OR 97204 Portland, OR 97204
Contact: Lily Blank Contact: Lily Blank
Phone: (503) 275-6559 Phone: (503) 275-6559
Fax: (503) 275-4600 Fax: (503) 275-4600
- ------------------------------------------------------------------------------------------------------------------------------------
Credit Lyonnais New York Branch 1301 Avenue of the Americas 1301 Avenue of the Americas
1301 Avenue of the Americas New York, NY 10019 New York, NY 10019
New York, NY 10019 Contact: Gener David Contact: Gener David
Phone: (212) 261-7741 Phone: (212) 261-7741
Fax: (212) 459-3181 Fax: (212) 459-3181
- ------------------------------------------------------------------------------------------------------------------------------------
KZH CNC LLC 140 East 45/th/ Street 140 East 45/th/ Street
c/o The Chase Manhattan 11/th/ Floor 11/th/ Floor
140 East 45/th/ Street, 11/th/ Floor New York, NY 10017 New York, NY 10017
New York, NY 10017 Contact: Virginia Conway Contact: Virginia Conway
Phone: (212) 622-9353 Phone: (212) 622-9353
Fax: (212) 622-0123 Fax: (212) 622-0123
- ------------------------------------------------------------------------------------------------------------------------------------
KZH Sterling, LLC 140 East 45/th/ Street 140 East 45/th/ Street
c/o The Chase Manhattan Bank 11/th/ Floor 11/th/ Floor
140 East 45/th/ Street, 11/th/ Floor New York, NY 10017 New York, NY 10017
New York, NY 10017 Contact: Virginia Conway Contact: Virginia Conway
Phone: (212) 622-9353 Phone: (212) 622-9353
Fax: (2120 622-0123 Fax: (2120 622-0123
- ------------------------------------------------------------------------------------------------------------------------------------
==================================================================================================================================
Letter of
Term A Term B Revolving Credit Credit
Name of Initial Lender Party Commitment Commitment Commitment Commitment /1/
==================================================================================================================================
KZH Cypress Tree-1, LLC $ 2,000,000
c/o The Chase Manhattan Bank
140 East 45/th/ Street, 11/th/ Floor
New York, NY 10017
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KZH Shoshone LLC $ 2,500,000
c/o The Chase Manhattan Bank
140 East 45/th/ Street, 11/th/ Floor
New York, NY 10017
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KZH Soleil LLC $ 2,000,000
c/o The Chase Manhattan Bank
140 East 45/th/ Street, 11/th/ Floor
New York, NY 10017
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Oppenheimer Senior Floating Rate Fund $ 3,000,000
c/o Oppenheimer Funds, Inc.
6803 South Tucson Way
Englewood, CO 80112-3924
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PPM Spyglass Funding Trust $ 4,000,000
c/o Banc of America Securities LLC
100 North Tryon Street
NC1-007-06-07
Charlotte, NC 28255
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Winged Foot Funding Trust $ 2,500,000
c/o Conseco Capital Management, Inc.
11825 N. Pennsylvania Street
Carmel, IN 46032
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Base Rate Lending Eurodollar Lending
Name of Initial Lender Party Office Office
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KZH Cypress Tree-1, LLC 140 East 45/th/ Street 140 East 45/th/ Street
c/o The Chase Manhattan Bank 11/th/ Floor 11/th/ Floor
140 East 45th Street, 11/th/ Floor New York, NY 10017 New York, NY 10017
New York, NY 10017 Contact: Virginia Conway Contact: Virginia Co
Phone: (212) 622-9353 Phone: (212) 622-9353
Fax: (212) 622-0123 Fax: (212) 622-0123
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KZH Shoshone LLC 140 East 45/th/ Street 140 East 45/th/ Street
c/o The Chase Manhattan Bank 11/th/ Floor 11/th/ Floor
140 East 45/th/ Street, 11/th/ Floor New York, NY 10017 New York, NY 10017
New York, NY 10017 Contact: Virginia Conway Contact: Virginia Co
Phone: (212) 622-9353 Phone: (212) 622-935
Fax: (212) 622-0123 Fax: (212) 622-0123
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KZH Soleil LLC 140 East 45/th/ Street 140 East 45/th/ Street
c/o The Chase Manhattan Bank 11/th/ Floor 11/th/ Floor
140 East 45/th/ Street, 11/th/ Floor New York, NY 10017 New York, NY 10017
New York, NY 10017 Contact: Virginia Conway Contact: Virginia Conway
Phone: (212) 622-9353 Phone: (212) 622-9353
Fax: (212) 622-0123 Fax: (212) 622-0123
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Oppenheimer Senior Floating Rate Fund 6803 South Tucson Way 6803 South Tucson Way
c/o Oppenheimer Funds, Inc. Englewood, CO 80112-3924 Englewood, CO 80112-3924
6803 South Tucson Way Contact: Myk Pleet Contact: Myk Pleet
Englewood, CO 80112-3924 Phone: (303) 768-2260 Phone: (303) 768-2260
Fax: (303) 645-0933 Fax: (303) 645-0933
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PPM Spyglass Funding Trust 100 North Tryon Street 100 North Tryon Street
c/o Banc of America Securities LLC NC1-007-06-07 NC1-007-06-07
100 North Tryon Street Charlotte, NC 28255 Charlotte, NC 28255
NC1-007-06-07 Contact: Annabet Morris Contact: Annabet Morris
Charlotte, NC 28255 Phone: (704) 387-1939 Phone: (704) 387-1939
Fax: (704) 388-0648 Fax: (704) 388-0648
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Winged Foot Funding Trust 100 North Tryon Street 100 North Tryon Street
c/o Conseco Capital Management, Inc. NC1-007-06-07 NC1-007-06-07
11825 N. Pennsylvania Street Charlotte, NC 28255 Charlotte, NC 28255
Carmel, IN 46032 Contact: Annabet Morris Contact: Annabet Morris
Phone: (704) 387-1939 Phone: (704) 387-193
Fax: (704) 388-0648 Fax: (704) 388-0648
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Base Rate Eurodollar
Term A Term B Revolving Credit Letter of Credit Lending Lending
Name of Initial Lender Party Commitment Commitment Commitment Commitment/1/ Office Office
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TOTAL: $50,000,000 $200,000,000 $150,000,000 $50,000,000
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