EXHIBIT 10.30
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AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
by and among
TOTAL RENAL CARE HOLDINGS, INC.,
THE LENDERS PARTY HERETO,
DLJ CAPITAL FUNDING, INC.,
as Syndication Agent,
FIRST UNION NATIONAL BANK,
as Documentation Agent,
AND
THE BANK OF NEW YORK,
as Administrative Agent
with
BNY CAPITAL MARKETS, INC. and DONALDSON,
LUFKIN & JENRETTE SECURITIES CORPORATION,
as Co-Arrangers,
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$950,000,000
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Dated as of April 30, 1998
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AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT, dated as of April 30,
1998, by and among TOTAL RENAL CARE HOLDINGS, INC., a Delaware corporation (the
"Borrower"), the lenders party hereto (together with the Swing Line Lender and
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their respective successors and assigns, the "Lenders", each a "Lender"), DLJ
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CAPITAL FUNDING, INC., as syndication agent (the "Syndication Agent"), FIRST
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UNION NATIONAL BANK, as documentation agent (the "Documentation Agent"), and THE
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BANK OF NEW YORK, as administrative agent for the Lenders (in such capacity, the
"Administrative Agent") (the "Agreement").
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PRELIMINARY STATEMENTS
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A. The Borrower, the Existing Lenders (or their predecessors), the
Syndication Agent, the Documentation Agent and the Administrative Agent have
heretofore entered into that certain Revolving Credit Agreement, dated as of
October 24, 1997, as amended by Amendment No. 1 and Consent No. 1, dated as of
December 1, 1997, and Amendment No. 2 and Consent No. 2 and Amendment No. 1 to
Subsidiary Guaranty, dated as of February 17, 1998 (as so amended, the "Existing
Revolving Credit Agreement").
B. Each Non-Continuing Lender has entered into an Assignment and
Acceptance Agreement with one or more Lenders hereunder, pursuant to which such
Non-Continuing Lender shall assign 100% of its revolving credit loans and
interests in the Existing Revolving Credit Agreement to such Lenders. On the
Effective Date, immediately before the effectiveness of this Agreement, each
such Assignment and Acceptance Agreement shall become effective and the Non-
Continuing Lenders shall cease to be lenders under the Existing Revolving Credit
Agreement. The revolving credit loans (including those that are assigned by the
Non-Continuing Lenders to Lenders hereunder), the letters of credit and the
swing line loans, in each case outstanding under the Existing Revolving Credit
Agreement on the Effective Date, shall respectively constitute Revolving Credit
Loans, Swing Line Loans and Letters of Credit hereunder.
C. The Borrower, the Lenders, the Syndication Agent, the Documentation
Agent and the Administrative Agent desire to amend and restate the Existing
Revolving Credit Agreement in its entirety in order to provide, among other
things, that (i) the Maturity Date shall be extended to March 31, 2005 and (ii)
the other terms and provisions of the Existing Revolving Credit Agreement shall
otherwise be modified as set forth herein.
D. The Borrower agrees that its existing pledge and grant of a security
interest in 100% of its interest in its First-Tier Domestic Subsidiaries, and
66-2/3% of its interest in its First-Tier Foreign Subsidiaries will continue as
security for the payment and performance of the Obligations of the Borrower
hereunder and under the Term Loan Facility.
E. The Borrower agrees to cause each of its Subsidiaries that is a
Guarantor under the Subsidiary Guaranty to confirm and agree that such
Subsidiary Guaranty will continue as a guaranty of the Obligations hereunder and
under the Term Loan Facility.
F. The Borrower agrees to cause each of its Subsidiaries that is a
Pledgor under any Subsidiary Pledge Agreement to confirm and agree that such
Subsidiary Pledge
Agreement will continue to secure the Obligations of such Subsidiary under the
Subsidiary Guaranty.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the Borrower, the Lenders, the
Syndication Agent, the Documentation Agent and the Administrative Agent, agree
that the Existing Revolving Credit Agreement shall be amended and restated,
without novation, as follows:
1. DEFINITIONS AND PRINCIPLES OF CONSTRUCTION
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1.1. Definitions
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As used in this Agreement, terms defined in the preamble have the
meanings therein indicated, and the following terms have the following meanings:
"ABR Advances": the Revolving Credit Loans (or any portions thereof)
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at such time as they (or such portions) are made and/or being maintained in
Dollars at a rate of interest based upon the Alternate Base Rate.
"Accountants": Price Waterhouse LLP (or any successor thereto), or
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such other firm of certified public accountants of recognized national standing
selected by the Borrower.
"Accumulated Funding Deficiency": as defined in Section 302 of ERISA.
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"Acknowledgment and Confirmation": an Acknowledgment and Confirmation
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Agreement dated as of the Effective Date, substantially in the form of Exhibit O
hereto, pursuant to which each Pledgor and Guarantor shall acknowledge and
confirm that its Obligations under the Subsidiary Guaranty and the Collateral
Documents to which it is a party shall continue to guaranty or secure, as the
case may be, the Obligations of the Borrower hereunder and under the Term Loan
Facility, as such Acknowledgment and Confirmation Agreement may hereafter be
amended, supplemented or otherwise modified from time to time.
"Acquisition": the acquisition by the Borrower or any Subsidiary of
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the Borrower of 50% or more of the capital Stock of or other equity interests in
another Person (such that, after giving effect thereto, such Person shall
qualify as a Subsidiary of the Borrower) or assets of another Person, which
Person is in an ESRD-Related Business or which assets have been and are to be
used in an ESRD-Related Business.
"Additional Guarantor Event": any time when (i) any Person that is not
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a Guarantor becomes a First-Tier wholly-owned Domestic Subsidiary of the
Borrower after the Effective Date, or (ii) (x) the aggregate total assets
(without duplication) at such time of all Subsidiaries of the Borrower formed or
acquired after the Effective Date that are not Guarantors, plus (y) the
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aggregate total Investments made during the period from the Effective Date to
such time (calculated without duplication and excluding Investments made
pursuant to Section 8.5(f) to the extent the proceeds thereof were used to
acquire Stock or assets included in (x) above) by the Credit Parties in all
Subsidiaries of the Borrower that are not Guarantors, less (z) the aggregate
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total assets at such time of all Subsidiaries of the Borrower existing on the
Effective Date that became Guarantors after
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the Effective Date, exceeds 10% of the Consolidated total assets of the
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Borrower and its Subsidiaries.
"Adjusted Net Cash Proceeds": with respect to any Asset Sale as of any
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date of determination, the amount equal to the difference between (i) the Net
Cash Proceeds from such Asset Sale, and (ii) the Reinvested Proceeds in
connection with such Asset Sale that have been used prior to the date prepayment
is required to be made under Section 2.7(f).
"Advance": an ABR Advance, a Eurodollar Advance or an Alternate
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Currency Advance, as the case may be.
"Affected Advance": as defined in Section 2.11.
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"Affected Principal Amount": in the event that (i) the Borrower shall
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fail for any reason to borrow, convert or continue after it shall have notified
the Administrative Agent of its intent to do so in any instance in which it
shall have requested a Eurodollar Advance or an Alternate Currency Advance, an
amount equal to the principal amount of such Eurodollar Advance or such
Alternate Currency Advance; (ii) the Borrower shall fail for any reason to
borrow a Swing Line Loan after it shall have agreed to a Negotiated Rate with
respect thereto in accordance with Section 2.3, an amount equal to the principal
amount of such Swing Line Loan; (iii) a Eurodollar Advance, Alternate Currency
Advance or Swing Line Loan bearing interest at a Negotiated Rate shall terminate
for any reason prior to the last day of the Interest Period applicable thereto,
an amount equal to the principal amount of such Eurodollar Advance, Alternate
Currency Advance or Swing Line Loan, as the case may be; and (iv) the Borrower
shall prepay or repay all or any part of the principal amount of a Eurodollar
Advance, Alternate Currency Advance or Swing Line Loan bearing interest at a
Negotiated Rate prior to the last day of the Interest Period applicable thereto,
an amount equal to the principal amount of such Eurodollar Advance, Alternate
Currency Advance or Swing Line Loan, as the case may be, so prepaid or repaid.
"Affiliate": as to any Person, any other Person that, directly or
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indirectly, is in control of, is controlled by, or is under common control with,
such Person. For purposes of this definition, control of a Person shall mean
the power, direct or indirect, (i) to vote 20% or more of the securities or
other interests having ordinary voting power for the election of directors or
other managing Persons thereof or (ii) to direct or cause the direction of the
management and policies of such Person, whether by contract or otherwise.
"Affiliate Transaction": as defined in Section 8.14.
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"Agent Payment Office": (i) with respect to all amounts owing under
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the Loan Documents (other than in respect of Alternate Currency Advances),
initially, the office, branch, affiliate, or correspondent bank of the
Administrative Agent designated as its "Domestic Payment Office" in Exhibit N
and, thereafter, such other office, branch, affiliate, or correspondent bank
thereof as it may from time to time designate in writing as such to the
Borrower, the Issuing Bank, the Swing Line Lender and each Lender, and (ii) with
respect to all amounts owing in respect of each Alternate Currency Advance,
initially, the office, branch, affiliate, or correspondent bank of the
Administrative Agent designated as its payment office for the applicable
Currency in Exhibit N and, thereafter,
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such other office, branch, affiliate, or correspondent bank thereof as it may
from time to time designate in writing as such to the Borrower, the Issuing
Bank, the Swing Line Lender and each Lender.
"Aggregate Alternate Currency Exposure": at any time, the sum at such
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time of (i) the outstanding principal amount of the Alternate Currency Revolving
Credit Loans of all Lenders (determined, in the case of each Alternate Currency
Revolving Credit Loan, on the basis of the Dollar Equivalent thereof), and (ii)
an amount equal to the Letter of Credit Exposure of all Lenders attributable to
Alternate Currency Letters of Credit.
"Aggregate Credit Exposure": at any time, the sum at such time of the
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Credit Exposures of all Lenders.
"Aggregate Revolving Credit Commitments": on any date, the sum of the
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Revolving Credit Commitments of all Lenders on such date.
"Agreement": this Amended and Restated Revolving Credit Agreement, as
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the same may be amended, supplemented or otherwise modified from time to time.
"Alternate Base Rate": on any date, a rate of interest per annum equal
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to the higher of (i) the Federal Funds Rate in effect on such date plus 1/2 of
1% or (ii) the BNY Rate in effect on such date.
"Alternate Currency": any Currency (other than Dollars).
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"Alternate Currency Advances": the Revolving Credit Loans (or any
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portions thereof) at such time as they (or such portions) are made and/or being
maintained in an Alternate Currency at a rate of interest based upon the
applicable Alternate Currency Euro Rate.
"Alternate Currency Equivalent": on any date of determination thereof,
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the amount, as determined by the Administrative Agent, of the relevant Alternate
Currency which could be purchased with the amount of Dollars involved in such
computation at the spot rate at which such Alternate Currency may be exchanged
into Dollars as set forth on such date on Dow Jones Telerate pages 262, 264,
265, 266 or 9993 (or any successor pages) or, if such rate does not appear on
such pages, at the arithmetic mean of the respective spot exchange rates
therefor notified to the Administrative Agent by BNY as of 11:00 A.M. (London
time) on such date for delivery two Business Days later.
"Alternate Currency Euro Rate": with respect to the Interest Period
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applicable to any Alternate Currency Advance, a rate of interest per annum, as
determined by the Administrative Agent, obtained by dividing (and then rounding
to the nearest 1/16 of 1% or, if there is no nearest 1/16 of 1%, then to the
next higher 1/16 of 1%):
(a)(i) the rate per annum for deposits in the applicable Currency
having a maturity most nearly comparable to the Interest Period in respect of
such Alternate Currency Advance which appears on page 3740 or 3750, or any other
applicable page with respect to such Currency, of the Dow Jones Telerate Screen
(or any successor page) as of 11:00 a.m. London time on the date which is two
Business Days prior to the first
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day of such Interest Period, (ii) if such rate does not appear on such page of
the Dow Jones Telerate Screen (or any successor page), the rate, as reported by
BNY to the Administrative Agent, quoted by BNY at approximately 11:00 a.m.
London time (or as soon thereafter as practicable) on the date which is two
Business Days prior to the first day of such Interest Period to leading banks in
the interbank eurocurrency market as the rate at which BNY is offering deposits
in such Currency in an amount approximately equal to BNY's Commitment Percentage
of such Alternate Currency Advance and having a period to maturity approximately
equal to such Interest Period, or (iii) to the extent required by Section 2.11,
the rate, as reported by BNY to the Administrative Agent, determined by BNY to
be reflective of the all-in cost of funds to BNY of funding such Alternate
Currency Advance in an amount approximately equal to its Commitment Percentage
of such Alternate Currency Advance and having a period to maturity approximately
equal to such Interest Period, by
(b) a number equal to 1.00 minus the aggregate of the then stated
maximum rates during such Interest Period of all reserve requirements
(including, without limitation, marginal, emergency, supplemental and special
reserves) and similar charges (including any liquidity, monetary control and
prudential requirements of the Bank of England), expressed as a decimal,
established by any Governmental Authority, including the Board of Governors of
the Federal Reserve System and any other banking authority to which BNY and
other major United States money center banks are subject, in respect of
eurocurrency funding (currently referred to as "Eurocurrency liabilities" in
Regulation D of the Board of Governors of the Federal Reserve System) or in
respect of any other category of liabilities including deposits by reference to
which the interest rate on Alternate Currency Advances is determined or any
category of extensions of credit or other assets that includes loans by non-
domestic offices of any Lender to United States residents. Such reserve
requirements shall include, without limitation, those imposed under such
Regulation D. Alternate Currency Advances shall be deemed to constitute
Eurocurrency liabilities and as such shall be deemed to be subject to such
reserve requirements without benefit of credits for proration, exceptions or
offsets that may be available from time to time to any Lender under such
Regulation D. The Alternate Currency Euro Rate shall be adjusted automatically
on and as of the effective date of any change in any such reserve or charge.
"Alternate Currency Lending Office": as to any Lender, with respect
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to an Alternate Currency Advance in any Currency, initially, the office, branch
or affiliate of such Lender designated as such Lender's Alternate Currency
Lending Office for Alternate Currency Advances in such Currency on Schedule 1.1,
and thereafter, such other office, branch or affiliate of such Lender through
which it shall be making or maintaining Alternate Currency Advances in such
Currency, as reported by such Lender to the Administrative Agent and the
Borrower.
"Alternate Currency Letter of Credit": each Letter of Credit
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denominated in an Alternate Currency.
"Alternate Currency Revolving Credit Loan": each Revolving Credit Loan
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denominated in an Alternate Currency.
"Ancillary Services": services relating to the needs of patients with
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"End Stage Renal Disease" and ancillary to the provision of Dialysis Services,
including, but not
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limited to, the administration of erythropoietin, intradialytic parenteral
nutrition, bone densimetry studies, EKGs, nerve conduction studies, Doppler Flow
Testing, blood transfusions, pharmacy and laboratory services, technical
services with respect to equipment used in connection with the provision of
Dialysis Services and management services with respect to the provision of
Dialysis Services.
"Applicable Lending Office": in respect of any Lender, (i) in the case
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of such Lender's ABR Advances, its Domestic Lending Office, (ii) in the case of
such Lender's Eurodollar Advances, its Eurodollar Lending Office, (iii) in the
case of such Lender's Alternate Currency Advances, its Alternate Currency
Lending Office, and (iv) in the case of the Swing Line Lender with respect to
its Swing Line Loans, its Domestic Lending Office.
"Applicable Margin": (a) at all times, with respect to the unpaid
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principal amount of Eurodollar Advances and Alternate Currency Advances, and
based on the most recently delivered Compliance Certificate of the Borrower, the
percentage set forth below under the heading "Applicable Margin" next to the
applicable period:
Applicable
Period Margin
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When the Leverage Ratio
is equal to or greater
than 4.00:1.00 1.750%
When the Leverage Ratio
is less than 4.00:1.00
but equal to or greater
than 3.75:1.00 1.625%
When the Leverage Ratio
is less than 3.75:1.00
but equal to or greater
than 3.50:1.00 1.375%
When the Leverage Ratio
is less than 3.50:1.00
but equal to or greater
than 3.00:1.00 1.250%
When the Leverage Ratio
is less than 3.00:1.00
but equal to or greater
than 2.50:1.00 0.900%
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When the Leverage Ratio
is less than 2.50:1.00
but equal to or greater
than 2.00:1.00 0.800%
When the Leverage Ratio
is less than 2.00:1.00
but equal to or greater
than 1.50:1.00 0.750%
When the Leverage Ratio
is less than 1.50:1.00
but equal to or greater
than 1.00:1.00 0.550%
When the Leverage Ratio
is less than 1.00:1.00 0.450%
(b) Changes in the Applicable Margin resulting from a change in the
Leverage Ratio, as evidenced by a Compliance Certificate delivered to the
Administrative Agent pursuant to Section 7.1(c) evidencing such a change, shall
become effective upon delivery of such Compliance Certificate. If the Borrower
shall fail to deliver a Compliance Certificate in accordance with Section 7.1(c)
(each a "certificate delivery date"), for purposes of calculating the Applicable
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Margin, the Leverage Ratio from and including such certificate delivery date to
the date of delivery by the Borrower to the Administrative Agent of such
Compliance Certificate shall be conclusively presumed to be greater than
4.00:1.0.
(c) Notwithstanding the foregoing (but subject to the last sentence of
subsection (b) above), until the Compliance Certificate for the fiscal quarter
ending June 30, 1998 shall have been delivered to the Administrative Agent, the
Applicable Margin shall be 1.250% and any change in the Applicable Margin
resulting from a change in the Leverage Ratio, as evidenced by the Compliance
Certificate for the fiscal quarter ending June 30, 1998, shall become effective
upon delivery of such Compliance Certificate, provided that if the Compliance
Certificate delivered to the Administrative Agent for the fiscal quarter ending
March 31, 1998 indicates a Leverage Ratio equal to or greater than 3.50:1.00,
then the Applicable Margin for the period from the delivery of such Compliance
Certificate to the delivery of the Compliance Certificate for the fiscal quarter
ending June 30, 1998 shall be the applicable percentage for such Leverage Ratio
set forth in subsection (a) above.
"Approved Fund": with respect to any Lender that is a fund that
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invests in commercial loans, any other fund that invests in commercial loans and
is advised or managed by the same investment advisor as such Lender or by an
Affiliate of such investment advisor.
"Asset Sale": any direct or indirect sale, issuance, conveyance,
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transfer, lease (other than operating leases entered into in the ordinary course
of business), assignment or other transfer for value by the Borrower or any of
its Subsidiaries
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(including any sale and leaseback transaction) to any Person of (a) any capital
Stock of any Subsidiary of the Borrower, or (b) any other Property or assets of
the Borrower or any Subsidiary of the Borrower other than in the ordinary course
of business; provided that Asset Sales shall not include (i) any transfer of
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Property or assets in connection with a dividend to holders of capital Stock if
such payment is permitted by Section 8.4, (ii) the granting of Permitted Liens,
(iii) a merger permitted under Section 8.3, (iv) the sale or other disposition
of Cash Equivalents or inventory in the ordinary course of business or obsolete
equipment in the ordinary course of business consistent with past practices of
the Borrower or (v) the lease or sublease of any real or personal property in
the ordinary course of business (provided that, for purposes of this definition,
"ordinary course of business" shall not include the sale or disposition of any
Subsidiary of the Borrower, any ESRD-Related Business or any interest therein).
"Assignment and Acceptance Agreement": an assignment and acceptance
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agreement executed by an assignor and an assignee pursuant to which the assignor
assigns to the assignee all or any portion of such assignor's Notes and
Commitment, substantially in the form of Exhibit E.
"Assignment Fee": as defined in Section 11.7(b).
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"Authorized Signatory": as to (i) any Person that is a corporation,
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the chairman of the board, the president, any vice president, the chief
financial officer or any other duly authorized officer (acceptable to the
Administrative Agent) of such Person and (ii) any Person that is not a
corporation, the general partner or other managing Person thereof.
"Benefited Lender": as defined in Section 11.9.
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"BNY": The Bank of New York.
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"BNY Rate": a rate of interest per annum equal to the rate of interest
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publicly announced in New York City by BNY from time to time as its prime
commercial lending rate, such rate to be adjusted automatically (without notice)
on the effective date of any change in such publicly announced rate.
"Borrower Pledge Agreement": the Borrower Pledge Agreement, dated as
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of October 24, 1997, by and between the Borrower and the Collateral Agent,
delivered pursuant to the Existing Revolving Credit Agreement, as the same may
be amended, supplemented or otherwise modified from time to time.
"Borrowing Date": any Business Day specified in (i) a Borrowing
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Request as a date on which the Borrower requests the Lenders to make Revolving
Credit Loans, (ii) a Borrowing Request as a date on which the Borrower requests
the Swing Line Lender to make a Swing Line Loan, or (iii) a Letter of Credit
Request as a date on which the Borrower requests the Letter of Credit Issuer to
issue a Letter of Credit.
"Borrowing Request": a request for Revolving Credit Loans or a Swing
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Line Loan in the form of Exhibit C.
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"Business Day":
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(i) for all purposes (other than as covered by clause (ii) below), any
day except Saturday, Sunday or a day which in New York City is a legal holiday
or a day on which banking institutions are authorized or required by law or
other government action to close, and
(ii) with respect to all notices and determinations in connection
with, and payments of principal and interest on, a Eurodollar Advance, an
Alternate Currency Advance or an Alternate Currency Letter of Credit, any day
which is a Business Day described in clause (i) above, is a day for trading by
and between banks in the London interbank market and which is not a legal
holiday or a day on which banking institutions are authorized or required by law
or other government action to close in the national jurisdiction of which the
applicable Currency is the freely transferable lawful money.
"Capital Lease Obligations": with respect to any Person, obligations
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of such Person with respect to leases that, in accordance with GAAP, are
required to be capitalized on the financial statements of such Person.
"Cash Collateral Account": as defined in Section 2.7(b).
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"Cash Equivalents": (a) securities with maturities of one year or
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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 Standard & Poor's Ratings Services or Aa3 by Moody's Investors Service,
Inc., or carrying an equivalent rating by a nationally recognized rating agency
if both of the two named rating agencies cease publishing ratings of
investments, (c) certificates of deposit, time deposits, overnight bank
deposits, bankers' acceptances and repurchase agreements issued by a Qualified
Issuer having maturities of 270 days or less from the date of acquisition, (d)
commercial paper of an issuer rated at least A-2 by Standard & Poor's Ratings
Services or P-2 by Moody's Investors Service, Inc., or carrying an equivalent
rating by a nationally recognized rating agency if both of the two named rating
agencies cease publishing ratings of investments, and having maturities of 270
days or less from the date of acquisition, (e) money market accounts or funds, a
substantial portion of the assets of which constitute Cash Equivalents described
in clauses (a) through (d) above, with, issued by or managed by Qualified
Issuers, and (f) money market accounts or funds, a substantial portion of the
assets of which constitute Cash Equivalents described in clauses (a) through (d)
above, which money market accounts or funds have net assets of not less than
$500,000,000 and have the highest rating available of either Standard & Poor's
Ratings Services or Moody's Investors Service, Inc., or carrying an equivalent
rating by a nationally recognized rating agency if both of the two named rating
agencies cease publishing ratings of investments.
"Change of Control": any of the following:
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(i) the acquisition, directly or indirectly, by any Person or group
(as such term is used in Section 13(d)(3) of the Exchange Act) of 33% (40% in
the case of the Original Principal Stockholders and the Related Parties,
collectively) or more of the voting power of the Stock of the Borrower by way of
merger, consolidation or otherwise; or
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(ii) the Continuing Directors cease for any reason to constitute a
majority of the directors of the Borrower then in office.
"Co-Arrangers": BNY Capital Markets, Inc. and Donaldson, Lufkin &
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Jenrette Securities Corporation.
"Code": the Internal Revenue Code of 1986, as the same may be amended
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from time to time, or any successor thereto, and the rules and regulations
issued thereunder, as from time to time in effect.
"Collateral": collectively, the Collateral under and as defined in the
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Collateral Documents.
"Collateral Agent": BNY acting in its capacity as Collateral Agent
----------------
under the Intercreditor Agreement, the Collateral Documents and the Subsidiary
Guaranty, and its successors in such capacity.
"Collateral Documents": collectively, the Borrower Pledge Agreement,
--------------------
each Subsidiary Pledge Agreement, each First Amendment to Pledge Agreement, and
all other instruments or documents delivered by any Credit Party in order to
grant to the Collateral Agent Liens on any Collateral.
"Commitment": a Revolving Credit Commitment or the Swing Line
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Commitment, as the case may be.
"Commitment Fee": as defined in Section 3.1.
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"Commitment Percentage": as to any Lender, the percentage equal to
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such Lender's Revolving Credit Commitment divided by the Aggregate Revolving
Credit Commitments.
"Compensatory Interest Payment": as defined in Section 2.10(c).
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"Compliance Certificate": a certificate substantially in the form of
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Exhibit D.
"Consolidated": when applied to an accounting term used with respect
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to more than one Person, such accounting term determined on a consolidated basis
for such Persons in accordance with GAAP, including principles of consolidation
under GAAP.
"Consolidated EBITDA": EBITDA of the Borrower and its Subsidiaries on
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a Consolidated basis determined in accordance with GAAP.
"Consolidated Pre-Minority EBITDA": Consolidated EBITDA plus minority
--------------------------------
interests in income of consolidated Subsidiaries of the Borrower to the extent
deducted in determining net income of the Borrower and its Subsidiaries on a
Consolidated basis in the calculation of Consolidated EBITDA.
"Contingent Obligation": as to any Person (the "secondary obligor"),
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any obligation of such secondary obligor (i) guaranteeing or in effect
guaranteeing any return
-10-
on any Investment made in another Person, or (ii) guaranteeing or in effect
guaranteeing any Indebtedness, lease, dividend or other obligation ("primary
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obligation") of any other Person (the "primary obligor") in any manner, whether
- ---------- ---------------
directly or indirectly, including, without limitation, any obligation of such
secondary obligor, whether contingent, (A) to purchase any such primary
obligation or any Property constituting direct or indirect security therefor,
(B) to advance or supply funds (x) for the purchase or payment of any such
primary obligation or (y) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (C) to purchase Property, securities or services primarily for
the purpose of assuring the beneficiary of any such primary obligation of the
ability of the primary obligor to make payment of such primary obligation, (D)
otherwise to assure or hold harmless the beneficiary of such primary obligation
against loss in respect thereof, and (E) in respect of the liabilities of any
partnership in which such secondary obligor is a general partner, except to the
extent that such liabilities of such partnership are nonrecourse to such
secondary obligor and its separate Property, provided, however, that the term
"Contingent Obligation" shall not include the indorsement of instruments for
deposit or collection in the ordinary course of business. The amount of any
Contingent Obligation of a Person shall be deemed to be an amount equal to the
stated or determinable amount of the primary obligation in respect of which such
Contingent Obligation is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof as determined by such Person
in good faith.
"Continuing Director": means any member of the Board of Directors of
-------------------
the Borrower who (i) is a member of that Board of Directors on the Effective
Date or (ii) has been nominated for election by the Board of Directors a
majority of whom were directors at the Effective Date or whose election or
nomination for election has been previously approved by a majority of such
directors.
"Conversion/Continuation Date": the date on which (i) a Eurodollar
----------------------------
Advance is converted to an ABR Advance, (ii) an ABR Advance is converted to a
Eurodollar Advance, (iii) a Eurodollar Advance is continued as a new Eurodollar
Advance, or (iv) an Alternate Currency Advance is continued as a new Alternate
Currency Advance.
"Credit Exposure": with respect to any Lender as at any time, the sum
---------------
at such time of (i) the outstanding principal balance of such Lender's Revolving
Credit Loans (determined, in the case of each Alternate Currency Revolving
Credit Loan, on the basis of the Dollar Equivalent thereof), (ii) the Swing Line
Exposure of such Lender and (iii) the Letter of Credit Exposure of such Lender.
"Credit Party": the Borrower, each Guarantor and each Pledgor.
------------
"Currencies": collectively, Dollars, French Francs, German Marks,
----------
Japanese Yen and Sterling Pounds; each a "Currency".
"Currency Agreement": any foreign exchange contract, currency swap
------------------
agreement, futures contract, option contract, synthetic cap or other similar
agreement or arrangement to which the Borrower or any of its Subsidiaries is a
party.
-11-
"Default": any event or condition that constitutes an Event of Default
-------
or that, with the giving of notice, the lapse of time, or any other condition,
would, unless cured or waived, become an Event of Default.
"Dialysis Services": hemodialysis services and peritoneal dialysis
-----------------
services, hemoperfusion, plasmapheresis, continuous arteriovenous hemofiltration
and bio-medical services related to the foregoing.
"Dollar Equivalent": on any date of determination thereof, the amount,
-----------------
as determined by the Administrative Agent, of Dollars which could be purchased
with the amount of the relevant Alternate Currency involved in such computation
at the spot rate at which Dollars may be exchanged into such Alternate Currency
as set forth on such date on Dow Jones Telerate pages 262, 264, 265, 266 or 9993
(or any successor pages) or, if such rate does not appear on such pages, at the
spot exchange rate therefor notified to the Administrative Agent by BNY as of
11:00 A.M. (London time) on such date for delivery two Business Days later.
"Dollars" and "$": lawful currency of the United States of America.
------- -
"Domestic Acquisition": any Acquisition that is not a Foreign
--------------------
Acquisition.
"Domestic Lending Office": in respect of any Lender, initially, the
-----------------------
office or offices of such Lender designated as such on Schedule 1.1; thereafter,
such other office of such Lender through which it shall be making or maintaining
ABR Advances or Swing Line Loans, as reported by such Lender to the
Administrative Agent and the Borrower.
"Domestic Subsidiary": any Subsidiary of the Borrower that is not a
-------------------
Foreign Subsidiary.
"EBITDA": for any period, for any Person, net income of such Person
------
for such period, determined in accordance with GAAP, plus the sum of, without
duplication, (i) Interest Expense of such Person, (ii) provision for income
taxes of such Person and (iii) depreciation, amortization and all other non-cash
charges (except minority interests in income of consolidated Subsidiaries) of
such Person, each to the extent deducted in determining net income of such
Person for such period. EBITDA shall exclude (to the extent otherwise included
therein) (w) for the fiscal quarter ended March 31, 1998, non-recurring cash
charges related to the merger contemplated by the RTC Merger Agreement in an
amount not to exceed $70,000,000, (x) extraordinary gains and losses and (y)
gains and losses on the sale, transfer or other disposition of assets (other
than inventory and cash management investments sold in the ordinary course of
business) ((x) and (y), collectively, the "Gains and Losses"), provided that
this sentence shall not be applicable with respect to any fiscal quarter if the
net aggregate amount of Gains and Losses for such fiscal quarter is between
($100,000) and $100,000.
"Effective Date": the date upon which the Administrative Agent shall
--------------
have received executed counterparts hereof from all parties hereto and the
conditions as set forth in Section 5 have been or simultaneously will be
satisfied, provided that this Agreement shall not become binding or effective on
any party hereto unless all such conditions are satisfied not later than May 15,
1998.
-12-
"Employee Benefit Plan": an employee benefit plan within the meaning
---------------------
of Section 3(3) of ERISA maintained, sponsored or contributed to by the
Borrower, any of its Subsidiaries or any ERISA Affiliate.
"Environmental Laws": any and all federal, state and local laws
------------------
relating to the environment, the use, storage, transporting, manufacturing,
handling, discharge, release, disposal or recycling of hazardous substances,
materials or pollutants or industrial hygiene, and including, without
limitation, (i) the Comprehensive Environmental Response, Compensation and
Liability Act, as amended, 42 USCA (S)9601 et seq.; (ii) the Resource
-- ---
Conservation and Recovery Act of 1976, as amended, 42 USCA (S)6901 et seq.;
-- ---
(iii) the Toxic Substance Control Act, as amended, 15 USCA (S)2601 et seq.; (iv)
-- ---
the Water Pollution Control Act, as amended, 33 USCA (S)1251 et seq.; (v) the
-- ---
Clean Air Act, as amended, 42 USCA (S)7401 et seq.; (vi) the Hazardous Materials
------
Transportation Authorization Act of 1994, 49 U.S.C. 5101 et seq. and (vii) all
-- ---
rules, regulations, judgments, decrees, injunctions and restrictions thereunder
and any analogous state law.
"Equity Interests": capital Stock and all warrants, options or other
----------------
rights to acquire capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, capital Stock).
"ERISA": the Employee Retirement Income Security Act of 1974, as
-----
amended from time to time, and the rules and regulations issued thereunder, as
from time to time in effect.
"ERISA Affiliate": when used with respect to an Employee Benefit Plan,
---------------
ERISA, the PBGC or a provision of the Code pertaining to employee benefit plans,
any Person that is a member of any group of organizations within the meaning of
Sections 414(b), (c), (m) or (o) of the Code of which the Borrower or any of its
Subsidiaries is a member.
"ESRD-Related Business": the business of providing Dialysis Services
---------------------
and/or Ancillary Services.
"Eurodollar Advances": collectively, the Revolving Credit Loans (or
-------------------
any portions thereof) at such time as they (or such portions) are made and/or
being maintained in Dollars at a rate of interest based upon the Eurodollar
Rate.
"Eurodollar Lending Office": in respect of any Lender, initially, the
-------------------------
office, branch or affiliate of such Lender designated as such on Schedule 1.1
(or, if no such office branch or affiliate is specified, its Domestic Lending
Office); thereafter, such other office, branch or affiliate of such Lender
through which it shall be making or maintaining Eurodollar Advances, as reported
by such Lender to the Administrative Agent and the Borrower.
"Eurodollar Rate": with respect to the Interest Period applicable to
---------------
any Eurodollar Advance, a rate of interest per annum, as determined by the
Administrative Agent, obtained by dividing (and then rounding to the nearest
1/16 of 1% or, if there is no nearest 1/16 of 1%, then to the next higher 1/16
of 1%):
-13-
(a) the rate, as reported by BNY to the Administrative Agent, quoted
by BNY to leading banks in the interbank eurodollar market as the rate at which
BNY is offering Dollar deposits in an amount equal approximately to the
Eurodollar Advance of BNY to which such Interest Period shall apply for a period
equal to such Interest Period, as quoted at approximately 11:00 A.M. two
Business Days prior to the first day of such Interest Period, by
(b) a number equal to 1.00 minus the aggregate of the then stated
maximum rates during such Interest Period of all reserve requirements
(including, without limitation, marginal, emergency, supplemental and special
reserves), expressed as a decimal, established by the Board of Governors of the
Federal Reserve System and any other banking authority to which BNY and other
major United States money center banks are subject, in respect of eurocurrency
funding (currently referred to as "Eurocurrency liabilities" in Regulation D of
the Board of Governors of the Federal Reserve System) or in respect of any other
category of liabilities including deposits by reference to which the interest
rate on Eurodollar Advances is determined or any category of extensions of
credit or other assets that includes loans by non-domestic offices of any Lender
to United States residents. Such reserve requirements shall include, without
limitation, those imposed under such Regulation D. Eurodollar Advances shall be
deemed to constitute Eurocurrency liabilities and as such shall be deemed to be
subject to such reserve requirements without benefit of credits for proration,
exceptions or offsets that may be available from time to time to any Lender
under such Regulation D. The Eurodollar Rate shall be adjusted automatically on
and as of the effective date of any change in any such reserve requirement.
"Event of Default": any of the events specified in Section 9.1,
----------------
provided that any requirement for the giving of notice, the lapse of time, or
any other condition has been satisfied.
"Exchange Act": the Securities Exchange Act of 1934, as amended, and
------------
the rules and regulations promulgated thereunder.
"Excluded Contingent Obligations": all Contingent Obligations of the
-------------------------------
Borrower and its Subsidiaries on a Consolidated basis in accordance with GAAP
that are not in respect of Indebtedness described in items (i), (ii), (iii),
(iv)(B), (v) or (vi) of the definition of Indebtedness.
"Existing Lender": each "Lender" (as such term is defined in the
---------------
Existing Revolving Credit Agreement, as in effect immediately prior to the
Effective Date) that is a Lender under this Agreement on the Effective Date.
"Existing Pension Plans": as defined in Section 4.12.
----------------------
"Existing Revolving Credit Agreement": as defined in paragraph A of
-----------------------------------
the Preliminary Statements to this Agreement.
"Existing Revolving Credit Loans": the "Revolving Credit Loans" (as
-------------------------------
such term is defined in the Existing Revolving Credit Agreement) outstanding
under the Existing Revolving Credit Agreement on the Effective Date, including
those that are
-14-
assigned by the Non-Continuing Lenders to Lenders hereunder; each an "Existing
Revolving Credit Loan".
- ---------------------
"Federal Funds Rate": for any day, a rate per annum (expressed as a
------------------
decimal, rounded upwards, if necessary, to the next higher 1/100 of 1%), equal
to the weighted average of the rates on overnight federal funds transactions
with members of the Federal Reserve System arranged by federal funds brokers on
such day, as published by the Federal Reserve Bank of New York on the Business
Day next succeeding such day, provided that (i) if the day for which such rate
is to be determined is not a Business Day, the Federal Funds Rate for such day
shall be such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day, and (ii) if such rate is not so
published for any day, the Federal Funds Rate for such day shall be the average
of the quotations for such day on such transactions received by BNY as
determined by BNY and reported to the Administrative Agent.
"Financial Statements": as defined in Section 4.13.
--------------------
"First Amendment to Pledge Agreements": collectively, each First
------------------------------------
Amendment to Pledge Agreement, dated as of the Effective Date, substantially in
the form of Exhibit P hereto, each by and between the Pledgor named therein and
the Collateral Agent, which shall amend the Borrower Pledge Agreement and each
Subsidiary Pledge Agreement.
"First-Tier": with respect to any Subsidiary of the Borrower, the
----------
direct ownership by the Borrower of such Subsidiary's capital Stock.
"Foreign Acquisition": as defined in Section 8.5(f).
-------------------
"Foreign Subsidiary": any Subsidiary of the Borrower which is a
------------------
"controlled foreign corporation" within the meaning of Section 957 of the Code.
"French Francs": freely transferable lawful money of France.
-------------
"Funded Current Liability Percentage": as defined in Section
-----------------------------------
401(a)(29) of the Code.
"GAAP": generally accepted accounting principles set forth in the
----
opinions and pronouncements of the Accounting Principles Board and the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or such other principles as may be
approved by a significant segment of the accounting profession, that are
applicable to the circumstances as of the date of determination, consistently
applied. If at any time any change in GAAP would affect the computation of any
financial ratio or requirement set forth in this Agreement, and either the
Borrower or the Required Lenders shall so request, the Administrative Agent, the
Lenders and the Borrower shall negotiate in good faith to amend such ratio or
requirement to reflect such change in GAAP (subject to the approval of the
Required Lenders), provided that, until so amended, (i) such ratio or
requirement shall continue to be computed in accordance with GAAP prior to such
change therein and (ii) the Borrower shall provide to the Administrative Agent
and the Lenders financial statements and other documents required under this
Agreement or as reasonably requested hereunder setting
-15-
forth a reconciliation between calculations of such ratio or requirement made
before and after giving effect to such change in GAAP.
"German Marks": freely transferable lawful money of Germany.
------------
"Governmental Authority": any nation or government, any state or other
----------------------
political subdivision thereof, any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government
and any court or arbitrator.
"Guarantors": collectively, (i) TRC, TRC West, Inc. Total Renal Care
----------
Acquisition Corp., Renal Treatment Centers, Inc., a Delaware corporation, Renal
Treatment Centers-Mid-Atlantic, Inc., a Delaware corporation, Rental Treatment
Centers - Northeast, Inc., a Delaware corporation, Renal Treatment Centers -
California, Inc., a Delaware corporation, Renal Treatment Centers - West, Inc.,
a Delaware corporation and Renal Treatment Centers - Southeast, Inc., a Delaware
corporation, (ii) any other First-Tier wholly-owned Domestic Subsidiary of the
Borrower as of the Effective Date, and (iii) any other Subsidiary of the
Borrower that becomes a party to the Subsidiary Guaranty pursuant to Section
7.11; each a "Guarantor".
---------
"Hazardous Substance": any hazardous or toxic substance, material or
-------------------
waste, including, but not limited to, (i) those substances, materials, and
wastes listed in the United States Department of Transportation Hazardous
Materials Table (49 CFR 172.101) or by the Environmental Protection Agency as
hazardous substances (40 CFR Part 302) and amendments thereto and replacements
therefor and (ii) any substance, pollutant or material defined as, or designated
in, any Environmental Law as a "hazardous substance," "toxic substance,"
"hazardous material," "hazardous waste," "restricted hazardous waste,"
"pollutant," "toxic pollutant" or words of similar import.
"Hedging Obligations": with respect to any Person, the obligations of
-------------------
such Person under Interest Rate Agreements or Currency Agreements designed to
protect such Person against fluctuations in interest or currency exchange rates.
"Highest Lawful Rate": with respect to any Lender, the maximum rate of
-------------------
interest, if any, that at any time or from time to time may be contracted for,
taken, charged or received by such Lender on its Loans or that may be owing to
such Lender pursuant to this Agreement under the laws applicable to such Lender
and this Agreement.
"Immediate Family Member": with respect to any individual, such
-----------------------
individual's spouse (past or current), descendants (natural or adoptive, of the
whole or half blood) of the parents of such individual, such individual's
grandparents and parents (natural or adoptive), and the grandparents, parents
and descendants of parents (natural or adoptive, of the whole or half blood) of
such individual's spouse (past or current).
"Indebtedness": as to any Person, at a particular time, all items that
------------
constitute, without duplication, (i) indebtedness for borrowed money or the
deferred purchase price of Property (other than trade payables incurred in the
ordinary course of business), (ii) indebtedness evidenced by notes, bonds,
debentures or similar instruments, (iii) obligations with respect to any
conditional sale or title retention agreement, (iv) indebtedness arising under
(A) acceptance facilities and the amount available to be drawn under all letters
of credit issued for the account of such Person, and (B) without duplication,
all drafts
-16-
drawn thereunder to the extent such Person shall not have reimbursed the issuer
in respect of the issuer's payment of such drafts, (v) all liabilities secured
by any Lien on any Property owned by such Person even though such Person has not
assumed or otherwise become liable for the payment thereof (other than
carriers', warehousemen's, mechanics', repairmen's or other like non-consensual
statutory Liens arising in the ordinary course of business), (vi) the principal
portion of obligations under Capital Lease Obligations and (vii) Contingent
Obligations.
"Indemnified Person": as defined in Section 11.11.
------------------
"Indemnified Tax": as to any Person, any Tax, except (i) a Tax on the
---------------
Income imposed on such Person and (ii) any interest, fees or penalties for late
payment imposed on such Person, in each case to the extent not attributable to
the failure of the Borrower or any of its Subsidiaries to obtain any necessary
approvals or consents of, or file or cause to be filed any reports,
applications, documents, instruments or information required to be filed
pursuant to any applicable law, rule, regulation or request of, any Governmental
Authority.
"Indemnified Tax Person": the Administrative Agent, the Collateral
----------------------
Agent, the Syndication Agent, the Documentation Agent, a Co- Arranger, the
Issuing Bank, the Swing Line Lender, or any Lender, as the case may be.
"Intellectual Property": all copyrights, trademarks, servicemarks,
---------------------
patents, trade names and service names.
"Intercreditor Agreement": the Intercreditor and Collateral Agency
-----------------------
Agreement, dated as of October 24, 1997, among the Collateral Agent, the
Administrative Agent, BNY, as the administrative agent under the Term Loan
Facility, the Credit Parties listed on the signature pages thereof and such
other Persons that may become party thereto, delivered pursuant to the Existing
Revolving Credit Agreement, as amended, supplemented or otherwise modified from
time to time.
"Interest Coverage Ratio": at any date of determination, the ratio of
-----------------------
(i) Consolidated Pre-Minority EBITDA to (ii) Interest Expense of the Borrower
and its Subsidiaries on a Consolidated basis, in each case for the immediately
preceding four complete fiscal quarters of the Borrower (or in the event that
the date of determination is a fiscal quarter ending date, the four fiscal
quarter period then ended).
"Interest Expense": for any Person, with respect to any period,
----------------
without duplication, the sum of all interest, including (whether in the form of
cash or Property) whether paid or required to be accrued (including, without
limitation, paid-in-kind or PIK interest) in respect of all Indebtedness of such
Person for such period determined in accordance with GAAP less capitalized
financing costs, each to the extent included in Interest Expense of such Person
for such period.
"Interest Payment Date": (i) as to any ABR Advance, the last day of
---------------------
each March, June, September and December commencing on the first of such days to
occur after such ABR Advance is made or any Eurodollar Advance is converted to
an ABR Advance, (ii) as to any Swing Line Loan, the date on which the
outstanding principal
-17-
balance of such Swing Line Loan shall become due and payable in accordance with
Section 2.3, (iii) as to any Eurodollar Advance or Alternate Currency Advance in
respect of which the Borrower has selected an Interest Period of one week or
one, two or three months, the last day of such Interest Period, and (iv) as to
any Eurodollar Advance or Alternate Currency Advance in respect of which the
Borrower has selected an Interest Period of six months, the day that is three
months after the first day of such Interest Period and the last day of such
Interest Period.
"Interest Period": (a) with respect to any Eurodollar Advance or
---------------
Alternate Currency Advance requested by the Borrower, the period commencing on,
as the case may be, the Borrowing Date or Conversion/Continuation Date with
respect to such Advance and ending one week (during the period referred to in
clause (iv) below) or one, two, three or six months thereafter, as selected by
the Borrower in its irrevocable Borrowing Request or its irrevocable Notice of
Conversion/Continuation, provided, however, that (i) if any Interest Period
would otherwise end on a day that is not a Business Day, such Interest Period
shall be extended to the next succeeding Business Day unless the result of such
extension would be to carry such Interest Period into another calendar month, in
which event such Interest Period shall end on the immediately preceding Business
Day, (ii) any Interest Period that begins on the last Business Day of a calendar
month (or on a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall end on the last
Business Day of a calendar month, (iii) the Borrower shall select Interest
Periods so as not to have more than twenty different Interest Periods
outstanding at any one time for all Revolving Credit Loans, and (iv) during the
30 day period (or such shorter period as the Administrative Agent and the
Syndication Agent shall notify the Borrower) following the Effective Date, each
Interest Period shall be the period commencing on the Borrowing Date or
Conversion/Continuation Date with respect to such Advance and ending
approximately one week thereafter, and all Interest Periods during such period
shall begin and end on the same day; and
(b) with respect to any Swing Line Loan requested by the Borrower, the
period commencing on the Borrowing Date with respect to such Swing Line Loan and
ending on or between one and seven days thereafter, as selected by the Borrower
in its irrevocable Borrowing Request, provided, however, that (i) if any
Interest Period would otherwise end on a day that is not a Business Day, such
Interest Period shall be extended to the next succeeding Business Day, and (ii)
the Borrower shall select Interest Periods so as not to have more than three
different Interest Periods outstanding at any one time for all Swing Line Loans.
"Interest Rate Agreement": any interest rate swap agreement, interest
-----------------------
rate cap agreement, interest rate collar agreement or other similar agreement or
arrangement to which the Borrower or any of its Subsidiaries is a party.
"Investments": with respect to any Person, all investments by such
-----------
Person in other Persons (including Affiliates of such Person) in the form of
loans, Contingent Obligations, advances or capital contributions (excluding
commission, travel and similar advances to officers and employees made in the
ordinary course of business), purchases or other acquisitions for consideration
of Indebtedness, Equity Interests or other securities and all other items that
are or would be classified as investments on a balance sheet prepared in
accordance with GAAP. The amount of any Investment shall be the original cost
of such Investment plus the cost of all additions thereto, without any
----
adjustments for
-18-
increases or decreases in value, or write-ups, write-downs or write-offs with
respect to such Investment.
"Japanese Yen": freely transferable lawful money of Japan.
------------
"Judgment Currency": as defined in Section 11.19.
-----------------
"LC Rate": a rate per annum equal to the Applicable Margin with
-------
respect to Eurodollar Advances plus, after the occurrence and during the
continuance of a Default or Event of Default under Section 9.1(a), (b) (with
respect to interest, the Commitment Fee, the LC Fronting Fee or the Letter of
Credit Fee), (h) or (i), 2%.
"LC Fronting Fee": as defined in Section 3.2.
---------------
"Letter of Credit": as defined in Section 2.19, provided that the
----------------
following shall constitute a Letter of Credit for the purposes of this
Agreement: letter of credit no. S111397 in the amount of $800,000, dated January
22, 1997, issued by First Union National Bank (formerly known as First Union
National Bank of North Carolina) to Mutual Indemnity (Bermuda) Ltd. for the
account of RTC, as such letter of credit may be renewed from time to time in
accordance with its terms.
"Letter of Credit Fee": as defined in Section 3.2.
--------------------
"Letter of Credit Exposure": at any time, (i) in respect of all the
-------------------------
Lenders, the sum, without duplication, of (x) the aggregate undrawn face amount
(determined, in the case of each Alternate Currency Letter of Credit, on the
basis of the Dollar Equivalent thereof) of the outstanding Letters of Credit at
such time, (y) the aggregate amount of unpaid drafts (determined, in the case of
each Alternate Currency Letter of Credit, on the basis of the Dollar Equivalent
thereof) drawn on all Letters of Credit at such time, and (z) the aggregate
unpaid reimbursement obligations in respect of the Letters of Credit at such
time (after giving effect to any Loans made at such time to pay any such
reimbursement obligations and determined, in the case of such reimbursement
obligations in respect of any Alternate Currency Letter of Credit, on the basis
of the Dollar Equivalent thereof), and (ii) in respect of any Lender, an amount
equal to such Lender's Commitment Percentage at such time multiplied by the
amount determined under clause (i) of this definition at such time.
"Letter of Credit Issuer": BNY (or any successor thereto) and, solely
-----------------------
for purposes of the Letter of Credit referred to in clause (ii) of the
definition of "Letter of Credit", First Union National Bank (or any successor
thereto).
"Letter of Credit Request": a request in the form of Exhibit L.
------------------------
"Leverage Ratio": at any date of determination, the ratio of:
--------------
(a) for purposes of determining the Applicable Margin and the
Commitment Fee, (i) Total Debt to (ii) Consolidated Pre-Minority EBITDA for the
fiscal quarter period of the Borrower ending on the date of determination
multiplied by four; and
-19-
(b) for all other purposes, (i) Total Debt to (ii) the sum of (A)
Consolidated Pre-Minority EBITDA for the fiscal quarter of the Borrower
immediately preceding such date of determination (or in the event that the date
of determination is a fiscal quarter ending date, the fiscal quarter period then
ended) less any Consolidated EBITDA during such fiscal quarter attributable to
any Permitted Acquisition which occurred during such fiscal quarter, multiplied
by four, plus (B) Consolidated EBITDA during such fiscal quarter attributable to
----
any Permitted Acquisition which (1) occurred during such fiscal quarter, and (2)
shall have been operated by the Borrower or any of its Subsidiaries or included
in the Consolidated results of operations of the Borrower, in either case for at
least 30 days during such fiscal quarter, calculated as if each such Permitted
Acquisition occurred on the first day of such fiscal quarter, multiplied by
four.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit or
----
preferential arrangement, encumbrance, lien (statutory or other), or other
security agreement or security interest of any kind or nature whatsoever,
including, without limitation, any conditional sale or other title retention
agreement and any capital or financing lease having substantially the same
economic effect as any of the foregoing.
"Loan Documents": collectively, this Agreement, the Notes, the
--------------
Reimbursement Agreements, the Collateral Documents, the Subsidiary Guaranty, the
Acknowledgment and Confirmation and the Intercreditor Agreement.
"Loan": a Revolving Credit Loan or a Swing Line Loan, as the case may
----
be.
"Loans": the Revolving Credit Loans and/or the Swing Line Loans, as
-----
the case may be.
"Mandatory Borrowing": as defined in Section 2.3(c).
-------------------
"Margin Stock": any "margin stock", as defined in Regulation U of the
------------
Board of Governors of the Federal Reserve System, as the same may be amended or
supplemented from time to time.
"Material Adverse Change": a material adverse change in (i) the
-----------------------
financial condition, operations, business, prospects or Property of the Borrower
and its Subsidiaries taken as a whole, (ii) the ability of any Credit Party to
perform its obligations under the Loan Documents to which it is a party or (iii)
the ability of the Administrative Agent, the Collateral Agent or the Lenders to
enforce the Loan Documents.
"Material Adverse Effect": a material adverse effect on (i) the
-----------------------
financial condition, operations, business, prospects or Property of the Borrower
and its Subsidiaries taken as a whole, (ii) the ability of any Credit Party to
perform its obligations under the Loan Documents to which it is a party or (iii)
the ability of the Administrative Agent, the Collateral Agent or the Lenders to
enforce the Loan Documents.
"Maturity Date": March 31, 2005, or such earlier date on which the
-------------
Notes shall become due and payable, whether by acceleration or otherwise.
"Minority Investment": as defined in Section 8.5(g).
-------------------
-20-
"Multiemployer Plan": a Pension Plan that is a multiemployer plan as
------------------
defined in Section 4001(a)(3) of ERISA.
"Negotiated Rate": with respect to each Swing Line Loan, the rate per
---------------
annum agreed to in writing by the Borrower and the Swing Line Lender as the
interest rate that such Swing Line Loan shall bear.
"Net Cash Proceeds": with respect to any Asset Sale by any Person, the
-----------------
excess, if any, of (i) the cash received by such Person and/or its Affiliates
(including any cash payments received by way of deferred payment pursuant to, or
monetization of, a note or installment receivable or otherwise, but only as and
when received) in connection with such Asset Sale, over (ii) the sum of (A) the
amount of any Indebtedness (other than Indebtedness under this Agreement and the
Term Loan Facility) that is secured by such asset and which is required to be
repaid by such Person in connection with such Asset Sale, plus (B) the out-of-
pocket expenses (1) incurred by such Person in connection with such Asset Sale
and (2) if such Person is a Subsidiary, incurred in connection with the transfer
of such amount to the parent company or entity of such Person, plus (C)
provision for taxes, including income taxes, attributable to the Asset Sale or
attributable to required prepayments or repayments of Indebtedness with the
proceeds of such Asset Sale, plus (D) a reasonable reserve for any
indemnification payments (fixed or contingent) attributable to seller's
indemnities and representations and warranties to purchaser in respect of such
Asset Sale undertaken by the Borrower or any of its Subsidiaries in connection
with such Asset Sale plus (E) if such Person is a Subsidiary, any dividends or
distributions payable to holders of minority interests in such Subsidiary from
the proceeds of such Asset Sale.
"New Subsidiary": as defined in Section 8.11.
--------------
"Non-Continuing Lenders": those lenders party to the Existing
----------------------
Revolving Credit Agreement that have assigned their Revolving Credit Loans (as
such term is defined in the Existing Revolving Credit Agreement) and interests
in the Existing Revolving Credit Agreement to Lenders hereunder pursuant to
Assignment and Acceptance Agreements that provide that they become effective on
the Effective Date immediately before the effectiveness hereof.
"Note": a Revolving Credit Note or the Swing Line Note, as the case
----
may be.
"Notes": the Revolving Credit Notes and/or the Swing Line Note, as the
-----
case may be.
"Notice of Conversion/Continuation": a notice substantially in the
---------------------------------
form of Exhibit H.
"Obligation Currency": as defined in Section 11.19.
-------------------
"Obligations": all obligations of every nature of the Credit Parties
-----------
from time to time owed to the Administrative Agent, the Collateral Agent, the
Lenders or any of them under the Loan Documents, whether for principal,
interest, fees, expenses, indemnification or otherwise.
-21-
"Original Principal Stockholders": means Tenet Healthcare Corporation,
-------------------------------
THC Properties Corp. (a wholly-owned Subsidiary of Tenet Healthcare
Corporation), Victor M.G. Chaltiel, the executive officers and directors of the
Borrower and/or TRC, the Borrower's equity compensation plans, employee stock
option plans, employee stock purchase plans and all other similar plans, and all
participants therein and beneficiaries thereof.
"PBGC": the Pension Benefit Guaranty Corporation established pursuant
----
to Subtitle A of Title IV of ERISA, or any Governmental Authority succeeding to
the functions thereof.
"Pension Plan": at any date of determination, any employee pension
------------
benefit plan (including a Multiemployer Plan) that is covered by Title IV of
ERISA or subject to the minimum funding standards under Section 412 of the Code,
the funding requirements of which (under Section 302 of ERISA or Section 412 of
the Code) are, or at any time within the five years immediately preceding such
date, were in whole or in part, the responsibility of the Borrower, any of its
Subsidiaries or any ERISA Affiliate, provided that the term Pension Plan shall
not include the employee benefit pension plans listed on Schedule 1.1(P).
"Permitted Acquisition": any Acquisition permitted by Section 8.5(f).
---------------------
"Permitted Lien": any Lien permitted under Section 8.2.
--------------
"Person": any individual, firm, partnership, joint venture,
------
corporation, association, business enterprise, joint stock company,
unincorporated association, trust, Governmental Authority or any other entity,
whether acting in an individual, fiduciary, or other capacity, and for the
purpose of the definition of "ERISA Affiliate", a trade or business.
"Pledgor": (i) the Borrower, TRC and RTC and (ii) each Subsidiary of
-------
the Borrower that executes and delivers to the Collateral Agent a Subsidiary
Pledge Agreement after the Effective Date pursuant to Section 7.11.
"Process Administrative Agent": as defined in Section 11.17.
----------------------------
"Prohibited Transaction": a transaction that is prohibited under
----------------------
Section 4975 of the Code or Section 406 of ERISA and not exempt under Section
4975 of the Code or Section 408 of ERISA.
"Property": all types of real, personal, tangible, intangible or mixed
--------
property.
"Public Debt": as defined in Section 8.1.
-----------
"Qualified Issuer": (A) any Lender hereunder, (B) any lender that is
----------------
a party to the Term Loan Facility and (C) any commercial bank that has capital
and surplus in excess of $100,000,000.
-22-
"Real Property": all real property owned or leased by the Borrower or
-------------
any of its Subsidiaries.
"Register": as defined in Section 11.7(b).
--------
"Reimbursement Agreement": as defined in Section 2.19(b).
-----------------------
"Reinvested Proceeds": with respect to any Asset Sale as of any date
-------------------
of determination, the amount of Net Cash Proceeds from such Asset Sale that is
used by the Borrower or any of its Subsidiaries to acquire, during the
Reinvestment Period, Property that is to be used in the same or a related line
of business of the Borrower.
"Reinvestment Period": the period beginning on, and ending 365 days
-------------------
after, the date that proceeds from an Asset Sale are received by the Borrower or
any of its Subsidiaries, as the case may be.
"Related Party": with respect to any Original Principal Stockholder
-------------
means (i) any 80% (or more) owned Subsidiary or Immediate Family Member (in the
case of an individual) of such Original Principal Stockholder or (ii) any
Person, the beneficiaries, stockholders, partners, owners or Persons
beneficially holding an 80% or more controlling interest of which consist of
such Original Principal Stockholder or an Immediate Family Member, or (iii) any
Person employed by the Borrower or TRC in a management capacity as of the
Effective Date.
"Relevant Date": (i) in the case of each Lender listed on the
-------------
signature pages hereof, the Effective Date, and (ii) in the case of each other
Lender, the effective date of the Assignment and Acceptance Agreement or other
document pursuant to which it became a Lender.
"Remaining Interest Period": (i) in the event that the Borrower shall
-------------------------
fail for any reason to borrow a Revolving Credit Loan in respect of which it
shall have requested a Eurodollar Advance or Alternate Currency Advance or
convert an Advance to, or continue an Advance as, a Eurodollar Advance or
Alternate Currency Advance after it shall have notified the Administrative Agent
of its intent to do so, a period equal to the Interest Period that the Borrower
elected in respect of such Eurodollar Advance or Alternate Currency Advance, as
the case may be; or (ii) in the event that the Borrower shall fail for any
reason to borrow a Swing Line Loan after it shall have agreed to a Negotiated
Rate with respect thereto in accordance with Section 2.3, a period equal to the
Interest Period that the Borrower elected in respect of such Swing Line Loan; or
(iii) in the event that a Eurodollar Advance, an Alternate Currency Advance or a
Swing Line Loan bearing interest at a Negotiated Rate shall terminate for any
reason prior to the last day of the Interest Period applicable thereto, a period
equal to the remaining portion of such Interest Period if such Interest Period
had not been so terminated; or (iv) in the event that the Borrower shall prepay
or repay all or any part of the principal amount of a Eurodollar Advance, an
Alternate Currency Advance or a Swing Line Loan bearing interest at a Negotiated
Rate prior to the last day of the Interest Period applicable thereto, a period
equal to the period from and including the date of such prepayment or repayment
to but excluding the last day of such Interest Period.
-23-
"Reportable Event": with respect to any Pension Plan, (i) any event
----------------
set forth in Sections 4043(b) (other than a Reportable Event as to which the 30
day notice requirement is waived by the PBGC under applicable regulations),
4062(c) or 4063(a) of ERISA or the regulations thereunder or (ii) an event
requiring the Borrower, any of its Subsidiaries or any ERISA Affiliate to
provide security to a Pension Plan under Section 401(a)(29) of the Code.
"Required Lenders": Lenders having Revolving Credit Commitments equal
----------------
to at least 51% of the Aggregate Revolving Credit Commitments, provided that if
the Revolving Credit Commitments have expired or otherwise been terminated,
Lenders with Credit Exposure equal to at least 51% of the Aggregate Credit
Exposure.
"Required Payment": as defined in Section 2.12(a).
----------------
"Restricted Payment": as to any Person (i) any dividend or other
------------------
distribution, direct or indirect, on account of any shares of any class of Stock
or other equity interest in such Person now or hereafter outstanding (other than
a dividend payable solely in shares of such Stock to the holders of such
shares), (ii) any redemption, retirement, sinking fund or similar payment,
purchase or other acquisition, direct or indirect, of any shares of any class of
Stock or other equity interest in such Person now or hereafter outstanding and
(iii) any tax sharing or similar payment payable by such Person to another
Person.
"Revolver Multiple": on any date of calculation, a number determined
-----------------
by dividing (a) the Aggregate Revolving Credit Commitments as of such date, by
(b) (i) prior to the termination of the term loan commitments under the Term
Loan Facility, the aggregate amount of term loan commitments by the lenders
under the Term Loan Facility as of such date, or (ii) after the termination of
the term loan commitments under the Term Loan Facility, the aggregate principal
amount of term loans outstanding under the Term Loan Facility as of such date.
"Revolver Prepayment Fraction": on any date of calculation, a fraction
----------------------------
determined by dividing (a) the Aggregate Revolving Credit Commitments as of such
date, by (b) the sum of (i) the Aggregate Revolving Credit Commitments as of
such date, plus (ii) (A) prior to the termination of the term loan commitments
under the Term Loan Facility, the aggregate amount of term loan commitments by
the lenders under the Term Loan Facility as of such date, or (B) after the
termination of the term loan commitments under the Term Loan Facility, the
aggregate principal amount of term loans outstanding under the Term Loan
Facility as of such date.
"Revolving Credit Commitment": as to any Lender, such Lender's
---------------------------
undertaking during the Revolving Credit Commitment Period to make Revolving
Credit Loans, subject to the terms and conditions hereof, in an aggregate
outstanding principal amount not exceeding the amount set forth next to the name
of such Lender in Exhibit A under the heading "Revolving Credit Commitment", as
the same may be reduced pursuant to Section 2.6.
"Revolving Credit Commitment Period": the period from the Effective
----------------------------------
Date until the earlier of (i) the day preceding the Maturity Date, or (ii) such
other date
-24-
upon which the Revolving Credit Commitments shall have been terminated in
accordance with Sections 2.6 or 9.1.
"Revolving Credit Loan" and "Revolving Credit Loans": as defined in
--------------------- ---------------------
Section 2.1.
"Revolving Credit Note" and "Revolving Credit Notes": as defined in
--------------------- ----------------------
Section 2.2.
"RTC": Renal Treatment Centers, Inc., a Delaware corporation and a
---
wholly-owned Subsidiary of the Borrower.
"RTC Convertible Subordinated Guaranty": The Guaranty, dated as of
-------------------------------------
March 31, 1998, made by the Borrower in favor of PNC Bank, National Association,
as trustee, pursuant to which the Borrower guaranteed, on a subordinated basis,
the RTC Convertible Subordinated Notes, as the same may be amended, supplemented
or otherwise modified from time to time in accordance with Section 8.9.
"RTC Convertible Subordinated Indenture": the Indenture, dated as of
--------------------------------------
June 12, 1996, between RTC and PNC Bank, National Association, as trustee,
pursuant to which RTC issued the RTC Convertible Subordinated Notes, as amended
by that certain First Supplemental Indenture dated as of February 27, 1998 and
that certain Second Supplemental Indenture dated as of March 31, 1998, and as
the same may be further amended, supplemented or otherwise modified from time to
time in accordance with Section 8.9.
"RTC Convertible Subordinated Notes": the 5-5/8% Convertible
----------------------------------
Subordinated Notes, due 2006, issued by RTC pursuant to the RTC Convertible
Subordinated Indenture, as the same may be amended, supplemented or otherwise
modified from time to time in accordance with Section 8.9.
"RTC Merger Agreement": the Agreement and Plan of Merger, dated as of
--------------------
November 18, 1997, by and among the Borrower, Nevada Acquisition Corp., a
Delaware corporation, and RTC, as the same may be amended, supplemented or
otherwise modified from time to time in accordance with Section 8.9.
"SEC": the Securities and Exchange Commission or any Governmental
---
Authority succeeding to the functions thereof.
"Special Counsel": Emmet, Marvin & Martin, LLP, special counsel to the
---------------
Administrative Agent.
"Sterling Pounds": freely transferable lawful money of the United
---------------
Kingdom.
"Stock": any and all shares, rights, interests, participations,
-----
warrants or other equivalents (however designated) of corporate stock.
"Subordinated Indebtedness": any unsecured Indebtedness of the
-------------------------
Borrower subordinated in right of payment to the payment in full of the
Obligations of the Borrower
-25-
and other senior obligations of the Borrower; provided that (i) the negative
covenants in such subordinated Indebtedness are less restrictive than the
negative covenants in this Agreement as in effect at the time such subordinated
Indebtedness is incurred, (ii) the affirmative covenants in such subordinated
Indebtedness are no more restrictive that the affirmative covenants in this
Agreement as in effect at the time such subordinated Indebtedness is incurred,
(iii) the events of default in such subordinated Indebtedness 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 Indebtedness is incurred, (iv) such subordinated Indebtedness does
not cross-default to other Indebtedness (but may cross-accelerate to other
Indebtedness of Borrower or any Guarantor that has guarantied such subordinated
Indebtedness), (v) the subordination provisions in such subordinated
Indebtedness are on market terms for subordinated debt instruments prevailing at
or around the time such subordinated Indebtedness is incurred and (vi) such
subordinated Indebtedness provides for no scheduled payment or mandatory
prepayments of principal before September 30, 2008 other than (x) redemptions
made at the option of the holders of such subordinated Indebtedness upon a
change in control of the Borrower in circumstances where the Lenders under this
Agreement would have rights to prepayment under Section 2.7(c), provided that
any such redemptions are made not fewer than 30 days after such change in
control and (y) mandatory prepayments required as a result of asset dispositions
if such subordinated Indebtedness 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.
"Subsidiary": as to any Person, any corporation, association,
----------
partnership, joint venture or other business entity of which such Person or any
Subsidiary of such Person, directly or indirectly, either (i) in respect of a
corporation, owns or controls 50% or more of the outstanding Stock having
ordinary voting power to elect a majority of the board of directors or similar
managing body, irrespective of whether a class or classes shall or might have
voting power by reason of the happening of any contingency, or (ii) in respect
of an association, partnership, joint venture or other business entity, is
entitled to share in 50% or more of the profits and losses, however determined.
"Subsidiary Guaranty": the Subsidiary Guaranty, dated as of October
-------------------
24, 1997, by the Guarantors in favor of the Collateral Agent, executed and
delivered pursuant to the Existing Revolving Credit Agreement, as amended,
supplemented or otherwise modified from time to time.
"Subsidiary Pledge Agreements": collectively, each Subsidiary Pledge
----------------------------
Agreement (i) delivered on or before the Effective Date pursuant to the Existing
Revolving Credit Agreement or (ii) delivered after the Effective Date pursuant
to Section 7.11(c), each such Subsidiary Pledge Agreement by and between the
Pledgor named therein and the Collateral Agent, substantially in the form of
Exhibit K, as each such agreement may be amended, supplemented or otherwise
modified from time to time.
"Swing Line Commitment": the undertaking of the Swing Line Lender
---------------------
during the Swing Line Commitment Period to make Swing Line Loans, subject to the
terms and conditions hereof, in an aggregate outstanding principal amount not in
excess of
-26-
$15,000,000, and the commitment of the Lenders to participate therein as set
forth in Section 2.8, as the same may be reduced pursuant to Section 2.6.
"Swing Line Commitment Period": the period from the Effective Date to,
----------------------------
but excluding, the Swing Line Termination Date.
"Swing Line Exposure": at any time, in respect of any Lender, an
-------------------
amount equal to the aggregate outstanding principal amount of the Swing Line
Loans at such time multiplied by such Lender's Commitment Percentage at such
time.
"Swing Line Lender": BNY (or any successor thereto).
-----------------
"Swing Line Loan" and "Swing Line Loans": as defined in Section 2.3.
--------------- ----------------
"Swing Line Note": as defined in Section 2.4.
---------------
"Swing Line Participation Amount": as defined in Section 2.8.
-------------------------------
"Swing Line Termination Date": the date which is five Business Days
---------------------------
prior to the Maturity Date.
"Tax": any present or future tax, levy, impost, duty, charge, fee,
---
deduction or withholding of any nature and whatever called, by a Governmental
Authority, imposed, levied, collected, withheld or assessed with respect to any
payment by the Borrower pursuant to this Agreement or any other Loan Document,
and all liabilities with respect thereto.
"Tax on the Income": as to any Person, a Tax imposed by one of the
-----------------
following jurisdictions or by any political subdivision or taxing authority
thereof: (i) the United States, (ii) the jurisdiction in which such Person is
organized, (iii) the jurisdiction in which such Person's principal office is
located, or (iv) in the case of each Lender, any jurisdiction in which such
Person is deemed to be doing business; which Tax is an income tax (or any tax
in lieu thereof or equivalent thereto) or franchise tax imposed on all or part
of the net income or net profits of such Person or with respect to the net
increase in the shareholders' or owners' equity or capital in such Person or
which Tax represents interest, fees or penalties for payment of any such income
tax or franchise tax.
"Termination Event": with respect to any Pension Plan, (i) a
-----------------
Reportable Event, (ii) the termination of a Pension Plan, or the filing of a
notice of intent to terminate a Pension Plan, or the treatment of a Pension Plan
amendment as a termination, in each case under Section 4041(c) of ERISA, (iii)
the institution of proceedings to terminate a Pension Plan under Section 4042 of
ERISA, or (iv) the appointment of a trustee to administer any Pension Plan under
Section 4042 of ERISA.
"Term Loan Facility": the Amended and Restated Term Loan Agreement,
------------------
dated as of the date hereof, by and among the Borrower, the lenders party
thereto, DLJ Capital Funding, Inc., as syndication agent, and BNY, as
administrative agent, together with all other documents executed in connection
therewith, as the same may be amended, supplemented, refinanced or otherwise
modified from time to time in accordance with Section 8.9.
-27-
"Term Prepayment Fraction": a fraction equal to 1.00 minus the
------------------------
Revolver Prepayment Fraction.
"Threshold Amount": with respect to any Asset Sale as of any date of
----------------
determination, the amount equal to the greater of (A) zero, and (B) the
difference between (x) $5,000,000, minus (y) the aggregate amount of Adjusted
-----
Net Cash Proceeds from all other Asset Sales made on or after the Effective
Date.
"Total Debt": the difference between (i) all Indebtedness (less
----------
Excluded Contingent Obligations) and (ii) cash and cash equivalents, in each
case, of the Borrower and its Subsidiaries on a Consolidated basis in accordance
with GAAP.
"Total Prepayment Amount": with respect to any Asset Sale as of any
-----------------------
date of determination, the amount equal to the greater of (A) zero, and (B) the
difference between (x) the Adjusted Net Cash Proceeds from such Asset Sale,
minus (y) the Threshold Amount.
- -----
"Transactions": the transactions contemplated under this Agreement,
------------
the other Loan Documents and the Term Loan Facility, including the borrowing of
the Loans, the borrowing of the term loans under the Term Loan Facility, the
issuances of Letters of Credit and other transactions related to any of the
foregoing.
"TRC": Total Renal Care, Inc., a California corporation.
---
"Unfunded Pension Liabilities": with respect to any Pension Plan, at
----------------------------
any date of determination, the amount determined by taking the accumulated
benefit obligation, as disclosed in accordance with Statement of Accounting
Standards No. 87, "Employers' Accounting for Pensions", over the fair market
value of Pension Plan assets.
"United States": the United States of America (including the States
-------------
thereof and the District of Columbia).
"Unqualified Amount": as defined in Section 2.10(c).
------------------
"Unrecognized Retiree Welfare Liability": with respect to any Employee
--------------------------------------
Benefit Plan that provides postretirement benefits other than pension benefits,
the amount of the transition obligation, as determined in accordance with
Statement of Financial Accounting Standards No. 106, "Employers' Accounting for
Postretirement Benefits Other Than Pensions," as of the most recent valuation
date, that has not been recognized as an expense in an income statement of the
Borrower and its Subsidiaries, provided that (i) prior to the date such
Statement is applicable to the Borrower, such amount shall be based on an
estimate made in good faith of such transition obligation, and (ii) for purposes
of determining the aggregate amount of the Unrecognized Retiree Welfare
Liability, Plans maintained by a Subsidiary that is not otherwise an ERISA
Affiliate shall be included.
1.2. Principles of Construction
--------------------------
(a) All terms defined in this Agreement shall have the meanings given
such terms herein when used in the other Loan Documents or any certificate,
opinion or
-28-
other document made or delivered pursuant hereto, unless otherwise expressly
provided therein.
(b) As used in the Loan Documents and in any certificate, opinion or
other document made or delivered pursuant thereto, accounting terms not defined
in Section 1.1, and accounting terms partly defined in Section 1.1, to the
extent not defined, shall have the respective meanings given to them under GAAP.
(c) The words "hereof", "herein", "hereto" and "hereunder" and similar
words when used in a Loan Document shall refer to such Loan Document as a whole
and not to any particular provision thereof, and Section, schedule and exhibit
references contained therein shall refer to Sections thereof or schedules or
exhibits thereto unless otherwise expressly provided therein.
(d) The phrase "may not" is prohibitive and not permissive.
(e) Unless the context otherwise requires, words in the singular
number include the plural, and words in the plural include the singular.
(f) Unless specifically provided in a Loan Document to the contrary,
references to a time shall refer to New York City time.
(g) Unless specifically provided in a Loan Document to the contrary,
in the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and "until"
each mean "to but excluding".
2. AMOUNT AND TERMS OF REVOLVING CREDIT LOANS AND LETTERS OF CREDIT
----------------------------------------------------------------
2.1. Revolving Credit Loans
----------------------
Subject to the terms and conditions hereof, each Lender severally
agrees to make revolving credit loans (each a "Revolving Credit Loan" and, as
---------------------
the context may require, collectively with all other Revolving Credit Loans of
such Lender and with the Revolving Credit Loans of all other Lenders, the
"Revolving Credit Loans") to the Borrower in Dollars or an Alternate Currency
- -----------------------
from time to time during the Revolving Credit Commitment Period, provided,
however, that immediately after giving effect thereto (a) such Lender's Credit
Exposure shall not exceed such Lender's Revolving Credit Commitment, (b) the
Aggregate Credit Exposure of all Lenders shall not exceed the Aggregate
Revolving Credit Commitments and (c) if such Revolving Credit Loan is an
Alternate Currency Revolving Credit Loan, the Aggregate Alternate Currency
Exposure shall not exceed $125,000,000. During the Revolving Credit Commitment
Period, the Borrower may borrow, prepay in whole or in part and reborrow under
the Revolving Credit Commitments, all in accordance with the terms and
conditions of this Agreement.
-29-
2.2. Revolving Credit Notes
----------------------
(a) The Revolving Credit Loans made by a Lender shall be evidenced by
a promissory note of the Borrower, substantially in the form of Exhibit B-1
(each, as indorsed or modified from time to time, including all replacements
thereof and substitutions therefor, a "Revolving Credit Note" and, collectively
---------------------
with the Revolving Credit Notes of all other Lenders, the "Revolving Credit
----------------
Notes"), payable to the order of such Lender for the account of its Applicable
- -----
Lending Office and representing the obligation of the Borrower to pay the
aggregate unpaid principal balance of all Revolving Credit Loans made by such
Lender, with interest thereon as prescribed in Section 2.10. Each Revolving
Credit Note shall (i) be dated the Effective Date, (ii) be stated to mature on
the Maturity Date and (iii) bear interest from the date thereof on the unpaid
principal balance thereof at the applicable interest rate or rates per annum
determined as provided in Section 2.10. Interest on each Revolving Credit Note
shall be payable as specified in Section 2.10.
(b) The Revolving Credit Loans shall be due and payable on the
Maturity Date.
2.3. Swing Line Loans
----------------
(a) Subject to the terms and conditions of this Agreement, the Swing
Line Lender agrees to make swing line loans (each a "Swing Line Loan" and,
---------------
collectively, the "Swing Line Loans") to the Borrower in Dollars from time to
----------------
time during the Swing Line Commitment Period in an aggregate principal amount at
any one time outstanding not to exceed the Swing Line Commitment, provided that
immediately after making each Swing Line Loan, (i) the Swing Line Lender's
Credit Exposure would not exceed the Swing Line Lender's Revolving Credit
Commitment, (ii) the aggregate unpaid balance of the Swing Line Loans would not
exceed the Swing Line Commitment, and (iii) the Aggregate Credit Exposure of all
Lenders would not exceed the Aggregate Revolving Credit Commitments. During the
Swing Line Commitment Period, the Borrower may borrow, prepay in whole or in
part and reborrow under the Swing Line Commitment, all in accordance with the
terms and conditions of this Agreement. Each Swing Line Loan shall mature and
be due and payable on the last day of the Interest Period therefor.
(b) The Swing Line Lender shall not be obligated to make any Swing
Line Loan at a time when any Lender shall be in default of its obligations under
this Agreement unless the Swing Line Lender has entered into arrangements
satisfactory to it and the Borrower to eliminate the Swing Line Lender's risk
with respect to such defaulting Lender's participation in such Swing Line Loan.
The Swing Line Lender will not make a Swing Line Loan if the Administrative
Agent, or any Lender by notice to the Swing Line Lender and the Borrower no
later than one Business Day prior to the Borrowing Date with respect to such
Swing Line Loan, shall have determined that the conditions set forth in Section
6 have not been satisfied and such conditions remain unsatisfied as of the
requested time of the making such Loan. Each Swing Line Loan shall be due and
payable on the day being the earliest of the last day of the Interest Period
applicable thereto, the date on which the Swing Line Commitment shall have been
voluntarily terminated by the Borrower in accordance with Section 2.6, and the
date on which the Swing Line Loans shall become due and payable pursuant to the
provisions hereof, whether by acceleration or otherwise.
-30-
(c) On any Business Day on which a Swing Line Loan shall be due and
payable and shall remain unpaid, the Swing Line Lender may, in its sole
discretion, give notice to the Lenders and the Borrower that such outstanding
Swing Line Loan shall be funded with a borrowing of Revolving Credit Loans
(provided that such notice shall be deemed to have been automatically given upon
the occurrence of a Default or an Event of Default under Sections 9.1(h) or
(i)), in which case a borrowing of Revolving Credit Loans made as ABR Advances
(each such borrowing, a "Mandatory Borrowing"), shall be made by all Lenders pro
-------------------
rata based on each such Lender's Commitment Percentage on the Business Day
immediately succeeding the giving of such notice. The proceeds of each Mandatory
Borrowing shall be remitted directly to the Swing Line Lender to repay such
outstanding Swing Line Loan. Each Lender irrevocably agrees to make a Revolving
Credit Loan pursuant to each Mandatory Borrowing in the amount and in the manner
specified in the preceding sentence and on the date specified in writing by the
Swing Line Lender notwithstanding: (i) the amount of such Mandatory Borrowing
may not comply with the minimum amount for Loans otherwise required hereunder,
(ii) whether any condition specified in Section 6 is then unsatisfied, (iii)
whether a Default or an Event of Default then exists, (iv) the Borrowing Date of
such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then
outstanding, (vi) the Aggregate Credit Exposure at such time and (vii) the
amount of the Commitments at such time.
2.4. Swing Line Note
---------------
The Swing Line Loans made by the Swing Line Lender shall be evidenced
by a promissory note of the Borrower, substantially in the form of Exhibit B-2,
with appropriate insertions therein as to date and principal amount (as indorsed
or modified from time to time, including all replacements thereof and
substitutions therefor, the "Swing Line Note"), payable to the order of the
---------------
Swing Line Lender and representing the obligation of the Borrower to pay the
lesser of (i) the amount of the Swing Line Commitment and (ii) the aggregate
unpaid principal balance of all Swing Line Loans with interest thereon as set
forth in Section 2.10. The Swing Line Note shall be stated to mature on the
Swing Line Termination Date, and bear interest for the period from and including
the date thereof on the unpaid principal balance thereof from time to time
outstanding at the applicable interest rate or rates per annum determined as
provided in Section 2.10. Interest on the Swing Line Note shall be payable as
specified in Section 2.10.
2.5. Procedure for Borrowing
-----------------------
(a) Revolving Credit Loans. The Borrower may borrow under the
----------------------
Aggregate Revolving Credit Commitments on any Business Day during the Revolving
Credit Commitment Period, provided, however, that the Borrower shall notify the
Administrative Agent (by telecopy or other written notice) no later than: 2:00
P.M. three Business Days prior to the requested Borrowing Date in the case of
Eurodollar Advances, 2:00 P.M. four Business Days prior to the requested
Borrowing Date in the case of Alternate Currency Advances, and 2:00 P.M. one
Business Day prior to the requested Borrowing Date, in the case of ABR Advances,
specifying (i) the aggregate principal amount to be borrowed under the Aggregate
Revolving Credit Commitments, (ii) the requested Borrowing Date, (iii) whether
such borrowing is to consist of one or more Eurodollar Advances, Alternate
Currency Advances, ABR Advances, or a combination thereof and (iv) if the
borrowing is to consist of one or more Eurodollar Advances or Alternate Currency
Advance,
-31-
the length of the Interest Period for each such Eurodollar Advance or Alternate
Currency Advance, provided, however, that no Interest Period selected in respect
of any Revolving Credit Loan shall end after the Maturity Date. If the Borrower
fails to give timely notice in connection with a request for a Eurodollar
Advance, the Borrower shall be deemed to have elected that such Advance shall be
made as an ABR Advance. Each such notice shall be irrevocable and confirmed
immediately by delivery to the Administrative Agent of a Borrowing Request. Each
ABR Advance shall be in an aggregate principal amount equal to $1,000,000 or
such amount plus a whole multiple of $250,000 in excess thereof (or, if less,
the unused amount of the Aggregate Revolving Credit Commitments), each
Eurodollar Advance shall be in an aggregate principal amount equal to $5,000,000
or such amount plus a whole multiple of $500,000 in excess thereof, and each
Alternate Currency Advance shall be in the aggregate principal amount having a
Dollar Equivalent equal approximately to $5,000,000 or such amount plus a whole
multiple having a Dollar Equivalent of approximately $500,000 in excess thereof.
(b) Swing Line Loans. The Borrower may borrow under the Swing Line
----------------
Commitment on any Business Day during the Swing Line Commitment Period,
provided, however, that the Borrower shall notify the Administrative Agent and
the Swing Line Lender (by telephone or fax) no later than 3:00 P.M. on the
requested Borrowing Date, specifying (i) the amount to be borrowed under the
Swing Line Commitment, (ii) the length of the Interest Period for each such
Swing Line Loan, provided, however, that no Interest Period selected in respect
of any Swing Line Loan shall end after the Swing Line Termination Date, and
(iii) the requested Borrowing Date. Each such notice shall be irrevocable and
confirmed immediately by delivery to the Administrative Agent of a Borrowing
Request. Each borrowing of Swing Line Loans shall be in an aggregate principal
amount equal to $250,000 or such amount plus an integral multiple of $100,000 in
excess thereof or, if less, the unused amount of the Swing Line Commitment. The
Swing Line Lender will then, subject to its determination that the terms and
conditions of this Agreement have been satisfied, make the requested amount
available promptly on that same day, to the Administrative Agent who, thereupon,
will promptly make such amount available to the Borrower at the office of the
Administrative Agent specified in Section 11.2 by crediting the account of the
Borrower on the books of such office of the Administrative Agent.
(c) Upon receipt of each notice of borrowing of Revolving Credit Loans
from the Borrower, the Administrative Agent shall promptly notify each Lender
thereof. Subject to its receipt of the notice referred to in the preceding
sentence, each Lender will make the amount of its Commitment Percentage of each
Revolving Credit Loan available to the Administrative Agent for the account of
the Borrower at the applicable Agent Payment Office not later than 12:00 Noon
(local time in the city in which the applicable Agent Payment Office is located)
on the relevant Borrowing Date requested by the Borrower, in the applicable
Currency and in funds immediately available to the Administrative Agent at such
Agent Payment Office. The amounts so made available to the Administrative Agent
on such Borrowing Date will then, subject to the satisfaction of the terms and
conditions of this Agreement, as determined by the Administrative Agent, be made
available on such date to the Borrower by the Administrative Agent at the
applicable Agent Payment Office in the applicable Currency.
(d) Unless the Administrative Agent shall have received prior notice
from a Lender (by telephone or otherwise, such notice to be promptly confirmed
by fax or other writing) that such Lender will not make available to the
Administrative Agent such
-32-
Lender's Commitment Percentage of the Revolving Credit Loans requested by the
Borrower, the Administrative Agent may assume that such Lender has made such
share available to the Administrative Agent on the Borrowing Date in accordance
with this Section, provided that such Lender received notice of the proposed
borrowing from the Administrative Agent, and the Administrative Agent may, in
reliance upon such assumption, make available to the Borrower on the Borrowing
Date a corresponding amount. If and to the extent such Lender shall not have so
made its Commitment Percentage of such Revolving Credit Loans available to the
Administrative Agent, such Lender and the Borrower severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount (to the
extent not previously paid by the other), together with interest thereon for
each day from the date such amount is made available to the Borrower to the date
such amount is paid to the Administrative Agent, at a rate per annum equal to,
(i) in the case of the Borrower, the applicable interest rate set forth in
Section 2.10, and, (ii) in the case of such Lender, the Federal Funds Rate (or,
in the case of each Alternate Currency Revolving Credit Loan, a rate determined
by the Administrative Agent to be reflective of the all-in cost of funds to the
Administrative Agent in funding such Alternate Currency Revolving Credit Loan)
in effect on each such day (as determined by the Administrative Agent) plus any
processing fee per the interbank compensation rules as then in effect. Such
payment by the Borrower, however, shall be without prejudice to its rights
against such Lender. If such Lender shall pay to the Administrative Agent such
corresponding amount, such amount so paid shall constitute such Lender's
Revolving Credit Loan as part of the Revolving Credit Loans for purposes of this
Agreement, which Revolving Credit Loan shall be deemed to have been made by such
Lender on the Borrowing Date applicable to such Revolving Credit Loans.
(e) If a Lender makes a new Revolving Credit Loan on a Borrowing Date
on which the Borrower is to repay a Revolving Credit Loan from such Lender in
the same Currency as such new Revolving Credit Loan, such Lender shall apply the
proceeds of such new Revolving Credit Loan to make such repayment, and only the
excess of the proceeds of such new Revolving Credit Loan over the Revolving
Credit Loan being repaid need be made available to the Administrative Agent.
(f) Notices of borrowing given by telecopy shall be deemed given when
received by telecopy and shall be promptly confirmed in writing within five
Business Days. The Administrative Agent and the Lenders may rely on a
telecopied notice of borrowing whether or not such notice is confirmed by the
delivery of a Borrowing Request.
2.6. Termination or Reduction of Aggregate Revolving Credit Commitments and
----------------------------------------------------------------------
Swing Line Commitment.
- ---------------------
(a) Voluntary Reductions. (i) The Borrower shall have the right, upon
--------------------
at least three Business Days' prior written notice to the Administrative Agent,
at any time, to terminate the Aggregate Revolving Credit Commitments or from
time to time to reduce permanently the Aggregate Revolving Credit Commitments to
an amount not less than the Aggregate Credit Exposure, provided, however, that
any such reduction shall be in the amount of $10,000,000 or such amount plus a
whole multiple of $1,000,000 in excess thereof.
-33-
(ii) The Borrower shall have the right, upon at least one Business
Day's prior written notice to the Administrative Agent and the Swing Line
Lender, at any time, to reduce permanently the Swing Line Commitment in whole at
any time, or in part from time to time, to an amount not less than the aggregate
principal balance of the Swing Line Loans then outstanding (after giving effect
to any contemporaneous prepayment thereof), provided, however, that each partial
reduction of the Swing Line Commitment shall be in an amount equal to $1,000,000
or such amount plus a whole multiple of $1,000,000 in excess thereof.
(b) Mandatory Periodic Reductions. The Aggregate Revolving Credit
-----------------------------
Commitments shall be reduced on each of the following dates by the amount set
forth next to such date:
Aggregate Revolving
Credit Commitments
Dates Reduction
----- -------------------
September 30, 2001 $ 89,100,000
September 30, 2002 $148,400,000
September 30, 2003 $237,500,000
(c) Mandatory Reductions Relating to a Change of Control. Upon the
----------------------------------------------------
occurrence of a Change of Control, the Aggregate Revolving Credit Commitments
and the Swing Line Commitment shall be reduced to $0.
(d) Mandatory Reductions Relating to Issuances of Public Debt,
----------------------------------------------------------
Subordinated Indebtedness and Sales of Property. On each date that a prepayment
- -----------------------------------------------
is made or required pursuant to Section 2.7(d) or (f), the Aggregate Revolving
Credit Commitments shall be automatically and permanently reduced in an amount
equal to the amount of the required prepayment (assuming, solely for purposes of
this Section 2.6(d), that the then outstanding amount of Revolving Credit Loans
equals or exceeds the amount of such prepayment). On each date that a
prepayment is made or required pursuant to Section 2.7(e) in connection with the
issuance by the Borrower of Subordinated Indebtedness (assuming, solely for
purposes of this Section 2.6(d), that the then outstanding amount of Revolving
Credit Loans equals or exceeds the amount of such prepayment), the Aggregate
Revolving Credit Commitments shall be automatically and permanently reduced in
an amount equal to (x) the aggregate proceeds (net of sales and other
commissions and legal and other related expenses incurred in connection with
such issuance) received by the Borrower in connection with such issuance of
Subordinated Indebtedness to the extent that such net proceeds, when added to
the aggregate proceeds (net of sales and other commissions and legal and other
related expenses incurred in connection with such issuance) received by the
Borrower in connection with the issuance of all other Subordinated Indebtedness
after the Effective Date, exceed $200,000,000 less (y) the aggregate amount of
prior reductions of the Aggregate Revolving Credit Commitments made pursuant to
this sentence.
(e) Mandatory Reductions Relating to Reductions or Prepayments under
----------------------------------------------------------------
the Term Loan Facility. On each date that a reduction of the term loan
- ----------------------
commitments under the Term Loan Facility or the prepayment of term loans
outstanding under the Term Loan Facility is made (other than with respect to
Section 2.4(d) of the Term Loan Facility
-34-
or with respect to a refinancing of the Term Loan Facility permitted by Section
8.9), the Aggregate Revolving Credit Commitments shall be automatically and
permanently reduced in an amount equal to the amount of such reduction or
prepayment made under the Term Loan Facility multiplied by the Revolver
Multiple.
(f) In General. Reductions of the Aggregate Revolving Credit
----------
Commitments shall be applied to reduce the Revolving Credit Commitments of the
Lenders pro rata. Simultaneously with each reduction of the Aggregate Revolving
Credit Commitments under this Section, the Borrower shall pay the Commitment Fee
accrued on the amount by which the Aggregate Revolving Credit Commitments have
been reduced and prepay the Revolving Credit Loans and the Swing Line Loans as
required by Section 2.7(b).
2.7. Prepayments of the Revolving Credit Loans
-----------------------------------------
(a) Voluntary Prepayments. The Borrower may, at its option, prepay the
---------------------
Revolving Credit Loans without premium or penalty, in full at any time or in
part from time to time, by notifying the Administrative Agent in writing at
least one Business Day prior to the proposed prepayment date, in the case of
Revolving Credit Loans consisting of ABR Advances, and at least three Business
Days prior to the proposed prepayment date, in the case of Revolving Credit
Loans consisting of Eurodollar Advances or Alternate Currency Advances,
specifying the Revolving Credit Loans to be prepaid, whether such Revolving
Credit Loans consist of ABR Advances, Eurodollar Advances, Alternate Currency
Advances, or a combination thereof, the amount to be prepaid (stated in the
applicable Currency) and the date of prepayment. Such notice shall be
irrevocable and the amount specified in such notice shall be due and payable on
the date specified, together with accrued interest to the date of such payment
on the amount prepaid. Upon receipt of such notice, the Administrative Agent
shall promptly notify each Lender thereof. Each partial prepayment made
pursuant to this subsection shall be (A) with respect to ABR Advances and
Eurodollar Advances, in an aggregate principal amount of $1,000,000 or such
amount plus a whole multiple of $250,000 in excess thereof (or, if less, the
outstanding principal balance of the Revolving Credit Loans), and (B) in the
case of Alternate Currency Advances, in an aggregate principal amount in the
applicable Currency having an Alternate Currency Equivalent of approximately
$1,000,000 or such amount plus an amount in the applicable Currency having an
Alternate Currency Equivalent of a whole multiple of approximately $250,000 in
excess thereof (or, if less, the outstanding principal balance of the Revolving
Credit Loans). After giving effect to any partial prepayment (A) with respect
to Eurodollar Advances that were made (whether as the result of a borrowing or a
conversion) on the same date and that had the same Interest Period, the
outstanding principal amount of such Eurodollar Advances shall equal (subject to
Section 2.9) $5,000,000 or such amount plus a whole multiple of $500,000 in
excess thereof, and (B) with respect to Alternate Currency Advances denominated
in the same Currency that were made (whether as the result of a borrowing or a
conversion) on the same date and that had the same Interest Period, the
outstanding principal amount of such Alternate Currency Advances shall equal
(subject to Section 2.9) an amount in such Currency having a Dollar Equivalent
of approximately $5,000,000 or such amount plus an amount in such Currency
having a Dollar Equivalent of a whole multiple of approximately $500,000 in
excess thereof.
-35-
(b) Mandatory Prepayments Relating to Reductions of the Aggregate
-------------------------------------------------------------
Revolving Credit Commitments and the Swing Line Commitment. Simultaneously with
- ----------------------------------------------------------
each reduction of the Aggregate Revolving Credit Commitments or the Swing Line
Commitment under Section 2.6, the Borrower shall prepay the Revolving Credit
Loans or the Swing Line Loans, as the case may be, by the amount, if any, by
which (i) in the case of a reduction of the Aggregate Revolving Credit
Commitments, the Aggregate Credit Exposure exceeds the amount of the Aggregate
Revolving Credit Commitments after giving effect to such reduction and (ii) in
the case of a reduction of the Swing Line Commitment, the outstanding principal
balance of the Swing Line Loans exceeds the amount of the Swing Line Commitment
after giving effect to such reduction. If, after giving effect to the
prepayment of all outstanding Revolving Credit Loans and Swing Line Loans, the
Letter of Credit Exposure exceeds the Aggregate Revolving Credit Commitments
(after giving effect to such reduction), the Borrower shall deposit an amount
equal to such excess in a cash collateral account (the "Cash Collateral
---------------
Account") with and under the exclusive control of the Administrative Agent.
(c) Mandatory Prepayments Relating to a Change of Control. Upon the
-----------------------------------------------------
occurrence of a Change of Control, the Borrower shall (i) prepay in full the
outstanding principal balance of the Revolving Credit Loans and the Swing Line
Loans, together with accrued and unpaid interest thereon, (ii) pay in full all
fees and other amounts payable under the Loan Documents and (iii) deposit an
amount equal to the Letter of Credit Exposure in the Cash Collateral Account.
(d) Mandatory Prepayments Relating to Issuances of Public Debt. Upon
----------------------------------------------------------
the date of any issuance of Public Debt by the Borrower, the Borrower shall
prepay the Revolving Credit Loans in an amount equal to the aggregate proceeds
of such issuance of Public Debt (net of sales and other commissions and legal
and other related expenses incurred in connection with such issuance).
(e) Mandatory Prepayments Relating to Issuances of Subordinated
-----------------------------------------------------------
Indebtedness. Upon the date of any issuance of Subordinated Indebtedness by the
- ------------
Borrower, the Borrower shall prepay the Revolving Credit Loans in an amount
equal to the aggregate proceeds (net of sales and other commissions and legal
and other related expenses incurred in connection with such issuance) received
by the Borrower in connection with such issuance of Subordinated Indebtedness.
(f) Mandatory Prepayments Relating to Sales of Property. (i) With
---------------------------------------------------
respect to each Asset Sale, the Borrower shall prepay the Revolving Credit Loans
in an amount equal to the sum of (A) the Revolver Prepayment Fraction multiplied
by the Total Prepayment Amount, plus (B) 50% of the amount equal to the
difference between (1) the Term Prepayment Fraction multiplied by the Total
Prepayment Amount, and (2) the amount the Term Loans are actually prepaid under
the Term Loan Facility in connection with such sale. Such prepayment shall be
made on the earlier of (x) the last day of the Reinvestment Period with respect
to such sale, or (y) the occurrence of an Event of Default.
(ii) On each date on which any mandatory prepayment of term loans is
required under Section 2.4(d)(i) of the Term Loan Facility, the Borrower shall
prepay the Revolving Credit Loans in an amount equal to the Total Prepayment
Amount (as such term is defined in the Term Loan Facility) multiplied by the
Revolver Prepayment
-36-
Fraction; provided, however, that if any prepayment is required to be made under
Section 2.7(f)(i) on any date on which a prepayment is required to be made under
this Section 2.7(f)(ii), for purposes of this Section 2.7(f)(ii), the "Total
Prepayment Amount" (as such term is defined in the Term Loan Facility) on such
date shall be reduced (to an amount not less than zero) by the "Total Prepayment
Amount" (as such term is defined herein) on such date.
(g) Mandatory Prepayments Relating to Aggregate Credit Exposure. If,
-----------------------------------------------------------
on the last day of any fiscal quarter, the Aggregate Credit Exposure shall
exceed the Aggregate Revolving Credit Commitments, the Borrower shall prepay the
Loans in an aggregate principal amount such that immediately after giving effect
thereto the Aggregate Credit Exposure shall not exceed the Aggregate Revolving
Credit Commitments. If, after giving effect to the prepayment of all
outstanding Loans, the Letter of Credit Exposure exceeds the Aggregate Revolving
Credit Commitments, the Borrower shall deposit an amount equal to such excess in
the Cash Collateral Account.
(h) Mandatory Prepayments Relating to Aggregate Alternate Currency
--------------------------------------------------------------
Exposure. If, on the last day of any fiscal quarter, the Aggregate Alternate
- --------
Currency Exposure shall exceed $125,000,000, the Borrower shall prepay Alternate
Currency Revolving Credit Loans in an aggregate principal amount such that
immediately after giving effect thereto the Aggregate Alternate Currency
Exposure shall not exceed $125,000,000. If, after giving effect to the
prepayment of all outstanding Alternate Currency Revolving Credit Loans, the
Letter of Credit Exposure for all Lenders attributable to Alternate Currency
Letters of Credit exceeds $100,000,000, the Borrower shall deposit an amount
equal to such excess in the Cash Collateral Account.
(i) In General. Each prepayment of Revolving Credit Loans denominated
----------
in Dollars shall first be applied to ABR Advances. If any prepayment is made in
respect of any Eurodollar Advance, Alternate Currency Advance or Swing Line
Loan, in whole or in part, prior to the last day of the applicable Interest
Period, the Borrower agrees to indemnify the Lenders in accordance with Section
2.15.
2.8. Participation in Swing Line Loans
---------------------------------
(a) Upon each receipt by a Lender of notice of an Event of Default
from the Administrative Agent pursuant to Section 10.5, such Lender shall
purchase unconditionally, irrevocably, and severally (and not jointly) from the
Swing Line Lender a participation in the outstanding Swing Line Loans (including
accrued interest thereon) in an amount equal to the product of its Commitment
Percentage and the outstanding amount of the Swing Line Loans (the "Swing Line
----------
Participation Amount"). Each Lender shall also be liable for an amount equal to
- --------------------
the product of its Commitment Percentage and any amounts paid by the Borrower
pursuant to Section 2.8(c) that are subsequently rescinded or avoided, or must
otherwise be restored or returned. Such liabilities shall be unconditional and
without regard to the occurrence of any Default or Event of Default or the
compliance by the Borrower with any of its obligations under the Loan Documents.
(b) In furtherance of subsection (a), upon each receipt by a Lender of
notice of an Event of Default from the Administrative Agent pursuant to Section
10.5, such Lender shall promptly make available to the Administrative Agent for
the account of the Swing Line Lender its Swing Line Participation Amount at the
office of the
-37-
Administrative Agent specified in Section 11.2, in Dollars and in immediately
available funds. The Administrative Agent shall deliver the payments made by
each Lender pursuant to the immediately preceding sentence to the Swing Line
Lender promptly upon receipt thereof in like funds as received. Each Lender
shall indemnify and hold harmless the Administrative Agent and the Swing Line
Lender from and against any and all losses, liabilities (including liabilities
for penalties), actions, suits, judgments, demands, costs and expenses resulting
from any failure on the part of such Lender to pay, or from any delay in paying,
the Administrative Agent any amount such Lender is required to pay in accordance
with this Section 2.8(b) upon receipt of notice of Event of Default from the
Administrative Agent pursuant to Section 10.5 (except in respect of losses,
liabilities or other obligations suffered by the Administrative Agent or the
Swing Line Lender, as the case may be, resulting from the gross negligence or
willful misconduct of the Administrative Agent or the Swing Line Lender, as the
case may be), and such Lender shall be required to pay interest to the
Administrative Agent for the account of the Swing Line Lender from the date such
amount was due until paid in full, on the unpaid portion thereof, at a rate of
interest per annum equal to (i) from the date such amount was due until the
third day therefrom, the Federal Funds Rate, and (ii) thereafter, the Federal
Funds Rate plus 1%, payable upon demand by the Swing Line Lender. The
----
Administrative Agent shall distribute such interest payments to the Swing Line
Lender upon receipt thereof in like funds as received.
(c) Whenever the Administrative Agent is reimbursed by the Borrower,
for the account of the Swing Line Lender, for any payment in connection with
Swing Line Loans and such payment relates to an amount previously paid by a
Lender pursuant to this Section, the Administrative Agent will promptly pay over
such payment to such Lender.
2.9. Conversions and Continuations
-----------------------------
(a) The Borrower may elect from time to time to convert Eurodollar
Advances to ABR Advances by giving the Administrative Agent at least one
Business Day's prior irrevocable notice of such election (confirmed by the
delivery of a Notice of Conversion/Continuation), specifying the amount to be so
converted. In addition, the Borrower may elect from time to time to (i) convert
ABR Advances to Eurodollar Advances, (ii) continue Eurodollar Advances by
selecting a new Interest Period therefor, and (iii) continue Alternate Currency
Advances in the same applicable Currency by selecting a new Interest Period
therefor, in each case by giving the Administrative Agent irrevocable notice no
later than 2:00 P.M. at least three Business Days prior to such election
(confirmed by the delivery of a Notice of Conversion/Continuation), in the case
of a conversion to, or continuation of, Eurodollar Advances or Alternate
Currency Advances, as the case may be, specifying the amount to be so converted
or continued and the initial Interest Period relating thereto, provided that any
such conversion of ABR Advances to Eurodollar Advances shall only be made on a
Business Day and any such continuation of Eurodollar Advances or Alternate
Currency Advances shall only be made on the last day of the Interest Period
applicable to the Eurodollar Advances or the Alternate Currency Advances that
are to be continued as such new Eurodollar Advances or Alternate Currency
Advances, as the case may be. The Administrative Agent shall promptly provide
the Lenders with a copy of each such Notice of Conversion/Continuation.
Advances may be converted or continued pursuant to this Section in whole or in
part, provided that (A) conversions of ABR Advances to Eurodollar Advances, or
continuations of Eurodollar Advances, shall be in an aggregate principal amount
of $5,000,000 or such amount plus a
-38-
whole multiple of $500,000 in excess thereof, and (B) continuations of Alternate
Currency Advances denominated in the same Currency shall be in an aggregate
principal amount having a Dollar Equivalent of approximately $5,000,000 or such
amount plus an amount in such Currency having a Dollar Equivalent of a whole
multiple of approximately $500,000 in excess thereof.
(b) Notwithstanding anything in this Section to the contrary, no ABR
Advance may be converted to a Eurodollar Advance and no Eurodollar Advance may
be continued if the Borrower or the Administrative Agent has knowledge that a
Default or Event of Default has occurred and is continuing either (i) at the
time the Borrower shall notify the Administrative Agent of its election to
convert or continue or (ii) on the requested Conversion/Continuation Date. In
such event, (A) each ABR Advance shall be automatically continued as an ABR
Advance, (B) each Eurodollar Advance shall be automatically converted to an ABR
Advance on the last day of the Interest Period applicable to such Eurodollar
Advance and (C) each Alternate Currency Advance shall, on the last day of the
Interest Period applicable thereto, be automatically continued as a new
Alternate Currency Advance in the same applicable Currency with a one month
Interest Period.
(c) No Interest Period selected in respect of conversion or
continuation of any Eurodollar Advance or Alternate Currency Advance shall end
after the Maturity Date. Notwithstanding anything herein to the contrary, the
Borrower shall select Interest Periods such that, on each date that a mandatory
principal payment is required to be made pursuant to Section 2.7(b) in
connection with a mandatory scheduled Commitment reduction required to be made
pursuant to Section 2.6(b), the outstanding principal balance of all ABR
Advances, when added to the aggregate principal amount of each Eurodollar
Advance and Alternate Currency Advance, the applicable Interest Period of which
shall end on such date, shall equal or exceed the aggregate principal amount of
the Revolving Credit Loans required to be paid on such date pursuant to Section
2.7(b).
(d) Each conversion or continuation shall be effected by each Lender
by applying the proceeds of its new ABR Advance, Eurodollar Advance or Alternate
Currency Advance, as the case may be, to its Advances (or portion thereof) being
converted (it being understood that such conversion shall not constitute a
borrowing for purposes of Sections 4 or 6).
(e) Notwithstanding anything to the contrary contained in any Loan
Document, if the Borrower shall fail, for any reason, to convert or continue a
Eurodollar Advance or an Alternate Currency Advance, as the case may be, under
this Section 2.9 in connection with the expiration of an Interest Period with
respect to any existing Eurodollar Advance or Alternate Currency Advance, as the
case may be, then (i) such Eurodollar Advance shall be converted to an ABR
Advance, and (ii) such Alternate Currency Advance shall be continued as a new
Alternate Currency Advance in the same applicable Currency with a one month
Interest Period, in each case until such time, if any, as the Borrower shall
elect a new Eurodollar Advance or Alternate Currency Advance, as the case may
be, pursuant to this Section 2.9.
(f) Notices in respect of a conversion or continuation given by
telecopy shall be deemed given when received by telecopy and shall be promptly
confirmed in writing within five Business Days. The Administrative Agent and
the Lenders may rely
-39-
on a telecopied notice of conversion or continuation whether such notice is
confirmed by the delivery of a Notice of Conversion/Continuation.
2.10. Interest Rate and Payment Dates
-------------------------------
(a) Prior to Maturity. Except as otherwise provided in Section
-----------------
2.10(b), prior to maturity the Loans shall bear interest on the outstanding
principal balance thereof at the applicable interest rate or rates per annum set
forth below:
ADVANCES/LOANS RATE
-------------- ----
Each ABR Advance Alternate Base Rate.
Each Eurodollar Eurodollar Rate applicable
Advance to such Eurodollar Advance for the
applicable Interest Period plus
the Applicable Margin.
Each Alternate Alternate Currency Euro Rate
Currency Advance applicable to such Alternate Currency
Advance for the applicable Interest Period
plus the Applicable Margin
Each Swing Line Loan Either the Negotiated Rate applicable to such
Swing Line Loan for the applicable Interest
Period or, if the Borrower and the Swing Line
Lender shall not have agreed to a Negotiated
Rate with respect to such Swing Line Loan, the
Alternate Base Rate for such Swing Line Loan
for the applicable Interest Period.
(b) Event of Default. After the occurrence and during the continuance
----------------
of an Event of Default under Section 9.1(a), (b) (with respect to interest, the
Commitment Fee, the LC Fronting Fee or the Letter of Credit Fee), (h) or (i),
the outstanding principal balance of the Loans shall bear interest at a rate per
annum equal to 2% plus the rate that would otherwise be applicable under Section
2.10(a) until, in the case of Eurodollar Advances and Swing Line Loans, the end
of the applicable Interest Period therefor, and, thereafter, at the Alternate
Base Rate plus 2%, payable in the case of interest on any overdue principal, on
demand. Any overdue interest or other amount payable under the Loan Documents
shall bear interest at a rate per annum equal to the Alternate Base Rate plus 2%
and shall be payable on demand. If all or any portion of any reimbursement
obligation in respect of a Letter of Credit shall not be paid when due (whether
at the stated maturity thereof, by acceleration or otherwise), such overdue
amount shall bear interest at a rate per annum equal to the Alternate Base Rate
plus 2%, from the date of such nonpayment until paid in full (whether before or
after the entry of a judgment thereon) and shall be payable on demand.
(c) In General. Interest on (i) ABR Advances and Swing Line Loans, in
----------
each case to the extent based on the BNY Rate, and Alternate Currency Advances
in
-40-
Sterling Pounds shall be calculated on the basis of a 365 or 366-day year (as
the case may be), (ii) ABR Advances and Swing Line Loans, in each case to the
extent based on the Federal Funds Rate, Eurodollar Advances and Alternate
Currency Advances in French Francs, German Marks and Japanese Yen shall be
calculated on the basis of a 360-day year, in each case for the actual number of
days elapsed, including the first day but excluding the last, and (iii) Swing
Line Loans to the extent based on a Negotiated Rate shall be calculated on the
basis of a 360-day year for the actual number of days elapsed, including the
first day but excluding the last. Except as otherwise provided in Section
2.10(b), interest shall be payable in arrears on each Interest Payment Date and
upon each payment (including prepayment) or conversion of the Loans. Any change
in the interest rate on the Loans resulting from a change in the Alternate Base
Rate or reserve requirements or charges described in clause (b) of the
definition of "Alternate Currency Euro Rate" or "Eurodollar Rate" shall become
effective as of the opening of business on the day on which such change shall
become effective. The Administrative Agent shall, as soon as practicable,
notify the Borrower and the Lenders of the effective date and the amount of each
such change in the BNY Rate, but any failure to so notify shall not in any
manner affect the obligation of the Borrower to pay interest on the Loans in the
amounts and on the dates required. Each determination of the Alternate Base
Rate or a Eurodollar Rate or an Alternate Currency Euro Rate by the
Administrative Agent pursuant to this Agreement shall be conclusive and binding
on the Borrower absent manifest error. At no time shall the interest rate
payable on the Loans, together with the Commitment Fee, the Letter of Credit
Fee, the LC Fronting Fee, and all other amounts payable under the Loan
Documents, to the extent the same are construed to constitute interest, exceed
the Highest Lawful Rate. If in respect of any period during the term of this
Agreement, any amount paid hereunder, to the extent the same shall (but for the
provisions of this Section) constitute or be deemed to constitute interest,
would exceed the maximum amount of interest permitted by the Highest Lawful Rate
during such period (such excess amount being hereinafter referred to as an
"Unqualified Amount"), then (i) such Unqualified Amount shall be applied or
- -------------------
shall be deemed to have been applied as a prepayment of the Loans, and (ii) if
in any subsequent period during the term of this Agreement, all amounts payable
hereunder in respect of such period that constitute or shall be deemed to
constitute interest shall be less than the maximum amount of interest permitted
by the Highest Lawful Rate during such period, then the Borrower shall pay to
the Lender in respect of such period an amount (each a "Compensatory Interest
---------------------
Payment") equal to the lesser of (x) a sum that, when added to all such amounts,
- -------
would equal the maximum amount of interest permitted by the Highest Lawful Rate
during such period, and (y) an amount equal to the Unqualified Amount less all
other Compensatory Interest Payments made in respect thereof. The Borrower
acknowledges that to the extent interest payable on ABR Advances or Swing Line
Loans is based on the BNY Rate, such Rate is only one of the bases for computing
interest on loans made by the Lenders, and by basing interest payable on ABR
Advances or Swing Line Loans on the BNY Rate, the Lenders have not committed to
charge, and the Borrower has not in any way bargained for, interest based on a
lower or the lowest rate at which the Lenders may now or in the future make
loans to other borrowers.
2.11. Substituted Interest Rate
-------------------------
In the event that (i) the Administrative Agent shall have determined
(which determination shall be conclusive and binding upon the Borrower) that by
reason of circumstances affecting the interbank eurocurrency market either
adequate and reasonable
-41-
means do not exist for ascertaining the Eurodollar Rate or the Alternate
Currency Euro Rate, as the case may be, applicable pursuant to Section 2.10 or
(ii) the Required Lenders shall have notified the Administrative Agent that they
have determined (which determination shall be conclusive and binding on the
Borrower) that the applicable Eurodollar Rate or Alternate Currency Euro Rate,
as the case may be, will not adequately and fairly reflect the cost to such
Lenders of maintaining or funding loans bearing interest based on such
Eurodollar Rate or Alternate Currency Euro Rate, as the case may be, with
respect to any portion of the Loans that the Borrower has requested be made as
Eurodollar Advances or Alternate Currency Advances, as the case may be, or
Eurodollar Advances or Alternate Currency Advances, as the case may be, that
will result from the requested conversion or continuation of any portion of the
Advances into or as Eurodollar Advances or Alternate Currency Advances, (each,
an "Affected Advance"), the Administrative Agent shall promptly notify the
----------------
Borrower and the Lenders (by telephone or otherwise, to be promptly confirmed in
writing) of such determination and the reasons therefor, on or, to the extent
practicable, prior to the requested Borrowing Date or Conversion/Continuation
Date for such Affected Advances. If the Administrative Agent shall give such
notice, (a) in the case of Eurodollar Advances, (A) any Affected Advances shall
be made as ABR Advances, (B) the Advances (or any portion thereof) that were to
have been converted to or continued as Affected Advances shall be converted to
or continued as ABR Advances and (C) any outstanding Affected Advances shall be
converted, on the last day of the then current Interest Period with respect
thereto, to ABR Advances, and (b) in the case of Alternate Currency Advances,
the interest rate for such Affected Advances shall be determined pursuant to
clause (a)(iii) of the definition of Alternate Currency Euro Rate. Until any
notice under clauses (i) or (ii), as the case may be, of this Section has been
withdrawn by the Administrative Agent (by notice to the Borrower and the Lenders
promptly upon either (x) the Administrative Agent having determined that such
circumstances affecting the interbank eurocurrency market no longer exist and
that adequate and reasonable means do exist for determining the Eurodollar Rate
or Alternate Currency Euro Rate, as the case may be, pursuant to Section 2.10 or
(y) the Administrative Agent having been notified by such Required Lenders that
circumstances no longer render the Advances (or any portion thereof) Affected
Advances), (1) no further Eurodollar Advances shall be required to be made by
the Lenders, (2) the Borrower shall not have the right to convert or continue
all or any portion of the Loans to or as Eurodollar Advances, and (3) the
interest rate for Alternate Currency Advances shall be determined pursuant to
clause (a)(iii) of the definition of Alternate Currency Euro Rate.
2.12. Taxes
-----
(a) Payments to Be Free and Clear. Subject to Sections 2.12(d),
-----------------------------
2.12(e) and 2.12(f), all payments by each Credit Party under the Loan Documents
shall be made free and clear of, and without any deduction or withholding for,
any Indemnified Tax. If any Credit Party or any other Person is required by any
law, rule, regulation, order, directive, treaty or guideline to make any
deduction or withholding (which deduction or withholding would constitute an
Indemnified Tax) from any amount required to be paid by any Credit Party to or
on behalf of any Indemnified Tax Person under any Loan Document (each a
"Required Payment"), then:
- -----------------
(i) such Credit Party shall notify the Administrative Agent and such
Indemnified Tax Person of any such requirement or any change in any such
requirement as soon as such Credit Party becomes aware thereof;
-42-
(ii) such Credit Party shall pay such Indemnified Tax prior to the
date on which penalties attach thereto, such payment to be made (to the extent
that the liability to pay is imposed on such Credit Party) for its own account
or (to the extent that the liability to pay is imposed on such Indemnified Tax
Person) on behalf and in the name of such Indemnified Tax Person;
(iii) such Credit Party shall pay to such Indemnified Tax Person an
additional amount such that such Indemnified Tax Person shall receive on the due
date therefor an amount equal to the Required Payment had no such deduction or
withholding been required; and
(iv) such Credit Party shall, within 30 days after paying such
Indemnified Tax, deliver to the Administrative Agent and such Indemnified Tax
Person satisfactory evidence of such payment to the relevant Governmental
Authority.
(b) Other Indemnified Taxes. If any Indemnified Tax Person or any
-----------------------
affiliate thereof is required by any law, rule, regulation, order, directive,
treaty or guideline to pay any Indemnified Tax (excluding an Indemnified Tax
which is subject to Section 2.12(a)) with respect to any sum paid or payable by
any Credit Party to such Indemnified Tax Person under the Loan Documents, then,
within five days after such Indemnified Tax Person shall have notified such
Credit Party thereof (which notice shall be accompanied by a statement setting
forth the reasonable calculation thereof), such Credit Party shall pay to such
Indemnified Tax Person the amount of such Indemnified Tax.
(c) Tax on Indemnified Taxes. If any amounts are payable by any Credit
------------------------
Party in respect of Indemnified Taxes pursuant to Section 2.12(a) or (b), such
Credit Party agrees to pay to the applicable Indemnified Tax Person, within five
days of written request therefor (which request shall set forth the reasonable
calculations thereof), an amount equal to all Taxes imposed with respect to such
amounts as such Indemnified Tax Person shall determine in good faith are payable
by such Indemnified Tax Person or any affiliate thereof in respect of such
amounts and in respect of any amounts paid to or on behalf of such Indemnified
Tax Person pursuant to this Section 2.12(c).
(d) Exception for Existing Taxes. No amount shall be required to be
----------------------------
paid to any Indemnified Tax Person under Section 2.12(a) or (b) with respect to
any Indemnified Tax to the extent that such Indemnified Tax would have been
required to have been paid under any law, rule, regulation, order, directive,
treaty or guideline in effect on the Relevant Date.
(e) U.S. Tax Certificates. Each Lender that is organized under the
---------------------
laws of any jurisdiction other than the United States or any political
subdivision thereof shall deliver to the Administrative Agent for transmission
to the Borrower, on or prior to the Relevant Date, and at such other times as
may be necessary in the determination of the Borrower, any other Credit Party or
the Administrative Agent (each in the reasonable exercise of its discretion),
such certificates, documents or other evidence, properly completed and duly
executed by such Lender (including Internal Revenue Service Form 1001 or Form
4224 (or, in each case, any equivalent or successor form)) to establish that
such Lender is not subject to deduction or withholding of United States federal
income tax under Section 1441 or 1442 of the Code or otherwise (or under any
comparable provisions
-43-
of any successor statute) with respect to any payments to such Lender of
principal, interest, fees or other amounts payable under the Loan Documents or
in the case of a Lender that is claiming an exemption from United States
withholding tax under Section 871(h) or 881(c) of the Internal Revenue Code with
respect to payments of "portfolio interest" two accurate and complete signed
original Forms W-8 (or any successor form prescribed by the Internal Revenue
Service, certifying that such Lender is exempt from United States withholding
tax on payments under this Agreement or the Notes) and, if such Lender delivers
such Forms W-8 (or successor form), two signed certificates that such Lender is
not (1) a "bank" for purposes of Section 881(c) of the Internal Revenue Code,
(2) is not a 10% shareholder (within the meaning of Section 871(h)(3)(B) of the
Internal Revenue Code) of the Borrower and (3) is not a controlled foreign
corporation related to the Borrower (within the meaning of Section 864(d)(4) of
the Internal Revenue Code). No Credit Party shall be required to pay any
additional amount to any such Lender under Section 2.12(a)(iii) if such Lender
shall have failed to satisfy the requirements of the immediately preceding
sentence; provided that, if such Lender shall have satisfied such requirements
on the Relevant Date, nothing in this Section 2.12(e) shall relieve any Credit
Party of its obligation to pay any additional amounts pursuant to Section
2.12(a)(iii) in the event that, as a result of any change in applicable law
(including any change in the interpretation thereof), such Lender is no longer
properly entitled to deliver certificates, forms, documents or other evidence at
a subsequent date establishing the fact that such Lender is not subject to
deduction or withholding as described in the immediately preceding sentence.
(f) Other Tax Certificates. Each Indemnified Tax Person agrees to use
----------------------
reasonable efforts to deliver to any Credit Party or the Administrative Agent,
promptly upon any reasonable request therefor from time to time by such Credit
Party or the Administrative Agent, such certificates, forms, documents and
information as may be required by applicable law, regulation, order, directive,
guideline or treaty from time to time and to file all appropriate forms to
obtain a certificate, form or other appropriate documents from the appropriate
Governmental Authorities to establish that payments made in respect of any
Alternate Currency Advance by such Credit Party can be made without (or at a
reduced rate of) deduction or withholding of Indemnified Taxes, provided,
--------
however, that if such Indemnified Tax Person is or becomes unable by virtue of
- -------
any change in applicable law, regulation or treaty, to establish such exemption
or reduction, such Credit Party shall nonetheless remain obligated under Section
2.12(a) to pay the amounts described therein, and provided further that no
-------- -------
Indemnified Tax Person shall be required to take any action under this Section
2.12(f) which, in the sole discretion of such Indemnified Tax Person, would
cause such Indemnified Tax Person or any affiliate thereof to suffer a material
economic, legal or regulatory disadvantage.
(g) Other Taxes. Each Credit Party agrees to pay any current or future
-----------
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies that arise from any payment made hereunder or from the execution,
delivery or registration of, or any amendment, supplement or modification of, or
any waiver or consent under or in respect of, the Loan Documents or otherwise
with respect to, the Loan Documents.
(h) Refunds. Upon the reasonable request of a Credit Party, and at
-------
such Credit Party's expense, each Indemnified Tax Person shall cooperate with
such Credit Party in seeking to obtain refunds of Taxes paid by such Credit
Party, provided that each
-44-
such Indemnified Tax Person shall have no obligation to (i) engage in any
litigation, hearing or proceeding with respect thereto or (ii) disclose any tax
return or other confidential information other than information reasonably
requested by the applicable taxing authority which, in the opinion of such
Indemnified Tax Person, is not detrimental to such Indemnified Tax Person. If an
Indemnified Tax Person shall receive a refund (or a refund in the form of a
credit) from a taxing authority (as a result of any error in the imposition of
Tax by such taxing authority) of any Taxes paid by such Credit Party pursuant to
this Section 2.12, such Indemnified Tax Person, so long as no Event of Default
shall then exist, shall promptly pay to such Credit Party the amount so
received.
2.13. Illegality
----------
Notwithstanding any other provisions herein, if any law, regulation,
treaty or directive, or any change therein or in the interpretation or
application thereof, in each case enacted, adopted, promulgated, approved or
issued after the date hereof, shall make it unlawful for any Lender to make or
maintain its Eurodollar Advances or Alternate Currency Advances as contemplated
by this Agreement, (i) the commitment of such Lender hereunder to (A) make
Eurodollar Advances or Alternate Currency Advances as the case may be, (B)
convert ABR Advances to Eurodollar Advances or (C) continue Eurodollar Advances
or Alternate Currency Advances, as the case may be, to new Eurodollar Advances
or Alternate Currency Advances, as the case may be, shall forthwith be
suspended, (ii) such Lender's Loans then outstanding as Eurodollar Advances
affected hereby, if any, shall be converted automatically to ABR Advances on the
last day of the then current Interest Period applicable thereto or within such
earlier period as required by law, and (iii) with respect to such Lender's
outstanding Alternate Currency Advances affected hereby, the Borrower shall take
such actions as such Lender may reasonably request (including, without
limitation, repaying such Alternate Currency Advances) with a view to minimizing
the obligations of the Borrower under Section 2.15. If the commitment of any
Lender with respect to Eurodollar Advances or Alternate Currency Advances is
suspended pursuant to this Section and such Lender shall notify the
Administrative Agent and the Borrower that it is once again legal for such
Lender to make or maintain Eurodollar Advances or Alternate Currency Advances,
as the case may be, such Lender's commitment to make or maintain Eurodollar
Advances or Alternate Currency Advances, as the case may be, shall be
reinstated.
2.14. Increased Costs
---------------
In the event that any law, regulation, treaty or directive hereafter
enacted, adopted, promulgated, approved or issued or any change in any existing
law, regulation, treaty or directive or in the interpretation or application
thereof by any Governmental Authority charged with the administration thereof or
compliance by any Lender (or any Person directly or indirectly owning or
controlling such Lender) with any request or directive from any central bank or
other Governmental Authority made or issued after the date hereof:
(a) does or shall subject any Lender to any Taxes of any kind
whatsoever with respect to any Eurodollar Advances or any Alternate Currency
Advances or its obligations under this Agreement to make Eurodollar Advances or
Alternate
-45-
Currency Advances, or change the basis of taxation of payments to any Lender of
principal, interest or any other amount payable hereunder in respect of its
Eurodollar Advances or Alternate Currency Advances, including any Taxes required
to be withheld from any amounts payable under the Loan Documents (except for
imposition of, or change in the rate of, Tax on the Income of such Lender or its
Applicable Lending Office for any of such Advances by the jurisdiction in which
such Lender is incorporated or has its principal office or such Applicable
Lending Office, including, in the case of Lenders incorporated in any State of
the United States, such tax imposed by the United States); or
(b) does or shall impose, modify or make applicable any reserve,
special deposit, compulsory loan, assessment, increased cost or similar
requirement against assets held by, or deposits of, or advances or loans by, or
other credit extended by, or any other acquisition of funds by, any office of
such Lender in respect of its Eurodollar Advances or Alternate Currency Advances
that is not otherwise included in the determination of a Eurodollar Rate or
Alternate Currency Euro Rate, as the case may be;
and the result of any of the foregoing is to increase the cost to such Lender of
making, renewing, converting, continuing or maintaining its Eurodollar Advances
or Alternate Currency Advances or its commitment to make such Eurodollar
Advances or Alternate Currency Advances, or to reduce any amount receivable
hereunder in respect of its Eurodollar Advances or Alternate Currency Advances,
then, in any such case, the Borrower shall pay such Lender, upon its demand, any
additional amounts necessary to compensate such Lender for such additional cost
or reduction in such amount receivable that such Lender deems to be material as
determined by such Lender; provided, however, that nothing in this Section shall
require the Borrower to indemnify the Lenders with respect to Taxes for which
the Borrower has no obligation under Section 2.12. No failure by any Lender to
demand compensation for any increased cost during any Interest Period shall
constitute a waiver of such Lender's right to demand such compensation at any
time. A statement setting forth the calculations of any additional amounts
payable pursuant to the foregoing sentence submitted by a Lender to the Borrower
shall be conclusive absent manifest error.
2.15. Indemnification for Loss
------------------------
Notwithstanding anything contained herein to the contrary, if (i) the
Borrower shall fail to borrow or convert or continue a Eurodollar Advance or an
Alternate Currency Advance on a Borrowing Date or Conversion/Continuation Date
after it shall have given notice to do so in which it shall have requested a
Eurodollar Advance or an Alternate Currency Advance, as the case may be, or if
the Borrower shall fail to borrow a Swing Line Loan after it shall have agreed
to a Negotiated Rate with respect thereto, (ii) a Eurodollar Advance or an
Alternate Currency Advance or Swing Line Loan bearing interest at a Negotiated
Rate shall be terminated for any reason prior to the last day of the Interest
Period applicable thereto, or (iii) while a Eurodollar Advance or an Alternate
Currency Advance or Swing Line Loan bearing interest at a Negotiated Rate is
outstanding, any repayment or prepayment of such Eurodollar Advance, Alternate
Currency Advance or Swing Line Loan is made for any reason (including, without
limitation, as a result of acceleration or illegality) on a date which is prior
to the last day of the Interest Period applicable thereto, the Borrower agrees
to indemnify each Lender against, and to pay on demand directly to such Lender,
any loss or expense suffered by such Lender as a result of such failure to
borrow, convert or continue, termination, repayment or prepayment, including,
without limitation, an amount, if greater than zero, equal to:
-46-
A x (B-C) x D/360
where:
"A" equals, in the case of a Eurodollar Advance or an Alternate Currency
Advance, such Lender's Commitment Percentage of the Affected Principal Amount
or, in the case of a Swing Line Loan bearing interest at a Negotiated Rate, the
Affected Principal Amount;
"B" equals the Eurodollar Rate, Alternate Currency Euro Rate or Negotiated Rate,
as the case may be (expressed as a decimal), applicable to such Eurodollar
Advance, Alternate Currency Advance or Swing Line Loan;
"C" equals the applicable Eurodollar Rate or Alternate Currency Euro Rate, as
the case may be (expressed as a decimal), in effect on or about the first day of
the applicable Remaining Interest Period, based on the applicable rates offered
or bid, as the case may be, on or about such date, for deposits in an amount
equal approximately to such Lender's Commitment Percentage of the Affected
Principal Amount, or the rate (expressed as a decimal), as determined by the
Swing Line Lender, which the Swing Line Lender in good faith would have offered
as a Negotiated Rate on or about the first day of the applicable Remaining
Interest Period with respect to an amount equal approximately to the Affected
Principal Amount, as the case may be, in each case, with an Interest Period
equal approximately to the applicable Remaining Interest Period, as determined
by such Lender; and
"D" equals the number of days from and including the first day of the applicable
Remaining Interest Period to but excluding the last day of such Remaining
Interest Period;
and any other out-of-pocket loss or expense (including any internal processing
charge customarily charged by such Lender) suffered by such Lender in connection
with such Eurodollar Advance, Alternate Currency Advance or Swing Line Loan
bearing interest at a Negotiated Rate to the extent based on a Negotiated Rate,
as the case may be, including, without limitation, in liquidating or employing
deposits acquired to fund or maintain the funding of its Commitment Percentage
of the Affected Principal Amount, or redeploying funds prepaid or repaid, in
amounts that correspond to its Commitment Percentage of the Affected Principal
Amount or, in the case of a Swing Line Loan bearing interest at a Negotiated
Rate, the amount of such Swing Line Loan. Each determination by the
Administrative Agent or a Lender pursuant to this Section shall be conclusive
and binding on the Borrower absent manifest error.
2.16. Option to Fund
--------------
Each Lender has indicated that, if the Borrower requests a Eurodollar
Advance, an Alternate Currency Advance or Swing Line Loan, such Lender may wish
to purchase one or more deposits in order to fund or maintain its funding of
such Eurodollar Advance, Alternate Currency Advance or Swing Line Loan during
the Interest Period in question; it being understood that the provisions of this
Agreement relating to such funding are included only for the purpose of
determining the rate of interest to be paid on such Eurodollar Advance,
Alternate Currency Advance or Swing Line Loan and for purposes of determining
amounts owing under Sections 2.14, 2.15 and 2.18. Each Lender shall be entitled
to fund and maintain its funding of all or any part of each Eurodollar Advance,
Alternate Currency Advance or Swing Line Loan made by it in any manner it
-47-
sees fit, but all such determinations shall be made as if such Lender had
actually funded and maintained its funding of such Eurodollar Advance, Alternate
Currency Advance or Swing Line Loan during the applicable Interest Period
through the purchase of deposits in an amount equal to such Eurodollar Advance,
Alternate Currency Advance or Swing Line Loan and having a maturity
corresponding to such Interest Period. The obligations of the Borrower under
Sections 2.11, 2.12, 2.13, 2.14, 2.15, 2.18 and 2.22 shall survive the
termination of the Aggregate Revolving Credit Commitments, the payment of the
Notes, the reimbursement obligations in respect of drawings under Letters of
Credit and all other amounts payable under the Loan Documents.
2.17. Use of Proceeds
---------------
The proceeds of the Loans shall be used for Permitted Acquisitions and
the general corporate purposes of the Borrower and its Subsidiaries.
Notwithstanding anything to the contrary contained in any Loan Document, the
Borrower agrees that no part of the proceeds of any Loan will be used, directly
or indirectly, for a purpose that violates any law, including, without
limitation, the provisions of Regulations G, U or X of the Board of Governors of
the Federal Reserve System, as amended.
2.18. Capital Adequacy
----------------
If (i) the enactment or promulgation of, or any change or phasing in
of, any United States or foreign law or regulation or in the interpretation
thereof by any Governmental Authority charged with the administration thereof
after the date hereof or (ii) compliance with any directive or guideline from
any central bank or United States or foreign Governmental Authority (whether
having the force of law) promulgated or made after the date hereof, affects or
would affect the amount of capital required to be maintained by a Lender (or any
lending office of such Lender) or any Person directly or indirectly owning or
controlling such Lender, or imposes any restriction on or otherwise adversely
affects such Lender (or any lending office of such Lender) or any Person
directly or indirectly owning or controlling such Lender, and such Lender shall
have determined that such enactment, promulgation, change or compliance has the
effect of reducing the rate of return on such Lender's (or such Person's)
capital or the asset value to such Lender of any Loan made by, or any Letter of
Credit issued or participated in by, such Lender as a consequence, directly or
indirectly, of its obligations to make and maintain the funding of its Loans and
Letters of Credit at a level below that which such Lender (or such Person) could
have achieved but for such enactment, promulgation, change or compliance (after
taking into account such Lender's policies (or such Person's) regarding capital
adequacy) by an amount deemed by such Lender to be material, then, upon demand
by such Lender, the Borrower shall promptly pay to such Lender such additional
amount or amounts as shall be sufficient to compensate such Lender (or such
Person) for such reduction in such rate of return or asset value. A certificate
in reasonable detail as to such amounts submitted to the Borrower and the
Administrative Agent setting forth the determination of such amount or amounts
that will compensate such Lender for such reductions shall be presumed correct
absent manifest error.
2.19. Letter of Credit Sub-Facility
-----------------------------
(a) Subject to the terms and conditions of this Agreement, the Letter
of Credit Issuer agrees, in reliance on the agreement of the other Lenders set
forth in Section
-48-
2.20, to issue standby letters of credit (the "Letters of Credit";
-----------------
each, individually, a "Letter of Credit") in Dollars or in an Alternate
----------------
Currency during the Revolving Credit Commitment Period for the account of the
Borrower, provided that immediately after the issuance of each Letter of Credit,
(i) the Letter of Credit Exposure of all Lenders at any one time shall not
exceed $100,000,000, (ii) the Aggregate Credit Exposure shall not exceed the
Aggregate Revolving Credit Commitments and (iii) the Aggregate Alternate
Currency Exposure shall not exceed $125,000,000. Each Letter of Credit issued
pursuant to this Section shall have a termination date that shall be not later
than the earlier of one year from the date of issuance or 5 days prior to the
Maturity Date. At the request of the Borrower, and upon 3 Business Days' prior
written notice to the Administrative Agent, and provided that no Default or
Event of Default shall then exist, each Letter of Credit termination date may be
extended, from time to time, for a period not to exceed the earlier of (i) one
year or (ii) the 5th day prior to the Maturity Date. No Letter of Credit shall
be issued if the Administrative Agent, or any Lender by notice to the
Administrative Agent no later than 1:00 P.M. one Business Day prior to the
requested date of issuance of such Letter of Credit, shall have determined that
the conditions set forth in Section 6 have not been satisfied.
(b) Each Letter of Credit shall be issued for the account of the
Borrower in support of an obligation of the Borrower or a Subsidiary of the
Borrower in favor of a beneficiary who has requested the issuance of such Letter
of Credit as a condition to a transaction entered into in connection with the
Borrower's ordinary course of business. The Borrower shall give the
Administrative Agent a Letter of Credit Request for the issuance of each Letter
of Credit by (A) in the case of a Letter of Credit denominated in Dollars, 2:00
P.M., three Business Days prior to the requested date of issuance, and (B) in
the case of an Alternate Currency Letter of Credit, 2:00 P.M., ten Business Days
prior to the requested date of issuance. Such Letter of Credit Request shall be
accompanied by the Letter of Credit Issuer's standard Application and Agreement
for Standby Letter of Credit (each, a "Reimbursement Agreement") executed by an
-----------------------
Authorized Signatory of the Borrower and shall specify (i) the beneficiary of
such Letter of Credit and the obligations of the Borrower or a Subsidiary of the
Borrower in respect of which such Letter of Credit is to be issued, (ii) the
Borrower's proposal as to the conditions under which a drawing may be made under
such Letter of Credit and the documentation to be required in respect thereof,
(iii) the Currency of, and the maximum amount to be available under, such Letter
of Credit, and (iv) the requested date of issuance. Upon receipt of such Letter
of Credit Request from the Borrower, the Administrative Agent shall promptly
notify the Letter of Credit Issuer and each Lender thereof. The Letter of
Credit Issuer shall, on the proposed date of issuance and subject to the other
terms and conditions of this Agreement, issue the requested Letter of Credit.
Each Letter of Credit shall be in form and substance reasonably satisfactory to
the Letter of Credit Issuer, with such provisions with respect to the conditions
under which a drawing may be made thereunder and the documentation required in
respect of such drawing as the Letter of Credit Issuer shall reasonably require.
Each Letter of Credit shall be used solely for the purposes described therein.
(c) Each payment by the Letter of Credit Issuer of a draft drawn under
a Letter of Credit shall give rise to an obligation on the part of the Borrower
to reimburse the Letter of Credit Issuer immediately for the amount thereof in
the same Currency as such Letter of Credit is denominated.
-49-
2.20. Letter of Credit Participation and Funding Commitments
------------------------------------------------------
(a) Each Lender hereby unconditionally and irrevocably, severally for
itself only and without any notice to or the taking of any action by such
Lender, takes an undivided participating interest in the obligations of the
Letter of Credit Issuer under and in connection with each Letter of Credit in an
amount equal to such Lender's Commitment Percentage of the amount of such Letter
of Credit. Each Lender shall be liable to the Letter of Credit Issuer for its
Commitment Percentage of the unreimbursed amount of any draft drawn and honored
under each Letter of Credit. Each Lender shall also be liable for an amount
equal to the product of its Commitment Percentage and any amounts paid by the
Borrower pursuant to Section 2.21 that are subsequently rescinded or avoided or
must otherwise be restored or returned. Such liabilities shall be unconditional
and without regard to the occurrence of any Default or Event of Default or the
compliance by the Borrower with any of its obligations under the Loan Documents,
provided, however, that no Lender shall have any liability to the Letter of
Credit Issuer under this Section 2.20 for any payment under a Letter of Credit
to the extent made as a result of the Letter of Credit Issuer's gross negligence
or willful misconduct.
(b) The Administrative Agent will promptly notify each Lender (which
notice shall be promptly confirmed in writing) of the date and the amount and
Currency of any draft presented under any Letter of Credit with respect to which
full reimbursement of payment is not made by the Borrower as provided in Section
2.19(c), and forthwith upon receipt of such notice, such Lender (other than the
Letter of Credit Issuer) shall make available to the Administrative Agent for
the account of the Letter of Credit Issuer its Commitment Percentage of the
amount of such unreimbursed draft at the office of the Administrative Agent
specified in Section 11.2, in the same Currency as such Letter of Credit is
denominated and in immediately available funds, before 4:00 P.M., on the day
such notice was given by the Administrative Agent, if the relevant notice was
given by the Administrative Agent at or prior to 1:00 P.M., on such day, or
before 12:00 Noon, on the next Business Day, if the relevant notice was given by
the Administrative Agent after 1:00 P.M., on such day. The Administrative Agent
shall distribute the payments made by each Lender (other than the Letter of
Credit Issuer) pursuant to the immediately preceding sentence to the Letter of
Credit Issuer promptly upon receipt thereof in like funds as received. Each
Lender shall indemnify and hold harmless the Administrative Agent and the Letter
of Credit Issuer from and against any and all losses, liabilities (including
liabilities for penalties), actions, suits, judgments, demands, costs and
expenses (including, without limitation, reasonable attorneys' fees and
expenses) resulting from any failure on the part of such Lender to provide, or
from any delay in providing, the Administrative Agent with such Lender's
Commitment Percentage of the amount of any payment made by the Letter of Credit
Issuer under a Letter of Credit in accordance with this clause (b) above (except
in respect of losses, liabilities or other obligations suffered by the
Administrative Agent or the Letter of Credit Issuer resulting from the gross
negligence or willful misconduct of the Letter of Credit Issuer). If a Lender
does not make available to the Administrative Agent when due such Lender's
Commitment Percentage of any unreimbursed payment made by the Letter of Credit
Issuer under a Letter of Credit (other than payments made by the Letter of
Credit Issuer by reason of its gross negligence or willful misconduct), such
Lender shall be required to pay interest to the Administrative Agent for the
account of the Letter of Credit Issuer, from the date such Lender's payment is
due until the date such payment is received by the Administrative Agent, on such
Lender's Commitment Percentage of such payment at a rate of interest per annum
equal to (i) from the date such
-50-
amount was due until the third day therefrom, the Federal Funds Rate, and (ii)
thereafter, the Federal Funds Rate plus 1%. The Administrative Agent shall
distribute such interest payments to the Letter of Credit Issuer upon receipt
thereof in like funds as received.
(c) Whenever the Administrative Agent is reimbursed by the Borrower,
for the account of the Letter of Credit Issuer, for any payment under a Letter
of Credit and such payment relates to an amount previously paid by a Lender in
respect of its Commitment Percentage of the amount of such payment under such
Letter of Credit, the Administrative Agent will pay over such payment to such
Lender (i) before 4:00 P.M. on the day such payment from the Borrower is
received, if such payment is received at or prior to 1:00 P.M. on such day, or
(ii) before 12:00 Noon on the next succeeding Business Day, if such payment from
the Borrower is received after 1:00 P.M. on such day.
2.21. Absolute Obligation with respect to Letter of Credit Payments
-------------------------------------------------------------
The Borrower's obligation to reimburse the Administrative Agent for
the account of the Letter of Credit Issuer in respect of a Letter of Credit for
each payment under or in respect of such Letter of Credit shall be absolute and
unconditional under any and all circumstances and irrespective of any set-off,
counterclaim or defense to payment that the Borrower may have or have had
against the beneficiary of such Letter of Credit, the Administrative Agent, the
Letter of Credit Issuer, any Lender or any other Person, including, without
limitation, any defense based on the failure of any drawing to conform to the
terms of such Letter of Credit, any drawing document proving to be forged,
fraudulent or invalid, or the legality, validity, regularity or enforceability
of such Letter of Credit; provided, however, that the Borrower shall not be
obligated to reimburse the Administrative Agent for the account of the Letter of
Credit Issuer for any wrongful payment under such Letter of Credit to the extent
made as a result of the Letter of Credit Issuer's gross negligence or willful
misconduct.
2.22. Increased Costs Based on Letters of Credit
------------------------------------------
Without limiting the provisions of Section 2.14, if any law or
regulation adopted or enacted after the date hereof or any change after the date
hereof in the interpretation or application thereof by any Governmental
Authority charged with the administration thereof shall either (a) impose,
modify or make applicable any reserve, special deposit, assessment or similar
requirement against letters of credit issued or participated in by the Letter of
Credit Issuer or any Lender, or (b) impose on the Administrative Agent, the
Letter of Credit Issuer or such Lender any other condition regarding the Letters
of Credit (except for imposition of, or changes in the rate of, Tax on the
Income of the Administrative Agent, the Letter of Credit Issuer or such Lender)
and the result of any event referred to in clause (a) or (b) above shall be to
increase the cost to the Letter of Credit Issuer or any such Lender of issuing
or maintaining the Letters of Credit or its obligations pursuant to Section
2.20, or the cost to the Administrative Agent of performing its functions
hereunder with respect to the Letters of Credit, in any case by an amount that
the Administrative Agent, the Letter of Credit Issuer, or any Lender, as the
case may be, deems material, then, upon demand by the Administrative Agent, the
Letter of Credit Issuer or such Lender, as the case may be, the Borrower shall
immediately pay to the Administrative Agent, the Letter of Credit Issuer or such
Lender, as the case may be, from time to time as specified by the Administrative
-51-
Agent, the Letter of Credit Issuer or such Lender, additional amounts that shall
be sufficient to compensate the Administrative Agent, the Letter of Credit
Issuer or such Lender, as the case may be, for such increased cost. A statement
in reasonable detail as to such increased cost incurred by the Administrative
Agent, the Letter of Credit Issuer or such Lender, as the case may be, as a
result of any event mentioned in clauses (a) or (b) above, submitted by the
Administrative Agent, the Letter of Credit Issuer or such Lender, as the case
may be, to the Borrower shall be conclusive, absent manifest error, as to the
amount thereof.
2.23. Administrative Agent's Records
------------------------------
The Administrative Agent's records regarding the amount of each Loan
and Letter of Credit, each payment by the Borrower of principal and interest on
the Loans and reimbursement obligations in respect of Letters of Credit and
other information relating to the Loans shall be presumptively correct absent
manifest error.
3. FEES; PAYMENTS
--------------
3.1. Commitment Fee
--------------
(a) The Borrower agrees to pay to the Administrative Agent, for the
account of the Lenders in accordance with each Lender's Commitment Percentage, a
fee (the "Commitment Fee") for each day during the period from and including the
--------------
Effective Date to, but excluding, the Maturity Date, equal to (a) the excess of,
for each day during the Revolving Credit Commitment Period, the Aggregate
Revolving Credit Commitments on such day over the sum of the aggregate
outstanding principal balance of the Revolving Credit Loans and the Letter of
Credit Exposure of all Lenders on such day (excluding the outstanding principal
balance of the Swing Line Loans, Alternate Currency Revolving Credit Loans and
Alternate Currency Letters of Credit, if any) multiplied by (b) the percentage
set forth below for the applicable pricing level in effect on such day:
Commitment
Pricing Level Fee Percentage
------------- --------------
When the Leverage Ratio
is equal to or greater
than 4.00:1.00 0.375%
When the Leverage Ratio
is less than 4.00:1.00
but equal to or greater
than 3.75:1.00 0.375%
When the Leverage Ratio
is less than 3.75:1.00
but equal to or greater
than 3.50:1.00 0.350%
-52-
When the Leverage Ratio
is less than 3.50:1.00
but equal to or greater
than 3.00:1.00 0.300%
When the Leverage Ratio
is less than 3.00:1.00
but equal to or greater
than 2.50:1.00 0.250%
When the Leverage Ratio
is less than 2.50:1.00
but equal to or greater
than 2.00:1.00 0.250%
When the Leverage Ratio
is less than 2.00:1.00
but equal to or greater
than 1.50:1.00 0.200%
When the Leverage Ratio
is less than 1.50:1.00
but equal to or greater
than 1.00:1.00 0.175%
When the Leverage Ratio
is less than 1.00:1.00 0.175%
(b) Changes in the Commitment Fee resulting from a change in the
Leverage Ratio, as evidenced by a Compliance Certificate delivered to the
Administrative Agent pursuant to Section 7.1(c) evidencing such a change, shall
become effective upon delivery of such Compliance Certificate. If the Borrower
shall fail to deliver a Compliance Certificate in accordance with Section 7.1(c)
(each a "certificate delivery date"), for purposes of calculating the Commitment
Fee, the Leverage Ratio from and including such certificate delivery date to the
date of delivery by the Borrower to the Administrative Agent of such Compliance
Certificate shall be conclusively presumed to be greater than 4.00:1.00.
(c) The Commitment Fee shall be payable quarterly in arrears on the
last day of each March, June, September and December of each year, commencing on
the first such day following the Effective Date, on any date the Aggregate
Revolving Credit Commitments are reduced pursuant to Section 2.6, and on the
Maturity Date. The Commitment Fee shall be calculated on the basis of a 360-day
year for the actual number of days elapsed.
(d) Notwithstanding the foregoing (but subject to the last sentence of
subsection (b) above), until such time as the Compliance Certificate for the
fiscal quarter ending June 30, 1998 shall have been delivered to the
Administrative Agent, the Commitment Fee percentage shall be equal to 0.300%,
provided that if the Compliance
-53-
Certificate delivered to the Administrative Agent for the fiscal quarter ending
March 31, 1998 indicates a Leverage Ratio equal to or greater than 3.50:1.00,
then the Applicable Margin for the period from the delivery of such Compliance
Certificate to the delivery of the Compliance Certificate for the fiscal quarter
ending June 30, 1998 shall be the applicable Commitment Fee percentage for such
Leverage Ratio set forth in subsection (a) above.
3.2. Letter of Credit Fees
---------------------
(a) The Borrower agrees to pay to the Administrative Agent, for the
account of the Lenders in accordance with each Lender's Commitment Percentage, a
fee (the "Letter of Credit Fee") with respect to each Letter of Credit for the
--------------------
period from and including the date of issuance thereof to and including the
expiration date thereof, at the LC Rate on the maximum amount available to be
drawn (under any contingency) under such Letter of Credit (determined, in the
case of each Alternate Currency Letter of Credit, on the basis of the Dollar
Equivalent thereof) on such day.
(b) The Borrower further agrees to pay to the Letter of Credit Issuer,
for its own account, a fee (the "LC Fronting Fee") with respect to each Letter
---------------
of Credit for each day during the period from and including the date of issuance
thereof to and including the expiration date thereof, at a rate per annum equal
to 0.075% on the maximum amount available to be drawn (under any contingency)
under such Letter of Credit (determined, in the case of each Alternate Currency
Letter of Credit, on the basis of the Dollar Equivalent thereof) on such day.
(c) The Letter of Credit Fee and the LC Fronting Fee shall be (i)
calculated on the basis of a 360-day year for the actual number of days elapsed,
(ii) payable quarterly in arrears on the last day of each March, June, September
and December of each year and on the Maturity Date and (iii) nonrefundable. In
addition to the Letter of Credit Fee and the LC Fronting Fee, the Borrower
agrees to pay to the Letter of Credit Issuer, for its own account, its standard
fees and charges customarily charged to customers similar to the Borrower with
respect to any Letter of Credit.
3.3. Pro Rata Treatment and Application of Principal Payments
--------------------------------------------------------
(a) Each payment, including each prepayment, of principal and interest
on the Loans and of the Commitment Fee and the Letter of Credit Fee shall be
made by the Borrower without set-off or counterclaim and shall be made to the
Administrative Agent in the applicable Currency at the applicable Agent Payment
Office in funds immediately available to the Administrative Agent at such office
by 1:30 P.M. (local time in the city in which the applicable Agent Payment
Office is located) on the due date for such payment, and, promptly upon receipt
thereof by the Administrative Agent, shall be remitted by the Administrative
Agent, in like funds as received, (i) to the Lenders according to the Commitment
Percentage of each Lender, in the case of the Commitment Fee and the Letter of
Credit Fee, (ii) to the Lenders pro rata according to the aggregate outstanding
principal balance of the Revolving Credit Loans, in the case of principal and
interest due on the Revolving Credit Loans and (iii) to the Swing Line Lender in
the case of principal and interest due on the Swing Line Loan. Notwithstanding
the foregoing, each payment of the Existing Revolving Credit Loans, interest,
fees and other amounts made pursuant to Section 5.14 shall be distributed to the
Non-Continuing Lenders and the Existing Lenders
-54-
in accordance with Section 3.3 of the Existing Revolving Credit Agreement. The
failure of the Borrower to make any such payment by such time shall not
constitute a default hereunder, provided that such payment is made on such due
date, but any such payment made after 1:30 P.M. on such due date shall be deemed
to have been made on the next Business Day for the purpose of calculating
interest on amounts outstanding on the Loans. If any payment hereunder or under
the Notes shall be due and payable on a day that is not a Business Day, the due
date thereof (except as otherwise provided in the definition of Interest Period)
shall be extended to the next Business Day and (except with respect to payments
in respect of the Commitment Fee and the Letter of Credit Fee) interest shall be
payable at the applicable rate specified herein during such extension. If any
payment is made with respect to any Eurodollar Advance or Alternate Currency
Advance prior to the last day of the applicable Interest Period, the Borrower
shall indemnify each Lender in accordance with Section 2.15.
(b) Notwithstanding anything to the contrary contained in any Loan
Document, each payment (including each prepayment) of principal and interest on
each Alternate Currency Revolving Credit Loan shall be made solely in the
Currency in which such Alternate Currency Revolving Credit Loan is denominated.
4. REPRESENTATIONS AND WARRANTIES
------------------------------
In order to induce the Administrative Agent and the Lenders to enter into
this Agreement and to make the Revolving Credit Loans, the Letter of Credit
Issuer to issue the Letters of Credit and the Lenders to participate therein,
and the Swing Line Lender to make the Swing Line Loans and the Lenders to
participate therein, the Borrower makes the following representations and
warranties to the Administrative Agent and each Lender:
4.1. Subsidiaries; Capitalization
----------------------------
The Borrower has only the Subsidiaries permitted by this Agreement.
Schedule 4.1 sets forth the Subsidiaries of the Borrower as of the Effective
Date. The shares of each corporate Subsidiary are duly authorized, validly
issued, fully paid and nonassessable and are owned free and clear of any Liens.
The interest of the Borrower in each non-corporate Subsidiary is owned free and
clear of any Liens. The outstanding capital Stock of each corporate Subsidiary
of the Borrower on the Effective Date and the ownership interest in each non-
corporate Subsidiary are as set forth on Schedule 4.1. As of the Effective
Date, the owner of each issue of capital Stock listed on Schedule 4.1 is the
registered and beneficial owner thereof. No Subsidiary has issued any
securities convertible into Stock (or other equity interest) of such Subsidiary
and there are no outstanding options or warrants to purchase Stock of such
Subsidiary of any class or kind, and there are no voting trusts or similar
agreements with respect thereto or other agreements or understandings with
respect thereto which would restrict or limit the sale, pledge, assignment or
other disposition thereof, including, without limitation, any right of first
refusal, option, redemption, call or other rights with respect thereto, whether
similar or dissimilar to any of the foregoing, or which would dilute the
interest of the Borrower therein.
-55-
4.2. Existence and Power
-------------------
Each of the Borrower, its Subsidiaries and the Credit Parties is duly
organized or formed and validly existing in good standing under the laws of the
jurisdiction of its incorporation or formation, has all requisite power and
authority to own its Property and to carry on its business as now conducted, and
is in good standing and authorized to do business as a foreign corporation in
each jurisdiction in which the nature of the business conducted therein or the
Property owned therein makes such qualification necessary, except in each case
where such failure so to qualify could not reasonably be expected to have a
Material Adverse Effect.
4.3. Authority
---------
Each of the Borrower, its Subsidiaries and the Credit Parties has full
legal power and authority to enter into, execute, deliver and perform the terms
of the Loan Documents to which it is a party, and the transactions contemplated
thereby (including the Transactions) and, in the case of the Borrower, to make
the borrowings contemplated hereby and by the Notes, to execute, deliver and
carry out the terms of the Notes and to incur the obligations provided for
herein and therein, all of which have been duly authorized by all proper and
necessary corporate or other applicable action and are in full compliance with
its Certificate of Incorporation or By-Laws or its other organization documents.
4.4. Binding Agreement
-----------------
The Loan Documents (other than the Notes) constitute, and the Notes,
when issued and delivered pursuant hereto for value received, will constitute,
the valid and legally binding obligations of the Credit Parties in each case, to
the extent it is a party thereto, enforceable in accordance with their
respective terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally.
4.5. Litigation
----------
Except as set forth on Schedule 4.5, there are no actions, suits or
proceedings at law or in equity or by or before any Governmental Authority
(whether purportedly on behalf of the Borrower, any of its Subsidiaries or any
Credit Party) pending or, to the knowledge of the Borrower, threatened against
the Borrower, any of its Subsidiaries or any Credit Party or any of their
respective Properties or rights, that (i) if adversely determined, could
reasonably be expected to have a Material Adverse Effect, (ii) expressly call
into question the validity or enforceability of any of the Loan Documents, or
(iii) could reasonably be expected to result in the rescission, termination or
cancellation of any material franchise, right, license, permit or similar
authorization held by the Borrower or any of its Subsidiaries or any Credit
Party.
4.6. Required Consents
-----------------
Except for information filings required to be made in the ordinary
course of business that are not a condition to the Borrower's performance under
the Loan Documents, no consent, authorization or approval of, filing with,
notice to, or exemption by,
-56-
stockholders, any Governmental Authority or any other Person is required to
authorize, or is required in connection with the execution, delivery and
performance of the Loan Documents and the transactions contemplated thereby
(including the Transactions), or is required as a condition to the validity or
enforceability of the Loan Documents.
4.7. No Conflicting Agreements
-------------------------
Neither the Borrower, any of its Subsidiaries nor any Credit Party is
in default under any mortgage, indenture, contract or agreement to which it is a
party, or by which it or any of its Property is bound, the effect of which
default could reasonably be expected to have a Material Adverse Effect. The
execution, delivery or carrying out of the terms of the Loan Documents and the
transactions contemplated hereby and thereby (including the Transactions), will
not constitute a default under, or result in the creation or imposition of, or
obligation to create, any Lien upon any Property of the Borrower or any of its
Subsidiaries or result in a breach of or require the mandatory repayment of or
other acceleration of payment under or pursuant to the terms of any such
mortgage, indenture, contract or agreement.
4.8. Compliance with Applicable Laws
-------------------------------
Neither the Borrower, any of its Subsidiaries nor any Credit Party is
in default with respect to any judgment, order, writ, injunction, decree or
decision of any Governmental Authority the effect of which default could
reasonably be expected to have a Material Adverse Effect. The Borrower, each of
its Subsidiaries and each Credit Party is complying in all material respects
with all statutes, regulations, rules and orders applicable to Borrower, such
Subsidiary or such Credit Party of all Governmental Authorities, including,
without limitation, Environmental Laws and ERISA, the violation of which could
reasonably be expected to have a Material Adverse Effect, provided that this
sentence shall not extend to matters relating to compliance with federal
Medicaid and Medicare statutes or the regulations promulgated pursuant to such
statutes or related state or local statutes or regulations to the extent such
matters are covered by Sections 4.20 and 4.21.
4.9. Taxes
-----
Except as provided on Schedule 4.9, all tax returns required to be
filed by or on behalf of the Borrower, its Subsidiaries and each Credit Party
have been filed and payment, and adequate provision for the payment, has been
made for all taxes shown to be due and payable on said returns or in any
assessments made against the Borrower, its Subsidiaries or any Credit Party
(other than those being contested as required under Section 7.4) that would be
material to the Borrower or its Subsidiaries taken as a whole, and no tax liens
(other than a Permitted Lien described in Section 8.2(i)) have been filed with
respect to the Borrower, its Subsidiaries or any Credit Party. The charges,
accruals and reserves on the books of the Borrower, each of its Subsidiaries and
each Credit Party with respect to all federal, state, local and other taxes are,
to the best knowledge of the Borrower, adequate for the payment of all such
material taxes, and the Borrower knows of no unpaid assessment that is due and
payable against it, any of its Subsidiaries or any Credit Party or any claims
being asserted that could reasonably be expected to have a Material Adverse
Effect, except such thereof as are being contested as required under Section
7.4, and for which adequate reserves have been set aside in accordance with
GAAP.
-57-
4.10. Governmental Regulations
------------------------
Neither the Borrower, any of its Subsidiaries nor any Credit Party is
subject to regulation under the Public Utility Holding Company Act of 1935, as
amended, the Federal Power Act or the Investment Company Act of 1940, as
amended, and neither the Borrower, any of its Subsidiaries nor any Credit Party
is subject to any statute or regulation that prohibits or restricts the
incurrence of Indebtedness under the Loan Documents, including, without
limitation, statutes or regulations relative to common or contract carriers or
to the sale of electricity, gas, steam, water, telephone, telegraph or other
public utility services.
4.11. Federal Reserve Regulations; Use of Proceeds
--------------------------------------------
Neither the Borrower, any of its Subsidiaries nor any Credit Party is
engaged principally, or as one of its important activities, in the business of
extending credit for the purpose of purchasing or carrying any Margin Stock. No
part of the proceeds of the Loans or Letters of Credit will be used, directly or
indirectly, for a purpose that violates any law, rule or regulation of any
Governmental Authority, including, without limitation, the provisions of
Regulations G, T, U or X of the Board of Governors of the Federal Reserve
System, as amended. No part of the proceeds of the Loans or Letters of Credit
will be used, directly or indirectly, to purchase or carry Margin Stock or to
extend credit to others for the purpose of purchasing or carrying Margin Stock.
4.12. Plans
-----
The only Pension Plans in effect as of the Effective Date (the
"Existing Pension Plans") are listed on Schedule 4.12. Each Employee Benefit
- -----------------------
Plan of the Borrower, its Subsidiaries, the Credit Parties and the ERISA
Affiliates is in compliance with ERISA and the Code, where applicable, in all
material respects. As of the Effective Date (i) the amount of all Unfunded
Pension Liabilities under the Pension Plans, excluding any plan that is a
Multiemployer Plan, does not exceed $0, and (ii) the amount of the aggregate
Unrecognized Retiree Welfare Liability under all applicable Employee Benefit
Plans does not exceed $100,000. Each of the Borrower, its Subsidiaries, the
Credit Parties and the ERISA Affiliates has complied with the requirements of
Section 515 of ERISA with respect to each Pension Plan that is a Multiemployer
Plan. As of the Effective Date, the aggregate potential annual withdrawal
liability payments, as determined in accordance with Title IV of ERISA, of the
Borrower, its Subsidiaries, the Credit Parties and the ERISA Affiliates with
respect to all Pension Plans that are Multiemployer Plans is approximately $0.
Each of the Borrower, its Subsidiaries, the Credit Parties and/or any ERISA
Affiliate has, as of the Effective Date, made all material contributions or
payments to or under each such Pension Plan required by law or the terms of such
Pension Plan or any contract or agreement with respect thereto. No material
liability to the PBGC has been, or is expected by the Borrower, any of its
Subsidiaries, any Credit Party or any ERISA Affiliate to be, incurred by the
Borrower, such Subsidiary, such Credit Party or any ERISA Affiliate. Liability,
as referred to in this Section includes any joint and several liability. Each
Employee Benefit Plan that is a group health plan within the meaning of Section
5000(b)(1) of the Code is in material compliance with the continuation of health
care coverage requirements of Section 4980B of the Code.
-58-
4.13. Financial Statements
--------------------
The Borrower has heretofore delivered to the Administrative Agent and
the Lenders copies of the audited consolidated balance sheet of the Borrower as
of December 31, 1997 and the related consolidated statements of income, retained
earnings and cash flows for the fiscal year then ended (with the related notes
and schedules, the "Financial Statements"). The Financial Statements fairly
--------------------
present the consolidated financial condition and results of the operations of
the Borrower and its Subsidiaries, as the case may be, as of the dates and for
the periods indicated therein and have been prepared in conformity with GAAP.
As of the Effective Date, except as reflected in the Financial Statements or in
the notes thereto, neither the Borrower nor any of its Subsidiaries has any
obligation or liability of any kind (whether fixed, accrued, contingent,
unmatured or otherwise) that, in accordance with GAAP, should have been shown on
the Financial Statements and was not. Since the date of the Financial
Statements there has been no Material Adverse Change.
4.14. Property
--------
Each of the Borrower, its Subsidiaries and each Credit Party has good
and marketable title to all of its Property, title to which is material to the
Borrower and its Subsidiaries taken as a whole, subject to no Liens, except for
Permitted Liens.
4.15. Franchises, Intellectual Property, Etc.
---------------------------------------
Each of the Borrower, its Subsidiaries and each Credit Party possesses
or has the right to use all franchises, Intellectual Property, licenses and
other rights as are material and necessary for the conduct of its business, and
with respect to which it is in compliance, with no known conflict with the valid
rights of others that would reasonably be expected to have a Material Adverse
Effect. No event has occurred that permits or, to the best knowledge of the
Borrower, after notice or the lapse of time or both, or any other condition,
could reasonably be expected to permit, the revocation or termination of any
such franchise, Intellectual Property, license or other right which revocation
or termination could reasonably be expected to have a Material Adverse Effect.
4.16. Environmental Matters
---------------------
(a) The Borrower, each of its Subsidiaries and each Credit Party is in
material compliance with the requirements of all applicable Environmental Laws.
(b) No Hazardous Substances have been generated or manufactured on,
transported to or from, treated at, stored at or discharged from any Real
Property in material violation of any Environmental Laws; no Hazardous
Substances have been discharged into subsurface waters under any Real Property
in material violation of any Environmental Laws; no Hazardous Substances have
been discharged from any Real Property on or into Property or waters (including
subsurface waters) adjacent to any Real Property in material violation of any
Environmental Laws; and there are not now, nor ever have been, on any Real
Property any underground or above ground storage tanks in material violation of
any Environmental Laws.
(c) Neither the Borrower, nor any of its Subsidiaries or any Credit
Party (i) has received notice (written or oral) or otherwise learned of any
claim, demand,
-59-
suit, action, proceeding, event, condition, report, directive, Lien, violation,
non-compliance or investigation indicating or concerning any potential or actual
material liability (including, without limitation, potential material liability
for enforcement, investigatory costs, cleanup costs, government response costs,
removal costs, remedial costs, natural resources damages, Property damages,
personal injuries or penalties) arising in connection with: (x) any non-
compliance with or violation of the requirements of any applicable Environmental
Laws, or (y) the presence of any Hazardous Substance on any Real Property (or
any Real Property previously owned by the Borrower, any of its Subsidiaries or
any Credit Party) or the release or threatened release of any Hazardous
Substance into the environment, (ii) has knowledge of any threatened or actual
material liability in connection with the presence of any Hazardous Substance on
any Real Property (or any Real Property previously owned by the Borrower, any of
its Subsidiaries or any Credit Party) or the release or threatened release of
any Hazardous Substance into the environment, (iii) has received notice of any
federal or state investigation evaluating whether any material remedial action
is needed to respond to the presence of any Hazardous Substance on any Real
Property (or any Real Property previously owned by the Borrower, any of its
Subsidiaries or any Credit Party) or a release or threatened release of any
Hazardous Substance into the environment for which the Borrower, any of its
Subsidiaries or any Credit Party is or may be liable, or (iv) has received
notice that the Borrower, any of its Subsidiaries or any Credit Party is or may
be liable for a material amount to any Person under any Environmental Law.
(d) For purposes of subsections (a), (b) and (c) of this Section 4.16
"material" shall mean any liability or potential liability of the Borrower and
its Subsidiaries on a Consolidated basis for an aggregate amount in excess of
$1,000,000.
4.17. Labor Relations
---------------
There are no material controversies pending between the Borrower, any
of its Subsidiaries or any Credit Party and any of their respective employees,
that could reasonably be expected to have a Material Adverse Effect.
4.18. Burdensome Obligations
----------------------
Neither the Borrower, any of its Subsidiaries nor any Credit Party is
a party to or bound by any franchise, agreement, deed, lease or other
instrument, or subject to any restriction that, in the opinion of the management
of the Borrower, is so unusual or burdensome, in the context of its business, as
in the foreseeable future might materially and adversely affect or impair the
revenue or cash flow of the Borrower and its Subsidiaries taken as a whole, or
the ability of the Borrower or its Subsidiaries taken as a whole to perform its,
or their, obligations under the Loan Documents to which it is, or they are, a
party. The Borrower does not presently anticipate that future expenditures by
the Borrower, any of its Subsidiaries or any Credit Party needed to meet the
provisions of federal or state statutes, orders, rules or regulations will be so
burdensome as to result in a Material Adverse Effect or Material Adverse Change.
4.19. Medicare Participation/Accreditation
------------------------------------
The facilities operated by the Borrower and its Subsidiaries (the
"Facilities") are qualified for participation in the Medicare and Medicaid
- -----------
programs (together with
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their respective intermediaries or carriers, the "Government Reimbursement
------------------------
Programs") and are entitled to reimbursement under the Medicare program for
- --------
services rendered to qualified Medicare beneficiaries, and comply in all
material respects with the conditions of participation in all Government
Reimbursement Programs. There is no pending or, to Borrower's knowledge,
threatened proceeding or investigation by any of the Government Reimbursement
Programs, or for reimbursement of amounts due or to become due to the facilities
from the Government Reimbursement Programs.
4.20. Fraud and Abuse
---------------
Neither the Borrower nor any of its Subsidiaries, nor any of their
respective officers or directors has, on behalf of the Borrower or any of its
Subsidiaries, knowingly or wilfully violated the federal Medicare and Medicaid
statutes, 42 U.S.C. (S)1320a-7b, or the regulations promulgated pursuant to such
statutes or related state or local statutes or regulations, including but not
limited to the following: (i) knowingly and willfully making or causing to be
made a false statement or representation of a material fact in any applications
for any benefit or payment; (ii) knowingly and willfully making or causing to be
made any false statement or representation of a material fact for use in
determining rights to any benefit or payment; (iii) failing to disclose
knowledge by a claimant of the occurrence of any event affecting the initial or
continued right to any benefit or payment on its own behalf or on behalf of
another, with intent to secure such benefit or payment fraudulently; (iv)
knowingly and willfully soliciting or receiving any remuneration (including any
kickback, bribe or rebate), directly or indirectly, overtly or covertly, in cash
or in kind or offering to pay such remuneration (a) in return for referring an
individual to a Person for the furnishing or arranging for the furnishing of any
item or service for which payment may be made in whole or in part by Medicare,
Medicaid or other applicable third-party payers, or (b) in return for
purchasing, leasing or ordering or arranging for or recommending the purchasing,
leasing or ordering of any good, facility, service or item for which payment may
be made in whole or in part by Medicare, Medicaid or other applicable third-
party payers. With respect to this Section, knowledge of an individual director
or officer of the Borrower or a Subsidiary of any of the events described in
this Section shall not be imputed to the Borrower or such Subsidiary unless such
knowledge was obtained or learned by the director or officer in his or her
official capacity as a director or officer of the Borrower or such Subsidiary.
4.21. No Misrepresentation
--------------------
The information provided by the Borrower, any of its Subsidiaries or
any Credit Party in connection with the transactions contemplated hereby, taken
as a whole does not contain a misstatement of material fact, or, to the best
knowledge of the Borrower, omit to state a material fact required to be stated
in order to make the statements therein contained not misleading in the light of
the circumstances under which made. All financial projections, if any,
delivered by the Borrower to the Administrative Agent and the Lenders were based
on good faith estimates and assumptions believed by the Borrower to be
reasonable at the time made.
4.22. Subordinated Indebtedness
-------------------------
The subordination provisions of (i) the RTC Convertible Subordinated
Indenture, (ii) the RTC Convertible Subordinated Notes, (iii) the RTC
Convertible
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Subordinated Guaranty, (iv) any Subordinated Indebtedness now existing or
hereafter incurred or assumed by the Borrower and (v) any guarantee by any
Subsidiary of the Borrower of any Subordinated Indebtedness will be enforceable
against the holders thereof, and the Loans 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.
4.23. Survival of Rights Created under Existing Revolving Credit Agreement
--------------------------------------------------------------------
Notwithstanding the modification or deletion of certain
representations and warranties of the Borrower contained in the Existing
Revolving Credit Agreement (including, without limitation, the deletion of
representations and warranties as to the future consequences of certain events
which occurred prior to the date of this Agreement), the Borrower acknowledges
and agrees that any choses in action or other rights created in favor of any
Lender and their respective successors and assigns arising out of the
representations and warranties of the Borrower contained in or delivered
(including representations and warranties delivered in connection with the
making of loans and issuance of letters of credit thereunder) in connection with
the Existing Revolving Credit Agreement, shall survive the execution and
delivery of this Agreement. The Borrower and Lenders acknowledge that certain
representations and warranties made by the Borrower under the Existing Revolving
Credit Agreement (including representations and warranties as to the future
consequences of certain events which occurred prior to the date of this
Agreement) were made subject to changes in the facts and conditions on which
such representations and warranties were based, which such changes were
permitted or required under the Existing Revolving Credit Agreement or this
Agreement and any such representations and warranties incorporated herein are so
incorporated subject to such changes permitted or required under the Existing
Revolving Credit Agreement or this Agreement.
5. CONDITIONS TO EFFECTIVENESS OF AGREEMENT
----------------------------------------
The effectiveness of this Agreement shall be subject to the fulfillment of
the following conditions precedent:
5.1. Evidence of Action
------------------
(a) The Borrower. The Administrative Agent shall have received a
------------
certificate, dated the Effective Date, of the Secretary or Assistant Secretary
of the Borrower (i) attaching a true and complete copy of the resolutions of its
Board of Directors and of all documents evidencing other necessary corporate
action (in form and substance satisfactory to the Administrative Agent) taken by
it to authorize the Loan Documents to which it is a party and the transactions
contemplated thereby, (ii) attaching a true and complete copy of its Certificate
of Incorporation and By-Laws, (iii) setting forth the incumbency of its officer
or officers who may sign such Documents, including therein a signature specimen
of such officer or officers and (iv) attaching a certificate of good standing of
the Secretary of State of the States of Delaware and California.
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(b) The Guarantors and Pledgors. The Administrative Agent shall have
---------------------------
received a certificate, dated the Effective Date, of the Secretary or Assistant
Secretary of each Guarantor and each Pledgor (i) attaching a true and complete
copy of the resolutions of its Board of Directors and of all documents
evidencing other necessary corporate action (in form and substance satisfactory
to the Administrative Agent) taken by it to authorize the Loan Documents to
which it is a party and the transactions contemplated thereby, (ii) attaching a
true and complete copy of its Articles of Incorporation and By-Laws, (iii)
setting forth the incumbency of its officer or officers who may sign such
Documents, including therein a signature specimen of such officer or officers
and (iv) attaching a certificate of good standing of the Secretary of State of
such Guarantor's and such Pledgor's jurisdiction of organization and principal
place of business.
5.2. This Agreement
--------------
The Administrative Agent shall have received counterparts of this
Agreement signed by each of the parties hereto (or receipt by the Administrative
Agent from a party hereto of a fax signature page signed by such party which
shall have agreed to promptly provide the Administrative Agent with originally
executed counterparts hereof).
5.3. Notes
-----
The Administrative Agent shall have received the Revolving Credit
Notes and the Swing Line Note, duly executed by an Authorized Signatory of the
Borrower. Each Existing Lender upon its receipt of its Revolving Credit Note
and the Swing Line Lender upon its receipt of its Swing Line Note shall promptly
return to the Borrower for cancellation its existing revolving credit note, and
in the case of the Swing Line Lender its existing swing line note, delivered to
it pursuant to the Existing Revolving Credit Agreement, upon which such existing
revolving credit note and swing line note shall be deemed null and void.
5.4. Acknowledgment and Confirmation
-------------------------------
The Administrative Agent shall have received counterparts of the
Acknowledgment and Confirmation signed by each of the parties thereto.
5.5. First Amendment to Pledge Agreements
------------------------------------
The Administrative Agent shall have received counterparts of each
First Amendment to Pledge Agreement signed by the Borrower, TRC and, unless RTC
shall have merged with and into the Borrower, RTC.
5.6. [INTENTIONALLY OMITTED]
5.7. [INTENTIONALLY OMITTED]
5.8. Term Loan Facility
------------------
The Term Loan Facility, in form and substance satisfactory to the
Administrative Agent, shall have been duly executed and shall have become
effective, and the First Additional Term Loans (as defined in the Term Loan
Facility) shall have been
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made, and the Administrative Agent shall have received a certificate of an
Authorized Signatory of the Borrower attaching a true and correct copy of the
executed Term Loan Facility.
5.9. Litigation
----------
There shall be no injunction, writ, preliminary restraining order or
other order of any nature issued by any Governmental Authority in any respect
affecting the transactions provided for herein and no action or proceeding by or
before any Governmental Authority shall have been commenced and be pending or,
to the knowledge of the Borrower, threatened, seeking to prevent or delay the
transactions contemplated by the Loan Documents or challenging any other terms
and provisions thereof or seeking any damages in connection therewith, and the
Administrative Agent shall have received a certificate of an Authorized
Signatory of the Borrower to the foregoing effects.
5.10. [INTENTIONALLY OMITTED]
5.11. Opinion of Counsel to the Borrower and the Guarantors
-----------------------------------------------------
The Administrative Agent shall have received opinions of (i) the
general counsel to the Borrower and the other Credit Parties, addressed to the
Administrative Agent, the Collateral Agent, the Documentation Agent, the
Syndication Agent, the Lenders, and Special Counsel, and dated the Effective
Date, substantially in the form of Exhibit F-1, and (ii) Riordan & McKinzie,
special counsel to the Borrower and the other Credit Parties, addressed to the
Administrative Agent, the Collateral Agent, the Documentation Agent, the
Syndication Agent, the Lenders, and Special Counsel, and dated the Effective
Date, substantially in the form of Exhibit F-2. It is understood that such
opinions are being delivered to the Administrative Agent, the Collateral Agent,
the Documentation Agent, the Syndication Agent, the Lenders and Special Counsel
upon the direction of the Borrower and the Credit Parties and that the
Administrative Agent, the Collateral Agent, the Documentation Agent, the
Syndication Agent, the Lenders and Special Counsel may and will rely upon such
opinions.
5.12. Opinion of Special Counsel
--------------------------
The Administrative Agent shall have received an opinion of Special
Counsel, addressed to the Administrative Agent, the Collateral Agent, the Co-
Arrangers, the Documentation Agent, the Syndication Agent and the Lenders and
dated the Effective Date, substantially in the form of Exhibit G.
5.13. Fees
----
All fees payable to the Administrative Agent, the Co- Arrangers, the
Syndication Agent and the Lenders set forth in that certain Letter Agreement
dated April 1, 1998, among the Borrower, the Co- Arrangers, Administrative Agent
and the Syndication Agent, shall have been paid.
-64-
5.14. Refinancing of Existing Revolving Credit Loans.
----------------------------------------------
The Administrative Agent shall have received a Borrowing Request duly
executed by an Authorized Signatory of the Borrower for Revolving Credit Loans
hereunder (and the Borrower shall have satisfied the other requirements of
Section 6) and the Borrower shall have paid to the Administrative Agent such
additional funds which, when added to the requested Revolving Credit Loans, are
sufficient to prepay in full the Existing Revolving Credit Loans together with
all unpaid interest on the Existing Revolving Credit Loans, all unpaid interest
on the existing Swing Line Loans (under and as defined in the Existing Revolving
Credit Agreement), all fees, all amounts payable under Section 2.15 of the
Existing Revolving Credit Agreement with respect to the prepayment of the
Existing Revolving Credit Loans and all other amounts (other than the principal
amount of such existing Swing Line Loans and the existing obligations under the
existing Reimbursement Agreements (under and as defined in the Existing
Revolving Credit Agreement), in each case which shall continue to be owed
hereunder and under the Swing Line Note and the Reimbursement Agreements) owed
under the Existing Revolving Credit Agreement that have accrued to the Effective
Date (collectively, the "Refinancing Amount"). Following receipt thereof, the
------------------
Administrative Agent shall make appropriate distribution of the Refinancing
Amount to the Administrative Agent, the Non-Continuing Lenders, the Letter of
Credit Issuer, the Swing Line Lender and the Existing Lenders, all in accordance
with the Existing Credit Agreement. The requested Revolving Credit Loans shall
be effected by (i) each Existing Lender applying the proceeds of its Revolving
Credit Loan hereunder to its Existing Revolving Credit Loans and to the extent
that its Revolving Credit Loan hereunder exceeds its Existing Revolving Credit
Loans making available to the Administrative Agent an amount equal to such
excess and (ii) each Lender hereunder that is not an Existing Lender making
available to the Administrative Agent its Revolving Credit Loan hereunder.
5.15. [INTENTIONALLY OMITTED]
5.16. Fees and Expenses of Special Counsel
------------------------------------
The fees and expenses of Special Counsel in connection with the
preparation, negotiation and closing of the Loan Documents shall have been paid.
5.17. Documentation and Proceedings
-----------------------------
All corporate or other organizational and legal proceedings and all
documents and papers in connection with the transactions contemplated by the
Loan Documents shall be satisfactory in form and substance to the Administrative
Agent and the Administrative Agent shall have received all information and
copies of all documents that the Administrative Agent or the Required Lenders
may reasonably have requested in connection therewith, such documents (where
appropriate) to be certified by an Authorized Signatory of the Borrower or
proper Governmental Authorities.
-65-
5.18. Required Acts and Conditions
----------------------------
All acts, conditions and things (including, without limitation, the
obtaining of any necessary regulatory approvals and the making of any filings,
recordings or registrations) required to be done, performed and to have happened
on or prior to the Effective Date and that are necessary for the continued
effectiveness of the Loan Documents shall have been done and performed and shall
have happened in due compliance with all applicable laws.
5.19. Approval of Special Counsel
---------------------------
All legal matters in connection with the effectiveness of this
Agreement shall be reasonably satisfactory to Special Counsel.
5.20. Other Documents
---------------
The Administrative Agent shall have received such other documents as
the Administrative Agent or the Required Lenders shall reasonably request.
5.21. Officers' Certificate Regarding Certain Conditions.
--------------------------------------------------
The following conditions shall be satisfied and the Borrower shall
have delivered to the Administrative Agent a certificate of an Authorized
Signatory of the Borrower in form and substance satisfactory to the
Administrative Agent, to the following effect:
(a) Representations and Warranties. The representations and
------------------------------
warranties contained herein and in the other Loan Documents shall be true,
correct and complete in all material respects on and as of the Effective
Date to the same extent as though made on and as of that date, except to
the extent such representations and warranties specifically relate to an
earlier date, in which case such representations and warranties shall have
been true, correct and complete in all material respects on and as of such
earlier date.
(b) No Event of Default. No event shall have occurred and be
-------------------
continuing as of the Effective Date that would constitute a Default or an
Event of Default.
(c) Performance of Agreements. Each Credit Party shall have performed
-------------------------
in all material respects all agreements and satisfied all conditions which
the Loan Documents provide shall be performed or satisfied by such Credit
Party on or before the Effective Date.
5.22. Agent for Service of Process.
----------------------------
The Administrative Agent shall have received a written acceptance of
each Credit Party's agent for service of process referred to in Section 11.17,
substantially in the form of Exhibit Q.
-66-
5.23. Assignments of Existing Revolving Credit Loans by Non-Continuing
----------------------------------------------------------------
Lenders.
- -------
Each Non-Continuing Lender shall have entered into an Assignment and
Acceptance Agreement, pursuant to which such Non-Continuing Lender shall assign
all of its interest in the Existing Revolving Credit Loans and the Existing
Revolving Credit Agreement to one or more Lenders hereunder. All conditions
precedent to the effectiveness of each such Assignment and Acceptance Agreement
shall have been satisfied or waived.
6. CONDITIONS OF LENDING - ALL LOANS AND LETTERS OF CREDIT
-------------------------------------------------------
The obligation of each Lender to make any Revolving Credit Loan, the Swing
Line Lender to make a Swing Line Loan or the Letter of Credit Issuer to issue
any Letter of Credit on a Borrowing Date and each Lender to participate therein
is subject to the satisfaction of the following conditions precedent as of the
date of such Loan or the issuance of such Letter of Credit, as the case may be:
6.1. Compliance
----------
On each Borrowing Date and after giving effect to the Loans to be made
or the Letters of Credit to be issued thereon, (a) each Credit Party shall be in
compliance with all of the terms, covenants and conditions of each Loan Document
to which it is a party, (b) there shall exist no Default or Event of Default,
(c) the representations and warranties contained in the Loan Documents shall be
true and correct with the same effect as though such representations and
warranties had been made on such Borrowing Date, (d) the Aggregate Credit
Exposure will not exceed the Aggregate Revolving Credit Commitments, (e) the
Aggregate Alternate Currency Exposure shall not exceed $125,000,000 and (f) the
aggregate outstanding principal balance of the Swing Line Loans will not exceed
the Swing Line Commitment. Each borrowing by the Borrower and each request by
the Borrower for the issuance of a Letter of Credit shall constitute a
certification by the Borrower as of such Borrowing Date that each of the
foregoing matters is true and correct in all respects.
6.2. Loan Closings
-------------
All documents required by the provisions of the Loan Documents to be
executed or delivered to the Administrative Agent on or before the applicable
Borrowing Date shall have been executed and shall have been delivered at the
office of the Administrative Agent set forth in Section 11.2 on or before such
Borrowing Date.
6.3. Borrowing Request
-----------------
With respect to the making of each Loan, the Administrative Agent
shall have received a Borrowing Request duly executed by an Authorized Signatory
of the Borrower.
-67-
6.4. Letter of Credit Request
------------------------
With respect to the issuance of each Letter of Credit, the
Administrative Agent shall have received a Letter of Credit Request and a
Reimbursement Agreement, in each case duly executed by an Authorized Signatory
of the Borrower.
6.5. Documentation and Proceedings
-----------------------------
All corporate or other organizational and legal proceedings and all
documents and papers in connection with the transactions contemplated by the
Loan Documents shall be satisfactory in form and substance to the Administrative
Agent and the Administrative Agent shall have received all information and
copies of all documents that the Administrative Agent or the Required Lenders
may reasonably have requested in connection therewith, such documents (where
appropriate) to be certified by an Authorized Signatory of the Borrower or
proper Governmental Authorities.
6.6. Required Acts and Conditions
----------------------------
All acts, conditions and things (including, without limitation, the
obtaining of any necessary regulatory approvals and the making of any filings,
recordings or registrations) required to be done, performed and to have happened
on or prior to such Borrowing Date and that are necessary for the continued
effectiveness of the Loan Documents shall have been done and performed and shall
have happened in due compliance with all applicable laws.
6.7. Approval of Special Counsel
---------------------------
All legal matters in connection with the making of each Loan shall be
reasonably satisfactory to Special Counsel.
6.8. Supplemental Opinions
---------------------
If requested by the Administrative Agent with respect to the
applicable Borrowing Date, there shall have been delivered to the Administrative
Agent favorable supplementary opinions of counsel to the Borrower or the
Guarantors, addressed to the Administrative Agent, the Co- Arrangers, the
Documentation Agent, the Syndication Agent, the Lenders and Special Counsel and
dated such Borrowing Date, covering such matters incident to the transactions
contemplated herein as the Administrative Agent may reasonably request.
6.9. Other Documents
---------------
The Administrative Agent shall have received such other documents as
the Administrative Agent or the Required Lenders shall reasonably request.
7. AFFIRMATIVE COVENANTS
---------------------
The Borrower agrees that, so long as this Agreement is in effect, any Loan
or reimbursement obligation (contingent or otherwise) in respect of any Letter
of Credit
-68-
remains outstanding and unpaid, or any other amount is owing under any Loan
Document to any Lender or the Administrative Agent, the Borrower shall:
7.1. Financial Statements
--------------------
Maintain a standard system of accounting in accordance with sound
business practices sufficient to permit preparation of financial statements in
conformity with GAAP, and furnish or cause to be furnished to the Administrative
Agent and each Lender:
(a) As soon as available, but in any event within 90 days after the
end of each fiscal year, (i) a copy of the consolidated balance sheet of the
Borrower and its Subsidiaries as at the end of such fiscal year, together with
the related consolidated statements of income, retained earnings and cash flows
as of and through the end of such fiscal year, setting forth in each case in
comparative form the figures for the preceding fiscal year, and (ii) a copy of
the letter (such letter to conform to the then existing AICPA reporting
guidelines) of the Accountants addressed to the board of directors of the
Borrower to the effect that, in connection with the procedures performed in
obtaining a basis for certification of the audited consolidated financial
statements of the Borrower, the Accountants obtained no knowledge, in the course
of performing their audit, that would indicate that the Borrower was in
violation of any financial covenant contained in this Agreement or of the
existence of any Default by the Borrower under this Agreement. The consolidated
balance sheet and consolidated statements of income, retained earnings and cash
flows shall be audited and certified without qualification by the Accountants,
which certification shall (i) state that the examination by such Accountants in
connection with such consolidated financial statements has been made in
accordance with generally accepted auditing standards and, accordingly, included
such tests of the accounting records and such other auditing procedures as were
considered necessary in the circumstances, and (ii) include the opinion of such
Accountants that such consolidated financial statements have been prepared in
accordance with GAAP in a manner consistent with prior fiscal periods, except as
otherwise specified in such opinion.
(b) As soon as available, but in any event within 45 days after the
end of each fiscal quarter, a copy of the consolidated balance sheet of the
Borrower and its Subsidiaries as at the end of each such quarterly period,
together with the related consolidated statements of income, retained earnings
and cash flows for such period and for the elapsed portion of the fiscal year
through such date, setting forth in each case in comparative form the figures
for the corresponding periods of the preceding fiscal year, certified by the
chief financial officer of the Borrower (or such other officer acceptable to the
Administrative Agent), as being complete and correct in all material respects
and as presenting fairly the consolidated financial condition and the
consolidated results of operations of the Borrower and its Subsidiaries.
(c) Within 45 days after the end of each of the first three fiscal
quarters in each year and within 90 days after the end of the last fiscal
quarter in each year, a Compliance Certificate, certified by the chief financial
officer of the Borrower (or such other officer as shall be acceptable to the
Administrative Agent) to the effect that (i) the Borrower is in compliance with
Sections 7.11 through 7.15, (ii) no Default or Event of Default exists as of
such date, and (iii) all representations and warranties contained in the Loan
Documents are true and correct as of such date.
-69-
(d) Such other information as the Administrative Agent, the
Documentation Agent, the Syndication Agent or any Lender may reasonably request
from time to time.
7.2. Certificates; Other Information
-------------------------------
Furnish to the Administrative Agent and each Lender:
(a) Prompt written notice if: (i) any Indebtedness of the Borrower
and/or any of its Subsidiaries in excess of $1,000,000 on an aggregate basis is
declared or shall become due and payable prior to its stated maturity, or is
called and not paid when due, (ii) a default shall have occurred under any note
(other than the Notes) or the holder of any such note, or other evidence of
Indebtedness, certificate or security evidencing any such Indebtedness or any
obligee with respect to any other Indebtedness of the Borrower and/or any of its
Subsidiaries in excess of $1,000,000 on an aggregate basis has the right to
declare any such Indebtedness due and payable prior to its stated maturity, or
(iii) there shall occur and be continuing a Default or an Event of Default;
(b) Prompt written notice of: (i) any citation, summons, subpoena,
order to show cause or other document naming the Borrower or any of its
Subsidiaries a party to any proceeding before any Governmental Authority that
could reasonably be expected to have a Material Adverse Effect or that expressly
calls into question the validity or enforceability of any of the Loan Documents,
and include with such notice a copy of such citation, summons, subpoena, order
to show cause or other document, (ii) any lapse or other termination of any
material Intellectual Property, license, permit, franchise or other
authorization issued to the Borrower or any of its Subsidiaries by any Person or
Governmental Authority, or (iii) any refusal by any Person or Governmental
Authority to renew or extend any such material Intellectual Property, license,
permit, franchise or other authorization, which lapse, termination, refusal or
dispute could reasonably be expected to have a Material Adverse Effect;
(c) Promptly upon becoming available, copies of all (i) regular,
periodic or special reports, schedules and other material that the Borrower or
any of its Subsidiaries may now or hereafter be required to file with or deliver
to any securities exchange or the SEC, or any other Governmental Authority
succeeding to the functions thereof and (ii) material news releases and annual
reports relating to the Borrower or any of its Subsidiaries;
(d) Prompt written notice in the event that the Borrower, any of its
Subsidiaries or any ERISA Affiliate knows, or has reason to know, that (i) any
Termination Event with respect to a Pension Plan has occurred or will occur,
(ii) any condition exists with respect to a Pension Plan that presents a
material risk of termination of the Pension Plan, imposition of an excise tax,
requirement to provide security to the Pension Plan or other liability on the
Borrower, any of its Subsidiaries or any ERISA Affiliate, (iii) the Borrower,
any of its Subsidiaries or any ERISA Affiliate has applied for a waiver of the
minimum funding standard under Section 412 of the Code with respect to a Pension
Plan, (iv) the aggregate amount of the Unfunded Pension Liabilities under all
Pension Plans is in excess of $500,000, (v) the aggregate amount of Unrecognized
Retiree Welfare Liability under all applicable Employee Benefit Plans is in
excess of $500,000, (vi) the Borrower, any of its Subsidiaries or any ERISA
Affiliate has engaged in a Prohibited
-70-
Transaction with respect to an Employee Benefit Plan in which the aggregate
"amount involved" (as defined in Section 4975(f) of the Code) is in excess of
$500,000, (vii) the imposition of any tax in excess of $500,000 in the aggregate
on the Borrower, its Subsidiaries and ERISA Affiliates under Section 4980B(a) of
the Code or (viii) the assessment of a civil penalty under Section 502(c) of
ERISA in excess of $500,000 in the aggregate on the Borrower, its Subsidiaries
and ERISA Affiliates, together with a certificate of the president or chief
financial officer of the Borrower (or such other officer as shall be acceptable
to the Administrative Agent) setting forth the details of such event and the
action that the Borrower, such Subsidiary or such ERISA Affiliate proposes to
take with respect thereto, together with a copy of all notices and filings with
respect thereto.
(e) Prompt written notice in the event that Borrower, any of its
Subsidiaries or any ERISA Affiliate shall receive a demand letter from the PBGC
notifying the Borrower, such Subsidiary or such ERISA Affiliate of any final
decision finding liability in an aggregate amount in excess of $500,000 and the
date by which such liability must be paid, together with a copy of such letter
and a certificate of the president or chief financial officer of the Borrower
(or such other officer as shall be acceptable to the Administrative Agent)
setting forth the action that the Borrower, such Subsidiary or such ERISA
Affiliate proposes to take with respect thereto.
(f) Promptly upon the same becoming available, and in any event by the
date such amendment is adopted, a copy of any Pension Plan amendment that the
Borrower, any of its Subsidiaries or any ERISA Affiliate proposes to adopt that
would require the posting of security under Section 401(a)(29) of the Code,
together with a certificate of the president or chief financial officer of the
Borrower (or such other officer as shall be acceptable to the Administrative
Agent) setting forth the reasons for the adoption of such amendment and the
action that the Borrower, such Subsidiary or such ERISA Affiliate proposes to
take with respect thereto.
(g) As soon as possible and in any event by the tenth Business Day
after any required installment or other payment under Section 412 of the Code
owed to a Pension Plan shall have become due and owing and remain unpaid a copy
of the notice of failure to make required contributions provided to the PBGC by
the Borrower, any of its Subsidiaries or any ERISA Affiliate under Section
412(n) of the Code, together with a certificate of the president or chief
financial officer of the Borrower (or such other officer as shall be acceptable
to the Administrative Agent) setting forth the action that the Borrower, such
Subsidiary or such ERISA Affiliate proposes to take with respect thereto.
(h) Prompt written notice of any order, notice, claim or proceeding
received by, or brought against, the Borrower or any of its Subsidiaries, or
with respect to any of the Real Property, under any Environmental Law that could
have a Material Adverse Effect.
(i) Prompt written notice of any loss, forfeiture, non- renewal or
termination, or the commencement of any action or proceeding or the issuance of
any notice to effect any of the foregoing, with respect to any license,
agreement or authorization that could reasonably be expected to have a Material
Adverse Effect.
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7.3. Legal Existence
---------------
Maintain, and cause each of its Subsidiaries so to maintain, its
corporate, partnership or other existence, as the case may be, in good standing
in the jurisdiction of its incorporation or formation and in each other
jurisdiction in which it is required to do so, except, in each case, where the
failure to do so could not reasonably be expected to have a Material Adverse
Effect.
7.4. Taxes
-----
Pay and discharge when due, and cause each of its Subsidiaries so to
do, all Taxes, assessments and governmental charges, license fees and levies
upon, or with respect to the Borrower or such Subsidiary and all Taxes upon the
income, profits and Property of the Borrower and its Subsidiaries, that, if
unpaid, could reasonably be expected to have a Material Adverse Effect or become
a Lien on the Property of the Borrower or such Subsidiary (other than a Lien
described in Section 8.2(i)), unless and to the extent only that such Taxes,
assessments, charges, license fees and levies shall be contested in good faith
and by appropriate proceedings diligently conducted by the Borrower or such
Subsidiary provided that the Borrower shall give the Administrative Agent
prompt notice of such contest and that such reserve or other appropriate
provision as shall be required by the Accountants in accordance with GAAP shall
have been made therefor.
7.5. Insurance
---------
Maintain, and cause each of its Subsidiaries to maintain, insurance
with financially sound insurance carriers on such of its Property, against at
least such risks, and in at least such amounts, as are usually insured against
by similar businesses, including, without limitation, public liability (bodily
injury and property damage), fidelity, and workers' compensation, and file with
the Administrative Agent within ten Business Days after request therefor a
detailed list of such insurance then in effect, stating the names of the
carriers thereof, the policy numbers, the insureds thereunder, the amounts of
insurance, dates of expiration thereof, and the Property and risks covered
thereby, together with a certificate of the chief financial officer of the
Borrower (or such other officer as shall be acceptable to the Administrative
Agent) certifying that in the opinion of such officer such insurance is adequate
in nature and amount, complies with the obligations of the Borrower under this
Section, and is in full force and effect.
7.6. Payment of Indebtedness and Performance of Obligations
------------------------------------------------------
Pay and discharge when due, and cause each of its Subsidiaries to pay
and discharge, all lawful Indebtedness, obligations and claims for labor,
materials and supplies or otherwise that, if unpaid, could reasonably be
expected to (i) have a Material Adverse Effect or (ii) become a Lien upon
Property of the Borrower or any of its Subsidiaries in excess of $1,000,000 on
an aggregate consolidated basis for the Borrower and its Subsidiaries, other
than a Permitted Lien, unless and to the extent only that the validity of such
Indebtedness, obligation or claim shall be contested in good faith and by
appropriate proceedings diligently conducted by it, provided that the Borrower
shall give the Administrative Agent prompt notice of any such contest and that
such reserve or other appropriate provision as shall be required by the
Accountants in accordance with GAAP shall have been made therefor.
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7.7. Condition of Property
---------------------
At all times, maintain, protect and keep in good repair, working order
and condition (ordinary wear and tear excepted), and cause each of its
Subsidiaries so to do, all Property necessary to the operation of the Borrower's
or such Subsidiary's business.
7.8. Observance of Legal Requirements
--------------------------------
Observe and comply in all respects, and cause each of its Subsidiaries
so to do, with all laws, ordinances, orders, judgments, rules, regulations,
certifications, franchises, permits, licenses, directions and requirements of
all Governmental Authorities, that now or at any time hereafter may be
applicable to it, including, without limitation, ERISA and all Environmental
Laws, a violation of which could reasonably be expected to have a Material
Adverse Effect, except such thereof as shall be contested in good faith and by
appropriate proceedings diligently conducted by it, provided that the Borrower
shall give the Administrative Agent prompt notice of such contest and that such
reserve or other appropriate provision as shall be required by the Accountants
in accordance with GAAP shall have been made therefor.
7.9. Inspection of Property; Books and Records; Discussions
------------------------------------------------------
Keep proper books of record and account in which full, true and
correct entries sufficient to permit preparation of financial statements in
conformity with GAAP and all requirements of law shall be made of all dealings
and transactions in relation to its business and activities and permit
representatives of the Administrative Agent, the Documentation Agent, the
Syndication Agent and any Lender to visit its offices, to inspect any of its
Property and examine and make copies or abstracts from any of its books and
records at any reasonable time and as often as may reasonably be desired, and to
discuss the business, operations, prospects, licenses, Property and financial
condition of the Borrower and its Subsidiaries with the officers thereof and the
Accountants (provided that the Borrower is given reasonable notice and an
opportunity to attend or participate in any such discussion).
7.10. Licenses, Intellectual Property
-------------------------------
Maintain, and cause each of its Subsidiaries to maintain, in full
force and effect, all licenses, franchises, Intellectual Property, permits,
licenses, authorizations and other rights as are necessary for the conduct of
its business, the failure to maintain which could reasonably be expected to have
a Material Adverse Effect.
7.11. Additional Guarantors; Additional Collateral
--------------------------------------------
(a) Within 30 days after the occurrence of an Additional Guarantor
Event, (i) cause one or more Domestic Subsidiaries of the Borrower that are not
currently Guarantors to become a party to the Subsidiary Guaranty, in accordance
with the terms thereof, on and as of such date, to the extent that, after giving
effect thereto, such Additional Guarantor Event shall no longer exist, (ii)
deliver or cause to be delivered to the Administrative Agent with respect to
each such Subsidiary, simultaneously with the execution and delivery of the
same, (A) a certificate, dated the date such Subsidiary shall
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have become a party to the Subsidiary Guaranty, executed by such Subsidiary and
substantially in the form of, and with substantially the same attachments as,
the certificate which would have been required under Section 5.1 if such
Subsidiary had become a party to the Subsidiary Guaranty on or before the
Effective Date, (B) an opinion of counsel to such Subsidiary, in form and
substance satisfactory to the Administrative Agent, (C) 100% of the issued and
outstanding capital Stock of such Subsidiary, together with an undated stock
power, executed in blank by an Authorized Signatory of the Pledgor of such
Stock, and (D) such other documents as may by required by the applicable
Collateral Documents and as the Administrative Agent shall request.
(b) As soon as practicable, and in any event within 90 days after any
Person becomes a First-Tier wholly-owned Foreign Subsidiary of the Borrower
after the Effective Date, deliver or cause to be delivered to the Administrative
Agent 66% of the issued and outstanding capital Stock (or equivalent) of such
Subsidiary, together with an undated stock power (or equivalent), executed in
blank by an Authorized Signatory of the Borrower, and deliver such other
documents and take such actions as may by required by the Borrower Pledge
Agreement and as the Collateral Agent shall request in order to grant to the
Collateral Agent a valid, perfected first priority Lien on such capital Stock
(or equivalent), and, where reasonably available, the favorable written opinions
of counsel with respect to the validity, perfection and priority of such Lien
under the laws of the jurisdictions governing such Lien.
(c) If the capital Stock (or equivalent) of any Subsidiary that
becomes a Guarantor pursuant to Section 7.11(a) is owned by a Subsidiary that is
not a Pledgor, within 30 days of the applicable Additional Guarantor Event, (i)
cause the Subsidiary that owns such capital Stock (or equivalent) to execute and
deliver to the Collateral Agent a Subsidiary Pledge Agreement substantially in
the form of Exhibit K, duly completed and (ii) deliver or cause to be delivered
to the Collateral Agent with respect to such Subsidiary, simultaneously with the
execution and delivery of the same, (A) a certificate, dated the date such
Subsidiary shall have become a Pledgor, executed by such Subsidiary and
substantially in the form of, and with substantially the same attachments as,
the certificate which would have been required under Section 5.1, if such
Subsidiary had been a party to a Subsidiary Pledge Agreement on or before the
Effective Date, (B) an opinion of counsel to such Subsidiary, in form and
substance satisfactory to the Administrative Agent, and (C) such other documents
as may be required by the Subsidiary Pledge Agreement and as the Collateral
Agent shall request.
7.12. Interest Coverage Ratio
-----------------------
Maintain at all times an Interest Coverage Ratio of not less than
2.25:1.00.
7.13. Minimum Net Worth
-----------------
Maintain at all times a Consolidated net worth of the Borrower and its
Subsidiaries of not less than $325,000,000 plus the sum of 85% of quarterly
----
Consolidated net income of the Borrower and its Subsidiaries (excluding net
losses) and 85% of the net cash proceeds received by the Borrower from its
issuance of Stock, in each case determined on a cumulative basis for the period
commencing April 1, 1998.
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7.14. Minimum Consolidated EBITDA Ratio
---------------------------------
Maintain at all times a ratio of (i) Consolidated EBITDA to (ii)
Consolidated Pre-Minority EBITDA, in each case for the immediately preceding
four fiscal quarters (or, in the event that the date of determination is a
fiscal quarter ending date, the four fiscal quarter period then ended) of not
less than 0.70:1.00.
7.15. Leverage Ratio
--------------
Maintain at all times a Leverage Ratio not greater than the applicable
ratio set forth below with respect to the applicable period set forth below:
Periods Ratio
- --------------------------------------- ---------
December 31, 1997 through
December 30, 1998 4.25:1.00
December 31, 1998 through
December 30, 1999 4.00:1.00
December 31, 1999 through
December 30, 2000 3.75:1.00
December 31, 2000
and thereafter 3.50:1.00
Provided, however, that if at any time the Collateral Agent shall release
the Collateral pursuant to the provisions of Section 17 of the Borrower Pledge
Agreement or Section 18 of the Subsidiary Pledge Agreement when the Leverage
Ratio requirement under this Section 7.15 immediately before or after giving
effect thereto is greater than or equal to 3.50:1.00, the Leverage Ratio which
the Borrower shall be required to maintain under this Section 7.15 shall be
automatically reduced to 3.50:1.00 for all subsequent periods.
8. NEGATIVE COVENANTS
------------------
The Borrower agrees that, so long as this Agreement is in effect, any Loan
or reimbursement obligations (contingent or otherwise) in respect of any Letter
of Credit remains outstanding and unpaid, or any other amount is owing under any
Loan Document to any Lender or the Administrative Agent, the Borrower shall not,
directly or indirectly:
8.1. Indebtedness
------------
Create, incur, assume or suffer to exist any liability for
Indebtedness, or permit any of its Subsidiaries so to do, except (i)
Indebtedness due under the Loan Documents, (ii) Indebtedness of the Borrower or
any of its Subsidiaries existing on the date hereof as set forth on Schedule
8.1, as the same may be refinanced from time to time, containing repayment terms
and conditions no less favorable to the Borrower or such Subsidiary than the
Indebtedness being refinanced, (iii) purchase money Indebtedness and
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Capital Lease Obligations of the Borrower or its Subsidiaries, as the case may
be, incurred after the Effective Date in connection with the purchase or lease
of Property (including Permitted Acquisitions), in an aggregate outstanding
principal amount not to exceed $25,000,000 at any one time, in the case of the
Borrower, and $25,000,000 at any one time, in the case of TRC and its
Subsidiaries taken as a whole, as the same may be refinanced from time to time,
containing repayment terms and conditions no less favorable to the Borrower or
its Subsidiaries, as the case may be, than the Indebtedness being refinanced,
(iv) other Contingent Obligations of the Borrower or TRC in an aggregate amount
not exceeding $20,000,000 at any one time, (v) other Contingent Obligations of
the Borrower and its Subsidiaries for the benefit of one or more of the Borrower
or its Subsidiaries in an aggregate outstanding amount not exceeding
$30,000,000, (vi) unsecured Indebtedness of the Domestic Subsidiaries of the
Borrower provided that the aggregate outstanding principal amount of such
Indebtedness shall not exceed $15,000,000 at any one time, (vii) Indebtedness of
the Foreign Subsidiaries of the Borrower provided that the aggregate outstanding
principal amount of such Indebtedness shall not exceed $15,000,000 at any one
time, (viii) Indebtedness of TRC (excluding Indebtedness incurred under clause
(iii)) assumed in connection with a Permitted Acquisition that is not a Foreign
Acquisition, provided that the aggregate outstanding principal amount of such
Indebtedness shall not exceed $25,000,000 at any one time, (ix) Indebtedness of
Foreign Subsidiaries (excluding Indebtedness incurred under clause (iii))
assumed in connection with a Permitted Acquisition that is a Foreign
Acquisition, provided that the aggregate outstanding principal amount of such
Indebtedness shall not exceed $15,000,000 at any one time, (x) Hedging
Obligations that are incurred by the Borrower or any of its Subsidiaries for the
purpose of fixing or hedging foreign currency exchange risks or interest rate
risks with respect to any floating rate Indebtedness that is permitted by the
terms of this Agreement to be outstanding, (xi) unsecured Indebtedness of the
Borrower in an aggregate outstanding principal amount not to exceed $25,000,000
at any one time, provided that immediately before and after giving effect to the
incurrence thereof no Default or Event of Default shall exist, (xii) unsecured,
Indebtedness of the Borrower to one or more investors under an indenture subject
to the Trust Indenture Act of 1939, as amended ("Public Debt"), provided that
-----------
(A) immediately before and after giving effect to the incurrence thereof no
Default or Event of Default shall exist, (B) such Indebtedness shall require no
payment or prepayment prior to one year after the Maturity Date, (C) the terms,
conditions and covenants of such Indebtedness shall be less restrictive as to
the Borrower and its Subsidiaries than the terms, covenants and conditions of
this Agreement and the terms, amount, covenants and conditions of such
Indebtedness shall be reasonably satisfactory to the Required Lenders, and (D)
the Borrower shall make the prepayment as required by Section 2.7(d) upon the
issuance of such Public Debt, (xiii) Subordinated Indebtedness, provided that
immediately before and after giving effect to the incurrence thereof no Default
or Event of Default shall exist, (xiv) subordinated guaranties by any Guarantor
of the Borrower's obligations under any Subordinated Indebtedness permitted
hereunder, provided that (A) all Obligations of the Borrower are guarantied by
such Guarantor under the Subsidiary Guaranty, (B) each such Guaranty is
subordinated to at least the same extent as the Subordinated Indebtedness
guarantied thereby is subordinated to the Obligations of the Borrower, (C) each
such subordinated guaranty contains a limitation as to the maximum amount
guarantied thereby similar to that set forth in subsection 2.2(a) of the
Subsidiary Guaranty, provided that in no event shall the liability of the
Guarantor under such subordinated guaranty exceed the maximum amount permissible
under applicable fraudulent conveyance or similar law, and (D) each such
subordinated guaranty is otherwise on market terms for guaranties of
subordinated debt
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instruments prevailing at or around the time that such subordinated guaranty is
entered into, (xv) Indebtedness permitted under Section 8.5(d), (xvi)
Indebtedness under the Term Loan Facility, (xvii) Indebtedness of RTC under the
RTC Convertible Subordinated Indenture and the RTC Convertible Subordinated
Notes, (xviii) other Indebtedness of RTC and its Subsidiaries existing on
February 27, 1998 and (xix) Indebtedness under the RTC Convertible Subordinated
Guaranty.
8.2. Liens
-----
Create, incur, assume or suffer to exist any Lien upon any of its
Property, whether now owned or hereafter acquired, or permit any of its
Subsidiaries so to do, or enter into any agreement, other than this Agreement,
the Term Loan Facility and secured purchase money Indebtedness and Capital Lease
Obligations permitted by this Agreement (in which cases, any prohibition or
limitation shall only be effective against the Property acquired or leased
thereby), or permit any Subsidiary so to do, which prohibits or limits the
ability of the Borrower or such Subsidiary to create, incur, assume or suffer to
exist any Lien upon any of its Property or revenues, whether now owned or
hereafter acquired, except (i) Liens for Taxes, assessments or similar charges
incurred in the ordinary course of business that are not delinquent or that are
being contested in accordance with Section 7.4, provided that enforcement of
such Liens is stayed pending such contest, (ii) Liens in connection with
workers' compensation, unemployment insurance or other social security
obligations (but not ERISA), (iii) deposits or pledges to secure bids, tenders,
contracts (other than contracts for the payment of money), leases, statutory
obligations, surety and appeal bonds and other obligations of like nature
arising in the ordinary course of business, (iv) zoning ordinances, easements,
rights of way, minor defects, irregularities, and other similar restrictions
affecting Real Property that do not adversely affect the value of such Real
Property or the financial condition of the Borrower or such Subsidiary or impair
its use for the operation of the business of the Borrower or such Subsidiary,
(v) Liens arising by operation of law such as mechanics', materialmen's,
carriers', and warehousemen's liens incurred in the ordinary course of business
that are not delinquent or that are being contested in accordance with Section
7.6, provided that enforcement of such Liens is stayed pending such contest,
(vi) Liens arising out of judgments or decrees that are being contested in
accordance with Section 7.6, provided that enforcement of such Liens is stayed
pending such contest, (vii) purchase money Liens and Liens arising out of
Capital Lease Obligations on Property of the Borrower or any of its Subsidiaries
acquired after the date hereof to secure Indebtedness (and replacement Liens on
such Property to secure refinancings of such Indebtedness in accordance with
Section 8.1(iii)) of the Borrower or its Subsidiaries permitted by Section
8.1(iii), incurred in connection with the acquisition or lease of such Property,
provided that each such Lien is limited to such Property so acquired or leased,
(viii) Liens on Property of the Borrower and its Subsidiaries existing on the
Effective Date as set forth on Schedule 8.2, (ix) Liens to secure Indebtedness
permitted by Section 8.1(vii), provided that such Liens shall be limited to
Liens on the assets of the Foreign Subsidiary incurring such Indebtedness, (x)
Liens to secure Indebtedness permitted by Section 8.1(viii) or 8.1(ix), provided
that such Liens shall be limited to Liens on the Property acquired in connection
with such Permitted Acquisition, (xi) Liens created under the Collateral
Documents, and (xii) Liens to secure Indebtedness permitted by Section
8.1(xviii), provided that such Liens shall be limited to Liens on the Property
acquired in connection with the merger contemplated by the RTC Merger Agreement.
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8.3. Merger, Consolidation and Certain Dispositions of Property
-----------------------------------------------------------
Consolidate with, be acquired by, or merge into or with any Person, or
sell, lease or otherwise dispose of all or substantially all of its Property, or
permit any of its Subsidiaries so to do, except (i) as permitted by Section 8.7
(ii) any wholly-owned Subsidiary of the Borrower (other than TRC) may merge into
the Borrower or another wholly-owned Subsidiary of the Borrower provided that
(a) no Event of Default shall exist immediately before or after giving effect
thereto, (b) the representations and warranties contained herein shall be true
and correct immediately before and after giving effect hereto, (c) the Borrower,
TRC or such wholly-owned Subsidiary is the survivor of such merger, (d) the
Borrower is the survivor in the case of any such merger involving the Borrower
and TRC is the survivor in the case of any such merger involving TRC, and (e)
the Borrower shall have delivered a certificate to the Administrative Agent on
the day of the merger as to its compliance with each of the requirements set
forth in clauses (a) through (d) above, and (iii) any Permitted Acquisition.
8.4. Restricted Payments
-------------------
Declare or pay any Restricted Payments payable in cash or otherwise or
apply any of its Property thereto or set apart any sum therefor, or permit any
of its Subsidiaries so to do, except that: (i) a wholly-owned Subsidiary of the
Borrower may declare and pay Restricted Payments to the Borrower or any other
wholly-owned Subsidiary of the Borrower, (ii) provided that no Default or Event
of Default exists immediately before or after giving effect thereto, a non-
wholly-owned Subsidiary of the Borrower may declare and pay Restricted Payments
in cash provided that such Restricted Payments are ratable in accordance with
the respective equity ownership interests in such Subsidiary, (iii) each
Subsidiary may pay Restricted Payments in the form of tax sharing payments to
the Borrower, and (iv) provided that no Default or Event of Default exists
immediately before and after giving effect thereto, the Borrower may repurchase
its capital Stock owned by management or employees and physicians under contract
with the Borrower or its Subsidiaries, such payments under this clause not to
exceed $5,000,000 in the aggregate (net of cash received by the Borrower from
management or employees and physicians under contract with the Borrower or its
Subsidiaries in exchange for capital Stock of the Borrower) in any twelve month
period.
8.5. Investments, Loans, Etc.
------------------------
At any time, purchase or otherwise acquire, hold or make any
Investment in or with any Person, including, without limitation, an Acquisition,
or permit any of its Subsidiaries so to do, except:
(a) Investments in Cash Equivalents;
(b) Investments in accounts and notes payable acquired in the ordinary
course of business;
(c) Investments (i) existing on the date hereof in Subsidiaries set
forth on Schedule 4.1, (ii) existing on the date hereof as set forth on Schedule
8.5, and (iii) acquired after the Effective Date and approved by the Board of
Directors of the Borrower
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and reasonably acceptable to the Administrative Agent, the Syndication Agent,
the Documentation Agent and the Required Lenders;
(d) Investments of the Borrower or any of its Subsidiaries in any
Subsidiary of the Borrower for working capital and capital expenditure purposes
of such Subsidiary or to enable such Subsidiary to make Investments permitted by
subsections (f) and (g) below, provided that (i) such Investments in non-wholly
owned Subsidiaries shall be made in the form of demand loans, the aggregate
outstanding principal amount of which shall not exceed $10,000,000 at any one
time, and (ii) such Investments in wholly-owned Subsidiaries shall be made
either in the form of (x) demand loans or (y) additional paid in equity provided
that the aggregate amount of all such additional paid in equity shall not exceed
$20,000,000 at any one time;
(e) Investments by the Borrower or TRC (i) in ESRD-Related Businesses
existing on the date hereof as set forth on Schedule 8.5, and (ii) in ESRD-
Related Businesses of Persons (other than the Borrower and its Subsidiaries)
made after the Effective Date in an aggregate amount not exceeding $20,000,000
at any one time, provided that immediately before and after giving effect
thereto no Event of Default shall exist;
(f) Foreign Acquisitions by the Borrower or Domestic Acquisitions by
the Borrower or any wholly-owned Subsidiary of the Borrower, provided that (a)
no Event of Default shall exist immediately before or after giving effect to
such Acquisition, (b) each such Acquisition was initially approved by the board
of directors (or other Person performing similar functions) of each of the
parties thereto, and (c) the following conditions shall have been satisfied:
(A) in the case of stock Acquisitions, the Person whose stock is
to be acquired shall not be a publicly held Person,
(B) upon the consummation of each stock Acquisition, at least 50%
of the Stock or other equity interest of the Person so acquired shall be owned
by the Borrower or its Subsidiaries,
(C) in the case of Acquisitions of Stock or Property of a Person
that is not organized under the laws of, or whose Property is not located in, a
jurisdiction within the United States (a "Foreign Acquisition"), the total
-------------------
consideration to be paid in connection with all such acquisitions made after
October 24, 1997 shall not exceed $60,000,000 in the aggregate,
(D) within fifteen Business Days after the consummation of any
Acquisition in respect of which the total consideration therefor exceeds
$50,000,000, the Administrative Agent and the Lenders shall have received (x) a
sources and uses analysis, an equity interest breakdown and a copy of the
historical and pro-forma EBITDA analysis as provided to the Board of Directors
of the Borrower, all of which shall be reasonably satisfactory to the
Administrative Agent, the Syndication Agent and the Required Lenders, and (y) a
certificate signed by the chief financial officer of the Borrower (or such other
officer as shall be acceptable to the Administrative Agent) to the effect that,
immediately before and after giving effect to such Acquisition, no Event of
Default shall exist and
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setting forth calculations on a pro-forma basis showing compliance with Sections
7.11 through 7.15,
(E) if the Borrower plans to finance the Acquisition with
proceeds of Loans, prior to the making of such Loans, the Administrative Agent
and the Lenders shall have received a Borrowing Request, duly executed by an
Authorized Signatory of the Borrower, containing calculations, on a pro-forma
basis, that set forth the Leverage Ratio and demonstrate compliance with Section
7.15, in each case after giving effect to such Loans,
(F) in the event the total consideration to be paid in connection
with any one Acquisition shall exceed $60,000,000 ($75,000,000 if the
consideration to be paid for such Acquisition is comprised solely of the common
Stock of the Borrower), the Required Lenders shall have consented thereto,
(G) in the case of stock Acquisitions, TRC shall have full
control over all bank accounts of the Person so acquired, and
(H) the Administrative Agent shall have received such other
information or documents as the Administrative Agent shall have reasonably
requested;
(g) Investments by the Borrower or TRC in 50% or less of the voting
Stock or other equity interest in another Person (the "Minority Investment"),
-------------------
provided that (i) the Borrower or TRC owns at least 20% (on a fully diluted
basis) of the issued and outstanding Stock or other equity interest in such
Person, (ii) the aggregate outstanding amount of Minority Investments made by
the Borrower and TRC shall not exceed $60,000,000 at any one time, (iii) the
Borrower or TRC shall have full control over all bank accounts of such Person if
the Borrower or TRC is the largest holder of voting Stock or other equity
interests in such Person, (iv) the Borrower or TRC shall control or act as the
managing general partner of such Person if such Person is a partnership and if
the Borrower or TRC is the largest holder of equity interests in such Person,
and (v) immediately before and after giving effect thereto, no Event of Default
shall exist;
(h) Investments in notes permitted by Section 8.7(iii);
(i) 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 in an aggregate amount at
any time outstanding not to exceed $5,000,000;
(j) Investments in Hedging Obligations permitted by Section 8.1(x);
and
(k) Contingent Obligations to the extent permitted by Section 8.1.
For purposes of this Section 8.5, the amount of any Investment shall
be the original cost of such Investment plus the cost of all additions thereto,
without any adjustments for increases or decreases in value, or write-ups,
write-downs or write-offs with respect to such Investment.
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8.6. Business Change
---------------
Materially change the nature of the business of the Borrower and its
Subsidiaries as conducted on the Effective Date.
8.7. Sale of Property
----------------
Consummate any Asset Sale, or permit any of its Subsidiaries so to do,
except any Asset Sale by the Borrower or any of its Subsidiaries as to which the
following conditions have been satisfied:
(i) the Administrative Agent and all of the Lenders shall have
consented thereto if the sale consideration shall exceed $10,000,000 with
respect to any single Asset Sale or $25,000,000 in the aggregate for all such
Asset Sales made pursuant to this Section 8.7,
(ii) no Event of Default shall exist immediately before or after
giving effect thereto,
(iii) the consideration received or to be received therefor by the
Borrower or any of its Subsidiaries shall be payable (x) at least 85% in cash on
or before the closing thereof, and (y) not greater than 15% in senior notes,
provided that each such note shall be due and payable within three years and the
aggregate outstanding amount of all such notes under this subsection shall not
exceed $10,000,000 at any one time, and shall not be less than the fair market
value thereof as reasonably determined by the Board of Directors of the
Borrower, and
(iv) within fifteen Business Days after each such Asset Sale, the
Administrative Agent and the Lenders shall have received a certificate with
respect thereto signed by an Authorized Signatory of the Borrower identifying
the Property sold and stating (x) that immediately before and after giving
effect thereto, no Event of Default existed, (y) that the consideration received
or to be received by the Borrower or such Subsidiary for such Property has been
determined by the Board of Directors thereof to be not less than the fair market
value of such Property and (z) the total consideration to be paid in respect of
such Asset Sale.
8.8. Subsidiaries
------------
Create or acquire any other Subsidiary, or permit any of its
Subsidiaries so to do, unless the provisions of Sections 7.11 and 8.11 are
satisfied.
8.9. Amendments, Etc. of Certain Documents
-------------------------------------
(a) Amend or otherwise modify its Articles of Incorporation or By-Laws
in any way that would adversely affect the interests of the Administrative Agent
and the Lenders under any of the Loan Documents, or permit any of its
Subsidiaries so to do.
(b) Amend or otherwise modify (i) the Term Loan Facility by shortening
the scheduled final maturity of the Term Loan Facility, increasing the amount
-81-
of any scheduled repayment of the Term Loans (as defined therein), shortening
any scheduled date for repayments of the Term Loans, or increasing the
outstanding principal amount of the Term Loans, (ii) the definition of "Required
Lenders" in the Term Loan Facility, (iii) any mandatory prepayment or commitment
reduction required pursuant to the Term Loan Agreement (including, without
limitation, the provisions of Section 2.4 of the Term Loan Facility and any
definition used in such Section) in any way that, with respect to this clause
(iii), would adversely affect the interests of the Lenders under any of the Loan
Documents, or (iv) any affirmative covenant, negative covenant or default or
event of default contained in the Term Loan Facility (including, without
limitation, the provisions contained in Sections 7, 8 and 9 of the Term Loan
Facility and any definition used in such Sections), in any way that, with
respect to this clause (iv), would adversely affect the interests of the Lenders
under any of the Loan Documents.
(c) Refinance the Term Loan Facility unless the terms and provisions
of such refinancing would be permitted under Section 8.9(b) as if the Term Loan
Facility were not being refinanced but were instead being amended to contain
such terms and provisions.
(d) Amend or otherwise modify, or permit RTC so to do, the RTC
Convertible Subordinated Indenture, the RTC Convertible Subordinated Notes or
the RTC Convertible Subordinated Guaranty in any way that would adversely affect
the interests of the Administrative Agent and the Lenders under any of the Loan
Documents.
(e) The Borrower will not, and will not permit any of its Subsidiaries
to, amend or otherwise change the terms of any Subordinated Indebtedness, or
make any payment consistent with an amendment thereof or change thereto, if the
effect of such amendment or change is to change (to any date before the date
that is 180 days after March 31, 2008) any dates upon which payments of
principal are due thereon, change the redemption, prepayment or defeasance
provisions thereof (unless the redemption or prepayment provisions as so changed
would be permitted under clause (vi) of the definition of "Subordinated
Indebtedness"), change the subordination provisions thereof (or of any guaranty
thereof), or grant any Lien to secure payment thereof, or if the effect of such
amendment or change, together with all other amendments or changes made, is to
increase materially the obligations of the obligor thereunder or to confer any
additional rights on the holders of such Subordinated Indebtedness (or a trustee
or other representative on their behalf) which would be adverse to the Borrower
or Lenders.
8.10. ERISA
-----
Permit any Pension Plan to have a Funded Current Liability Percentage
of less than 60 percent.
8.11. Acquisition or Issuance of Additional Stock
-------------------------------------------
Create or acquire the Stock or other equity or ownership in, or
Property of, any Person that shall thereupon become a Subsidiary (each, a "New
---
Subsidiary"), or issue any additional Stock or other equity or ownership
- ----------
interest, or permit any Subsidiary so to do, except as follows:
(a) in connection with a Permitted Acquisition;
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(b) any Subsidiary may issue additional Stock to the Borrower or TRC;
(c) a non-wholly-owned Subsidiary of the Borrower may issue additional
Stock to its management or to physicians under contract, provided that after
giving effect to such issuance, such Subsidiary shall remain a Subsidiary of the
Borrower;
(d) TRC may create new wholly-owned Subsidiaries;
(e) the Borrower may issue additional Stock; and
(f) pursuant to the terms of the RTC Convertible Subordinated
Indenture and the RTC Convertible Subordinated Notes;
provided, however, that all Stock issued pursuant to this Section shall
constitute common stock with no mandatory dividend, redemption or similar
requirement, or warrants, options or other equivalents (however designated) to
acquire such common stock.
8.12. Limitation on Upstream Dividends and Advances by Subsidiaries
-------------------------------------------------------------
Permit any Subsidiary to enter into or agree, or otherwise become
subject, to any restriction in any agreement, contract or other arrangement with
any Person pursuant to the terms of which (a) such Subsidiary is or would be
prohibited from or otherwise restricted in declaring or paying any cash
dividends or distributions on or on account of any class of its stock or other
equity interest owned directly or indirectly by the Borrower or (b) such
Subsidiary is or would be prohibited from or otherwise restricted in making
advances to the Borrower, except for any such restrictions imposed against a
Foreign Subsidiary contained in any agreement governing Indebtedness of such
Foreign Subsidiary permitted by Section 8.1(vii).
8.13. Fiscal Year
-----------
Change its fiscal year from that in effect on the Effective Date, or
permit any of its Subsidiaries so to do.
8.14. Transactions with Affiliates
----------------------------
Sell, lease, transfer or otherwise dispose of any of its Properties
to, or purchase any Property from, or enter into any contract, agreement,
understanding, loan, advance or guarantee with, or for the benefit of, (i) any
Affiliate of the Borrower or any Subsidiary of the Borrower or (ii) any Person
directly or indirectly owning 5% or more of the voting Stock or other voting
equity interests of the Borrower or any of its Subsidiaries (each of the
foregoing, an "Affiliate Transaction"), or permit any of its Subsidiaries so to
---------------------
do, unless such Affiliate Transaction is on terms that are no less favorable to
the Borrower or the relevant Subsidiary than those that would have been obtained
in a comparable arm's-length transaction by the Borrower or such Subsidiary with
an unrelated Person; provided that this Section 8.14 shall not restrict the
--------
ability of the Borrower or any of its Subsidiaries to make Restricted Payments
otherwise permitted under Section 8.4.
83
9. DEFAULT
-------
9.1. Events of Default
-----------------
The following shall each constitute an "Event of Default" hereunder:
----------------
(a) The failure of the Borrower to pay any installment of principal on
any Loan or reimbursement obligation in respect of any Letter of Credit on the
date when due and payable; or
(b) The failure of the Borrower to pay any installment of interest,
fees, expenses or other amounts payable under any Loan Document or otherwise to
the Administrative Agent, or to any other Person to whom such payment is to be
made, with respect to the loan facilities established hereunder within three
Business Days of the date when due and payable; or
(c) The use of the proceeds of any Loan in a manner inconsistent with
or in violation of Section 2.17; or
(d) The failure of the Borrower to observe or perform any covenant or
agreement contained in Section 7.3, 7.11, 7.12, 7.13, 7.14 or 7.15 or Section 8;
or
(e) The failure of any Credit Party to observe or perform any other
term, covenant, or agreement contained in any Loan Document and such failure
shall have continued unremedied for a period of 30 days after the Borrower shall
have obtained knowledge thereof; or
(f) Any representation or warranty made in any Loan Document or in any
certificate, report, opinion (other than an opinion of counsel) or other
document delivered or to be delivered pursuant thereto, shall prove to have been
incorrect or misleading (whether because of misstatement or omission) in any
material respect when made; or
(g) Any obligation or obligations of the Borrower (other than its
obligations under the Notes) and/or any of its Subsidiaries (whether as
principal, guarantor, surety, lessee or other obligor) in excess of $5,000,000
on an aggregate basis for the payment of any Indebtedness or operating leases
(i) shall become or shall be declared to be due and payable prior to the
expressed maturity or expiry thereof, or (ii) shall not be paid when due or
within any grace period for the payment thereof, or (iii) any holder of any such
obligation shall have the right, immediately or with the passage of time or the
giving of notice, to declare such obligation due and payable prior to the
expressed maturity thereof;
(h) The Borrower or any of its Subsidiaries shall (i) make a general
assignment for the benefit of creditors, (ii) generally not be paying its debts
as such debts become due, (iii) admit in writing its inability to pay its debts
as they become due, (iv) file a voluntary petition in bankruptcy, (v) file any
petition or answer seeking for itself any reorganization, arrangement,
composition, readjustment of debt, liquidation or dissolution or similar relief
under any present or future statute, law or regulation of any jurisdiction, (vi)
petition or apply to any tribunal for any receiver, custodian or any trustee for
any
84
substantial part of its Property, (vii) be the subject of any such proceeding
filed against it that remains undismissed for a period of 45 days, (viii) file
any answer admitting or not contesting the material allegations of any such
petition filed against it or any order, judgment or decree approving such
petition in any such proceeding, (ix) seek, approve, consent to, or acquiesce in
any such proceeding, or in the appointment of any trustee, receiver,
sequestrator, custodian, liquidator, or fiscal agent for it, or any substantial
part of its Property, or an order is entered appointing any such trustee,
receiver, custodian, liquidator or fiscal agent and such order remains in effect
for 45 days, or (x) take any formal action for the purpose of effecting any of
the foregoing; or
(i) An order for relief is entered under the United States bankruptcy
laws or any other decree or order is entered by a court having jurisdiction (i)
adjudging the Borrower or any of its Subsidiaries bankrupt or insolvent, (ii)
approving as properly filed a petition seeking reorganization, liquidation,
arrangement, adjustment or composition of or in respect of the Borrower or any
of its Subsidiaries under the United States bankruptcy laws or any other
applicable Federal, state or foreign law, (iii) appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator (or other similar
official) of the Borrower or any of its Subsidiaries or of any substantial part
of the Property thereof, or (iv) ordering the winding up or liquidation of the
affairs of the Borrower or any of its Subsidiaries, and any such decree or order
continues unstayed and in effect for a period of 45 days; or
(j) Judgments or decrees against the Borrower and/or any of its
Subsidiaries in excess of $3,500,000 on an aggregate basis shall remain unpaid,
unstayed on appeal, undischarged, unbonded or undismissed for a period of 30
days; or
(k) The occurrence of an Event of Default under and as defined in (i)
any Loan Document, or (ii) the Term Loan Facility; or
(l) Any Loan Document shall cease, for any reason, to be in full force
and effect, or any Credit Party shall so assert in writing or shall disavow any
of its Obligations thereunder; or
(m) (i) any Termination Event (other than an event which constitutes a
Termination Event solely because it is a Reportable Event) shall occur that
could reasonably be expected to result in a liability to the Borrower, any of
its Subsidiaries or any ERISA Affiliate in excess of $2,500,000 in the
aggregate; (ii) any Accumulated Funding Deficiency in excess of $2,500,000 in
the aggregate, whether waived, shall exist with respect to any Pension Plan;
(iii) the Borrower, any of its Subsidiaries or any ERISA Affiliate shall fail to
pay when due an amount in excess of $2,500,000 in the aggregate that is payable
by it to the PBGC or to a Pension Plan under Title IV of ERISA; or
(n) (i) any Guarantor shall not be a wholly-owned Subsidiary of the
Borrower, or (ii) any Guarantor that was a First-Tier Subsidiary of the Borrower
on the date such Guarantor became a party to the Subsidiary Guaranty shall no
longer be a First-Tier Subsidiary of the Borrower; or
(o) (i) A judgment creditor of the Borrower or any of its
Subsidiaries shall obtain possession of any material portion of the Collateral
under the Collateral Documents by any means, including, without limitation,
levy, distraint, replevin
85
or self-help, (ii) any of the Collateral Documents shall cease for any reason to
be in full force and effect, or any party thereto shall purport to disavow its
obligations thereunder or shall declare that it does not have any further
obligations thereunder or shall contest the validity or enforceability thereof
or the Collateral Agent, for the benefit of the Lenders and others, shall cease
to have a valid and perfected first priority security interest in any material
Collateral therein, or (iii) the Collateral Agent's security interests or liens
on any material portion of the Collateral under the Collateral Documents shall
become otherwise impaired or unenforceable; or
(p) The Borrower or any Subsidiary, in each case to the extent it is
engaged in the business of providing services for which Medicare or Medicaid
reimbursement is sought, shall for any reason, including, without limitation, as
the result of any finding, designation or decertification, lose its right or
authorization, or otherwise fail to be eligible, to participate in Medicaid or
Medicare programs or to accept assignments or rights to reimbursements under
Medicaid regulations or Medicare regulations, and such loss or failure shall
continue for 20 Business Days (or, in the case of a Subsidiary of the Borrower
that became a Subsidiary pursuant to a Permitted Acquisition, 180 days following
the date such Permitted Acquisition was consummated, provided that (x) such
failure existed at the time such Permitted Acquisition was consummated, (y) the
consideration paid for such Permitted Acquisition was less than $10,000,000, and
(z) the aggregate consideration paid for all Subsidiaries of the Borrower that
became Subsidiaries pursuant to a Permitted Acquisition then subject to any such
failure is less than $15,000,000).
Upon the occurrence of an Event of Default or at any time thereafter
during the continuance thereof, (a) if such event is an Event of Default
specified in clause (h) or (i) above, the Aggregate Revolving Credit Commitments
and the Swing Line Commitment shall immediately and automatically terminate and
the Loans, all accrued and unpaid interest thereon, any reimbursement
obligations owing in respect of all outstanding Letters of Credit and all other
amounts owing under the Loan Documents shall immediately become due and payable,
and the Borrower shall forthwith deposit an amount equal to the Letter of Credit
Exposure in the Cash Collateral Account and the Administrative Agent may, and,
upon the direction of the Required Lenders shall, exercise any and all remedies
and other rights provided in the Loan Documents, and (b) if such event is any
other Event of Default, any or all of the following actions may be taken: (i)
with the consent of the Required Lenders, the Administrative Agent may, and upon
the direction of the Required Lenders shall, by notice to the Borrower, declare
the Aggregate Revolving Credit Commitments and the Swing Line Commitment to be
terminated forthwith, whereupon the Aggregate Revolving Credit Commitments and
the Swing Line Commitment shall immediately terminate, and (ii) with the consent
of the Required Lenders, the Administrative Agent may, and upon the direction of
the Required Lenders shall, by notice of default to the Borrower, declare the
Loans, all accrued and unpaid interest thereon, any reimbursement obligations
owing in respect of all outstanding Letters of Credit and all other amounts
owing under the Loan Documents to be due and payable forthwith, whereupon the
same shall immediately become due and payable and the Borrower shall forthwith
deposit an amount equal to the Letter of Credit Exposure in the Cash Collateral
Account and the Administrative Agent may, and upon the direction of the Required
Lenders shall, exercise any and all remedies and other rights provided pursuant
to the Loan Documents. Except as otherwise provided in this Section,
presentment, demand, protest and all other notices of any kind are hereby
expressly waived. To the extent
86
permitted by applicable law, each Credit Party hereby further expressly waives
and covenants not to assert any appraisement, valuation, stay, extension,
redemption or similar laws, now or at any time hereafter in force, that might
delay, prevent or otherwise impede the performance or enforcement of any Loan
Document.
In the event that the Aggregate Revolving Credit Commitments and the
Swing Line Commitment shall have been terminated or the Loans shall have been
declared due and payable pursuant to the provisions of this Section, any funds
received by the Administrative Agent and the Lenders from or on behalf of the
Borrower shall be applied by the Administrative Agent and the Lenders, subject
to the Intercreditor Agreement, in liquidation of the Loans and the obligations
of the Borrower under the Loan Documents and the applicable Currency Agreements
and Interest Rate Agreements in the following manner and order: (i) first, to
the payment of interest on, and then the principal portion of, any Loans that
the Administrative Agent may have advanced on behalf of any Lender for which the
Administrative Agent has not then been reimbursed by such Lender or the
Borrower; (ii) second, to the payment of any fees or expenses due the
Administrative Agent from the Borrower, (iii) third, to reimburse the
Administrative Agent, the Letter of Credit Issuer and the Lenders for any
expenses (to the extent not paid pursuant to clause (ii) above) due from the
Borrower pursuant to the provisions of Section 11.5; (iv) fourth, to the
payment, in the following order, of accrued LC Fronting Fees, Commitment Fees,
Letter of Credit Fees and all other fees, expenses and amounts due under the
Loan Documents (other than principal and interest on the Loans and reimbursement
obligations with respect to Letters of Credit); (v) fifth, pro rata according to
the outstanding principal amount of the Loans and the outstanding principal
amount of reimbursement obligations with respect to Letters of Credit, to the
payment of interest due on the Loans and with respect to such reimbursement
obligations; (vi) sixth, pro rata according to the outstanding principal amount
of the Loans, the Secured Interest Rate Obligations and Secured Currency
Obligations (as each such term is defined in the Intercreditor Agreement) of the
Lenders and their Affiliates and the outstanding principal amount of
reimbursement obligations with respect to Letters of Credit to the payment of
principal outstanding on the Loans, the principal amount of reimbursement
obligations with respect to Letters of Credit and such Secured Interest Rate
Obligations and Secured Currency Obligations; and (vii) seventh, to the payment
of any other amounts owing to the Administrative Agent, the Letter of Credit
Issuer and the Lenders under any Loan Document.
10. THE ADMINISTRATIVE AGENT
------------------------
10.1. Appointment
-----------
Each Lender hereby irrevocably designates and appoints BNY as the
Administrative Agent of such Lender under the Loan Documents and each such
Lender hereby irrevocably authorizes BNY, as the Administrative Agent for such
Lender, to take such action on its behalf under the provisions of the Loan
Documents (including, without limitation, the Intercreditor Agreement) and to
exercise such powers and perform such duties as are expressly delegated to the
Administrative Agent by the terms of the Loan Documents, together with such
other powers as are reasonably incidental thereto. Notwithstanding any
provision to the contrary elsewhere in any Loan Document, the Administrative
Agent shall not have any duties or responsibilities other than those expressly
set forth therein, or any fiduciary relationship with any Lender, and no implied
87
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into the Loan Documents or otherwise exist against the Administrative
Agent.
10.2. Delegation of Duties
--------------------
The Administrative Agent may execute any of its duties under the Loan
Documents by or through agents or attorneys-in-fact and shall be entitled to
rely upon the advice of counsel concerning all matters pertaining to such
duties.
10.3. Exculpatory Provisions
----------------------
Neither the Administrative Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates shall be (i) liable for any
action lawfully taken or omitted to be taken by the Administrative Agent or such
Person under or in connection with the Loan Documents (except the Administrative
Agent or such Person for its own gross negligence or willful misconduct), or
(ii) responsible in any manner to any of the Lenders for any recitals,
statements, representations or warranties made by any Credit Party or any
officer thereof contained in the Loan Documents or in any certificate, report,
statement or other document referred to or provided for in, or received by the
Administrative Agent under or in connection with, the Loan Documents or for the
value, validity, effectiveness, genuineness, perfection, enforceability or
sufficiency of any of the Loan Documents or for any failure of any Credit Party
or any other Person to perform its obligations thereunder. The Administrative
Agent shall not be under any obligation to any Lender to ascertain or to inquire
as to the observance or performance of any of the agreements contained in, or
conditions of, the Loan Documents, or to inspect the properties, books or
records of any Credit Party. The Administrative Agent shall not be under any
liability or responsibility whatsoever, as Administrative Agent, to any Credit
Party or any other Person as a consequence of any failure or delay in
performance, or any breach, by any Lender of any of its obligations under any of
the Loan Documents.
10.4. Reliance by Administrative Agent
--------------------------------
The Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, opinion, letter, cablegram, telegram, fax, telex or
teletype message, statement, order or other document or conversation believed by
it to be genuine and correct and to have been signed, sent or made by the proper
Person or Persons and upon advice and statements of legal counsel (including,
without limitation, counsel to any Credit Party), independent accountants and
other experts selected by the Administrative Agent. The Administrative Agent
may treat each Lender, or the Person designated in the last notice filed with it
under this Section, as the holder of all of the interests of such Lender in its
Loans and in its Notes until written notice of transfer, signed by such Lender
(or the Person designated in the last notice filed with the Administrative
Agent) and by the Person designated in such written notice of transfer, in form
and substance satisfactory to the Administrative Agent, shall have been filed
with the Administrative Agent. The Administrative Agent shall not be under any
duty to examine or pass upon the validity, effectiveness, enforceability,
perfection or genuineness of the Loan Documents or any instrument, document or
communication furnished pursuant thereto or in connection therewith, and the
Administrative Agent shall be entitled to assume that the same are valid,
effective and genuine, have been signed or sent by the proper parties and are
what they purport to be. The Administrative
88
Agent shall be fully justified in failing or refusing to take any action under
the Loan Documents unless it shall first receive such advice or concurrence of
the Required Lenders as it deems appropriate. The Administrative Agent shall in
all cases be fully protected in acting, or in refraining from acting, under the
Loan Documents in accordance with a request or direction of the Required Lenders
(or, when expressly required by a Loan Document, all the Lenders), and such
request or direction and any action taken or failure to act pursuant thereto
shall be binding upon all the Lenders and all future holders of the Notes.
10.5. Notice of Default
-----------------
The Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default unless the
Administrative Agent has received written notice thereof from a Lender or the
Borrower. In the event that the Administrative Agent receives such a notice,
the Administrative Agent shall promptly give notice thereof to the Lenders, the
Letter of Credit Issuer and the Borrower. The Administrative Agent shall take
such action with respect to such Default or Event of Default as shall be
directed by the Required Lenders, provided, however, that unless and until the
Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it shall
deem to be in the best interests of the Lenders.
10.6. Non-Reliance on Administrative Agent and Other Lenders
------------------------------------------------------
Each Lender expressly acknowledges that neither the Administrative
Agent nor any of its respective officers, directors, employees, agents,
attorneys-in-fact or affiliates has made any representations or warranties to it
and that no act by the Administrative Agent hereafter, including any review of
the affairs of any Credit Party, shall be deemed to constitute any
representation or warranty by the Administrative Agent to any Lender. Each
Lender represents to the Administrative Agent that it has, independently and
without reliance upon the Administrative Agent or any other Lender, and based on
such documents and information as it has deemed appropriate, made its own
evaluation of and investigation into the business, operations, Property,
financial and other condition and creditworthiness of the Credit Parties and
made its own decision to enter into this Agreement. Each Lender also represents
that it will, independently and without reliance upon the Administrative Agent
or any other Lender, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis,
evaluations and decisions in taking or not taking action under any Loan
Document, and to make such investigation as it deems necessary to inform itself
as to the business, operations, Property, financial and other condition and
creditworthiness of the Credit Parties. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent shall not have any duty
or responsibility to provide any Lender with any credit or other information
concerning the business, operations, Property, financial and other condition or
creditworthiness of the Credit Parties that may come into the possession of the
Administrative Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates.
89
10.7. Indemnification
---------------
Each Lender agrees to indemnify and reimburse the Administrative Agent
in its capacity as such (to the extent not promptly reimbursed by the Borrower
and without limiting the obligation of any Credit Party to do so), according to
its Commitment Percentage, from and against any and all liabilities,
obligations, claims, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind whatsoever, including, without
limitation, any amounts paid to the Lenders (through the Administrative Agent)
by the Borrower pursuant to the terms of the Loan Documents that are
subsequently rescinded or avoided or must otherwise be restored or returned,
that may at any time (including, without limitation, at any time following the
payment of the Loans) be imposed on, incurred by or asserted against the
Administrative Agent in any way relating to or arising out of the Loan Documents
or any other documents contemplated by or referred to therein or the
transactions contemplated thereby or any action taken or omitted to be taken by
the Administrative Agent under or in connection with any of the foregoing;
provided, however, that no Lender shall be liable for the payment of any portion
of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements to the extent resulting from
the gross negligence or willful misconduct of the Administrative Agent. The
agreements in this Section shall survive the payment of all amounts payable
under the Loan Documents.
10.8. Administrative Agent in Its Individual Capacity
-----------------------------------------------
BNY and its respective affiliates may make loans to, accept deposits
from, issue letters of credit for the account of, and generally engage in any
kind of business with, any Credit Party as though BNY were not Administrative
Agent hereunder. With respect to the Commitment made or renewed by BNY and the
Notes issued to BNY, BNY shall have the same rights and powers under the Loan
Documents as any Lender and may exercise the same as though it were not the
Administrative Agent, and the terms "Lender" and "Lenders" shall in each case
include BNY.
10.9. Successor Administrative Agent
------------------------------
If at any time the Administrative Agent deems it advisable, in its
sole discretion, it may submit to each of the Lenders a written notice of its
resignation as Administrative Agent under the Loan Documents, such resignation
to be effective upon the earlier of (i) the written acceptance of the duties of
the Administrative Agent under the Loan Documents by a successor Administrative
Agent and (ii) on the 30th day after the date of such notice. Upon any such
resignation, the Required Lenders shall have the right to appoint from among the
Lenders a successor Administrative Agent. If no successor Administrative Agent
shall have been so appointed by the Required Lenders and accepted such
appointment in writing within 30 days after the retiring Administrative Agent's
giving of notice of resignation, then the retiring Administrative Agent may, on
behalf of the Lenders, appoint a successor Administrative Agent, which successor
Administrative Agent shall be a commercial bank organized under the laws of the
United States or any State thereof and having a combined capital, surplus, and
undivided profits of at least $100,000,000. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent's rights, powers,
privileges
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and duties as Administrative Agent under the Loan Documents shall be terminated.
The Borrower and the Lenders shall execute such documents as shall be necessary
to effect such appointment. After any retiring Administrative Agent's
resignation as Administrative Agent, the provisions of the Loan Documents shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Administrative Agent under the Loan Documents. If at any time there shall
not be a duly appointed and acting Administrative Agent, the Borrower agrees to
make each payment due under the Loan Documents directly to the Persons entitled
thereto during such time.
10.10. Appointment of Collateral Agent
-------------------------------
Each Lender hereby authorizes the Administrative Agent to enter into
the Intercreditor Agreement on behalf of and for the benefit of that Lender and
agrees to be bound by the terms of the Intercreditor Agreement. Each Lender
hereby authorizes the Collateral Agent to enter into the Collateral Documents
and the Intercreditor Agreement and to accept the Subsidiary Guaranty and to
take all action contemplated by the Intercreditor Agreement, the Collateral
Documents, and Subsidiary Guaranty. Each Lender agrees that no Lender shall
have any right individually to seek or to enforce the Subsidiary Guaranty or to
realize upon the security granted by any Collateral Document, it being
understood and agreed that such rights and remedies may be exercised by the
Collateral Agent for the benefit of the Lenders and the parties to the
Intercreditor Agreement upon the terms of the Subsidiary Guaranty, the
Collateral Documents and the Intercreditor Agreement.
10.11. The Co-Arrangers
----------------
The Co-Arrangers shall have no duties or obligations under the Loan
Documents in their capacity as Co-Arrangers.
10.12. The Syndication Agent
---------------------
The Syndication Agent shall have no duties or obligations under the
Loan Documents in its capacity as Syndication Agent.
10.13. The Documentation Agent
-----------------------
The Documentation Agent shall have no duties or obligations under the
Loan Documents in its capacity as Documentation Agent.
11. OTHER PROVISIONS
----------------
11.1. Amendments and Waivers
----------------------
With the written consent of the Required Lenders, the Administrative
Agent and the appropriate Credit Parties may, from time to time, enter into
written amendments, supplements or modifications of this Agreement, the Notes
and the Intercreditor Agreement and, with the consent of the Required Lenders,
the Administrative Agent on behalf of the Lenders may execute and deliver to any
such parties a written instrument waiving or a consent to a departure from, on
such terms and conditions as the
91
Administrative Agent may specify in such instrument, any of the requirements of
this Agreement, the Notes and the Intercreditor Agreement or any Default or
Event of Default and its consequences; provided that:
(a) no such amendment, supplement, modification, waiver or consent
shall, without the consent of all of the Lenders, (i) increase the Commitment of
any Lender or the Aggregate Revolving Credit Commitments or the maximum amount
of allowable Aggregate Alternate Currency Exposure, (ii) extend the Maturity
Date; (iii) decrease the rate, or extend the time of payment, of the Commitment
Fee or the Letter of Credit Fee or of interest on, or change or forgive the
principal amount of, or change the pro rata allocation of payments under, any
Note, (iv) except as provided in Section 11.1(e), release or discharge any
Credit Party or release any Collateral, (v) change the provisions of Sections
2.12, 2.14, 2.15, 2.16, 2.18, 2.22, 11.1 or 11.7(a), (vi) change the definition
of Required Lenders, (vii) change the several nature of the obligations of the
Lenders, (viii) extend the date or decrease the amount of any required
Commitment reduction pursuant to Section 2.6(b), (ix) add any new currency to
the definition of Currencies, or (x) add any new borrower under this Agreement;
and
(b) without the written consent of the Letter of Credit Issuer, no
such amendment, supplement, modification or waiver shall change the amount or
the time of payment of the Letter of Credit Fee or the LC Fronting Fee or change
any other term or provision that relates to the Letters of Credit; and
(c) without the written consent of the Swing Line Lender, no such
amendment, supplement, modification or waiver shall change the Swing Line
Commitment or change any other term or provision that relates to the Swing Line
Commitment or the Swing Line Loans; and
(d) without the written consent of the Administrative Agent, no such
amendment, supplement, modification or waiver shall amend, modify or waive any
provision of Section 10 or otherwise change any of the rights or obligations of
the Administrative Agent hereunder or under the other Loan Documents; and
(e) notwithstanding anything to the contrary contained in this Section
11.1, (i) the Collateral Documents, the Intercreditor Agreement and the
Subsidiary Guaranty may only be amended in accordance with the terms thereof and
of the Intercreditor Agreement, and (ii) the Collateral Agent may, at any time
and from time to time without the consent of any one or more of the Lenders, (A)
release all or any of the obligations of any one or more Subsidiaries under the
Collateral Documents in connection with a disposition of such Subsidiary as
permitted by Section 8.3 or 8.7, and (B) release any Collateral or any security
interest therein in connection with any release specifically provided for in the
Collateral Documents.
Any such amendment, supplement, modification or waiver shall apply
equally to each of the Lenders and shall be binding upon the parties to the
applicable Loan Document, the Lenders, the Letter of Credit Issuer, the
Administrative Agent and all future holders of the Notes. In the case of any
waiver, the parties to the applicable Loan Document, the Lenders, the Letter of
Credit Issuer and the Administrative Agent shall be restored to their former
position and rights hereunder and under the outstanding Notes and other Loan
Documents to the extent provided for in such waiver, and any Default or Event
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of Default waived shall not extend to any subsequent or other Default or Event
of Default, or impair any right consequent thereon. The Loan Documents may not
be amended orally or by any course of conduct.
11.2. Notices
-------
All notices, requests and demands to or upon the respective parties to
the Loan Documents to be effective shall be in writing and, unless otherwise
expressly provided therein, shall be deemed to have been duly given or made when
delivered by hand, or when deposited in the mail, first-class postage prepaid,
or, in the case of notice by fax, when sent, addressed as follows in the case of
the Borrower or the Administrative Agent, at the Domestic Lending Office, in the
case of each Lender, and to the address of a Credit Party set forth in a Loan
Document, or to such other addresses as to which the Administrative Agent may be
hereafter notified by the respective parties thereto or any future holders of
the Notes:
The Borrower:
Total Renal Care Holdings, Inc.
21250 Hawthorne Blvd., Ste. 800
Torrance, CA 90503-5517
Attention: John E. King
Vice President, Finance
Telephone: (310) 792-2600
Fax: (310) 792-8928
The Administrative Agent:
The Bank of New York
One Wall Street
Agency Function Administration
18th Floor
New York, New York 10286
Attention: Kalyani Bose
Telephone: (212) 635-4693
Fax: (212) 635-6365 or 6366 or 6367
with a copy to:
The Bank of New York
10990 Wilshire Blvd., Suite 1125
Los Angeles, California 90024
Attention: Rebecca K. Levine
Vice President
Telephone: (310) 996-8659
Fax: (310) 996-8667
except that any notice, request or demand by the Borrower to or upon the
Administrative Agent or the Lenders pursuant to Sections 2.5, 2.9 or 2.19 shall
not be effective until
93
received. Any party to a Loan Document may rely on signatures of the parties
thereto that are transmitted by fax or other electronic means as fully as if
originally signed.
11.3. No Waiver; Cumulative Remedies
------------------------------
No failure to exercise and no delay in exercising, on the part of the
Administrative Agent, the Letter of Credit Issuer or any Lender, any right,
remedy, power or privilege under any Loan Document shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power or
privilege under any Loan Document preclude any other or further exercise thereof
or the exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges under the Loan Documents are cumulative and not
exclusive of any rights, remedies, powers and privileges provided by law.
11.4. Survival of Representations and Warranties
------------------------------------------
All representations and warranties made under the Loan Documents and
in any document, certificate or statement delivered pursuant thereto or in
connection therewith shall survive the execution and delivery of the Loan
Documents.
11.5. Payment of Expenses and Taxes
-----------------------------
The Borrower agrees, promptly upon presentation of a statement or
invoice therefor, and whether any Loan is made (i) to pay or reimburse the
Administrative Agent, the Documentation Agent, the Syndication Agent and the Co-
Arrangers for all their out-of-pocket costs and expenses reasonably incurred in
connection with the development, preparation and execution of the Loan Documents
and any amendment, supplement or modification thereto (whether or not executed),
any documents prepared in connection therewith and the consummation of the
transactions contemplated thereby, including, without limitation, the reasonable
fees and disbursements of Special Counsel, (ii) to pay or reimburse the
Administrative Agent, the Documentation Agent, the Syndication Agent, the Co-
Arrangers, the Letter of Credit Issuer, and the Lenders for all of their
respective costs and expenses, including, without limitation, reasonable fees
and disbursements of counsel (including allocated costs of internal counsel),
incurred in connection with (A) any Default or Event of Default and any
enforcement or collection proceedings resulting therefrom or in connection with
the negotiation of any restructuring or "work-out" (whether consummated or not)
of the obligations of the Credit Parties under any of the Loan Documents and (B)
the enforcement of this Section, (iii) to pay, indemnify, and hold the
Administrative Agent, the Documentation Agent, the Syndication Agent, the Co-
Arrangers, the Letter of Credit Issuer and each Lender harmless from and
against, any and all recording and filing fees and any and all liabilities with
respect to, or resulting from any delay in paying, stamp, excise and other
similar taxes, if any, that may be payable or determined to be payable in
connection with the execution and delivery of, or consummation of any of the
transactions contemplated by, or any amendment, supplement or modification of,
or any waiver or consent under or in respect of, the Loan Documents and any such
other documents, and (iv) to pay, indemnify and hold the Administrative Agent,
the Documentation Agent, the Syndication Agent, the Co-Arrangers, the Letter of
Credit Issuer and each Lender, and each of their respective officers, directors
and employees, harmless from and against any and all other liabilities,
obligations, claims, losses, damages, penalties, actions, judgments, suits,
costs, expenses and disbursements of
94
any kind or nature whatsoever (including, without limitation, reasonable counsel
fees and disbursements) with respect to the enforcement and performance of the
Loan Documents, the use of the proceeds of the Loans and the enforcement and
performance of the provisions of any subordination agreement in favor of the
Administrative Agent and the Lenders (all the foregoing, collectively, the
"indemnified liabilities") and, if and to the extent that the foregoing
-----------------------
indemnity may be unenforceable for any reason, the Borrower agrees to make the
maximum payment permitted or not prohibited under applicable law; provided,
however, that the Borrower shall have no obligation hereunder to pay indemnified
liabilities to the Administrative Agent, the Documentation Agent, the
Syndication Agent, the Co-Arrangers, the Letter of Credit Issuer or any Lender
to the extent arising from such indemnified party's gross negligence or willful
misconduct or claims between one indemnified party and another indemnified
party. The agreements in this Section shall survive the termination of the
Aggregate Revolving Credit Commitments and the Swing Line Commitment and the
payment of all amounts payable under the Loan Documents.
11.6. Lending Offices
---------------
(a) Each Lender shall have the right at any time and from time to time
to transfer its Letter of Credit Exposure or Loans, as the case may be, to a
different office, provided that it shall promptly notify the Administrative
Agent and the Borrower of any such change of office. Such office shall
thereupon become, with respect to its Loans, its Lender's Domestic Lending
Office, Eurodollar Lending Office or Alternate Currency Lending Office, as the
case may be, provided, however, that it shall not be entitled to receive any
greater amount under Sections 2.12, 2.14, 2.15, 2.18 or 2.22 as a result of any
such transfer to a different office than it would be entitled to immediately
prior thereto unless (i) such claim would have arisen even if such transfer had
not occurred, (ii) such transfer was made pursuant to subsection (b) below, or
(iii) such claims arose as a result of a change of law after such transfer.
(b) The Letter of Credit Issuer and each Lender agrees that, upon the
occurrence of any event giving rise to any increased cost or indemnity under
Sections 2.12, 2.14, 2.15, 2.18 or 2.22 with respect to the Letter of Credit
Issuer or such Lender, as the case may be, it will, if requested by the
Borrower, use reasonable efforts (subject to its overall policy considerations)
to designate another office for any part of its Letter of Credit Exposure or
Loans affected by such event, provided that such designation is made on such
terms that the Letter of Credit Issuer or such Lender, as the case may be, and
its office suffer no economic, legal or regulatory disadvantage, with the object
of avoiding the consequence of the event giving rise to the operation of any
such Section.
11.7. Assignments and Participations
------------------------------
(a) The Loan Documents shall be binding upon and inure to the benefit
of the Borrower, the Lenders, the Letter of Credit Issuer, the Administrative
Agent, all future holders of the Notes and their respective successors and
assigns, except that no Credit Party may assign, delegate or transfer any of its
rights or obligations under the Loan Documents without the prior written consent
of the Administrative Agent, the Letter of Credit Issuer and each Lender.
(b) Each Lender shall have the right at any time, upon written notice
to the Administrative Agent of its intent to do so and the payment of a fee (the
"Assignment
----------
95
Fee") of $3,500 to the Administrative Agent by the assigning or assignee Lender,
- ---
to sell, assign, transfer or negotiate all or any part of such Lender's rights
and obligations under the Loan Documents (i) to one or more of the other
Lenders, (ii) with the prior written consent of the Swing Line Lender and the
Letter of Credit Issuer (excluding First Union National Bank) (which consents
shall not be unreasonably withheld or delayed), to one or more of its affiliates
or the affiliates or Approved Funds of one or more of the other Lenders, or
(iii) with the prior written consent of the Borrower, the Administrative Agent,
the Swing Line Lender and the Letter of Credit Issuer (excluding First Union
National Bank) (which consents shall not be unreasonably withheld or delayed, or
with respect to the Borrower, required during the continuance of an Event of
Default), to any other bank, insurance company, pension fund, mutual fund or
other financial institution or fund, which in the normal course of its business,
purchases loans such as the Loans, provided that each such sale, assignment,
transfer or negotiation (other than sales, assignments, transfers or
negotiations (x) to affiliates of such Lender or (y) of a Lender's entire
interest) shall be in a minimum amount of $5,000,000. In addition, during the 30
day period (or such shorter period as the Administrative Agent and the
Syndication Agent shall notify the Borrower) following the Effective Date,
assignments made by the Administrative Agent and the Syndication Agent
(excluding assignments of Revolving Credit Commitments held by them in an amount
equal to the Revolving Credit Commitments (as defined in the Existing Credit
Agreement) held by them under the Existing Credit Agreement on April 20, 1998)
shall not be subject to the $5,000,000 minimum size restriction or require
payment of the Assignment Fee. For each assignment, the parties to such
assignment shall execute and deliver to the Administrative Agent for its
acceptance an Assignment and Acceptance Agreement which the Administrative Agent
shall record in a register (the "Register") maintained by the Administrative
--------
Agent on behalf of the Borrower, for the recordation of the names and addresses
of the Lenders and the Commitment of, and principal amount of the Loans owing
to, each Lender from time to time and the registered owners of the Obligation(s)
evidenced by the Note(s), the entries in the Register shall be presumptively
correct absent manifest error. Upon such execution, delivery, acceptance and
recording by the Administrative Agent, from and after the effective date
specified in such Assignment and Acceptance Agreement, the assignee thereunder,
if not already a Lender, shall be a party hereto and, to the extent provided in
such Assignment and Acceptance Agreement, the assignor Lender thereunder shall
be released from its obligations under the Loan Documents. The Borrower agrees
upon written request of the Administrative Agent and at the Borrower's expense
to execute and deliver (i) to such assignee, a Revolving Credit Note, dated the
date of the Assignor's Revolving Credit Note subject to such Assignment and
Acceptance Agreement, in an aggregate principal amount equal to the Loans
assigned to, and Commitment assumed by, such assignee and (ii) to such assignor
Lender, a Revolving Credit Note, dated the date of the Assignor's Revolving
Credit Note subject to such Assignment and Acceptance Agreement, in an aggregate
principal amount equal to the balance of such assignor Lender's Loans and
Commitment, if any, and each assignor Lender shall cancel and return to the
Borrower its existing Revolving Credit Note. Upon any such sale, assignment or
other transfer, the Commitments and the Commitment Percentages set forth in
Exhibit A shall be adjusted accordingly by the Administrative Agent.
(c) Each Lender may grant participations in all or any part of its
Loans, its Note, its Letter of Credit Exposure and its Commitment to one or more
banks, insurance companies, financial institutions, pension fund, mutual funds
or funds which in the normal course of business purchase loans such as the
Loans, provided that (i) such
96
Lender's obligations under the Loan Documents shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties to the Loan
Documents for the performance of such obligations, (iii) the Borrower, the
Administrative Agent, the Letter of Credit Issuer and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under the Loan Documents and (iv) the voting
rights of any holder of any participation shall be limited to decisions that
require the consent of all Lenders as set forth in Section 11.1(a). The Borrower
acknowledges and agrees that any such participant shall for purposes of Sections
2.12, 2.14, 2.15, 2.18 and 2.22 be deemed to be a "Lender"; provided, however,
the Borrower shall not, at any time, be obligated to pay any participant in any
interest of any Lender hereunder any sum in excess of the sum that the Borrower
would have been obligated to pay to such Lender in respect of such interest had
such Lender not sold such participation.
(d) If any (i) assignment is made pursuant to subsection (b) above or
(ii) participation is granted pursuant to subsection (c) above to any Person
that is not a U.S. Person, such Person shall furnish such certificates,
documents or other evidence to the Borrower and the Administrative Agent, in the
case of clause (i), and to the Borrower and the Lender that sold such
participation, in the case of clause (ii), as shall be required by Section
2.12(e).
(e) No Lender shall, as between and among the Borrower, the
Administrative Agent, the Documentation Agent, the Syndication Agent, the Swing
Line Lender, the Letter of Credit Issuer and such Lender, be relieved of any of
its obligations under the Loan Documents as a result of any sale, assignment,
transfer or negotiation of, or granting of participations in, all or any part of
its Loans, its Letter of Credit Exposure, its Commitment or its Note, except
that a Lender shall be relieved of its obligations to the extent of any such
sale, assignment, transfer, or negotiation of all or any part of its Loans, its
Letter of Credit Exposure, its Commitment or its Note pursuant to subsection (b)
above.
(f) Notwithstanding anything to the contrary contained in this
Section, any Lender may at any time or from time to time assign or pledge all or
any portion of its rights under the Loan Documents to (i) a Federal Reserve Bank
or (ii) if such Lender is a fund which in the normal course of its business
purchasers loans such as the Loans, to its lenders or a trustee under an
indenture for the benefit of its creditors, to secure such fund's obligations,
provided that any such assignment or pledge shall not release such assignor from
its obligations thereunder.
(g) In the event that the Borrower shall request that Lenders enter
into any amendment, modification, consent or waiver with respect to this
Agreement or any other Loan Document, which amendment, modification, consent or
waiver cannot become effective without the consent of each Lender, and any
Lender elects not to enter into such amendment, modification, consent or waiver
(each such lender 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 its
Revolving Credit Loans, Revolving Credit Notes and Revolving Credit Commitment
at par to any Lender or any other financial institution which satisfies the
requirements of Section 11.7(b) and has been consented to by the Administrative
Agent, the Swing Line Lender and the Letter of Credit Issuer (excluding First
Union National Bank (which consents shall not be unreasonably withheld or
delayed), in each
97
case that agrees, in its sole discretion, to assume such Revolving Credit Loans,
Revolving Credit Notes and Revolving Credit Commitment. Each such assignment
shall be made pursuant to an Assignment and Acceptance Agreement and shall
comply with the other terms of this Section 11.7. The Borrower shall pay to such
Dissenting Lender, concurrently with the effectiveness of such assignment, any
amounts payable under Section 2.15 that would have been payable if the Borrower
had voluntarily prepaid such Revolving Credit Loans. The Dissenting Lender shall
not be required to pay the Assignment Fee.
11.8. Counterparts; Effectiveness
---------------------------
Each Loan Document (other than the Notes) may be executed by one or
more of the parties thereto on any number of separate counterparts and all of
said counterparts taken together shall be deemed to constitute one and the same
document. It shall not be necessary in making proof of any Loan Document to
produce or account for more than one counterpart signed by the party to be
charged. A counterpart of any Loan Document or of any amendment, modification,
consent or waiver to or of any Loan Document transmitted by fax shall be deemed
to be an originally executed counterpart. A set of the copies of the Loan
Documents signed by all the parties thereto shall be deposited with each of the
Borrower and the Administrative Agent. Any party to a Loan Document may rely
upon the signatures of any other party thereto that are transmitted by fax or
other electronic means to the same extent as if originally signed. On the
Effective Date, at the time of the effectiveness of this Agreement, (i) this
Agreement shall amend and restate the Existing Revolving Credit Agreement, (ii)
all Existing Revolving Credit Loans outstanding under the Existing Revolving
Credit Agreement shall continue as and constitute Revolving Credit Loans for all
purposes under this Agreement, (iii) all Swing Line Loans (under and as defined
in the Existing Revolving Credit Agreement) shall continue as and constitute
Swing Line Loans for all purposes under this Agreement, (iv) all Letters of
Credit (under and as defined in the Existing Credit Agreement) shall continue as
and constitute Letters of Credit for all purposes under this Agreement, and (v)
all obligations of the Borrower under the Existing Revolving Credit Agreement
that have not been paid as of the Effective Date shall become Obligations of the
Borrower under this Agreement.
11.9. Adjustments; Set-off
--------------------
(a) If any Lender shall at any time receive any payment of all or any
part of its Loans, or interest thereon, or receive any collateral in respect
thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or
proceedings of the nature referred to in Section 9.1 (h) or (i), or otherwise)
in a greater proportion than any such payment to and collateral received by any
other Lender in respect of such other Lender's Loans, or interest thereon (each
a "Benefited Lender"), such Benefited Lender shall purchase for cash from each
----------------
of the other Lenders such portion of each such other Lender's Loans, and shall
provide each of such other Lenders with the benefits of any such collateral, or
the proceeds thereof, as shall be necessary to cause such Benefited Lender to
share the excess payment or benefits of such collateral or proceeds ratably with
each of the Lenders, provided, however, that if all or any portion of such
excess payment or benefits is thereafter recovered from such Benefited Lender,
such purchase shall be rescinded, and the purchase price and benefits returned,
to the extent of such recovery, but without interest. The Borrower agrees that
each Lender so purchasing a portion of another Lender's Loans may exercise all
rights of payment (including, without limitation, rights of set-off,
98
to the extent not prohibited by law) with respect to such portion as fully as if
such Lender were the direct holder of such portion.
(b) In addition to any rights and remedies of the Lenders provided by
law, upon the occurrence of an Event of Default and the acceleration of the
obligations owing in connection with the Loan Documents, or at any time upon the
occurrence and during the continuance of an Event of Default, under Section
9.1(a) or (b), each Lender shall have the right, without prior notice to the
Borrower, any such notice being expressly waived by each Credit Party to the
extent not prohibited by applicable law, to set-off and apply against any
indebtedness, whether matured or unmatured, of such Credit Party to such Lender,
any amount owing from such Lender to such Credit Party, at, or at any time
after, the happening of any of the above-mentioned events. To the extent not
prohibited by applicable law, the aforesaid right of set-off may be exercised by
such Lender against such Credit Party or against any trustee in bankruptcy,
custodian, debtor in possession, assignee for the benefit of creditors,
receiver, or execution, judgment or attachment creditor of such Credit Party, or
against anyone else claiming through or against such Credit Party or such
trustee in bankruptcy, custodian, debtor in possession, assignee for the benefit
of creditors, receiver, or execution, judgment or attachment creditor,
notwithstanding the fact that such right of set-off shall not have been
exercised by such Lender prior to the making, filing or issuance, or service
upon such Lender of, or of notice of, any such petition, assignment for the
benefit of creditors, appointment or application for the appointment of a
receiver, or issuance of execution, subpoena, order or warrant. Each Lender
agrees promptly to notify the applicable Credit Party and the Administrative
Agent after any such set-off and application made by such Lender, provided that
the failure to give such notice shall not affect the validity of such set-off
and application.
11.10. Construction
------------
Each Credit Party represents that it has been represented by counsel
in connection with the Loan Documents and the transactions contemplated thereby
and that the principle that agreements are to be construed against the draftsman
shall be inapplicable.
11.11. Indemnity
---------
The Borrower agrees to indemnify and hold harmless the Administrative
Agent, the Documentation Agent, the Syndication Agent, the Co-Arrangers, the
Letter of Credit Issuer and each Lender and their respective affiliates,
directors, officers, employees, attorneys and agents (each an "Indemnified
-----------
Person") from and against any loss, cost, liability, damage or expense
- ------
(including the reasonable fees and disbursements of counsel of such Indemnified
Person, including all local counsel hired by any such counsel) incurred by such
Indemnified Person in investigating, preparing for, defending against, or
providing evidence, producing documents or taking any other action in respect
of, any commenced or threatened litigation, administrative proceeding or
investigation under any federal securities law or any other statute of any
jurisdiction, or any regulation, or at common law or otherwise, that is alleged
to arise out of or is based upon (i) any untrue statement or alleged untrue
statement of any material fact by any Credit Party in any document or schedule
executed or filed with any Governmental Authority by or on behalf of any Credit
Party; (ii) any omission or alleged omission to state any material fact required
to be stated in such document or schedule, or necessary to make the statements
99
made therein, in light of the circumstances under which made, not misleading;
(iii) any acts, practices or omissions or alleged acts, practices or omissions
of any Credit Party or its agents relating to the use of the proceeds of any or
all borrowings made by the Borrower alleged to be in violation of Section 2.17,
or in violation of any federal securities law or of any other statute,
regulation or other law of any jurisdiction applicable thereto; or (iv) any
acquisition or proposed acquisition by any Credit Party of all or a portion of
the Stock, or all or a portion of the assets, of any Person whether such
Indemnified Person is a party thereto, provided that the Borrower shall have no
obligation under this Section to an Indemnified Person with respect to any of
the foregoing to the extent any such loss, cost, liability, damage or expense
resulted from or arose out of the gross negligence or wilful misconduct of such
Indemnified Person or arose from claims between one such Indemnified Person and
another such Indemnified Person. The indemnity set forth herein shall be in
addition to any other obligations or liabilities of the Borrower to each
Indemnified Person under the Loan Documents or at common law or otherwise, and
shall survive any termination of the Loan Documents, the expiration of the
Commitments and the payment of all indebtedness of the Borrower under the Loan
Documents.
11.12. GOVERNING LAW
-------------
THE LOAN DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
THEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICT OF LAWS.
11.13. Headings Descriptive
--------------------
Section headings have been inserted in the Loan Documents for
convenience only and shall not be construed to be a part thereof.
11.14. Severability
------------
Every provision of the Loan Documents is intended to be severable, and
if any term or provision thereof shall be invalid, illegal or unenforceable for
any reason, the validity, legality and enforceability of the remaining
provisions thereof shall not be affected or impaired thereby, and any
invalidity, illegality or unenforceability in any jurisdiction shall not affect
the validity, legality or enforceability of any such term or provision in any
other jurisdiction.
11.15. Integration
-----------
All exhibits to a Loan Document shall be deemed to be a part thereof.
Except for agreements between the Administrative Agent and the Borrower with
respect to certain fees, the Loan Documents embody the entire agreement and
understanding among the Credit Parties, the Administrative Agent and the Lenders
with respect to the subject matter thereof and supersede all prior agreements
and understandings among the Credit Parties, the Administrative Agent and the
Lenders with respect to the subject matter thereof.
100
11.16. Consent to Jurisdiction
-----------------------
Each Credit Party hereby irrevocably submits to the jurisdiction of
any New York State or Federal court sitting in the City of New York over any
suit, action or proceeding arising out of or relating to the Loan Documents.
Each Credit Party hereby irrevocably waives, to the fullest extent permitted or
not prohibited by law, any objection that it may now or hereafter have to the
laying of the venue of any such suit, action or proceeding brought in such a
court and any claim that any such suit, action or proceeding brought in such a
court has been brought in an inconvenient forum. Each Credit Party hereby
agrees that a final judgment in any such suit, action or proceeding brought in
such a court, after all appropriate appeals, shall be conclusive and binding
upon it.
11.17. Service of Process
------------------
Each Credit Party hereby agrees that service of process in any such
suit, action or proceeding brought in the State of New York may be made upon CT
Corporation at its offices at 1633 Broadway, New York, New York 10019 (or any
other location in New York City) (the "Process Administrative Agent") and each
----------------------------
Credit Party hereby irrevocably appoints the Process Administrative Agent its
authorized agent to accept such service of process, and agrees that the failure
of the Process Administrative Agent to give any notice of any such service shall
not impair or affect the validity of such service or of any judgment rendered in
any action or proceeding based thereon. Each Credit Party hereby further
irrevocably consents to the service of process in any suit, action or proceeding
by sending the same by first class mail, return receipt requested or by
overnight courier service, to the address of such Credit Party set forth in or
referred to in Section 11.2 or in the applicable Loan Document executed by such
Credit Party. Each Credit Party hereby agrees that any such service (i) shall
be deemed in every respect effective service of process upon it in any such
suit, action, or proceeding, and (ii) shall to the fullest extent enforceable by
law, be taken and held to be valid personal service upon and personal delivery
to it.
11.18. No Limitation on Service or Suit
--------------------------------
Nothing in the Loan Documents or any modification, waiver, consent or
amendment thereto shall affect the right of the Administrative Agent, the Letter
of Credit Issuer or any Lender to serve process in any manner permitted by law
or limit the right of the Administrative Agent, the Letter of Credit Issuer or
any Lender to bring proceedings against any Credit Party in the courts of any
jurisdiction or jurisdictions in which such Credit Party may be served.
11.19. Judgment Currency
-----------------
(a) Each Credit Party's obligations under the Loan Documents to make
payments in the applicable Currency (the "Obligation Currency") shall not be
-------------------
discharged or satisfied by any tender or recovery pursuant to any judgment
expressed in or converted into any currency other than the Obligation Currency,
except to the extent that, on the Business Day immediately following the date of
such tender or recovery, the Administrative Agent, the Letter of Credit Issuer,
the Swing Line Lender or the applicable Lender, as the case may be, may, in
accordance with normal banking procedures, purchase the Obligation Currency with
such other currency. If for the purpose of
101
obtaining or enforcing judgment against any Credit Party in any court or in any
jurisdiction, it becomes necessary to convert into any currency other than the
Obligation Currency (such other currency being hereinafter referred to as the
"Judgment Currency") an amount due in the Obligation Currency, the conversion
-----------------
shall be made at the rate of exchange at which, in accordance with normal
banking procedures in the relevant jurisdiction, the Obligation Currency could
be purchased with the Judgment Currency as of the day immediately preceding the
day on which the judgment is given.
(b) If the amount of Obligation Currency purchased pursuant to the
last sentence of subsection (a) above is less than the sum originally due in the
Obligation Currency, the applicable Credit Party covenants and agrees to
indemnify the applicable recipient against such loss, and if the Obligation
Currency so purchased exceeds the sum originally due to such recipient, such
recipient agrees to remit to the applicable Credit Party such excess.
11.20. WAIVER OF TRIAL BY JURY
-----------------------
THE ADMINISTRATIVE AGENT, THE DOCUMENTATION AGENT, THE SYNDICATION
AGENT, THE CO-ARRANGERS, THE LENDERS, THE LETTER OF CREDIT ISSUER AND EACH
CREDIT PARTY EACH HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION ARISING OUT
OF, UNDER OR IN CONNECTION WITH THE LOAN DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED THEREIN. FURTHER, EACH CREDIT PARTY HEREBY CERTIFIES THAT NO
REPRESENTATIVE OR AGENT OF THE ADMINISTRATIVE AGENT, THE DOCUMENTATION AGENT,
THE SYNDICATION AGENT, THE CO-ARRANGERS, THE LETTER OF CREDIT ISSUER OR THE
LENDERS, OR COUNSEL TO THE ADMINISTRATIVE AGENT, THE DOCUMENTATION AGENT, THE
SYNDICATION AGENT, THE CO-ARRANGERS , THE LETTER OF CREDIT ISSUER OR THE
LENDERS, HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE ADMINISTRATIVE AGENT,
THE DOCUMENTATION AGENT, THE SYNDICATION AGENT, THE CO-ARRANGERS, THE LETTER OF
CREDIT ISSUER OR THE LENDERS WOULD NOT, IN THE EVENT OF SUCH LITIGATION, SEEK TO
ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION. EACH CREDIT PARTY
ACKNOWLEDGES THAT THE ADMINISTRATIVE AGENT, THE DOCUMENTATION AGENT, THE
SYNDICATION AGENT, THE CO-ARRANGERS, THE LETTER OF CREDIT ISSUER AND THE LENDERS
HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, INTER ALIA, THE PROVISIONS OF
----- ----
THIS SECTION.
11.21. International Banking Facilities
--------------------------------
(a) The Borrower acknowledges that some or all of the Lenders may, in
connection with the Loan Documents, utilize an International banking facility
(as defined in Regulation D of the Board of Governors of the Federal Reserve
System).
(b) The Borrower (i) understands that it is the policy of the Board of
Governors of the Federal Reserve System that deposits received by International
banking
102
facilities may be used only to support the non-U.S. operations of a depositor
(or its foreign affiliates) located outside the United States and that
extensions of credit by International banking facilities may be used only to
finance the non-U.S. operations of a customer (or its foreign affiliates)
located outside the United States, and (ii) acknowledges that the proceeds of
its borrowings hereunder from an International banking facility will be used
solely to finance its operations outside the United States, or those of its
foreign affiliates.
11.22. Designation as Designated Senior Indebtedness
---------------------------------------------
This Agreement, the Subsidiary Guaranty, and all Loans and all other
monetary obligations hereunder and thereunder, are hereby expressly designated
as "Designated Senior Indebtedness", as that term is defined in the RTC
Convertible Subordinated Indenture and in the RTC Convertible Subordinated
Guaranty.
11.23. Year 2000
---------
The Borrower and its Subsidiaries have reviewed the areas within their
business and operations which could be adversely affected by, and have developed
or are developing a program to address on a timely basis, the "Year 2000
Problem" (that is, the risk that computer applications used by the Borrower and
its Subsidiaries may be unable to recognize and perform properly date-sensitive
functions involving certain dates prior to and any date after December 31,
1999). Based on such review and program, the Borrower reasonably believe that
the "Year 2000 Problem" will not have a material adverse effect on the financial
condition, operations, business, prospects or Property of the Borrower and its
Subsidiaries taken as a whole since December 31, 1997.
103
TOTAL RENAL CARE HOLDINGS, INC.
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
TOTAL RENAL CARE HOLDINGS, INC.
By:__________________________________
Name:________________________________
Title:_______________________________
TOTAL RENAL CARE HOLDINGS, INC.
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
THE BANK OF NEW YORK,
Individually, as the Letter of Credit Issuer, as the
Swing Line Lender and as Administrative Agent
By:__________________________________
Name:________________________________
Title:_______________________________
TOTAL RENAL CARE HOLDINGS, INC.
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
DLJ CAPITAL FUNDING, INC.,
Individually and as Syndication Agent
By:__________________________________
Name:________________________________
Title:_______________________________
TOTAL RENAL CARE HOLDINGS, INC.
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
FIRST UNION NATIONAL BANK,
Individually and as Documentation Agent
By:__________________________________
Name:________________________________
Title:_______________________________
TOTAL RENAL CARE HOLDINGS, INC.
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
ABN AMRO BANK N.V.
By:__________________________________
Name:________________________________
Title:_______________________________
By:__________________________________
Name:________________________________
Title:_______________________________
TOTAL RENAL CARE HOLDINGS, INC.
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
ALLIED IRISH BANKS, P.L.C.,
CAYMAN ISLANDS BRANCH
By:__________________________________
Name:________________________________
Title:_______________________________
By:__________________________________
Name:________________________________
Title:_______________________________
TOTAL RENAL CARE HOLDINGS, INC.
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
BANCO ESPIRITO SANTO E COMERCIAL DE
LISBOA, NASSAU BRANCH
By:__________________________________
Name:________________________________
Title:_______________________________
By:__________________________________
Name:________________________________
Title:_______________________________
TOTAL RENAL CARE HOLDINGS, INC.
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
BANK LEUMI TRUST COMPANY OF NEW
YORK
By:__________________________________
Name:________________________________
Title:_______________________________
By:__________________________________
Name:________________________________
Title:_______________________________
TOTAL RENAL CARE HOLDINGS, INC.
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
THE BANK OF NOVA SCOTIA
By:__________________________________
Name:________________________________
Title:_______________________________
TOTAL RENAL CARE HOLDINGS, INC.
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
BANQUE NATIONALE DE PARIS
By:__________________________________
Name:________________________________
Title:_______________________________
By:__________________________________
Name:________________________________
Title:_______________________________
TOTAL RENAL CARE HOLDINGS, INC.
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
BANQUE PARIBAS
By:__________________________________
Name:________________________________
Title:_______________________________
By:__________________________________
Name:________________________________
Title:_______________________________
TOTAL RENAL CARE HOLDINGS, INC.
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
BHF BANK AKTIENGESELLSCHAFT
By:__________________________________
Name:________________________________
Title:_______________________________
TOTAL RENAL CARE HOLDINGS, INC.
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
CITY NATIONAL BANK
By:__________________________________
Name:________________________________
Title:_______________________________
TOTAL RENAL CARE HOLDINGS, INC.
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
CREDIT LYONNAIS NEW YORK BRANCH
By:__________________________________
Name:________________________________
Title:_______________________________
TOTAL RENAL CARE HOLDINGS, INC.
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
CREDITANSTALT CORPORATE FINANCE,
INC.
By:__________________________________
Name:________________________________
Title:_______________________________
TOTAL RENAL CARE HOLDINGS, INC.
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
DEUTSCHE BANK AG, NEW YORK AND/OR
CAYMAN ISLANDS BRANCHES
By:__________________________________
Name:________________________________
Title:_______________________________
By:__________________________________
Name:________________________________
Title:_______________________________
TOTAL RENAL CARE HOLDINGS, INC.
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
DRESDNER BANK AG, NEW YORK BRANCH
AND GRAND CAYMAN BRANCH
By:__________________________________
Name:________________________________
Title:_______________________________
By:__________________________________
Name:________________________________
Title:_______________________________
TOTAL RENAL CARE HOLDINGS, INC.
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
FLEET NATIONAL BANK
By:__________________________________
Name:________________________________
Title:_______________________________
TOTAL RENAL CARE HOLDINGS, INC.
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
THE FUJI BANK, LIMITED
By:__________________________________
Name:________________________________
Title:_______________________________
TOTAL RENAL CARE HOLDINGS, INC.
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
HIBERNIA NATIONAL BANK
By:__________________________________
Name:________________________________
Title:_______________________________
TOTAL RENAL CARE HOLDINGS, INC.
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
THE INDUSTRIAL BANK OF JAPAN, LTD.,
LOS ANGELES AGENCY
By:__________________________________
Name:________________________________
Title:_______________________________
TOTAL RENAL CARE HOLDINGS, INC.
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
KREDIETBANK N.V.
By:__________________________________
Name:________________________________
Title:_______________________________
By:__________________________________
Name:________________________________
Title:_______________________________
TOTAL RENAL CARE HOLDINGS, INC.
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
LONG TERM CREDIT BANK OF JAPAN, LTD.
By:__________________________________
Name:________________________________
Title:_______________________________
TOTAL RENAL CARE HOLDINGS, INC.
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
MELLON BANK, N.A.
By:__________________________________
Name:________________________________
Title:_______________________________
TOTAL RENAL CARE HOLDINGS, INC.
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
MICHIGAN NATIONAL BANK
By:__________________________________
Name:________________________________
Title:_______________________________
TOTAL RENAL CARE HOLDINGS, INC.
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
THE MITSUBISHI TRUST AND BANKING
CORPORATION
By:__________________________________
Name:________________________________
Title:_______________________________
TOTAL RENAL CARE HOLDINGS, INC.
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
NATIONAL CITY BANK OF KENTUCKY
By:__________________________________
Name:________________________________
Title:_______________________________
TOTAL RENAL CARE HOLDINGS, INC.
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
COOPERATIEVE CENTRALE
RAIFFEISEN - BOERENLEENBANK B.A,
"RABOBANK NEDERLAND", NEW YORK
BRANCH
By:__________________________________
Name:________________________________
Title:_______________________________
By:__________________________________
Name:________________________________
Title:_______________________________
TOTAL RENAL CARE HOLDINGS, INC.
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
ROYAL BANK OF CANADA
By:__________________________________
Name:________________________________
Title:_______________________________
TOTAL RENAL CARE HOLDINGS, INC.
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
THE ROYAL BANK OF SCOTLAND plc
By:__________________________________
Name:________________________________
Title:_______________________________
TOTAL RENAL CARE HOLDINGS, INC.
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
THE SANWA BANK, LIMITED
By:__________________________________
Name:________________________________
Title:_______________________________
TOTAL RENAL CARE HOLDINGS, INC.
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
SOCIETE GENERALE
By:__________________________________
Name:________________________________
Title:_______________________________
TOTAL RENAL CARE HOLDINGS, INC.
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
THE SUMITOMO TRUST & BANKING CO., LTD.,
NEW YORK BRANCH
By:__________________________________
Name:________________________________
Title:_______________________________
TOTAL RENAL CARE HOLDINGS, INC.
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
SUNTRUST BANK, NASHVILLE, N.A.
By:__________________________________
Name:________________________________
Title:_______________________________
TOTAL RENAL CARE HOLDINGS, INC.
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
THE TOKAI BANK, LIMITED
By:__________________________________
Name:________________________________
Title:_______________________________
TOTAL RENAL CARE HOLDINGS, INC.
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
THE TOYO TRUST & BANKING CO., LTD.,
Los Angeles Agency
By:__________________________________
Name:________________________________
Title:_______________________________
TOTAL RENAL CARE HOLDINGS, INC.
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
UNION BANK OF CALIFORNIA, N.A.
By:__________________________________
Name:________________________________
Title:_______________________________
TOTAL RENAL CARE HOLDINGS, INC.
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
U.S. BANK NATIONAL ASSOCIATION
By:__________________________________
Name:________________________________
Title:_______________________________