EXHIBIT 4.1
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AMENDED AND RESTATED
CREDIT AGREEMENT
Dated as of February 21, 2003
among
FRESENIUS MEDICAL CARE AG,
FRESENIUS MEDICAL CARE HOLDINGS, INC.
and the other Borrowers and Guarantors identified herein,
BANK OF AMERICA, N.A.,
as Administrative Agent,
CREDIT SUISSE FIRST BOSTON,
acting through its Cayman Islands Branch,
and
DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN BRANCHES,
as Co-Documentation Agents,
JPMORGAN CHASE BANK
and
THE BANK OF NOVA SCOTIA,
as Co-Syndication Agents
and
THE LENDERS PARTY HERETO
BANC OF AMERICA SECURITIES LLC,
CREDIT SUISSE FIRST BOSTON,
acting through its Cayman Islands Branch
and
DRESDNER KLEINWORT XXXXXXXXXXX SECURITIES LLC,
as Joint Lead Arrangers and Book Managers
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TABLE OF CONTENTS
Article and Section Page
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ARTICLE I DEFINITIONS AND ACCOUNTING TERMS...................................................................... 1
1.01 Defined Terms................................................................................. 1
1.02 Interpretive Provisions....................................................................... 31
1.03 Accounting Terms.............................................................................. 31
1.04 Rounding...................................................................................... 32
1.05 References to Agreements and Laws............................................................. 32
1.06 Times of Day.................................................................................. 32
1.07 Exchange Rates; Currency Equivalents.......................................................... 32
1.08 Additional Foreign Currencies................................................................. 33
1.09 Redenomination of Certain Foreign Currencies.................................................. 33
ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS............................................................... 33
2.01 Commitments................................................................................... 33
2.02 Borrowings, Conversions and Continuations of Loans............................................ 36
2.03 Interest...................................................................................... 38
2.04 Fees.......................................................................................... 38
2.05 Repayment of Loans............................................................................ 39
2.06 Prepayments................................................................................... 40
2.07 Termination or Reduction of Commitments....................................................... 42
2.08 Additional Provisions with respect to Letters of Credit....................................... 43
2.09 Additional Provisions relating to Domestic Swing Line Loans................................... 49
2.10 Additional Provisions relating to Foreign Swing Line Loans.................................... 51
2.11 Additional Provisions relating to Competitive Revolving Loans................................. 53
2.12 Computation of Interest and Fees.............................................................. 56
2.13 Evidence of Debt.............................................................................. 56
2.14 Payments Generally............................................................................ 57
2.15 Sharing of Payments........................................................................... 58
2.16 Designated Borrowers.......................................................................... 59
2.17 Removal of Borrowers.......................................................................... 59
ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY............................................................. 60
3.01 Taxes......................................................................................... 60
3.02 Illegality.................................................................................... 61
3.03 Inability to Determine Rates.................................................................. 61
3.04 Increased Cost and Reduced Return; Capital Adequacy; Reserves on Eurocurrency Loans........... 61
3.05 Funding Losses................................................................................ 63
3.06 Matters Applicable to all Requests for Compensation........................................... 63
3.07 Survival...................................................................................... 63
ARTICLE IV GUARANTY............................................................................................. 63
4.01 The Guaranty.................................................................................. 63
4.02 Obligations Unconditional..................................................................... 65
4.03 Reinstatement................................................................................. 66
4.04 Certain Waivers............................................................................... 66
4.05 Remedies...................................................................................... 66
4.06 Rights of Contribution........................................................................ 67
4.07 Guaranty of Payment; Continuing Guaranty...................................................... 67
ARTICLE V CONDITIONS PRECEDENT TO CREDIT EXTENSIONS............................................................. 68
5.01 Conditions of Initial Credit Extensions....................................................... 68
5.02 Conditions to all Credit Extensions........................................................... 69
ARTICLE VI REPRESENTATIONS AND WARRANTIES....................................................................... 70
6.01 Existence, Qualification and Power; Compliance with Laws...................................... 70
6.02 Authorization; No Contravention............................................................... 70
6.03 Governmental Authorization; Other Consents.................................................... 70
6.04 Binding Effect................................................................................ 70
6.05 Financial Statements.......................................................................... 71
6.06 No Material Adverse Effect.................................................................... 71
6.07 Litigation.................................................................................... 71
6.08 No Default.................................................................................... 71
6.09 Ownership of Property; Liens.................................................................. 71
6.10 Environmental Compliance...................................................................... 72
6.11 Insurance..................................................................................... 72
6.12 Taxes......................................................................................... 72
6.13 ERISA Compliance.............................................................................. 72
6.14 Jurisdiction of Organization, Capital Stock and Ownership of Credit Parties................... 72
6.15 Margin Regulations; Investment Company Act; Public Utility Holding Company Act................ 73
6.16 Disclosure.................................................................................... 73
6.17 Compliance with Laws.......................................................................... 73
6.18 Intellectual Property; Licenses, Etc.......................................................... 73
6.19 Pledge Agreements............................................................................. 74
6.20 Reimbursement from Medical Reimbursement Programs............................................. 74
ARTICLE VII AFFIRMATIVE COVENANTS.............................................................................. 74
7.01 Financial Statements.......................................................................... 74
7.02 Certificates; Other Information............................................................... 75
7.03 Notification.................................................................................. 76
7.04 Payment of Obligations........................................................................ 77
7.05 Preservation of Existence, Etc................................................................ 77
7.06 Maintenance of Properties..................................................................... 77
7.07 Maintenance of Insurance...................................................................... 77
7.08 Compliance with Laws.......................................................................... 77
7.09 Books and Records............................................................................. 78
7.10 Inspection Rights............................................................................. 78
7.11 Use of Proceeds............................................................................... 78
7.12 Joinder of Additional Guarantors.............................................................. 78
7.13 Pledge of Capital Stock....................................................................... 79
7.14 Pledge of Intercompany Notes Evidencing Loans and Advances.................................... 79
7.15 Ownership..................................................................................... 79
ARTICLE VIII NEGATIVE COVENANTS................................................................................. 79
8.01 Indebtedness.................................................................................. 79
8.02 Liens......................................................................................... 81
8.03 Investments................................................................................... 83
8.04 Merger and Consolidation...................................................................... 84
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8.05 Dispositions.................................................................................. 85
8.06 Restricted Payments........................................................................... 85
8.07 Prepayment of Other Subordinated Debt......................................................... 85
8.08 Change in Nature of Business.................................................................. 86
8.09 Transactions with Affiliates.................................................................. 86
8.10 No Further Negative Pledges................................................................... 86
8.11 Use of Proceeds............................................................................... 86
8.12 Fiscal Year................................................................................... 86
8.13 Financial Covenants........................................................................... 86
ARTICLE IX EVENTS OF DEFAULT AND REMEDIES...................................................................... 87
9.01 Events of Default............................................................................. 87
9.02 Remedies Upon Event of Default................................................................ 89
9.03 Application of Funds.......................................................................... 90
ARTICLE X ADMINISTRATIVE AGENT................................................................................. 91
10.01 Appointment and Authorization of Administrative Agent and Collateral Agent.................... 91
10.02 Delegation of Duties.......................................................................... 91
10.03 Liability of Administrative Agent............................................................. 92
10.04 Reliance by Administrative Agent.............................................................. 92
10.05 Notice of Default............................................................................. 92
10.06 Credit Decision; Disclosure of Information by Administrative Agent............................ 92
10.07 Indemnification of Administrative Agent....................................................... 93
10.08 Administrative Agent in its Individual Capacity............................................... 93
10.09 Successor Administrative Agent................................................................ 94
10.10 Administrative Agent May File Proofs of Claim................................................. 94
10.11 Collateral and Guaranty Matters............................................................... 95
10.12 Other Agents; Arrangers and Managers.......................................................... 95
ARTICLE XI MISCELLANEOUS....................................................................................... 95
11.01 Amendments, Etc............................................................................... 95
11.02 Notices and Other Communications; Facsimile Copies............................................ 97
11.03 No Waiver; Cumulative Remedies................................................................ 98
11.04 Attorney Costs and Expenses................................................................... 98
11.05 Indemnification by the Borrowers.............................................................. 99
11.06 Payments Set Aside............................................................................ 99
11.07 Successors and Assigns........................................................................ 100
11.08 Confidentiality............................................................................... 102
11.09 Set-off....................................................................................... 103
11.10 Interest Rate Limitation...................................................................... 104
11.11 Counterparts.................................................................................. 104
11.12 Integration; Amendment and Restatement........................................................ 104
11.13 Survival of Representations and Warranties.................................................... 104
11.14 Severability.................................................................................. 104
11.15 Tax Forms..................................................................................... 105
11.16 Replacement of Lenders........................................................................ 106
11.17 Source of Funds............................................................................... 107
11.18 Nature of Obligations of the Borrowers........................................................ 107
11.19 Release....................................................................................... 107
11.20 Judgment Currency............................................................................. 108
11.21 Reallocation of Commitments................................................................... 108
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11.22 Power of Attorney............................................................................. 109
11.23 GOVERNING LAW................................................................................. 109
11.24 WAIVER OF RIGHT TO TRIAL BY JURY.............................................................. 110
11.25 Entire Agreement.............................................................................. 110
11.26 Conflict...................................................................................... 110
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SCHEDULES
2.01 Commitments and Commitment Percentages
2.03 Mandatory Cost Rate
2.08 Existing Letters of Credit
6.14 Credit Party Information
8.01 Existing Indebtedness
8.02 Existing Liens
8.03 Existing Investments
8.06 Restricted Payments
8.09 Transactions with Affiliates
11.02 Notice Addresses
EXHIBITS
A-1 Form of Loan Notice
A-2 Form of Domestic Swing Line Loan Notice
A-3 Form of Foreign Swing Line Loan Notice
B-1 Form of Competitive Revolving Loan Bid Request
B-2 Form of Competitive Bid
C-1 Form of Revolving Note
C-2 Form of Tranche A Term Note
C-3 Form of Tranche B Term Note
D Form of Compliance Certificate
E Form of Borrower Joinder Agreement
F Form of Guarantor Joinder Agreement
G Form of Assignment and Assumption Agreement
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AMENDED AND RESTATED
CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT ("Credit Agreement") is
entered into as of February 21, 2003, among FRESENIUS MEDICAL CARE AG, a German
corporation ("FMCAG"), FRESENIUS MEDICAL CARE HOLDINGS, INC., a New York
corporation ("FMCH"), the other Borrowers identified herein, the Guarantors
identified herein, the Lenders party hereto and BANK OF AMERICA, N.A., as
Administrative Agent.
WHEREAS, a revolving credit and term loan facility (the "Existing
Credit Facility") was established in favor of National Medical Care, Inc., a
Delaware corporation ("NMC") and certain of its Subsidiaries and Affiliates
pursuant to the terms of that credit agreement dated as of September 27, 1996
(as amended and modified through the Closing Date, the "Existing Credit
Agreement") among NMC, certain of its Subsidiaries and Affiliates, the lenders
party thereto and NationsBank, N.A. (now known as Bank of America, N.A.), as
agent for the lenders thereunder;
WHEREAS, NMC and its Subsidiaries and Affiliates party to the Existing
Credit Agreement have requested certain modifications to the Existing Credit
Facility;
WHEREAS, the Lenders have agreed to the requested modifications on the
terms and conditions provided herein;
WHEREAS, this Credit Agreement is given in amendment to, restatement of
and substitution for the Existing Credit Agreement;
NOW, THEREFORE, in consideration of these premises and the mutual
covenants and agreements contained herein, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01 Defined Terms. As used in this Credit Agreement, the following
terms shall have the meanings set forth below:
"Absolute Rate" means a fixed rate of interest expressed in multiples
of 1/100th of one basis point.
"Absolute Rate Loan" means a Competitive Revolving Loan that bears
interest at a rate determined with reference to an Absolute Rate.
"Acquisition" means the purchase or acquisition by any Person of (a)
more than 50% of the Capital Stock of another Person (other than in respect of a
Person that is already a member of the Consolidated Group) with ordinary voting
power or (b) all or any substantial portion of the property (other than Capital
Stock) of another such Person, whether or not involving a merger or
consolidation with such other Person.
"Administrative Agent" means Bank of America in its capacity as
administrative agent under any of the Credit Documents, or any successor
administrative agent.
"Administrative Agent's Office" means the Administrative Agent's
address and, as appropriate, account as set forth on Schedule 11.02, or such
other address or account as the Administrative Agent may from time to time
notify FMCAG, FMCH and the Lenders.
"Administrative Questionnaire" means an Administrative Questionnaire in
a form supplied by the Administrative Agent.
"Affiliate" means, with respect to any Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with such other Person.
"AG Debt" shall have the meaning provided in Section 8.01(k).
"Agent-Related Persons" means the Administrative Agent, together with
its Affiliates (including, in the case of Bank of America in its capacity as the
Administrative Agent, BAS), and the officers, directors, employees, agents and
attorneys-in-fact of such Persons and Affiliates.
"Aggregate Commitments" means the Commitments of all the Lenders.
"Aggregate Foreign Revolving Committed Amount" shall have the meaning
provided in Section 2.01(a).
"Aggregate Revolving Commitments" means the Revolving Commitments of
all the Lenders.
"Aggregate Revolving Committed Amount" shall have the meaning provided
in Section 2.01(a).
"Alternative Foreign Currency" means any foreign currency that is not
Dollars or Available Foreign Currency.
"Applicable Currency" means Dollars or the applicable Foreign Currency.
"Applicable Percentage" means the following percentages per annum,
based on the Consolidated Leverage Ratio as set forth in the most recent
Compliance Certificate received by the Administrative Agent pursuant to Section
7.02(b):
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Revolving Loans (including L/C Obligations) and
Tranche A Term Loan Tranche B Term Loan
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Eurocurrency Rate
Pricing Consolidated Leverage Loans and Letter of Base Rate Commitment Eurocurrency Base Rate
Level Ratio Credit Fee Loans Fee Rate Loans Loans
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* >*:* *% *% *% *% *%
* > *:* but < or = *:* *% *% *% *% *%
* > *:* but < or = *:* *% *% *% *% *%
* > *:* but < or = *:* *% *% *% *% *%
* < or = *:* *% *% *% *% *%
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---------------
* Confidential treatment has been requested as to the omitted portions of
this document in accordance with the applicable rules of the Securities and
Exchange Commission.
2
Any increase or decrease in the Applicable Percentage resulting from a change in
the Consolidated Leverage Ratio shall become effective as of the date two
Business Days immediately following the date a Compliance Certificate is
delivered pursuant to Section 7.02(b); provided, however, that if a Compliance
Certificate is not delivered when due in accordance therewith, then Pricing
Level I shall apply as of the first Business Day after the date on which such
Compliance Certificate was required to have been delivered until the first
Business Day immediately following the date such Compliance Certificate is
delivered. With respect to Revolving Loans (including L/C Obligations) and the
Tranche A Term Loan, the Applicable Percentage in effect for a period of 180
days from the Closing Date shall be determined based upon Pricing Level I, and
shall thereupon be based on the Consolidated Leverage Ratio indicated in the
most recent Compliance Certificate that shall have been delivered. With respect
to the Tranche B Term Loan, the Applicable Percentage in effect for a period of
two years from the Closing Date shall be determined based upon Pricing Level I,
and shall thereupon be based on the Consolidated Leverage Ratio indicated in the
most recent Compliance Certificate that shall have been delivered.
Determinations by the Administrative Agent of the appropriate Pricing Level
shall be conclusive absent manifest error.
"Applicable Time" means, with respect to borrowings and payments in
Foreign Currencies, the local times in the place of settlement for such Foreign
Currencies as may be determined by the Administrative Agent or, if applicable,
the Competitive Bid Agent, to be necessary for timely settlement on the relevant
date in accordance with normal banking procedures in the place of payment as
previously notified in writing to FMCAG and FMCH.
"Applicant Borrower" shall have the meaning provided in Section 2.16.
"Approved Bank" means (a) any Lender, (b) any domestic commercial bank
of recognized standing having capital and surplus in excess of $500 million or
(c) any bank whose short-term commercial paper rating from S&P is at least A-1
or the equivalent thereof or from Xxxxx'x is at least P-1 or the equivalent
thereof.
"Approved Fund" means any Fund that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.
"Approved Jurisdiction" means Australia, Canada, France, Germany,
Japan, Luxembourg, Switzerland, United Kingdom, any other Participating Member
State as of the Closing Date, any jurisdiction of organization of a Domestic
Subsidiary and any other jurisdiction approved by the Required Lenders.
"Arrangers" means BAS, CSFB, and Dresdner Kleinwort Xxxxxxxxxxx
Securities LLC, each in its capacity as a joint lead arranger and book manager.
"Assigned Interest" means, with respect to any Selling Lender, the
remainder of (a) the amount and percentage interest of the rights and
obligations of such Selling Lender under the Existing Credit Agreement
immediately prior to the effectiveness of this Credit Agreement less (b) the
amount and percentage interest of the rights and obligations of such Selling
Lender on the Closing Date immediately following the effectiveness of this
Credit Agreement.
"Assignment and Assumption Agreement" means an Assignment and
Assumption Agreement substantially in the form of Exhibit G.
"Attorney Costs" means and includes all reasonable fees, expenses and
disbursements of any law firm or other external counsel.
3
"Attributable Principal Amount" means (a) in the case of capital
leases, the amount of capital lease obligations determined in accordance with
GAAP, (b) in the case of Synthetic Leases, an amount determined by
capitalization of the remaining lease payments thereunder as if it were a
capital lease determined in accordance with GAAP, (c) in the case of
Securitization Transactions, the outstanding principal amount of such financing,
after taking into account reserve amounts and making appropriate adjustments,
determined by the Administrative Agent after consultation with the Lenders and
(d) in the case of Sale and Leaseback Transactions, the present value
(discounted in accordance with GAAP at the debt rate implied in the applicable
lease) of the obligations of the lessee for rental payments during the term of
such lease).
"Available Foreign Currency" means (a) Euros, (b) British pounds
sterling, (c) Swiss francs, (d) Japanese yen and (e) any other lawful currency
approved by all the Revolving Lenders in accordance with Section 1.08, provided
in each case that such currency is freely available, freely transferable and
freely convertible into Dollars.
"Bank of America" means Bank of America, N.A., together with its
successors.
"BAS" means Banc of America Securities LLC, together with its
successors.
"Base Rate" means for any day a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest
in effect for such day as publicly announced from time to time by Bank of
America as its "prime rate." The "prime rate" is a rate set by Bank of America
based upon various factors including Bank of America's costs and desired return,
general economic conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above, or below such announced
rate. Any change in the prime rate announced by Bank of America shall take
effect at the opening of business on the day specified in the public
announcement of such change.
"Base Rate Loan" means a Loan that bears interest based on the Base
Rate. All Base Rate Loans shall be denominated in Dollars.
"Bid Borrowing" means a borrowing consisting of simultaneous
Competitive Revolving Loans of the same Type from each of the Revolving Lenders
whose offer to make one or more Competitive Revolving Loans as part of such
borrowing has been accepted under the auction bidding procedures described in
Section 2.11.
"Bid Request" means a written request for one or more Competitive
Revolving Loans substantially in the form of Exhibit B-1.
"Borrower Joinder Agreement" means a Borrower Joinder Agreement
substantially in the form of Exhibit E.
"Borrowers" means (a) FMCAG, (b) FMCH, (c) FMCF-II and (d) the
Designated Borrowers, in each case together with their successors and permitted
assigns and subject to the provisions of Section 2.17.
"Borrowing" means (a) a borrowing consisting of simultaneous Committed
Loans of the same Type, in the same currency and having the same Interest
Period, (b) a Bid Borrowing or (c) a Swing Line Borrowing, as appropriate.
4
"Business Day" means any day other than a Saturday, Sunday or other day
on which commercial banks are authorized to close under the Laws of, or are in
fact closed in, the state where the Administrative Agent's Lending Office with
respect to Obligations denominated in Dollars is located or New York and (a) if
such day relates to any Eurocurrency Rate Loan denominated in a currency other
than Euro, "Business Day" means any such day on which dealings in deposits in
the relevant currency are conducted by and between banks in the London, England
or other applicable offshore interbank market for such currency, (b) if such day
relates to any Eurocurrency Rate Loan denominated in Euro, "Business Day" means
a TARGET Day or (c) if such day relates to any Foreign Swing Line Loan,
"Business Day" means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the Laws of, or are in fact
closed in, the jurisdiction where the Foreign Swing Line Lender's Lending Office
with respect to Foreign Swing Line Loans is located.
"Capital Stock" means (a) in the case of a corporation, capital stock,
(b) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
capital stock, (c) in the case of a partnership, partnership interests (whether
general or limited), (d) in the case of a limited liability company, membership
interests and (e) any other interest or participation that confers on a Person
the right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"Cash Collateralize" means to pledge and deposit with or deliver to the
Collateral Agent, for the benefit of the L/C Issuer and the Lenders, as
collateral for the L/C Obligations, cash or deposit account balances pursuant to
documentation in form and substance reasonably satisfactory to the Collateral
Agent and the L/C Issuer.
"Cash Equivalents" means (a) securities issued or directly and fully
guaranteed or insured by (i) the United States or any agency or instrumentality
thereof (provided that the full faith and credit of the United States is pledged
in support thereof) or (ii) the governments of Germany or the United Kingdom, in
each case having maturities of not more than twelve months from the date of
acquisition, (b) Dollar or Available Foreign Currency denominated time deposits
and certificates of deposit of any Approved Bank, in each case with maturities
of not more than 270 days from the date of acquisition, (c) commercial paper and
variable or fixed rate notes issued by any Approved Bank (or by the parent
company thereof) or any variable rate notes issued by, or guaranteed by, any
domestic corporation rated A-1 (or the equivalent thereof) or better by S&P or
P-1 (or the equivalent thereof) or better by Xxxxx'x and maturing within six
months of the date of acquisition, (d) repurchase agreements entered into by any
Person with a bank or trust company (including any of the Lenders) or recognized
securities dealer having capital and surplus in excess of $500 million for
direct obligations issued by or fully guaranteed by the United States in which
such Person shall have a perfected first priority security interest (subject to
no other Liens) and having, on the date of purchase thereof, a fair market value
of at least 100% of the amount of the repurchase obligations and (e) Investments
(classified in accordance with GAAP as current assets) in money market
investment programs registered under the Investment Company Act of 1940, as
amended, that are administered by reputable financial institutions having
capital of at least $500 million and the portfolios of which are limited to
Investments of the character described in the foregoing subclauses hereof.
"CHAMPUS" means the United States Department of Defense Civilian Health
and Medical Program of the Uniformed Services or any successor thereto,
including TRICARE.
"Change of Control" means any transaction or series of transactions in
which any "person" or "group" (within the meaning of Rule 13d-5 under the
Securities Exchange Act of 1934, and the rules and regulations thereunder (the
"Exchange Act") and Section 13(d) and 14(d) of the Exchange Act) other than
Fresenius AG and its subsidiaries acquires all or substantially all of FMCAG's
assets or becomes the direct or indirect "beneficial owner" (as defined in Rule
13d-3 under the Exchange Act), by way of
5
merger, consolidation, other business combination or otherwise, of greater than
the Change of Control Percentage of the total voting power (on a fully diluted
basis as if all convertible securities had been converted and all options and
warrants had been exercised) entitled to vote in the election of directors of
FMCAG or the surviving Person (if other than FMCAG).
"Change of Control Percentage" means the greater of (a) 35% or (b) the
percentage of Capital Stock with ordinary voting power in FMCAG held and owned
by Fresenius AG.
"CIA" means the Corporate Integrity Agreement dated as of January 18,
2000 between the OIG and FMCH, as in effect from time to time.
"Closing Date" means the date hereof.
"CMS" means the Centers for Medicare and Medicaid Services, any
successor thereof and any predecessor thereof, including the United States
Health Care Financing Administration.
"Co-Documentation Agents" means CSFB, and Dresdner, each in their
capacity as a co-documentation agent hereunder, and their successors in such
capacity.
"Collateral" means a collective reference to the collateral that is
identified in, and at any time will be covered by, the Collateral Documents.
"Collateral Agent" means Bank of America in its capacity as collateral
agent for the Lenders under the Collateral Documents, together with its
successors and assigns in such capacity.
"Collateral Documents" means a collective reference to the Pledge
Agreements.
"Commitment" means the Revolving Commitment, the L/C Commitment, the
Swing Line Commitment and the Term Loan Commitment.
"Commitment Period" means the period from and including the Closing
Date to (i) in the case of Revolving Loans and Swing Line Loans, the Termination
Date, and (ii) in the case of Letters of Credit, the Letter of Credit Expiration
Date, or, in any case, any earlier date on which the Revolving Commitments shall
have been terminated.
"Committed Loans" means Committed Revolving Loans and the Term Loans.
"Committed Revolving Loans" shall have the meaning provided in Section
2.01(a).
"Committed Revolving Obligations" means Committed Revolving Loans, L/C
Obligations, Domestic Swing Line Loans and Shared Foreign Swing Line Loans.
"Competitive Bid" means a written offer by a Revolving Lender to make
one or more Competitive Revolving Loans, substantially in the form of Exhibit
B-2, duly completed and signed by a Revolving Lender.
"Competitive Bid Agent" means (a) any Lender that agrees to act as
Competitive Bid Agent or any successor thereto in such capacity or (b) if at any
time no Lender is willing or available to serve in such capacity, FMCH.
6
"Competitive Revolving Loan Maximum Amount" shall have the meaning
provided in Section 2.01(e).
"Competitive Revolving Loans" shall have the meaning provided in
Section 2.01(e).
"Compliance Certificate" means a certificate substantially in the form
of Exhibit D.
"Consolidated Adjusted EBITDAR" means, for any period for the
Consolidated Group, the sum of (i) Consolidated EBITDA, plus (ii) rent expense
under operating leases, minus (iii) Consolidated Capital Expenditures (other
than Consolidated Capital Expenditures (A) in connection with a Sale and
Leaseback Transaction permitted hereunder, (B) financed pursuant to a
transaction permitted under Section 8.01(e), or (C) arising from or constituting
part of a Permitted Acquisition), in each case on a consolidated basis
determined in accordance with GAAP. Except as otherwise expressly provided, the
applicable period shall be the four consecutive fiscal quarters ending as of the
date of determination.
"Consolidated Capital Expenditures" means, for any period for the
Consolidated Group, without duplication, all cash expenditures during such
period that, in accordance with GAAP, are or should be included in additions to
property, plant and equipment or similar items reflected in the consolidated
statement of cash flows for such period; provided, that Consolidated Capital
Expenditures shall not include, for purposes hereof, expenditures of proceeds of
insurance settlements, condemnation awards and other settlements in respect of
lost, destroyed, damaged or condemned assets, equipment or other property to the
extent such expenditures are made to replace or repair such lost, destroyed,
damaged or condemned assets, equipment or other property or otherwise to acquire
assets or properties useful in the business of the members of the Consolidated
Group.
"Consolidated EBITDA" means, for any period for the Consolidated Group,
the sum of (i) Consolidated Net Income, plus (ii) to the extent deducted in
determining net income, (A) Consolidated Interest Expense, (B) tax expense based
on income and (C) depreciation, amortization and other non-cash charges, in each
case on a consolidated basis determined in accordance with GAAP. Except as
otherwise expressly provided, the applicable period shall be the four
consecutive fiscal quarters ending as of the date of determination.
"Consolidated Fixed Charge Coverage Ratio" means, as of the end of each
fiscal quarter for the period of four consecutive fiscal quarters then ending,
the ratio of (i) Consolidated Adjusted EBITDAR to (ii) Consolidated Fixed
Charges.
"Consolidated Fixed Charges" means, for any period for the Consolidated
Group, the sum of (i) Consolidated Interest Expense, plus (ii) rent expense
under operating leases, plus (iii) scheduled maturities of Consolidated Funded
Debt (excluding, for purposes hereof, scheduled maturities and amortization of
the term loans under the Existing Credit Agreement or the AG Debt and the final
bullet repayments relating to the Schuldscheindarlehen, the Revolving Loans and
the Tranche A Term Loan) paid during the applicable period (provided that
refinancings and extensions shall not be considered payments or repayments for
purposes hereof), plus (iv) without duplication, Restricted Payments made by
FMCAG and payments by members of the Consolidated Group on any Subordinated Debt
(other than the AG Debt) and Trust Preferred Securities, plus (v) cash tax
payments based on income during the applicable period; but excluding (A)
repurchases of Trust Preferred Securities in an aggregate amount during the term
of this Credit Agreement not to exceed $50 million by members of the
Consolidated Group, provided that the Consolidated Senior Leverage Ratio shall
be less than 2.0:1.0 at the time of repurchase, (B) repurchases of preferred
shares of FMCH in a principal amount not to exceed $20 million in the aggregate
during the term of this Credit Agreement (together with accrued dividends
thereon), (C) any amounts paid during such period as a result of the audit of
the German tax liability of FMCAG in
7
respect of deductions taken in respect of the writing down of FMCAG's investment
in certain subsidiaries for German tax purposes only as of December 31, 1997, to
the extent accrued as of or before December 31, 2002, adjusted for currency
fluctuations, and interest thereon, and (D) any payments made in connection with
non-recurring charges taken during the year ending December 31, 2001 by members
of the Consolidated Group in an aggregate amount not to exceed $258 million with
respect to (1) any claims of FMCAG or any of its Subsidiaries against WRG-Conn
or its Affiliates, successors or assigns relating to the Reorganization or
arising from the Reorganization Documents, (2) any other costs relating directly
or indirectly, or arising from, the Reorganization or the conduct of the
business of FMCH or to its Subsidiaries before the consummation of the
Reorganization, in each case, together with related costs and expenses, or (3)
any amounts payable with respect to the litigation and other disputes with
insurance companies relating to the business of FMCH and its Subsidiaries in the
period before the consummation of the Reorganization, which relate to the
practices that were the subject of investigations by the OIG and other
Governmental Authorities, and any related costs or expenses and any accounting
charges taken by any member of the Consolidated Group as a result thereof or
relating thereto or to the settlement of such disputes, in each case on a
consolidated basis determined in accordance with GAAP. Except as otherwise
expressly provided, the applicable period shall be the four consecutive fiscal
quarters ending as of the date of determination.
"Consolidated Funded Debt" means, for the Consolidated Group, Funded
Debt determined on a consolidated basis in accordance with GAAP, but excluding
for purposes hereof Indebtedness in respect of convertible bonds referred to in
Section 8.03(g).
"Consolidated Group" means FMCAG and its Subsidiaries.
"Consolidated Interest Expense" means, for any period for the
Consolidated Group, all interest expense, including the amortization of debt
discount and premium, the interest component under Capital Leases and the
implied interest component under Securitization Transactions, in each case on a
consolidated basis determined in accordance with GAAP. Except as expressly
provided otherwise, the applicable period shall be the four consecutive fiscal
quarters ending as of the date of determination.
"Consolidated Leverage Ratio" means, as of the last day of each fiscal
quarter, the ratio of (i) the sum of Consolidated Funded Debt on such day minus
an amount up to $30 million equal to cash and cash equivalents held by members
of the Consolidated Group with Lenders on such day, to (ii) Consolidated EBITDA
for the period of four consecutive fiscal quarters ending on such day.
"Consolidated Net Income" means, for any period for the Consolidated
Group, net income (or loss) determined on a consolidated basis in accordance
with GAAP, but excluding for purposes of determining the Consolidated Leverage
Ratio and the Consolidated Fixed Charge Coverage Ratio, extraordinary gains and
losses and gains and losses from discontinued operations, and, in each such
case, related tax effects thereon. Except as otherwise expressly provided, the
applicable period shall be the four consecutive fiscal quarters ending as of the
date of determination.
"Consolidated Net Worth" means, as of any day for the Consolidated
Group, net worth determined in accordance with GAAP, but excluding, for purposes
hereof, (i) foreign currency translation adjustments of up to $100 million at
any time and (ii) the fair value of Swap Contracts.
"Consolidated Senior Funded Debt" means the difference of Consolidated
Funded Debt minus Consolidated Subordinated Debt.
"Consolidated Senior Leverage Ratio" means, as of the last day of each
fiscal quarter, the ratio of (i) the sum of Consolidated Senior Funded Debt
minus cash and Cash Equivalents held by members of
8
the Consolidated Group in accounts maintained with a Lender in an aggregate
amount not to exceed to $30 million, in each case on such day, to (ii)
Consolidated EBITDA for the period of four consecutive fiscal quarters ending on
such day.
"Consolidated Subordinated Debt" means, for the Consolidated Group,
Subordinated Debt determined on a consolidated basis in accordance with GAAP.
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise. Without
limiting the generality of the foregoing, a Person shall be deemed to be
Controlled by another Person if such other Person possesses, directly or
indirectly, power to vote 10% or more of the securities having ordinary voting
power for the election of directors, managing general partners or the
equivalent.
"Credit Agreement" means this Credit Agreement.
"Credit Documents" means this Credit Agreement, the Notes, the
Collateral Documents, the Fee Letter, the Letters of Credit, the Letter of
Credit Applications, the Borrower Joinder Agreements, the Guarantor Joinder
Agreements, the Parallel Debt Agreement and all other documents, instruments or
agreements from time to time executed by any Responsible Officer or duly
authorized signatory of a member of the Consolidated Group and delivered in
connection with this Credit Agreement.
"Credit Extension" means each of the following: (a) a Borrowing, (b)
the conversion or continuation of a Borrowing, and (c) an L/C Credit Extension.
"Credit Parties" means, collectively, the Borrowers and the Guarantors.
"CSFB" means Credit Suisse First Boston, acting through its Cayman
Islands Branch.
"Debt Transactions" means, with respect to any member of the
Consolidated Group, any sale, issuance or placement of Funded Debt under Section
8.01(j) (but specifically excluding any refinancing of any such Funded Debt,
unless Net Cash Proceeds are generated therefrom).
"Debtor Relief Laws" means the Bankruptcy Code of the United States,
and all other liquidation, conservatorship, bankruptcy, assignment for the
benefit of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States or other
applicable jurisdictions from time to time in effect and affecting the rights of
creditors generally.
"Default" means any event, act or condition that, with notice, the
passage of time, or both, would constitute an Event of Default.
"Default Rate" means an interest rate equal to (a) the Base Rate plus
(b) the Applicable Percentage, if any, applicable to Base Rate Loans plus (c) 2%
per annum; provided, however, that with respect to a Eurocurrency Rate Loan, the
Default Rate shall be an interest rate equal to the interest rate (including any
Applicable Percentage) otherwise applicable to such Loan plus 2% per annum, in
each case to the fullest extent permitted by applicable Laws.
9
"Defaulting Lender" means any Lender that (a) has failed to fund any
portion of the Revolving Loans, participations in L/C Obligations or
participations in Swing Line Loans required to be funded by it hereunder within
one Business Day of the date required to be funded by it hereunder and has not
cured such failure prior to the date of determination, (b) has otherwise failed
to pay over to the Administrative Agent or any other Lender any other amount
required to be paid by it hereunder within one Business Day of the date when due
and has not cured such failure prior to the date of determination, unless the
subject of a good faith dispute, or (c) has been deemed insolvent or become the
subject of a bankruptcy or insolvency proceeding.
"Departing Lender" shall mean any Person that was a Lender under the
Existing Credit Agreement immediately prior to the effectiveness of this Credit
Agreement, but will not be a Lender hereunder on the Closing Date immediately
following the effectiveness of this Credit Agreement.
"Designated Borrower" means any Applicant Borrower that becomes a
Borrower hereunder in accordance with the provisions of Section 2.16.
"Designated Borrowing Limit" means, with respect to any Primary
Borrower, the full amount of the Aggregate Revolving Committed Amount, or in the
case of any Applicant Borrower that joins as a Designated Borrower after the
Closing Date, the amount set forth as its "Designated Borrowing Limit" in the
Borrower Joinder Agreement.
"Disposition" or "Dispose" means the sale, transfer or other
disposition (including any Sale and Leaseback Transaction) of any property by
any Person, including any sale, assignment, transfer or other disposal, with or
without recourse, of any notes or accounts receivable or any rights and claims
associated therewith.
"Dollar" or "$" means the lawful currency of the United States.
"Dollar Equivalent" means, at any time, (a) with respect to any amount
denominated in Dollars, such amount, and (b) with respect to any amount
denominated in a Foreign Currency, the equivalent amount thereof in Dollars as
determined by the Administrative Agent (or, with respect to Letters of Credit,
as determined by the L/C Issuer) at such time on the basis of the Spot Rate
(determined as of the most recent Revaluation Date) for the purchase of Dollars
with such Foreign Currency.
"Domestic Credit Party" means any Credit Party that is organized under
the laws of any State of the United States or the District of Columbia.
"Domestic Subsidiary" means any Subsidiary that is organized under the
laws of any State of the United States or the District of Columbia.
"Domestic Swing Line Borrowing" means a borrowing of a Domestic Swing
Line Loan pursuant to Section 2.01(c).
"Domestic Swing Line Commitment" means, with respect to the Domestic
Swing Line Lender, the commitment of such Lender to make Domestic Swing Line
Loans hereunder, and with respect to each Revolving Lender, the commitment of
such Lender to participate in Domestic Swing Line Loans hereunder.
"Domestic Swing Line Committed Amount" shall have the meaning provided
in Section 2.01(c).
"Domestic Swing Line Lender" means Bank of America or any successor in
such capacity.
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"Domestic Swing Line Loans" shall have the meaning provided in Section
2.01(c).
"Domestic Swing Line Loan Notice" means a notice of a Domestic Swing
Line Borrowing pursuant to Section 2.09(a), which, if in writing, shall be
substantially in the form of Exhibit A-2.
"Dresdner" means Dresdner Bank AG, New York and Grand Cayman Branches.
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a Lender;
(c) an Approved Fund; and (d) any other Person (other than a natural person)
approved by (i) the Administrative Agent and the L/C Issuers and (ii) unless an
Event of Default has occurred and is continuing, FMCAG (each such approval not
to be unreasonably withheld or delayed); provided that notwithstanding the
foregoing, "Eligible Assignee" shall not include the Borrowers or any of the
Borrowers' Affiliates or Subsidiaries.
"EMU" means the economic and monetary union in accordance with the
Treaty of Rome 1957, as amended by the Single Xxxxxxxx Xxx 0000, the Maastricht
Treaty of 1992 and the Amsterdam Treaty of 1998, as amended from time to time.
"EMU Legislation" means the legislative measures of the European
Council for the introduction of, changeover to or operation of the Euro and any
related legislative measures of any Participating Member State.
"Environmental Laws" means any and all federal, state, local, and
foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or
governmental restrictions relating to pollution and the protection of the
environment or the release of any materials into the environment, including
those related to hazardous substances or wastes, air emissions and discharges to
waste or public systems.
"Equity Transaction" means, with respect to any member of the
Consolidated Group, any issuance or sale of shares of its Capital Stock, other
than an issuance (a) to a member of the Consolidated Group, (b) in connection
with a conversion of debt securities to equity, (c) in connection with the
exercise by a present or former employee, officer or director under a stock
incentive plan, stock option plan or other equity-based compensation plan or
arrangement, and (d) in connection with any Permitted Acquisition hereunder.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with any Borrower within the meaning of
Section 414(b) or (c) of the Internal Revenue Code (and Sections 414(m) and (o)
of the Internal Revenue Code for purposes of provisions relating to Section 412
of the Internal Revenue Code).
"ERISA Event" means (a) a Reportable Event with respect to a Pension
Plan; (b) a withdrawal by FMCH or any ERISA Affiliate from a Pension Plan
subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation
of operations that is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) a complete or partial withdrawal by FMCH or any ERISA Affiliate from
a Multiemployer Plan or notification to FMCH or any ERISA Affiliate that a
Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to
terminate, the treatment of a Plan amendment as a termination under Sections
4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to
terminate a Pension Plan or Multiemployer Plan; (e) an event or condition that
could reasonably be expected to constitute grounds under Section 4042 of
11
ERISA for the termination of, or the appointment of a trustee to administer, any
Pension Plan or Multiemployer Plan; or (f) the imposition of any material
liability under Title IV of ERISA, other than for PBGC premiums due but not
delinquent under Section 4007 of ERISA, upon FMCH or any ERISA Affiliate.
"Euro" or "E" means the lawful currency of the Participating Member
States adopted in accordance with the EMU Legislation.
"Eurocurrency Bid Margin" means the margin above or below the
Eurocurrency Rate to be added to or subtracted from the Eurocurrency Rate, which
margin shall be expressed in multiples of 1/100th of one basis point.
"Eurocurrency Margin Bid Loan" means a Competitive Revolving Loan that
bears interest at a rate based on the Eurocurrency Rate.
"Eurocurrency Rate" means, for any Interest Period with respect to any
Eurocurrency Rate Loan:
(a) if in relation to an advance denominated in Euros,
the interest rate appearing on the relevant Reuters screen (as of the
Closing Date, Reuters page EURIBOR 01) or if such page is not
available, Telerate screen page 248 (or any successor thereto) as an
annual interest rate, determined by the Banking Federation of the
European Union, for deposits in Euro, as of 11:00 a.m. (Brussels time)
two Business Days prior to the first day of such Interest Period, or if
in relation to an advance denominated in any other Applicable Currency,
the rate per annum equal to the rate determined by the Administrative
Agent to be the offered rate that appears on the page of the Telerate
screen (or any successor thereto) that displays an average British
Bankers Association Interest Settlement Rate for deposits in the
Applicable Currency (for delivery on the first day of such Interest
Period) with a term equivalent to such Interest Period, determined as
of approximately 11:00 a.m. (London time) two Business Days prior to
the first day of such Interest Period, or
(b) if the rate referenced in the preceding clause (a)
does not appear on such page or service or such page or service shall
not be available, the rate per annum equal to the rate determined by
the Administrative Agent to be the offered rate on such other page or
other service that displays an average British Bankers Association
Interest Settlement Rate for deposits in the Applicable Currency (for
delivery on the first day of such Interest Period) with a term
equivalent to such Interest Period, determined as of approximately
11:00 a.m. (London time) two Business Days prior to the first day of
such Interest Period, or
(c) if the rates referenced in the preceding clauses (a)
and (b) are not available, the rate per annum determined by the
Administrative Agent as the rate of interest at which deposits in the
Applicable Currency for delivery on the first day of such Interest
Period in Same Day Funds in the approximate amount of the Eurocurrency
Rate Loan being made, continued or converted by Bank of America and
with a term equivalent to such Interest Period would be offered by Bank
of America's London Branch to major banks in the London interbank
eurocurrency market at their request at approximately 11:00 a.m.
(London time) two Business Days prior to the first day of such Interest
Period;
provided in each case that, if the Borrowers request and the Administrative
Agent approves any Eurocurrency Rate Loan having an Interest Period with a
duration other than one, two, three or six months (but not longer than six
months), the applicable interest rate for such period shall be the rate
determined by the Administrative Agent by means of straight-line interpolation
of (i) the rate that would
12
be applicable for the next closest Interest Period otherwise available with a
duration shorter than the requested period and (ii) the rate that would be
applicable for the next closest Interest Period otherwise available with a
duration longer than the requested period; provided that if the requested period
extends over any year-end, the higher of the two rates will apply.
"Eurocurrency Rate Committed Loan" means a Committed Revolving Loan or
Term Loan that bears interest at a rate based on the Eurocurrency Rate.
"Eurocurrency Rate Loan" means a Eurocurrency Rate Committed Loan or a
Eurocurrency Margin Bid Loan. Eurocurrency Rate Loans may be denominated in
Dollars or in Available Foreign Currencies and, with respect to Competitive
Revolving Loans, may be denominated in Alternative Foreign Currencies. All Loans
denominated in Foreign Currencies must be Eurocurrency Rate Loans.
"Event of Default" shall have the meaning provided in Section 9.01.
"Excluded Securitization Transactions" means (a) the accounts
receivable financing facility of NMC contemplated by the Second Amended and
Restated Transfer and Administration Agreement dated as of September 24, 2002,
among NMC Funding Corporation, as transferor, NMC, as collection agent,
Enterprise Funding Corporation, Compass US Acquisition, LLC and Giro
Multi-Funding Corporation, each as conduit investors, the financial institutions
party thereto, as investors, and WestLB AG, New York Branch, Bayerische
Landesbank, New York Branch and Bank of America, N.A., each as an administrative
agent for the investors, as amended and supplemented from time to time, and any
Permitted Receivables Financing entered into in replacement thereof, and (b) any
other Permitted Receivables Financing, but only to the extent that the aggregate
Attributed Principal Amount of the foregoing Securitization Transactions
described in clauses (a) and (b) hereof shall not exceed $750 million (any
greater amount being subject to the mandatory prepayment provisions of Section
2.06(b)(iv) hereof).
"Exclusion Event" means an event or events where (a) one or more
members of the Consolidated Group other than any member of the Consolidated
Group that either ceased operations or discontinued a material portion of its
business or operations before September 30, 1999 are excluded from participation
in any state or federal Medical Reimbursement Program and (b) in the prior
fiscal year revenues from such excluded programs generated by the members of the
Consolidated Group excluded from such programs represented more than 5% of
consolidated revenues for the Consolidated Group.
"Existing Credit Agreement" means that certain Credit Agreement dated
as of September 27, 1996 among NMC and certain subsidiaries and affiliates of
NMC, as borrowers, certain subsidiaries and affiliates of NMC, as guarantors,
the lenders party thereto and NationsBank, N.A. (now known as Bank of America,
N.A.), as agent, as the same has been amended or modified from time to time, as
in effect on the Closing Date immediately prior to the effectiveness of this
Credit Agreement.
"Existing Letters of Credit" means the letters of credit outstanding on
the Closing Date and identified on Schedule 2.08.
"Federal Funds Rate" means, for any day, the rate per annum 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 (a) if such day is not a Business Day,
the Federal Funds Rate for such day shall be such rate on such transactions on
the immediately preceding Business Day as so published on the next succeeding
Business Day, and (b) if no such rate is so published on such
13
next succeeding Business Day, the Federal Funds Rate for such day shall be the
average rate charged to Bank of America on such day on such transactions as
determined by the Administrative Agent.
"Fee Letter" means that certain letter agreement dated as of January
10, 2003 among FMCAG, the Administrative Agent, the Co-Documentation Agents and
the Arrangers.
"FMCAG" means Fresenius Medical Care AG, a German corporation.
"FMCD" means Fresenius Medical Care Deutschland GmbH, a German
corporation.
"FMCF-II" means FMC Finance II S.a.r.l., a private limited company
(societe a responsabilite limitee) organized under the laws of Luxembourg.
"FMCH" means Fresenius Medical Care Holdings, Inc., a New York
corporation.
"Foreign Currencies" means lawful currencies other than Dollars
(including Available Foreign Currencies and Alternative Foreign Currencies).
"Foreign Currency Equivalent" means, at any time, with respect to any
amount denominated in Dollars, the equivalent amount thereof in the applicable
Foreign Currency as determined by the Administrative Agent at such time on the
basis of the Spot Rate (determined in respect of the most recent Revaluation
Date) for the purchase of such Foreign Currency with Dollars.
"Foreign Lender" shall have the meaning provided in Section 11.15(a).
"Foreign Subsidiary" means any Subsidiary that is not a Domestic
Subsidiary.
"Foreign Swing Line Borrowing" means a borrowing of a Foreign Swing
Line Loan pursuant to Section 2.01(d).
"Foreign Swing Line Commitment" means, with respect to the Foreign
Swing Line Lender, the commitment of such Lender to make Foreign Swing Line
Loans hereunder, and with respect to each Revolving Lender, the commitment of
such Lender to participate in Foreign Swing Line Loans hereunder.
"Foreign Swing Line Committed Amount" shall have the meaning provided
in Section 2.01(d).
"Foreign Swing Line Lender" means Dresdner Bank AG in Frankfurt am Main
or any successor in such capacity.
"Foreign Swing Line Loan" shall have the meaning provided in Section
2.01(d).
"Foreign Swing Line Loan Notice" means a notice of a Foreign Swing Line
Borrowing pursuant to Section 2.10(a), which, if in writing, shall be
substantially in the form of Exhibit A-3.
"FRB" means the Board of Governors of the Federal Reserve System of the
United States.
"Fresenius AG" means Fresenius AG, a German corporation.
"Fund" means any Person (other than a natural person) engaged in
making, purchasing, holding or otherwise investing in commercial loans and
similar extensions of credit in the ordinary course of its business.
14
"Funded Debt" means, as to any Person at a particular time, without
duplication, all of the following, whether or not included as indebtedness or
liabilities in accordance with GAAP:
(a) all obligations for borrowed money, whether current
or long-term (including the Obligations hereunder), and all obligations
evidenced by bonds, debentures, notes, loan agreements or other similar
instruments;
(b) all purchase money indebtedness (including
indebtedness and obligations in respect of conditional sales and title
retention arrangements, except for customary conditional sales and
title retention arrangements with suppliers that are entered into in
the ordinary course of business) and all indebtedness and obligations
in respect of the deferred purchase price of property or services
(other than trade accounts payable incurred the ordinary course of
business and payable on customary trade terms);
(c) all obligations under financial letters of credit
issued to support tax obligations of FMCH and its subsidiaries for the
payment of such obligations in connection with the settlement of claims
related to the X.X. Xxxxx bankruptcy;
(d) the Attributable Principal Amount of capital leases
and Synthetic Leases;
(e) the Attributable Principal Amount of Securitization
Transactions;
(f) all preferred stock and comparable equity interests
providing for mandatory redemption, sinking fund or other like payments
issued to a Person that is not a member of the Consolidated Group;
(g) Support Obligations in respect of Funded Debt of
another Person; and
(h) Funded Debt of any partnership or joint venture or
other similar entity in which such Person is a general partner or joint
venturer, and, as such, has personal liability for such obligations,
but only to the extent there is recourse to such Person for payment
thereof.
For purposes hereof, the amount of Funded Debt shall be determined based on the
outstanding principal amount in the case of borrowed money indebtedness under
clause (a) and purchase money indebtedness and the deferred purchase obligations
under clause (b), based on the maximum amount available to be drawn in the case
of letter of credit obligations and the other obligations under clause (c), and
based on the amount of Funded Debt that is the subject of the Support
Obligations in the case of Support Obligations under clause (g).
"GAAP" means generally accepted accounting principles in effect in the
United States applied on a consistent basis, subject to the provisions of
Section 1.03.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, and any agency, authority, instrumentality,
regulatory body, court, administrative tribunal, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
"Governmental Reimbursement Program Costs" means with respect to and
payable by members of the Consolidated Group the sum of:
15
(a) all amounts (including punitive and other similar
amounts) agreed to be paid in settlement or payable as a result of a
final, non-appealable judgment, award or similar order relating to
Medical Reimbursement Programs;
(b) all final, non-appealable fines, penalties,
forfeitures or other amounts rendered pursuant to criminal indictments
or other criminal proceedings relating to Medical Reimbursement
Programs; and
(c) the amount of final, non-appealable recovery,
damages, awards, penalties, forfeitures or similar amounts rendered in
any litigation, suit, arbitration, investigation or other legal or
administrative proceeding of any kind relating to Medical Reimbursement
Programs;
provided, however, that Governmental Reimbursement Program Costs for purposes of
this Credit Agreement shall not include any judgments, awards, fines, penalties
or similar amounts that total less than $5 million in the aggregate.
"Guarantor Joinder Agreement" means a Guarantor Joinder Agreement
substantially in the form of Exhibit F.
"Guarantors" means (a) FMCAG, (b) FMCH, (c) FMCF-II, (d) NMC, (e) FMCD,
(f) those other Subsidiaries of FMCAG identified on the signature pages hereto
as "Guarantors," and (g) any other Person that becomes a Guarantor after the
Closing Date, in each case together with their successors and permitted assigns
and subject to the provisions of Sections 8.04 and 8.05.
"Immaterial Foreign Subsidiary" means a Foreign Subsidiary of FMCAG
that is not a Credit Party and owns assets with a fair market value of less than
$5 million.
"Indebtedness" means, as to any Person at a particular time, without
duplication, all of the following, whether or not included as indebtedness or
liabilities in accordance with GAAP:
(a) all Funded Debt;
(b) all contingent obligations under letters of credit
(including standby and commercial), bankers' acceptances and similar
instruments (including bank guaranties, surety bonds, comfort letters,
keep-well agreements and capital maintenance agreements to the extent
such instruments or agreements support financial, rather than
performance, obligations);
(c) net obligations under any Swap Contract;
(d) Support Obligations in respect of Indebtedness of
another Person; and
(e) Indebtedness of any partnership or joint venture or
other similar entity in which such Person is a general partner or joint
venturer, and, as such, has personal liability for such obligations,
but only to the extent there is recourse to such Person for payment
thereof.
For purposes hereof, the amount of Indebtedness shall be determined based on
Swap Termination Value in the case of net obligations under Swap Contracts under
clause (c) and based on the outstanding principal amount of the Indebtedness
that is the subject of the Support Obligations in the case of Support
Obligations under clause (e).
"Indemnified Liabilities" shall have the meaning set forth in Section
11.05.
16
"Indemnitees" shall have the meaning set forth in Section 11.05.
"Interest Payment Date" means (a) as to any Base Rate Loan (other than
a Swing Line Loan), the last Business Day of each March, June, September and
December, the Termination Date and the dates of the final principal amortization
installment on the Tranche A Term Loan and the Tranche B Term Loan, as
applicable, (b) as to any Swing Line Loan, the last Business Day of each March,
June, September and December and the Termination Date, or such other days as may
be mutually agreed upon by the Borrowers and the Swing Line Lender, and (c) as
to any Eurocurrency Rate Loan or any Absolute Rate Loan, the last Business Day
of each Interest Period for such Loan, the date of repayment of principal of
such Loan, the Termination Date and the dates of the final principal
amortization installment on the Tranche A Term Loan and the Tranche B Term Loan,
as applicable, and in addition, where the applicable Interest Period exceeds
three months, the date every three months after the beginning of such Interest
Period. If an Interest Payment Date falls on a date that is not a Business Day,
such Interest Payment Date shall be deemed to be the next succeeding Business
Day.
"Interest Period" means (a) as to each Eurocurrency Rate Loan, the
period commencing on the date such Loan is disbursed or converted to or
continued as such and ending on (i) the date one, two, three or six months
thereafter, as selected by the applicable Borrower in its Loan Notice, or (ii)
such other date not more than six months from the commencement thereof as
requested by the Borrower in its Loan Notice and approved by the Administrative
Agent and (b) as to each Absolute Rate Loan, a period of not less than fourteen
days and not more than 180 days as selected by the applicable Borrower in the
Bid Request; provided that:
(A) any Interest Period that would otherwise end on a day
that is not a Business Day shall be extended to the next succeeding
Business Day unless, in the case of a Eurocurrency Rate Loan, such
Business Day falls in another calendar month, in which case such
Interest Period shall end on the immediately preceding Business Day;
(B) any Interest Period with respect to a Eurocurrency
Rate Loan 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 the calendar month at the end of such Interest
Period; and
(C) no Interest Period shall extend beyond the
Termination Date.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as in
effect from time to time.
"Investment" means, as to any Person, any direct or indirect
acquisition or investment by such Person, whether by means of (a) the purchase
or other acquisition of Capital Stock or other securities of another Person, (b)
a loan, advance or capital contribution to, guaranty or assumption of debt of,
or purchase or other acquisition of any other debt or equity participation or
interest in (including by way of repurchase arrangements), another Person,
including any partnership or joint venture interest in such other Person, or (c)
the purchase or other acquisition (in one transaction or a series of
transactions) of assets of another Person that constitute a business unit. For
purposes of covenant compliance, the amount of any Investment shall be the
amount actually invested, without adjustment for subsequent increases or
decreases in the value of such Investment.
"IP Rights" shall have the meaning set forth in Section 6.18.
17
"IRS" means the United States Internal Revenue Service.
"Laws" means, collectively, all international, foreign, federal, state
and local statutes, treaties, rules, guidelines, regulations, ordinances, codes
and administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority,
in each case whether or not having the force of law.
"L/C Advance" means, with respect to each Lender, such Lender's funding
of its participation in any L/C Borrowing.
"L/C Borrowing" means any extension of credit resulting from a drawing
under any Letter of Credit that has not been reimbursed or refinanced as a
Borrowing of Revolving Loans.
"L/C Commitment" means, with respect to the L/C Issuer, the commitment
of the L/C Issuer to issue and to honor payment obligations under Letters of
Credit, and, with respect to each Lender, the commitment of such Lender to
purchase participation interests in L/C Obligations up to such Lender's
Revolving Commitment Percentage thereof.
"L/C Committed Amount" shall have the meaning provided in Section
2.01(b).
"L/C Credit Extension" means, with respect to any Letter of Credit, the
issuance thereof or extension of the expiry date thereof, or the renewal or
increase of the amount thereof.
"L/C Issuer" means (a) as to Existing Letters of Credit, those Lenders
identified as such on Schedule 2.08, and (b) as to Letters of Credit issued
hereunder, (i) Bank of America, (ii) The Bank of Nova Scotia or (iii) any other
Revolving Lender that shall agree to become an L/C Issuer and that the
Administrative Agent may approve in its reasonable discretion, in each case in
their capacity as issuer of Letters of Credit hereunder, together with their
successors in such capacity.
"L/C Obligations" means, at any time, the Dollar Equivalent of the sum
of (a) the maximum amount available to be drawn under Letters of Credit then
outstanding, assuming compliance with all requirements for drawings referenced
therein, plus (b) the aggregate amount of all Unreimbursed Amounts, including
L/C Borrowings.
"Lender" means each of the Persons identified as a "Lender" on the
signature pages hereto (and, as appropriate, includes the L/C Issuer and the
Swing Line Lender), together with their respective successors and assigns.
"Lending Office" means, as to any Lender, the office or offices of such
Lender set forth on Schedule 11.02, or such other office or offices as a Lender
may from time to time notify FMCAG and the Administrative Agent.
"Letter of Credit" means each Existing Letter of Credit and each
standby letter of credit issued hereunder.
"Letter of Credit Application" means an application and agreement for
the issuance or amendment of a Letter of Credit.
18
"Letter of Credit Expiration Date" means the day that is ten Business
Days prior to the Termination Date then in effect (or, if such day is not a
Business Day, the immediately preceding Business Day).
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge, or preference,
priority or other security interest or preferential arrangement of any kind or
nature whatsoever (including any conditional sale or other title retention
agreement, and any financing lease having substantially the same economic effect
as any of the foregoing).
"Loan" means any Revolving Loan, Swing Line Loan, or Term Loan, and the
Base Rate Loans and Eurocurrency Rate Loans comprising such Loans.
"Loan Notice" means a notice of a Borrowing pursuant to Section
2.02(a), which, if in writing, shall be substantially in the form of Exhibit
A-1.
"Loan Obligations" means the Revolving Obligations and the Term Loans.
"Mandatory Cost Rate" means, with respect to any period, a rate per
annum determined in accordance with Schedule 2.03.
"Mandatory Cost Reference Lender" means the London branch of each of
Bank of America, CSFB and Dresdner.
"Mandatory Prepayment Modification Event" shall occur if FMCAG shall
either:
(a) obtain a rating for its unsecured non-credit enhanced
long-term senior debt of at least BBB-or higher from S&P and Baa3 or
higher from Xxxxx'x; or
(b) achieve the following financial ratios as of the end
of any fiscal quarter:
(i) a Consolidated Leverage Ratio of less than
or equal to 2.0:1.0; and
(ii) a ratio of Consolidated EBITDA to
Consolidated Interest Expense of greater than or equal to
4.0:1.0.
"Material Adverse Effect" means (a) a material adverse change in, or a
material adverse effect upon, the operations, business, properties, liabilities
(actual or contingent), condition (financial or otherwise) or prospects of any
of the Borrowers or the Consolidated Group taken as a whole; (b) a material
impairment of the ability of any Credit Party to perform its obligations under
any Credit Document to which it is a party; or (c) a material adverse effect
upon the legality, validity, binding effect or enforceability against any Credit
Party of any Credit Document to which it is a party.
"Material Domestic Subsidiary" means any Wholly Owned Domestic
Subsidiary that, on an unconsolidated basis, has at least $100 million in assets
or generates at least $20 million of Consolidated EBITDA for the period of four
consecutive fiscal quarters most recently ended; provided, however, that for
purposes hereof (a) neither Lifechem, Inc. nor any Securitization Subsidiary
shall be considered a "Material Domestic Subsidiary" and (b) for purposes of
determining whether any Wholly Owned special purpose Subsidiary of FMCAG that
issues or assumes Trust Preferred Securities is a Material Domestic Subsidiary
hereunder, the proceeds of such Trust Preferred Securities shall not be
considered for the purpose of determining assets of such Subsidiary to the
extent such proceeds have been lent as Trust
19
Preferred Subdebt or contributed to another member of the Consolidated Group,
and any interest in respect of any such loan shall not be considered for the
purpose of determining Consolidated EBITDA of such Subsidiary.
"Material Foreign Subsidiary" means any Wholly Owned Foreign Subsidiary
that, on an unconsolidated basis, has at least $100 million in assets or
generates at least $20 million of Consolidated EBITDA for the period of four
consecutive fiscal quarters most recently ended; provided, however, that for
purposes hereof (a) no Securitization Subsidiary shall be considered a "Material
Foreign Subsidiary" and (b) for purposes of determining whether any Wholly Owned
special purpose Subsidiary of FMCAG that issues or assumes Trust Preferred
Securities is a Material Foreign Subsidiary hereunder, the proceeds of such
Trust Preferred Securities shall not be considered for the purpose of
determining assets of such Subsidiary to the extent such proceeds have been lent
as Trust Preferred Subdebt or contributed to another member of the Consolidated
Group, and any interest in respect of any such loan shall not be considered for
the purpose of determining Consolidated EBITDA of such Subsidiary.
"Material Subsidiary" means any Material Domestic Subsidiary or
Material Foreign Subsidiary.
"Medicaid" means that means-tested entitlement program under Title XIX
of the Social Security Act, which provides federal grants to states for medical
assistance based on specific eligibility criteria, as set forth at Section 1396,
et seq. of Title 42 of the United States Code, as amended, and any successor
statute thereto.
"Medicaid Provider Agreement" means an agreement entered into between a
state agency or other such entity administering the Medicaid program and a
health care provider or supplier, under which the health care provider or
supplier agrees to provide services for Medicaid patients in accordance with the
terms of the agreement and Medicaid Regulations.
"Medicaid Regulations" means, collectively, (a) all federal statutes
(whether set forth in Title XIX of the Social Security Act or elsewhere)
affecting the medical assistance program established by Title XIX of the Social
Security Act and any successor statutes thereto; (b) all applicable provisions
of all federal rules, regulations, manuals and orders of all Governmental
Authorities promulgated pursuant to or in connection with the statutes described
in clause (a) above and all federal administrative, reimbursement and other
guidelines of all Governmental Authorities having the force of law promulgated
pursuant to or in connection with the statutes described in clause (a) above;
(c) all state statutes and plans for medical assistance enacted in connection
with the statutes and provisions described in clauses (a) and (b) above; and (d)
all applicable provisions of all rules, regulations, manuals and orders of all
Governmental Authorities promulgated pursuant to or in connection with the
statutes described in clause (c) above and all state administrative,
reimbursement and other guidelines of all Governmental Authorities having the
force of law promulgated pursuant to or in connection with the statutes
described in clause (b) above, in each case as may be amended, supplemented or
otherwise modified from time to time.
"Medical Reimbursement Programs" means a collective reference to the
Medicare, Medicaid, CHAMPUS and TRICARE programs and any other health care
program operated by or financed in whole or in part by any foreign or domestic
federal, state or local government and any other non-government funded third
party payor programs.
"Medicare" means that government-sponsored entitlement program under
Title XVIII of the Social Security Act, which provides for a health insurance
system for eligible elderly and disabled individuals, as set forth at Section
1395, et seq. of Title 42 of the United States Code, as amended, and any
successor statute thereto.
20
"Medicare Provider Agreement" means an agreement entered into between
CMS (or other such entity administering the Medicare program on behalf of the
CMS) and a health care provider or supplier, under which the health care
provider or supplier agrees to provide services for Medicare patients in
accordance with the terms of the agreement and Medicare Regulations.
"Medicare Regulations" means, collectively, all federal statutes
(whether set forth in Title XVIII of the Social Security Act or elsewhere)
affecting the health insurance program for the aged and disabled established by
Title XVIII of the Social Security Act and any successor statutes thereto;
together with all applicable provisions of all rules, regulations, manuals and
orders and administrative, reimbursement and other guidelines having the force
of law of all Governmental Authorities (including CMS, the OIG, HHS, or any
person succeeding to the functions of any of the foregoing) promulgated pursuant
to or in connection with any of the foregoing having the force of law, as each
may be amended, supplemented or otherwise modified from time to time.
"Moody's" means Xxxxx'x Investors Service, Inc. and any successor
thereto.
"Multiemployer Plan" means any employee benefit plan of the type
described in Section 4001(a)(3) of ERISA, to which any Borrower or any ERISA
Affiliate makes or is obligated to make contributions, or during the preceding
five plan years, has made or been obligated to make contributions.
"Net Cash Proceeds" means the aggregate proceeds paid in cash or Cash
Equivalents received by any member of the Consolidated Group in connection with
any Disposition, Debt Transaction or Securitization Transaction, net of (a)
direct costs (including legal, accounting and investment banking fees, sales
commissions, and underwriting discounts) and (b) estimated taxes paid or payable
as a result thereof. For purposes hereof, "Net Cash Proceeds" shall include any
cash or Cash Equivalents received upon the disposition of any non-cash
consideration received by any member of the Consolidated Group in any
Disposition, Equity Transaction or Debt Transaction.
"NMC" means National Medical Care, Inc., a Delaware corporation.
"Non-Shared Foreign Swing Line Loans" shall have the meaning provided
in Section 2.01(d).
"Non-Shared Foreign Swing Line Maximum Amount" shall have the meaning
provided in Section 2.01(d).
"Note" means each of the Revolving Notes and the Term Notes.
"Obligations" means, without duplication, (a) all advances to, and
debts, liabilities, obligations, covenants and duties of, any Credit Party
arising under any Credit Document or otherwise with respect to any Loan or
Letter of Credit, whether direct or indirect (including those acquired by
assumption), absolute or contingent, due or to become due, now existing or
hereafter arising and including interest and fees that accrue after the
commencement by or against any Credit Party or any Affiliate thereof of any
proceeding under any Debtor Relief Laws naming such Person as the debtor in such
proceeding, regardless of whether such interest and fees are allowed claims in
such proceeding and (b) all obligations under any Swap Contract of any Credit
Party to which a Lender or any Affiliate of a Lender is a party.
"OIG" means the Office of Inspector General of the U.S. Department of
Health and Human Services or any other regulatory body which succeeds to the
functions thereof.
21
"Organization Documents" means, (a) with respect to any corporation,
the certificate or articles of incorporation and the bylaws (or equivalent or
comparable constitutive documents with respect to any non-U.S. jurisdiction);
(b) with respect to any limited liability company, the certificate or articles
of formation or organization and operating agreement; and (c) with respect to
any partnership, joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of formation or
organization and any agreement, instrument, filing or notice with respect
thereto filed in connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or
organization of such entity.
"Outstanding Amount" means (a) with respect to Revolving Loans and
Swing Line Loans on any date, the aggregate outstanding principal amount thereof
after giving effect to any Borrowings and prepayments or repayments of Revolving
Loans and Swing Line Loans, as the case may be, occurring on such date; (b) with
respect to any L/C Obligations on any date, the amount of such L/C Obligations
on such date after giving effect to any L/C Credit Extension occurring on such
date and any other changes in the aggregate amount of the L/C Obligations as of
such date, including as a result of any reimbursements of outstanding unpaid
drawings under any Letters of Credit or any reductions in the maximum amount
available for drawing under Letters of Credit taking effect on such date; (c)
with respect to the Tranche A Term Loan on any date, the aggregate outstanding
principal amount thereof after giving effect to any prepayments or repayments of
the Tranche A Term Loan on such date; and (d) with respect to the Tranche B Term
Loan on any date, the aggregate outstanding principal amount thereof after
giving effect to any prepayments or repayments of the Tranche B Term Loan on
such date.
"Overnight Rate" means, for any day, (a) with respect to any amount
denominated in Dollars, the Federal Funds Rate and (b) with respect to any
amount denominated in a Foreign Currency, the rate of interest per annum at
which overnight deposits in the applicable Foreign Currency, in an amount
approximately equal to the amount with respect to which such rate is being
determined, would be offered for such day by a branch or Affiliate of Bank of
America located in the applicable interbank market for such currency to major
banks in such interbank market.
"Parallel Debt Agreement" means that certain Parallel Debt Agreement
dated as of the Closing Date between the Collateral Agent (and, pursuant to the
power of attorney granted to the Collateral Agent by the Lenders pursuant to
Section 11.22 hereof, each of the Lenders) and FMCAG (and, pursuant to the power
of attorney granted to FMCAG by the other Credit Parties pursuant to Section
11.22 hereof, each other Credit Party), which creates an obligation of the
Credit Parties (as debt acknowledgement or abstraktes Schuldanerkenntnis) in
favor of the Collateral Agent under the Law of Germany.
"Participant" shall have the meaning provided in Section 11.07(d).
"Participating Member State" means any member state of the European
Union that has adopted (or that adopts) the Euro as its lawful currency in
accordance with the EMU Legislation.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Pension Plan" means any "employee pension benefit plan" (as such term
is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by any Borrower or
any ERISA Affiliate or to which any Borrower or any ERISA Affiliate contributes
or has an obligation to contribute, or in the case of a multiple employer or
other plan described in Section 4064(a) of ERISA, has made contributions at any
time during the immediately preceding five plan years.
22
"Permitted Acquisition" means any Acquisition that satisfies the
following conditions:
(a) the aggregate cost of any individual Acquisition
shall not exceed an amount equal to the sum of (A) $300 million plus
(B) the fair value of Capital Stock given as part of the purchase price
plus (C) any portion of Net Cash Proceeds from any Equity Transaction
used therefor occurring no more than three months prior to or three
months after the respective individual Acquisition;
(b) the aggregate cost of all such Acquisitions in any
calendar year shall not exceed an amount equal to the sum of (A) $750
million plus (B) the fair value of Capital Stock given as part of the
purchase price plus (C) any portion of Net Cash Proceeds from any
Equity Transaction used therefor occurring no more than three months
prior to or three months after the respective Acquisition;
(c) in the case of an Acquisition of the Capital Stock,
the board of directors (or other comparable governing body) of such
other Person shall have approved the Acquisition; and
(d) (A) no Default or Event of Default shall then exist
and be continuing immediately before or immediately after giving effect
thereto, (B) the Consolidated Group shall be in compliance with the
financial covenants hereunder after giving effect thereto on a Pro
Forma Basis, and (C) with respect to any Acquisition (or series of
related Acquisitions) for which cash consideration together with the
principal amount of Indebtedness assumed in connection therewith
exceeds $100 million in the aggregate, a Responsible Officer of FMCAG
shall provide a compliance certificate, in form and detail satisfactory
to the Administrative Agent, affirming the matters under the foregoing
subclauses.
"Permitted Receivables Financings" means (a) the Securitization
Transactions described in clause (a) of the definition of "Excluded
Securitization Transactions" and (b) other Securitization Transactions, in each
case as amended and in effect from time to time; provided that (i) with respect
to all such Securitization Transactions described in clause (b) that are entered
into after the Closing Date, (A) each such Securitization Transaction relating
to accounts receivable originating in or payable in the United States or any
state thereof, and (B) each such Securitization Transaction exceeding $30
million in any instance or $100 million in the aggregate, the Administrative
Agent and the Required Lenders shall be reasonably satisfied with the structure
and documentation thereof and shall be reasonably satisfied that the terms
thereof, including the discount applicable to the subject accounts receivable
and the termination events, are (in the good faith understanding of the
Administrative Agent and the Required Lenders) consistent with those prevailing
in the market at the time of commitment thereto for similar transactions
involving a receivables originator/servicer of similar credit quality and a
receivables pool of similar characteristics; and (ii) with respect to all such
Permitted Receivables Financings, the documentation therefor shall not be
amended or modified in a way that is materially detrimental to the Lenders
without the prior written approval of the Administrative Agent and the Required
Lenders.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means any "employee benefit plan" (as such term is defined in
Section 3(3) of ERISA) established by any Borrower or, with respect to any such
plan that is subject to Section 412 of the Internal Revenue Code or Title IV of
ERISA, any ERISA Affiliate.
"Pledge Agreement" means those pledge agreement(s) dated as of the
Closing Date given by the members of the Consolidated Group identified therein,
as pledgors, to the Collateral Agent, to secure the
23
Obligations, and any other pledge agreements that may be given by any Person
pursuant to the terms hereof, as such pledge agreements may be amended and
modified from time to time.
"Primary Borrowers" means (a) FMCAG, (b) FMCH, (c) FMCF-II and (d) any
Designated Borrower approved as a Primary Borrower pursuant to Section 2.16, in
each case together with their successors and permitted assigns, subject to the
provisions of Section 2.17.
"Pro Forma Basis" means, for purposes of determining (a) the applicable
pricing level under the definition of "Applicable Percentage," (b) compliance
with the financial covenants hereunder, (c) Permitted Acquisitions hereunder,
and (d) making Restricted Payments hereunder, that the event or transaction
relevant to the applicable calculation shall be deemed to have occurred as of
the first day of the period of four consecutive fiscal quarters ending as of the
end of the most recent fiscal quarter for which annual or quarterly financial
statements shall have been delivered in accordance with the provisions hereof.
Further, for purposes of making calculations on a "Pro Forma Basis" hereunder,
(i) in the case of any Disposition, (A) income statement items (whether positive
or negative) attributable to the property, entities or business units that are
the subject of such Disposition shall be excluded to the extent relating to any
period prior to the date of such Disposition, and (B) Indebtedness paid or
retired in connection with such Disposition shall be deemed to have been paid
and retired as of the first day of the applicable period; and (ii) in the case
of any Acquisition, (A) income statement items (whether positive or negative)
attributable to the property, entities or business units that are the subject of
such acquisition shall be included to the extent relating to any period prior to
the date of such acquisition, and (B) Indebtedness incurred in connection with
the subject transaction shall be deemed to have been incurred as of the first
day of the applicable period (and interest expense shall be imputed for the
applicable period assuming prevailing interest rates hereunder).
"Purchasing Lender" shall have the meaning provided in Section 11.21.
"Register" shall have the meaning set forth in Section 11.07(c).
"Released Party" shall have the meaning provided in Section 11.19.
"Reorganization" means the reorganization and transactions contemplated
by the Reorganization Documents.
"Reorganization Documents" means, collectively, (i) the Agreement and
Plan of Reorganization dated as of February 4, 1996, by and between FMCH (then
known as X.X. Xxxxx & Co.) and Fresenius AG, as amended, (ii) the Distribution
Agreement dated as of February 4, 1996, among FMCH (then known as X.X. Xxxxx &
Co.), Fresenius AG and WRG-Conn and (iii) the Contribution Agreement dated as of
February 4, 1996, among Fresenius AG, Steril Pharma GmbH and WRG-Conn.
"Reportable Event" means any of the events set forth in Section 4043(c)
of ERISA, other than events for which the thirty-day notice period has been
waived.
"Request for Credit Extension" means (a) with respect to a Borrowing,
conversion or continuation of Revolving Loans, a Loan Notice, (b) with respect
to an L/C Credit Extension, a Letter of Credit Application, and (c) with respect
to a Swing Line Loan, a Swing Line Loan Notice.
"Required Lenders" means, as of any date of determination, Lenders
having more than 50% of the Aggregate Commitments or, if the commitment of each
Lender to make Loans and the obligation of the L/C Issuer to make L/C Credit
Extensions have been terminated pursuant to Section 9.02, Lenders holding in the
aggregate more than 50% of the Loan Obligations (including, in each case, the
aggregate
24
amount of each Lender's risk participation and funded participation in L/C
Obligations and Swing Line Loans); provided that the Commitment of, and the
portion of the Loan Obligations held or deemed held by, any Defaulting Lender
shall be excluded for purposes of making a determination of Required Lenders.
"Required Revolving Lenders" means, as of any date of determination,
Lenders having more than 50% of the Aggregate Revolving Commitments or, if the
commitment of each Lender to make Revolving Loans and the obligation of the L/C
Issuer to make L/C Credit Extensions have been terminated pursuant to Section
9.02, Lenders holding in the aggregate more than 50% of the Revolving
Obligations (including, in each case, the aggregate amount of each Lender's risk
participation and funded participation in L/C Obligations and Swing Line Loans);
provided that the Revolving Commitment of, and the portion of the Revolving
Obligations held or deemed held by, any Defaulting Lender shall be excluded for
purposes of making a determination of Required Revolving Lenders.
"Required Tranche A Term Lenders" means, as of any date of
determination, Lenders holding in the aggregate more than 50% of the Tranche A
Term Loan; provided that the portion of the Tranche A Term Loan held or deemed
held by, any Defaulting Lender shall be excluded for purposes of making a
determination of Required Tranche A Term Lenders.
"Required Tranche B Term Lenders" means, as of any date of
determination, Lenders holding in the aggregate more than 50% of the Tranche B
Term Loan; provided that the portion of the Tranche B Term Loan held or deemed
held by, any Defaulting Lender shall be excluded for purposes of making a
determination of Required Tranche B Term Lenders.
"Responsible Officer" means the chief executive officer, president,
chief financial officer, senior vice president-finance, treasurer or assistant
treasurer of a Credit Party. Any document delivered hereunder that is signed by
a Responsible Officer of a Credit Party shall be conclusively presumed to have
been authorized by all necessary corporate, partnership and/or other action on
the part of such Credit Party and such Responsible Officer shall be conclusively
presumed to have acted on behalf of such Credit Party.
"Restricted Payment" means (i) any dividend or other distribution,
direct or indirect, on account of any shares of any class of stock now or
hereafter outstanding, except a dividend payable solely in shares of that class
to the holders of that class, of FMCAG, (ii) any redemption, retirement, sinking
fund or similar payment, purchase or other acquisition for value, direct or
indirect, of any shares of any class of stock of FMCAG now or hereafter
outstanding, and (iii) any payment made to retire, or to obtain the surrender
of, any outstanding warrants, options or other rights to acquire shares of any
class of stock of FMCAG.
"Revaluation Date" means each of the following: (a) each date of a
Credit Extension of a Eurocurrency Rate Loan denominated in a Foreign Currency,
(b) each date of an L/C Credit Extension with respect to Letters of Credit
denominated in a Foreign Currency, (c) each honor date of any Letter of Credit
denominated in a Foreign Currency, (d) each date of a Credit Extension of a
Foreign Swing Line Loan and (e) any other date specified by the Administrative
Agent or the Required Lenders.
"Revolving Commitment" means, with respect to each Revolving Lender,
the commitment of such Lender to make Committed Revolving Loans (and to share in
the Committed Revolving Obligations) hereunder.
"Revolving Commitment Percentage" means, for each Revolving Lender, a
fraction (expressed as a percentage carried to the ninth decimal place), the
numerator of which is such Revolving Lender's
25
Revolving Committed Amount and the denominator of which is the Aggregate
Revolving Committed Amount. The initial Revolving Commitment Percentages are
shown on Schedule 2.01.
"Revolving Committed Amount" means, with respect to each Revolving
Lender, the amount of such Lender's Revolving Commitment. The initial Revolving
Committed Amounts are shown on Schedule 2.01.
"Revolving Lender" means those Lenders with Revolving Commitments.
"Revolving Loans" means Committed Revolving Loans and Competitive
Revolving Loans.
"Revolving Note" means the promissory notes given to each Revolving
Lender to evidence the Revolving Loans and Swing Line Loans, as amended,
restated, modified, supplemented, extended, renewed or replaced. A form of
Revolving Note is attached as Exhibit C-1.
"Revolving Obligations" means Revolving Loans, L/C Obligations and
Swing Line Loans.
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc. and any successor thereto.
"Sale and Leaseback Transaction" means, with respect to any Borrower or
any Subsidiary, any arrangement, directly or indirectly, with any person whereby
such Borrower or such Subsidiary shall sell or transfer any property, real or
personal, used or useful in its business, whether now owned or hereafter
acquired, and thereafter rent or lease such property or other property that it
intends to use for substantially the same purpose or purposes as the property
being sold or transferred.
"Same Day Funds" means (a) with respect to disbursements and payments
in Dollars, immediately available funds, and (b) with respect to disbursements
and payments in a Foreign Currency, same day or other funds as may be determined
by the Administrative Agent to be customary in the place of disbursement or
payment for the settlement of international banking transactions in such Foreign
Currency.
"Schuldscheindarlehen" means the senior notes issued by FMC Finance
S.a.r.l. Luxembourg IV, a Wholly Owned Subsidiary of FMCAG, in an aggregate
principal amount of E 128.5 million, and the guarantee by FMCAG of such
notes, pursuant to agreements dated as of July 11, 2001, September 17, 2001 and
December 4, 2001, in each case as amended or modified and as in effect from time
to time.
"SEC" means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
"Securitization Subsidiary" shall have the meaning provided in the
definition of "Securitization Transaction."
"Securitization Transaction" means any financing or factoring or
similar financing transaction (or series of such transactions) entered by any
member of the Consolidated Group pursuant to which such member of the
Consolidated Group may sell, convey or otherwise transfer, or grant a security
interest in, accounts, payments, receivables, rights to future lease payments or
residuals or similar rights to payment (the "Securitization Receivables") to a
special purpose subsidiary or affiliate (a "Securitization Subsidiary") or any
other Person.
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"Selling Lenders" means (a) each Lender that will hold a lesser
percentage of the Commitments on the Closing Date than such Lender held under
the Existing Credit Agreement immediately prior to the effectiveness hereof and
(b) each Departing Lender.
"Shared Foreign Swing Line Loans" shall have the meaning provided in
Section 2.01(d).
"Spot Rate" means, for a currency, the rate quoted by Bank of America
(or, pursuant to Section 1.07, the Foreign Swing Line Lender or the Competitive
Bid Agent, as applicable) as the spot rate for the purchase by Bank of America
(or, pursuant to Section 1.07, the Foreign Swing Line Lender or the Competitive
Bid Agent, as applicable) of such currency with another currency through its
principal foreign exchange trading office at approximately 11:00 a.m. on the
date two Business Days prior to the date as of which the foreign exchange
computation is made.
"Subordinated Debt" means (a) the Trust Preferred Subdebt, (b) the AG
Debt, and (c) any other Indebtedness of a member of the Consolidated Group that
by its terms is expressly subordinated in right of payment to the prior payment
of the Loan Obligations hereunder and is in form and substance satisfactory to
the Administrative Agent and the Required Lenders.
"Subsidiary" of a Person means a corporation, partnership, joint
venture, limited liability company or other business entity of which a majority
of the shares of securities or other interests having ordinary voting power for
the election of directors or other governing body (other than securities or
interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, or the management of which is otherwise
controlled, directly, or indirectly through one or more intermediaries, or both,
by such Person. Unless otherwise provided, all references herein to a
"Subsidiary" or to "Subsidiaries" shall refer to a Subsidiary or Subsidiaries of
FMCAG.
"Support Obligations" means, as to any Person, (a) any obligation,
contingent or otherwise, of such Person guaranteeing or having the economic
effect of guaranteeing any Indebtedness or other obligation payable or
performable by another Person (the "primary obligor") in any manner, whether
directly or indirectly (other than endorsements in the ordinary course of
business of negotiable instruments for deposit or collection), and including any
obligation of such Person, direct or indirect, (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness or
other obligation, (ii) to purchase or lease property, securities or services for
the purpose of assuring the obligee in respect of such Indebtedness or other
obligation of the payment or performance of such Indebtedness or other
obligation, (iii) to maintain working capital, equity capital or any other
financial statement condition or liquidity or level of income or cash flow of
the primary obligor so as to enable the primary obligor to pay such Indebtedness
or other obligation, or (iv) entered into for the purpose of assuring in any
other manner the obligee in respect of such Indebtedness or other obligation of
the payment or performance thereof or to protect such obligee against loss in
respect thereof (in whole or in part), or (b) any Lien on any assets of such
Person securing any Indebtedness or other obligation of any other Person,
whether or not such Indebtedness or other obligation is assumed by such Person.
The amount of any Support Obligations (subject to any limitations set forth
therein) shall be deemed to be an amount equal to the stated or determinable
amount of the related primary obligation, or portion thereof, in respect of
which such Support Obligation is made or, if not stated or determinable, the
maximum reasonably anticipated liability in respect thereof as determined by the
guaranteeing Person in good faith.
"Swap Contract" means (a) any and all rate swap transactions, basis
swaps, credit derivative transactions, forward rate transactions, commodity
swaps, commodity options, forward commodity contracts, equity or equity index
swaps or options, bond or bond price or bond index swaps or options or forward
bond or forward bond price or forward bond index transactions, interest rate
options, forward foreign exchange transactions, cap transactions, floor
transactions, collar transactions, currency swap
27
transactions, cross-currency rate swap transactions, currency options, spot
contracts, or any other similar transactions or any combination of any of the
foregoing (including any options to enter into any of the foregoing), whether or
not any such transaction is governed by or subject to any master agreement, and
(b) any and all transactions of any kind, and the related confirmations, that
are subject to the terms and conditions of, or governed by, any form of master
agreement published by the International Swaps and Derivatives Association,
Inc., any International Foreign Exchange Master Agreement, or any other master
agreement (any such master agreement, together with any related schedules, a
"Master Agreement"), including any such obligations or liabilities under any
Master Agreement.
"Swap Termination Value" means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination values
determined in accordance therewith, such termination values, and (b) for any
date prior to the date referenced in clause (a), the amounts determined as the
xxxx-to-market values for such Swap Contracts, as determined based upon one or
more mid-market or other readily available quotations provided by any recognized
dealer in such Swap Contracts (which may include a Lender or any Affiliate of a
Lender).
"Swing Line Borrowing" means a Domestic Swing Line Borrowing and a
Foreign Swing Line Borrowing.
"Swing Line Commitment" means the Domestic Swing Line Commitment and
the Foreign Swing Line Commitment.
"Swing Line Committed Amount" means the Domestic Swing Line Committed
Amount and the Foreign Swing Line Committed Amount.
"Swing Line Lender" means the Domestic Swing Line Lender or the Foreign
Swing Line Lender, as appropriate.
"Swing Line Loan Notice" means a Domestic Swing Line Loan Notice or a
Foreign Swing Line Loan Notice, as appropriate.
"Swing Line Loans" means Domestic Swing Line Loans, Shared Foreign
Swing Line Loans and Non-Shared Foreign Swing Line Loans.
"Synthetic Lease" means any synthetic lease, tax retention operating
lease, off-balance sheet loan or similar off-balance sheet financing arrangement
that is considered borrowed money indebtedness for tax purposes but is
classified as an operating lease under GAAP.
"TARGET Day" means any day on which the Trans-European Automated
Real-time Gross Settlement Express Transfer (TARGET) System (or, if such
clearing system ceases to be operative, such other clearing system, if any,
determined by the Administrative Agent to be a suitable replacement) is
operating.
"Term Loan" means the Tranche A Term Loan and the Tranche B Term Loan.
"Term Loan Commitments" means the Tranche A Term Loan Commitment and
the Tranche B Term Loan Commitment.
"Term Notes" means the Tranche A Term Notes and the Tranche B Term
Notes.
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"Termination Date" means October 31, 2007.
"Tranche A Term Lenders" means, prior to funding of the Tranche A Term
Loan, Lenders with Tranche A Term Loan Commitments, and after funding of the
Tranche A Term Loan, Lenders holding a portion of the Tranche A Term Loan,
together with their successors and permitted assigns.
"Tranche A Term Loan" shall have the meaning provided in Section
2.01(f).
"Tranche A Term Loan Commitment" means, with respect to each Tranche A
Term Lender, the commitment of such Lender to make the Tranche A Term Loan
hereunder; provided that, at any time after funding of the Tranche A Term Loan,
determinations of "Required Lenders" and "Required Tranche A Term Lenders" shall
be based on the outstanding principal balance of the Tranche A Term Loan.
"Tranche A Term Loan Commitment Percentage" means, for each Tranche A
Term Lender, a fraction (expressed as a percentage carried to the ninth decimal
place), the numerator of which is, prior to funding of the Tranche A Term Loan,
such Tranche A Term Lender's Tranche A Term Loan Committed Amount, and, after
funding of the Tranche A Term Loan, the principal amount of such Tranche A Term
Lender's Tranche A Term Loan and the denominator of which is, prior to funding
of the Tranche A Term Loan, the aggregate principal amount of the Tranche A Term
Loan Commitments, and, after funding of the Tranche A Term Loan, the aggregate
principal amount of the Tranche A Term Loan. The initial Tranche A Term Loan
Commitment Percentages are shown on Schedule 2.01.
"Tranche A Term Loan Committed Amount" means, with respect to each
Tranche A Term Lender, the amount of such Lender's Tranche A Term Loan
Commitment. The initial Tranche A Term Loan Committed Amounts are shown on
Schedule 2.01.
"Tranche A Term Note" means the promissory notes given to each Tranche
A Term Lender to evidence the Tranche A Term Loan, as amended, restated,
modified, supplemented, extended, renewed or replaced. A form of Tranche A Term
Note is attached as Exhibit C-2.
"Tranche B Term Lenders" means, prior to funding of the Tranche B Term
Loan, Lenders with Tranche B Term Loan Commitments, and after funding of the
Tranche B Term Loan, Lenders holding a portion of the Tranche B Term Loan,
together with their successors and permitted assigns.
"Tranche B Term Loan" shall have the meaning provided in Section
2.01(g).
"Tranche B Term Loan Commitment" means, with respect to each Tranche B
Term Lender, the commitment of such Lender to make the Tranche B Term Loan
hereunder; provided that, at any time after funding of the Tranche B Term Loan,
determinations of "Required Lenders" and "Required Tranche B Term Lenders" shall
be based on the outstanding principal balance of the Tranche B Term Loan.
"Tranche B Term Loan Commitment Percentage" means, for each Tranche B
Term Lender, a fraction (expressed as a percentage carried to the ninth decimal
place), the numerator of which is, prior to funding of the Tranche B Term Loan,
the Dollar Equivalent of such Tranche B Term Lender's Tranche B Term Loan
Committed Amount, and, after funding of the Tranche B Term Loan, the Dollar
Equivalent of the principal amount of such Tranche B Term Lender's Tranche B
Term Loan and the denominator of which is, prior to funding of the Tranche B
Term Loan, the Dollar Equivalent of the aggregate principal amount of the
Tranche B Term Loan Commitments, and, after funding of the Tranche B Term Loan,
the Dollar Equivalent of the aggregate principal amount of the Tranche B Term
Loan. The initial Tranche B Term Loan Commitment Percentages are shown on
Schedule 2.01.
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"Tranche B Term Loan Committed Amount" means, with respect to each
Tranche B Term Lender, the amount of such Lender's Tranche B Term Loan
Commitment. The initial Tranche B Term Loan Committed Amounts are shown on
Schedule 2.01.
"Tranche B Term Note" means the promissory notes given to each Tranche
B Term Lender to evidence the Tranche B Term Loan, as amended, restated,
modified, supplemented, extended, renewed or replaced. A form of Tranche B Term
Note is attached as Exhibit C-3.
"TRICARE" means the United States Department of Defense health care
program for service families (including TRICARE Prime, TRICARE Extra and TRICARE
Standard), and any successor or predecessor (including CHAMPUS) thereof.
"Trust Preferred Securities" means those trust preferred securities of
members of the Consolidated Group comprising $450,000,000 aggregate liquidation
amount of 7 7/8% US-dollar denominated trust preferred securities due 2008
issued by Fresenius Medical Care Capital Trust II, DM 300,000,000 aggregate
liquidation amount of 7 3/8% Deutsche xxxx-denominated trust preferred
securities due 2008 issued by Fresenius Medical Care Capital Trust III,
$225,000,000 aggregate liquidation amount of 7 7/8% US dollar denominated trust
preferred securities due 2011 issued by Fresenius Medical Care Capital Trust IV
and E 300, 000,000 aggregate liquidation amount of 7 3/8% Euro-denominated
trust preferred securities due 2011 issued by Fresenius Medical Care Capital
Trust V and, to the extent permitted hereunder, additional trust preferred
securities after the Closing Date issued by members of the Consolidated Group.
"Trust Preferred Subdebt" means $450,450,000 aggregate principal amount
of 7 7/8% US-dollar denominated senior subordinated notes due 2008 issued by FMC
Trust Finance S.a.r.l. Luxembourg to Fresenius Medical Care Capital Trust II,
DM300,300,000 aggregate principal amount of 7 3/8% Deutsche xxxx-denominated
senior subordinated notes due 2008 issued by FMC Trust Finance S.a.r.l.
Luxembourg to Fresenius Medical Care Capital Trust III, $225,225,000 aggregate
principal amount of 7 7/8% US-dollar denominated senior subordinated notes due
2011 issued by FMC Trust Finance S.a.r.l. Luxembourg-III to Fresenius Medical
Care Capital Trust IV and E 300,300,000 aggregate principal amount of 7 3/8%
Euro-denominated senior subordinated notes due 2011 issued by FMC Trust Finance
S.a.r.l. Luxembourg-III to Fresenius Medical Care Capital Trust V, in each case
in connection with a related issuance of Trust Preferred Securities.
"Type" means (i) with respect to a Committed Revolving Loan or a Term
Loan, its character as a Base Rate Loan or a Eurocurrency Rate Loan, and (ii)
with respect to a Competitive Revolving Loan, its character as an Absolute Rate
Loan or a Eurocurrency Margin Bid Loan.
"Unfunded Pension Liability" means the excess of a Pension Plan's
benefit liabilities under Section 4001(a)(16) of ERISA, over the current value
of that Pension Plan's assets, determined in accordance with the assumptions
used for funding the Pension Plan pursuant to Section 412 of the Internal
Revenue Code for the applicable plan year.
"United States" and "U.S." mean the United States of America.
"Unreimbursed Amount" shall have the meaning set forth in Section
2.08(c)(i).
"Wholly Owned" means, with respect to any direct or indirect Subsidiary
of any Person, that 100% of the Capital Stock with ordinary voting power issued
by such Subsidiary (other than directors' qualifying shares and investments by
foreign nationals mandated by applicable law) is beneficially
30
owned, directly or indirectly, by such Person; provided that any preferred stock
of FMCH outstanding as of the Closing Date shall be disregarded for purposes of
such determination.
"WRG-Conn" means X.X. Xxxxx & Co.-Xxxx., a Connecticut corporation.
1.02 Interpretive Provisions. With reference to this Credit
Agreement and each other Credit Document, unless otherwise provided herein or in
such other Credit Document:
(a) The meanings of defined terms are equally applicable
to the singular and plural forms of the defined terms.
(b) (i) The words "herein," "hereto," "hereof" and
"hereunder" and words of similar import when used in any Credit
Document shall refer to such Credit Document as a whole and not to any
particular provision thereof.
(ii) Unless otherwise provided or required by
context, Article, Section, Exhibit and Schedule references are
to the Credit Document in which such reference appears.
(iii) The term "including" is by way of example
and not limitation.
(iv) The term "documents" includes any and all
instruments, documents, agreements, certificates, notices,
reports, financial statements and other writings, however
evidenced, whether in physical or electronic form.
(c) In the computation of periods of time from a
specified date to a later specified date, the word "from" means "from
and including"; the words "to" and "until" each mean "to but
excluding"; and the word "through" means "to and including."
(d) Section headings herein and in the other Credit
Documents are included for convenience of reference only and shall not
affect the interpretation of this Credit Agreement or any other Credit
Document.
1.03 Accounting Terms.
(a) All accounting terms not specifically or completely defined
herein shall be construed in conformity with, and all financial data (including
financial ratios and other financial calculations) required to be submitted
pursuant to this Credit Agreement shall be prepared in conformity with, GAAP
applied on a consistent basis, as in effect from time to time, applied in a
manner consistent with that used in preparing the audited financial statements
for the fiscal year ended December 31, 2001, except as otherwise specifically
prescribed herein.
(b) Notwithstanding any provision herein to the contrary,
determinations of (i) the applicable pricing level under the definition of
"Applicable Percentage" and (ii) compliance with the financial covenants shall
be made on a Pro Forma Basis.
(c) With each annual and quarterly Compliance Certificate
delivered in accordance with Section 7.02(b), FMCAG will provide a written
summary of material changes in GAAP or in the consistent application of GAAP to
the extent that either affects the numeric value of any financial ratio or
requirement herein or in any other Credit Document. If at any time any change in
GAAP or any change in the application thereof would affect the computation of
any financial ratio or requirement set forth in
31
any Credit Document, and (i) FMCAG shall object to determining such compliance
based on GAAP or the application thereof then in effect, or (ii) the
Administrative Agent or the Required Lenders shall so object in writing within
thirty days after delivery of such financial statements, then such calculations
shall be made on a basis consistent with the most recent financial statements
delivered hereunder as to which no such objection shall have been made.
1.04 Rounding. Any financial ratios required to be maintained by
the Borrowers pursuant to this Credit Agreement shall be calculated by dividing
the appropriate component by the other component, carrying the result to one
place more than the number of places by which such ratio is expressed herein and
rounding the result up or down to the nearest number (with a rounding-up if
there is no nearest number).
1.05 References to Agreements and Laws. Unless otherwise expressly
provided herein, (a) references to Organization Documents, agreements (including
the Credit Documents) and other contractual instruments shall be deemed to
include all subsequent amendments, restatements, extensions, supplements and
other modifications thereto, but only to the extent that such amendments,
restatements, extensions, supplements and other modifications are not prohibited
by any Credit Document; and (b) references to any Law shall include all
statutory and regulatory provisions consolidating, amending, replacing,
supplementing or interpreting such Law.
1.06 Times of Day. Unless otherwise provided, all references herein
to times of day shall be references to Eastern time (daylight or standard, as
applicable).
1.07 Exchange Rates; Currency Equivalents.
(a) The Administrative Agent shall determine the Spot Rates as of
each Revaluation Date to be used for calculating Dollar Equivalent amounts of
Credit Extensions and Outstanding Amounts denominated in Foreign Currencies;
provided that (i) the Foreign Swing Line Lender may make such determinations
with respect to the Foreign Swing Line Loans, (ii) if a Lender is acting as
Competitive Bid Agent, such Competitive Bid Agent may make such determinations
with respect to Competitive Bid Loans and (iii) in any event, the Foreign Swing
Line Lender and the Competitive Bid Agent (whether a Lender or FMCH) may rely on
the most recent Spot Rate determined by the Administrative Agent. Such Spot
Rates shall become effective as of such Revaluation Date and shall be the Spot
Rates employed in converting any amounts between the applicable currencies until
the next Revaluation Date to occur.
(b) Wherever in this Agreement in connection with a Borrowing,
conversion, continuation or prepayment of a Loan or the issuance of a Letter of
Credit, an amount, such as a required minimum or multiple amount, is expressed
in Dollars, but such Borrowing, Loan or Letter of Credit is denominated in a
Foreign Currency, such amount shall be the relevant Foreign Currency Equivalent
of such Dollar amount (rounded to the nearest 1,000 units of such Foreign
Currency), as determined by the Administrative Agent; provided that (i) the
Foreign Swing Line Lender may make such determinations with respect to the
Foreign Swing Line Loans and (ii) if a Lender is acting as Competitive Bid
Agent, such Competitive Bid Agent may make such determinations with respect to
Competitive Bid Loans.
(c) Determinations by the Administrative Agent (and determinations
by the Foreign Swing Line Lender and determinations by any Lender acting as
Competitive Bid Agent, as applicable) pursuant to this Section 1.07 shall be
conclusive absent manifest error.
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1.08 Additional Foreign Currencies.
The Borrowers may from time to time request that Loans be made in a
currency other than those specifically listed in the definition of "Available
Foreign Currency"; provided that such requested currency otherwise meets the
requirements set forth in such definition. Any such request shall be made to the
Administrative Agent (which shall promptly notify each applicable Lender
thereof) not later than 12:00 noon ten Business Days prior to the date of the
desired Credit Extension. Each such Lender shall notify the Administrative
Agent, not later than 12:00 noon seven Business Days after receipt of such
request whether it consents, in its sole discretion, to making Loans in such
requested currency. Any failure by a Lender to respond to such request within
the time period specified in the preceding sentence shall be deemed to be a
refusal by such Lender to make Loans in such requested currency. If all the
applicable Lenders consent to making Loans in such requested currency, the
Administrative Agent shall so notify FMCH and such currency shall thereupon be
deemed for all purposes to be an Available Foreign Currency hereunder. Upon any
applicable Lender's refusal to make Loans in the additional requested currency,
the Borrowers may replace such Lender in accordance with Section 11.16.
1.09 Redenomination of Certain Foreign Currencies.
(a) Unless otherwise prohibited by Law, if more than one currency
unit are at the same time recognized by the central bank of any country as the
lawful currency of that country, then:
(i) any reference in the Credit Documents to, and any
Obligations in, the currency of that country shall be translated into,
or paid in, the currency or currency unit of that country designated by
the Administrative Agent (after consultation with FMCAG), and
(ii) any translation from one currency or currency unit to
another shall be at the official rate of exchange recognized by the
central bank for the conversion of that currency or currency unit into
the other.
(b) If a change in any currency of a country occurs, this Credit
Agreement will, to the extent the Administrative Agent (acting reasonably and
after consultation with FMCAG) specifies to be necessary, be deemed amended to
comply with any generally accepted conventions and market practice (including
the basis of accrual of interest) in the relevant interbank market and otherwise
to reflect such change in currency.
ARTICLE II
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 Commitments. Subject to the terms and conditions set forth
herein:
(a) Revolving Commitment. During the Commitment Period,
each Revolving Lender severally agrees to make revolving credit loans
(the "Committed Revolving Loans") in Dollars and in Available Foreign
Currencies on any Business Day to the Borrowers; provided that (i) with
respect to each Borrower, the aggregate principal amount of Revolving
Obligations owing by such Borrower shall not exceed its Designated
Borrowing Limit, (ii) with respect to the Revolving Lenders
collectively, (A) the aggregate principal amount of Revolving
Obligations shall not exceed FIVE HUNDRED MILLION DOLLARS
($500,000,000) (as such amount may be decreased in accordance with the
provisions hereof, the "Aggregate Revolving Committed Amount") and (B)
the aggregate principal amount of Revolving Obligations in Foreign
33
Currencies shall not exceed THREE HUNDRED MILLION DOLLARS ($300,000,000) (as
such amount may be decreased in accordance with the provisions hereof, the
"Aggregate Foreign Revolving Committed Amount"), and (iii) with respect to each
Revolving Lender individually, such Revolving Lender's Revolving Commitment
Percentage of Committed Revolving Obligations shall not exceed its respective
Revolving Committed Amount. Committed Revolving Loans may be comprised of Base
Rate Loans, Eurocurrency Rate Loans, or a combination thereof, as the respective
Borrower may request and may be repaid and reborrowed in accordance with the
provisions hereof.
(b) L/C Commitment. During the Commitment Period:
(i) the L/C Issuer, in reliance upon the
agreements from the Revolving Lenders set forth herein, agrees
(A) to issue Letters of Credit in Dollars and in Available
Foreign Currencies on any Business Day for the account of any
Borrower, for such Borrower's own use or for the use of its
Subsidiaries, and to amend or renew Letters of Credit
previously issued hereunder, in accordance with the provisions
hereof, and (B) to honor drafts under Letters of Credit, and
(ii) the Revolving Lenders severally agree to
participate in the Letters of Credit issued or existing
hereunder;
provided that (i) the aggregate principal amount of L/C Obligations shall not
exceed TWO HUNDRED FIFTY MILLION DOLLARS ($250,000,000) (as such amount may be
decreased in accordance with the provisions hereof, the "L/C Committed Amount"),
(ii) with respect to each Borrower, the aggregate principal amount of Revolving
Obligations owing by such Borrower shall not exceed its Designated Borrowing
Limit, (iii) with respect to the Revolving Lenders collectively, (A) the
aggregate principal amount of Revolving Obligations shall not exceed the
Aggregate Revolving Committed Amount and (B) the aggregate principal amount of
Revolving Obligations in Foreign Currencies shall not exceed the Aggregate
Foreign Revolving Committed Amount, and (iv) with respect to each Revolving
Lender individually, such Revolving Lender's Revolving Commitment Percentage of
Committed Revolving Obligations shall not exceed its respective Revolving
Committed Amount. Subject to the terms and conditions hereof, the Borrowers'
ability to obtain Letters of Credit shall be fully revolving, and accordingly
the Borrowers may obtain Letters of Credit to replace Letters of Credit that
have expired or that have been drawn upon and reimbursed. Existing Letters of
Credit shall be deemed to have been issued hereunder and shall be subject to and
governed by the terms and conditions hereof.
(c) Domestic Swing Line Commitment. During the Commitment Period,
the Domestic Swing Line Lender agrees to make revolving credit loans (the
"Domestic Swing Line Loans") in Dollars on any Business Day to the Borrowers;
provided that (i) the aggregate principal amount of Domestic Swing Line Loans
shall not exceed SEVENTY-FIVE MILLION DOLLARS ($75,000,000) (as such amount may
be decreased in accordance with the provisions hereof, the "Domestic Swing Line
Committed Amount"), (ii) with respect to each Borrower, the aggregate principal
amount of Revolving Obligations owing by such Borrower shall not exceed its
Designated Borrowing Limit, and (iii) with respect to the Revolving Lenders
collectively, the aggregate principal amount of Revolving Obligations shall not
exceed the Aggregate Revolving Committed Amount. Domestic Swing Line Loans shall
be comprised solely of Base Rate Loans, and may be repaid and reborrowed in
accordance with the provisions hereof. Immediately upon making a Domestic Swing
Line Loan, each Revolving Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the Domestic Swing Line Lender a risk
34
participation in such Domestic Swing Line Loan in an amount equal to the product
of such Revolving Lender's Revolving Commitment Percentage of such Domestic
Swing Line Loan.
(d) Foreign Swing Line Commitment. During the Commitment Period,
the Foreign Swing Line Lender agrees to make available to the Borrowers on any
Business Day revolving credit loans, letters of credit or bank guaranties or
other financial accommodations by mutual agreement (collectively, the "Foreign
Swing Line Loans"), which may consist of:
(i) revolving loans and letters of credit in Available
Foreign Currencies on a participated basis with the Revolving Lenders
(collectively, the "Shared Foreign Swing Line Loans"), and
(ii) bank guaranties and other forms of financial
accommodation in Available Foreign Currencies, and revolving loans,
letters of credit, bank guaranties and other forms of financial
accommodation (in such form as may be agreed by the applicable Borrower
and the Foreign Swing Line Lender) in Alternative Foreign Currencies,
in each case in such form and in such currencies as may be mutually
agreed, for the sole account of the Foreign Swing Line Lender on a
non-participated basis (collectively, the "Non-Shared Foreign Swing
Line Loans");
provided that (i) the aggregate principal amount of Foreign Swing Line Loans
shall not exceed FIFTY MILLION DOLLARS ($50,000,000) (as such amount may be
decreased in accordance with the provisions hereof, the "Foreign Swing Line
Committed Amount"), (ii) the aggregate principal amount of Non-Shared Foreign
Swing Line Loans shall not exceed TWENTY MILLION DOLLARS ($20,000,000) (as such
amount may be decreased in accordance with the provisions hereof, the
"Non-Shared Foreign Swing Line Maximum Amount"), (iii) with respect to each
Primary Borrower, the aggregate principal amount of Revolving Obligations owing
by such Primary Borrower shall not exceed its Designated Borrowing Limit, and
(iv) with respect to the Revolving Lenders collectively, (A) the aggregate
principal amount of Revolving Obligations shall not exceed the Aggregate
Revolving Committed Amount and (B) the aggregate principal amount of Revolving
Obligations in Foreign Currencies shall not exceed the Aggregate Foreign
Revolving Committed Amount. Foreign Swing Line Loans shall be comprised solely
of Eurocurrency Rate Loans, and may be repaid and reborrowed in accordance with
the provisions hereof. Immediately upon making a Shared Foreign Swing Line Loan,
each Revolving Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the Foreign Swing Line Lender a risk
participation in such Shared Foreign Swing Line Loan in an amount equal to the
product of such Revolving Lender's Revolving Commitment Percentage of such
Shared Foreign Swing Line Loan. The Revolving Lenders shall have no interest in
nor any obligation with respect to the Non-Shared Foreign Swing Line Loans which
shall be issued by the Foreign Swing Line Lender strictly for its own account.
(e) Competitive Revolving Loans. During the Commitment Period, a
Borrower may request the Revolving Lenders to submit offers to make loans, issue
letters of credit or bank guaranties, or make other financial accommodations
(collectively, the "Competitive Revolving Loans") in Dollars, Available Foreign
Currencies or Alternative Foreign Currencies; provided that (i) the aggregate
principal amount of Competitive Revolving Loans shall not exceed TWO HUNDRED
FIFTY MILLION DOLLARS ($250,000,000) (as such amount may be decreased in
accordance with the provisions hereof, the "Competitive Revolving Loan Maximum
Amount"), (ii) with respect to each Borrower, the aggregate principal amount of
Revolving Obligations owing by such Borrower shall not exceed its Designated
Borrowing Limit, and (iii) with respect to the Revolving Lenders collectively,
(A) the aggregate principal amount of Revolving
35
Obligations shall not exceed the Aggregate Revolving Committed Amount and (B)
the aggregate principal amount of Revolving Obligations in Foreign Currencies
shall not exceed the Aggregate Foreign Revolving Committed Amount. Competitive
Revolving Loans may be comprised of Eurocurrency Margin Bid Loans and Absolute
Rate Loans, or a combination thereof, as the applicable Borrower may request,
and may be repaid and reborrowed in accordance with the provisions hereof. There
shall not be more than twenty separate Competitive Revolving Loans outstanding
at any time.
(f) Tranche A Term Loan Commitment. On the Closing Date, each of
the Tranche A Term Lenders severally agrees to make its portion of a term loan
(in the amount of its respective Tranche A Term Loan Committed Amount) in a
single advance in Dollars to FMCH in an aggregate principal amount of FIVE
HUNDRED MILLION DOLLARS ($500,000,000) (the "Tranche A Term Loan"). The Tranche
A Term Loan may consist of Base Rate Loans, Eurocurrency Rate Loans or a
combination thereof, as such Borrower may request. Amounts repaid on the Tranche
A Term Loan may not be reborrowed.
(g) Tranche B Term Loan Commitment. On the Closing Date, each of
the Tranche B Term Lenders severally agrees to make its portion of a term loan
(in the amount of its respective Tranche B Term Loan Committed Amount) (the
"Tranche B Term Loan") consisting of (i) a single advance to FMCH by the Tranche
B Term Lenders with commitments in Dollars in the aggregate principal amount of
FOUR HUNDRED SIXTY-FIVE MILLION DOLLARS ($465,000,000) and (ii) a single advance
to FMCAG by the Tranche B Term Lenders with commitments in Euros in the
aggregate principal amount of THIRTY-TWO MILLION SEVEN HUNDRED THOUSAND EUROS
(E 32,700,000). The portion of the Tranche B Term Loan that is denominated
in Dollars may consist of Base Rate Loans, Eurocurrency Rate Loans or a
combination thereof, as such Borrower may request. The portion of Tranche B Term
Loan that is denominated in Euros shall consist of Eurocurrency Rate Loans.
Amounts repaid on the Tranche B Term Loan may not be reborrowed.
2.02 Borrowings, Conversions and Continuations of Loans.
(a) Each Borrowing, each conversion of Loans from one Type to the
other, and each continuation of Eurocurrency Rate Loans shall be made upon the
applicable Borrower's irrevocable notice to the Administrative Agent, which may
be given by telephone. Each such notice (except as otherwise set forth in
Section 2.10 with respect to Foreign Swing Line Loans) must be received by the
Administrative Agent not later than 11:30 a.m. (i) three Business Days prior to
the requested date of any Borrowing of, conversion to or continuation of
Eurocurrency Rate Loans denominated in Dollars, (ii) four Business Days prior to
the requested date of any Borrowing of, conversion to or continuation of
Eurocurrency Rate Loans denominated in Available Foreign Currencies (other than
Japanese yen), (iii) five Business Days prior to the requested date of any
Borrowing of, conversion to or continuation of Eurocurrency Rate Loans
denominated in Japanese yen and (iv) on the Business Day prior to the requested
date of any Borrowing of Base Rate Loans. Each telephonic notice by the
Borrowers pursuant to this Section 2.02 must be confirmed promptly by delivery
to the Administrative Agent of a written Loan Notice, appropriately completed
and signed by a Responsible Officer or duly authorized signatory of the
applicable Borrower. Each Borrowing of, conversion to or continuation of
Eurocurrency Rate Loans shall be in a principal amount of $5 million or a whole
multiple of $1 million in excess thereof. Except as provided in Sections
2.08(c), 2.09(b) and 2.10(b), each Borrowing of or conversion to Base Rate Loans
shall be in a principal amount of $500,000 or a whole multiple of $100,000 in
excess thereof. Each Loan Notice (whether telephonic or written) shall specify
(A) whether such Borrower is requesting a Borrowing, a conversion of Loans from
one Type to the other, or a continuation of Eurocurrency Rate Loans, (B) the
requested date of the Borrowing, conversion or continuation, as the case may be
(which shall be a
36
Business Day), (C) the principal amount of Loans to be borrowed, converted or
continued, (D) the Type of Loans to be borrowed or to which existing Loans are
to be converted, and (E) if applicable, the requested duration of the Interest
Period with respect thereto. If such Borrower fails to specify a Type of Loan in
a Loan Notice or if such Borrower fails to give a timely notice requesting a
conversion or continuation, then the applicable Loans shall be made as, or
converted to, Base Rate Loans. Any such automatic conversion to Base Rate Loans
shall be effective as of the last day of the Interest Period then in effect with
respect to the applicable Eurocurrency Rate Loans. If such Borrower requests a
Borrowing of, conversion to, or continuation of Eurocurrency Rate Loans in any
such Loan Notice, but fails to specify an Interest Period, it will be deemed to
have specified an Interest Period of one month.
(b) Following receipt of a Loan Notice, the Administrative Agent
shall promptly notify each Lender of the amount of its Commitment Percentage of
the applicable Loans, and if no timely notice of a conversion or continuation is
provided by the Borrowers, the Administrative Agent shall notify each Lender of
the details of any automatic conversion to Base Rate Loans described in the
preceding subsection. In the case of a Borrowing, each Lender shall make the
amount of its Loan available to the Administrative Agent in Same Day Funds at
the Administrative Agent's Office not later than 1:00 p.m. on the Business Day
specified in the applicable Loan Notice. Upon satisfaction of the applicable
conditions set forth in Section 5.02 (and, if such Borrowing is the initial
Credit Extension, Section 5.01), the Administrative Agent shall make all funds
so received available to the applicable Borrower in like funds as received by
the Administrative Agent either by (i) crediting the account of such Borrower on
the books of the Administrative Agent with the amount of such funds or (ii) wire
transfer of such funds, in each case in accordance with instructions provided to
(and reasonably acceptable to) the Administrative Agent by such Borrower;
provided, however, that if, on the date of such Borrowing, there are Swing Line
Loans or L/C Borrowings outstanding, then the proceeds of such Borrowing shall
be applied, first, to the payment in full of any such L/C Borrowings, second, to
the payment in full of any such Swing Line Loan, and third, to such Borrower as
provided above.
(c) Except as otherwise provided herein, without the consent of
the Required Lenders, (i) a Eurocurrency Rate Loan may be continued or converted
only on the last day of an Interest Period for such Eurocurrency Rate Loan and
(ii) any conversion into, or continuation as, a Eurocurrency Rate Loan may be
made only if the conditions to Credit Extensions in Section 5.02 have been
satisfied. During the existence of a Default or Event of Default, (i) no Loan
may be requested as, converted to or continued as a Eurocurrency Rate Loan and
(ii) at the request of the Required Lenders, any outstanding Eurocurrency Rate
Loan shall be converted immediately to a Base Rate Loan.
(d) The Administrative Agent shall promptly notify the applicable
Borrower (with a copy to FMCAG and FMCH) and the Lenders of the interest rate
applicable to any Interest Period for Eurocurrency Rate Loans upon determination
of such interest rate. The determination of the Eurocurrency Rate by the
Administrative Agent shall be conclusive in the absence of manifest error. At
any time that Base Rate Loans are outstanding, the Administrative Agent shall
notify FMCH and the Lenders of any change in Bank of America's prime rate used
in determining the Base Rate promptly following the public announcement of such
change.
(e) After giving effect to all Borrowings, all conversions of
Loans from one Type to the other, and all continuations of Loans as the same
Type, (i) there shall not be more than twenty Interest Periods in effect with
respect to all Committed Revolving Loans hereunder, (ii) there shall not be more
than five Interest Periods in effect with respect to the Tranche A Term Loan,
(iii) there shall not be more than five Interest Periods in effect with respect
to the portion of the Tranche B Term Loan funded in Dollars and (iv) there shall
not be more than five Interest Periods in effect with respect to the portion of
the Tranche B Term Loan funded in Euros; provided in each case that, for
purposes hereof, Interest
37
Periods with respect to Loans (whether or not of the same Type) with separate or
different Interest Periods will be considered as separate Interest Periods, even
if such Interest Periods end on the same date.
2.03 Interest.
(a) Subject to the provisions of subsection (b) below, (i) each
Eurocurrency Rate Committed Loan shall bear interest on the outstanding
principal amount thereof for each Interest Period at a rate per annum equal to
the sum of the Eurocurrency Rate plus the Applicable Percentage, (ii) each Base
Rate Loan shall bear interest on the outstanding principal amount thereof from
the applicable borrowing date at a rate per annum equal to the sum of the Base
Rate plus the Applicable Percentage, (iii) each Domestic Swing Line Loan shall
bear interest on the outstanding principal amount thereof from the applicable
borrowing date at a per annum rate equal to the sum of the Base Rate plus the
Applicable Percentage, (iv) each Foreign Swing Line Loan shall bear interest on
the outstanding principal amount thereof from the applicable borrowing date at a
per annum rate equal to the sum of the Eurocurrency Rate plus the Applicable
Percentage, and (v) each Competitive Revolving Loan shall bear interest on the
outstanding principal amount thereof for each Interest Period at a rate per
annum equal to the sum of the Eurocurrency Rate plus (or minus) the Eurocurrency
Bid Margin, or at the Absolute Rate, as the case may be.
(b) If any amount payable by the Borrowers under any Credit
Document is not paid when due (without regard to any applicable grace periods),
whether at stated maturity, by acceleration or otherwise, such amount shall
thereafter bear interest at a fluctuating interest rate per annum at all times
equal to the Default Rate to the fullest extent permitted by applicable Laws.
Furthermore, upon the request of the Required Lenders, while any Event of
Default exists, the Borrowers shall pay interest on the principal amount of all
outstanding Obligations hereunder at a fluctuating interest rate per annum at
all times equal to the Default Rate to the fullest extent permitted by
applicable Laws. Accrued and unpaid interest on past due amounts (including
interest on past due interest) shall be due and payable upon demand.
(c) Interest on each Loan shall be due and payable in arrears on
each Interest Payment Date applicable thereto and at such other times as may be
specified herein. Interest hereunder shall be due and payable in accordance with
the terms hereof before and after judgment, and before and after the
commencement of any proceeding under any Debtor Relief Law.
2.04 Fees.
(a) Commitment Fee. The Borrowers shall pay to the Administrative
Agent for the account of each Revolving Commitment Lender in accordance with its
Revolving Commitment Percentage, a commitment fee equal to the Applicable
Percentage of the actual daily amount by which the Aggregate Revolving Committed
Amount exceeds the sum of (i) the Outstanding Amount of Committed Revolving
Loans and (ii) the Outstanding Amount of L/C Obligations. The commitment fee
shall accrue at all times during the Commitment Period, including at any time
during which one or more of the conditions in Article V is not met, and shall be
due and payable quarterly in arrears on each April 15, July 15, October 15 and
January 15 for the immediately preceding quarter ending prior to each such date,
commencing with the first such date to occur after the Closing Date, and on the
Termination Date. The commitment fee shall be calculated quarterly in arrears,
and if there is any change in the Applicable Percentage during any quarter, the
actual daily amount shall be computed and multiplied by the Applicable
Percentage separately for each period during such quarter that such Applicable
Percentage was in effect. For purposes hereof, (i) Swing Line Loans and
Competitive Bid Loans shall not be counted toward or be considered as usage of
the Aggregate Revolving Committed Amount and (ii) L/C Obligations shall be
counted toward and considered as usage of the Aggregate Revolving Committed
Amount.
38
(b) Letter of Credit Fees. The Borrowers shall pay to the
Administrative Agent for the account of each Lender in accordance with its
Revolving Commitment Percentage a Letter of Credit fee for each Letter of Credit
equal to the Applicable Percentage of the daily maximum amount available to be
drawn under such Letter of Credit (whether or not such maximum amount is then in
effect under such Letter of Credit). Such fees shall be due and payable
quarterly in arrears on each April 15, July 15, October 15 and January 15 for
the immediately preceding quarter ending prior to such date, commencing with the
first such date to occur after the issuance of such Letter of Credit. Such fees
shall be calculated quarterly in arrears, and if there is any change in the
Applicable Percentage during any quarter, the actual daily amount of each Letter
of Credit shall be computed and multiplied by the Applicable Percentage for
Letters of Credit separately for each period during such quarter that such
Applicable Percentage was in effect.
(c) Fronting Fee and Documentary and Processing Charges Payable to
L/C Issuer. The Borrowers shall pay directly to the L/C Issuer for its own
account a fronting fee with respect to each Letter of Credit in the amounts and
at the times separately agreed upon in writing. In addition, the Borrowers shall
pay directly to the L/C Issuer for its own account the customary issuance,
presentation, amendment and other processing fees, and other standard costs and
charges, of the L/C Issuer relating to letters of credit as from time to time in
effect. Such customary fees and standard costs and charges are due and payable
on demand and are nonrefundable.
(d) Other Fees.
(i) The Borrowers shall pay to the Arrangers, the
Co-Documentation Agents and the Administrative Agent, for their own
respective accounts, fees in the amounts and at the times specified in
the Fee Letter. Such fees shall be fully earned when paid and shall not
be refundable for any reason whatsoever.
(ii) The Borrowers shall pay to the Competitive Bid Agent,
for its own account, such fees as shall have been separately agreed
upon in writing in the amounts and at the times so specified. Such fees
shall be fully earned when paid and shall not be refundable for any
reason whatsoever.
(iii) The Borrowers shall pay to the Lenders, for their own
respective accounts, such fees as shall have been separately agreed
upon in writing in the amounts and at the times so specified. Such fees
shall be fully earned when paid and shall not be refundable for any
reason whatsoever.
2.05 Repayment of Loans.
(a) Revolving Loans. The Borrowers shall repay to the Lenders on
the Termination Date the aggregate principal amount of Revolving Loans
outstanding on such date.
(b) Swing Line Loans. The Borrowers shall repay each Swing Line
Loan on the earliest to occur of (i) the date of demand for repayment by the
Swing Line Lender, (ii) the date of any payment under Section 2.02(b), (iii) the
date which is fourteen Business Days following the advance of such Swing Line
Loan and (iv) the Termination Date.
(c) Competitive Revolving Loans. The Borrowers shall repay each
Competitive Revolving Loan on the earlier of (i) the maturity date thereof or
the last day of the Interest Period therefor, and (ii) the Termination Date.
39
(d) Tranche A Term Loan. The Borrower shall repay to the Lenders
the principal amount of the Tranche A Term Loan in quarterly installments on the
dates set forth below, commencing on September 30, 2004, as follows:
----------------------------------------------------------------------------------------------------------------
Principal Principal
Date Amortization Payment Date Amortization Payment
----------------------------------------------------------------------------------------------------------------
September 30, 2004 $25,000,000 June 30, 2006 $ 25,000,000
December 31, 2004 $25,000,000 September 30, 2006 $ 25,000,000
March 31, 2005 $25,000,000 December 31, 2006 $ 25,000,000
June 30, 2005 $25,000,000 March 31, 2007 $ 25,000,000
September 30, 2005 $25,000,000 June 30, 2007 $ 25,000,000
December 31, 2005 $25,000,000 September 30, 2007 $ 25,000,000
March 31, 2006 $25,000,000 October 31, 2007 $175,000,000
------------
Total: $500,000,000
----------------------------------------------------------------------------------------------------------------
(e) Tranche B Term Loan. Subject to Section 2.06(b)(v), the
Borrowers shall repay to the Lenders the principal amount of the Tranche B Term
Loan in quarterly installments on the dates set forth below, commencing on June
30, 2003, as follows:
--------------------------------------------------------------------------------------------------------------------
Principal Principal
Date Amortization Payment Date Amortization Payment
--------------------------------------------------------------------------------------------------------------------
June 30, 2003 $1,162,500 E81,638.37 December 31, 2006 $ 1,162,500 E81,638.37
September 30, 2003 $1,162,500 E81,638.37 March 31, 2007 $ 1,162,500 E81,638.37
December 31, 2003 $1,162,500 E81,638.37 June 30, 2007 $ 1,162,500 E81,638.37
March 31, 2004 $1,162,500 E81,638.37 September 30, 2007 $ 1,162,500 E81,638.37
June 30, 2004 $1,162,500 E81,638.37 December 31, 2007 $ 1,162,500 E81,638.37
September 30, 2004 $1,162,500 E81,638.37 March 31, 2008 $ 1,162,500 E81,638.37
December 31, 2004 $1,162,500 E81,638.37 June 30, 2008 $ 1,162,500 E81,638.37
March 31, 2005 $1,162,500 E81,638.37 September 30, 2008 $ 1,162,500 E81,638.37
June 30, 2005 $1,162,500 E81,638.37 December 31, 2008 $ 1,162,500 E81,638.37
September 30, 2005 $1,162,500 E81,638.37 March 31, 2009 $ 1,162,500 E81,638.37
December 31, 2005 $1,162,500 E81,638.37 June 30, 2009 $ 1,162,500 E81,638.37
March 31, 2006 $1,162,500 E81,638.37 September 30, 2009 $ 1,162,500 E81,638.37
June 30, 2006 $1,162,500 E81,638.37 December 31, 2009 $ 1,162,500 E81,638.37
September 30, 2006 $1,162,500 E81,638.37 February 21, 2010 $433,612,500 E30,451,110.29
------------ --------------
Totals: $465,000,000 E32,655,346.15
--------------------------------------------------------------------------------------------------------------------
2.06 Prepayments.
(a) Voluntary Prepayments. The Loans may be repaid in whole or in
part without premium or penalty (except, in the case of Loans other than Base
Rate Loans, amounts payable pursuant to Section 3.05); provided that:
(i) in the case of Loans other than Swing Line Loans, (A)
notice thereof must be received by 12:00 noon by the Administrative
Agent at least (1) three Business Days prior to the date of prepayment
of Eurocurrency Rate Loans denominated in Dollars, (2) four Business
Days prior to the date of prepayment of Eurocurrency Rate Loans
denominated in Available Foreign Currencies (other than Japanese yen),
(3) five Business Days prior to the date of prepayment of Eurocurrency
Rate Loans denominated in Japanese yen and (4) on the Business Day
prior to the date of prepayment of Base Rate Loans, (B) any such
prepayment shall be in a minimum principal amount of $5 million and
integral multiples of $1 million in excess thereof, in the case of
Eurocurrency Rate Loans, and a minimum principal amount of $500,000 and
integral multiples of $100,000 in excess thereof, in the case of Base
Rate Loans, or, in each case, the entire principal amount thereof, if
less;
40
(ii) (A) in the case of Domestic Swing Line Loans, (1)
notice thereof must be received by 2:00 p.m. by the Domestic Swing Line
Lender on the date of prepayment (with a copy to the Administrative
Agent) and (2) any such prepayments shall be in the same minimum
principal amount as for advances thereof (or any lesser amount as may
be acceptable to the Domestic Swing Line Lender), and (B) in the case
of Foreign Swing Line Loans, notice thereof must be received by 2:00
p.m. by the Foreign Swing Line Lender on the Business Day prior to the
date of prepayment (with a copy to the Administrative Agent) and (2)
any such prepayments shall be in the same minimum principal amount as
for advances thereof (or any lesser amount as may be acceptable to the
Foreign Swing Line Lender); and
(iii) any voluntary prepayments on the Term Loans must be
applied pro rata to the Tranche A Term Loan and the Tranche B Term
Loan.
Each such notice of voluntary repayment hereunder shall be irrevocable and shall
specify the date and amount of prepayment and the Loans and Types of Loans which
are to be prepaid. The Administrative Agent will give prompt notice to the
applicable Lenders of any prepayment on the Loans and the Lender's interest
therein. Prepayments of Eurocurrency Rate Loans hereunder shall be accompanied
by accrued interest thereon and breakage amounts, if any, under Section 3.05.
(b) Mandatory Prepayments.
(i) Revolving Commitments. If at any time (A) the
aggregate principal amount of Revolving Obligations shall exceed the
Aggregate Revolving Committed Amount, (B) the aggregate principal
amount of Revolving Obligations owing by any Borrower shall exceed its
respective Designated Borrowing Limit, (C) the aggregate principal
amount of Revolving Obligations in Foreign Currencies shall exceed the
Aggregate Foreign Revolving Committed Amount, (D) the aggregate
principal amount of L/C Obligations shall exceed the L/C Committed
Amount, (E) the aggregate principal amount of Domestic Swing Line Loans
shall exceed the Domestic Swing Line Committed Amount, (F) the
aggregate principal amount of Foreign Swing Line Loans shall exceed the
Foreign Swing Line Committed Amount, (G) the aggregate principal amount
of Non-Shared Foreign Swing Line Loans shall exceed the Non-Shared
Foreign Swing Line Maximum Amount, or (H) the aggregate principal
amount of Competitive Revolving Loans shall exceed the Competitive
Revolving Loan Maximum Amount, immediate prepayment will be made on the
Revolving Loans and/or to Cash Collateralize the L/C Obligations in an
amount equal to such excess; provided, however, that except as relates
to clause (D) above, L/C Obligations will not be Cash Collateralized
hereunder until the Revolving Loans and Swing Line Loans have been paid
in full.
(ii) Dispositions. Prepayment will be made on the Loan
Obligations on the Business Day following receipt of any Net Cash
Proceeds required to be prepaid pursuant to the terms of clauses (A)
and (B) hereof in an amount equal to 50% of the Net Cash Proceeds
received from any Disposition by any member of the Consolidated Group
(other than in connection with a Disposition permitted by Section
8.05(a), a Securitization Transaction permitted by Section 8.01(f), or
Sale and Leaseback Transaction permitted by Section 8.05(d) or any
Disposition to another member of the Consolidated Group permitted by
clauses (e) or (f) of Section 8.05) to the extent (A) such proceeds are
not reinvested in the same or similar properties or assets within
twelve months of the date of such Disposition and (B) the aggregate
amount of such proceeds that are not reinvested in accordance with
clause (A) hereof exceeds $10 million in any fiscal year.
(iii) Debt Transactions. Until the occurrence of an
Mandatory Prepayment Modification Event, prepayment will be made on the
Loan Obligations in an amount equal to
41
50% of the Net Cash Proceeds from any Debt Transactions on the Business
Day following receipt thereof (but excluding any refinancings unless
Net Cash Proceeds are generated therefrom) occurring after the Closing
Date.
(iv) Securitization Transactions. Until the occurrence of
a Mandatory Prepayment Modification Event, prepayment will be made on
the Loan Obligations in an amount equal to 100% of the Net Cash
Proceeds from any Securitization Transaction (other than the Excluded
Securitization Transactions or any replacements or refinancings
thereof) on the Business Day following receipt thereof.
(v) Tranche B Term Loan. The Tranche B Term Loan will be
prepaid in full on October 31, 2007, if the $450 million 7.875% Trust
Preferred Securities due February 1, 2008 and the DM300 million 7.375%
Trust Preferred Securities due February 1, 2008 are not repaid (with
the consent of the Required Lenders hereunder), or refinanced or the
maturity date thereof extended by October 1, 2007, in either case, to a
date that is at least seven and one-half years after the Closing Date.
(c) Application. Within each Loan, prepayments will be applied
first to Base Rate Loans, then to Eurocurrency Rate Loans in direct order of
Interest Period maturities. In addition:
(i) Voluntary Prepayments. Voluntary prepayments shall be
applied as specified by the Borrowers; provided that (A) any voluntary
prepayment on the Term Loans shall be applied pro rata to the Tranche A
Term Loan and the Tranche B Term Loan, (B) prepayments on the Tranche A
Term Loan shall be applied pro rata to remaining principal amortization
installments thereunder, (C) prepayments on the Tranche B Term Loan
shall be applied to remaining principal amortization installments in
inverse order of maturity. Voluntary prepayments on the Loan
Obligations will be paid by the Administrative Agent to the Lenders
ratably in accordance with their respective interests therein.
(ii) Mandatory Prepayments. Mandatory prepayments on the
Loan Obligations will be paid by the Administrative Agent to the
Lenders ratably in accordance with their respective interests therein;
provided that:
(A) Mandatory prepayments in respect of the
Revolving Commitments under subsection (b)(i) above shall be
applied to the respective Revolving Obligations as
appropriate.
(B) Mandatory prepayments in respect of
Dispositions under subsection (b)(ii) above, Debt Transactions
under subsection (b)(iii) and Securitization Transactions
under subsection (b)(iv) above shall be applied first to the
Term Loans until paid in full, and then to the Revolving
Obligations. Mandatory prepayments on the Term Loans shall be
applied pro rata to the Tranche A Term Loan and the Tranche B
Term Loan. Prepayments on the Tranche A Term Loan shall be
applied pro rata to remaining principal amortization
installments thereunder, and prepayments on the Tranche B Term
Loan shall be applied to remaining principal amortization
installments in inverse order of maturity.
2.07 Termination or Reduction of Commitments.
(a) Voluntary Reductions. The Commitments hereunder may be
permanently reduced in whole or in part by notice from FMCAG to the
Administrative Agent; provided that (i) any such notice
42
thereof must be received by 12:00 noon by the Administrative Agent at least
three Business Days prior to the date of reduction or termination and any such
prepayment shall be in a minimum principal amount of $5 million and integral
multiples of $1 million in excess thereof; and (ii) the Commitments may not be
reduced to an amount less than the obligations then outstanding thereunder. The
Administrative Agent will give prompt notice to the applicable Lenders of any
such reduction in Commitments and the Lender's portion thereof. Any such
reduction in Commitments will be accompanied by payment of fees which have
accrued but have not been paid in respect of the Commitments that are being
terminated.
(b) Mandatory Reductions. The Aggregate Revolving Committed Amount
shall be permanently reduced in an amount equal to prepayments applied to the
Revolving Obligations in respect of Dispositions under Section 2.06(b)(ii), Debt
Transactions under Section 2.06(b)(iii) and Securitization Transactions under
Section 2.06(b)(iv).
2.08 Additional Provisions with respect to Letters of Credit.
(a) Obligation to Issue and Amend.
(i) The L/C Issuer shall be under no obligation to issue
any Letter of Credit if:
(A) the issuance of such Letter of Credit would
violate one or more policies of the L/C Issuer applicable to
its customers generally; or
(B) such Letter of Credit is in an initial
amount less than $50,000 or is to be denominated in a currency
other than Dollars or Available Foreign Currencies.
(ii) The L/C Issuer shall not issue any Letter of Credit
if:
(A) any order, judgment or decree of any
Governmental Authority or arbitrator shall by its terms
purport to enjoin or restrain the L/C Issuer from issuing such
Letter of Credit, or any Law applicable to the L/C Issuer or
any request or directive (whether or not having the force of
Law) from any Governmental Authority with jurisdiction over
the L/C Issuer shall prohibit, or request that the L/C Issuer
refrain from, the issuance of letters of credit generally or
such Letter of Credit in particular or shall impose upon the
L/C Issuer with respect to such Letter of Credit any
restriction, reserve or capital requirement (for which the L/C
Issuer is not otherwise compensated hereunder) not in effect
on the Closing Date, or shall impose upon the L/C Issuer any
unreimbursed loss, cost or expense that was not applicable on
the Closing Date and that the L/C Issuer in good xxxxx xxxxx
material to it;
(B) subject to Section 2.08(b)(iii), the expiry
date of such requested Letter of Credit would occur more than
twelve months after the date of issuance or last renewal;
(C) one or more applicable conditions contained
in Section 5.02 shall not then be satisfied and the L/C Issuer
shall have received written notice thereof from the
Administrative Agent or any Revolving Lender or any Credit
Party at least one Business Day prior to the requested date of
issuance of such Letter of Credit; or
(D) the Commitments have been terminated
pursuant to Section 9.02.
43
(iii) The L/C Issuer shall be under no obligation to amend
any Letter of Credit if:
(A) the L/C Issuer would have no obligation at
such time to issue such Letter of Credit in its amended form
under the terms hereof; or
(B) the beneficiary of such Letter of Credit
does not accept the proposed amendment to such Letter of
Credit.
(iv) The L/C Issuer shall not amend any Letter of Credit
if:
(A) one or more applicable conditions contained
in Section 5.02 shall not then be satisfied and the L/C Issuer
shall have received written notice thereof from any Revolving
Lender or any Credit Party at least one Business Day prior to
the requested date of amendment of such Letter of Credit; or
(B) the Commitments have been terminated
pursuant to Section 9.02.
(b) Procedures for Issuance and Amendment of Letters of Credit;
Auto-Renewal Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as
the case may be, upon the request of the applicable Borrower delivered
to the L/C Issuer (with a copy to the Administrative Agent) in the form
of a Letter of Credit Application, appropriately completed and signed
by a Responsible Officer or duly authorized signatory of such Borrower.
Such Letter of Credit Application must be received by the L/C Issuer
and the Administrative Agent not later than 12:00 noon at least two
Business Days (or such later date and time as the L/C Issuer may agree
in a particular instance in its sole discretion) prior to the proposed
issuance date or date of amendment, as the case may be. In the case of
a request for an initial issuance of a Letter of Credit, such Letter of
Credit Application shall specify in form and detail satisfactory to the
L/C Issuer: (A) the proposed issuance date of the requested Letter of
Credit (which shall be a Business Day); (B) the currency and amount
thereof; (C) the expiry date thereof; (D) the name and address of the
beneficiary thereof; (E) the documents to be presented by such
beneficiary in case of any drawing thereunder; (F) the full text of any
certificate to be presented by such beneficiary in case of any drawing
thereunder; and (G) such other matters as the L/C Issuer may require.
In the case of a request for an amendment of any outstanding Letter of
Credit, such Letter of Credit Application shall specify in form and
detail satisfactory to the L/C Issuer (1) the Letter of Credit to be
amended; (2) the proposed date of amendment thereof (which shall be a
Business Day); (3) the nature of the proposed amendment; and (4) such
other matters as the L/C Issuer may require.
(ii) Promptly after receipt of any Letter of Credit
Application, the L/C Issuer will confirm with the Administrative Agent
(by telephone or in writing) that the Administrative Agent has received
a copy of such Letter of Credit Application from such Borrower and, if
not, the L/C Issuer will provide the Administrative Agent with a copy
thereof. Upon receipt by the L/C Issuer of confirmation from the
Administrative Agent that the requested issuance or amendment is
permitted in accordance with the terms hereof, then, subject to the
terms and conditions hereof, the L/C Issuer shall, on the requested
date, issue a Letter of Credit for the account of such Borrower or
enter into the applicable amendment, as the case may be, in each case
in accordance with the L/C Issuer's usual and customary business
practices. Immediately upon the issuance of each Letter of Credit, each
Revolving Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the L/C Issuer a risk
participation in such Letter of
44
Credit in an amount equal to the product of such Lender's Revolving
Commitment Percentage multiplied by the amount of such Letter of
Credit.
(iii) If the Borrowers so request in any applicable Letter
of Credit Application, the L/C Issuer may, in its sole and absolute
discretion, agree to issue a Letter of Credit that has automatic
renewal provisions (each, an "Auto-Renewal Letter of Credit"); provided
that any such Auto-Renewal Letter of Credit must permit the L/C Issuer
to prevent any such renewal at least once in each twelve-month period
(commencing with the date of issuance of such Letter of Credit) by
giving prior notice to the beneficiary thereof not later than a day
(the "Nonrenewal Notice Date") in each such twelve-month period to be
agreed upon at the time such Letter of Credit is issued. Unless
otherwise directed by the L/C Issuer, the Borrowers shall not be
required to make a specific request to the L/C Issuer for any such
renewal. Once an Auto-Renewal Letter of Credit has been issued, the
Revolving Lenders shall be deemed to have authorized (but may not
require) the L/C Issuer to permit the renewal of such Letter of Credit
at any time prior to the Letter of Credit Expiration Date; provided,
however, that the L/C Issuer shall not permit any such renewal if (A)
the L/C Issuer has determined that it would have no obligation at such
time to issue such Letter of Credit in its renewed form under the terms
hereof (by reason of the provisions of Section 2.08(a) or otherwise),
or (B)(1) it has received notice (which may be by telephone or in
writing) on or before the day that is five Business Days before the
Nonrenewal Notice Date from the Administrative Agent that the Required
Revolving Lenders have elected not to permit such renewal or (2) one or
more of the applicable conditions specified in Section 5.02 is not then
satisfied and the L/C Issuer shall have received notice thereof from
the Administrative Agent, any Revolving Lender or the Borrowers.
(iv) Promptly after its delivery of any Letter of Credit
or any amendment to a Letter of Credit to an advising bank with respect
thereto or to the beneficiary thereof, the L/C Issuer will also deliver
to the applicable Borrower and the Administrative Agent a true and
complete copy of such Letter of Credit or amendment.
(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon any drawing under any Letter of Credit, the L/C
Issuer shall notify FMCH and the Administrative Agent thereof. Not
later than 12:00 noon on the date of any payment by the L/C Issuer
under a Letter of Credit (each such date, an "Honor Date"), the
Borrowers shall reimburse the L/C Issuer through the Administrative
Agent in an amount equal to the amount of such drawing. If the
Borrowers fail to so reimburse the L/C Issuer by such time, the
Administrative Agent shall promptly notify each Revolving Lender of the
Honor Date, the amount of the unreimbursed drawing (the "Unreimbursed
Amount"), and the amount of such Lender's Revolving Commitment
Percentage thereof. In the case of any Letter of Credit denominated in
a Foreign Currency, the Unreimbursed Amount shall be redenominated into
Dollars and equal the Dollar Equivalent amount thereof, and the
Administrative Agent shall notify the Revolving Lenders thereof. In
such event, the Borrowers shall be deemed to have requested a Borrowing
of Revolving Loans that are Base Rate Loans to be disbursed on the
Honor Date in an amount equal to the Unreimbursed Amount, without
regard to the minimum and multiples specified in Section 2.02 for the
principal amount of Base Rate Loans, the amount of the unutilized
portion of the Aggregate Revolving Commitments or the conditions set
forth in Section 5.02. Any notice given by the L/C Issuer or the
Administrative Agent pursuant to this Section 2.08(c)(i) may be given
by telephone if immediately confirmed in writing; provided that the
lack of such an immediate confirmation shall not affect the
conclusiveness or binding effect of such notice.
45
(ii) Each Revolving Lender (including the Lender acting as
L/C Issuer) shall upon any notice pursuant to Section 2.08(c)(i) make
funds available to the Administrative Agent for the account of the L/C
Issuer at the Administrative Agent's Office in an amount equal to its
Revolving Commitment Percentage of the Unreimbursed Amount not later
than 2:00 p.m. on the Business Day specified in such notice by the
Administrative Agent, whereupon, subject to the provisions of Section
2.08(c)(iii), each Revolving Lender that so makes funds available shall
be deemed to have made a Revolving Loan that is a Base Rate Loan to the
Borrowers in such amount. The Administrative Agent shall remit the
funds so received to the L/C Issuer.
(iii) With respect to any Unreimbursed Amount that is not
fully refinanced by a Borrowing of Revolving Loans that are Base Rate
Loans for any reason, the Borrowers shall be deemed to have incurred
from the L/C Issuer an L/C Borrowing in the amount of the Unreimbursed
Amount that is not so refinanced, which L/C Borrowing shall be due and
payable on demand (together with interest) and shall bear interest at
the Default Rate. In such event, each Revolving Lender's payment to the
Administrative Agent for the account of the L/C Issuer pursuant to
Section 2.08(c)(ii) shall be deemed payment in respect of its
participation in such L/C Borrowing and shall constitute an L/C Advance
from such Lender in satisfaction of its participation obligation under
this Section 2.08.
(iv) Until each Revolving Lender funds its Revolving Loan
or L/C Advance pursuant to this Section 2.08(c) to reimburse the L/C
Issuer for any amount drawn under any Letter of Credit, interest in
respect of such Lender's Revolving Commitment Percentage of such amount
shall be solely for the account of the L/C Issuer.
(v) Each Revolving Lender's obligation to make Revolving
Loans or L/C Advances to reimburse the L/C Issuer for amounts drawn
under Letters of Credit, as contemplated by this Section 2.08(c), shall
be absolute and unconditional and shall not be affected by any
circumstance, including (A) any set-off, counterclaim, recoupment,
defense or other right that such Lender may have against the L/C
Issuer, the Borrowers or any other Person for any reason whatsoever;
(B) the occurrence or continuance of a Default or Event of Default, (C)
non-compliance with the conditions set forth in Section 5.02, or (D)
any other occurrence, event or condition, whether or not similar to any
of the foregoing. No such making of an L/C Advance shall relieve or
otherwise impair the obligation of the Borrowers to reimburse the L/C
Issuer for the amount of any payment made by the L/C Issuer under any
Letter of Credit, together with interest as provided herein.
(vi) If any Revolving Lender fails to make available to
the Administrative Agent for the account of the L/C Issuer any amount
required to be paid by such Lender pursuant to the foregoing provisions
of this Section 2.08(c) by the time specified in Section 2.08(c)(ii),
the L/C Issuer shall be entitled to recover from such Lender (acting
through the Administrative Agent), on demand, such amount with interest
thereon for the period from the date such payment is required to the
date on which such payment is immediately available to the L/C Issuer
at a rate per annum equal to the Federal Funds Rate then in effect. A
certificate of the L/C Issuer submitted to any Revolving Lender
(through the Administrative Agent) with respect to any amounts owing
under this clause (vi) shall be conclusive absent manifest error.
(d) Repayment of Participations.
(i) At any time after the L/C Issuer has made a payment
under any Letter of Credit and has received from any Revolving Lender
such Lender's L/C Advance in respect of such payment in accordance with
Section 2.08(c), if the Administrative Agent receives for the account
46
of the L/C Issuer any payment in respect of the related Unreimbursed
Amount or interest thereon (whether directly from the Borrowers or
otherwise, including proceeds of cash collateral applied thereto by the
Administrative Agent), the Administrative Agent will distribute to such
Lender its Revolving Commitment Percentage thereof (appropriately
adjusted, in the case of interest payments, to reflect the period of
time during which such Lender's L/C Advance was outstanding) in the
same funds as those received by the Administrative Agent.
(ii) If any payment received by the Administrative Agent
for the account of the L/C Issuer pursuant to Section 2.08(c)(i) is
required to be returned under any of the circumstances described in
Section 11.06 (including pursuant to any settlement entered into by the
L/C Issuer in its discretion), each Revolving Lender shall pay to the
Administrative Agent for the account of the L/C Issuer its Revolving
Commitment Percentage thereof on demand of the Administrative Agent,
plus interest thereon from the date of such demand to the date such
amount is returned by such Lender, at a rate per annum equal to the
Federal Funds Rate from time to time in effect.
(e) Obligations Absolute. The obligation of the Borrowers to
reimburse the L/C Issuer for each drawing under each Letter of Credit and to
repay each L/C Borrowing shall be absolute, unconditional and irrevocable, and
shall be paid strictly in accordance with the terms of this Credit Agreement
under all circumstances, including the following:
(i) any lack of validity or enforceability of such Letter
of Credit, this Credit Agreement, or any other agreement or instrument
relating thereto;
(ii) the existence of any claim, counterclaim, set-off,
defense or other right that the Borrowers may have at any time against
any beneficiary or any transferee of such Letter of Credit (or any
Person for whom any such beneficiary or any such transferee may be
acting), the L/C Issuer or any other Person, whether in connection with
this Credit Agreement, the transactions contemplated hereby or by such
Letter of Credit or any agreement or instrument relating thereto, or
any unrelated transaction;
(iii) any draft, demand, certificate or other document
presented under such Letter of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein being
untrue or inaccurate in any respect; or any loss or delay in the
transmission or otherwise of any document required in order to make a
drawing under such Letter of Credit;
(iv) any payment by the L/C Issuer under such Letter of
Credit against presentation of a draft or certificate that does not
strictly comply with the terms of such Letter of Credit; or any payment
made by the L/C Issuer under such Letter of Credit to any Person
purporting to be a trustee in bankruptcy, debtor-in-possession,
assignee for the benefit of creditors, liquidator, receiver or other
representative of or successor to any beneficiary or any transferee of
such Letter of Credit, including any arising in connection with any
proceeding under any Debtor Relief Law; or
(v) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing, including any other
circumstance that might otherwise constitute a defense available to, or
a discharge of, any Borrower.
The Borrowers shall promptly examine a copy of each Letter of Credit
and each amendment thereto that is delivered to them and, in the event of any
claim of noncompliance with the Borrowers' instructions or other irregularity,
the Borrowers will immediately notify the L/C Issuer.
47
(f) Role of L/C Issuer. Each Revolving Lender and each Borrower
agrees that, in paying any drawing under a Letter of Credit, the L/C Issuer
shall not have any responsibility to obtain any document (other than any sight
draft, certificates and documents expressly required by the Letter of Credit) or
to ascertain or inquire as to the validity or accuracy of any such document or
the authority of the Person executing or delivering any such document. None of
the L/C Issuer, any Agent-Related Person nor any of the respective
correspondents, participants or assignees of the L/C Issuer shall be liable to
any Revolving Lender for (i) any action taken or omitted in connection herewith
at the request or with the approval of the Revolving Lenders or the Required
Revolving Lenders, as applicable; (ii) any action taken or omitted in the
absence of gross negligence or willful misconduct; or (iii) the due execution,
effectiveness, validity or enforceability of any document or instrument related
to any Letter of Credit or Letter of Credit Application. Each Borrower hereby
assumes all risks of the acts or omissions of any beneficiary or transferee with
respect to its use of any Letter of Credit; provided, however, that this
assumption is not intended to, and shall not, preclude any Borrower's pursuit of
such rights and remedies as it may have against the beneficiary or transferee at
law or under any other agreement. None of the L/C Issuer, any Agent-Related
Person, nor any of the respective correspondents, participants or assignees of
the L/C Issuer, shall be liable or responsible for any of the matters described
in clauses (i) through (v) of Section 2.08(e); provided, however, that anything
in such clauses to the contrary notwithstanding, the Borrowers may have a claim
against the L/C Issuer, and the L/C Issuer may be liable to the Borrowers, to
the extent, but only to the extent, of any direct, as opposed to consequential
or exemplary, damages suffered by any Borrower that such Borrower proves were
caused by the L/C Issuer's willful misconduct or gross negligence or the L/C
Issuer's willful failure to pay under any Letter of Credit after the
presentation to it by the beneficiary of a sight draft and certificate(s)
strictly complying with the terms and conditions of a Letter of Credit. In
furtherance and not in limitation of the foregoing, the L/C Issuer may accept
documents that appear on their face to be in order, without responsibility for
further investigation, regardless of any notice or information to the contrary,
and the L/C Issuer shall not be responsible for the validity or sufficiency of
any instrument transferring or assigning or purporting to transfer or assign a
Letter of Credit or the rights or benefits thereunder or proceeds thereof, in
whole or in part, that may prove to be invalid or ineffective for any reason.
(g) Cash Collateral. (i) If the L/C Issuer has honored any drawing
request under any Letter of Credit and such drawing has resulted in an L/C
Borrowing, or (ii) if, as of the Termination Date, any Letter of Credit may for
any reason remain outstanding and partially or wholly undrawn, the Borrowers
shall immediately Cash Collateralize the then Outstanding Amount of all L/C
Obligations (in an amount equal to such Outstanding Amount determined as of the
date of such L/C Borrowing or the Termination Date, as the case may be). Cash
collateral shall be maintained in blocked, interest-bearing deposit accounts at
Bank of America.
(h) Applicability of ISP98. Unless otherwise expressly agreed by
the L/C Issuer and the Borrowers when a Letter of Credit is issued (including
any such agreement applicable to an Existing Letter of Credit), the rules of the
"International Standby Practices 1998" published by the Institute of
International Banking Law & Practice (or such later version thereof as may be in
effect at the time of issuance) shall apply to each Letter of Credit.
(i) Letter of Credit Fees. The Borrowers shall pay Letter of
Credit fees as set forth in Section 2.04(b).
(j) Conflict with Letter of Credit Application. In the event of
any conflict between the terms hereof and the terms of any Letter of Credit
Application, the terms hereof shall control.
48
2.09 Additional Provisions relating to Domestic Swing Line Loans.
(a) Borrowing Procedures. Each Borrowing of Domestic Swing Line
Loans shall be made upon the applicable Borrower's irrevocable notice to the
Domestic Swing Line Lender and the Administrative Agent, which may be given by
telephone. Each such notice must be received by the Domestic Swing Line Lender
and the Administrative Agent not later than 2:00 p.m. on the requested borrowing
date, and shall specify (i) the Borrower therefor, (ii) the amount to be
borrowed, which shall be a minimum of $100,000, and (iii) the requested
borrowing date, which shall be a Business Day. Each such telephonic notice must
be confirmed promptly by delivery to the Domestic Swing Line Lender and the
Administrative Agent of a written Domestic Swing Line Loan Notice, appropriately
completed and signed by a Responsible Officer or duly authorized signatory of
the applicable Borrower. Promptly after receipt by the Domestic Swing Line
Lender of any telephonic Domestic Swing Line Loan Notice, the Domestic Swing
Line Lender will confirm with the Administrative Agent (by telephone or in
writing) that the Administrative Agent has also received such Domestic Swing
Line Loan Notice and, if not, the Domestic Swing Line Lender will notify the
Administrative Agent (by telephone or in writing) of the contents thereof.
Unless the Domestic Swing Line Lender has received notice (by telephone or in
writing) from the Administrative Agent or any Revolving Lender prior to 3:00
p.m. on the date of the proposed Borrowing of Domestic Swing Line Loans (A)
directing the Domestic Swing Line Lender not to make such Domestic Swing Line
Loan as a result of the limitations set forth in Section 2.01(c), or (B) that
one or more of the applicable conditions specified in Section 5.02 is not then
satisfied, then, subject to the terms and conditions hereof, the Domestic Swing
Line Lender will, not later than 3:30 p.m. on the borrowing date specified in
such Domestic Swing Line Loan Notice, make the amount of its Domestic Swing Line
Loan available to such Borrower at its office by (i) crediting the account of
such Borrower on the books of the Domestic Swing Line Lender in Same Day Funds,
or (ii) wire transfer of such funds, in each case in accordance with reasonably
acceptable instructions provided to the Domestic Swing Line Lender by such
Borrower.
(b) Refinancing of Domestic Swing Line Loans.
(i) The Domestic Swing Line Lender at any time in its
sole and absolute discretion may request, on behalf of the applicable
Borrower (and such Borrower hereby irrevocably authorizes the Domestic
Swing Line Lender to so request on its behalf), that each Revolving
Lender make a Committed Revolving Loan that is a Base Rate Loan in an
amount equal to such Lender's Revolving Commitment Percentage of the
amount of Domestic Swing Line Loans then outstanding. Such request
shall be made by the Domestic Swing Line Lender in writing (which
written request shall be deemed to be a Loan Notice for purposes
hereof) and in accordance with the requirements of Section 2.02,
without regard to the minimum and multiples specified therein for the
principal amount of Base Rate Loans, the unutilized portion of the
Aggregate Revolving Commitments or the conditions set forth in Section
5.02. The Domestic Swing Line Lender shall furnish the applicable
Borrower with a copy of such Loan Notice promptly after delivering such
notice to the Administrative Agent. Each Revolving Lender shall make an
amount equal to its Revolving Commitment Percentage of the amount
specified in such Loan Notice available to the Administrative Agent in
Same Day Funds for the account of the Domestic Swing Line Lender at the
Administrative Agent's Office not later than 1:00 p.m. on the day
specified in such Loan Notice, whereupon, subject to Section
2.09(b)(ii), each Revolving Lender that so makes funds available shall
be deemed to have made a Committed Revolving Loan that is a Base Rate
Loan to the applicable Borrower in such amount. The Administrative
Agent shall remit the funds so received to the Domestic Swing Line
Lender.
(ii) If for any reason any Domestic Swing Line Loan cannot
be refinanced by such a Borrowing of Committed Revolving Loans in
accordance with Section 2.09(b)(i), the request for
49
Committed Revolving Loans submitted by the Domestic Swing Line Lender
as set forth herein shall be deemed to be a request by the Domestic
Swing Line Lender that each of the Revolving Lenders fund its risk
participation in the relevant Domestic Swing Line Loan and each such
Lender's payment to the Administrative Agent for the account of the
Domestic Swing Line Lender pursuant to Section 2.09(b)(i) shall be
deemed payment in respect of such participation.
(iii) If any Revolving Lender fails to make available to
the Administrative Agent for the account of the Domestic Swing Line
Lender any amount required to be paid by such Lender pursuant to the
foregoing provisions of this Section 2.09(b) by the time specified in
Section 2.09(b)(i), the Domestic Swing Line Lender shall be entitled to
recover from such Lender (acting through the Administrative Agent), on
demand, such amount with interest thereon for the period from the date
such payment is required to the date on which such payment is
immediately available to the Domestic Swing Line Lender at a rate per
annum equal to the Federal Funds Rate from time to time in effect. A
certificate of the Domestic Swing Line Lender submitted to any
Revolving Lender (through the Administrative Agent) with respect to any
amounts owing under this clause (iii) shall be conclusive absent
manifest error.
(iv) Each Revolving Lender's obligation to make Committed
Revolving Loans or to purchase and fund risk participations in Domestic
Swing Line Loans pursuant to this Section 2.09(b) shall be absolute and
unconditional and shall not be affected by any circumstance, including
(A) any set-off, counterclaim, recoupment, defense or other right that
such Lender may have against the Domestic Swing Line Lender, the
Borrowers or any other Person for any reason whatsoever, (B) the
occurrence or continuance of a Default or Event of Default, (C)
non-compliance with the conditions set forth in Section 5.02, or (D)
any other occurrence, event or condition, whether or not similar to any
of the foregoing. No such purchase or funding of risk participations
shall relieve or otherwise impair the obligation of the Borrowers to
repay Domestic Swing Line Loans, together with interest as provided
herein.
(c) Repayment of Participations.
(i) At any time after any Revolving Lender has purchased
and funded a risk participation in a Domestic Swing Line Loan, if the
Domestic Swing Line Lender receives any payment on account of such
Domestic Swing Line Loan, the Domestic Swing Line Lender will
distribute to such Lender its Revolving Commitment Percentage of such
payment (appropriately adjusted, in the case of interest payments, to
reflect the period of time during which such Lender's risk
participation was funded) in the same funds as those received by the
Domestic Swing Line Lender.
(ii) If any payment received by the Domestic Swing Line
Lender in respect of principal or interest on any Domestic Swing Line
Loan is required to be returned by the Domestic Swing Line Lender under
any of the circumstances described in Section 11.06 (including pursuant
to any settlement entered into by the Domestic Swing Line Lender in its
discretion), each Revolving Lender shall pay to the Domestic Swing Line
Lender its Revolving Commitment Percentage thereof on demand of the
Administrative Agent, plus interest thereon from the date of such
demand to the date such amount is returned, at a rate per annum equal
to the Federal Funds Rate. The Administrative Agent will make such
demand upon the request of the Domestic Swing Line Lender.
(d) Interest for Account of Domestic Swing Line Lender. The
Domestic Swing Line Lender shall be responsible for invoicing the Borrowers for
interest on the Domestic Swing Line Loans. Until each Revolving Lender funds its
Committed Revolving Loan or risk participation pursuant to this
50
Section 2.09 to refinance such Lender's Revolving Commitment Percentage of any
Domestic Swing Line Loan, interest in respect thereof shall be solely for the
account of the Domestic Swing Line Lender.
(e) Payments Directly to Domestic Swing Line Lender. The Borrowers
shall make all payments of principal and interest in respect of the Domestic
Swing Line Loans directly to the Domestic Swing Line Lender.
2.10 Additional Provisions relating to Foreign Swing Line Loans.
(a) Borrowing Procedures. Each Borrowing of Foreign Swing Line
Loans shall be made upon the applicable Borrower's irrevocable notice to the
Foreign Swing Line Lender and the Administrative Agent, which may be given by
telephone. Each such notice must be received by the Foreign Swing Line Lender
and the Administrative Agent not later than 2:00 p.m. (German time) three
Business Days prior to the requested borrowing date (for application of the
Eurocurrency Rate), or one Business Day prior to the requested borrowing date
(for application of the Absolute Rate, which rate shall be determined by the
Foreign Swing Line Lender), and shall specify (i) the Borrower therefor, (ii)
the type, currency and amount of financial accommodation requested, in such
minimum amounts by mutual agreement, and if a loan is requested, the applicable
Interest Period therefor, (iii) the requested borrowing date, which shall be a
Business Day and (iv) reasonably acceptable wire instructions. Each such
telephonic notice must be confirmed promptly by delivery to the Foreign Swing
Line Lender and the Administrative Agent of a written Foreign Swing Line Loan
Notice, appropriately completed and signed by a Responsible Officer or duly
authorized signatory of the applicable Borrower. Promptly after receipt by the
Foreign Swing Line Lender of any telephonic Foreign Swing Line Loan Notice, the
Foreign Swing Line Lender will confirm with the Administrative Agent (by
telephone or in writing) that the Administrative Agent has also received such
Foreign Swing Line Loan Notice and, if not, the Foreign Swing Line Lender will
notify the Administrative Agent (by telephone or in writing) of the contents
thereof. Unless the Foreign Swing Line Lender has received notice (by telephone
or in writing) from the Administrative Agent or any Revolving Lender prior to
6:00 p.m. (German time) three Business Days prior to the date of the proposed
Borrowing of Foreign Swing Line Loans at the Eurocurrency Rate, or one Business
Day prior to the requested borrowing date for Foreign Swing Line Loans at the
Absolute Rate (A) directing the Foreign Swing Line Lender not to make such
Foreign Swing Line Loan as a result of the limitations set forth in Section
2.01(d), or (B) that one or more of the applicable conditions specified in
Section 5.02 is not then satisfied, then, subject to the terms and conditions
hereof, the Foreign Swing Line Lender will, not later than 3:30 p.m. (German
time) on the borrowing date specified in such Foreign Swing Line Loan Notice,
make the amount of its Foreign Swing Line Loan available to such Borrower at its
office by crediting the account of such Borrower on the books of the Foreign
Swing Line Lender in Same Day Funds, or by wire transfer of such funds, in each
case in accordance with reasonably acceptable instructions provided to the
Foreign Swing Line Lender by such Borrower.
(b) Refinancing of Foreign Swing Line Loans.
(i) The Foreign Swing Line Lender at any time in its sole
and absolute discretion may request, on behalf of the Borrowers (and
the Borrowers hereby irrevocably authorize the Foreign Swing Line
Lender to so request on its behalf), that each Revolving Lender make a
Committed Revolving Loan that is a Eurocurrency Rate Loan in an amount
equal to such Lender's Revolving Commitment Percentage of the amount of
Foreign Swing Line Loans then outstanding. Such request shall be made
by the Foreign Swing Line Lender in writing (which written request
shall be deemed to be a Loan Notice for purposes hereof) and in
accordance with the requirements of Section 2.02, without regard to the
minimum and multiples specified therein for the principal amount of
Eurocurrency Rate Loans, the unutilized portion of the Aggregate
Revolving Commitments or the conditions set forth in Section 5.02. The
Foreign Swing Line
51
Lender shall furnish the Borrowers with a copy of the applicable Loan
Notice promptly after delivering such notice to the Administrative
Agent. Each Revolving Lender shall make an amount equal to its
Revolving Commitment Percentage of the amount specified in such Loan
Notice available to the Administrative Agent in Same Day Funds for the
account of the Foreign Swing Line Lender at the Administrative Agent's
Office not later than 1:00 p.m. on the day specified in such Loan
Notice, whereupon, subject to Section 2.10(b)(ii), each Revolving
Lender that so makes funds available shall be deemed to have made a
Committed Revolving Loan that is a Base Rate Loan to the Borrowers in
such amount. The Administrative Agent shall remit the funds so received
to the Foreign Swing Line Lender.
(ii) If for any reason any Shared Foreign Swing Line Loan
cannot be refinanced by such a Borrowing of Committed Revolving Loans
in accordance with Section 2.10(b)(i), the request for Committed
Revolving Loans submitted by the Foreign Swing Line Lender as set forth
herein shall be deemed to be a request by the Foreign Swing Line Lender
that each of the Revolving Lenders fund its risk participation in the
relevant Shared Foreign Swing Line Loan and each such Lender's payment
to the Administrative Agent for the account of the Foreign Swing Line
Lender pursuant to Section 2.10(b)(i) shall be deemed payment in
respect of such participation.
(iii) If any Revolving Lender fails to make available to
the Administrative Agent for the account of the Foreign Swing Line
Lender any amount required to be paid by such Lender pursuant to the
foregoing provisions of this Section 2.10(b) by the time specified in
Section 2.10(b)(i), the Foreign Swing Line Lender shall be entitled to
recover from such Lender (acting through the Administrative Agent), on
demand, such amount with interest thereon for the period from the date
such payment is required to the date on which such payment is
immediately available to the Foreign Swing Line Lender at a rate per
annum equal to the Federal Funds Rate from time to time in effect. A
certificate of the Foreign Swing Line Lender submitted to any Revolving
Lender (through the Administrative Agent) with respect to any amounts
owing under this clause (iii) shall be conclusive absent manifest
error.
(iv) Each Revolving Lender's obligation to make Committed
Revolving Loans or to purchase and fund risk participations in Foreign
Swing Line Loans pursuant to this Section 2.10(b) shall be absolute and
unconditional and shall not be affected by any circumstance, including
(A) any set-off, counterclaim, recoupment, defense or other right that
such Lender may have against the Foreign Swing Line Lender, the
Borrowers or any other Person for any reason whatsoever, (B) the
occurrence or continuance of a Default or Event of Default, (C)
non-compliance with the conditions set forth in Section 5.02, or (D)
any other occurrence, event or condition, whether or not similar to any
of the foregoing. No such purchase or funding of risk participations
shall relieve or otherwise impair the obligation of the Borrowers to
repay Foreign Swing Line Loans, together with interest as provided
herein.
(c) Repayment of Participations.
(i) At any time after any Revolving Lender has purchased
and funded a risk participation in a Foreign Swing Line Loan, if the
Foreign Swing Line Lender receives any payment on account of such
Foreign Swing Line Loan, the Foreign Swing Line Lender will distribute
to such Lender its Revolving Commitment Percentage of such payment
(appropriately adjusted, in the case of interest payments, to reflect
the period of time during which such Lender's risk participation was
funded) in the same funds as those received by the Foreign Swing Line
Lender.
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(ii) If any payment received by the Foreign Swing Line
Lender in respect of principal or interest on any Foreign Swing Line
Loan is required to be returned by the Foreign Swing Line Lender under
any of the circumstances described in Section 11.06 (including pursuant
to any settlement entered into by the Foreign Swing Line Lender in its
discretion), each Revolving Lender shall pay to the Foreign Swing Line
Lender its Revolving Commitment Percentage thereof on demand of the
Administrative Agent, plus interest thereon from the date of such
demand to the date such amount is returned, at a rate per annum equal
to the Federal Funds Rate. The Administrative Agent will make such
demand upon the request of the Foreign Swing Line Lender.
(d) Interest for Account of Foreign Swing Line Lender. The Foreign
Swing Line Lender shall be responsible for invoicing the applicable Borrower for
interest on the Foreign Swing Line Loans. Until each Revolving Lender funds its
Committed Revolving Loan or risk participation pursuant to this Section 2.10 to
refinance such Lender's Revolving Commitment Percentage of any Foreign Swing
Line Loan, interest in respect thereof shall be solely for the account of the
Foreign Swing Line Lender.
(e) Payments Directly to Foreign Swing Line Lender. The Borrowers
shall make all payments of principal and interest in respect of the Foreign
Swing Line Loans directly to the Foreign Swing Line Lender.
2.11 Additional Provisions relating to Competitive Revolving Loans.
(a) Requesting Competitive Bids. The Borrowers may request the
submission of Competitive Bids by delivering a Bid Request to the Competitive
Bid Agent and the Administrative Agent not later than 12:00 noon (i) three
Business Days prior to the requested date of any Bid Borrowing that is to
consist of Absolute Rate Loans or Eurocurrency Margin Bid Loans denominated in
Dollars, (ii) four Business Days prior to the requested date of any Bid
Borrowing that is to consist of Absolute Rate Loans or Eurocurrency Margin Bid
Loans denominated in Available Foreign Currencies (other than Japanese yen) and
(iii) five Business Days prior to the requested date of any Bid Borrowing that
is to consist of Absolute Rate Loans or Eurocurrency Margin Bid Loans
denominated in Japanese yen. Each Bid Request shall specify (A) the kind of
financial accommodation requested, (B) the Borrower therefor, (C) the requested
date of the Bid Borrowing (which shall be a Business Day), (D) the aggregate
principal amount of Competitive Revolving Loans requested (which must be in the
amount of ten million units of the Applicable Currency and integral multiples of
one million units of the Applicable Currency in excess thereof), (E) the Type of
Competitive Revolving Loans requested, (F) the currency of the requested
Competitive Revolving Loan, and (G) the duration of the Interest Period with
respect thereto, and shall be signed by a Responsible Officer or duly authorized
signatory of the applicable Borrower. No Bid Request shall contain a request for
(1) more than one Type of Competitive Revolving Loan, (2) Competitive Revolving
Loans denominated in more than one currency or (3) Competitive Revolving Loans
having more than three different Interest Periods. Bid Requests may be grouped
and submitted together, but not more frequently than twice in any calendar week.
Each such submission may contain up to five separate Bid Requests. Unless the
Competitive Bid Agent otherwise agrees in its sole and absolute discretion, the
Borrowers may not submit a Bid Request if another Bid Request has been submitted
within the preceding five Business Days.
(b) Submitting Competitive Bids.
(i) After confirming with the Administrative Agent that
the applicable Bid Request complies with the provisions of Section
2.01(e), the Competitive Bid Agent shall notify each Revolving Lender
of each Bid Request received by it from the Borrowers and the contents
of such Bid Request not later than 2:00 p.m. on the date it receives
such Bid Request.
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(ii) Each Revolving Lender may (but shall have no
obligation to) submit a Competitive Bid containing an offer to make one
or more Competitive Revolving Loans in response to such Bid Request.
Such Competitive Bid must be delivered to the Competitive Bid Agent not
later than 10:00 a.m. (A) two Business Days prior to the requested date
of any Bid Borrowing that is to consist of Absolute Rate Loans or
Eurocurrency Margin Bid Loans denominated in Dollars, (B) three
Business Days prior to the requested date of any Bid Borrowing that is
to consist of Absolute Rate Loans or Eurocurrency Margin Bid Loans
denominated in Available Foreign Currencies (other than Japanese yen)
and (C) four Business Days prior to the requested date of any Bid
Borrowing that is to consist of Absolute Rate Loans or Eurocurrency
Margin Bid Loans denominated in Japanese yen; provided, however, that
any Competitive Bid submitted by the Competitive Bid Agent in its
capacity as a Revolving Lender in response to any Bid Request must be
submitted to the Competitive Bid Agent not later than 10:15 a.m. on the
date on which Competitive Bids are required to be delivered by the
other Revolving Lenders in response to such Bid Request. Each
Competitive Bid shall specify (1) the proposed date of the Bid
Borrowing; (2) the principal amount of each Competitive Revolving Loan
for which such Competitive Bid is being made, which principal amount
(I) may be equal to, greater than or less than the Revolving Commitment
of the bidding Lender, (II) must be in the amount of five million units
of the Applicable Currency and integral multiples of one million units
of the Applicable Currency in excess thereof, and (III) may not exceed
the principal amount of Competitive Revolving Loans for which
Competitive Bids were requested; (3) if the proposed Bid Borrowing is
to consist of Absolute Rate Bid Loans, the Absolute Rate offered for
each such Competitive Revolving Loan and the Interest Period applicable
thereto; (4) if the proposed Bid Borrowing is to consist of
Eurocurrency Margin Bid Loans, the Eurocurrency Bid Margin with respect
to each such Eurocurrency Margin Bid Loan and the Interest Period
applicable thereto; and (5) the identity of the bidding Lender.
(iii) Any Competitive Bid shall be disregarded if it (A) is
received after the applicable time specified in clause (ii) above, (B)
is not substantially in the form of a Competitive Bid as specified
herein, (C) contains qualifying, conditional or similar language, (D)
proposes terms other than or in addition to those set forth in the
applicable Bid Request, or (E) is otherwise not responsive to such Bid
Request. Any Revolving Lender may correct a Competitive Bid containing
a manifest error by submitting a corrected Competitive Bid (identified
as such) not later than the applicable time required for submission of
Competitive Bids. Any such submission of a corrected Competitive Bid
shall constitute a revocation of the Competitive Bid that contained the
manifest error. The Competitive Bid Agent may, but shall not be
required to, notify any Revolving Lender of any manifest error it
detects in such Lender's Competitive Bid.
(iv) Subject only to the provisions of Sections 3.02, 3.03
and 5.02 and clause (iii) above, each Competitive Bid shall be
irrevocable.
(c) Notice to Borrowers of Competitive Bids. Not later than 11:00
a.m. (i) two Business Days prior to the requested date of any Bid Borrowing that
is to consist of Absolute Rate Loans or Eurocurrency Margin Bid Loans
denominated in Dollars, (ii) three Business Days prior to the requested date of
any Bid Borrowing that is to consist of Absolute Rate Loans or Eurocurrency
Margin Bid Loans denominated in Available Foreign Currencies (other than
Japanese yen) and (iii) four Business Days prior to the requested date of any
Bid Borrowing that is to consist of Absolute Rate Loans or Eurocurrency Margin
Bid Loans denominated in Japanese yen, the Competitive Bid Agent shall notify
the applicable Borrower of the identity of each Revolving Lender that has
submitted a Competitive Bid that complies with the foregoing subsection (b) and
of the terms of the offers contained in each such Competitive Bid.
54
(d) Acceptance of Competitive Bids. Not later than 11:30 a.m. (i)
two Business Days prior to the requested date of any Bid Borrowing that is to
consist of Absolute Rate Loans or Eurocurrency Margin Bid Loans denominated in
Dollars, (ii) three Business Days prior to the requested date of any Bid
Borrowing that is to consist of Absolute Rate Loans or Eurocurrency Margin Bid
Loans denominated in Available Foreign Currencies (other than Japanese yen) and
(iii) four Business Days prior to the requested date of any Bid Borrowing that
is to consist of Absolute Rate Loans or Eurocurrency Margin Bid Loans
denominated in Japanese yen, the Borrowers shall notify the Competitive Bid
Agent of its acceptance or rejection of the offers notified to it pursuant to
the foregoing subsection (c). The Borrowers shall be under no obligation to
accept any Competitive Bid and may choose to reject all Competitive Bids. In the
case of acceptance, such notice shall specify the aggregate principal amount of
Competitive Bids for each Interest Period that is accepted. The Borrowers may
accept any Competitive Bid in whole or in part; provided that:
(A) the aggregate principal amount of each Bid Borrowing
may not exceed the applicable amount set forth in the related Bid
Request;
(B) the principal amount of each Competitive Revolving
Loan must be in the amount of five million units of the Applicable
Currency and integral multiples of one million units of the Applicable
Currency in excess thereof;
(C) the acceptance of offers may be made only on the
basis of ascending Absolute Rates or Eurocurrency Bid Margins within
each Interest Period; and
(D) the Borrowers may not accept any offer that is
described in the foregoing subsection (b)(iii) above or that otherwise
fails to comply with the requirements hereof.
(e) Procedure for Identical Bids. If two or more Revolving Lenders
have submitted Competitive Bids at the same Absolute Rate or Eurocurrency Bid
Margin, as the case may be, for the same Interest Period, and the result of
accepting all of such Competitive Bids in whole (together with any other
Competitive Bids at lower Absolute Rates or Eurocurrency Bid Margins, as the
case may be, accepted for such Interest Period in conformity with the
requirements of the foregoing subsection (d)(C) above) would be to cause the
aggregate outstanding principal amount of the applicable Bid Borrowing to exceed
the amount specified therefor in the related Bid Request, then, unless otherwise
agreed by the Borrowers, the Competitive Bid Agent and such Lenders, such
Competitive Bids shall be accepted as nearly as possible in proportion to the
amount offered by each such Lender in respect of such Interest Period, at such
Absolute Rate or Eurocurrency Bid Margin, without regard to the requirements of
foregoing subsection (d)(B) above.
(f) Notice to Lenders of Acceptance or Rejection of Bids. The
Competitive Bid Agent shall promptly notify each Revolving Lender having
submitted a Competitive Bid (with a copy to the Administrative Agent) whether or
not its offer has been accepted and, if its offer has been accepted, of the
amount of the Competitive Revolving Loan or Competitive Revolving Loans to be
made by it on the date of the applicable Bid Borrowing. Any Competitive Bid or
portion thereof that is not accepted by the Borrowers by the applicable time
specified in foregoing subsection (d) above shall be deemed rejected.
(g) Notice of Eurocurrency Rate. If any Bid Borrowing is to
consist of Eurocurrency Margin Loans, the Competitive Bid Agent shall determine
the Eurocurrency Rate for the relevant Interest Period, and promptly after
making such determination, shall notify the applicable Borrower and the
Revolving Lenders that will be participating in such Bid Borrowing of such
Eurocurrency Rate.
55
(h) Funding of Competitive Revolving Loans. Each Revolving Lender
that has received notice pursuant to foregoing subsection (f) above that all or
a portion of its Competitive Bid has been accepted by the Borrowers shall make
the amount of its Competitive Revolving Loan(s) available to the Competitive Bid
Agent in Same Day Funds at the Competitive Bid Agent's Lending Office (or such
other office as provided to the Revolving Lenders by the Competitive Bid Agent)
for the Applicable Currency not later than 1:00 p.m., in the case of any
Competitive Revolving Loan denominated in Dollars, and not later than the
Applicable Time specified by the Competitive Bid Agent in the case of any
Competitive Revolving Loan in an Alternative Foreign Currency, in each case on
the date of the requested Bid Borrowing. Upon satisfaction of the applicable
conditions set forth in Section 5.02 and after the Competitive Bid Agent has
received confirmation from the Administrative Agent that such Competitive Bid
complies with the provisions of Section 2.01(e), the Competitive Bid Agent shall
make all funds so received available to the Borrowers in like funds as received
by the Competitive Bid Agent.
(i) Notice of Range of Bids. After each Competitive Bid auction
pursuant to this Section 2.11, the Competitive Bid Agent shall notify each
Revolving Lender that submitted a Competitive Bid in such auction of the ranges
of bids submitted (without the bidder's name) and accepted for each Competitive
Revolving Loan and the aggregate amount of each Bid Borrowing.
2.12 Computation of Interest and Fees. All computations of interest
for Base Rate Loans when the Base Rate is determined by Bank of America's "prime
rate" shall be made on the basis of a year of 365 or 366 days, as the case may
be, and actual days elapsed. All other computations of fees and interest shall
be made on the basis of a 360-day year and actual days elapsed (which results in
more fees or interest, as applicable, being paid than if computed on the basis
of a 365-day year) or, in the case of interest in respect of Loans denominated
in Foreign Currencies as to which market practice differs from the foregoing, in
accordance with such market practice. Interest shall accrue on each Loan for the
day on which the Loan is made, and shall not accrue on a Loan, or any portion
thereof, for the day on which the Loan or such portion is paid, provided that
any Loan that is repaid on the same day on which it is made shall, subject to
Section 2.14(a), bear interest for one day.
2.13 Evidence of Debt.
(a) The Credit Extensions made by each Lender shall be evidenced
by one or more accounts or records maintained by such Lender and by the
Administrative Agent in the ordinary course of business. The accounts or records
maintained by the Administrative Agent and each Lender shall be conclusive
absent manifest error of the amount of the Credit Extensions made by the Lenders
to the Borrowers and the interest and payments thereon, and shall serve as the
basis for determining amounts due and payable in connection with enforcement of
the Credit Agreement and the Collateral Documents. Any failure to so record or
any error in doing so shall not, however, limit or otherwise affect the
obligation of the Borrowers hereunder to pay any amount owing with respect to
the Obligations. In the event of any conflict between the accounts and records
maintained by any Lender (including the schedules to such Lender's Notes, if
any) and the accounts and records of the Administrative Agent in respect of such
matters, the accounts and records of the Administrative Agent shall control in
the absence of manifest error. The Borrowers shall execute and deliver to the
Administrative Agent (i) a Revolving Note for each Revolving Lender that so
requests, (ii) a Tranche A Term Note for each Tranche A Term Lender that so
requests and (iii) a Tranche B Term Note for each Tranche B Term Lender that so
requests, which Notes, in addition to such accounts or records, shall evidence
such Lender's Loans. Each Lender may attach schedules to its Notes and endorse
thereon the date, Type (if applicable), amount and maturity of its Loans and
payments with respect thereto.
(b) In addition to the accounts and records referred to in
subsection (a), each Lender and the Administrative Agent shall maintain in
accordance with its usual practice accounts or records evidencing
56
the purchases and sales by such Lender of participations in Letters of Credit
and Swing Line Loans. In the event of any conflict between the accounts and
records maintained by the Administrative Agent and the accounts and records of
any Lender in respect of such matters, the accounts and records of the
Administrative Agent shall control in the absence of manifest error.
2.14 Payments Generally.
(a) All payments to be made by the Borrowers shall be made without
condition or deduction for any counterclaim, defense, recoupment or setoff.
Except as otherwise expressly provided herein, all payments by the Borrowers
hereunder with respect to principal and interest on Loans denominated in Dollars
shall be made to the Administrative Agent, for the account of the respective
Lenders to which such payment is owed, at the applicable Administrative Agent's
Office in Dollars and in Same Day Funds not later than 2:00 p.m. on the date
specified herein, and all payments by the Borrowers hereunder with respect to
principal and interest on Loans denominated in Foreign Currencies shall be made
to the Administrative Agent, for the account of the respective Lenders to which
such payment is owed, at the applicable Administrative Agent's Office in such
Foreign Currency and in Same Day Funds not later than the Applicable Time
specified by the Administrative Agent on the date specified herein. The
Administrative Agent will promptly distribute to each Lender (i) with respect to
such payments on the Revolving Obligations, its Revolving Commitment Percentage
thereof, (ii) with respect to such payments on the Tranche A Term Loan, its
Tranche A Term Loan Commitment Percentage thereof, (iii) with respect to such
payments on the Tranche B Term Loan, its Tranche B Term Loan Commitment
Percentage thereof or (iv) such other applicable share as provided herein, in
like funds as received by wire transfer to such Lender's Lending Office. All
payments received by the Administrative Agent (A) with respect to payments in
Dollars, after 2:00 p.m. and (B) with respect to payments in Foreign Currencies,
after the Applicable Time specified by the Administrative Agent, shall in each
case be deemed received on the next succeeding Business Day and any applicable
interest or fee shall continue to accrue.
(b) Except as otherwise provided in the definition of "Interest
Period," if any payment to be made by the Borrowers shall come due on a day
other than a Business Day, payment shall be made on the next following Business
Day, and such extension of time shall be reflected in computing interest or
fees, as the case may be.
(c) If at any time insufficient funds are received by or are
available to the Administrative Agent to pay fully all amounts of principal, L/C
Borrowings, interest and fees then due hereunder, such funds shall be applied
(i) first, toward costs and expenses (including Attorney Costs and amounts
payable under Article III) incurred by the Administrative Agent and each Lender,
(ii) second, toward repayment of interest and fees then due hereunder, ratably
among the parties entitled thereto in accordance with the amounts of interest
and fees then due to such parties, and (iii) third, toward repayment of
principal and L/C Borrowings then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal and L/C Borrowings
then due to such parties.
(d) Unless the Borrowers or any Lender has notified the
Administrative Agent, prior to the date any payment is required to be made by it
to the Administrative Agent hereunder, that the Borrowers or such Lender, as the
case may be, will not make such payment, the Administrative Agent may assume
that the Borrowers or such Lender, as the case may be, has timely made such
payment and may (but shall not be so required to), in reliance thereon, make
available a corresponding amount to the Person entitled thereto. If and to the
extent that such payment was not in fact made to the Administrative Agent in
Same Day Funds, then:
(i) if the Borrowers failed to make such payment, each
Lender shall forthwith on demand repay to the Administrative Agent the
portion of such assumed payment that was made
57
available to such Lender in Same Day Funds, together with interest
thereon in respect of each day from and including the date such amount
was made available by the Administrative Agent to such Lender to the
date such amount is repaid to the Administrative Agent in Same Day
Funds at the applicable Overnight Rate from time to time in effect; and
(ii) (A) if any Lender failed to make such payment, such
Lender shall forthwith on demand pay to the Administrative Agent the
amount thereof in Same Day Funds, together with interest thereon for
the period from the date such amount was made available by the
Administrative Agent to the Borrowers to the date such amount is
recovered by the Administrative Agent (the "Compensation Period") at a
rate per annum equal to the applicable Overnight Rate from time to time
in effect.
(B) If such Lender pays such amount to the
Administrative Agent, then such amount shall constitute such
Lender's Loan included in the applicable Borrowing. If such
Lender does not pay such amount upon the Administrative
Agent's demand therefor, the Administrative Agent may make a
demand therefor upon the Borrowers, and the Borrowers shall
pay such amount to the Administrative Agent, together with
interest thereon for the Compensation Period at a rate per
annum equal to the rate of interest applicable to the
applicable Borrowing.
Nothing herein shall be deemed to relieve any Lender from its
obligation to fulfill its Commitment or to prejudice any rights that
the Administrative Agent or the Borrowers may have against any Lender
as a result of any default by such Lender hereunder.
A notice of the Administrative Agent to any Lender or the Borrowers with respect
to any amount owing under this subsection (d) shall be conclusive, absent
manifest error.
(e) If any Lender makes available to the Administrative Agent
funds for any Loan to be made by such Lender as provided in the foregoing
provisions of this Article II, and such funds are not made available to the
Borrowers by the Administrative Agent because the conditions to the applicable
Credit Extension set forth in Article V are not satisfied or waived in
accordance with the terms hereof, the Administrative Agent shall return such
funds (in like funds as received from such Lender) to such Lender, without
interest.
(f) The obligations of the Lenders hereunder to make Loans and to
fund participations in Letters of Credit and Swing Line Loans are several and
not joint. The failure of any Lender to make any Loan or to fund any such
participation on any date required hereunder shall not relieve any other Lender
of its corresponding obligation to do so on such date, and no Lender shall be
responsible for the failure of any other Lender to so make its Loan or purchase
its participation.
(g) Nothing herein shall be deemed to obligate any Lender to
obtain the funds for any Loan in any particular place or manner or to constitute
a representation by any Lender that it has obtained or will obtain the funds for
any Loan in any particular place or manner.
2.15 Sharing of Payments. If, other than as expressly provided
elsewhere herein, any Lender shall obtain on account of the Loans made by it, or
the participations in L/C Obligations or in Swing Line Loans held by it
(excluding any amounts applied by the Swing Line Lender to outstanding Swing
Line Loans), any payment (whether voluntary, involuntary, through the exercise
of any right of set-off, or otherwise) in excess of its ratable share (or other
share contemplated hereunder) thereof, such Lender shall immediately (a) notify
the Administrative Agent of such fact, and (b) purchase from the other Lenders
such participations in the Loans made by them and/or such subparticipations in
the participations
58
in L/C Obligations or Swing Line Loans held by them, as the case may be, as
shall be necessary to cause such purchasing Lender to share the excess payment
in respect of such Loans or such participations, as the case may be, pro rata
with each of them; provided, however, that if all or any portion of such excess
payment is thereafter recovered from the purchasing Lender under any of the
circumstances described in Section 11.06 (including pursuant to any settlement
entered into by the purchasing Lender in its discretion), such purchase shall to
that extent be rescinded and each other Lender shall repay to the purchasing
Lender the purchase price paid therefor, together with an amount equal to such
paying Lender's ratable share (according to the proportion of (i) the amount of
such paying Lender's required repayment to (ii) the total amount so recovered
from the purchasing Lender) of any interest or other amount paid or payable by
the purchasing Lender in respect of the total amount so recovered, without
further interest thereon. The Borrowers agree that any Lender so purchasing a
participation from another Lender may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-off, but subject
to Section 11.09) with respect to such participation as fully as if such Lender
were the direct creditor of the Borrowers in the amount of such participation.
The Administrative Agent will keep records (which shall be conclusive and
binding in the absence of manifest error) of participations purchased under this
Section and will in each case notify the Lenders following any such purchases or
repayments. Each Lender that purchases a participation pursuant to this Section
shall from and after such purchase have the right to give all notices, requests,
demands, directions and other communications under this Credit Agreement with
respect to the portion of the Obligations purchased to the same extent as though
the purchasing Lender were the original owner of the Obligations purchased.
2.16 Designated Borrowers. FMCAG may request that any of its
Subsidiaries (each, an "Applicant Borrower") be designated a Designated Borrower
by delivery of a written request to the Administrative Agent, together with an
executed copy of the Borrower Joinder Agreement, including the Designated
Borrower Limit requested for such Applicant Borrower and, if applicable,
requesting that the Applicant Borrower be a Primary Borrower hereunder. The
Designated Borrower Limit for any Applicant Borrower that becomes a Primary
Borrower shall be the same as the Designated Borrower Limit in effect for FMCH.
The Administrative Agent will promptly notify the Lenders of any such request
and will provide the Lenders with a copy of such Borrower Joinder Agreement.
Designation of any Applicant Borrower as a Designated Borrower and approval of
its Designated Borrower Limit is subject to (i) the prior consent of the
Required Revolving Lenders in their sole discretion; provided that no consent
shall be required for any Wholly Owned Subsidiary of FMCAG organized in an
Approved Jurisdiction to become a Primary Borrower, (ii) delivery of each
executed promissory note as may be requested by any Revolving Lender in
connection therewith, and (iii) delivery of supporting resolutions, articles of
incorporation and bylaws (or their equivalents), incumbency certificates,
opinions of counsel and such other items as the Administrative Agent and the
Required Lenders may request. The designation of an Applicant Borrower as a
Designated Borrower shall be effective ten Business Days after (A) where
applicable, receipt by the Administrative Agent of the consent of the Required
Revolving Lenders and (B) receipt by the Administrative Agent of each of the
items required pursuant to clauses (ii) and (iii) herein. Such Designated
Borrower shall thereupon become a Designated Borrower and a Credit Party
hereunder and shall be (1) entitled to all rights and benefits of a Designated
Borrower hereunder and under each of the Credit Documents and (2) subject to all
obligations of a Designated Borrower hereunder and under the Credit Documents.
2.17 Removal of Borrowers. FMCAG may request that any Borrower
(other than FMCAG and FMCH) cease to be a Borrower by delivering to the
Administrative Agent (which shall promptly deliver copies thereof to each
Lender) a written notice to such effect. If such Borrower is a Primary Borrower,
it shall cease to be a Borrower on the date the Administrative Agent receives
such written notice. If such Borrower is a Designated Borrower, it shall cease
to be a Borrower on the later to occur of (i) the date the Administrative Agent
receives such written notice, and (ii) the date such Designated Borrower has
paid all of its obligations (including payment of cash collateral in respect of
any L/C
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Obligations outstanding for its benefit) and all accrued and unpaid interest,
fees and other obligations hereunder or in connection herewith.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes.
(a) Except as provided below, any and all payments by the
Borrowers to or for the account of the Administrative Agent or any Lender under
any Credit Document shall be made free and clear of and without deduction for
any and all present or future taxes, duties, levies, imposts, deductions,
assessments, fees, withholdings or similar charges, and all liabilities with
respect thereto, excluding, in the case of the Administrative Agent and each
Lender and any of their respective Affiliates, taxes imposed on or measured by
overall net income, and any franchise taxes, branch taxes, taxes on doing
business or taxes on overall capital or net worth imposed (in lieu of net income
taxes), by the jurisdiction (or any political subdivision thereof) under the
Laws of which the Administrative Agent, such Lender or any of their respective
Affiliates, as the case may be, is organized or maintains a lending office or in
which its principal executive office is located (all such non-excluded taxes,
duties, levies, imposts, deductions, assessments, fees, withholdings or similar
charges, and liabilities being hereinafter referred to as "Taxes"). If the
Borrowers shall be required by any Laws to deduct any Taxes from or in respect
of any sum payable under any Credit Document to the Administrative Agent or any
Lender, except as otherwise provided in Section 11.15 hereof, (i) the sum
payable shall be increased as necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section), each of the Administrative Agent and such Lender receives an
amount equal to the sum it would have received had no such deductions been made,
(ii) the Borrowers shall make such deductions, (iii) the Borrowers shall pay the
full amount deducted to the relevant taxation authority or other authority in
accordance with applicable Laws, and (iv) within thirty days after the date of
such payment, the Borrowers shall furnish to the Administrative Agent (which
shall forward the same to such Lender) the original or a certified copy of a
receipt evidencing payment thereof.
(b) In addition, the Borrowers agree to pay any and all present or
future stamp, court or documentary taxes and any other excise or property taxes
or charges or similar levies that arise from any payment made under any Credit
Document or from the execution, delivery, performance, enforcement or
registration of, or otherwise with respect to, any Credit Document (hereinafter
referred to as "Other Taxes").
(c) If the Borrowers shall be required to deduct or pay any Taxes
or Other Taxes from or in respect of any sum payable under any Credit Document
to the Administrative Agent or any Lender, the Borrowers shall also pay to the
Administrative Agent or to such Lender, as the case may be, at the time interest
is paid, such additional amount that the Administrative Agent or such Lender
specifies is necessary to preserve the after-tax yield (after factoring in all
taxes, including taxes imposed on or measured by net income) that the
Administrative Agent or such Lender would have received if such Taxes or Other
Taxes had not been imposed.
(d) The Borrowers agree to indemnify the Administrative Agent and
each Lender for (i) the full amount of Taxes and Other Taxes (including any
Taxes or Other Taxes imposed or asserted by any jurisdiction on amounts payable
under this Section) paid by the Administrative Agent and such Lender, and (ii)
any liability (including additions to tax, penalties, interest and expenses)
arising therefrom or with respect thereto, in each case whether or not such
Taxes or Other Taxes were correctly or legally imposed
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or asserted by the relevant Governmental Authority. Payment under this
subsection (d) shall be made within thirty days after the date the Lender or the
Administrative Agent makes a demand therefor.
3.02 Illegality. If any Lender determines that any Law has made it
unlawful, or that any Governmental Authority has asserted that it is unlawful,
for any Lender or its applicable Lending Office to make, maintain or fund
Eurocurrency Rate Loans (whether denominated in Dollars or a Foreign Currency),
or to determine or charge interest rates based upon the Eurocurrency Rate, or
any Governmental Authority has imposed material restrictions on the authority of
such Lender to purchase or sell, or to take deposits of, any Applicable Currency
in the applicable interbank market, then, on notice thereof by such Lender to
the Borrowers through the Administrative Agent, any obligation of such Lender to
make or continue Eurocurrency Rate Loans in the Applicable Currency or to
convert Base Rate Loans to Eurocurrency Rate Loans in the Applicable Currency
shall be suspended until such Lender notifies the Administrative Agent and the
Borrowers that the circumstances giving rise to such determination no longer
exist. Upon receipt of such notice, the Borrowers shall, upon demand from such
Lender (with a copy to the Administrative Agent), prepay or, if applicable,
convert all Eurocurrency Rate Loans of such Lender to Base Rate Loans, either on
the last day of the Interest Period therefor, if such Lender may lawfully
continue to maintain such Eurocurrency Rate Loans to such day, or immediately,
if such Lender may not lawfully continue to maintain such Eurocurrency Rate
Loans. Upon any such prepayment or conversion, the Borrowers shall also pay
accrued interest on the amount so prepaid or converted. Each Lender agrees to
designate a different Lending Office if such designation will avoid the need for
such notice and will not, in the good faith judgment of such Lender, otherwise
be materially disadvantageous to such Lender.
3.03 Inability to Determine Rates. If the Administrative Agent (in
consultation with the Lenders) determines that for any reason (i) deposits in
the Applicable Currency are not being offered to banks in the applicable
offshore interbank market for such currency for the applicable amount and
Interest Period thereof, (ii) adequate and reasonable means do not exist for
determining the Eurocurrency Base Rate for such Loan or (iii) the Eurocurrency
Base Rate for such Loan does not adequately and fairly reflect the cost to such
Lenders of funding such Loan, then the Administrative Agent will promptly so
notify FMCAG and each Lender. Thereafter, the obligation of the Lenders to make
or maintain Eurocurrency Rate Loans shall be suspended until the Administrative
Agent (in consultation with the Lenders) revokes such notice. Upon receipt of
such notice, the Borrowers may revoke any pending request for a Borrowing of,
conversion to or continuation of Eurocurrency Rate Loans or, failing that, will
be deemed to have converted such request into a request for a Borrowing of Base
Rate Loans in the amount specified therein.
3.04 Increased Cost and Reduced Return; Capital Adequacy; Reserves
on Eurocurrency Loans.
(a) If any Lender determines that as a result of the introduction
of or any change in or in the interpretation of any Law in each case after the
Closing Date, or such Lender's compliance therewith, there shall be any increase
in the cost to such Lender of agreeing to make or making, funding or maintaining
Eurocurrency Rate Loans or (as the case may be) issuing or participating in
Letters of Credit, or a reduction in the amount received or receivable by such
Lender in connection with any of the foregoing (excluding for purposes of this
subsection (a) any such increased costs or reduction in amount resulting from
(i) Taxes or Other Taxes (as to which Section 3.01 shall govern), (ii) changes
in the basis of taxation of overall net income or overall gross income by the
United States or any foreign jurisdiction or any political subdivision of either
thereof under the Laws of which such Lender is organized or has its Lending
Office, and (iii) reserve requirements contemplated by Section 3.04(c) below),
then from time to time upon demand of such Lender (with a copy of such demand to
the Administrative Agent), the
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Borrowers shall pay to such Lender such additional amounts as will compensate
such Lender for such increased cost or reduction.
(b) If any Lender determines that the introduction of any Law
regarding capital adequacy or any change therein or in the interpretation
thereof in each case after the Closing Date, or compliance by such Lender (or
its Lending Office) therewith, has the effect of reducing the rate of return on
the capital of such Lender or any corporation controlling such Lender as a
consequence of such Lender's obligations hereunder (taking into consideration
its policies with respect to capital adequacy and such Lender's desired return
on capital), then from time to time upon demand of such Lender (with a copy of
such demand to the Administrative Agent), the Borrowers shall pay to such Lender
such additional amounts as will compensate such Lender for such reduction.
(c) The Borrower shall pay to each Lender, as long as such Lender
shall be required to maintain reserves with respect to liabilities or assets
consisting of or including Eurocurrency funds or deposits (currently known as
"Eurocurrency liabilities"), additional interest on the unpaid principal amount
of each Eurocurrency Rate Loan equal to the actual costs of such reserves
allocated to such Loan by such Lender pursuant to regulations issued from time
to time by the FRB for determining the maximum reserve requirement (including
any emergency, supplemental or other marginal reserve requirement) or the
Mandatory Cost Rate imposed by the Bank of England or the Financial Services
Authority of the United Kingdom (as determined by such Lender in good faith,
which determination shall be conclusive absent manifest error), which shall be
due and payable on each date on which interest is payable on such Loan, provided
the Borrower shall have received at least fifteen days' prior notice (with a
copy to the Administrative Agent) of such additional interest from such Lender.
If a Lender fails to give notice fifteen days prior to the relevant Interest
Payment Date, such additional interest shall be due and payable fifteen days
from receipt of such notice.
(d) Each Lender and L/C Issuer agrees that, as promptly as
practicable after the officer of such Lender or L/C Issuer responsible for
administering the Loans or Letters of Credit of such Lender of L/C Issuer, as
the case may be, becomes aware of the occurrence of an event or the existence of
a condition that would entitle such Lender or L/C Issuer to receive payments
under Section 3.04(a), (b) or (c), it will, to the extent not inconsistent with
the internal policies of such Lender or L/C Issuer and any applicable legal or
regulatory restrictions, use reasonable efforts (i) to make, issue, fund or
maintain the Commitments of such Lender or the affected Loans or Letters of
Credit of such Lender or L/C Issuer through another lending or letter of credit
office of such Lender or L/C Issuer, or (ii) take such other measures as such
Lender or L/C Issuer may deem reasonable, if as a result thereof the additional
amounts which would otherwise be required to be paid to such Lender or L/C
Issuer pursuant to Sections 3.04(a), (b) or (c) would be materially reduced and
if, as determined by such Lender or L/C Issuer in its sole discretion, the
making, issuing, funding or maintaining of such Commitments or Loans or Letters
of Credit through such other lending or letter of credit office or in accordance
with such other measures, as the case may be, would not otherwise materially
adversely affect such Commitments or Loans or Letters of Credit or would not be
otherwise disadvantageous to the interests of such Lender or L/C Issuer,
provided that such Lender of L/C Issuer will not be obligated to utilize such
other lending or letter of credit office pursuant to this Section 3.04(d) unless
the Borrowers agree to pay all incremental expenses incurred by such Lender or
L/C Issuer as a result of utilizing such other lending or letter of credit
office as described in clause (i) above. A certificate as to the amount of any
such expenses payable by the borrowers pursuant to this Section 3.04(d) (setting
forth in reasonable detail the basis for requesting such amount) submitted by
such Lender or L/C Issuer to the Borrowers (with a copy to the Administrative
Agent) shall be conclusive absent manifest error.
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3.05 Funding Losses. Upon demand of any Lender (with a copy to the
Administrative Agent) from time to time, the Borrowers shall promptly compensate
such Lender for and hold such Lender harmless from any loss, cost or expense
incurred by it as a result of:
(a) any continuation, conversion, payment or prepayment
of any Loan other than a Base Rate Loan on a day other than the last
day of the Interest Period for such Loan (whether voluntary, mandatory,
automatic, by reason of acceleration, or otherwise);
(b) any failure by the Borrowers (for a reason other than
the failure of such Lender to make a Loan) to prepay, borrow, continue
or convert any Loan other than a Base Rate Loan on the date or in the
amount notified by the Borrowers; or
(c) any assignment of any Loan other than a Base Rate
Loan on a day other than the last day of the Interest Period therefor
as a result of a request by the Borrowers pursuant to Section 11.16;
including any loss or expense arising from the liquidation or reemployment of
funds (excluding loss of profit or margin) obtained by it to maintain such Loan
or from fees payable to terminate the deposits from which such funds were
obtained.
For purposes of calculating amounts payable by the Borrowers to the
Lenders under this Section 3.05, each Lender shall be deemed to have funded each
Eurocurrency Rate Loan made by it at the Eurocurrency Base Rate used in
determining the Eurocurrency Rate for such Loan by a matching deposit or other
borrowing in the applicable offshore interbank market for such currency for a
comparable amount and for a comparable period, whether or not such Eurocurrency
Rate Loan was in fact so funded.
3.06 Matters Applicable to all Requests for Compensation.
(a) A certificate of the Administrative Agent or any Lender
claiming compensation under this Article III and setting forth the additional
amount or amounts to be paid to it hereunder shall be conclusive in the absence
of manifest error. In determining such amount, the Administrative Agent or such
Lender may use any reasonable averaging and attribution methods.
(b) Upon any Lender's making a claim for compensation under
Section 3.01 or 3.04, the Borrowers may replace such Lender in accordance with
Section 11.16.
3.07 Survival. All of the Borrowers' obligations under this Article
III shall survive termination of the Aggregate Commitments and repayment of all
other Obligations hereunder.
ARTICLE IV
GUARANTY
4.01 The Guaranty.
(a) Each of the Guarantors hereby jointly and severally guarantees
to each Lender, each Affiliate of a Lender that enters into a Swap Contract, the
Administrative Agent and the Collateral Agent as hereinafter provided, as
primary obligor and not as surety, the prompt payment of the Obligations in full
when due (whether at stated maturity, as a mandatory prepayment, by
acceleration, as a mandatory cash collateralization or otherwise) strictly in
accordance with the terms thereof. The Guarantors hereby further agree that if
any of the Obligations are not paid in full when due (whether at stated
maturity, as a mandatory
63
prepayment, by acceleration, as a mandatory cash collateralization or
otherwise), the Guarantors will, jointly and severally, promptly pay the same,
without any demand or notice whatsoever, and that in the case of any extension
of time of payment or renewal of any of the Obligations, the same will be
promptly paid in full when due (whether at extended maturity, as a mandatory
prepayment, by acceleration, as a mandatory cash collateralization or otherwise)
in accordance with the terms of such extension or renewal.
(b) Notwithstanding any provision to the contrary contained herein
or in any other of the Credit Documents or Swap Contracts, the obligations of
each Guarantor under this Agreement and the other Credit Documents shall be
limited to an aggregate amount equal to the largest amount that would not render
such obligations subject to avoidance under the Debtor Relief Laws or any
comparable provisions of any applicable state law.
(c) With respect to the liability of any entity incorporated under
the laws of Germany (a "German Guarantor") in respect of the guaranty set forth
in this Article IV (each a "German Guaranty"), to the extent it secures the
Indebtedness of FMCAG or any of its Subsidiaries (other than such German
Guarantor and its Subsidiaries), the following shall apply:
(i) Nothing herein shall lead to an obligation of such
German Guarantor to make a payment and the Collateral Agent agrees not
to enforce such German Guaranty to the extent that a subsequent
application of the proceeds (the "Proceeds") would have the effect of
(i) reducing such German Guarantor's net assets (Nettovermogen) (the
"Net Assets") to an amount less than its stated share capital
(Stammkapital) or (ii) (if the Net Assets are already an amount less
than the stated share capital) causing such amount to be further
reduced, and thereby affects the assets required for the obligatory
preservation of its stated share capital according to Sections 30, 31
of the German GmbH-Act (GmbH-Gesetz).
(ii) The value of the Net Assets shall be determined by
means of a balance sheet prepared in accordance with the principles for
ordinary bookkeeping and the preparation of balance sheets as they were
consistently applied by such German Guarantor in preparing its
unconsolidated balance sheets (Jahresabschluss gem. Section 42
GmbH-Act, Sections 242, 264 HGB) in the previous years, save that:
(A) in the event that any party that is liable
for a reimbursement to such German Guarantor (1) is unable to
satisfy any recourse claim that such German Guarantor may have
against such party due to the enforcement of claims under any
of the Credit Documents or such German Guaranty and (2) this
may trigger the insolvency of such German Guarantor, then for
the determination of Net Assets the lower of the book value
(Buchwert) and realization value (Liquidationswert) shall be
relevant; and
(B) any amounts due and payable under such
German Guaranty, which correspond to funds that have been
borrowed under the Credit Agreement and have been on-lent to
such German Guarantor or any of its subsidiaries, shall be
disregarded to the extent that any such amount is still
outstanding.
The balance sheet shall be prepared by such German Guarantor within
thirty days after the date of a payment request by the Collateral Agent
under such German Guaranty. If (1) the balance sheet has not become
available within the given period of time or does not comply as to form
and content to generally accepted accounting principles applying in
Germany for companies of the size of such German Guarantor, or (2) in
case of cessation of payments by such German Guarantor or (3) the
filing of an application for insolvency proceeding by such German
Guarantor (in case of (2) and (3) irrespective of whether or not thirty
days have lapsed), the Collateral Agent
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(I) shall be entitled to enforce such German Guaranty in the full
amount and (II) agrees to repay the Proceeds to such German Guarantor
to the extent that such German Guarantor is able to demonstrate that
the enforcement of the such German Guaranty violated the rules on
preservation of the stated share capital under Sections 30, 31 GmbH-Act
as set out in paragraph (i) above.
(iii) If the enforcement of such German Guaranty would be
limited due to one of the effects referred to in paragraph (a) above,
then such German Guarantor shall upon request of the Administrative
Agent realize any and all of its assets that are shown in its balance
sheet with a book value (Buchwert) that is in the opinion of the
Administrative Agent significantly lower than the market value of the
asset(s) if such asset(s) is/are not necessary for such German
Guarantor's business (nicht betriebsnotwendig).
(iv) The limitation set out in (i) through (iii) above
shall not apply while a loss and profit pooling agreement
(Gewinnabfuhrungsvertrag) exists between such German Guarantor and
FMCAG (such as, with respect to FMCD, the loss and profit pooling
agreement dated 23 August 1996), and the compensation claim of such
German Guarantor against FMCAG arising under any such loss and profit
pooling agreement compensates for any loss incurred due to any payment
of such German Guarantor under such German Guaranty.
(v) FMCAG undertakes neither to increase the stated share
capital (Stammkapital) of such German Guarantor by way of a capital
increase (Kapitalerhohung) nor to grant any shareholder loans to such
German Guarantor (except for those loans which are funds under the
Credit Agreement lent-on to such German Guarantor) without the prior
written consent of the Administrative Agent. FMCAG undertakes to pay
any such funds into the capital reserves (Kapitalrucklage, Section 266
paragraph 3 A.II.HGB) of such German Guarantor.
(d) The liability of any entity incorporated under the laws of the
Grand Duchy of Luxembourg (a "Luxembourg Guarantor") for obligations of any
entity of which such Luxembourg Guarantor is a Subsidiary and/or for obligations
of any of such Luxembourg Guarantor's Affiliates (other than its own
Subsidiaries) in respect of the guaranty set forth in this Article IV shall be
limited at any time to an aggregate amount not exceeding 95% of the greater of
such Luxembourg Guarantor's own funds ("capitaux propres") as determined by
Article 213 and following of the Luxembourg Law of 10 August 1915 on Commercial
Companies, as amended, (i) as set forth in its most recently approved financial
statements or (ii) existing as of the Closing Date.
4.02 Obligations Unconditional. The obligations of the Guarantors
under Section 4.01 are joint and several, absolute and unconditional,
irrespective of the value, genuineness, validity, regularity or enforceability
of any of the Credit Documents or Swap Contracts, or any other agreement or
instrument referred to therein, or any substitution, release, impairment or
exchange of any other guarantee of or security for any of the Obligations, and,
to the fullest extent permitted by applicable law, irrespective of any other
circumstance whatsoever that might otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor, it being the intent of this
Section 4.02 that the obligations of the Guarantors hereunder shall be absolute
and unconditional under any and all circumstances. Each Guarantor agrees that
such Guarantor shall have no right of subrogation, indemnity, reimbursement or
contribution against the Borrowers or any other Guarantor for amounts paid under
this Article IV until such time as the Obligations have been irrevocably paid in
full and the Commitment have expired or terminated. Without limiting the
generality of the foregoing, it is agreed that, to the fullest extent permitted
by law, the occurrence of any one or more of the following shall not alter or
impair the liability of any Guarantor hereunder, which shall remain absolute and
unconditional as described above:
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(a) at any time or from time to time, without notice to
any Guarantor, the time for any performance of or compliance with any
of the Obligations shall be extended, or such performance or compliance
shall be waived;
(b) any of the acts mentioned in any of the provisions of
any of the Credit Documents, any Swap Contract between any Credit Party
and any Lender, or any Affiliate of a Lender, or any other agreement or
instrument referred to in the Credit Documents or such Swap Contracts
shall be done or omitted;
(c) the maturity of any of the Obligations shall be
accelerated, or any of the Obligations shall be modified, supplemented
or amended in any respect, or any right under any of the Credit
Documents, any Swap Contract between any Credit Party and any Lender,
or any Affiliate of a Lender, or any other agreement or instrument
referred to in the Credit Documents or such Swap Contracts shall be
waived or any other guarantee of any of the Obligations or any security
therefor shall be released, impaired or exchanged in whole or in part
or otherwise dealt with;
(d) any Lien granted to, or in favor of, the
Administrative Agent or any Lender or Lenders as security for any of
the Obligations shall fail to attach or be perfected; or
(e) any of the Obligations shall be determined to be void
or voidable (including, without limitation, for the benefit of any
creditor of any Guarantor) or shall be subordinated to the claims of
any Person (including, without limitation, any creditor of any
Guarantor).
With respect to its obligations hereunder, each Guarantor hereby
expressly waives diligence, presentment, demand of payment, protest and all
notices whatsoever, and any requirement that the Administrative Agent or any
Lender exhaust any right, power or remedy or proceed against any Person under
any of the Credit Documents, any Swap Contract between any Credit Party and any
Lender, or any Affiliate of a Lender, or any other agreement or instrument
referred to in the Credit Documents or such Swap Contracts, or against any other
Person under any other guarantee of, or security for, any of the Obligations.
4.03 Reinstatement. The obligations of the Guarantors under this
Article IV shall be automatically reinstated if and to the extent that for any
reason any payment by or on behalf of any Person in respect of the Obligations
is rescinded or must be otherwise restored by any holder of any of the
Obligations, whether as a result of any proceedings pursuant to any Debtor
Relief Laws or otherwise, and each Guarantor agrees that it will indemnify the
Administrative Agent and each Lender on demand for all reasonable costs and
expenses (including fees and expenses of counsel) incurred by the Administrative
Agent or such Lender in connection with such rescission or restoration,
including any such costs and expenses incurred in defending against any claim
alleging that such payment constituted a preference, fraudulent transfer or
similar payment under any Debtor Relief Law.
4.04 Certain Waivers. Each Guarantor agrees that such Guarantor
shall have no right of recourse to security for the Obligations, except through
the exercise of rights of subrogation pursuant to Section 4.02 and through the
exercise of rights of contribution pursuant to Section 4.06. Each Guarantor
further expressly waives any right to require that any action be brought against
the Borrowers or any other Credit Party or to require recourse to security.
4.05 Remedies. The Guarantors agree that, to the fullest extent
permitted by law, as between the Guarantors, on the one hand, and the
Administrative Agent and the Lenders, on the other hand, the Obligations may be
declared to be forthwith due and payable as provided in Section 9.02 (and shall
be deemed to have become automatically due and payable in the circumstances
provided in said Section 9.02)
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for purposes of Section 4.01 notwithstanding any stay, injunction or other
prohibition preventing such declaration (or preventing the Obligations from
becoming automatically due and payable) as against any other Person and that, in
the event of such declaration (or the Obligations being deemed to have become
automatically due and payable), the Obligations (whether or not due and payable
by any other Person) shall forthwith become due and payable by the Guarantors
for purposes of Section 4.01.
4.06 Rights of Contribution. The Guarantors hereby agree as among
themselves that, if any Guarantor shall make an Excess Payment (as defined
below), such Guarantor shall have a right of contribution from each other
Guarantor in an amount equal to such other Guarantor's Contribution Share (as
defined below) of such Excess Payment. The payment obligations of any Guarantor
under this Section 4.06 shall be subordinate and subject in right of payment to
the Obligations until such time as the Obligations have been paid in full and
the Commitments have expired or terminated, and none of the Guarantors shall
exercise any right or remedy under this Section 4.06 against any other Guarantor
until such Obligations have been paid in full and the Commitments have expired
or terminated. For purposes of this Section 4.06, (a) "Excess Payment" shall
mean the amount paid by any Guarantor in excess of its Ratable Share of any
Guaranteed Obligations; (b) "Ratable Share" shall mean, for any Guarantor in
respect of any payment of Obligations, the ratio (expressed as a percentage) as
of the date of such payment of Guaranteed Obligations of (i) the amount by which
the aggregate present fair salable value of all of its assets and properties
exceeds the amount of all debts and liabilities of such Guarantor (including
contingent, subordinated, unmatured, and unliquidated liabilities, but excluding
the obligations of such Guarantor hereunder) to (ii) the amount by which the
aggregate present fair salable value of all assets and other properties of all
of the Credit Parties exceeds the amount of all of the debts and liabilities
(including contingent, subordinated, unmatured, and unliquidated liabilities,
but excluding the obligations of the Credit Parties hereunder) of the Credit
Parties; provided, however, that, for purposes of calculating the Ratable Shares
of the Guarantors in respect of any payment of Obligations, any Guarantor that
became a Guarantor subsequent to the date of any such payment shall be deemed to
have been a Guarantor on the date of such payment and the financial information
for such Guarantor as of the date such Guarantor became a Guarantor shall be
utilized for such Guarantor in connection with such payment; (c) "Contribution
Share" shall mean, for any Guarantor in respect of any Excess Payment made by
any other Guarantor, the ratio (expressed as a percentage) as of the date of
such Excess Payment of (i) the amount by which the aggregate present fair
salable value of all of its assets and properties exceeds the amount of all
debts and liabilities of such Guarantor (including contingent, subordinated,
unmatured, and unliquidated liabilities, but excluding the obligations of such
Guarantor hereunder) to (ii) the amount by which the aggregate present fair
salable value of all assets and other properties of the Credit Parties other
than the maker of such Excess Payment exceeds the amount of all of the debts and
liabilities (including contingent, subordinated, unmatured, and unliquidated
liabilities, but excluding the obligations of the Credit Parties) of the Credit
Parties other than the maker of such Excess Payment; provided, however, that,
for purposes of calculating the Contribution Shares of the Guarantors in respect
of any Excess Payment, any Guarantor that became a Guarantor subsequent to the
date of any such Excess Payment shall be deemed to have been a Guarantor on the
date of such Excess Payment and the financial information for such Guarantor as
of the date such Guarantor became a Guarantor shall be utilized for such
Guarantor in connection with such Excess Payment; and (d) "Guaranteed
Obligations" shall mean the Obligations guaranteed by the Guarantors pursuant to
this Article IV. This Section 4.06 shall not be deemed to affect any right of
subrogation, indemnity, reimbursement or contribution that any Guarantor may
have under Law against the Borrowers in respect of any payment of Guaranteed
Obligations. Notwithstanding the foregoing, all rights of contribution against
any Guarantor shall terminate from and after such time, if ever, that such
Guarantor is relieved of its obligations in accordance with Section 10.11.
4.07 Guaranty of Payment; Continuing Guaranty. The guarantee in
this Article IV is a guaranty of payment and not of collection, is a continuing
guarantee, and shall apply to all Obligations whenever arising.
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ARTICLE V
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
5.01 Conditions of Initial Credit Extensions. The obligation of
each Lender to make its initial Credit Extension hereunder is subject to
satisfaction of the following conditions precedent:
(a) The Administrative Agent's receipt of the following,
properly executed by a Responsible Officer or duly authorized signatory
of the applicable Credit Party, and in form and substance satisfactory
to the Administrative Agent:
(i) executed counterparts of this Credit
Agreement by the Credit Parties, the Lenders and the
Administrative Agent;
(ii) if requested by a Lender, an executed Note
in favor of such Lender;
(iii) executed counterparts of the Pledge
Agreements;
(iv) a certificate of a Responsible Officer or
duly authorized signatory of each Credit Party attaching each
of the following documents and certifying that each is true
and complete and in full force and effect as of the Closing
Date:
(A) copies of its certificate of
organization or the equivalent, certified to be true
and complete as of a recent date by the appropriate
Governmental Authority of the state or other
jurisdiction of its organization,
(B) copies of its bylaws, operating
agreement or partnership agreement or the equivalent
of each Credit Party,
(C) copies of its resolutions approving
and adopting the Credit Documents to which it is
party, the transactions contemplated therein, and
authorizing the execution and delivery thereof, and
(D) original incumbency certificates
identifying the officers thereof authorized to act on
its behalf in connection with the Credit Documents;
(v) certificates of good standing or the
equivalent (if available from the applicable jurisdiction),
certified as of a recent date by the appropriate Governmental
Authorities, from each jurisdiction where failure to be in
good standing could reasonably be expected to have a Material
Adverse Effect;
(vi) favorable opinions of O'Melveny & Xxxxx LLP,
counsel to the Credit Parties and in-house counsel to FMCAG or
its Subsidiaries (and as reasonably required by the
Administrative Agent in connection with the Credit Documents,
local counsel), dated as of the Closing Date, and in form and
substance reasonably satisfactory to the Administrative Agent;
(vii) a certificate of a Responsible Officer or duly
authorized signatory of each Credit Party certifying that no
consents, licenses or approvals are required in connection
with the execution, delivery and performance by such Credit
Party of the
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Credit Documents to which it is a party, other than and such
consents, licenses and approvals that are in full force and
effect and are attached thereto;
(viii) a certificate signed by a Responsible
Officer or duly authorized signatory of FMCAG certifying that
there has been no event or circumstance since December 31,
2001 that has had or could reasonably be expected to have,
either individually or in the aggregate, a Material Adverse
Effect; and
(ix) such other assurances, certificates,
documents, consents or opinions as the Administrative Agent or
the Lenders reasonably may require.
(b) The Collateral Agent's receipt of the following,
properly executed by a Responsible Officer of the applicable Credit
Party, and in form and substance satisfactory to the Collateral Agent:
(i) UCC Financing Statements. UCC financing
statements for each jurisdiction as is necessary or
appropriate, in the Collateral Agent's discretion, to perfect
the security interests in the Collateral.
(ii) Certificated Interests. When required for
perfection by applicable Law, original certificates evidencing
the Capital Stock pledged pursuant to the Collateral Documents
(to the extent such Capital Stock is certificated), together
with undated stock transfer powers executed in blank.
(iii) Intercompany Notes. Original promissory
notes evidencing intercompany loans or advances in excess of
$50 million in any instance owing to any Credit Party by any
Subsidiary of FMCAG that is not a Credit Party.
(c) Any other fees required to be paid on or before the
Closing Date shall have been paid.
(d) Unless waived by the Administrative Agent, the
Borrowers shall have paid all Attorney Costs of the Administrative
Agent to the extent invoiced prior to or on the Closing Date, plus such
additional amounts of Attorney Costs as shall constitute its reasonable
estimate of Attorney Costs incurred or to be incurred by it through the
closing proceedings (provided that such estimate shall not thereafter
preclude a final settling of accounts between the Borrowers and the
Administrative Agent).
5.02 Conditions to all Credit Extensions. The obligation of each
Lender to honor any Request for Credit Extension (including requests for
conversions or continuations) is subject to the following conditions precedent:
(a) The representations and warranties contained in
Article VI or any other Credit Document, or that are contained in any
document furnished at any time under or in connection herewith or
therewith, shall be true and correct in all material respects on and as
of the date of such Credit Extension, except to the extent that such
representations and warranties specifically refer to an earlier date,
in which case they shall be true and correct as of such earlier date,
and except that for purposes of this Section 5.02, the representations
and warranties contained in subsections (a) and (b) of Section 6.05
shall be deemed to refer to the most recent statements furnished
pursuant to clauses (a) and (b), respectively, of Section 7.01.
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(b) No Default or Event of Default shall exist, or would
result from such proposed Credit Extension.
(c) The Administrative Agent and, if applicable, the L/C
Issuer or the Swing Line Lender shall have received a Request for
Credit Extension in accordance with the requirements hereof.
Each Borrowing pursuant to any Request for Credit Extension (including
requests for conversions or continuations) submitted by the Borrowers shall be
deemed to be a representation and warranty by such Borrowers that the conditions
specified in Section 5.02(a) and (b) have been satisfied on and as of the date
of the applicable Credit Extension.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
The Credit Parties represent and warrant to the Administrative Agent
and the Lenders that:
6.01 Existence, Qualification and Power; Compliance with Laws. Each
Credit Party (a) is a corporation, partnership, limited liability company or
other entity duly organized or formed, validly existing and in good standing (to
the extent such concept exists in the applicable jurisdiction) under the Laws of
the jurisdiction of its incorporation or organization, (b) has all requisite
power and authority and all requisite governmental licenses, authorizations,
consents and approvals to (i) own its assets and carry on its business and (ii)
execute, deliver and perform its obligations under the Credit Documents to which
it is a party, (c) is duly qualified and is licensed and in good standing (to
the extent such concept exists in the applicable jurisdiction) under the Laws of
each jurisdiction where its ownership, lease or operation of properties or the
conduct of its business requires such qualification or license, (d) is in
compliance with all Laws and (e) has, to the extent applicable: (i) entered into
and maintains in good standing its Medicare Provider Agreements and Medicaid
Provider Agreements and (ii) ensured that all such required licenses are in full
force and effect on the date hereof and have not been revoked or suspended or
otherwise limited; except in the case of clauses (b)(i), (b)(ii), (c), (d) and
(e), to the extent that failure to do so could not reasonably be expected to
have a Material Adverse Effect.
6.02 Authorization; No Contravention. The execution, delivery and
performance by each Credit Party of each Credit Document to which such Person is
party, have been duly authorized by all necessary corporate or other
organizational action, and do not (a) contravene the terms of any of such
Person's Organization Documents; (b) materially conflict with or result in any
material breach or contravention of, or the creation of any Lien under, (i) any
material Contractual Obligation to which such Person is a party or (ii) any
material order, injunction, writ or decree of any Governmental Authority or any
arbitral award to which such Person or its property is subject; (c) violate any
Law; or (d) except to the extent it would not have a Material Adverse Effect,
result in a limitation on any licenses, permits or other approvals applicable to
the business, operations or properties of any Credit Party or adversely affect
the ability of any Credit Party to participate in any Medical Reimbursement
Programs.
6.03 Governmental Authorization; Other Consents. No approval,
consent, exemption, authorization, or other action by, or notice to, or filing
with, any Governmental Authority or any other Person is necessary or required in
connection with the execution, delivery or performance by, or enforcement
against, any Credit Party of this Credit Agreement or any other Credit Document.
6.04 Binding Effect. This Credit Agreement and each other Credit
Document has been duly executed and delivered by each Credit Party that is party
thereto. This Credit Agreement and the other
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Credit Documents constitute legal, valid and binding obligations of such Credit
Party, enforceable against such Credit Party in accordance with its terms,
except to the extent that the enforceability thereof may be limited by
applicable Debtor Relief Laws affecting creditors' rights generally and by
equitable principles of law (regardless of whether enforcement is sought in
equity or at law).
6.05 Financial Statements.
(a) The audited consolidated balance sheets of the Consolidated
Group for the fiscal year ended December 31, 2001, and the related consolidated
statements of income or operations, shareholders' equity and cash flows for such
fiscal year, including the notes thereto (A) were prepared in accordance with
GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein; (B) fairly present the financial condition of
the Consolidated Group as of the date thereof and their results of operations
for the period covered thereby in accordance with GAAP consistently applied
throughout the period covered thereby, except as otherwise expressly noted
therein; and (C) reflect all material indebtedness and other material
liabilities, direct or contingent, as of the date thereof, including liabilities
for taxes, material commitments and Indebtedness of the Consolidated Group.
(b) The unaudited consolidated financial statements of the
Consolidated Group dated September 30, 2002, and the related consolidated
statements of income or operations, shareholders' equity and cash flows for the
fiscal quarter ended on that date (A) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise
expressly noted therein, and (B) fairly present the financial condition of the
Consolidated Group as of the date thereof and their results of operations for
the period covered thereby, subject, to the absence of footnotes and to normal
year-end audit adjustments.
6.06 No Material Adverse Effect. Since December 31, 2001, there has
been no event or circumstance, either individually or in the aggregate, that has
had or would reasonably be expected to have a Material Adverse Effect.
6.07 Litigation. There are no actions, suits, investigations,
criminal prosecutions, civil investigative demands, imposition of criminal or
civil fines or penalties, proceedings, claims or disputes pending or, to the
knowledge of the Borrowers after due and diligent investigation, threatened, at
law, in equity, in arbitration or before any Governmental Authority, by or
against any member of the Consolidated Group or against any of their respective
properties or revenues that (a) purport to affect or pertain to this Credit
Agreement or any other Credit Document, or any of the transactions contemplated
hereby, or (b) if determined adversely, would reasonably be expected to have a
Material Adverse Effect.
6.08 No Default. No member of the Consolidated Group is in default
under or with respect to any Contractual Obligation that would reasonably be
expected to have a Material Adverse Effect. No Default or Event of Default has
occurred and is continuing or would result from the consummation of the
transactions contemplated by this Credit Agreement or any other Credit Document.
6.09 Ownership of Property; Liens. Each member of the Consolidated
Group has good record and marketable title to, or valid leasehold interests in,
all real property necessary or used in the ordinary conduct of its business,
except for such defects in title as would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. The property of the
Consolidated Group is subject to no Liens, other than Liens permitted by Section
8.02.
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6.10 Environmental Compliance. No member of the Consolidated Group
has any liability or responsibility under any claim in respect of the violation
of any Environmental Laws, except for such claims that would not reasonably be
expected to have a Material Adverse Effect.
6.11 Insurance. The properties of the Consolidated Group are
insured pursuant to self-insurance arrangements or with financially sound and
reputable insurance companies that are not Affiliates of the Borrowers, in each
case in such kinds, types, amounts and with such deductibles and self-insurance
retentions as are in accordance with sound business practice.
6.12 Taxes. Each member of the Consolidated Group has filed all
material federal, state and other tax returns and reports required to be filed,
and have paid all taxes shown thereon to be due and has paid all other material
taxes, assessments, fees and other governmental charges levied or imposed upon
them or their properties, income or assets otherwise due and payable, except
those that are being contested in good faith by appropriate proceedings
diligently conducted and for which adequate reserves have been provided in
accordance with GAAP. There is no proposed tax assessment against the Borrowers
or any Subsidiary that would, if made, have a Material Adverse Effect.
6.13 ERISA Compliance.
(a) Each Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Internal Revenue Code and other federal or
state Laws. Each Plan that is intended to qualify under Section 401(a) of the
Internal Revenue Code has received a favorable determination letter from the IRS
or an application for such a letter is pending before the IRS with respect
thereto and, to the best knowledge of the Borrowers, nothing has occurred that
would prevent, or cause the loss of, such qualification. The Borrowers and each
ERISA Affiliate have made all required contributions to each Plan subject to
Section 412 of the Internal Revenue Code, and no application for a funding
waiver or an extension of any amortization period pursuant to Section 412 of the
Internal Revenue Code has been made with respect to any Plan.
(b) There are no pending or, to the best knowledge of the
Borrowers, threatened claims, actions or lawsuits, or action by any Governmental
Authority, with respect to any Plan that could be reasonably be expected to have
a Material Adverse Effect. There has been no non-exempt prohibited transaction
or violation of the fiduciary responsibility rules with respect to any Plan that
has resulted or could reasonably be expected to result in a Material Adverse
Effect.
(c) Except to the extent it would not reasonably be expected to
have a Material Adverse Effect (i) no ERISA Event has occurred or is reasonably
expected to occur; (ii) no Pension Plan has any Unfunded Pension Liability;
(iii) neither the Borrowers nor any ERISA Affiliate has incurred, or reasonably
expects to incur, any material liability under Title IV of ERISA with respect to
any Pension Plan (other than premiums due and not delinquent under Section 4007
of ERISA); (iv) neither the Borrowers nor any ERISA Affiliate has incurred, or
reasonably expects to incur, any material liability (and no event has occurred
that, with the giving of notice under Section 4219 of ERISA, would result in
such liability) under Sections 4201 or 4243 of ERISA with respect to a
Multiemployer Plan; and (v) neither the Borrowers nor any ERISA Affiliate has
engaged in a transaction that could reasonably be expected to be subject to
Sections 4069 or 4212(c) of ERISA.
6.14 Jurisdiction of Organization, Capital Stock and Ownership of
Credit Parties.
(a) Set forth on Schedule 6.14, with respect to each Credit Party,
is the jurisdiction of organization, classes of Capital Stock (including
options, warrants, rights of subscription, conversion, exchangeability and other
similar rights), ownership and ownership percentages thereof. The outstanding
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shares of Capital Stock have been validly issued, fully paid and are
non-assessable and owned free of Liens other than Liens permitted by Section
8.02. The outstanding shares of Capital Stock shown are not the subject of
buy-sell, voting trust or other shareholder agreement except as identified on
Schedule 6.14.
(b) Each of the Borrowers (other than FMCAG) is a Wholly Owned
Subsidiary of FMCAG.
(c) As of the Closing Date, NMC is a Wholly Owned Subsidiary of
FMCH.
6.15 Margin Regulations; Investment Company Act; Public Utility
Holding Company Act.
(a) The Credit Parties are not engaged and will not engage,
principally or as one of their important activities, in the business of
purchasing or carrying "margin stock" (within the meaning of Regulation U issued
by the FRB), or extending credit for the purpose of purchasing or carrying
margin stock. Following the application of the proceeds of each Borrowing or
drawing under each Letter of Credit, not more than 25% of the value of the
assets subject to the provisions of Section 8.02 or Section 8.05 or subject to
any restriction contained in any agreement or instrument between a Borrower and
any Lender or any Affiliate of any Lender relating to Indebtedness will be
margin stock.
(b) None of the Credit Parties, any Person Controlling a Credit
Party, or any Subsidiary (i) is a "holding company," or a "subsidiary company"
of a "holding company," or an "affiliate" of a "holding company" or of a
"subsidiary company" of a "holding company," within the meaning of the Public
Utility Holding Company Act of 1935, or (ii) is or is required to be registered
as an "investment company" under the Investment Company Act of 1940.
6.16 Disclosure. No report, financial statement, certificate or
other information (other than information of a general economic nature)
furnished (whether in writing or orally) by or on behalf of any Credit Party to
the Administrative Agent or any Lender in connection with the transactions
contemplated hereby and the negotiation of this Credit Agreement or delivered
hereunder (as modified or supplemented by other information so furnished) taken
as a whole contains any material misstatement of fact or omits to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that, with
respect to projected financial information, the Borrowers represent only that
such information was prepared in good faith based upon assumptions believed to
be reasonable at the time, it being understood that projections are subject to
uncertainties and contingencies beyond the control of the Credit Parties and
that no assurance can be given that such projections will be realized.
6.17 Compliance with Laws. Each member of the Consolidated Group is
in compliance in all material respects with the requirements of all Laws and all
orders, writs, injunctions, settlements or other agreements with any
Governmental Authority and decrees applicable to it or to its properties
(including the CIA), except in such instances in which (a) such requirement of
Law or order, writ, injunction or decree is being contested in good faith by
appropriate proceedings diligently conducted or (b) the failure to comply
therewith, either individually or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect.
6.18 Intellectual Property; Licenses, Etc. Except to the extent it
would not reasonably be expected to have a Material Adverse Effect, (a) the
Consolidated Group owns, or possesses the right to use, all of the trademarks,
service marks, trade names, copyrights, patents, patent rights, franchises,
licenses and other intellectual property rights (collectively, "IP Rights") that
are reasonably necessary for the operation of their respective businesses,
without conflict with the rights of any other Person, (b) to the best knowledge
of the Credit Parties, no slogan or other advertising device, product, process,
method, substance, part or other material now employed, or now contemplated to
be employed, by any member of
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the Consolidated Group infringes upon any rights held by any other Person, and
(c) no claim or litigation regarding any of the foregoing is pending or, to the
best knowledge of the Credit Parties, threatened.
6.19 Pledge Agreements. Each Pledge Agreement is effective to
create in favor of the Collateral Agent, for the ratable benefit of the holders
of the Obligations, a legal, valid and enforceable security interest in the
Collateral identified therein, except to the extent the enforceability thereof
may be limited by applicable Debtor Relief Laws affecting creditors' rights
generally and by equitable principles of law (regardless of whether enforcement
is ought in equity or at law) and, when such Collateral is delivered to the
Collateral Agent, each Pledge Agreement shall constitute a fully perfected first
priority Lien on, and security interest in, all right, title and interest of the
pledgors thereunder in such Collateral, in each case prior and superior in right
to any other Lien.
6.20 Reimbursement from Medical Reimbursement Programs. The
accounts receivable of each of the Domestic Credit Parties have been and will
continue to be adjusted in all material respects to reflect the reimbursement
policies (both those most recently published in writing as well as those not in
writing that have been verbally communicated) of any Medical Reimbursement
Program (including Medicare, Medicaid, Blue Cross/Blue Shield, private insurance
companies, health maintenance organizations, preferred provider organizations,
alternative delivery systems, managed care systems, government contracting
agencies and other third party payors) applicable to such Credit Party. In
particular, such accounts receivable relating to any Medical Reimbursement
Program do not and shall not exceed amounts any obligee is entitled to receive
under any capitation arrangement, fee schedule, discount formula, cost-based
reimbursement or other adjustment or limitation to its usual charges, in each
case to the extent it would not reasonably be expected to have a Material
Adverse Effect.
ARTICLE VII
AFFIRMATIVE COVENANTS
Until the Loan Obligations shall have been paid in full or otherwise
satisfied, and the Commitments hereunder shall have expired or been terminated,
the Credit Parties will, and will cause members of the Consolidated Group to:
7.01 Financial Statements. Deliver to the Administrative Agent and
each Lender, in form and detail satisfactory to the Administrative Agent and the
Required Lenders:
(a) as soon as available, and in any event within five
days after the date such information is required to be delivered to the
SEC (but not in any event more than ninety-five days after the end of
any fiscal year), consolidated balance sheets of FMCAG and its
Subsidiaries, as at the end of each fiscal year (beginning with the
fiscal year ending December 31, 2002), and the related consolidated
statements of income or operations, and the related statements of
shareholders' equity and cash flows for such fiscal year, setting forth
in each case in comparative form the figures for the previous fiscal
year, all in reasonable detail and prepared in accordance with GAAP,
audited and accompanied by a report and opinion of an independent
certified public accountant of nationally recognized standing
reasonably acceptable to the Required Lenders, which report and opinion
shall state that such accountants conducted their audit of such
financial statements in accordance with generally accepted auditing
standards and shall not be subject to any "going concern" or like
qualification or exception or any qualification or exception as to the
scope of such audit or other material qualification or exception of any
kind; and
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(b) as soon as available, and in any event within five
days after the date such information is required to be delivered to the
SEC (but not in any event more than fifty days after the end of any
fiscal quarter), consolidated balance sheets of FMCAG and its
Subsidiaries, as at the end of for each of the first three fiscal
quarters of each fiscal year, and the related consolidated statements
of income or operations, and the related statements of shareholders'
equity and cash flows for such fiscal quarter and for the portion of
the fiscal year then ended, setting forth in each case in comparative
form the figures for the corresponding fiscal quarter of the previous
fiscal year and the corresponding portion of the previous fiscal year,
all in reasonable detail and certified by a Responsible Officer thereof
as fairly presenting the financial condition, results of operations,
shareholders' equity and cash flows in accordance with GAAP, subject
only to normal year-end audit adjustments and the absence of footnotes.
As to any information contained in materials furnished pursuant to Section
7.02(c), the Borrowers shall not be separately required to furnish such
information under clause (a) or (b) above, but the foregoing shall not be in
derogation of the obligation of the Borrowers to furnish the information and
materials described in subsections (a) and (b) above at the times specified
therein.
7.02 Certificates; Other Information. Deliver to the Administrative
Agent and each Lender, in form and detail satisfactory to the Administrative
Agent and the Required Lenders:
(a) concurrently with the delivery of the financial
statements referred to in Section 7.01(a), a certificate of its
independent certified public accountants certifying such financial
statements and stating that in making the examination necessary
therefor no knowledge was obtained of any Default or Event of Default
or, if any such Default or Event of Default shall exist, stating the
nature and status of such event;
(b) concurrently with the delivery of the financial
statements referred to in Sections 7.01(a) and (b), a duly completed
Compliance Certificate signed by a Responsible Officer (i) setting
forth computations in reasonable detail satisfactory to the
Administrative Agent demonstrating compliance with the financial
covenants, (ii) demonstrating compliance with certain other covenants
contained herein (including certain Indebtedness permitted under
Section 8.01, certain Investments permitted under Section 8.03 and
certain Restricted Payments permitted under Section 8.06), (iii)
certifying that no Default or Event of Default exists as of the date
thereof (or the nature and extent thereof and proposed actions with
respect thereto) and (iv) to the extent necessary pursuant to Section
1.03, including a summary of all material changes in or the consistent
application of GAAP affecting the numeric value of the financial
covenants, and a reconciliation between calculation of the financial
covenants (and determination of the applicable pricing level under the
definition of "Applicable Percentage") before and after giving effect
to such changes;
(c) promptly after the same are available, copies of each
annual report, proxy or financial statement or other report or
communication sent to the stockholders of the Borrowers, and copies of
all annual, regular, periodic and special reports and registration
statements that the Borrowers may file or be required to file with the
SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934,
and not otherwise required to be delivered to the Administrative Agent
pursuant hereto; and
(d) promptly, such additional information regarding the
business, financial or corporate affairs of members of the Consolidated
Group, or compliance with the terms of the Credit Documents, as the
Administrative Agent or any Lender may from time to time reasonably
request.
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Documents required to be delivered pursuant to Section 7.01(a) or (b)
or Section 7.02(c) (to the extent any such documents are included in materials
otherwise filed with the SEC) may be delivered electronically and if so
delivered, shall be deemed to have been delivered on the date (i) on which FMCAG
posts such documents at xxx.xxx/xxxxx/xxxxxxxx.xxx, or provides a link thereto
on FMCAG's website on the internet at the website address listed on Schedule
11.02; or (ii) on which such documents are posted on FMCAG's behalf on
IntraLinks/IntraAgency or another relevant website, if any, to which each Lender
and the Administrative Agent have access (whether a commercial, third-party
website or whether sponsored by the Administrative Agent); provided that: (i)
FMCAG shall deliver paper copies of such documents to the Administrative Agent
or any Lender that requests FMCAG to deliver such paper copies until a written
request to cease delivering paper copies is given by the Administrative Agent or
such Lender and (ii) FMCAG shall notify (which may be by facsimile or electronic
mail) the Administrative Agent and each Lender of the posting of any such
documents and provide to the Administrative Agent by electronic mail electronic
versions (i.e., soft copies) of such documents. Notwithstanding anything
contained herein, in every instance FMCAG shall be required to provide paper
copies of the Compliance Certificates required by Section 7.02(b) to the
Administrative Agent and each of the Lenders. Except for such Compliance
Certificates, the Administrative Agent shall have no obligation to request the
delivery or to maintain copies of the documents referred to above, and in any
event shall have no responsibility to monitor compliance by FMCAG with any such
request for delivery, and each Lender shall be solely responsible for requesting
delivery to it or maintaining its copies of such documents.
7.03 Notification. Promptly notify the Administrative Agent and
each Lender:
(a) after any Credit Party knows or has reason to know of
the occurrence of any Default or Event of Default;
(b) of any matter that has resulted or, if adversely
determined, would reasonably be expected to result in a Material
Adverse Effect, including as a result of (i) breach or non-performance
of, or any default under, a Contractual Obligation of the Borrowers or
any Subsidiary; (ii) any dispute, litigation, investigation, proceeding
or suspension between the Borrowers or any Subsidiary and any
Governmental Authority; or (iii) the commencement of, or any material
development in, any litigation or proceeding affecting the Borrowers or
any Subsidiary, including pursuant to any applicable Environmental
Laws;
(c) of the occurrence of any ERISA Event;
(d) of any material change in accounting policies or
financial reporting practices by members of the Consolidated Group to
the extent such change affects compliance with the financial covenants
hereunder;
(e) of any notice of intent to exclude, any notice of
proposal to exclude issued by the OIG or any other Exclusion Event that
would reasonably be expected to result in a Material Adverse Effect;
(f) of (i) the institution of any investigation, review
or proceeding against any Credit Party to suspend, revoke or terminate
(or that may result in the termination of) any Medicaid Provider
Agreement or Medicare Provider Agreement, or any such investigation or
proceeding that may result in an Exclusion Event, (ii) any notice of
loss or threatened loss of accreditation, loss of participation under
any Medical Reimbursement Program or loss of applicable health care
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license, or (iii) payment of any penalties or the imposition of any
other remedies pursuant to the CIA, in each case, that would reasonably
be expected to result in a Material Adverse Effect.
(g) of any change in the rating from Xxxxx'x or S&P for
the unsecured non-credit enhanced long-term senior debt of FMCAG; and
(h) of the issuance of any material indictment or the
initiation of other material criminal proceedings against any member of
the Consolidated Group and provide a certificate, signed by a
Responsible Officer, setting forth a detailed description of the nature
of the proceedings and the relevant facts in connection therewith
together with an estimation of the fines, penalties and damages sought
in connection therewith.
Each notice pursuant to this Section shall be accompanied by a
statement of a Responsible Officer setting forth details of the occurrence
referred to therein and stating what action the Borrowers have taken and
proposes to take with respect thereto. Each notice pursuant to Section 7.03(a)
shall describe with particularity any and all provisions of this Credit
Agreement and any other Credit Document that have been breached.
7.04 Payment of Obligations. Pay and discharge as the same shall
become due and payable, all its material obligations and liabilities, including
(a) all material tax liabilities, assessments and governmental charges or levies
upon it or its properties or assets, unless the same are being contested in good
faith by appropriate proceedings diligently conducted and adequate reserves in
accordance with GAAP are being maintained; (b) all lawful claims that, if
overdue and unpaid, would by law become a Lien upon its property (other than
Liens permitted hereunder); and (c) all Indebtedness, as and when due and
payable, but subject to any subordination provisions contained in any instrument
or agreement evidencing such Indebtedness.
7.05 Preservation of Existence, Etc. (a) Preserve, renew and
maintain in full force and effect its legal existence and good standing under
the Laws of the jurisdiction of its organization except in a transaction
permitted by Section 8.04 or 8.05; (b) take all reasonable action to maintain
all rights, privileges, permits, licenses and franchises necessary or desirable
in the normal conduct of its business, except to the extent that failure to do
so could not reasonably be expected to have a Material Adverse Effect; and (c)
preserve or renew all of its registered patents, trademarks, trade names and
service marks, the non-preservation of which could reasonably be expected to
have a Material Adverse Effect.
7.06 Maintenance of Properties. (a) Maintain, preserve and protect
all of its material properties and equipment necessary in the operation of its
business in good working order and condition, ordinary wear and tear excepted;
(b) make all necessary repairs thereto and renewals and replacements thereof
except where the failure to do so could not reasonably be expected to have a
Material Adverse Effect; and (c) use the standard of care typical in the
industry in the operation and maintenance of its facilities.
7.07 Maintenance of Insurance. Maintain in full force and effect,
self-insurance arrangements or insurance with financially sound and reputable
insurance companies that are not Affiliates, with respect to its properties and
business against loss or damage of the kinds, of such types, in such amounts and
with such deductibles and self-insurance retentions as are in accordance with
sound business practice.
7.08 Compliance with Laws.
(a) Except to the extent the failure to do so would not reasonably
be expected to have a Material Adverse Effect, cause each member of the
Consolidated Group to (i) comply with all the requirements of
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Law (including Titles XVIII and XIX of the Social Security Act, Medicare
Regulations, Medicaid Regulations), and all restrictions and requirements
imposed by any Governmental Authority, applicable to it and its Property
(including the CIA, Environmental Laws and ERISA), (ii) obtain and maintain all
licenses, permits, certifications and approvals of all applicable Governmental
Authorities as are required for the conduct of its business as currently
conducted and herein contemplated (including professional licenses, CLIA
certifications, Medicare Provider Agreements and Medicaid Provider Agreements),
(iii) ensure that billing policies, arrangements, protocols and instructions
will comply with reimbursement requirements under Medicare, Medicaid and other
Medical Reimbursement Programs and will be administered by properly trained
personnel and (iv) make commercially reasonable efforts to implement policies
that are consistent with the Standards for the Privacy of Individually
Identifiable Health Information (the "Privacy Standards") implementing the
privacy requirements of the Administrative Simplification subtitle of the Health
Insurance Portability and Accountability Act of 1996 (HIPAA) set forth at 45 CFR
Parts 160 and 164 on or before the date that such Privacy Standards become
applicable to members of the Consolidated Group.
(b) FMCH has in place and shall maintain a compliance program for
its Subsidiaries that is reasonably designed to provide effective internal
controls that promote adherence to, prevent and detect material violations of,
any Medicaid Regulations and Medicare Regulations applicable to its Subsidiaries
and to comply with all applicable requirements of the CIA, which compliance
program includes the implementation of internal audits and monitoring on a
regular basis to monitor compliance therewith, with such regulations and the
CIA.
7.09 Books and Records. (a) Maintain proper books of record and
account, in which full, true and correct entries in conformity with GAAP (or,
with respect to any foreign entity, the equivalent) shall be made of all
financial transactions and matters involving the assets and business of the
Borrowers or such Subsidiary, as the case may be; and (b) maintain such books of
record and account in material conformity with all applicable requirements of
any Governmental Authority having regulatory jurisdiction over the Borrowers or
such Subsidiary, as the case may be.
7.10 Inspection Rights. Permit representatives and independent
contractors of the Administrative Agent to visit and inspect any of its
properties, to examine its corporate, financial and operating records, and make
copies thereof (other than materials protected by attorney client privilege or
that a Credit Party may not disclose without violation of a confidentiality
obligation binding on it) or abstracts therefrom, and to discuss its affairs,
finances and accounts with its directors, officers, and independent public
accountants, at such reasonable times during normal business hours and as often
as may be reasonably desired, upon reasonable advance notice; provided, however,
that when an Event of Default exists the Administrative Agent (or any of its
representatives or independent contractors) may do any of the foregoing at the
expense of FMCAG at any time during normal business hours and without advance
notice.
7.11 Use of Proceeds. Use the proceeds of the Credit Extensions for
general corporate purposes not in contravention of any Law or of any Credit
Document.
7.12 Joinder of Additional Guarantors. Notify the Administrative
Agent at the time that (a) any Person becomes a MATERIAL Subsidiary of FMCH, or
(b) any Subsidiary of FMCAG that is not a Credit Party issues or becomes
obligated with respect to Subordinated Debt pursuant to Section 8.01(j), and
promptly thereafter (and in any event within sixty days), cause such Person to
(i) become a Guarantor by executing and delivering to the Administrative Agent a
Guarantor Joinder Agreement or such other document as the Administrative Agent
shall deem appropriate and (ii) deliver to the Administrative Agent such
organizational documents, resolutions, opinions of counsel and such other
documents as it shall reasonably request in connection therewith, all in form,
content and scope reasonably satisfactory to the
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Administrative Agent. Without limiting the foregoing provisions regarding the
required joinder of Guarantors, FMCAG may, in its discretion, join any other
Subsidiary as a Guarantor hereunder.
7.13 Pledge of Capital Stock. Cause the following to be subject at
all times to a first priority, perfected Lien in favor of the Collateral Agent
pursuant to the Collateral Documents: (a) 100% of the issued and outstanding
Capital Stock with ordinary voting power issued to FMCAG or any of its
Subsidiaries of (i) FMCH and each of its Material Subsidiaries (whether
currently existing or hereafter formed or acquired), (ii) FMCD and (iii) FMCF-II
and (b) 100% of the issued and outstanding Capital Stock with ordinary voting
power (or, if less, the maximum percentage that would not result in material
adverse tax consequences) of each Material Subsidiary of FMCAG (whether
currently existing or hereafter formed or acquired); provided in each case that
any preferred stock issued by FMCH outstanding as of the Closing Date shall not
be pledged pursuant hereto. The Credit Parties shall cause to be delivered to
the Collateral Agent such certificates, documents or other agreements as it
shall reasonably request in connection herewith, all in form, content and scope
reasonably satisfactory to the Collateral Agent.
7.14 Pledge of Intercompany Notes Evidencing Loans and Advances.
(a) Cause any intercompany loans or advances in excess of $50 million in any
instance extended pursuant to the terms of Section 8.03(l) hereof and owing to a
Credit Party by a member of the Consolidated Group that is not a Credit Party to
be evidenced by promissory notes, (b) cause each such note to be pledged by the
holder thereof against receipt therefor to the Collateral Agent as additional
security for the Obligations and (c) cause such notes and related loan documents
to be delivered to the Collateral Agent; provided that the Collateral Agent
agrees to exercise the same duty of care with respect to such notes as it is
required to exercise with respect to any possessory collateral that may be
delivered to it from time to time pursuant to the Pledge Agreement for the
pledge of the Capital Stock issued by the Domestic Subsidiaries of FMCH, to
account for any monies received by it on the same basis as set forth therein, to
apply such monies in accordance with Section 9.03 and to return such note to
FMCAG or any of its Subsidiaries upon request following payment or other
satisfaction of the obligation represented thereby, or the earlier termination
of the Commitments and payment in full of the Obligations hereunder.
7.15 Ownership. Except as otherwise permitted under Section 8.04,
at all times (a) each of the Primary Borrowers (other than FMCAG) shall be a
Wholly Owned Subsidiary of FMCAG and (b) NMC shall be a Wholly Owned Subsidiary
of FMCH.
ARTICLE VIII
NEGATIVE COVENANTS
Until the Loan Obligations shall have been paid in full or otherwise
satisfied, and until the Commitments hereunder shall have expired or been
terminated, the Credit Parties will not, and will not permit members of the
Consolidated Group to:
8.01 Indebtedness. Create, incur, assume or suffer to exist any
Indebtedness, except:
(a) Indebtedness arising or existing under this Credit
Agreement and the other Credit Documents;
(b) Indebtedness identified on Schedule 8.01, and any
refinancings, refundings, renewals or extensions thereof, provided that
the principal amount of such Indebtedness is not increased at the time
of any such refinancing, refunding, renewal or extension (except that
the terms of any such refinancing, refunding, renewal or extension
shall be on terms consistent with prevailing market standards, but not
materially less favorable to the member of the Consolidated
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Group than the terms of the Indebtedness that is the subject of such
refinancing, refunding, renewal or extension), but the amount of any
such refinancing, refunding, renewal or extension may include (i) the
amount of unfunded commitments relating thereto and (ii) the costs
thereof, including reasonable fees and expenses in connection
therewith);
(c) unsecured intercompany Indebtedness among members of
the Consolidated Group to the extent permitted by Section 8.03;
(d) Indebtedness and obligations (contingent or
otherwise) owing under Swap Contracts, provided that such obligations
are (or were) entered into by such Person in the ordinary course of
business for the purpose of directly mitigating risks associated with
liabilities, commitments, investments, assets or property held or
reasonably anticipated by such Person, or changes in the value of
securities issued by such Person, and not for the purposes of
speculation or taking a "market view";
(e) Indebtedness under capital leases, Synthetic Lease
obligations and purchase money obligations incurred to provide all or a
portion of the purchase price (or cost of construction or acquisition),
in each case, for capital assets and refinancings, refundings, renewals
or extensions thereof, provided that (i) such Indebtedness when
incurred shall not exceed the purchase price or cost of construction of
such asset, (ii) no such Indebtedness shall be refinanced for a
principal amount in excess of the principal balance outstanding thereon
at the time of such refinancing, and (iii) for the Consolidated Group
taken as a whole, the total amount of all such Indebtedness incurred
after the Closing Date plus the Attributed Principal Amount of Sale and
Leaseback Transactions entered into after the Closing Date that are not
otherwise included in such Indebtedness shall not exceed $250 million
in the aggregate at any time;
(f) Indebtedness and obligations under Permitted
Receivables Financings, provided that the Attributed Principal Amount
of all such Permitted Receivables Financings shall not exceed $750
million in the aggregate at any time;
(g) senior Funded Debt of FMCAG and its Subsidiaries in a
principal amount not to exceed $700 million (or the Dollar Equivalent
thereof on the date on which the amount is fixed, to the extent that
any such Indebtedness is denominated other than in Dollars) in the
aggregate at any time outstanding, provided that not more than $550
million of such Funded Debt may be issued, assumed or guaranteed by the
Credit Parties generally;
(h) in addition to Indebtedness otherwise permitted under
this Section 8.01, senior Funded Debt of FMCH and its Subsidiaries in a
principal amount not to exceed $50 million (or the Dollar Equivalent
thereof on the date on which the amount is fixed, to the extent that
any such Indebtedness is denominated other than in Dollars) in the
aggregate at any time outstanding;
(i) customer deposits and advance payments received from
customers for goods purchased in the ordinary course of business;
(j) in addition to Indebtedness otherwise permitted under
this Section 8.01, Subordinated Debt and Support Obligations relating
thereto, provided that (i) the maturity date for any such debt is not
earlier than the maturity date of the Tranche B Term Loan, (ii) such
Subordinated Debt and any Support Obligations relating thereto shall be
subordinated to the Obligations hereunder on terms and conditions
materially no less favorable to the Lenders than those in the Trust
Preferred Subdebt issued and outstanding on the Closing Date or on
terms and conditions otherwise reasonably acceptable to the
Administrative Agent and the Required
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Lenders and (iii) any Person that gives a Support Obligation in respect
of any such Subordinated Debt shall also give a guaranty of the
Obligations hereunder and become a Guarantor hereunder, provided
further, that on the date of issuance, incurrence or assumption of any
such additional Subordinated Debt, (A) no Default or Event of Default
shall then exist and be continuing immediately before or after giving
effect thereto, (B) the Consolidated Group shall be in compliance with
the financial covenants hereunder after giving effect thereto on a Pro
Forma Basis and (C) a Responsible Officer of FMCAG shall provide a
compliance certificate, in form and detail satisfactory to the
Administrative Agent, affirming the matters in this subsection;
(k) Indebtedness of FMCAG and its Subsidiaries owing to
Fresenius AG and any of its Subsidiaries (other than FMCAG and its
Subsidiaries) in an aggregate principal amount not to exceed $400
million at any time outstanding (the "AG Debt"); provided that such
Indebtedness shall be subordinated to the Obligations on terms and
conditions materially no less favorable to the Lenders than those in
the Trust Preferred Subdebt issued and outstanding on the Closing Date
or on terms and conditions otherwise reasonably acceptable to the
Administrative Agent and the Required Lenders; and
(l) Indebtedness in respect of convertible bonds referred
to in Section 8.03(g).
8.02 Liens. Create, incur, assume or suffer to exist any Lien upon
any of its property, assets or revenues, whether now owned or hereafter
acquired, other than the following:
(a) Liens to secure the loans and obligations owing under
the Credit Documents;
(b) Liens in favor of a Lender or any of its Affiliates
pursuant to a Swap Contract permitted hereunder, but only to the extent
that (i) the obligations under such Swap Contract are permitted under
Section 8.01, (ii) such Liens are on the same collateral that secures
the Obligations hereunder and (iii) the obligations under such Swap
Contract and the Obligations share pari passu in the collateral subject
to such Liens;
(c) Liens existing on the date hereof and listed on
Schedule 8.02 and any renewals or extensions thereof, provided that the
property covered thereby is not broadened or increased and any renewal
or extension of the obligations secured or benefited thereby is
permitted by Section 8.01;
(d) Liens for taxes, assessments or governmental charges
or levies not yet due or payable or that are being contested in good
faith and by appropriate proceedings diligently conducted, if adequate
reserves with respect thereto are maintained on the books of the
applicable Person in accordance with GAAP;
(e) carriers', warehousemen's, mechanics', materialmen's,
repairmen's, supplier's or other like Liens arising in the ordinary
course of business that are not overdue for a period of more than
thirty days or that are being contested in good faith and by
appropriate proceedings diligently conducted, if adequate reserves with
respect thereto are maintained on the books of the applicable Person;
(f) pledges or deposits in the ordinary course of
business in connection with workers' compensation, unemployment
insurance and other social security legislation, other than any Lien
imposed by ERISA, or to secure the performance of tenders, statutory
obligations, bids, leases, government contracts, performance and
return-of-money bonds and other similar obligations (exclusive of
obligations for the payment of borrowed money);
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(g) deposits to secure the performance of bids, trade
contracts and leases (other than Indebtedness), statutory obligations,
surety bonds (other than bonds related to judgments or litigation),
performance bonds and other obligations of a like nature incurred in
the ordinary course of business;
(h) easements, rights-of-way, restrictions minor defects
or irregularities in title and other similar encumbrances affecting
real property that, in the aggregate, are not substantial in amount,
and that do not in any case materially detract from the value of the
property subject thereto or materially interfere with the ordinary
conduct of the business of the applicable Person;
(i) Liens securing attachments or judgments for the
payment of money not constituting an Event of Default under Section
9.01(h) or securing appeal or other surety bonds related to such
judgments;
(j) Liens securing, or in respect of, obligations under
capital leases or Synthetic Leases and purchase money obligations for
fixed or capital assets permitted hereunder, provided that (i) such
Liens do not at any time encumber any property other than the property
financed by such Indebtedness and (ii) the Indebtedness secured thereby
does not exceed the cost or fair market value, whichever is lower, of
the property being acquired on the date of acquisition;
(k) Liens on the property or assets of any Credit Party
granted in connection with Sale and Leaseback Transactions permitted
hereunder;
(l) Liens on the property or assets granted in connection
with Permitted Receivable Financings (including any related filings of
financing statements), provided that such Liens shall extend only to
those accounts receivable and related property that are the subject of
the Permitted Receivables Financing;
(m) leases and subleases of real property granted to
others not interfering in any material respect with the business of any
member of the Consolidated Group;
(n) any interest of title of a lessor under, and Liens
arising under UCC financing statements (or equivalent filings,
registrations or agreements in foreign jurisdictions) relating to,
leases permitted by this Credit Agreement;
(o) normal and customary rights of setoff on deposits of
cash in favor of banks and other depository institutions;
(p) Liens in favor of customs and revenue authorities
required as a matter of law to secure payment of customs duties in
connection with the importation of goods;
(q) Liens created or deemed to exist by the establishment
of trusts for the purpose of satisfying (i) Governmental Reimbursement
Program Costs and (ii) other actions or claims pertaining to the same
or related matters or other Medical Reimbursement Programs, provided in
each case that (A) adequate reserves for such claims or actions have
been established and (B) contributions to such trusts in respect of
such actions or claims shall not exceed $60 million at any time;
(r) Liens arising out of the refinancing, extension,
renewal or refunding of any Indebtedness secured by any Lien permitted
by any of the foregoing clauses of this Section 8.02,
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provided that (i) such Indebtedness is not secured by any additional
assets of the Consolidated Group and (ii) the amount of such
Indebtedness secured by any such Lien is not increased; and
(s) Liens other than those referred to herein above,
provided that (i) the aggregate amount of all Indebtedness secured
thereby does not at any time exceed $50 million and (ii) the Liens do
not cover or extend to any of the collateral pledged to secure the
Obligations hereunder.
8.03 Investments. Make any Investments, except:
(a) cash (including cash held in non-time deposit
accounts) and Cash Equivalents;
(b) accounts receivable created, acquired or made by a
member of the Consolidated Group in the ordinary course of business and
payable or dischargeable in accordance with customary trade terms;
(c) Investments consisting of stock, obligations,
securities or other property received by a member of the Consolidated
Group in settlement of accounts receivable (created in the ordinary
course of business) from bankrupt obligors;
(d) Investments consisting of capital contributions and
equity Investments made by members of the Consolidated Group in other
members of the Consolidated Group prior to the Closing Date;
(e) Investments existing on the Closing Date and set
forth on Schedule 8.03;
(f) Guaranty Obligations permitted by Section 8.01;
(g) loans to employees, directors or officers in
connection with the award of convertible bonds under a stock incentive
plan, stock option plan or other equity-based compensation plan or
arrangement in an aggregate amount not to exceed $20 million (net of
Indebtedness owing by members of the Consolidated Group to such
employees, directors or officers under convertible bonds) in the
aggregate at any time outstanding;
(h) other advances or loans to directors, officers,
employees or agents not to exceed $10 million in the aggregate at any
one time outstanding,
(i) advances or loans to customers or suppliers that do
not exceed $40 million in the aggregate at any one time outstanding;
(j) Investments by a member or an Affiliate of a member
of the Consolidated Group in connection with a Permitted Receivables
Financing;
(k) Investments by FMCAG and its Subsidiaries in and to
(i) any Credit Party that is organized and existing under the laws of
an Approved Jurisdiction and (ii) any Subsidiary of FMCH that is not a
Credit Party, provided that, in each case, if such Investment is an
Acquisition of Capital Stock or property of a Person that was not a
member of the Consolidated Group prior thereto, it shall be a Permitted
Acquisition.
(l) Investments by FMCAG and its Subsidiaries in members
of the Consolidated Group where such Investments are not permitted
under subsection (k) above, provided that (i) members of the
Consolidated Group (other than FMCH and its Subsidiaries) that are not
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Credit Parties or that are Credit Parties organized and existing under
the laws of a non-Approved Jurisdiction may make such Investments in
and to other members of the Consolidated Group (other than FMCH and its
Subsidiaries) that are not Credit Parties or that are Credit Parties
organized and existing under the laws of a non-Approved Jurisdiction,
(ii) members of the Consolidated Group may make other such Investments
in an aggregate amount outstanding at any time (excluding those
Investments permitted by clauses (d) and (e) of this Section 8.03) not
to exceed 15% of consolidated total assets of the Consolidated Group,
(iii) if any such Investment is an Acquisition of Capital Stock or
property of a Person that was not a member of the Consolidated Group
prior thereto, it shall be a Permitted Acquisition, (iv) there shall be
no contractual restriction or limitation on the repayment of any such
Investment and (v) where any such Investments made pursuant to clause
(ii) above constitute loans or advances, such loans or advances shall
be pledged as collateral hereunder to the extent required under Section
7.14;
(m) Investments by FMCAG and its Subsidiaries in and to
joint ventures or other entities in which FMCAG, directly or
indirectly, owns less than a majority of the Capital Stock with
ordinary voting power of such venture or entity and loans or other
advances to or in Fresenius AG; provided that (i) the aggregate
principal amount of all such Investments under this subsection (m)
shall not exceed $300 million at any time, (ii) the aggregate principal
amount of any loans or other advances to Fresenius AG shall not exceed
$200 million at any time so long as Fresenius AG owns more than 50% of
the Capital Stock of FMCAG with ordinary voting power, and otherwise,
$100 million and (iii) in each such case there shall be no contractual
restriction or limitation on repayment thereof by the joint venture or
other entity in which such Investment is made;
(n) Investments by members of the Consolidated Group in
Fresenius AG or a common "cash pool" for investment purposes maintained
by Fresenius AG for the investment of funds on an overnight basis; and
(o) other loans, advances or investments of a nature not
contemplated in the foregoing subsections in an amount not to exceed
$50 million in the aggregate at any time outstanding.
8.04 Merger and Consolidation. Enter into a transaction of merger
or consolidation; provided that so long as no Default or Event of Default then
exists or would result therefrom:
(a) a Domestic Subsidiary may merge or consolidate with
another Domestic Subsidiary, provided that (i) FMCH shall not merge or
consolidate with another Person (other than NMC or a direct Wholly
Owned Domestic Subsidiary of FMCAG) unless FMCH shall be the surviving
corporation or entity and (ii) if the merger or consolidation involves
a Domestic Credit Party then, in addition to the conditions contained
in clause (i), the surviving corporation or entity shall be either the
Domestic Credit Party or such surviving corporation or entity shall
become a Guarantor pursuant to the terms of Section 7.12 immediately
after the consummation of such merger or consolidation;
(b) a Foreign Subsidiary may merge or consolidate with
any other Foreign Subsidiary, provided that (i) FMCAG shall not merge
or consolidate with another Person unless FMCAG shall be the surviving
corporation or entity and (ii) if such merger or consolidation involves
a Credit Party, the surviving corporation or entity shall either be a
Credit Party or shall become a Guarantor pursuant to the terms of
Section 7.12 immediately after the consummation of such merger or
consolidation; and
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(c) members of the Consolidated Group may merge or
consolidate with Persons that are not members of the Consolidated
Group, provided that (i) the transaction shall constitute a Permitted
Acquisition and shall be permitted by Section 8.03, (ii) the member of
the Consolidated Group shall be the surviving entity, (iii) if the
member of the Consolidated Group that is a party to the merger or
consolidation is a Wholly Owned Subsidiary of FMCH, then the surviving
entity shall be a Wholly Owned Subsidiary of FMCH, (iv) if the member
of the Consolidated Group that is a party to the merger or
consolidation is a Guarantor hereunder, the surviving entity shall be a
Guarantor hereunder and (v) no Default or Event of Default shall then
exist and be continuing immediately before or immediately after giving
effect thereto.
8.05 Dispositions. Make any Disposition, except:
(a) the sale of inventory in the ordinary course of
business for fair consideration;
(b) the sale or disposition of machinery and equipment no
longer used or useful in the conduct of such Person's business;
(c) a Permitted Receivables Financing as provided for in
Section 8.01(f);
(d) in the case of Sale and Leaseback Transactions,
Dispositions of property (i) if the subject lease is a capital lease
under GAAP, the transaction shall be permitted under Section 8.01(e)
and (ii) if the subject lease is an operating lease under GAAP, the sum
of Indebtedness under capital leases, Synthetic Leases and purchase
money obligations incurred to provide all or a portion of the purchase
price (or cost of construction or acquisition), in each case for
capital assets, plus the Attributed Principal Amount of Sale and
Leaseback Transactions not otherwise included in the foregoing
Indebtedness shall not exceed the amount referenced in Section 8.01(e);
(e) Dispositions from a Credit Party to any other Credit
Party, and Dispositions from a member of the Consolidated Group that is
not a Credit Party to any other member of the Consolidated Group;
(f) Dispositions from a Credit Party to any other member
of the Consolidated Group that is not a Credit Party if (i) such
Disposition consists of inventory that is sold in the ordinary course
of business or (ii) such Dispositions are for fair consideration; and
(g) Dispositions not otherwise permitted under this
Section, provided that (i) the aggregate book value of property so sold
or otherwise disposed of under this clause (g) in any given fiscal year
shall not exceed an amount equal to 5% of Consolidated Net Worth as of
the end of the fiscal year immediately preceding the date of
determination, (ii) no Default or Event of Default shall then exist or
would result therefrom after giving effect thereto on a Pro Forma Basis
and (iii) the Net Cash Proceeds therefrom shall be applied in
accordance with the provisions of Section 2.06(c).
8.06 Restricted Payments. FMCAG will not make or permit any
Restricted Payment, unless and to the extent that (a) no Default or Event of
Default shall exist after giving effect thereto on a Pro Forma Basis and (b) the
aggregate amount of Restricted Payments in any calendar year shall not in any
event exceed the amount set out in Schedule 8.06.
8.07 Prepayment of Other Subordinated Debt. Make any prepayment,
redemption, defeasance or acquisition for value of (including, without
limitation, by way of depositing money or securities with
85
the trustee with respect thereto before due for the purpose of paying when due),
or refund, refinance or exchange of any Trust Preferred Securities or
Subordinated Debt (other than as may be required by the terms of any
Subordinated Debt assumed in connection with a Permitted Acquisition or pursuant
to Section 8.10, within six months of the related acquisition or on other terms
reasonably acceptable to the Administrative Agent and the Required Lenders);
provided, that, so long as the Consolidated Senior Leverage Ratio is less than
2.0:1.0 at the time of such purchase, any member of the Consolidated Group may
purchase or repurchase Trust Preferred Securities in a cumulative aggregate
amount for all members of the Consolidated Group after the Closing Date not to
exceed $50 million.
8.08 Change in Nature of Business. Engage in any material line of
business substantially different from those lines of business conducted by the
Consolidated Group on the date hereof or any business substantially related or
incidental thereto.
8.09 Transactions with Affiliates. Enter into any transaction with
any Affiliate of the Borrowers, whether or not in the ordinary course of
business, other than (a) as described on Schedule 8.09, (b) transactions between
Credit Parties, (c) transactions between a Credit Party and a member of the
Consolidated Group that is not a Credit Party to the extent it would not be
materially detrimental to the interests of FMCH, (d) customary fees and expenses
paid to directors and (e) transactions that are on fair and reasonable terms
substantially as favorable to such member of the Consolidated Group as would be
obtainable by such member of the Consolidated Group at the time in a comparable
arm's length transaction with a Person other than an Affiliate.
8.10 No Further Negative Pledges. Except in connection with
Indebtedness permitted under clauses (b), (e), (f), (g), (h) and (j) of Section
8.01, no member of the Consolidated Group will enter into, assume or become
subject to any agreement prohibiting or otherwise restricting the creation or
assumption of any Lien upon its properties or assets, whether now owned or
hereafter acquired; provided that (i) in the case of Indebtedness under clauses
(e) and (f) of Section 8.01, such prohibition or limitations shall relate to the
specific property (and related property) to which such Indebtedness relates,
(ii) in the case of Indebtedness under clause (b) of Section 8.01, such
prohibitions or limitations shall not be more restrictive on the members of the
Consolidated Group than those in effect on the Closing Date and (iii) if the
scope of such prohibitions or restrictions in the documents relating to any
assumed Subordinated Debt is materially more restrictive on FMCAG and its
Subsidiaries than the corresponding prohibitions and restrictions under the
Trust Preferred Subdebt outstanding on the Closing Date, such Subordinated Debt
shall be prepaid, redeemed, defeased or otherwise acquired for value, or
refinanced or otherwise amended on terms reasonably acceptable to the
Administrative Agent and the Required Lenders, within six months of the related
Acquisition.
8.11 Use of Proceeds. Use the proceeds of Credit Extensions for any
purpose other than (a) to refinance existing Indebtedness of the Consolidated
Group, and (b) for working capital and other general corporate purposes of
members of the Consolidated Group, including Permitted Acquisitions. The
proceeds of the Credit Extensions will not in any event be used in violation of
the provisions of Regulation U of the FRB.
8.12 Fiscal Year. Change its fiscal year without the prior written
consent of the Required Lenders.
8.13 Financial Covenants.
(a) Consolidated Leverage Ratio. As of the end of each fiscal
quarter, the Consolidated Leverage Ratio will not exceed:
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----------------------------------------------------------------
Maximum
Fiscal Quarter Ending Consolidated Leverage Ratio
----------------------------------------------------------------
Closing Date through 4.0:1.0
December 30, 2003
December 31, 2003 through 3.75:1.0
December 30, 2004
December 31, 2004 through 3.5:1.0
December 30, 2005
December 31, 2005 through 3.25:1.0
December 30, 2006
December 31, 2006 through 3.0:1.0
December 30, 2007
December 31, 2007 and 2.5:1.0
thereafter
----------------------------------------------------------------
(b) Consolidated Fixed Charge Coverage Ratio. As of the end of
each fiscal quarter, the Consolidated Fixed Charge Coverage Ratio will not be
less than 1.1:1.0.
(c) Consolidated Net Worth. As of the end of each fiscal quarter,
Consolidated Net Worth shall not be less than the sum of (a) $2.5 billion, plus
(b) as of the end of each fiscal year, an amount equal to 50% of Consolidated
Net Income for the year then ended (but not less than zero), such increases to
be cumulative, plus (c) an amount equal to 100% of the Net Cash Proceeds from
Equity Transactions occurring after the Closing Date.
ARTICLE IX
EVENTS OF DEFAULT AND REMEDIES
9.01 Events of Default. Any of the following shall constitute an
Event of Default:
(a) Non-Payment. The Borrowers or any other Credit Party
fails to pay (i) when and as required to be paid herein, any amount of
principal of any Loan or any L/C Obligation, or (ii) within five
Business Days after the same becomes due, any interest on any Loan or
on any L/C Obligation, or any commitment or other fee due hereunder, or
(iii) within five Business Days after the same becomes due, any other
amount payable hereunder or under any other Credit Document; or
(b) Specific Covenants. The Borrowers fails to perform or
observe any term, covenant or agreement contained in any of Section
7.02 or 7.03, or Article VIII; or
(c) Other Defaults. Any Credit Party fails to perform or
observe any other covenant or agreement (not specified in subsection
(a) or (b) above) contained in any Credit Document on its part to be
performed or observed (subject to applicable grace or cure periods, if
any) and such failure continues unremedied for a period of at least
thirty days after the earlier of a responsible officer of a Credit
Party becoming aware of such default or notice thereof by the
Administrative Agent; or
(d) Representations and Warranties. Any representation,
warranty, certification or statement of fact made or deemed made by or
on behalf of the Borrowers or any other Credit Party herein, in any
other Credit Document, or in any document delivered in connection
herewith or therewith shall prove to be false or misleading in any
material respect when made or deemed made; or
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(e) Cross-Default. (i) Any member of the Consolidated
Group (A) fails to make any payment when due (whether by scheduled
maturity, required prepayment, acceleration, demand, or otherwise) in
respect of any Indebtedness or Support Obligations (other than
Indebtedness hereunder and Indebtedness under Swap Contracts) having an
aggregate principal amount (including undrawn committed or available
amounts and including amounts owing to all creditors under any combined
or syndicated credit arrangement) of more than $50 million, or (B)
fails to observe or perform any other agreement or condition relating
to any such Indebtedness or Support Obligations or contained in any
instrument or agreement evidencing, securing or relating thereto, or
any other event occurs, the effect of which default or other event is
to cause, or to permit the holder or holders of such Indebtedness or
the beneficiary or beneficiaries of such Support Obligations (or a
trustee or agent on behalf of such holder or holders or beneficiary or
beneficiaries) to cause, with the giving of notice if required, such
Indebtedness to be demanded or to become due or to be repurchased,
prepaid, defeased or redeemed (automatically or otherwise), or an offer
to repurchase, prepay, defease or redeem such Indebtedness to be made,
prior to its stated maturity, or such Support Obligations to become
payable or cash collateral in respect thereof to be demanded; or (ii)
there occurs under any Swap Contract an Early Termination Date (as
defined in such Swap Contract) resulting from (A) any event of default
under such Swap Contract as to which the Borrowers or any Subsidiary is
the Defaulting Party (as defined in such Swap Contract) or (B) any
Termination Event (as so defined) under such Swap Contract as to which
the Borrowers or any Subsidiary is an Affected Party (as so defined)
and, in either event, the Swap Termination Value owed by the Borrowers
or such Subsidiary as a result thereof is greater than $50 million; or
(f) Insolvency Proceedings, Etc. Any member of the
Consolidated Group (other than any Immaterial Foreign Subsidiary)
institutes or consents to the institution of any proceeding under any
Debtor Relief Law, or makes an assignment for the benefit of creditors;
or applies for or consents to the appointment of any receiver, trustee,
custodian, conservator, liquidator, rehabilitator or similar officer
for it or for all or any material part of its property; or any
receiver, trustee, custodian, conservator, liquidator, rehabilitator or
similar officer is appointed without the application or consent of such
Person and the appointment continues undischarged or unstayed for sixty
calendar days; or any proceeding under any Debtor Relief Law relating
to any such Person or to all or any material part of its property is
instituted without the consent of such Person and continues undismissed
or unstayed for sixty calendar days, or an order for relief is entered
in any such proceeding; or
(g) Inability to Pay Debts; Attachment. (i) Any member of
the Consolidated Group (other than any Immaterial Foreign Subsidiary)
becomes unable or admits in writing its inability or fails generally to
pay its debts as they become due, or (ii) any writ or warrant of
attachment or execution or similar process is issued or levied against
all or any material part of the property of any such Person and is not
released, vacated or fully bonded within thirty days after its issue or
levy; or
(h) Judgments. There is entered against member of the
Consolidated Group (i) a final judgment or order for the payment of
money in an aggregate amount exceeding $50 million (to the extent not
covered by independent third-party insurance as to which the insurer
does not dispute coverage) or (ii) any one or more non-monetary final
judgments that have, or could reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect and, in
either case, (A) such judgment or order is not paid, bonded or
otherwise discharged within thirty days of entry thereof and
enforcement proceedings are commenced by any creditor upon such
judgment or order, or (B) there is a period of thirty consecutive days
during which a stay of
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enforcement of such judgment, by reason of a pending appeal or
otherwise, is not in effect (it being understood and agreed for the
purposes of clarification that any judgment or order entered into in
connection with the X.X. Xxxxx bankruptcy that relates to the
settlement of the fraudulent transfer and related claims against
members of the Consolidated Group is not included within the scope of
this provision); or
(i) ERISA. (i) An ERISA Event occurs with respect to a
Pension Plan or Multiemployer Plan that has resulted or could
reasonably be expected to result in liability of the Borrowers under
Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC
in an aggregate amount in excess of $50 million, or (ii) the Borrowers
or any ERISA Affiliate fails to pay when due, after the expiration of
any applicable grace period, any installment payment with respect to
its withdrawal liability under Section 4201 of ERISA under a
Multiemployer Plan in an aggregate amount in excess of $50 million; or
(j) Invalidity of Credit Documents. Any Credit Document,
at any time after its execution and delivery and for any reason other
than as expressly permitted hereunder or satisfaction in full of all
the Obligations, ceases to be in full force and effect; or any Credit
Party or any other Person contests in any manner the validity or
enforceability of any Credit Document; or any Credit Party denies that
it has any or further liability or obligation under any Credit
Document, or purports to revoke, terminate or rescind any Credit
Document;
(k) Exclusion Event. There occurs any Exclusion Event
that has, or could reasonably be expected to have, a Material Adverse
Effect; or
(l) Change of Control. There occurs any Change of
Control.
9.02 Remedies Upon Event of Default. If any Event of Default occurs
and is continuing, the Administrative Agent shall, at the request of, or may,
with the consent of, the Required Lenders, take any or all of the following
actions:
(a) declare the commitments of the Lenders to make Loans
and the obligation of the L/C Issuer to make L/C Credit Extensions to
be terminated, whereupon such commitments and obligation shall be
terminated;
(b) declare the unpaid principal amount of all
outstanding Loans, all interest accrued and unpaid thereon, and all
other amounts owing or payable hereunder or under any other Credit
Document to be immediately due and payable, without presentment,
demand, protest or other notice of any kind, all of which are hereby
expressly waived by the Borrowers;
(c) require that the Borrowers Cash Collateralize the L/C
Obligations (in an amount equal to the Dollar Equivalent of the
Outstanding Amount thereof); and
(d) exercise on behalf of itself and the Lenders all
rights and remedies available to it and the Lenders under the Credit
Documents or applicable law;
provided, however, that upon the occurrence of an event under Section 9.01(f),
the obligation of each Lender to make Loans and any obligation of the L/C Issuer
to make L/C Credit Extensions shall automatically terminate, the unpaid
principal amount of all outstanding Loans and all interest and other amounts as
aforesaid shall automatically become due and payable, and the obligation of the
Borrowers to Cash Collateralize the L/C Obligations as aforesaid shall
automatically become effective, in each case without further act of the
Administrative Agent or any Lender.
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9.03 Application of Funds. After the exercise of remedies provided
for in Section 9.02 (or after the Loans have automatically become immediately
due and payable and the L/C Obligations have automatically been required to be
Cash Collateralized as set forth in the proviso to Section 9.02), any amounts
received on account of the Obligations shall be applied by the Administrative
Agent (or, as applicable, the Collateral Agent) in the following order:
First, to the payment of that portion of the Obligations
constituting fees, indemnities, expenses and other amounts (including
Attorney Costs and amounts payable under Article III) payable to the
Collateral Agent in its capacity as such, including all amounts
incurred in the execution of its duties as collateral agent and the
exercise of rights and remedies in respect of the collateral;
Second, to payment of that portion of the Obligations
constituting fees, indemnities, expenses and other amounts (including
Attorney Costs and amounts payable under Article III) payable to the
Administrative Agent in its capacity as such;
Third, to payment of that portion of the Obligations
constituting fees, indemnities and other amounts (other than principal
and interest) payable to the Lenders (including Attorney Costs and
amounts payable under Article III), ratably among them in proportion to
the amounts described in this clause payable to them;
Fourth, to payment of that portion of the Obligations
constituting accrued and unpaid interest on the Loans and L/C
Borrowings and fees, premiums and scheduled periodic payments, and any
interest accrued thereon, due under any Swap Contract between any
Credit Party and any Lender, or any Affiliate of a Lender, to the
extent such Swap Contract is permitted by Section 8.01, ratably among
the Lenders (and, in the case of such Swap Contracts, Affiliates of
Lenders) in proportion to the respective amounts described in this
clause Fourth held by them;
Fifth, to payment of that portion of the Obligations
constituting unpaid principal of the Loans and L/C Borrowings and
breakage, termination or other payments, and any interest accrued
thereon, due under any Swap Contract between any Credit Party and any
Lender, or any Affiliate of a Lender, to the extent such Swap Contract
is permitted by Section 8.01(d), and to Cash Collateralize that portion
of L/C Obligations comprised of the aggregate undrawn amount of Letters
of Credit, ratably among the Lenders (and, in the case of such Swap
Contracts, Affiliates of Lenders) in proportion to the respective
amounts described in this clause Fifth held by them; and
Last, the balance, if any, after all of the Obligations have
been indefeasibly paid in full, to the Borrowers or as otherwise
required by Law.
Subject to Section 2.08(c), amounts used to Cash Collateralize the aggregate
undrawn amount of Letters of Credit pursuant to clause Fifth above shall be
applied to satisfy drawings under such Letters of Credit as they occur. If any
amount remains on deposit as Cash Collateral after all Letters of Credit have
either been fully drawn or expired, such remaining amount shall be applied to
the other Obligations, if any, in the order set forth above.
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ARTICLE X
ADMINISTRATIVE AGENT
10.01 Appointment and Authorization of Administrative Agent and
Collateral Agent.
(a) Each Lender hereby irrevocably appoints, designates and
authorizes the Administrative Agent to take such action (including taking action
to raise a Spanish notarial deed ("documento publico") in connection with any
Credit Document and any Assignment and Assumption Agreement) on its behalf under
the provisions of this Credit Agreement and each other Credit Document and to
exercise such powers and perform such duties as are expressly delegated to it by
the terms of this Credit Agreement or any other Credit Document, together with
such powers as are reasonably incidental thereto. Notwithstanding any provision
to the contrary contained elsewhere herein or in any other Credit Document, the
Administrative Agent shall not have any duties or responsibilities, except those
expressly set forth herein, nor shall the Administrative Agent have or be deemed
to have any fiduciary relationship with any Lender or participant, and no
implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Credit Agreement or any other Credit
Document or otherwise exist against the Administrative Agent. Without limiting
the generality of the foregoing sentence, the use of the term "agent" herein and
in the other Credit Documents with reference to the Administrative Agent is not
intended to connote any fiduciary or other implied (or express) obligations
arising under agency doctrine of any applicable Law. Instead, such term is used
merely as a matter of market custom, and is intended to create or reflect only
an administrative relationship between independent contracting parties.
(b) Each Lender hereby irrevocably appoints, designates and
authorizes the Collateral Agent to take such action (including taking action to
raise a Spanish notarial deed ("documento publico") in connection with any
Credit Document and any Assignment and Assumption Agreement) on its behalf under
the provisions of this Credit Agreement and each other Credit Document and to
exercise such powers and perform such duties as are expressly delegated to it by
the terms of this Credit Agreement or any other Credit Document, together with
such powers as are reasonably incidental thereto. The Collateral Agent shall act
on behalf of the Lenders with respect to any Collateral and the Collateral
Documents, and the Collateral Agent shall have all of the benefits and
immunities (i) provided to the Administrative Agent in this Article X with
respect to any acts taken or omissions suffered by the Collateral Agent in
connection with the Collateral or the Collateral Documents as fully as if the
term "Administrative Agent" as used in this Article X and in the definition of
"Agent-Related Person" included the Collateral Agent with respect to such acts
or omissions, and (ii) as additionally provided herein and in the other Credit
Documents with respect to the Collateral Agent.
(c) The L/C Issuer shall act on behalf of the Lenders with respect
to any Letters of Credit issued by it and the documents associated therewith,
and the L/C Issuer shall have all of the benefits and immunities (i) provided to
the Administrative Agent in this Article X with respect to any acts taken or
omissions suffered by the L/C Issuer in connection with Letters of Credit issued
by it or proposed to be issued by it and the applications and agreements for
letters of credit pertaining to such Letters of Credit as fully as if the term
"Administrative Agent" as used in this Article X and in the definition of
"Agent-Related Person" included the L/C Issuer with respect to such acts or
omissions, and (ii) as additionally provided herein with respect to the L/C
Issuer.
10.02 Delegation of Duties. The Administrative Agent may execute any
of its duties under this Credit Agreement or any other Credit Document by or
through agents, employees or attorneys-in-fact and shall be entitled to advice
of counsel and other consultants or experts concerning all matters pertaining to
such duties. The Administrative Agent shall not be responsible for the
negligence or misconduct of any agent or attorney-in-fact that it selects in the
absence of gross negligence or willful misconduct.
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10.03 Liability of Administrative Agent. No Agent-Related Person
shall (a) be liable for any action taken or omitted to be taken by any of them
under or in connection with this Credit Agreement or any other Credit Document
or the transactions contemplated hereby (except for its own gross negligence or
willful misconduct in connection with its duties expressly set forth herein), or
(b) be responsible in any manner to any Lender or participant for any recital,
statement, representation or warranty made by any Credit Party or any officer
thereof, contained herein or in any other Credit Document, 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, this Credit
Agreement or any other Credit Document, or the validity, effectiveness,
genuineness, enforceability or sufficiency of this Credit Agreement or any other
Credit Document, or for any failure of any Credit Party or any other party to
any Credit Document to perform its obligations hereunder or thereunder. No
Agent-Related Person shall be under any obligation to any Lender or participant
to ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Credit Agreement or any other
Credit Document, or to inspect the properties, books or records of any Credit
Party or any Affiliate thereof.
10.04 Reliance by Administrative Agent.
The Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any writing, communication, signature, resolution,
representation, notice, consent, certificate, affidavit, letter, telegram,
facsimile, telex or telephone message, electronic mail message, statement 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 counsel to any Credit Party),
independent accountants and other experts selected by the Administrative Agent.
The Administrative Agent shall be fully justified in failing or refusing to take
any action under any Credit Document unless it shall first receive such advice
or concurrence of the Required Lenders (or such greater number of Lenders as may
be expressly required hereunder in any particular instance) as it deems
appropriate and, if it so requests, it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense that may
be incurred by it by reason of taking or continuing to take any such action. The
Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Credit Agreement or any other Credit Document
in accordance with a request or consent of the Required Lenders (or such greater
number of Lenders as may be expressly required hereby in any instance) and such
request and any action taken or failure to act pursuant thereto shall be binding
upon all the Lenders.
10.05 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, except with respect to defaults in the payment of principal, interest
and fees required to be paid to the Administrative Agent for the account of the
Lenders, unless the Administrative Agent shall have received written notice from
a Lender or the Borrowers referring to this Credit Agreement, describing such
Default or Event of Default and stating that such notice is a "notice of
default." The Administrative Agent will notify the Lenders of its receipt of any
such notice. The Administrative Agent shall take such action with respect to
such Default or Event of Default as may be directed by the requisite Lenders in
accordance herewith; provided, however, that unless and until the Administrative
Agent has received any such direction, the Administrative Agent may (but shall
not be obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem advisable or in the
best interest of the Lenders.
10.06 Credit Decision; Disclosure of Information by Administrative
Agent. Each Lender acknowledges that no Agent-Related Person has made any
representation or warranty to it, and that no act by the Administrative Agent
hereafter taken, including any consent to and acceptance of any assignment or
review of the affairs of any Credit Party or any Affiliate thereof, shall be
deemed to constitute any representation or warranty by any Agent-Related Person
to any Lender as to any matter, including
92
whether Agent-Related Persons have disclosed material information in their
possession. Each Lender represents to the Administrative Agent that it has,
independently and without reliance upon any Agent-Related Person and based on
such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, prospects, operations,
property, financial and other condition and creditworthiness of the Credit
Parties and their respective Subsidiaries, and all applicable bank or other
regulatory Laws relating to the transactions contemplated hereby, and made its
own decision to enter into this Credit Agreement and to extend credit to the
Borrowers and the other Credit Parties hereunder. Each Lender also represents
that it will, independently and without reliance upon any Agent-Related Person
and based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Credit Agreement and the other Credit
Documents, and to make such investigations as it deems necessary to inform
itself as to the business, prospects, operations, property, financial and other
condition and creditworthiness of the Borrowers and the other Credit Parties.
Except for notices, reports and other documents expressly required to be
furnished to the Lenders by the Administrative Agent herein, the Administrative
Agent shall not have any duty or responsibility to provide any Lender with any
credit or other information concerning the business, prospects, operations,
property, financial and other condition or creditworthiness of any of the Credit
Parties or any of their respective Affiliates that may come into the possession
of any Agent-Related Person.
10.07 Indemnification of Administrative Agent. Whether or not the
transactions contemplated hereby are consummated, the Lenders shall indemnify
upon demand each Agent-Related Person (to the extent not reimbursed by or on
behalf of any Credit Party and without limiting the obligation of any Credit
Party to do so), pro rata, and hold harmless each Agent-Related Person from and
against any and all Indemnified Liabilities incurred by it; provided, however,
that no Lender shall be liable for the payment to any Agent-Related Person of
any portion of such Indemnified Liabilities to the extent determined in a final,
nonappealable judgment by a court of competent jurisdiction to have resulted
from such Agent-Related Person's own gross negligence or willful misconduct;
provided, however, that no action taken in accordance with the directions of the
Required Lenders (or such greater number of Lenders as may be expressly required
hereunder in any particular instance) shall be deemed to constitute gross
negligence or willful misconduct for purposes of this Section. Without
limitation of the foregoing, each Lender shall reimburse the Administrative
Agent upon demand for its ratable share of any costs or out-of-pocket expenses
(including Attorney Costs) incurred by the Administrative Agent in connection
with the preparation, execution, delivery, administration, modification,
amendment or enforcement (whether through negotiations, legal proceedings or
otherwise) of, or legal advice in respect of rights or responsibilities under,
this Credit Agreement, any other Credit Document, or any document contemplated
by or referred to herein, to the extent that the Administrative Agent is not
reimbursed for such expenses by or on behalf of the Borrowers. The undertaking
in this Section shall survive termination of the Aggregate Commitments, the
payment of all other Obligations and the resignation of the Administrative
Agent.
10.08 Administrative Agent in its Individual Capacity. Bank of
America and its Affiliates may make loans to, issue letters of credit for the
account of, accept deposits from, acquire equity interests in and generally
engage in any kind of banking, trust, financial advisory, underwriting or other
business with each of the Credit Parties and their respective Affiliates as
though Bank of America were not the Administrative Agent or the L/C Issuer
hereunder and without notice to or consent of the Lenders. The Lenders
acknowledge that, pursuant to such activities, Bank of America or its Affiliates
may receive information regarding any Credit Party or its Affiliates (including
information that may be subject to confidentiality obligations in favor of such
Credit Party or such Affiliate) and acknowledge that the Administrative Agent
shall be under no obligation to provide such information to them. With respect
to its Loans, Bank of America shall have the same rights and powers under this
Credit Agreement as any
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other Lender and may exercise such rights and powers as though it were not the
Administrative Agent or the L/C Issuer, and the terms "Lender" and "Lenders"
include Bank of America in its individual capacity.
10.09 Successor Administrative Agent. The Administrative Agent may
voluntarily resign as Administrative Agent upon thirty days' notice to the
Lenders, and shall, upon thirty days' notice to the Administrative Agent, resign
at the request, with or without cause, of the Required Lenders (provided at all
times other than during the existence of an Event of Default, such request for
resignation by the Required Lenders shall require the written consent of the
Borrowers, which consent shall not be unreasonably withheld or delayed) within
thirty days of its receipt of such request for resignation; provided that any
such resignation by Bank of America shall also constitute its resignation as
Collateral Agent, L/C Issuer and Swing Line Lender. If the Administrative Agent
resigns under this Credit Agreement, the Required Lenders shall appoint from
among the Lenders a successor administrative agent for the Lenders, which
successor administrative agent shall be consented to by the Borrowers at all
times other than during the existence of an Event of Default (which consent of
the Borrowers shall not be unreasonably withheld or delayed). If no successor
administrative agent is appointed prior to the effective date of the resignation
of the Administrative Agent, the Administrative Agent may appoint, after
consulting with the Lenders and the Borrowers, a successor administrative agent
from among the Lenders. Upon the acceptance of its appointment as successor
administrative agent hereunder, the Person acting as such successor
administrative agent shall succeed to all the rights, powers and duties of the
retiring Administrative Agent, Collateral Agent, L/C Issuer and Swing Line
Lender and such respective terms shall mean such successor administrative agent,
collateral agent, Letter of Credit issuer and swing line lender, and the
retiring Administrative Agent's appointment, powers and duties in such
capacities shall be terminated without any other or further act or deed on its
behalf. After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this Article X and Sections 11.04 and
11.05 shall inure to its benefit as to any actions taken or omitted to be taken
by it while it was Administrative Agent under this Credit Agreement. If no
successor administrative agent has accepted appointment as Administrative Agent
by the date thirty days following a retiring Administrative Agent's notice of
resignation, the retiring Administrative Agent's resignation shall nevertheless
thereupon become effective and the Lenders shall perform all of the duties of
the Administrative Agent hereunder until such time, if any, as the Required
Lenders appoint a successor agent as provided for above.
10.10 Administrative Agent May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to any Credit Party, the Administrative Agent (irrespective
of whether the principal of any Loan or L/C Obligation shall then be due and
payable as herein expressed or by declaration or otherwise and irrespective of
whether the Administrative Agent shall have made any demand on the Borrowers)
shall be entitled and empowered, by intervention in such proceeding or
otherwise:
(a) to file and prove a claim for the whole amount of the
principal and interest owing and unpaid in respect of the Loans, L/C
Obligations and all other Obligations (other than obligations under
Swap Contracts to which the Administrative Agent is not a party) that
are owing and unpaid and to file such other documents as may be
necessary or advisable in order to have the claims of the Lenders and
the Administrative Agent (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Lenders and
the Administrative Agent and their respective agents and counsel and
all other amounts due the Lenders and the Administrative Agent under
Sections 2.04 and 11.04) allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same;
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and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender to make such payments to the Administrative Agent and, in the event
that the Administrative Agent shall consent to the making of such payments
directly to the Lenders, to pay to the Administrative Agent any amount due for
the reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Sections 2.04 and 11.04.
Nothing contained herein shall be deemed to authorize the
Administrative Agent to authorize or consent to or accept or adopt on behalf of
any Lender any plan of reorganization, arrangement, adjustment or composition
affecting the Obligations or the rights of any Lender or to authorize the
Administrative Agent to vote in respect of the claim of any Lender in any such
proceeding.
10.11 Collateral and Guaranty Matters. The Lenders irrevocably
authorize the Administrative Agent, at its option and in its discretion, to
release any Guarantor from its obligations under the Guaranty if such Person
ceases to be a Subsidiary as a result of a transaction permitted hereunder and
to release any Collateral if such release is appropriate as a result of a
transaction permitted hereunder.
Upon request by the Administrative Agent at any time, the Required
Lenders will confirm in writing the Administrative Agent's authority to release
any Guarantor from its obligations hereunder pursuant to this Section 10.11.
10.12 Other Agents; Arrangers and Managers. None of the Lenders or
other Persons identified on the facing page or signature pages of this Credit
Agreement as a "co-syndication agent," "co-documentation agent," "joint lead
arranger" or "book manager" shall have any right, power, obligation, liability,
responsibility or duty under this Credit Agreement other than, in the case of
such Lenders, those applicable to all Lenders as such. Without limiting the
foregoing, none of the Lenders or other Persons so identified shall have or be
deemed to have any fiduciary relationship with any Lender. Each Lender
acknowledges that it has not relied, and will not rely, on any of the Lenders or
other Persons so identified in deciding to enter into this Credit Agreement or
in taking or not taking action hereunder.
ARTICLE XI
MISCELLANEOUS
11.01 Amendments, Etc. No amendment or waiver of, or any consent to
deviation from, any provision of this Credit Agreement or any other Credit
Document shall be effective unless in writing and signed by the Borrowers and
the Required Lenders and acknowledged by the Administrative Agent, and each such
amendment, waiver or consent shall be effective only in the specific instance
and for the specific purpose for which it is given; provided, however, that:
(a) unless also signed by each Lender directly affected
thereby, no such amendment, waiver or consent shall:
(i) extend or increase the Commitment of any
Lender (or reinstate any Commitment terminated pursuant to
Section 9.02), it being understood that the waiver of an Event
of Default or a mandatory reduction or a mandatory prepayment
in Commitments shall not be considered an increase in
Commitments,
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(ii) waive non-payment or postpone any date fixed
by this Credit Agreement or any other Credit Document for any
payment of principal, interest, fees or other amounts due to
any Lender hereunder or under any other Credit Document,
(iii) reduce the principal of, or the rate of
interest specified herein on, any Loan or L/C Borrowing, or
any fees or other amounts payable hereunder or under any other
Credit Document; provided, however, that only the consent of
the Required Lenders shall be necessary (A) to amend the
definition of "Default Rate" or to waive any obligation of the
Borrowers to pay interest at the Default Rate or (B) to amend
any financial covenant hereunder (or any defined term used
therein) even if the effect of such amendment would be to
reduce the rate of interest on any Loan or L/C Borrowing or to
reduce any fee payable hereunder,
(iv) change any provision of this Credit
Agreement regarding pro rata sharing or pro rata funding with
respect to (A) the making of advances (including
participations), (B) the manner of application of payments or
prepayments of principal, interest, or fees, (C) the manner of
application of reimbursement obligations from drawings under
Letters of Credit, or (D) the manner of reduction of
commitments and committed amounts,
(v) change any provision of this Section
11.01(a) or the definition of "Required Lenders" or any other
provision hereof specifying the number or percentage of
Lenders required to amend, waive or otherwise modify any
rights hereunder or make any determination or grant any
consent hereunder,
(vi) release all or substantially all of the
Guarantors from their obligations hereunder (other than as
provided herein or as appropriate in connection with
transactions permitted hereunder), or
(vii) release all or substantially all of the
Collateral (other than as provided herein or as appropriate in
connection with transactions permitted hereunder);
(b) unless also signed by the Required Revolving Lenders,
no such amendment, waiver or consent shall:
(i) waive any Default or Event of Default for
purposes of Section 5.02,
(ii) amend or waive any mandatory prepayment on
the Revolving Obligations under Section 2.06(b) or the manner
of application thereof to the Revolving Obligations under
Section 2.06(c),
(iii) amend or waive the provisions of Section
5.02 (Conditions to all Credit Extensions), Section 7.12
(Joinder of Additional Guarantors), Article VIII (Negative
Covenants), Article IX (Events of Default), this Section
11.01(b) or the definition of "Required Revolving Lenders";
(c) unless also signed by the Required Tranche A Term
Lenders, no such amendment, waiver or consent shall:
(i) amend or waive any mandatory prepayment on
the Tranche A Term Loan Obligations under Section 2.06(b) or
the manner of application thereof to the Tranche A Term Loan
Obligations under Section 2.06(c), or
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(ii) amend or waive the provisions of this
Section 11.01(c) or the definition of "Required Tranche A Term
Lenders";
(d) unless also signed by the Required Tranche B Term
Lenders, no such amendment, waiver or consent shall:
(i) amend or waive any mandatory prepayment on
the Tranche B Term Loan Obligations under Section 2.06(b) or
the manner of application thereof to the Tranche B Term Loan
Obligations under Section 2.06(c), or
(ii) amend or waive the provisions of this
Section 11.01(d) or the definition of "Required Tranche B Term
Lenders";
(e) unless also signed by the L/C Issuer, no such
amendment, waiver or consent shall affect the rights or duties of the
L/C Issuer under this Credit Agreement or any Letter of Credit
Application relating to any Letter of Credit issued or to be issued by
it;
(f) unless also signed by the Swing Line Lender, no such
amendment, waiver or consent shall affect the rights or duties of the
Swing Line Lender under this Credit Agreement;
(g) unless also signed by the Administrative Agent, no
such amendment, waiver or consent shall affect the rights or duties of
the Administrative Agent under this Credit Agreement or any other
Credit Document and unless also signed by the Collateral Agent, no such
amendment, waiver or consent shall affect the rights or duties of the
Collateral Agent under this Credit Agreement or any other Credit
Document.
Notwithstanding any provision to the contrary contained herein, (i) no
Defaulting Lender shall have any right to approve or disapprove any amendment,
waiver or consent hereunder, except that the Commitment of such Lender may not
be increased or extended without the consent of such Lender, (ii) each Lender is
entitled to vote as such Lender sees fit on any bankruptcy or insolvency
reorganization plan that affects the Loans, (iii) each Lender acknowledges that
the provisions of Section 1126(c) of the Bankruptcy Code supersedes the
unanimous consent provisions set forth herein, (iv) the Required Lenders may
consent to allow a Credit Party to use cash collateral in the context of a
bankruptcy or insolvency proceeding and (v) the Fee Letter may be amended, or
rights or privileges thereunder waived, in a writing executed only by the
parties thereto.
11.02 Notices and Other Communications; Facsimile Copies.
(a) General. Unless otherwise expressly provided herein, all
notices and other communications provided for hereunder shall be in writing
(including by facsimile transmission). All such written notices shall be mailed
(unless such notice is to FMCAG or any Foreign Subsidiary of FMCAG), faxed or
delivered, and all notices and other communications expressly permitted
hereunder to be given by telephone shall be made, to the address, facsimile
number, electronic mail address or telephone number specified for the applicable
party on Schedule 11.02 or to such other address, facsimile number, electronic
mail address or telephone number as shall be designated by such party in a
notice to the other parties; provided that all notices given to FMCAG hereunder
shall simultaneously be given to FMCH. All such notices and other communications
shall be deemed to be given or made upon the earlier to occur of (i) actual
receipt by the relevant party hereto and (ii) (A) if delivered by hand or by
courier, when signed for by or on behalf of the relevant party hereto; (B) with
respect to any Domestic Credit Party, if delivered by mail, four Business Days
after deposit in the mails, by registered or certified mail,
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postage prepaid; (C) if delivered by facsimile, when sent and receipt has been
confirmed by telephone; and (D) if delivered by electronic mail (which form of
delivery is subject to the provisions of subsection (c) below), when delivered;
provided, however, that notices and other communications to the Administrative
Agent, the L/C Issuer and the Swing Line Lender pursuant to Article II shall not
be effective until actually received by such Person. In no event shall a
voicemail message be effective as a notice, communication or confirmation
hereunder.
(b) Effectiveness of Facsimile Documents and Signatures. Credit
Documents may be transmitted and/or signed by facsimile. The effectiveness of
any such documents and signatures shall, subject to applicable Law, have the
same force and effect as manually signed originals and shall be binding on all
Credit Parties, the Administrative Agent and the Lenders. The Administrative
Agent may also require that any such documents and signatures be confirmed by a
manually-signed original thereof; provided, however, that the failure to request
or deliver the same shall not limit the effectiveness of any facsimile document
or signature.
(c) Limited Use of Electronic Mail. With respect to any notices or
deliveries required hereunder, electronic mail and internet and intranet
websites may be used only to distribute routine communications, such as
financial statements and other information as provided in Section 7.02, and to
distribute Credit Documents for execution by the parties thereto, and may not be
used for any other purpose.
(d) Reliance by Administrative Agent and Lenders. The
Administrative Agent and the Lenders shall be entitled to rely and act upon any
notices (including telephonic Loan Notices and Swing Line Loan Notices)
purportedly given by or on behalf of the Borrowers even if (i) such notices were
not made in a manner provided herein, were incomplete or were not preceded or
followed by any other form of notice provided herein, or (ii) the terms thereof,
as understood by the recipient, varied from any confirmation thereof. The
Borrowers shall indemnify each Agent-Related Person and each Lender from all
losses, costs, expenses and liabilities resulting from the reliance by such
Person on each notice purportedly given by or on behalf of the Borrowers. All
telephonic notices to and other communications with the Administrative Agent may
be recorded by the Administrative Agent, and each of the parties hereto hereby
consents to such recording.
11.03 No Waiver; Cumulative Remedies. No failure by any Lender or
the Administrative Agent to exercise, and no delay by any such Person in
exercising, any right, remedy, power or privilege hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein provided are cumulative and not exclusive
of any rights, remedies, powers and privileges provided by law.
11.04 Attorney Costs and Expenses. The Borrowers agree (a) to pay
directly to the provider thereof or reimburse the Administrative Agent for all
reasonable costs and expenses incurred in connection with the development,
preparation, negotiation and execution of this Credit Agreement and the other
Credit Documents, or preservation of any rights or remedies under this Credit
Agreement or the other Credit Documents, and any amendment, waiver, consent or
other modification of the provisions hereof and thereof (whether or not the
transactions contemplated hereby or thereby are consummated), and the
consummation and administration of the transactions contemplated hereby and
thereby, including all Attorney Costs, and (b) if an Event of Default has
occurred and is continuing, to pay or reimburse the Administrative Agent and
each Lender for all costs and expenses incurred in connection with the
enforcement, attempted enforcement, or preservation of any rights or remedies
under this Credit Agreement or the other Credit Documents (including all such
costs and expenses incurred during any "workout" or restructuring in respect of
the Obligations and during any legal proceeding, including any
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proceeding under any Debtor Relief Law), including all Attorney Costs. The
foregoing costs and expenses shall include all search, filing, recording, title
insurance and appraisal charges and fees and taxes related thereto, and other
out-of-pocket expenses incurred by the Administrative Agent and the cost of
independent public accountants and other outside experts retained by the
Administrative Agent or any Lender. All amounts due under this Section 11.04
shall be payable within thirty days after demand therefor. The agreements in
this Section shall survive the termination of the Aggregate Commitments and
repayment of all other Obligations.
11.05 Indemnification by the Borrowers. Whether or not the
transactions contemplated hereby are consummated, the Borrowers shall indemnify
and hold harmless each Agent-Related Person, each Lender and their respective
Affiliates, directors, officers, employees, counsel, agents, trustees, advisors
and attorneys-in-fact (collectively the "Indemnitees") from and against any and
all liabilities, obligations, losses, damages, penalties, claims, demands,
actions, judgments, suits, costs, expenses and disbursements (including Attorney
Costs) of any kind or nature whatsoever (subject to the provisions of Section
3.01 with respect to Taxes, Other Taxes and Excluded Taxes) that may at any time
be imposed on, incurred by or asserted against any such Indemnitee in any way
relating to or arising out of or in connection with (a) the execution, delivery,
enforcement, performance or administration of any Credit Document or any other
agreement, letter or instrument delivered in connection with the transactions
contemplated thereby or the consummation of the transactions contemplated
thereby, (b) any Commitment, Loan or Letter of Credit or the use or proposed use
of the proceeds therefrom (including any refusal by the L/C Issuer to honor a
demand for payment under a Letter of Credit if the documents presented in
connection with such demand do not strictly comply with the terms of such Letter
of Credit) or (c) any actual or threatened claim, litigation, investigation or
proceeding relating to any of the foregoing, whether based on contract, tort or
any other theory (including any investigation of, preparation for, or defense of
any pending or threatened claim, investigation, litigation or proceeding) and
regardless of whether any Indemnitee is a party thereto (all the foregoing,
collectively, the "Indemnified Liabilities"); provided that such indemnity shall
not, as to any Indemnitee, be available to the extent that such liabilities,
obligations, losses, damages, penalties, claims, demands, actions, judgments,
suits, costs, expenses or disbursements are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Indemnitee. No Indemnitee shall be
liable for any damages arising from the use by others of any information or
other materials obtained through IntraLinks or other similar information
transmission systems in connection with this Credit Agreement, and no Indemnitee
shall have any liability for any indirect or consequential damages relating to
this Credit Agreement or any other Credit Document or arising out of its
activities in connection herewith or therewith (whether before or after the
Closing Date). All amounts due under this Section 11.05 shall be payable within
thirty days after demand therefor. The agreements in this Section shall survive
the resignation of the Administrative Agent, the replacement of any Lender, the
termination of the Aggregate Commitments and the repayment, satisfaction or
discharge of all the other Obligations.
11.06 Payments Set Aside. To the extent that any payment by or on
behalf of the Borrowers is made to the Administrative Agent or any Lender, or
the Administrative Agent or any Lender exercises its right of set-off, and such
payment or the proceeds of such set-off or any part thereof is subsequently
invalidated, declared to be fraudulent or preferential, set aside or required
(including pursuant to any settlement entered into by the Administrative Agent
or such Lender in its discretion) to be repaid to a trustee, receiver or any
other party, in connection with any proceeding under any Debtor Relief Law or
otherwise, then (a) to the extent of such recovery, the obligation or part
thereof originally intended to be satisfied shall be revived and continued in
full force and effect as if such payment had not been made or such set-off had
not occurred, and (b) each Lender severally agrees to pay to the Administrative
Agent upon demand its applicable share of any amount so recovered from or repaid
by the Administrative Agent, plus interest thereon from the date of such demand
to the date such payment is made at a rate per annum equal to the Federal Funds
Rate from time to time in effect.
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11.07 Successors and Assigns.
(a) The provisions of this Credit Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns permitted hereby, except that the Borrowers may not assign or
otherwise transfer any of their rights or obligations hereunder without the
prior written consent of each Lender (other than as provided in Section 2.17)
and no Lender may assign or otherwise transfer any of its rights or obligations
hereunder except (i) to an Eligible Assignee in accordance with the provisions
of subsection (b) of this Section, (ii) by way of participation in accordance
with the provisions of subsection (d) of this Section, or (iii) by way of pledge
or assignment of a security interest subject to the restrictions of subsection
(f) or (g) of this Section (and any other attempted assignment or transfer by
any party hereto shall be null and void); provided that no such assignment,
participation or transfer shall, without the consent of FMCAG, require FMCAG to
file a registration statement with the SEC or apply to qualify such assignment,
participation or other transfer under the securities laws of any state. Nothing
in this Credit Agreement, expressed or implied, shall be construed to confer
upon any Person (other than the parties hereto, their respective successors and
assigns permitted hereby, Participants to the extent provided in subsection (d)
of this Section and, to the extent expressly contemplated hereby, the
Indemnitees) any legal or equitable right, remedy or claim under or by reason of
this Credit Agreement.
(b) Any Lender may at any time assign to one or more Eligible
Assignees all or a portion of its rights and obligations under this Credit
Agreement (including all or a portion of its Commitment and the Loans (including
for purposes of this subsection (b), participations in L/C Obligations and in
Swing Line Loans) at the time owing to it); provided that (i) except in the case
of an assignment of the entire remaining amount of the assigning Lender's
Commitment and the Loans at the time owing to it or in the case of an assignment
to a Lender or an Affiliate of a Lender or an Approved Fund with respect to a
Lender, the aggregate amount of the Commitment (which for this purpose includes
Loans outstanding thereunder) subject to each such assignment, determined as of
the date the Assignment and Assumption Agreement with respect to such assignment
is delivered to the Administrative Agent or, if "Trade Date" is specified in the
Assignment and Assumption Agreement, as of the Trade Date, shall not be less
than $5 million, in the case of Revolving Loans, and $1 million, in the case of
Term Loans, unless each of the Administrative Agent and, so long as no Event of
Default has occurred and is continuing, FMCAG otherwise consents (each such
consent not to be unreasonably withheld or delayed); (ii) any assignment of a
Commitment must be approved by the Administrative Agent and the L/C Issuers
(each such approval not to be unreasonably withheld or delayed) unless the
Person that is the proposed assignee is itself a Lender or an Affiliate of a
Lender (whether or not the proposed assignee would otherwise qualify as an
Eligible Assignee); and (iii) the parties to each assignment shall execute and
deliver to the Administrative Agent an Assignment and Assumption Agreement,
together with a processing and recordation fee of $3,500 payable by the
assigning Lender or the Eligible Assignee. Subject to acceptance and recording
thereof by the Administrative Agent pursuant to subsection (c) of this Section,
from and after the effective date specified in each Assignment and Assumption
Agreement, the Eligible Assignee thereunder shall be a party to this Credit
Agreement and, to the extent of the interest assigned by such Assignment and
Assumption Agreement, have the rights and obligations of a Lender under this
Credit Agreement, and the assigning Lender thereunder shall, to the extent of
the interest assigned by such Assignment and Assumption Agreement, be released
from its obligations under this Credit Agreement (and, in the case of an
Assignment and Assumption Agreement covering all of the assigning Lender's
rights and obligations under this Credit Agreement, such Lender shall cease to
be a party hereto but shall continue to be entitled to the benefits of Sections
3.01, 3.04, 3.05, 11.04 and 11.05 with respect to facts and circumstances
occurring prior to the effective date of such assignment). Upon request of the
assignee Lender, the Borrowers shall execute and deliver a Note to such Lender.
Any assignment or transfer by a Lender of rights or obligations under this
Credit Agreement that does not comply with this subsection shall be
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treated for purposes of this Credit Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with subsection (d)
of this Section.
(c) The Administrative Agent, acting solely for this purpose as an
agent of the Borrowers, shall maintain at the Administrative Agent's Office a
copy of each Assignment and Assumption Agreement delivered to it and a register
for the recordation of the names and addresses of the Lenders, and the
Commitments of, and principal amounts of the Loans and L/C Obligations owing to,
each Lender pursuant to the terms hereof from time to time (the "Register"). The
entries in the Register shall be conclusive, and the Borrowers, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Credit Agreement, notwithstanding notice to the contrary.
The Register shall be available for inspection by the Borrowers and any Lender,
at any reasonable time and from time to time upon reasonable prior notice.
(d) Any Lender may at any time, without the consent of, or notice
to, the Borrowers or the Administrative Agent, sell participations to any Person
(other than a natural person or the Borrowers or any of the Borrowers'
Affiliates or Subsidiaries) (each, a "Participant") in all or a portion of such
Lender's rights and/or obligations under this Credit Agreement (including all or
a portion of its Commitment and/or the Loans (including such Lender's
participations in L/C Obligations and/or Swing Line Loans) owing to it);
provided that (i) such Lender's obligations under this Credit Agreement shall
remain unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and (iii) the Borrowers,
the Administrative Agent and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Credit Agreement. Any agreement or instrument pursuant to
which a Lender sells such a participation shall provide that such Lender shall
retain the sole right to enforce this Credit Agreement and to approve any
amendment, modification or waiver of any provision of this Credit Agreement;
provided that such agreement or instrument may provide that such Lender will
not, without the consent of the Participant, agree to any amendment, waiver or
other modification that extends the time for, reduces the amount or alters the
application of proceeds with respect to such obligations and payments required
thereon that directly affects such Participant. Subject to subsection (e) of
this Section, the Borrowers agree that each Participant shall be entitled to the
benefits of and subject to the obligations of a Lender set forth in Sections
3.01, 3.04 and 3.05 and shall be subject to replacement in accordance with
Section 11.16 to the same extent as if it were a Lender and had acquired its
interest by assignment pursuant to subsection (b) of this Section. To the extent
permitted by Law, each Participant also shall be entitled to the benefits of and
subject to the obligations of a Lender set forth in Section 11.09 as though it
were a Lender, provided such Participant agrees to be subject to Section 2.15 as
though it were a Lender.
(e) A Participant shall not be entitled to receive any greater
payment under Section 3.01 or 3.04 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant.
A Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of Section 3.01 unless the Borrowers are notified of
the participation sold to such Participant and such Participant agrees, for the
benefit of the Borrowers, to comply and complies with Section 11.15 as though it
were a Lender.
(f) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Credit Agreement
(including under its Note, if any) to secure obligations of such Lender,
including any pledge or assignment to secure obligations to a Federal Reserve
Bank; provided that no such pledge or assignment shall release such Lender from
any of its obligations hereunder or substitute any such pledgee or assignee for
such Lender as a party hereto.
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(g) Notwithstanding anything to the contrary contained herein, any
Lender that is a Fund may (without notice to or the consent of the
Administrative Agent or the Borrowers) create a security interest in all or any
portion of the Loans owing to it (and its Note, if any) to the trustee for
holders of obligations owed, or securities issued, by such Fund as security for
such obligations or securities, provided that unless and until such trustee
actually becomes a Lender in compliance with the other provisions of this
Section 11.07, (i) no such pledge shall release the pledging Lender from any of
its obligations under the Credit Documents and (ii) such trustee shall not be
entitled to exercise any of the rights of a Lender under the Credit Documents
even though such trustee may have acquired ownership rights with respect to the
pledged interest through foreclosure or otherwise.
(h) Notwithstanding anything to the contrary contained herein, (i)
if at any time Bank of America assigns all of its Commitment and Loans pursuant
to subsection (b) above, Bank of America may, upon Thirty days' notice to the
Borrowers, resign as Domestic Swing Line Lender, (ii) if at any time Dresdner
Bank AG in Frankfurt am Main assigns all of its Commitment and Loans pursuant to
subsection (b) above, it may, upon thirty days' notice to the Borrowers, resign
as Foreign Swing Line Lender and (iii) if any L/C Issuer at any time assigns all
of its Commitment and Loans pursuant to subsection (b) above, such L/C Issuer
may, upon thirty days' notice to the Borrowers and the Lenders, resign as an L/C
Issuer. If any L/C Issuer resigns as an L/C Issuer, it shall retain all the
rights and obligations of an L/C Issuer hereunder with respect to all Letters of
Credit issued by it outstanding as of the effective date of its resignation as
an L/C Issuer and all L/C Obligations with respect thereto (including the right
to require the Lenders to make Revolving Loans or fund risk participations in
Unreimbursed Amounts pursuant to Section 2.08(c)). If Bank of America resigns as
Domestic Swing Line Lender, it shall retain all the rights of the Domestic Swing
Line Lender provided for hereunder with respect to Domestic Swing Line Loans
made by it and outstanding as of the effective date of such resignation,
including the right to require the Lenders to make Revolving Loans or fund risk
participations in outstanding Domestic Swing Line Loans pursuant to Section
2.09(b). In the event of any such resignation as Domestic Swing Line Lender, the
Borrowers shall be entitled to appoint from among the Lenders a successor
Domestic Swing Line Lender hereunder; provided, however, that no failure by the
Borrowers to appoint any such successor shall affect the resignation of Bank of
America as Domestic Swing Line Lender. If Dresdner Bank AG in Frankfurt am Main
resigns as Foreign Swing Line Lender, it shall retain all the rights of the
Foreign Swing Line Lender provided for hereunder with respect to Foreign Swing
Line Loans made by it and outstanding as of the effective date of such
resignation, including the right to require the Lenders to make Revolving Loans
or fund risk participations in outstanding Foreign Swing Line Loans pursuant to
Section 2.10(b). In the event of any such resignation as Foreign Swing Line
Lender, the Borrowers shall be entitled to appoint from among the Lenders a
successor Foreign Swing Line Lender hereunder; provided, however, that no
failure by the Borrowers to appoint any such successor shall affect the
resignation of Dresdner Bank AG in Frankfurt am Main as Foreign Swing Line
Lender.
11.08 Confidentiality. Each of the Administrative Agent and the
Lenders agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (a) to its and its Affiliates'
directors, officers, employees and agents, including accountants, legal counsel
and other advisors, in connection with matters relating to the credit
relationship with members of the Consolidated Group and/or the administration of
the Credit Documents (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential); (b) to the
extent requested by any regulatory authority; (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process; (d)
to any other party to this Credit Agreement; (e) in connection with the exercise
of any remedies hereunder or any suit, action or proceeding relating to this
Credit Agreement or the enforcement of rights hereunder; (f) subject to an
agreement containing provisions substantially the same as those of this Section,
to (i) any Eligible Assignee of or Participant in, or any prospective Eligible
Assignee of or
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Participant in, any of its rights or obligations under this Credit Agreement or
(ii) any direct or indirect contractual counterparty or prospective counterparty
(or such contractual counterparty's or prospective counterparty's professional
advisor) to any credit derivative transaction relating to obligations of the
Credit Parties; (g) with the consent of the Borrowers; (h) to the extent such
Information (i) becomes publicly available other than as a result of a breach of
this Section or (ii) becomes available to the Administrative Agent or any Lender
on a nonconfidential basis from a source other than the Borrowers; (i) to the
National Association of Insurance Commissioners or any other similar
organization; or (j) to any nationally recognized rating agency that requires
access to a Lender's or an Affiliate's investment portfolio in connection with
ratings issued with respect to such Lender or Affiliate. In addition, the
Administrative Agent and the Lenders may disclose the existence of this Credit
Agreement and non-confidential information about this Credit Agreement to market
data collectors, similar service providers to the lending industry, and service
providers to the Administrative Agent and the Lenders in connection with the
administration and management of this Credit Agreement, the other Credit
Documents, the Commitments, and the Credit Extensions. For the purposes of this
Section, "Information" means all information received from any Credit Party
relating to any Credit Party or its business, other than any such information
that is available to the Administrative Agent or any Lender on a nonconfidential
basis prior to disclosure by any Credit Party; provided that, in the case of
information received from a Credit Party after the date hereof, such information
is clearly identified in writing at the time of delivery as confidential. Any
Person required to maintain the confidentiality of Information as provided in
this Section shall be considered to have complied with its obligation to do so
if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information. Notwithstanding the foregoing, for the purpose of
ensuring that the Credit Documents and the transactions contemplated thereby are
not treated as entered into under "conditions of confidentiality" within the
meaning of Section 6111(d)(2) of the Internal Revenue Code, and United States
Treasury Department Regulations ("Treas. Reg.") Section 301.6111-2T(c) and
Treas. Reg. Section 1.6011-4T(b)(3), the parties hereto agree and confirm that,
at all times effective as of commencement of discussions regarding the Credit
Documents and the transactions contemplated thereby, each of them and any of
their employees, representatives or other agents is authorized to disclose to
any and all persons, without limitation of any kind, the structure and tax
aspects of the Credit Documents and the transactions contemplated thereby and
all materials of any kind (including opinions or other tax analyses) that are
provided to any of them related to such structure and tax aspects. Each such
party also agrees and acknowledges that (i) disclosure of the structure or tax
aspects of the Credit Documents and the transactions contemplated thereby is not
and has not been limited in any way by any express or implied understanding or
agreement, oral or written (whether or not such understanding or agreement is
legally binding) and (ii) it does not know or has reason to know that its use or
disclosure of information relating to the structure or tax aspects of the Credit
Documents and the transactions contemplated thereby is limited in any other
manner (such as a claim that it is proprietary or exclusive) for the benefit of
any other person who makes or provides a statement, oral or written (or for
whose benefit a statement is made or provided) as to the potential tax
consequences that may result from the transaction.
11.09 Set-off. In addition to any rights and remedies of the Lenders
provided by law, upon the occurrence and during the continuance of any Event of
Default, each Lender and to the fullest extent permitted by law, each of its
Affiliates are authorized at any time and from time to time, without prior
notice to the Borrowers or any other Credit Party, any such notice being waived
by the Borrowers (on its own behalf and on behalf of each Credit Party) to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held by,
and other indebtedness at any time owing by, such Lender or Affiliate to or for
the credit or the account of the respective Credit Parties against any and all
Obligations owing to such Lender hereunder or under any other Credit Document,
now or hereafter existing, irrespective of whether or not the Administrative
Agent or such Lender shall have made demand under this Credit Agreement or any
other Credit Document and although such Obligations may be contingent or
unmatured or denominated in a currency different from
103
that of the applicable deposit or indebtedness. Each Lender agrees promptly to
notify FMCAG and the Administrative Agent after any such set-off and application
made by such Lender; provided, however, that the failure to give such notice
shall not affect the validity of such set-off and application.
11.10 Interest Rate Limitation. Notwithstanding anything to the
contrary contained in any Credit Document, the interest paid or agreed to be
paid under the Credit Documents shall not exceed the maximum rate of
non-usurious interest permitted by applicable Law (the "Maximum Rate"). If the
Administrative Agent or any Lender shall receive interest in an amount that
exceeds the Maximum Rate, the excess interest shall be applied to the principal
of the Loans or, if it exceeds such unpaid principal, refunded to the Borrowers.
In determining whether the interest contracted for, charged, or received by the
Administrative Agent or a Lender exceeds the Maximum Rate, such Person may, to
the extent permitted by applicable Law, (a) characterize any payment that is not
principal as an expense, fee, or premium rather than interest, (b) exclude
voluntary prepayments and the effects thereof, and (c) amortize, prorate,
allocate, and spread in equal or unequal parts the total amount of interest
throughout the contemplated term of the Obligations hereunder.
11.11 Counterparts. This Credit Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
11.12 Integration; Amendment and Restatement. This Credit Agreement
amends and restates the Existing Credit Agreement and, together with the other
Credit Documents, comprises the complete and integrated agreement of the parties
on the subject matter hereof and of the other Credit Documents and supersedes
all prior agreements, written or oral, on such subject matter (including the
Existing Credit Agreement). In the event of any conflict between the provisions
of this Credit Agreement and those of any other Credit Document, the provisions
of this Credit Agreement shall control; provided that the inclusion of
supplemental rights or remedies in favor of the Administrative Agent or the
Lenders in any other Credit Document shall not be deemed a conflict with this
Credit Agreement. Each Credit Document was drafted with the joint participation
of the respective parties thereto and shall be construed neither against nor in
favor of any party, but rather in accordance with the fair meaning thereof. The
Lenders hereby agree that with respect to any transaction, action or failure to
act by any member of the Consolidated Group that would have constituted a
default or event of default under the Existing Credit Agreement, such default or
event of default is waived to the extent such transaction, action or failure to
act is permitted by the terms of this Credit Agreement.
11.13 Survival of Representations and Warranties. All
representations and warranties made hereunder and in any other Credit Document
or other document delivered pursuant hereto or thereto or in connection herewith
or therewith shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by the
Administrative Agent and each Lender, regardless of any investigation made by
the Administrative Agent or any Lender or on their behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge of
any Default or Event of Default at the time of any Credit Extension, and shall
continue in full force and effect as long as any Loan or any other Obligation
hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall
remain outstanding.
11.14 Severability. If any provision of this Credit Agreement or the
other Credit Documents is held to be illegal, invalid or unenforceable, (a) the
legality, validity and enforceability of the remaining provisions of this Credit
Agreement and the other Credit Documents shall not be affected or impaired
thereby and (b) the parties shall endeavor in good faith negotiations to replace
the illegal, invalid or unenforceable provisions with valid provisions the
economic effect of which comes as close as possible to
104
that of the illegal, invalid or unenforceable provisions. The invalidity of a
provision in a particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
11.15 Tax Forms.
(a) (i) Each Lender that is not a "United States person" within
the meaning of Section 7701(a)(30) of the Internal Revenue Code (a
"Foreign Lender") shall deliver to the Administrative Agent, prior to
receipt of any payment under this Credit Agreement or any Note (or upon
accepting an assignment of an interest herein), (A) two duly signed
completed copies of either IRS Form W-8BEN or any successor thereto
(relating to such Foreign Lender and entitling it to a complete
exemption from any United States withholding tax on any payments to be
made to such Foreign Lender by the Borrowers pursuant to this Credit
Agreement) or IRS Form W-8ECI or any successor thereto (relating to all
payments to be made to such Foreign Lender by the Borrowers pursuant to
this Credit Agreement being subject to full United States income tax)
or such other evidence satisfactory to the Borrowers and the
Administrative Agent that such Foreign Lender is entitled to a complete
exemption from United States withholding tax, including any exemption
pursuant to Section 881(c) of the Internal Revenue Code and (B) two
duly signed completed copies of IRS Form W-8, or applicable successor
form, certifying that it is entitled to an exemption from United States
backup withholding tax. For the avoidance of doubt, in the case of an
exemption under Section 881(c) of the Internal Revenue Code, such other
satisfactory evidence shall include a statement under penalties of
perjury that such Lender (1) is not a "bank" under Section 881(c)(3)(A)
of the Internal Revenue Code, is not subject to regulatory or other
legal requirements as a bank in any jurisdiction and has not been
treated as a bank for purposes of any tax, securities law or other
filing or submission made to nay Governmental Authority, any
application made to a rating agency or qualification for any exemption
from any tax, securities law or other legal requirements, (2) is not a
10% shareholder of any of the Borrowers within the meaning of Section
811(c)(3)(B) of the Internal Revenue Code and (3) is not a controlled
foreign corporation receiving interest from a related person within the
meaning of Section 881(c)(3)(C) of the Internal Revenue Code.
Thereafter and from time to time, each such Foreign Lender shall (A)
promptly submit to the Administrative Agent such additional duly
completed and signed copies of one of such forms (or such successor
forms as shall be adopted from time to time by the relevant United
States taxing authorities) as may then be available under then current
United States laws and regulations to avoid, or such evidence as is
satisfactory to the Borrowers and the Administrative Agent of any
available exemption from United States withholding taxes in respect of
all payments to be made to such Foreign Lender by the Borrowers
pursuant to this Credit Agreement, (B) promptly notify the
Administrative Agent of any change in circumstances that would modify
or render invalid any claimed exemption or reduction, and (C) take such
steps as shall not be materially disadvantageous to it, in the
reasonable judgment of such Lender, and as may be reasonably necessary
(including the re-designation of its Lending Office) to avoid any
requirement of applicable Laws that the Borrowers make any deduction or
withholding for taxes from amounts payable to such Foreign Lender.
(ii) Each Foreign Lender, to the extent it does not act or
ceases to act for its own account with respect to any portion of any
sums paid or payable to such Lender under any of the Credit Documents
(for example, in the case of a typical participation by such Lender),
shall deliver to the Administrative Agent on the date when such Foreign
Lender ceases to act for its own account with respect to any portion of
any such sums paid or payable, and at such other times as may be
necessary in the determination of the Administrative Agent (in the
reasonable exercise of its discretion), (A) two duly signed completed
copies of the forms or statements required to be provided by such
Lender as set forth above, to establish the portion of any such
105
sums paid or payable with respect to which such Lender acts for its own
account that is not subject to U.S. withholding tax, and (B) two duly
signed completed copies of IRS Form W-8IMY (or any successor thereto),
together with any information such Lender chooses to transmit with such
form, and any other certificate or statement of exemption required
under the Internal Revenue Code, to establish that such Lender is not
acting for its own account with respect to the remaining portion of any
such sums payable to such Lender.
(iii) The Borrowers shall not be required to pay any
additional amount to any Foreign Lender under Section 3.01 (A) with
respect to any Taxes required to be deducted or withheld on the basis
of the information, certificates or statements of exemption such Lender
transmits with an IRS Form W-8IMY pursuant to this Section 11.15(a) or
(B) if such Lender shall have failed to satisfy the foregoing
provisions of this Section 11.15(a); provided that if such Lender shall
have satisfied the requirement of this Section 11.15(a) on the date
such Lender became a Lender or ceased to act for its own account with
respect to any payment under any of the Credit Documents, nothing in
this Section 11.15(a) shall relieve the Borrowers of its obligation to
pay any amounts pursuant to Section 3.01 in the event that, as a result
of any change in any applicable law, treaty or governmental rule,
regulation or order, or any change in the interpretation,
administration or application thereof, such Lender is no longer
properly entitled to deliver forms, certificates or other evidence at a
subsequent date establishing the fact that such Lender or other Person
for the account of which such Lender receives any sums payable under
any of the Credit Documents is not subject to withholding or is subject
to withholding at a reduced rate.
(iv) The Administrative Agent may, without reduction,
withhold any Taxes required to be deducted and withheld from any
payment under any of the Credit Documents with respect to which the
Borrowers are not required to pay additional amounts under this Section
11.15(a).
(b) Upon the request of the Administrative Agent, each Lender that
is a "United States person" within the meaning of Section 7701(a)(30) of the
Internal Revenue Code shall deliver to the Administrative Agent two duly signed
completed copies of IRS Form W-9. If such Lender fails to deliver such forms,
then the Administrative Agent may withhold from any interest payment to such
Lender an amount equivalent to the applicable back-up withholding tax imposed by
the Internal Revenue Code, without reduction.
(c) If any Governmental Authority asserts that the Administrative
Agent did not properly withhold or backup withhold, as the case may be, any tax
or other amount from payments made to or for the account of any Lender, such
Lender shall indemnify the Administrative Agent therefor, including all
penalties and interest, any taxes imposed by any jurisdiction on the amounts
payable to the Administrative Agent under this Section, and costs and expenses
(including Attorney Costs) of the Administrative Agent. The obligation of the
Lenders under this Section shall survive the termination of the Aggregate
Commitments, repayment of all other Obligations hereunder and the resignation of
the Administrative Agent.
11.16 Replacement of Lenders. Under any circumstances set forth
herein providing that the Borrowers shall have the right to replace a Lender as
a party to this Credit Agreement, the Borrowers may, upon notice to such Lender
and the Administrative Agent, replace such Lender by causing such Lender to
assign its Commitment (with the assignment fee to be paid by the Borrowers in
such instance) pursuant to Section 11.07(b) to one or more other Lenders or
Eligible Assignees procured by the Borrowers; provided, however, that if the
Borrowers elect to exercise such right with respect to any Lender pursuant to
Section 3.06(b), they shall be obligated to replace all Lenders that have made
similar requests for compensation pursuant to Section 3.01 or 3.04. Any
assignment made pursuant to this Section shall be made at par, together with
accrued interest, fees and other amounts owing to such Lender
106
through the date of replacement (including any amounts payable pursuant to
Section 3.05). Any Lender being replaced shall execute and deliver an Assignment
and Assumption Agreement with respect to such Lender's Commitment and
outstanding Loans and participations in L/C Obligations and Swing Line Loans;
provided that the processing and recordation fee in connection with any
assignment made pursuant to this Section shall be payable by the Borrowers.
11.17 Source of Funds. Each of the Lenders hereby represents and
warrants to the Borrowers that at least one of the following statements is an
accurate representation as to the source of funds to be used by such Lender in
connection with the financing hereunder:
(a) no part of such funds constitutes assets allocated to
any separate account maintained by such Lender in which any employee
benefit plan (or its related trust) has any interest;
(b) to the extent that any part of such funds constitutes
assets allocated to any separate account maintained by such Lender,
such Lender has disclosed to the Borrowers the name of each employee
benefit plan whose assets in such account exceed 10% of the total
assets of such account as of the date of such purchase (and, for
purposes of this subsection (b), all employee benefit plans maintained
by the same employer or employee organization are deemed to be a single
plan);
(c) to the extent that any part of such funds constitutes
assets of an insurance company's general account, such insurance
company has complied with all of the requirements of the regulations
issued under Section 401(c)(1)(A) of ERISA; or
(d) such funds constitute assets of one or more specific
benefit plans that such Lender has identified in writing to the
Borrowers.
As used in this Section, the terms "employee benefit plan" and
"separate account" shall have the respective meanings provided in Section 3 of
ERISA.
11.18 Nature of Obligations of the Borrowers.
(a) The obligations of each of the Primary Borrowers, as borrowers
hereunder, shall be joint and several in nature for all Loan Obligations and
other obligations owing hereunder or under the other Credit Documents; provided
that: (i) the obligations of any Primary Borrower as a joint and several obligor
hereunder in respect of such obligations shall not in any event exceed an
aggregate amount equal to the largest amount that would not render such
obligations subject to avoidance under the Debtor Relief Laws or any comparable
provisions of any applicable state law, (ii) none of the Primary Borrowers shall
exercise any right of subrogation, indemnity, reimbursement or contribution
against any other Borrower or Guarantor until such time as the Loan Obligations
and the other obligations owing hereunder and under the other Credit Documents
have been irrevocably paid in full and the commitments relating thereto have
expired or been terminated, and (iii) each Primary Borrower expressly waives any
requirement that the Administrative Agent or any Lender, or any of their
officers, agents or representatives, exhaust any right, power or remedy or first
proceed under any of the Credit Documents or against any other Borrower,
Guarantor, other Person or collateral.
(b) The obligations of each of the Designated Borrowers, as
borrowers hereunder, shall be several (and not joint) in nature and shall be
limited in each case to the obligations borrowed by such Designated Borrower
hereunder.
11.19 Release. Each of the borrowers (including the borrowers,
co-borrowers, designated borrowers and primary borrowers) and each of the
guarantors under the Existing Credit Agreement that, in
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each case, are not Credit Parties under this Credit Agreement as of the Closing
Date immediately upon the effectiveness of this Credit Agreement (collectively,
the "Released Parties"), are hereby released from all of their liabilities and
obligations under the Existing Credit Agreement and this Credit Agreement as of
the Closing Date, provided that such release shall not prevent any such Released
Party from hereafter joining as a Credit Party hereunder pursuant to the terms
of Sections 2.16 or 7.12. In addition, any security, pledge or like agreements
entered into by the parties to the Existing Credit Agreement that grant an
interest for the benefit of the lenders thereunder in collateral that is not
Collateral under this Credit Agreement (the "Released Collateral") are deemed
terminated, the obligations under such agreements are hereby deemed terminated
(other than any such obligations that by their terms survive termination of such
agreements), and any and all liens and security interests with respect to such
Released Collateral are deemed terminated. The Administrative Agent and the
Collateral Agent will assist in the removal of any and all liens and security
interests with respect to the Released Collateral, and will execute and deliver
such further documents and instruments and take such further actions as may be
reasonably requested by such Released Parties in connection therewith. In
consideration of such release, each of the Released Parties hereby releases the
Administrative Agent, the Lenders (including the Departing Lenders), and each of
their respective officers, employees, representatives, agents, counsel and
directors from any and all actions, causes of action, claims, demands, damages
and liabilities of whatever kind or nature, in law or in equity, now known or
unknown, suspected or unsuspected to the extent that any of the foregoing arises
from any action or failure to act on or prior to the Closing Date.
11.20 Judgment Currency. If, for the purposes of obtaining judgment
in any court, it is necessary to convert a sum due hereunder or any other Credit
Document from one currency into another currency, the rate of exchange used
shall be that at which, in accordance with normal banking procedures, the
Administrative Agent could purchase such currency with such other currency on
the Business Day preceding the day on which final judgment is given. The
obligation of the Borrowers in respect of any such sum due to the Administrative
Agent or the Lenders hereunder or under the other Credit Documents shall,
notwithstanding any judgment in a currency (the "Judgment Currency") other than
that in which such sum is denominated in accordance with the applicable
provisions of this Credit Agreement (the "Agreement Currency"), be discharged
only to the extent that on the Business Day following receipt by the
Administrative Agent of any sum adjudged to be so due in the Judgment Currency,
the Administrative Agent may in accordance with normal banking procedures
purchase the Agreement Currency with the Judgment Currency. If the amount of the
Agreement Currency so purchased is less than the sum originally due to the
Administrative Agent from the Borrowers in the Agreement Currency, the Borrowers
agree, as a separate obligation and notwithstanding any such judgment, to
indemnify the Administrative Agent or the Person to whom such obligation was
owing against such loss. If the amount of the Agreement Currency so purchased is
greater than the sum originally due to the Administrative Agent in such
currency, the Administrative Agent agrees to return the amount of any excess to
the Borrowers (or to any other Person who may be entitled thereto under
applicable law).
11.21 Reallocation of Commitments. Each Lender that will hold a
greater percentage of the Commitments on the Closing Date than such Lender held
under the Existing Credit Agreement immediately prior to the effectiveness
hereof, including any Lender not party to the Existing Credit Agreement (the
"Purchasing Lenders") shall be deemed to have automatically purchased an
assignment and assumption on a pro rata basis from the Selling Lenders,
effective as of the Closing Date simultaneously with the effectiveness hereof,
of all of such Selling Lender's rights and obligations (including, to the extent
permitted to be assigned under applicable law, all claims, suits, causes of
action and any other right of such Selling Lender against any Person, whether
known or unknown, arising under or in connection with the Existing Credit
Agreement, the documents delivered pursuant thereto and the transactions
governed thereby or in any way based on or related to any of the foregoing,
whether at law or in equity) under the Existing Credit Agreement and the other
Credit Documents to the extent related to such Selling Lender's Assigned
Interest such that, after giving effect to such assignment and assumptions,
108
each Lender's Commitments shall be as set forth on Schedule 2.01 and the
Departing Lenders shall have no commitments or obligations hereunder as of the
Closing Date. Each such assignment and assumption shall be at par and without
recourse, representation or warranty, provided that each Selling Lender shall be
deemed to represent and warrant to each Purchasing Lender that it is the legal
and beneficial owner of its Assigned Interest and that the rights and
obligations assigned by such Selling Lender are free and clear of any lien,
encumbrance or other adverse claim created by such Selling Lender. The
Administrative Agent will calculate the amount to be paid to each Departing
Lender in connection with the assignment and assumptions effected hereby on the
Closing Date, and will distribute the proceeds of such amounts to each of the
Departing Lenders on the Closing Date, in accordance with their pro rata share
thereof. On the Closing Date, the principal amount of all loans outstanding
under the Existing Credit Agreement shall be deemed repaid from the proceeds of
the Term Loans.
11.22 Power of Attorney.
(a) Without limiting any other authority granted to the Collateral
Agent herein or in any other Credit Document, each Lender hereby specifically
authorizes the Collateral Agent to enter, as agent on behalf of the Lenders
(with the effect that each Lender shall become a party thereunder), (i) any
Pledge Agreements governed by German Law and (ii) the Parallel Debt Agreement.
The authorization granted in herein above comprises any action or declaration
the Collateral Agent may deem necessary in connection with such Pledge
Agreements (including any action or declaration that the Collateral Agent deems
to be necessary in order to create a valid Pledge Agreement governed by German
Law) or the Parallel Debt Agreement, and are explicitly exempt from any
restriction to act for various parties to such Pledge Agreements or to the
Parallel Debt Agreement. The Collateral Agent has the power to sub-delegate its
powers as agent of each of the Lenders granted by this Section 11.22(a) to third
parties.
(b) The Credit Parties hereby specifically authorize and instruct
FMCAG to enter into the Parallel Debt Agreement, as agent on behalf of the
Credit Parties (with the effect that each Credit Party shall become a party
thereunder). FMCAG has the power to sub-delegate its powers as agent of each of
the Credit Parties granted by this Section 11.22(b) to third parties.
11.23 GOVERNING LAW.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE
AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT
OR ANY OTHER CREDIT DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW
YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND BY
EXECUTION AND DELIVERY OF THIS AGREEMENT, THE BORROWER, THE ADMINISTRATIVE AGENT
AND EACH LENDER CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE
NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. THE BORROWER, THE ADMINISTRATIVE
AGENT AND EACH LENDER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION
TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, THAT IT
MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH
JURISDICTION IN RESPECT OF ANY CREDIT DOCUMENT OR OTHER DOCUMENT RELATED
THERETO. THE BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER WAIVES PERSONAL
SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, THAT MAY BE MADE BY ANY
OTHER MEANS PERMITTED BY THE LAW OF SUCH STATE.
109
11.24 WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY TO THIS AGREEMENT
HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION
OR CAUSE OF ACTION ARISING UNDER ANY CREDIT DOCUMENT OR IN ANY WAY CONNECTED
WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF
THEM WITH RESPECT TO ANY CREDIT DOCUMENT, OR THE TRANSACTIONS RELATED THERETO,
IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN
CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT
ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT
TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE
CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
11.25 Entire Agreement. THIS CREDIT AGREEMENT AND THE OTHER CREDIT
DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE
PARTIES.
11.26 Conflict. To the extent there is any conflict or inconsistency
between the provisions hereof and the provisions of any Credit Document, this
Credit Agreement shall control.
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IN WITNESS WHEREOF, the parties hereto have caused this Credit
Agreement to be duly executed as of the date first above written.
BORROWERS: FRESENIUS MEDICAL CARE AG, a German
corporation
By: /s/ Dr. Ulf Xxxxxx Xxxxxxxxx
-----------------------------------------------------
Name: Dr. Ulf Xxxxxx Xxxxxxxxx
Title: Member of the Management Board
By: /s/ Xx. Xxxxxx Xxxxx
-----------------------------------------------------
Name: Xx. Xxxxxx Xxxxx
Title: Deputy member of the Management Board
FRESENIUS MEDICAL CARE HOLDINGS, INC., a
New York corporation
By: /s/ Xxxxx Xxxxxxxxx
-----------------------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Chief Financial Officer
FMC FINANCE II S.a.r.l., a private limited company
(societe a responsabilite limitee) organized under the
laws of Luxembourg
By: /s/ Dr. Xxxxxx Stopper
-----------------------------------------------------
Name: Dr. Xxxxxx Stopper
Title: Managing Director
By: /s/ Xxxxxxxx Xxx
-----------------------------------------------------
Name: Xxxxxxxx Xxx
Title: Managing Director
GUARANTORS: FRESENIUS MEDICAL CARE AG, a German
corporation
By: /s/ Dr. Ulf Xxxxxx Xxxxxxxxx
-----------------------------------------------------
Name: Dr. Ulf Xxxxxx Xxxxxxxxx
Title: Member of the Management Board
By: /s/ Xx. Xxxxxx Xxxxx
-----------------------------------------------------
Name: Xx. Xxxxxx Xxxxx
Title: Deputy member of the Management Board
FRESENIUS MEDICAL CARE HOLDINGS, INC., a
New York corporation
By: /s/ Xxxxx Xxxxxxxxx
-----------------------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Chief Financial Officer
FMC FINANCE II S.a.r.l., a private limited company
(societe a responsabilite limitee) organized under the
laws of Luxembourg
By: /s/ Dr. Xxxxxx Stopper
-----------------------------------------------------
Name: Dr. Xxxxxx Stopper
Title: Managing Director
By: /s/ Xxxxxxxx Xxx
-----------------------------------------------------
Name: Xxxxxxxx Xxx
Title: Managing Director
NATIONAL MEDICAL CARE, INC., a Delaware
corporation
By: /s/ Xxxxx Xxxxxxxxx
-----------------------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Chief Financial Officer
FRESENIUS MEDICAL CARE DEUTSCHLAND
GmbH, a German corporation
By: /s/ Xx. Xxxxxxxx Xxxxx
-----------------------------------------------------
Name: Xx. Xxxxxxxx Xxxxx
Title: Managing Director
By: /s/ Xxxxxxx Xxxxx
-----------------------------------------------------
Name: Xxxxxxx Xxxxx
Title: Managing Director
FMC TRUST FINANCE S.a.r.l. LUXEMBOURG, a
private limited company (societe a responsabilite
limitee) organized under the laws of Luxembourg
By: /s/ Dr. Xxxxxx Stopper
-----------------------------------------------------
Name: Dr. Xxxxxx Stopper
Title: Managing Director
FMC TRUST FINANCE S.a.r.l. LUXEMBOURG-III, a
private limited company (societe a responsabilite
limitee) organized under the laws of Luxembourg
By: /s/ Xxxxxxxx Xxx
-----------------------------------------------------
Name: Xxxxxxxx Xxx
Title: Managing Director
BIO-MEDICAL APPLICATIONS MANAGEMENT
COMPANY, INC., a Delaware corporation,
BIO-MEDICAL APPLICATIONS OF ARIZONA,
INC., a Delaware corporation,
BIO-MEDICAL APPLICATIONS OF CALIFORNIA,
INC., a Delaware corporation,
BIO-MEDICAL APPLICATIONS OF LOUISIANA,
LLC, a Delaware limited liability company,
BIO-MEDICAL APPLICATIONS OF MAINE, INC., a
Delaware corporation,
BIO-MEDICAL APPLICATIONS OF NEW MEXICO,
INC., a Delaware corporation,
BIO-MEDICAL APPLICATIONS OF NEW YORK,
INC., a Delaware corporation,
BIO-MEDICAL APPLICATIONS OF NORTH
CAROLINA, INC., a Delaware corporation,
BIO-MEDICAL APPLICATIONS OF
PENNSYLVANIA, INC., a Delaware corporation,
BIO-MEDICAL APPLICATIONS OF SOUTH
CAROLINA, INC., a Delaware corporation,
BIO-MEDICAL APPLICATIONS OF TEXAS, INC., a
Delaware corporation,
By: /s/ Xxxx Xxxxxxx
-----------------------------------------------------
Name: Xxxx Xxxxxxx
Title: Assistant Treasurer
for each of the foregoing
EVEREST HEALTHCARE HOLDINGS, INC., a
Delaware corporation
By: /s/ Xxxx Xxxxxxx
-----------------------------------------------------
Name: Xxxx Xxxxxxx
Title: Assistant Treasurer
FRESENIUS USA MANUFACTURING, INC., a
Delaware corporation
By: /s/ Xxxx Xxxxxxx
-----------------------------------------------------
Name: Xxxx Xxxxxxx
Title: Assistant Treasurer
FRESENIUS USA MARKETING, INC., a Delaware
corporation
By: /s/ Xxxx Xxxxxxx
-----------------------------------------------------
Name: Xxxx Xxxxxxx
Title: Assistant Treasurer
FRESENIUS USA, INC., a Massachusetts corporation
By: /s/ Xxxx Xxxxxxx
-----------------------------------------------------
Name: Xxxx Xxxxxxx
Title: Assistant Treasurer
SPECTRA LABORATORIES, INC., a Nevada
corporation
By: /s/ Xxxx Xxxxxxx
-----------------------------------------------------
Name: Xxxx Xxxxxxx
Title: Assistant Treasurer
AGENT: BANK OF AMERICA, N.A., as Administrative Agent
and Collateral Agent
By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
-----------------------------------------------------
Name: Xxxxxxx X. Xxxxxxx, Xx.
Title: Managing Director
LENDERS: BANK OF AMERICA, N.A., as a Lender, an L/C Issuer
and Domestic Swing Line Lender
By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
-----------------------------------------------------
Name: Xxxxxxx X. Xxxxxxx, Xx.
Title: Managing Director
CREDIT SUISSE FIRST BOSTON, acting through its
Cayman Islands Branch
By: /s/ S. Xxxxxxx Xxx
-----------------------------------------------------
Name: S. Xxxxxxx Xxx
Title: Director
By: /s/ Xxxxxxxxxxx Xxxxx
-----------------------------------------------------
Name: Xxxxxxxxxxx Xxxxx
Title: Vice President
DRESDNER BANK AG in Frankfurt am Main
By: /s/ Xxxxxxx Xxxxxxxxxxx
-----------------------------------------------------
Name: Xxxxxxx Xxxxxxxxxxx
Title: Senior Vice President
By: /s/ Xxxxxxxx Xxxx
-----------------------------------------------------
Name: Xxxxxxxx Xxxx
Title: Authorized Officer
DRESDNER BANK AG, New York and
Grand Cayman Branches
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Managing Director
By: /s/ Xxxx Xxxxxxxxxx
-----------------------------------------------------
Name: Xxxx Xxxxxxxxxx
Title: Associate
JPMORGAN CHASE BANK
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
THE BANK OF NOVA SCOTIA
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Managing Director
FLEET NATIONAL BANK
By: /s/ Xxxxxx X. Xxxxxx, Xx.
-----------------------------------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
Title: Group Executive
HELABA
By: /s/ X. Xxxxxxxxx
-----------------------------------------------------
Name: X. Xxxxxxxxx
Title: Vice President
By: /s/
-----------------------------------------------------
Name:
Title:
SOCIETE GENERALE
By: /s/ Xxxxxxx Xxxxxxxx
-----------------------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Director
SUNTRUST BANK
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Director
ABN AMRO BANK N.V., Niederlassung Deutschland
By: /s/
-----------------------------------------------------
Name:
Title:
BAYERISCHE LANDESBANK
By: /s/ Xxxx-Xxxxxxx von Salmuth
-----------------------------------------------------
Name: Xxxx-Xxxxxxx von Salmuth
Title: FVP
By: /s/ Xxxxxxx Xxxxx
-----------------------------------------------------
Name: Xxxxxxx Xxxxx
Title: FVP
BNP PARIBAS
By: /s/ Xxxxx Xxxxxx
-----------------------------------------------------
Name: Xxxxx Xxxxxx
Title: Director
By: /s/ Xxxx Xxxxx
-----------------------------------------------------
Name: Xxxx Xxxxx
Title: Vice President
WESTLB AG, New York Branch
By: /s/ Xxxxx Xxxxxxx
-----------------------------------------------------
Name: Xxxxx Xxxxxxx
Title: Director
By: /s/ Xxxxxx Xxxxxxxxx
-----------------------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Associate Director
BARCLAYS BANK PLC FRANKFURT BRANCH
By: /s/ Xxxxx Xxxxxxx
-----------------------------------------------------
Name: Xxxxx Xxxxxxx
Title: Credit Manager
By: /s/ Xxxx Xxxxx
-----------------------------------------------------
Name: Xxxx Xxxxx
Title: Director
DEUTSCHE BANK LUXEMBOURG S.A.
By: /s/ X. Xxxx
-----------------------------------------------------
Name: X. Xxxx
Title:
KREDITANSTALT FUR WIEDERAUFBAU
By: /s/ Xx. Xxxx Xxxx
-----------------------------------------------------
Name: Xx. Xxxx Xxxx
Title: Vice President
By: /s/ Xxxxxxxxx Xxxxxxxxxxxxx
-----------------------------------------------------
Name: Xxxxxxxxx Xxxxxxxxxxxxx
Title: Senior Project Manager
BANK FUR ARBEIT UND WIRTSCHAFT
AKTIENGESELLSCHAFT
By: /s/ Xxxxx Xxxx
-----------------------------------------------------
Name: Xxxxx Xxxx
Title: Vice President
COMMERZBANK AKTIENGESELLSCHAFT
By: /s/
-----------------------------------------------------
Name:
Title:
By: /s/
-----------------------------------------------------
Name:
Title:
ING BHF BANK
By: /s/ Xxxxxx Xxxxxx
-----------------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Assistant Vice President
By: /s/ Xxxxxxxxx Xxxxxx
-----------------------------------------------------
Name: Xxxxxxxxx Xxxxxx
Title: Assistant Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Managing Director
UNITED OVERSEAS BANK LTD., New York Agency
By: /s/ Ewong [Yew] Xxxx
-----------------------------------------------------
Name: Ewong [Yew] Xxxx
Title: Agent & GM
By: /s/ Xxxxxx Xxxxxx
-----------------------------------------------------
Name: Xxxxxx Xxxxxx
Title: VP & Deputy GM
BANK AUSTRIA CREDITANSTALT AG
By: /s/ Xxxx Xxxxxx
-----------------------------------------------------
Name: Xxxx Xxxxxx
Title: Senior Manager
By: /s/
-----------------------------------------------------
Name:
Title:
DEUTSCHE APOTHEKER -
UND ARZTEBANK e.G.
By: /s/
-----------------------------------------------------
Name:
Title:
By: /s/
-----------------------------------------------------
Name:
Title:
THE GOVERNOR & COMPANY OF THE
BANK OF IRELAND
By: /s/ Xxxx X. Xxxx
-----------------------------------------------------
Name: Xxxx X. Xxxx
Title: Authorized Signatory
By: /s/ Xxxxxxx Xxxxx
-----------------------------------------------------
Name: Xxxxxxx Xxxxx
Title: Authorized Signatory
SOVERIGN BANK
By: /s/ Xxxx X. Xxxx
-----------------------------------------------------
Name: Xxxx X. Xxxx
Title: Vice President
NATEXIS BANQUES POPULAIRES
By: /s/ Nicolas Regent
-----------------------------------------------------
Name: Nicolas Regent
Title: VP Multinational Group
By: /s/ Xxxx Xxxxxx
-----------------------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
RZB FINANCE LLC CONNECTICUT OFFICE
By: /s/ Xxxx X. Vallska
-----------------------------------------------------
Name: Xxxx X. Vallska
Title: Group Vice President
By: /s/ Xxxxxxxxx Xxxxx
-----------------------------------------------------
Name: Xxxxxxxxx Xxxxx
Title: Vice President
KZH ING-2 LLC
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Agent
KZH CYPRESSTREE-1 LLC
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Agent
KZH STERLING LLC
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Agent
TORONTO DOMINION (NEW YORK), INC.
By: /s/ Xxxx Xxxxxx
-----------------------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
PRINCIPLE LIFE INSURANCE COMPANY
By: Principle Global Investors, LLC
a Delaware limited liability company,
its authorized signatory
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Counsel
By: /s/ Xxx X. Xxxxx
-----------------------------------------------------
Name: Xxx X. Xxxxx
Title: Counsel
EAST WEST BANK
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President
STANWICH LOAN FUNDING LLC
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
THE TRAVELERS INSURANCE COMPANY
By: /s/ Xxxxxx Xxxxxx
-----------------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Investment Officer
CITIGROUP INVESTMENTS CORPORATE LOAN FUND INC.
By: Travelers Asset Management International
Company LLC
By: /s/ Xxxxxx Xxxxxx
-----------------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Investment Officer
