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Exhibit 10.7.2
SECOND AMENDMENT TO THREE-YEAR CREDIT AGREEMENT
This SECOND AMENDMENT TO THREE-YEAR CREDIT AGREEMENT (this
"Amendment"), dated as of August 21, 2000, is by and among LINCARE HOLDINGS
INC., a Delaware corporation (the "Borrower"), each of the Borrower's
Subsidiaries (individually a "Guarantor" and collectively the "Guarantors";
together with the Borrower, individually a "Credit Party", and collectively the
"Credit Parties"), the Required Lenders signatory hereto and BANK OF AMERICA,
N. A., as Agent for the Lenders (in such capacity, the "Agent").
W I T N E S S E T H
WHEREAS, the Credit Parties, the Lenders and the Agent have entered
into that certain Three-Year Credit Agreement dated as of August 23, 1999 (as
previously amended, the "Existing Credit Agreement");
WHEREAS, the Borrower has requested, and the Lenders have agreed, to
amend certain provisions of the Existing Credit Agreement as more fully set
forth below.
NOW, THEREFORE, in consideration of the agreements hereinafter set
forth, and for other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties hereto agree as follows:
PART I
DEFINITIONS
SUBPART 1.1 Certain Definitions. Unless otherwise defined herein
or the context otherwise requires, the following terms used in this Amendment,
including its preamble and recitals, have the following meanings:
"Amended Credit Agreement" means the Existing Credit
Agreement as amended hereby.
"Amendment No. 2 Effective Date" is defined in Subpart 4.1.
SUBPART 1.2 Other Definitions. Unless otherwise defined herein
or the context otherwise requires, terms used in this Amendment, including its
preamble and recitals, have the meanings provided in the Existing Credit
Agreement.
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PART II
AMENDMENTS TO EXISTING CREDIT AGREEMENT
Effective on (and subject to the occurrence of) the Amendment No. 2
Effective Date, the Existing Credit Agreement is hereby amended in accordance
with this Part 2.
SUBPART 2.1 Amendments to Section 1.1. Section 1.1 of the
Existing Credit Agreement is hereby amended in the following respects:
(a) The following definitions are amended in their
entireties to read as follows:
"Agent's Fee Letter" means that certain letter
agreement, dated as of August 21, 2000, between the Agent and
the Borrower, as amended, modified, restated or supplemented
from time to time.
"Applicable Percentage" means, for purposes of
calculating the applicable interest rate for any day for any
Revolving Loan, the applicable rate of the Unused Fee for any
day for purposes of Section 3.5(b) and the applicable rate of
the Letter of Credit Fee for any day for purposes of Section
3.5(c)(i), the appropriate applicable percentage
corresponding to the Leverage Ratio in effect as of the most
recent Calculation Date as set forth below:
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APPLICABLE PERCENTAGES
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FOR REVOLVING LOANS
----------------------------- FOR FOR
PRICING LEVERAGE RATIO EURODOLLAR BASE RATE LOANS LETTER OF UNUSED
LEVEL LOANS CREDIT FEE FEE
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I < 1.0 to 1.0 1.125% 0.125% 1.125% 0.30%*
-
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< 1.5 to 1.0
II - but 1.375% 0.375% 1.375% 0.35%*
> 1.0 to 1.0
------------------------------------------------------------------------------------------
< 2.0 to 1.0
III - but 1.625% 0.625% 1.625% 0.40%*
> 1.5 to 1.0
------------------------------------------------------------------------------------------
IV > 2.0 to 1.0 2.00% 1.00% 2.00% 0.50%*
===========================================================================================
* If on any day, the aggregate outstanding principal amount of
all Revolving Loans plus LOC Obligations hereunder is less
than the product of (A) one-half (1/2) times (B) the
Revolving Committed Amount, the applicable Unused Fee (as
shown above) shall be increased by an amount equal to 12.5
basis points.
The Applicable Percentages shall be determined and adjusted
quarterly on the date (each a "Calculation Date") five Business Days
after the date by which the Borrower is required to provide the
officer's certificate in accordance with the provisions of Section
7.1(c) for the most recently ended fiscal quarter of the Consolidated
Parties; provided, however, that (i) the initial Applicable
Percentages shall be based on Pricing Level II (as shown above) and
shall remain at Pricing Level II until the date six months following
the Closing Date, on and after which
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time the Pricing Level shall be determined by the Leverage Ratio as of
the last day of the most recently ended fiscal quarter of the
Consolidated Parties preceding the applicable Calculation Date and
(ii) if the Borrower fails to provide the officer's certificate as
required by Section 7.1(c) for the last day of the most recently ended
fiscal quarter of the Consolidated Parties preceding the applicable
Calculation Date, the Applicable Percentage from such Calculation Date
shall be based on Pricing Level IV until such time as an appropriate
officer's certificate is provided, whereupon the Applicable
Percentages shall be determined by the Leverage Ratio as of the last
day of the most recently ended fiscal quarter of the Consolidated
Parties preceding such Calculation Date. Each Applicable Percentage
shall be effective from one Calculation Date until the next
Calculation Date. Any adjustment in the Applicable Percentages shall
be applicable to all existing Revolving Loans and Letters of Credit as
well as any new Revolving Loans and Letters of Credit made or issued.
"Credit Documents" means a collective reference to this
Credit Agreement, the Revolving Notes, the LOC Documents, each Joinder
Agreement, the Agent's Fee Letter, the Pledge Agreement and all other
related agreements and documents issued or delivered hereunder or
thereunder or pursuant hereto or thereto (in each case as the same may
be amended, modified, restated, supplemented, extended, renewed or
replaced from time to time), and "Credit Document" means any one of
them.
"Credit Party Obligations" means, without duplication, (i)
all of the obligations of the Credit Parties to the Lenders (including
the Issuing Lender) and the Agent, whenever arising, under this Credit
Agreement, the Revolving Notes, the Pledge Agreement or any of the
other Credit Documents (including, but not limited to, any interest
accruing after the occurrence of a Bankruptcy Event with respect to
any Credit Party, regardless of whether such interest is an allowed
claim under the Bankruptcy Code) and (ii) all liabilities and
obligations, whenever arising, owing from any Credit Party to any
Lender, or any Affiliate of a Lender, arising under any Hedging
Agreement or any Equity Swap Agreement.
"Intercreditor Agreement" means (i) on and after the
Amendment No. 2 Effective Date but prior to the first date on which
the Borrower has issued any Senior Notes, an intercreditor agreement
in form and substance reasonably satisfactory to the Agent, defining
the relationship between the Agent and the Lenders, on the one hand,
and the agent and the lenders under the 364-Day Credit Agreement, on
the other hand, with respect to the relative rights and priorities
with respect to the Pledged Collateral and providing for the sharing
of any amounts recovered pursuant to the obligations of the Guarantors
under Section 4 and the guaranties of the 364-Day Credit Agreement
permitted under Section 8.1(j) and (ii) after the issuance of any
Senior Notes, an intercreditor agreement in form and substance
reasonably satisfactory to the Agent, defining the relationship
between the Agent and the Lenders, on the one hand, and the Senior
Noteholders, on the other hand, with respect to the relative rights
and priorities with respect to the
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Pledged Collateral and providing for the sharing of any amounts
recovered pursuant to the obligations of the Guarantors under Section
4 and the guaranties of the Senior Notes permitted under Section
8.1(j).
"Lender" means any of the Persons identified as a "Lender" on
the signature pages hereto, and any Person which may become a Lender
by way of assignment in accordance with the terms hereof, together
with their successors and permitted assigns.
"Permitted Liens" means:
(i) Liens in favor of the Agent, for the
benefit of the Lenders, to secure the Credit Party
Obligations;
(ii) Liens in favor of the Collateral Agent, for
the ratable benefit of the Lenders and either the lenders
under the 364-Day Credit Agreement or the Senior Noteholders,
as applicable;
(iii) Liens (other than Liens created or imposed
under ERISA) for taxes, assessments or governmental charges
or levies not yet due or Liens for taxes being contested in
good faith by appropriate proceedings for which adequate
reserves determined in accordance with GAAP have been
established (and as to which the Property subject to any such
Lien is not yet subject to foreclosure, sale or loss on
account thereof);
(iv) statutory Liens of landlords and Liens of
carriers, warehousemen, mechanics, materialmen and suppliers
and other Liens imposed by law or pursuant to customary
reservations or retentions of title arising in the ordinary
course of business, provided that such Liens secure only
amounts not yet due and payable or, if due and payable, are
unfiled and no other action has been taken to enforce the
same or are being contested in good faith by appropriate
proceedings for which adequate reserves determined in
accordance with GAAP have been established (and as to which
the Property subject to any such Lien is not yet subject to
foreclosure, sale or loss on account thereof);
(v) Liens (other than Liens created or imposed
under ERISA) incurred or deposits made by any Consolidated
Party in the ordinary course of business in connection with
workers' compensation, unemployment insurance and other types
of social security, 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);
(vi) Liens in connection with attachments or
judgments (including judgment or appeal bonds) provided that
the judgments secured
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shall, within 30 days after the entry thereof, have been
discharged or execution thereof stayed pending appeal, or
shall have been discharged within 30 days after the
expiration of any such stay;
(vii) easements, rights-of-way, restrictions
(including zoning restrictions), minor defects or
irregularities in title and other similar charges or
encumbrances not, in any material respect, impairing the use
of the encumbered Property for its intended purposes;
(viii) Liens on Property securing purchase money
Indebtedness (including Capital Leases and Synthetic Leases)
to the extent permitted under Section 8.1(c), provided that
any such Lien attaches to such Property concurrently with or
within 90 days after the acquisition thereof;
(ix) leases or subleases granted to others not
interfering in any material respect with the business of any
Consolidated Party;
(x) any interest of title of a lessor under,
and Liens arising from UCC financing statements (or
equivalent filings, registrations or agreements in foreign
jurisdictions) relating to, leases permitted by this Credit
Agreement;
(xi) normal and customary rights of setoff upon
deposits of cash in favor of banks or other depository
institutions;
(xii) Liens of a collection bank arising under
Section 4-210 of the Uniform Commercial Code on items in the
course of collection;
(xiii) Liens of sellers of goods to the Borrower
and any of its Subsidiaries arising under Article 2 of the
Uniform Commercial Code or similar provisions of applicable
law in the ordinary course of business, covering only the
goods sold and securing only the unpaid purchase price for
such goods and related expenses;
(xiv) Liens existing as of the Closing Date and
set forth on Schedule 1.1(b); provided that no such Lien
shall at any time be extended to or cover any Property other
than the Property subject thereto on the Closing Date;
(xv) Liens on Property in an aggregate amount
not to exceed $8,000,000 securing obligations of the Borrower
under Equity Swap Agreements permitted under Section 8.1(f);
and
(xvi) additional Liens not otherwise permitted by
the foregoing clauses hereof; provided that such additional
Liens permitted by this clause (xvi) do not secure
Indebtedness of more than $5,000,000.
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"Pledge Agreement" means (i) prior to the Amendment No. 2
Effective Date, the pledge agreement dated as of the Closing Date in
the form of Exhibit 1.1(a), as amended, modified, restated or
supplemented from time to time, (ii) on and after the Amendment No. 2
Effective Date but prior to the first date on which the Borrower has
issued any Senior Notes, a pledge agreement in form and substance
reasonably satisfactory to the Agent, amending and restating the
pledge agreement referred to in clause (i) above for the purpose of
providing that the collateral thereunder shall be held by Bank of
America as a collateral agent for the ratable benefit of the Lenders
and the lenders under the 364-Day Credit Agreement, as amended,
modified, restated or supplemented from time to time and (iii)
thereafter, a pledge agreement in form and substance reasonably
satisfactory to the Agent, amending and restating the pledge agreement
referred to in clause (i) above for the purpose of providing that the
collateral thereunder shall be held by Bank of America as a collateral
agent for the ratable benefit of the Lenders and the Senior
Noteholders, as amended, modified, restated or supplemented from time
to time.
"Revolving Committed Amount" means TWO HUNDRED FORTY MILLION
DOLLARS ($240,000,000), as such amount may be reduced from time to
time as provided in Section 3.4.
"Senior Note Purchase Agreements" means a collective
reference to note purchase agreements, dated as of a date on or before
September 30, 2000 and in form and substance reasonably satisfactory
to the Agent, among the Borrower and each of the Senior Noteholders.
"Senior Noteholders" means a collective reference to the
holders from time to time of the Senior Notes and "Senior Noteholder"
means any one of them.
"Senior Notes" means a collective reference to senior notes
in an aggregate principal amount of up to $150,000,000, and in form
and substance reasonably satisfactory to the Agent, to be issued by
the Borrower on or before September 30, 2000 pursuant to the Senior
Note Purchase Agreements, as such Senior Notes may be amended,
modified, restated or supplemented and in effect from time to time in
accordance with the terms thereof. The Senior Notes shall rank pari
passu with the Credit Party Obligations in priority of payment and
shall be secured by a lien on the Pledged Collateral ranking pari
passu with the lien of the Agent and Lenders thereon.
"364-Day Credit Agreement" means that 364-Day Credit
Agreement dated as of August 21, 2000, as amended, modified, restated,
refinanced or supplemented from time to time, among the Borrower, each
of the Borrower's Subsidiaries, the lenders identified therein and
Bank of America, as agent.
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(b) The definitions of "Additional Revolving Commitment"
and "New Commitment Agreement" are hereby deleted.
(c) The following new definitions are added to
Section 1.1 of the Existing Credit Agreement in the appropriate
alphabetical order:
"Amendment No. 2" means that certain Second
Amendment to Three-Year Credit Agreement dated as of August
21, 2000 by and among the Borrower, the Guarantors, the
Required Lenders signatory hereto and the Agent.
"Amendment No. 2 Effective Date" shall have the
meaning assigned to such term in Amendment No. 2.
"Collateral Agent" means (i) on and after the
Amendment No. 2 Effective Date but prior to the first date on
which the Borrower has issued any Senior Notes, Bank of
America, N.A., in its capacity as collateral agent for the
benefit of the Lenders and the lenders under the 364-Day
Credit Agreement, together with its successors and assigns
and (ii) thereafter, Bank of America, N.A., in its capacity
as collateral agent for the benefit of the Lenders and the
Senior Noteholders, together with its successors and assigns.
SUBPART 2.2 Amendments to Section 3.4. Section 3.4 is hereby
amended in its entirety to read as follows:
3.4 TERMINATION AND REDUCTION OF REVOLVING COMMITTED
AMOUNT.
(a) The Borrower may from time to time
permanently reduce or terminate the Revolving Committed
Amount in whole or in part (in minimum aggregate amounts of
$5,000,000 or in integral multiples of $1,000,000 in excess
thereof (or, if less, the full remaining amount of the then
applicable Revolving Committed Amount)) upon three Business
Days' prior written notice to the Agent; provided, however,
no such termination or reduction shall be made which would
cause the aggregate principal amount of outstanding Revolving
Loans and LOC Obligations to exceed the Revolving Committed
Amount, unless, concurrently with such termination or
reduction, the Revolving Loans are repaid to the extent
necessary to eliminate such excess. The Agent shall promptly
notify each affected Lender of receipt by the Agent of any
notice from the Borrower pursuant to this Section 3.4(a).
(b) Maturity Date. The Commitments of the
Lenders and the LOC Commitment of the Issuing Lender shall
automatically terminate on the Maturity Date.
(c) General. The Borrower shall pay to the
Agent for the account of the Lenders in accordance with the
terms of Section 3.5(b), on the date of each reduction of the
Revolving Committed Amount, the Unused Fee accrued through
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the date of such termination or reduction on the amount of
the Revolving Committed Amount so terminated or reduced.
SUBPART 2.3 Amendments to Section 3.17. Section 3.17 of the
Existing Credit Agreement is hereby amended in its entirety to read as follows:
3.17 REPLACEMENT OF AFFECTED LENDERS.
If any Lender having a Commitment becomes a Defaulting Lender
or if any Lender is owed increased costs under Section 3.8, Section
3.9, or Section 3.6, or the Borrower is required to make any payments
under Section 3.11 to any Lender in excess of those to the other
Lenders, the Borrower shall have the right, if no Event of Default
then exists, to replace such Lender (the "Replaced Lender") with one
or more other Eligible Assignee or Eligible Assignees, none of whom
shall constitute a Defaulting Lender at the time of such replacement
(collectively, the "Replacement Lender") reasonably acceptable to the
Agent, provided that (i) at the time of any replacement pursuant to
this Section 3.17, the Replaced Lender and Replacement Lender shall
enter into one or more assignment agreements, in form and substance
reasonably satisfactory to such parties and the Agent, pursuant to
which the Replacement Lender shall acquire all or a portion, as the
case may be, of the Commitments and outstanding Loans of, and
participation in Letters of Credit by, the Replaced Lender hereunder
and (ii) all obligations of the Borrower owing to the Replaced Lender
relating to the Loans so replaced (including, without limitation, such
increased costs and excluding those specifically described in clause
(i) above in respect of which the assignment purchase price has been,
or is concurrently being paid) shall be paid in full to such Replaced
Lender concurrently with such replacement. Upon the execution of the
respective assignment documentation, the payment of amounts referred
to in clauses (i) and (ii) above and, if so requested by the
Replacement Lender, delivery to the Replacement Lender of the
appropriate Revolving Note or Revolving Notes executed by the
Borrower, the Replacement Lender shall become a Lender hereunder and
the Replaced Lender shall cease to constitute a Lender hereunder with
respect to such replaced Revolving Loans, except with respect to
indemnification provisions under this Agreement, which shall survive
as to such Replaced Lender. Notwithstanding anything to the contrary
contained above, (1) the Lender that acts as the Issuing Lender may
not be replaced hereunder at any time that it has Letters of Credit
outstanding hereunder unless arrangements satisfactory to the Issuing
Lender (including the furnishing of a back-up standby letter of credit
in form and substance, and issued by an issuer satisfactory to such
Issuing Lender or the depositing of cash collateral into a cash
collateral account maintained with the Agent in amounts and pursuant
to arrangements satisfactory to such Issuing Lender) have been made
with respect to such outstanding Letters of Credit and (2) the Lender
that acts as the Agent may not be replaced hereunder except in
accordance with the terms of Section 10.7. The Replaced Lender shall
be required to deliver for cancellation its applicable Revolving Notes
to be canceled on the date of replacement, or if any such Revolving
Note is lost or unavailable, such other assurances or indemnification
therefor as the Borrower may reasonably request.
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SUBPART 2.4 Amendments to Section 8.1. Section 8.1 of the
Existing Credit Agreement is hereby amended in its entirety to read as follows:
8.1 INDEBTEDNESS.
The Credit Parties will not permit any Consolidated Party to
contract, create, incur, assume or permit to exist any Indebtedness,
except:
(a) Indebtedness arising under this Credit
Agreement and the other Credit Documents;
(b) Indebtedness of the Borrower and its
Subsidiaries set forth in Schedule 8.1;
(c) purchase money Indebtedness (including
Capital Leases) or Synthetic Leases hereafter incurred by the
Borrower or any of its Subsidiaries to finance the purchase
of fixed assets provided that (i) the total of all such
Indebtedness for all such Persons taken together shall not
exceed an aggregate principal amount of $5,000,000 at any one
time outstanding (including any such Indebtedness referred to
in subsection (b) above); (ii) such Indebtedness when
incurred shall not exceed the purchase price of the asset(s)
financed; and (iii) no such Indebtedness shall be refinanced
for a principal amount in excess of the principal balance
outstanding thereon at the time of such refinancing;
(d) obligations of the Borrower or any of its
Subsidiaries in respect of Hedging Agreements entered into in
order to manage existing or anticipated interest rate or
exchange rate risks and not for speculative purposes;
(e) obligations of the Borrower in respect of
the Stock Buy-Back Plan;
(f) obligations of the Borrower under Equity
Swap Agreements provided that (i) the term of any such Equity
Swap Agreements shall not exceed 6 months and (ii) the
notional amount of all such obligations shall not exceed
$45,000,000 in the aggregate at any time outstanding;
(g) unsecured Indebtedness payable to the
seller of the Capital Stock or Property acquired in a
Permitted Acquisition representing all or a portion of the
purchase price of the Capital Stock or Property so acquired;
(h) Indebtedness owing by one Credit Party to
another Credit Party;
(i) other Indebtedness hereafter incurred by
the Borrower not exceeding $10,000,000 in aggregate principal
amount at any time outstanding;
(j) prior to the first date on which the
Borrower has issued any Senior Notes, Indebtedness of the
Borrower arising under the 364-Day Credit Agreement
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in an aggregate principal amount of up to $60,000,000;
provided that the 364-Day Credit Agreement does not contain
terms and conditions which, when taken as a whole, are more
restrictive that the terms and conditions of the Credit
Agreement;
(k) Indebtedness of the Borrower arising under
the Senior Note Purchase Agreements and the Senior Notes in
an aggregate principal amount of up to $150,000,000; provided
that (i) the final maturity date of such Senior Notes occurs
after the Maturity Date and (ii) such Senior Note Purchase
Agreements and Senior Notes do not contain terms and
conditions which, when taken as a whole, are more restrictive
that the terms and conditions of the Credit Agreement; and
(l) Guaranty Obligations of any Guarantor with
respect to the Indebtedness of the Borrower permitted under
Section 8.1(j) or Section 8.1(k).
SUBPART 2.5 Amendments to Section 8.8. Section 8.8 of the
Existing Credit Agreement is hereby amended in its entirety to read as follows:
8.8 PREPAYMENTS OF INDEBTEDNESS, ETC.
The Credit Parties will not permit any Consolidated Party to
(i) after the issuance thereof, amend or modify (or permit the
amendment or modification of) any of the terms of any Indebtedness if
such amendment or modification would add or change any terms in a
manner adverse to the issuer of such Indebtedness, or shorten the
final maturity or average life to maturity or require any payment to
be made sooner than originally scheduled or increase the interest rate
applicable thereto or change any subordination provision thereof or
(ii) if any Default or Event of Default has occurred and is continuing
or would be directly or indirectly caused as a result thereof, make
(or give any notice with respect thereto) any voluntary or optional
payment or prepayment or redemption or acquisition for value of
(including without limitation, by way of depositing money or
securities with the trustee with respect thereto before due for the
purpose of paying when due), refund, refinance or exchange of any
other Indebtedness of such Consolidated Party.
SUBPART 2.6 Amendments to Section 8.11. Section 8.11 of the
Existing Credit Agreement is hereby amended in its entirety to read as follows:
8.11 LIMITATION ON RESTRICTED ACTIONS.
The Credit Parties will not permit any Consolidated Party to,
directly or indirectly, create or otherwise cause or suffer to exist
or become effective any encumbrance or restriction on the ability of
any such Person to (a) pay dividends or make any other distributions
to any Credit Party on its Capital Stock or with respect to any other
interest or participation in, or measured by, its profits, (b) pay any
Indebtedness or other obligation owed to any Credit Party, (c) make
loans or advances to any Credit Party, (d) sell, lease or transfer any
of its properties or assets to any Credit Party, (e) xxxxx x xxxx on
its properties or assets whether now owned or hereafter acquired or
(f) act as a Guarantor and pledge its assets pursuant to the Credit
Documents or any renewals,
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refinancings, exchanges, refundings or extension thereof, except (in
respect of any of the matters referred to in clauses (a)-(d) above)
for such encumbrances or restrictions existing under or by reason of
(i) this Credit Agreement and the other Credit Documents, (ii) the
Senior Note Purchase Agreements and the Senior Notes, (iii) the
364-Day Credit Agreement or (iv) applicable law.
SUBPART 2.7 Amendments to Section 8.14. Section 8.14 of the
Existing Credit Agreement is hereby amended in its entirety to read as follows:
8.14 NO FURTHER NEGATIVE PLEDGES.
Except (a) pursuant to this Credit Agreement and the other
Credit Documents, (b) pursuant to the Senior Note Purchase Agreements
and the Senior Notes, (c) pursuant to the 364-Day Credit Agreement and
(d) pursuant to any document or instrument governing Indebtedness
incurred pursuant to Section 8.1(c), provided that any such
restriction contained therein relates only to the asset or assets
constructed or acquired in connection therewith, the Credit Parties
will not permit any Consolidated Party to 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, or requiring the grant of any
security for such obligation if security is given for some other
obligation.
SUBPART 2.8 Amendments to Section 9.1. Subsection (g) of
Section 9.1 of the Existing Credit Agreement is hereby amended in its entirety
to read as follows:
9.1 EVENTS OF DEFAULT.
An Event of Default shall exist upon the occurrence of any of
the following specified events (each an "Event of Default"):
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(g) Defaults under Other Agreements.
(i) Any Consolidated Party shall
default in the performance or observance (beyond the
applicable grace period with respect thereto, if
any) of any material obligation or condition of any
contract or lease material to the Consolidated
Parties, taken as a whole.
(ii) With respect to any Indebtedness
(other than Indebtedness outstanding under this
Credit Agreement) in excess of $2,500,000 in the
aggregate for the Consolidated Parties taken as a
whole, (A) any Consolidated Party shall (1) default
in any payment (beyond the applicable grace period
with respect thereto, if any) with respect to any
such Indebtedness, or (2) default (after giving
effect to any applicable grace period) in the
observance or performance of any term, covenant or
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agreement relating to such Indebtedness or contained
in any instrument or agreement evidencing, securing
or relating thereto, or any other event or condition
shall occur or condition exist, the effect of which
default or other event or condition is to cause, or
permit, the holder or holders of such Indebtedness
(or trustee or agent on behalf of such holders) to
cause (determined without regard to whether any
notice or lapse of time is required), any such
Indebtedness to become due prior to its stated
maturity; or (B) any such Indebtedness shall be
declared due and payable, or required to be prepaid
other than by a regularly scheduled required
prepayment, prior to the stated maturity thereof.
SUBPART 2.9 Amendments to Section 11.3. Subsection (b) of
Section 11.3 of the Existing Credit Agreement is hereby amended in its entirety
to read as follows:
11.3 BENEFIT OF AGREEMENT.
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(b) Each Lender may assign to one or more
Eligible Assignees all or a portion of its rights and
obligations under this Credit Agreement (including, without
limitation, all or a portion of its Revolving Loans, its
Revolving Notes, and its Commitment); provided, however, that
(i) each such assignment shall be to an
Eligible Assignee;
(ii) except in the case of an
assignment to another Lender or an assignment of all
of a Lender's rights and obligations under this
Credit Agreement, any such partial assignment shall
be in an amount at least equal to $5,000,000 (or, if
less, the remaining amount of the Commitment being
assigned by such Lender) or an integral multiple of
$1,000,000 in excess thereof;
(iii) each such assignment by a Lender
shall be of a constant, and not varying, percentage
of all of its rights and obligations under this
Credit Agreement; and
(iv) the parties to such assignment
shall execute and deliver to the Agent for its
acceptance an Assignment and Acceptance in the form
of Exhibit 11.3(b) hereto, together with any
Revolving Note subject to such assignment and a
processing fee of $3,500.
Upon execution, delivery, and acceptance of such Assignment
and Acceptance, the assignee thereunder shall be a party
hereto and, to the extent of such assignment, have the
obligations, rights, and benefits of a Lender hereunder and
the assigning Lender shall, to the extent of such assignment,
relinquish its rights and be released from its obligations
under this Credit Agreement. Upon the
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consummation of any assignment pursuant to this Section
11.3(b), the assignor, the Agent and the Borrower shall make
appropriate arrangements so that, if required, new Revolving
Notes are issued to the assignor and the assignee. If the
assignee is not incorporated under the laws of the United
States of America or a state thereof, it shall deliver to the
Borrower and the Agent certification as to exemption from
deduction or withholding of Taxes in accordance with Section
3.11.
SUBPART 2.10 Deletion of Exhibit 3.4(b). Exhibit 3.4(b) to the
Existing Credit Agreement is hereby deleted.
PART III
CONSENT, AUTHORIZATION, ETC.
SUBPART 3.1 Execution of Intercreditor Agreement and Restated
Pledge Agreement; Indemnification of Collateral Agent.
(a) The Required Lenders hereby authorize and direct the
Agent, on behalf of the Lenders to execute and deliver (i) each of the
intercreditor agreements referred to in clauses (i) and (ii) of the
definition of "Intercreditor Agreement" set forth in Section 1.1 of
the Amended Credit Agreement and (ii) each of the pledge agreements
referred to in clauses (ii) and (iii) of the definition of "Pledge
Agreement" set forth in Section 1.1 of the Amended Credit Agreement.
(b) The Credit Parties agree:
(i) to pay to the Collateral Agent all of its
out-of-pocket expenses (including but not limited to the
reasonable charges and disbursements of counsel) in
connection with the preparation, execution and delivery of
each of the intercreditor agreements referred to in clauses
(i) and (ii) of the definition of "Intercreditor Agreement"
set forth in Section 1.1 of the Amended Credit Agreement and
each of the pledge agreements referred to in clauses (ii) and
(iii) of the definition of "Pledge Agreement" set forth in
Section 1.1 of the Amended Credit Agreement;
(ii) to pay to the Collateral Agent from time to
time reasonable compensation for all services rendered by it
under each of the intercreditor agreements referred to in
clauses (i) and (ii) of the definition of "Intercreditor
Agreement" set forth in Section 1.1 of the Amended Credit
Agreement and each of the pledge agreements referred to in
clauses (ii) and (iii) of the definition of "Pledge
Agreement" set forth in Section 1.1 of the Amended Credit
Agreement;
(iii) to reimburse the Collateral Agent upon its
request for all reasonable expenses, disbursements and
advances (including the reasonable compensation and the
expenses and disbursements of its agents and counsel)
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incurred or made by the Collateral Agent in accordance with
any provision of either of the intercreditor agreements
referred to in clauses (i) and (ii) of the definition of
"Intercreditor Agreement" set forth in Section 1.1 of the
Amended Credit Agreement or either of the pledge agreements
referred to in clauses (ii) and (iii) of the definition of
"Pledge Agreement" set forth in Section 1.1 of the Amended
Credit Agreement; and
(iv) to indemnify the Collateral Agent for, and
to hold it harmless against, any loss, liability or expense
incurred without gross negligence or willful misconduct on
the part of the Collateral Agent, arising out of or in
connection with either of the intercreditor agreements
referred to in clauses (i) and (ii) of the definition of
"Intercreditor Agreement" set forth in Section 1.1 of the
Amended Credit Agreement or either of the pledge agreements
referred to in clauses (ii) and (iii) of the definition of
"Pledge Agreement" set forth in Section 1.1 of the Amended
Credit Agreement, or any action taken or omitted by it
thereunder or in connection therewith, including, but not
limited to, the costs and expenses of defending itself
against any claim or liability in connection with the
exercise or performance of any of its powers or duties
hereunder, and any loss, liability, expense or claim arising
out of its possession, management, control, use or operation
of the collateral thereunder.
(c) The Lenders shall be required to indemnify the
Collateral Agent (to the extent not reimbursed by the Credit Parties),
ratably with the lenders under the 364-Day Credit Agreement or the
Senior Noteholders, as applicable, for any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind and nature whatsoever
that may be imposed on, incurred by or asserted against the Collateral
Agent, without gross negligence or willful misconduct on the part of
the Collateral Agent, arising out of the actions of the Collateral
Agent under either of the intercreditor agreements referred to in
clauses (i) and (ii) of the definition of "Intercreditor Agreement"
set forth in Section 1.1 of the Amended Credit Agreement or either of
the pledge agreements referred to in clauses (ii) and (iii) of the
definition of "Pledge Agreement" set forth in Section 1.1 of the
Amended Credit Agreement, or the transactions contemplated thereby or
the enforcement of any of the terms thereof. The Lenders shall be
subrogated to the rights of the Collateral Agent with respect to all
amounts paid by it pursuant to this clause (b), and all such amounts
shall constitute Credit Party Obligations.
PART IV
CONDITIONS TO EFFECTIVENESS
SUBPART 4.1 Amendment No. 2 Effective Date. This Amendment shall
be and become effective as of the date hereof (the "Amendment No. 2 Effective
Date") when all of the conditions set forth in this Part 4 shall have been
satisfied, and thereafter this Amendment shall be known, and may be referred
to, as "Amendment No. 2."
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SUBPART 4.1.1 Execution of Counterparts of Amendment. The
Agent shall have received counterparts of this Amendment which
collectively shall have been duly executed on behalf of each of the
Borrower, the Guarantors and the Required Lenders.
SUBPART 4.1.2 Termination of Existing 364-Day Facility.
All outstanding Indebtedness under the 364-Day Credit Agreement
referred to in the Existing Credit Agreement shall have been
refinanced in full and the commitments of the lenders thereunder shall
have been terminated.
SUBPART 4.1.3 New 364-Day Facility. The new 364-Day
Credit Agreement referred to in the Amended Credit Agreement shall
have been refinanced in full and the commitments of the lenders
thereunder shall have become effective in accordance with the terms of
Section 11.13(a) thereof.
PART V
MISCELLANEOUS
SUBPART 5.1 Representations and Warranties. The Borrower hereby
represents and warrants to the Agent and the Lenders that, after giving effect
to this Amendment, (a) no Default or Event of Default exists under the Credit
Agreement or any of the other Credit Documents and (b) the representations and
warranties set forth in Section 6 of the Existing Credit Agreement are, subject
to the limitations set forth therein, true and correct in all material respects
as of the date hereof (except for those which expressly relate to an earlier
date).
SUBPART 5.2 Reaffirmation of Credit Party Obligations. Each
Credit Party hereby ratifies the Amended Credit Agreement and acknowledges and
reaffirms (a) that it is bound by all terms of the Amended Credit Agreement
applicable to it and (b) that it is responsible for the observance and full
performance of its respective Credit Party Obligations.
SUBPART 5.3 Cross-References. References in this Amendment to
any Part or Subpart are, unless otherwise specified, to such Part or Subpart of
this Amendment.
SUBPART 5.4 Instrument Pursuant to Existing Credit Agreement.
This Amendment is a Credit Document executed pursuant to the Existing Credit
Agreement and shall (unless otherwise expressly indicated therein) be
construed, administered and applied in accordance with the terms and provisions
of the Existing Credit Agreement.
SUBPART 5.5 References in Other Credit Documents. At such time
as this Amendment No. 2 shall become effective pursuant to the terms of Subpart
4.1, all references in the Credit Documents to the "Credit Agreement" shall be
deemed to refer to the Credit Agreement as amended by this Amendment.
SUBPART 5.6 Counterparts/Telecopy. This Amendment may be
executed by the parties hereto in several counterparts, each of which shall be
deemed to be an original and all of which shall constitute together but one and
the same agreement. Delivery of executed
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counterparts of the Amendment by telecopy shall be effective as an original and
shall constitute a representation that an original shall be delivered.
SUBPART 5.7 Governing Law. THIS AMENDMENT SHALL BE DEEMED TO BE
A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW
YORK.
SUBPART 5.8 Successors and Assigns. This Amendment shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
SUBPART 5.9 General. Except as amended hereby, the Existing
Credit Agreement and all other Credit Documents shall continue in full force
and effect.
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IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Amendment to be duly executed and delivered as of the date
first above written.
BORROWER: LINCARE HOLDINGS INC.,
a Delaware corporation
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
GUARANTORS: LINCARE INC.,
a Delaware corporation
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
LINCARE PROCUREMENT INC.,
a Delaware corporation
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
LINCARE ASSET MANAGEMENT LP,
a Nevada limited partnership
BY: LINCARE HOLDINGS INC., A DELAWARE
CORPORATION, ITS GENERAL PARTNER
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
LINCARE OF NEW YORK INC.,
a New York corporation
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
18
LINCARE PHARMACY SERVICES INC.,
a Delaware corporation
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
LINCARE LICENSING INC.,
a Delaware corporation
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
CONVACARE SERVICES INC.,
an Indiana corporation
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
LINCARE TRAVEL INC.,
a Delaware corporation
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
19
LENDERS: BANK OF AMERICA, N. A.,
individually in its capacity as a
Lender and in its capacity as Agent
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
BANKATLANTIC
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
BANK LEUMI LE - ISRAEL B.M.,
MIAMI AGENCY
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
COMERICA BANK
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
BANKERS TRUST COMPANY
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
FLEET NATIONAL BANK
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
20
THE FUJI BANK, LIMITED
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
THE INDUSTRIAL BANK OF JAPAN LIMITED
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
MICHIGAN NATIONAL BANK
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
SCOTIABANC INC.
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
CREDIT LYONNAIS NEW YORK BRANCH
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
U.S. BANK NATIONAL ASSOCIATION
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
