EXHIBIT 10.16
REVOLVING CREDIT AGREEMENT
June 20, 0000
Xxxx Xxxxx & Xxxx Xxxxxx Xxxxxx
xx Xxxxxxxxx
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Ladies and Gentlemen:
Health Professionals of Wisconsin, Inc., a Wisconsin
corporation ("HPW") and University Community Clinics, Inc. a corporation
organized under Chapter 181 of the Wisconsin Statutes ("UCC"), each with its
principal offices located in the City of Madison, Wisconsin, (each of HPW and
UCC a "Borrower" and collectively, the "Borrowers"), hereby request that you
(the "Lender") agree to lend to the Borrowers the amount of $15 million (the
"Commitment") on the terms and conditions set forth below.
ARTICLE I
LOANS AND NOTES
1.1 REVOLVING CREDIT. From time to time prior to the earlier
termination in full of the Commitment (the "Termination Date"), the Borrowers
may obtain loans from the Lender, up to the amount of the aggregate outstanding
Commitment, repay such loans and reborrow hereunder. All such loans shall be in
multiples of $10,000, and shall be evidenced by a single promissory note of the
Borrowers (the "Note") in the form of Exhibit A annexed hereto. The Note shall
be executed by the Borrowers and delivered to the Lender prior to the initial
loan. Although the Note shall be expressed to be payable in the full amount
specified above, the Borrowers shall be obligated, on a joint and several basis,
to pay only the amounts actually disbursed to or for the account of the
Borrowers, together with interest on the unpaid balance of sums so disbursed
which remains outstanding from time to time, at the rates and on the dates
specified in the Note.
1.2 USE OF PROCEEDS. The Borrowers represent, warrant and
agree that the proceeds of the loans made hereunder will be used solely to
expand and operate the regional provider network of the Borrowers. However, the
Borrowers shall not use any proceeds of the loan made hereunder to fund the
obligation of University Health Care, Inc., a corporation organized under
Chapter 181 of the Wisconsin Statutes ("UHC"), to invest $10 million as set
forth in Section 4.1H of the Amended and Restated Joint Venture Agreement, dated
as of October 31, 1994, between UHC, the Lender and certain of their respective
affiliates (the "Joint Venture Agreement").
1.3 OPTIONAL PREPAYMENT. The Note may be prepaid in whole or
in part at the option of any Borrower at any time without premium or penalty.
All prepayments shall be accompanied by interest accrued on the amount prepaid
through the date of prepayment.
1.4 MANDATORY PREPAYMENT. (a) In the event that the joint
venture created pursuant to the Joint Venture Agreement is terminated or UHC
exercises its option to repurchase the U-Care Business as set forth in the Joint
Venture Agreement, then (i) the Commitment shall immediately terminate, and (ii)
the Borrowers shall immediately pay the then unpaid principal amount of the
Note, together with accrued interest thereon.
(b) Section 1.4(a) shall not apply to a termination caused by
a breach by the Lender of the Joint Venture Agreement or a termination at or
after the initial l0-year term of the Joint Venture Agreement (other than in
connection with the repurchase by UHC of the U-Care Business as set forth in the
Joint Venture Agreement). In the event of such a termination, (i) the Commitment
shall immediately terminate and (ii) the Borrowers shall execute and deliver to
the Lender a new note in the form of Exhibit A-2 hereto (the "Term Note")
providing for the repayment of all amounts outstanding under this Agreement in
twelve (12) equal monthly installments of principal, plus accrued interest,
which shall commence thirty (30) days after the date of such termination,
whereupon the Note shall be canceled. Upon execution of the Term Note, all
references in this Agreement (except Section 1.1, this Section 1.4 and Section
1.5) and the Collateral Documents to the Note shall be deemed to refer instead
to the Term Note.
1.5 COMPUTATIONS: NON-BUSINESS DAYS. Interest payable on the
Note shall be computed for the actual number of days elapsed using a daily rate
determined by dividing the annual rate by 360. Whenever any payment to be made
under the Note shall be stated to be due on a Saturday, Sunday or a public
holiday under the laws of the State of Wisconsin, such payment may be made on
the next succeeding business day, and such extension of time shall be included
in the computation of interest under the Note.
1.6 NATURE OF OBLIGATION.
Notwithstanding anything in this Agreement to the
contrary, the obligations and liabilities of the Borrowers that arise out of or
relate to this Agreement including, without limitation, the Note shall be joint
and several, and absolute and unconditional, regardless of the liability of any
other Borrower. Each Borrower acknowledges that the Lender has not made any
representations or warranties regarding the financial condition of any other
Borrower or the value of any collateral. Each of the Borrowers hereby waive
presentment, demand, notice of dishonor and protest.
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ARTICLE II
CONDITIONS OF BORROWING
Without limiting any of the other terms of this Agreement, the
Lender shall not be required to make any loan to the Borrowers hereunder:
2.1 REPRESENTATIONS. Unless the representations and warranties
contained in Article III hereof continue to be true and correct on the date of
such loan; no Event of Default hereunder shall have occurred and be continuing,
and no condition or event shall exist or have occurred which with the passage of
time, the giving of notice or both would constitute an Event of Default
hereunder; and at least five (5) business days prior to the date of each loan
the Lender shall have received a written request therefor in the form of Exhibit
B annexed hereto.
2.2 SECURITY AGREEMENTS. Unless prior to the initial loan UHC,
HPW, and UCC shall have executed and delivered to the Lender the security
agreements in the form attached hereto as Exhibits C-l, C-2, and C-3,
respectively (the "Security Agreements"), and financing statements, in form
satisfactory to the Lender, covering the collateral described in the Security
Agreements.
2.3 COLLATERAL PLEDGE AGREEMENT. Unless prior to the initial
loan UCC shall have executed and delivered to the Lender a collateral pledge
agreement in the form attached hereto as Exhibit D (the "Collateral Pledge
Agreement").
2.4 MORTGAGES. Unless prior to the initial loan HPW shall have
executed and delivered to the Lender the mortgages in the form attached hereto
as Exhibits E-l through E-6, respectively (the "Mortgages") and such Mortgages
have been duly recorded.
2.5 FILINGS. Unless any documents (including, without
limitation, financing statements) required to be filed, registered or recorded
in order to create, in favor of the Lender, perfected security interests in the
collateral in the jurisdictions listed on Schedule 1 to each of the Security
Agreements shall have been properly filed, registered or recorded in each office
in each such jurisdiction which such filings, registrations and recordations are
required; the Lender shall have received acknowledgment copies of all such
filings, registrations and recordations stamped by the appropriate filing,
registration or recording officer (or, in lieu thereof, other evidence
satisfactory to the Lender that all such filings, registrations and recordations
have been made); and the Lender shall have received such evidence as it may deem
satisfactory that all necessary filing, recording and other similar fees, and
all taxes and other expenses related to such filings, registrations and
recordings have been paid in full.
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2.6 PRIORITY. Unless the Lender shall have received, in form
and substance satisfactory to the Lender, such lien searches, title insurance
policies and other evidence of lien priority covering the Mortgages and Security
Agreements granted to the Lender hereunder.
2.7 INSURANCE CERTIFICATE. Unless prior to the initial loan
the Lender shall have received evidence satisfactory to it that the Borrowers
maintain hazard and liability insurance coverage reasonably satisfactory to the
Lender.
2.8 JOINT VENTURE DOCUMENTS. Unless the Joint Venture
Documents (as defined in the Joint Venture Agreement) shall be in full force and
effect and neither UHC nor the Borrowers shall have breached any of their
respective obligations under any of the Joint Venture Documents in any material
respect.
2.9 COUNSEL OPINION. Unless prior to the initial loan the
Lender shall have received from its counsel and from Borrowers counsel,
satisfactory opinions as to such matters relating to the Borrowers, the validity
and enforceability of this Agreement, the loans to be made hereunder and the
other documents required by this Article II as the Lender shall reasonably
require. The Borrowers shall execute and/or deliver to the Lender or its counsel
such documents concerning their respective corporate status and the
authorization of such transactions as may be requested.
2.10 PROCEEDINGS SATISFACTORY. Unless all proceedings taken in
connection with the transactions contemplated by this Agreement, and all
instruments, authorizations and other documents applicable thereto, shall be
reasonably satisfactory in form and substance to the Lender and its counsel.
2.11 ENVIRONMENTAL AUDIT. Unless the Borrower permits, at the
request of the Lender and at the Lender's expense, an Environmental Audit solely
for the benefit of the Lender, to be conducted by the Lender or an independent
agent selected by the Lender and which may not be relied upon by any of the
Borrowers for any purpose. This provision shall not relieve the Borrowers from
conducting their own Environmental Audits or taking any other steps necessary to
comply with Environmental Laws.
2.12 GUARANTY. Unless UHC shall have executed and delivered to
the Lender a guaranty in the form of Exhibit F annexed hereto.
2.13 INVESTMENT BY UHC. Unless UHC shall have invested in
either Borrower in accordance with Section 4.10H of the Joint Venture Agreement
an amount equal to at least two-thirds of the aggregate loans outstanding under
this Agreement after giving effect to the requested borrowing.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
In order to induce the Lender to make the loans as provided
herein, each of the Borrowers jointly and severally represent and warrant to the
Lender as follows:
3.1 ORGANIZATION. HPW is a corporation duly organized and
existing in good standing under Chapter 180 of the Wisconsin Statutes. UCC is a
corporation duly organized and existing in good standing under Chapter 181 of
the Wisconsin Statutes. Each Borrower has all requisite power and authority,
corporate or otherwise, to conduct its business and to own its properties. Each
Borrower is duly licensed or qualified to do business in all jurisdictions in
which such qualification is required, and failure to so qualify could reasonably
be expected to have a material adverse effect on the property, financial
condition or business operations of such Borrower.
3.2 AUTHORITY. The execution, delivery and performance of this
Agreement, the Note and the documents required by Article II to which any
Borrower is a party are within the corporate powers of each Borrower, have been
duly authorized by all necessary corporate and other action and do not and will
not (i) require any consent or approval of the stockholders or members of any
Borrower, (ii) violate any provision of the articles of incorporation or bylaws
of any Borrower or of any law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award presently in effect having
applicability to any Borrower; (iii) require the consent or approval of, or
filing or registration with, any governmental body, agency or authority; or (iv)
result in a breach of or constitute a default under, or result in the imposition
of any lien, charge or encumbrance upon any property of any Borrower pursuant
to, any indenture or other agreement or instrument under which any Borrower is a
party or by which it or its properties may be bound or affected, except as
contemplated by the documents attached as Exhibits X-x, X-0, X-0, X, X-x, X-0,
and F hereto (the "Collateral Documents") and as set forth in Section 3.1.C of
the Joint Venture Agreement. This Agreement constitutes, and the Note and each
of the documents required by Article II to which the Borrower is a party, when
executed and delivered hereunder, will constitute, legal, valid and binding
obligations of the Borrowers or other signatory enforceable in accordance with
its terms, except as such enforceability may be limited by bankruptcy or similar
laws affecting the enforceability of creditors' rights generally and by general
principles of equity.
3.3 EMPLOYEE RETIREMENT INCOME SECURITY ACT. All Plans are in
compliance in all material respects with the applicable provisions of ERISA. No
Borrower has incurred any material "accumulated funding deficiency" within the
meaning of section
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302(a)(2) of ERISA in connection with any Plan. There has been no Reportable
Event for any Plan, the occurrence of which would have a materially adverse
effect on any Borrower, nor has any Borrower incurred any material liability to
the Pension Benefit Guaranty Corporation under section 4062 of ERISA in
connection with any Plan. The Unfunded Liabilities of all Plans do not in the
aggregate exceed $247,538.
3.4 FINANCIAL STATEMENTS. The balance sheet of each Borrower
and UHC as of December 31, 1996, and the statement of profit and loss and
surplus of each Borrower and UHC for the year ended on that date, heretofore
furnished to the Lender, are correct and complete and truly represent the
financial condition of UHC and each Borrower as of such date, and the results of
its operations for the fiscal year ended on that date. Since such date there has
been no material adverse change in the property, financial condition or business
operations of UHC or either Borrower.
3.5 LIENS. Each Borrower has good and marketable title to all
of its assets, real and personal, free and clear of all liens, security
interests, mortgages and encumbrances of any kind, except Permitted Liens. All
owned and leased buildings and equipment of any Borrower are in good condition,
repair and working order in all material respects and, to the best of the
Borrowers' knowledge and belief, conform in all material respects to all
applicable laws, regulations and ordinances.
3.6 CONTINGENT LIABILITIES. No Borrower has any guarantees or
other contingent liabilities outstanding (including, without limitation,
liabilities by way of agreement, contingent or otherwise, to purchase, to
provide funds for payment, to supply funds to or otherwise invest in the debtor
or otherwise to assure the creditor against loss), except those permitted by
Section 4.7 hereof.
3.7 TAXES. No Borrower has any material outstanding unpaid tax
liability (except for taxes which are currently accruing from current operations
and ownership of property, which are not delinquent), and no tax deficiencies
have been proposed or assessed against any Borrower.
3.8 ABSENCE OF LITIGATION. No Borrower is a party to any
litigation or administrative proceeding, nor so far as is known by any Borrower
is any litigation or administrative proceeding threatened against any Borrower,
which in either case (i) relates to the execution, delivery or performance of
this Agreement, the Note, any of the Collateral Documents, or any of the Joint
Venture Documents or (ii) could, if adversely determined, reasonably be expected
to have a material adverse effect on its property, financial condition or
business operations.
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3.9 ABSENCE OF DEFAULT. No event has occurred which either of
itself or with the lapse of time or the giving of notice or both, would give any
creditor of any Borrower the right to accelerate the maturity of any material
indebtedness of any Borrower for borrowed money. No Borrower is in default under
any other lease, agreement or instrument, or any law, rule, regulation, order,
writ, injunction, decree, determination or award, noncompliance with which could
reasonably be expected to have a material adverse effect on its property,
financial condition or business operations.
3.10 NO BURDENSOME AGREEMENTS. No Borrower is a party to any
agreement, instrument or undertaking (i) which materially adversely affects the
property, financial condition or business operations of such Borrower, or (ii)
which will give rise to a lien upon any of its properties securing indebtedness
either upon demand or upon the happening of a condition, with or without such
demand, except as disclosed in writing to the Lender.
3.11 TRADEMARKS, ETC. Each Borrower possesses adequate
trademarks, trade names, copyrights, patents, permits, service marks and
licenses, or rights thereto, for the present and planned future conduct of its
business substantially as now conducted, without any known conflict with the
rights of others which could reasonably be expected to have a material adverse
effect on any Borrower.
3.12 LEASES. No Borrower is a party to any lease or similar
arrangement, except those permitted by Section 4.8 hereof.
3.13 PARTNERSHIPS: JOINT VENTURES. Except as set forth in the
Joint Venture Documents and as disclosed in writing to the Lender, neither
Borrower is a member of any partnership or joint venture.
3.14 FULL DISCLOSURE. No information, exhibit or report
furnished by UHC or either Borrower to the Lender in connection with the
negotiation or execution of this Agreement or the Joint Venture Documents
(including, without limitation, the list of assets pledged under the Collateral
Documents) contained any material misstatement of fact as of the date when made
or omitted to state a material fact or any fact necessary to make the statements
contained therein not misleading as of the date when made.
3.15 DUMP SITES. With respect to the period during which any
Borrower owned or occupied its real estate, and to the knowledge of any Borrower
after reasonable investigation, with respect to the time before any Borrower
owned or occupied their real estate, no person or entity has caused or permitted
materials to be stored, deposited, treated, recycled or disposed of on, under or
at any real estate owned or occupied by any Borrower, which
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materials, if known to be present, would require cleanup, removal or some other
remedial action under Environmental Laws.
3.16 OTHER ENVIRONMENTAL CONDITIONS. To the knowledge of each
Borrower after reasonable investigation, there are no conditions existing
currently or likely to exist during the term of any Note which would subject any
Borrower to material damages, penalties, injunctive relief or cleanup costs
under any Environmental Laws or which require or are likely to require material
cleanup, removal, remedial action or other response pursuant to Environmental
Laws by any Borrower.
3.17 ENVIRONMENTAL JUDGMENTS, DECREES AND ORDERS. No Borrower
is subject to any judgment, decree, order or citation related to or arising out
of Environmental Laws and has not been named or listed as a potentially
responsible party by any governmental body or agency in a matter arising under
any Environmental Laws.
3.18 ENVIRONMENTAL PERMITS AND LICENSES. Each Borrower shall
permits, licenses and approvals required under Environmental Laws.
3.19 STATUS. Health Professionals, Inc., a corporation
organized under Chapter 181 of the Wisconsin Statutes, changed its name to
University Community Clinics, Inc. effective July 10, 1995. U-Care HMO, Inc.
dissolved and wound up its affairs effective December 31, 1995. Except as
provided in the previous two sentences, the Articles of Incorporation and Bylaws
of the Borrower and its Affiliates have not changed in a manner adverse to the
interest of Borrower since November 1, 1994, and the ownership or membership of
such entities has not changed since such date.
ARTICLE IV
NEGATIVE COVENANTS
While any part of the credit granted to the Borrowers is
available and while any part of the principal of or interest on the Note remains
unpaid, no Borrower shall do any of the following, without the prior written
consent of the Lender:
4.1 RESTRICTION OF INDEBTEDNESS. Create, incur, assume or have
outstanding any indebtedness for borrowed money or the deferred purchase price
of any asset (including obligations under Capitalized Leases), except:
(a) the Note issued under this Agreement;
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(b) indebtedness incurred in the usual course of business up
to $l,000,000 in the aggregate for the Borrowers collectively;
(c) indebtedness secured by liens described in Section
7.l(f)(iv); and
(d) indebtedness owed the Lender.
4.2 AMENDMENTS AND PREPAYMENTS. Agree to any amendment,
modification or supplement, or obtain any waiver or consent in respect of
compliance with any of the terms of, or call or redeem, or make any purchase or
prepayment of or with respect to, any instrument or agreement evidencing or
relating to any indebtedness for borrowed money or for the deferred purchase
price of any asset including Capitalized Leases.
4.3 RESTRICTION ON LIENS. Create or permit to be created or
allow to exist any mortgage, pledge, encumbrance or other lien upon or security
interest in any property or asset now owned or hereafter acquired by any
Borrower, except Permitted Liens.
4.4 ACQUISITIONS AND INVESTMENTS. Acquire any other business
or make any loan, advance or extension of credit to, or investment in, any
other person, corporation or other entity, including investments acquired in
exchange for stock or other securities or obligations of any nature, or create
or participate in the creation of any subsidiary, except:
(a) investments in (i) bank repurchase agreements; (ii)
savings accounts or certificates of deposit in a financial institution
of recognized standing; (iii) obligations issued or fully guaranteed by
the United States; and (iv) prime commercial paper maturing within 90
days of the date of acquisition by a Borrower;
(b) loans and advances made to employees and agents in the
ordinary course of business, such as travel and entertainment advances
and similar items;
(c) investments outstanding on the date of this Agreement and
disclosed to Lender, provided that such investments shall not be
increased;
(d) investments expressly permitted pursuant to the Joint
Venture Documents;
(e) investments in clinics owned and operated by UCC on the
date hereof and disclosed to Lender; and
(f) investments in another Borrower.
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4.5 LIQUIDATION; MERGER; DISPOSITION OF ASSETS. Liquidate or
dissolve; or merge with or into or consolidate with or into any other
corporation or entity; or sell, lease, transfer or otherwise dispose of all or
any substantial part of its property, assets or business (other than sales made
in the ordinary course of business).
4.6 ACCOUNTS RECEIVABLE. Discount or sell with recourse, or
sell for less than the face amount thereof, any of its notes or accounts
receivable, whether now owned or hereafter acquired except for physician
xxxxxxxx that are past due by 180 days or more.
4.7 CONTINGENT LIABILITIES. Guarantee or become a surety or
otherwise contingently liable (including, without limitation, liable by way of
agreement, contingent or otherwise, to purchase, to provide funds for payment,
to supply funds to or otherwise invest in the debtor or otherwise to assure the
creditor against loss) for any obligations of others, except pursuant to the
deposit and collection of checks and similar items in the ordinary course of
business. This Section 4.7 shall not apply to transactions permitted under this
Agreement or the Joint Venture Documents.
4.8 LEASES. Incur or permit to be outstanding lease or rental
obligations as lessee of real or personal property under leases which are not
Capitalized Leases, exceeding in the aggregate $l,000,000 for the Borrowers
collectively in total lease payments per year and including leases existing on
the date hereof and extensions or renewals thereof.
4.9 FIXED ASSET EXPENDITURE. Expend sums for the acquisition
(including acquisition under capitalized Leases) of fixed assets (excluding real
property) in any one fiscal year exceeding in the aggregate $2,000,000 for the
Borrowers collectively.
4.10 PARTNERSHIPS; JOINT VENTURES. Except as is consistent
with the Joint Venture Documents, become a member of any partnership or joint
venture.
4.11 ASSET TRANSFER. Without limiting the generality of any
provision of this Agreement or any Collateral Document, sell, assign, transfer,
convey, grant a security interest or mortgage in, or pledge any of its property
or assets (whether real or personal) to UHC or any other Affiliate (other than
another Borrower).
4.12 ASSET DISCLOSURE. Attached hereto as Exhibit G is a true,
correct and complete list of all of the assets and property (real and personal)
owned by the Borrowers (excluding only trademarks and leasehold interests under
leases in which a Borrower is a lessee). Upon the execution and delivery of the
Collateral
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Documents, the filing of the financing statements referred to in Section 2.5,
and the proper recordation of the Mortgages, Lender shall obtain (i) a
perfected, first priority security interest in and to all of the Borrowers'
personal property (excluding only trademarks and leasehold interests under
leases in which a Borrower is a lessee) and (ii) a first priority mortgage on
the real property owned by the Borrowers identified in the Mortgages; provided,
however, that the priority of the Mortgages is subject to the existing mortgages
recorded against such property as reflected in the title searches that the
Borrowers have provided to the Lender.
ARTICLE V
AFFIRMATIVE COVENANTS
While any part of the credit granted to the Borrowers is
available and while any part of the principal of or interest on any Note remains
unpaid, and unless waived in writing by the Lender, each Borrower shall:
5.1 INSURANCE. Maintain insurance in such amounts and against
such risks as is customary by companies engaged in the same or similar
businesses and similarly situated. Each Borrower shall at all times retain all
the incidents of ownership of such insurance and shall not borrow upon or
otherwise impair its right to receive the proceeds of such insurance.
5.2 CORPORATE EXISTENCE; OBLIGATIONS. Do all things necessary
to: (i) maintain its corporate existence and all rights and franchises necessary
or desirable for the conduct of its business; (ii) comply with all applicable
laws, rules, regulations ordinances, and all restrictions imposed by
governmental authorities including those relating to environmental standards and
controls except where the failure to comply would not have a material adverse
effect on the Borrower; and (iii) pay, before the same become delinquent and
before penalties accrue thereon, all taxes, assessments and other governmental
charges against it or its property, and all of its other liabilities, except to
the extent and so long as the same are being contested in good faith by
appropriate proceedings in such manner as not to cause any material adverse
effect upon its property, financial condition or business operations, with
adequate reserves provided for such payments.
5.3 BUSINESS ACTIVITIES. Continue to carry on its business
activities in substantially the manner such activities are conducted on the date
of this Agreement and not make any material change in the direction of its
business except as contemplated by the Joint Venture Documents.
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5.4 PROPERTIES. Keep its properties (whether owned or leased)
in good condition, repair and working order, ordinary wear and tear and
obsolescence excepted, and make or cause to be made from time to time all
necessary repairs thereto (including external or structural repairs) and
renewals and replacements thereof.
5.5 ACCOUNTING RECORDS; REPORTS. Maintain a standard and
modern system for accounting in accordance with generally accepted principles of
accounting consistently applied throughout all accounting periods and consistent
with those applied in the preparation of the financial statements referred to in
Section 3.4; and furnish to the Lender such information respecting the business,
assets and financial condition of each Borrower as the Lender may reasonably
request and, without request, furnish to the Lender:
(a) Within 45 days after the end of each of the first three
quarters of each fiscal year of each Borrower (i) a balance sheet of
each Borrower as of the close of such quarter and of the comparable
quarter in the preceding fiscal year; and (ii) statements of income and
surplus of each Borrower for such quarter and for that part of the
fiscal year ending with such quarter and for the corresponding periods
of the preceding fiscal year; all in reasonable detail and certified as
true and correct (subject to audit and normal year-end adjustments) by
the chief financial officer of each Borrower; and
(b) As soon as available, and in any event within 120 days
after the close of each fiscal year of each Borrower, a copy of the
audit report for such year and accompanying financial statements of
each Borrower, as prepared by independent public accountants of
recognized standing selected by each Borrower, which audit report shall
be accompanied by an opinion of such accountants, in customary form, to
the effect that the same fairly present the financial condition of each
Borrower and the results of its operations as of the relevant dates
thereof; together with copies of any management letters issued by such
accountants in connection with such audit; and
(c) As soon as available, copies of all financial reports or
materials submitted or distributed to shareholders or members of each
Borrower or filed with a governmental agency having regulatory
authority over any Borrower; and
(d) Promptly, and in any event within 10 days, after any
Borrower has knowledge thereof a statement of the chief financial
officer of such Borrower describing: (i) any event which, either of
itself or with the lapse
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of time or the giving of notice or both, would constitute a default
hereunder or under any other material agreement to which any Borrower
is a party, together with a statement of the actions which such
Borrower proposes to take with respect thereto; and (ii) any pending or
threatened litigation or administrative proceeding of the type
described in Section 3.8; and
(e) (i) Promptly, and in any event within 30 days, after any
Borrower knows that any Reportable Event with respect to any Plan has
occurred, a statement of the chief financial officer of such Borrower
setting forth details as to such Reportable Event and the action which
such Borrower proposes to take with respect thereto, together with a
copy of any notice of such Reportable Event given to the Pension
Benefit guaranty Corporation if a copy of such notice is available to
such Borrower, (ii) promptly after the filing thereof with the Internal
Revenue Service, copies of each annual report with respect to each Plan
administered by any Borrower and (iii) promptly after receipt thereof,
a copy of any notice (other than a notice of general application) any
Borrower may receive from the Pension Benefit Guaranty Corporation or
the Internal Revenue Service with respect to any Plan administered by
any Borrower.
5.6 INSPECTION OF RECORDS. Permit representatives of the
Lender to visit and inspect any of the properties and examine any of the books
and records of any Borrower at any reasonable time and as often as may be
reasonably desired.
5.7 NOTICE OF ACQUISITION. Notify the Lender of the
acquisition by either Borrower of any property (including, without limitation,
any real property, securities or instruments) in which the Lender will not
automatically obtain a first priority security interest pursuant to the Security
Agreements at least ten (10) business days prior to such acquisition, and take
whatever action the Lender may reasonably request to create a perfected, first
priority security interest, lien, pledge, or mortgage (as applicable) in favor
of the Lender in such property.
ARTICLE VI
DEFAULTS
6.1 DEFAULTS. The occurrence of any one or more of the
following events shall constitute an "Event of Default":
(a) The Borrowers shall fail to pay (i) any interest due on
the Note, or any other amount payable hereunder (other than a principal
payment on the Note) by
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five business days after the same becomes due; or (ii) any principal
amount due on any Note when due;
(b) Any Borrower shall default in the performance or
observance of any agreement, covenant, condition, provision or term
contained in Article IV or Section 5.1 of this Agreement;
(c) Any Borrower or other signatory other than the Lender
shall default in the performance or observance of any of the other
agreements, covenants, conditions, provisions or terms in this
Agreement, the Note or any of the Collateral Documents continuing for a
period of 30 days after written notice thereof is given to such
Borrower by the Lender;
(d) Any representation or warranty made by UHC or either
Borrower hereunder or by UHC or either Borrower in any of the
Collateral Documents, or any certificate delivered pursuant hereto or
thereto, or any financial statement delivered to the Lender hereunder
or thereunder, shall prove to have been false in any material respect
as of the time when made or given;
(e) Any Borrower or any of their respective Affiliates shall
default in the performance or observance of any of the agreements,
covenants, conditions, provisions or terms in the Joint Venture
Agreement which shall be determined to be a material breach
constituting a default for which the remedy sought and obtained is
termination of the Joint Venture Agreement;
(f) UHC or either Borrower shall fail to pay as and when due
and payable (whether at maturity, by acceleration or otherwise) all or
any part of the principal of or interest on any indebtedness of or
assumed by it, or of the rentals due under any lease or sublease, or of
any other obligation for the payment of money, and such default shall
not be cured within the period or periods of grace, if any, specified
in the instruments governing such obligations; or default shall occur
under any evidence of, or any indenture, lease, sublease, agreement or
other instrument governing such obligations, and such default shall
continue for a period of time sufficient to permit the acceleration of
the maturity of any such indebtedness or other obligation or the
termination of such lease or sublease and, with respect to any such
indebtedness, obligation, lease or sublease, the aggregate amount owing
shall exceed $100,000;
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(g) A final judgment which, together with other outstanding
final judgments against UHC or either Borrower exceeds an aggregate of
$100,000 shall be entered against any Borrower or UHC and shall remain
outstanding and unsatisfied, unbonded, unstayed or uninsured after 60
days from the date of entry thereof;
(h) UHC or either Borrower shall: (i) become insolvent; or
(ii) be unable, or admit in writing its inability to pay its debts as
they mature; or (iii) make a general assignment for the benefit of
creditors or to an agent authorized to liquidate any substantial amount
of its property; or (iv) become the subject of an "order for relief"
within the meaning of the United States Bankruptcy Code; or (v) become
the subject of a creditor's petition for liquidation, reorganization or
to effect a plan or other arrangement with creditors; or (vi) apply to
a court for the appointment of a custodian or receiver for any of its
assets; or (vii) have a custodian or receiver appointed for any of its
assets (with or without its consent); or (viii) otherwise become the
subject of any insolvency proceedings or propose or enter into any
formal or informal composition or arrangement with its creditors;
(i) This Agreement, the Note, any Collateral Document, or any
Joint Venture Document shall, at any time after their respective
execution and delivery, and for any reason, cease to be in full force
and effect or be declared null and void, or be revoked or terminated,
or the validity or enforceability thereof or hereof shall be contested
by any Borrower, any shareholder or member of any Borrower, or any of
their respective Affiliates or any Borrower or any of their respective
Affiliates shall deny that it has any or further liability or
obligation thereunder or hereunder, as the case may be; or
(j) Any Reportable Event, which the Lender determines in good
faith to constitute grounds for the termination of any Plan by the
Pension Benefit Guaranty Corporation or for the appointment by the
appropriate united States District Court of a trustee to administer any
Plan, shall have occurred, or any Plan shall be terminated within the
meaning of Title IV of ERISA, or a trustee shall be appointed by the
appropriate United States District Court to administer any Plan, or the
Pension Benefit Guaranty Corporation shall institute proceedings to
terminate any Plan or to appoint a trustee to administer any Plan, and
in case of any event described in the preceding provisions of this
Section 6.1(j) the aggregate amount of any Borrower's liability to the
Pension Benefit Guaranty Corporation under ERISA
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shall exceed $100,000 and such liability is not covered, for the
benefit of any Borrower, by insurance.
(k) A default or an Event of Default shall have occurred under
the Term Loan Agreement between Lender and UHC dated as of June 20,
1997.
6.2 TERMINATION OF COMMITMENT AND ACCELERATION OF OBLIGATIONS.
Upon the occurrence of any Event of Default:
(a) As to any Event of Default (other than an Event of Default
under Section 6.1(h)) and at any time thereafter, and in each case, the
Lender may, by written notice to any Borrower, immediately terminate
its obligation to make loans hereunder and/or declare the unpaid
principal balance of the Note, together with all interest accrued
thereon, to be immediately due and payable; and the unpaid principal
balance of and accrued interest on the Note shall thereupon be due and
payable without further notice of any kind, all of which are hereby
waived, and notwithstanding anything to the contrary herein or in the
Note contained;
(b) As to any Event of Default under Section 6.1(h), the
obligation of the Lender to make loans hereunder shall immediately
terminate and the unpaid principal balance of the Note, together with
all interest accrued thereon, shall immediately and forthwith be due
and payable, all without presentment, demand, protest, or further
notice of any kind, all of which are hereby waived, notwithstanding
anything to the contrary herein or in the Note contained; and
(c) As to each Event of Default, the Lender shall have all the
remedies for default provided by the Collateral Documents, as well as
applicable law.
ARTICLE VII
MISCELLANEOUS
7.1 DEFINITIONS. Except as otherwise provided, all accounting
terms shall be construed in accordance with generally accepted accounting
principles consistently applied and consistent with those applied in the
preparation of the financial statements referred to in Section 3.4, and
financial data submitted pursuant to this Agreement shall be prepared in
accordance with such principles. As used herein:
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(a) the term "Affiliate" means any person, firm or
corporation, which, directly or indirectly, controls, is controlled by,
or is under common control with, any Borrower, including, without
limitation, UHC and the University Affiliated Entities (as defined in
the Joint Venture Agreement).
(b) the term "Capitalized Lease" means any lease which is
capitalized on the books of the lessee, or should be so capitalized
under generally accepted accounting principles.
(c) the term "Environmental Audit" means a review for the
purpose of determining whether any Borrower complies with Environmental
Laws and whether there exists any condition or circumstance which
requires or will require a cleanup, removal, or other remedial action
under Environmental Laws on the part of any Borrower including, but not
limited to, some or all of the following:
(i) on site inspection including review of site
geology, hydrogeology, demography, land use and population;
(ii) taking and analyzing soil borings and installing
ground water monitoring xxxxx and analyzing samples taken from
such xxxxx;
(iii) taking and analyzing of air samples and testing
of underground tanks;
(iv) reviewing plant permits, compliance records and
regulatory correspondence, and interviewing enforcement staff
at regulatory agencies;
(v) reviewing the Borrower's operations, procedures
and documentation; and
(vi) interviewing past and present employees of any
Borrower.
(d) the term "Environmental Laws" means all federal, state and
local laws including statutes, regulations, ordinances, codes, rules
and other governmental restrictions and requirements relating to the
discharge of air pollutants, water pollutants or process waste water or
otherwise relating to the environment or hazardous substances
including, but not limited to, the Federal Solid Waste Disposal Act,
the Federal Clean Air Act, the Federal Clean Water Act, the
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Federal Resource Conservation and Recover Act of 1976, the Federal
Comprehensive Environmental Responsibility Cleanup and Liability Act of
1980, regulations of the Environmental Protection Agency, regulations
of the Nuclear Regulatory Agency, and regulations of any state
department of natural resources or state environmental protection
agency now or at any time hereafter in effect.
(e) the term "ERISA" means the Employee Retirement Income
Security Act of 1974, as the same may be in effect from time to time.
(f) the term "Permitted Liens" means:
(i) liens outstanding on the date of this Agreement;
(ii) liens for taxes, assessments or governmental
charges, and liens incident to construction, which are either
not delinquent or are being contested in good faith by the
Borrower by appropriate proceedings which will prevent
foreclosure of such liens, and against which adequate reserves
have been provided; and easements, restrictionist minor title
irregularities and similar matters which have no adverse
effect as a practical matter upon the ownership and use of the
affected property by any Borrower;
(iii) liens or deposits in connection with worker's
compensation or other insurance or to secure customs' duties,
public or statutory obligations in lieu of surety, stay or
appeal bonds, or to secure performance of contracts or bids
(other than contracts for the payment of money borrowed), or
deposits required by law or governmental regulations or by any
court order, decree, judgment or rule as a condition to the
transaction of business or the exercise of any right,
privilege or license; or other liens or deposits of a like
nature made in the ordinary course of business;
(iv) purchase money liens, including mortgages on
real property and cross collateralization of mortgages on real
property owned by Borrowers on the date hereof and subject to
a mortgage on the date hereof in favor of the lender that
holds such mortgage, on property acquired in the ordinary
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course of business, to finance or secure a portion of the
purchase price thereof, and liens on property acquired
existing at the time of acquisition; provided that in each
case such lien shall be limited to the property so acquired
and the liability secured by such lien does not exceed either
the purchase price or the fair market value of the asset
acquired;
(v) liens required by this Agreement as security for
the Notes; and
(vi) liens on physician receivables that fund
deferred compensation arrangements entered into in connection
with the acquisition of physician practices.
(g) the term "Plan" means any employee pension benefit plan
subject to Title IV of ERISA maintained by any Borrower or any member
of the Controlled Group, or any such plan to which any Borrower or any
member of the Controlled Group is required to contribute on behalf of
any of its employees.
(h) the term "Reportable Event" means a reportable event as
that term is defined in Title IV of ERISA.
(i) the term "Unfunded Liabilities" means, with regard to any
Plan, the excess of the current value of the Plan's benefits guaranteed
under ERISA over the current value of the Plan's assets allocable to
such benefits.
7.2 EXPENSES; INDEMNITY. The Borrowers shall pay, or reimburse
the Lender for all reasonable out-of-pocket costs and expenses (including,
without limitation, reasonable attorneys' fees and expenses) paid or incurred by
the Lender in connection with the preparation, execution, delivery and
enforcement of this Agreement, the Note, the Collateral Documents, and any other
document required hereunder or thereunder, including without limitation any
amendment, supplement, modification or waiver of or to any of the foregoing.
7.3 SUCCESSORS. Lender may not assign or transfer the Note
without the prior written consent of the Borrowers, except to an entity a
majority of the outstanding voting stock of which is owned, directly or
indirectly, by the Lender. Upon such consent, the provisions of this Agreement
shall inure to the benefit of any holder of the Note. The provisions of this
Note shall inure to the benefit of and be binding upon any successor to any of
the parties hereto.
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7.4 ENFORCEMENT. No delay on the part of the Lender or holder
of the Note in exercising any right, power or privilege hereunder shall operate
as a waiver thereof nor shall any single or partial exercise of any right, power
or privilege hereunder preclude other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
specified are cumulative and are not exclusive of any rights or remedies which
the Lender or the holder of the Note would otherwise have.
7.5 SURVIVAL. All agreements, representations and warranties
made herein shall survive the execution of this Agreement, the making of the
loans hereunder and the execution and delivery of the Note.
7.6 WISCONSIN LAW. This Agreement and the Notes issued
hereunder shall be governed by and construed in accordance with the internal
laws of the State of Wisconsin, except to the extent superseded by federal law.
7.7 COUNTERPARTS. This Agreement may be signed in any number
of counterparts with the same effect as if the signatures thereto and hereto
were upon the same instrument.
7.8 NOTICES. All communications or notices required under
this Agreement shall be deemed to have been given on the date when deposited in
the United States mail, postage prepaid, and addressed as follows (unless and
until any of such parties advises the other in writing of a change in such
address): (a) if to any Borrower, with the full name and address of such
Borrower as shown on this Agreement below; and (b) if to the Lender with the
full name and address of the Lender as shown on this Agreement above, to the
attention of the officer of the Lender executing the form of acceptance of this
Agreement.
7.9 ENTIRE AGREEMENT: NO AGENCY. This Agreement and the other
documents referred to herein contain the entire agreement between the Lender and
the Borrowers with respect to the subject matter hereof, superseding all
previous communications and negotiations, and no representation, undertaking,
promise or condition concerning the subject matter hereof shall be binding upon
the Lender unless clearly expressed in this Agreement or in the other documents
referred to herein. Nothing in this Agreement or in the other documents referred
to herein and no action taken pursuant hereto shall cause the Borrower to be
treated as an agent of the Lender, or shall be deemed to constitute the Lender
and the Borrowers a partnership, association, joint venture or other entity.
7.10 AMENDMENT AND RESTATEMENT OF CREDIT AGREEMENT. Subject to
all the terms and conditions hereof, the Revolving Credit Agreement between
Lender and HPW dated November 1, 1994
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("Existing Credit Agreement") is hereby amended and restated to read in its
entirety as set forth in this Agreement, effective as of the date on which the
conditions set forth in Article II hereof are satisfied. All loans made pursuant
to the Existing Credit Agreement as amended and restated hereby (including the
unpaid balance of the note issued pursuant to the Existing Credit Agreement
("Existing Notes")) shall be evidenced by the Note. Accrued interest on the
Existing Note shall be paid on the first interest payment date set forth in the
Note.
If the foregoing is satisfactory to you, please sign the form
of acceptance below and return a signed counterpart hereof to the Borrowers,
whereupon this Agreement will evidence a binding agreement between the Lender
and the Borrowers.
Very truly yours,
HEALTH PROFESSIONALS OF WISCONSIN,
INC.
Address: 000 Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
By: /s/ Xxxxx X. Xxxxxxxxx
--------------------------------
President
UNIVERSITY COMMUNITY CLINICS
Address: 000 Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
By: /s/ Xxxxx X. Xxxxxxxxx
--------------------------------
President
The foregoing Agreement is hereby confirmed and accepted as of
the date thereof.
BLUE CROSS & BLUE SHIELD UNITED OF
WISCONSIN
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Title: Vice President & Treasurer
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