1
Ex-10.109
AMENDED AND RESTATED CREDIT AGREEMENT
Dated a' of October 229 1997
by and among
HEALTHCARE COMPARE CORP.,
as Borrower
LASALLE NATIONAL BANK
as Administrabve Agent, Issuing Bank and Lender,
FIRST CHICAGO CAP1IAL MARKETS, INC.
as Syndication Agent
a~d
THE OTHER [INANCIAL INSTITUTIONS PARTY HERETO
as Lenders
TABLE OF CONTENTS
AR11CLE 1
DEFINITIONS
SECTTON 1.1 Defined Terms ...............
SECTION 1.2 Other Interpretive Provisions ....
SECTTON 1.3 Accounting Principles. . . . . . . . .
ARTICLE 2
TEIE CREDITS
SECTION 2.1 Amounts and Terms of Commitments ...
SECTTON 2.2 Note ..........................
SECTTON 2.3 Revolving Loan Accounts ......................
SECTTON 2.4 Procedure for Revolving Credit Borrowing .........
SECTTON 2.5 Conversion and Continuation Elections
SECTTON 2.6 Optional Prepavments ...................................
SECTTON 2.7 Final Pavment: Optional Reduction of Aggregate Commitment......
SECTION 2.8 Interest ...................................
SECTTON 2.9 Fees ......................................
SECTTON 2.10 Computation of Fees and Interest ...............
SECTTON 2.11 Pavments by the Borrower ....................
SECTTON 2.12 Payments by the Lenders to the Administrative Agent
SECTTON 2.13 Sharing of Pavments. Etc .......................
ARTICLE 3
TAXES. YIELD PROTECTION AND ILLEGALIr'
2
SECTION 3.1 Taxes .............................
SECTTON 3.2 Illegalitv . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 3.3 Increased Costs and Reduction of Return . .
SECTION 3.4 Funding Losses . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTTON 3.5 Inability to Determine Rates ............
XXXXXXX 0 6 Reserves on LIBOR Rate Revolving Loans
SECTTON 3.7 Certificates of Lenders ................
SECTTON 3.8 Replacement of Lenders ..................
SECTTON 3.9 Survival ..........................
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ARTICLE 4
C ONDITIO NS XXXXXXXXXX
0
XXXXXXX 0 0 Conditions of Initial Revolving Loans
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SECTTON 4 2 Conditions to All Borrowings and Issuances of Letters of Credit -35
SECTTON 4 3 Conditions to Effectiveness of Amendment and Restatement -36
ARIICIJE5
SECTTON 5 1 Corporate Existence and Power . XXXXXXX 0 0 XXXXXXX 0 0 XXXXXXX 0 0
XXXXXXX 0 5 SECTTON 5 6 XXXXXXX 0 0 XXXXXXX 0 0 XXXXXXX 5.9 SECTTON 5.10
XXXXXXX 0 00 XXXXXXX 0 00 XXXXXXX 0 13 SECTTON 5 14 XXXXXXX 0 00 XXXXXXX 0 00
XXXXXXX 0 17 SECTTON 5 18 XXXXXXX 0 00 XXXXXXX 0 00 XXXXXXX 0 21
AFFDRA1ATrVE CO\]ENANTS
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No Burdensome Restrictions ... -00
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Corporate Authorization: No Contravention
Governmental Authorization .
Binding Effect
Litigation
4
No Default
ERISA Compliance . ...........
Use of Proceeds: Margin Regulations . .
Title to Properties
Taxes
Financial Condition . . .
Environmental Matters ... ...
Regulated Entities . .. ..
Solvency
Labor Relations
Copvrights. Patents. Trademarks and Licenses. etc
Subsidiaries . .
Brokers' Fees: Transaction Fees
Insurance .. ......
Compliance with Law . ...
A RTICLE 6
SECTTON 6 1 Financial Statements . . .
SECTTON 6 2 Certificates: Other Information . .
XXXXXXX 0 0 Xxxxxxx . . .
XXXXXXX 0 4 Preservation of Corporate Existence, Etc.
SECTTON 6 5 Maintenance of Property
XXXXXXX 0 6 Insurance
-41-42-43 - -44-45-45
SECTTON 6.7 Payment of Obligations
SECTTON 6.8 Compliance with Laws . .
SECTTON 6.9 r : ~ r
SECTION 6.10 Use of Proceeds . . . .
SECTTON 6.11 Solvency .........
XXXXXXX 0.00 Xxxxxxx Xxxxxxxxxx
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5
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Insnection of ProDertv and Books and Records
ARTICLE 7
NEGATIVE COVENANTS
SECTTON 7 1 Limitation on Liens .........
SECTTON 7.2 Disposition of Assets ........
SECTTON 7.3 Consolidations and Mergers . .
SECTTON 7.4 Loans and Investments ......
SECTTON 7.5 Limitation on Indebtedness
SECTTON 7.6 Transactions with AdEdiates .......
SECTTON 7.7 Use of Proceeds ..............
SECTTON 7.8 Amendments to Acquisition Documents ....
SECTTON 7.9 Compliance with ERISA
SECTTON 7.10 Lease Obligations ......
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XXXXXXX 7.12
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XXXXXXX 7.14
SECTTON 7.15
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XXXXXXX 7.18
Restricted Pavments ........
Fixed Charge Coverage Ratio
Consolidated Net Worth
Leverage Ratio ......
Change in Business
Accounting Changes .
Hostile Acquisitions . .
EVENTS OF DEFAULT
SECTTON 8.1 Event of Default ......
SECTTON 8.2 Remedies ............
SECTTON 8.3 Rights Not Exclusive . . .
THE AGENTS
ARTICLE 8
ARTICLE 9
6
SECTTON 9.1 Appointment and Authorization . . . SECTTON 9.2 Delegation of
Duties . . . . . . . . . . .
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XXXXXXX 9.3 Liabilitv of Agents . .
SECTTON 9.4 Reliance bv Agents .
SECTTON 9.5 Notice of Default . . .
SECTION 9.6 Credit Decision . . . . .
SECTTON 9.7 Indemnification
SECTTON 9.8 Administrative Agent in Individual Capacity . . .
SECTTON 9.9 Successor Administrative Agent ........
A RTICLE 10
MISCELLA NEO US
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SECTTON 10.1 Amendments and Waivers ...... ......... -61-
SECTTON 10.2 Notices .......... -00-
XXXXXXX 00.0 XX Xxxxxx; Cumulative Remedies -63-
SECTTON 10.4 Costs and Expenses -63-
SECTTON 10.5 Indemnitv ........ . -00-
XXXXXXX 00.0 Xxxxxxxxxxx; Payquents Set Aside . . . . . . . . . . . -64-
7
SECTTON 10.7 Successors and Assigns . -65-
SECTTON 10.8 Assi~nments. Participations etc. -00-
XXXXXXX 00.0 Xxxxxxxxxxxxxxx .. .. .. -67-
SECTTON 10.10 Set-off . . . . . . . . . . . . . . . . . . . . . . . . . -68-
SECTTON 10.11 Notification of Addresses. Lending Offices. Etc . . .. -00-
XXXXXXX 00.00 Xxxxxxxxxxxx . -68-
SECTION 10.13 Severabilitv -68-
SECTTON 10.14 Captions -00-
XXXXXXX 00.00 Xxxxxxxxxxxx of Provisions . . .......... ....... -00-
XXXXXXX 00.00 Xxxxxxxxxxxxxx ................. . -69-
SECTTON 10.17 No Third Parties genefited ... .. -69-
SECTTON 10.18 Governing Law and Jurisdiction -69-
SECTTON 10.19 WA[VEROFJ1URY TRIAL . . . . . . . . . . . . . . . . . -69-
SECTTON 10.20 Entire Agreement -70-
SCEIEDULES
Schedule I
Schedule 5.5 Schedule 5.7 Schedule 5.1 1 Schedule 5. 12 Schedule 5. 13 Schedule
5.17 Schedule 5.18 Schedule 7.1 Schedule 7.4 Schedule 7.5 Schedule 7. 10
Exhibit A
Exhibit B
Exhibit C
Exhibit D
Exhibit E
Exhibit F
Exhibit G
Commitment Schedule
Litigation
ERISA
Liabilities
Environmental Matters
Regulated Entities
8
Intellectual Property
Subsidiaries and Equity Investments
Liens
Investments
Indebtedness
Operating Leases
EXIIIBIlS
Notice of Borrowing
Notice of Continuation/Conversion
Revolving Note
Opinion of Counsel
Officer's Certificate
Assignment and Acceptance
Form of Letter of Credit
AMENDED AND RESTATED
CREDIT AGREEMENT
~ ~ _
This AMENDED AND RESTATED CREDIT AGREEMENT is entered into as of October
22, 1997, by and among HealthCare COMPARE Corp., a Delaware corporation (the
"Borrower"), the several financial institutions from time to time party to this
Agreement (collectively, the "Lenders" and individually each a "Lender"),
LaSalle National Bank as a Lender, Issuing Bank and as administrative agent for
the Lenders (the "Administrative Agent") and First Chicago Capital Markets,
Inc., as syndication agent for the Lenders (the "Syndication Agent").
WITNES SETH:
WHEREAS, the Borrower and the Lenders have entered into that certain
Credit Agreement dated as of July 1, 1997 (the "Original Credit Agreement")
pursuant to which the Lenders have agreed to make available to the Borrower a
revolving credit facility upon and subject to the terms and conditions set
forth in the Original Credit Agreement;
WHEREAS, the Borrower has requested, and the Lenders have agreed to make
available to the Borrower, a letter of credit facility and in connection
therewith, the parties hereto have agreed to amend and restate the Original
Credit Agreement as set forth herein (the Original Credit Agreement, as amended
and restated hereby, the"Agreement");
NOW, THEREFORE, in consideration of the mutual agreements, provisions and
covenants contained herein, the parties agree as follows:
ARTICLE 1
9
DElIN1TIONS
SECTION 1.1 Defined Terms. The following terms shall have the following
meanin purposes of this Agreement:
"Acquisition" means any transaction or series of related transactions for
the purpose of or resulting, directly or indirectly, in (a) the acquisition of
all or substantially all of the assets of a Person, or of any business or
division of a Person, (b) the acquisition of in excess of fifty percent (50%)
of the capital stock partnership interests or equity of any Person or otherwise
causing any Person to become a Subsidiary of the Borrower, or (c) a merger or
consolidation or any other combination with another Person (other than a Person
that is a Subsidiary of the Borrower) as long as the Borrower or the Borrower's
Subsidiary is the surviving entity.
"Acquisition Documents" means the Stock Purchase Agreement by and among
HealthCare COMPARE Corp., First Financial Management Corporation and First Data
Corporation dated as of May 22, 1997 and all related documents, agreements,
exhibits and schedules.
"Acquisition Transactions" means the transactions consummated pursuant
Acquisition Documents.
"Administrative Agent" means LaSalle in its capacity as agent for the
Lenders here~ and any successor agent.
"Administrative Agent's Payment Office" means the address for payments set
forth on the signature page hereto in relation to the Administrative Agent or
such other address as the Administrative Agent may from time to time specify in
accordance with Section 10.2.
"Affiliate" means, as to any Person, any other Person which, directly or
indirectly, is in control of, is controlled by, or is under common control
with, such Person. A Person shall be deemed to control another Person if the
controlling Person possesses, directly or indirectly, the power to direct or
cause the direction of the management and policies of the other Person, whether
through the ownership of voting securities, by contract or otherwise. Without
limitation, any director, executive officer or beneficial owner of five percent
(5%) or more of the equity of a Person shall for the purposes of this
Agreement, be deemed to control the other Person. Notwithstanding the
foregoing, no Lender nor the Administrative Agent shall be deemed an
"Affiliate" of the Borrower or of any Subsidiary of the Borrower.
"Agency Fee" has the meaning ascribed to such term in Section 2.9(a) hereof.
"Agent-Related Person" means either of the Agents, any successor agent
arising under Section 9.9, together with their respective Affiliates, and the
officers, directors, employees, agents and attorneys-in-fact of such Persons
and Affiliates.
"Agents" means collectively, the Administrative Agent and the Syndication
Agent.
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"Aggregate Letter of Credit Commitment" means the combined Letter of
Credit Commitments of the Lenders as set forth in Schedule I attached hereto,
the aggregate of which shall not exceed $15,000,000
"Aggregate Revolving Loan Commitment" means the combined Revolving Loan
Commitments of the Lenders as set forth on Schedule I attached hereto, the
aggregate of which shall not exceed $350,000,000.
"Applicable Margin" means with respect to LIBOR Rate Revolving Loans, Base
Rate Revolving Loans, and Facility Fees, respectively, the applicable LIBOR
margin, Base Rate margin, or Facility Fee margin in effect from time to time
determined using either the Borrower's Senior Long-term Debt Rating then in
effect or the Borrower's Debt to EBITDA Ratio, at the Borrower's option from
time to time, pursuant to the appropriate column under the following table:
hereof.
Senior Long-term Debt Applicable Base Applicable
Rate ng Debt to Applicable Rate Msrgn Facility Fee
EBIll)A Ratio LIBOR Marg~n Margin
S&P Moody's
A- A3 c50 15.0 bps 0 7.5 bps
BBB+ Baal .50-1.00 18.5 bps 0 9.0 bps
BBB Baa2 1.01-1.50 21.5 bps 0 I1.0 bps
BBB- Baa3 1.51-2.00 25.0 bps 0 12.5 bps
sBB+ Bal >2.00 27.5 bps 0 15.0 bps
The Applicable Margin shall be adjusted from time to time upon delivery to the
Administrative Agent of (i) the quarterly financial statements required to be
delivered pursuant to Section 6.1 hereof accompanied by a written calculation
of the Debt to EBITDA Ratio certified by a Responsible Officer as of the end of
the fiscal quarter for which such financial statements are delivered or (ii) a
statement of the Borrower's Senior Long-term Debt Rating by S&P and Moody's if
any, certified by a Responsible Officer. If the Senior Long-term Debt Ratings
by S&P and Moody's differ, for the purpose of calculating the Applicable
Margin, the Borrower's Senior Long-term Debt Rating shall be deemed to be one
level higher than the lower rating given by S&P and Moody's. If such
calculation or statement indicates that the Applicable Margin shall increase or
decrease, then one (1) Business Day after the date of delivery of such
financial statements and written calculation or statement the Applicable Margin
shall be adjusted in accordance therewith; provided, however, that if Borrower
shall fail to deliver any such financial statements for any such fiscal quarter
by the date required pursuant to Section 6.1, then, effective as of the
Business Day on which such financial statements were to have been delivered,
and continuing through the date which is one (1) Business Day after the date
(if ever) when such financial statements and such written calculation are
finally delivered, the Applicable Margin
11
shall be conclusively presumed to equal the highest Applicable Margin specified
in the pricing table set forth above.
"Assignee" has the meaning ascribed to such term in Section 10.8(a) hereoL.
"Assignment and Acceptance" has the meaning ascribed to such term in Section
10.8(a)(ii)
"Attorney Costs" means and includes all reasonable fees and disbursements
of any law firm or other external counsel, the reasonable allocated cost of
internal legal services (to the extent and at the rate customarily charged to
other customers) and all reasonable disbursements of internal counsel.
"Bankruptcy Code" means the Federal Bankruptcy Reform Act of 1978 (11
U.S.C. $101, et seq.), as amended and in effect from time to time and the rules
issued from time to time thereunder.
Base Rate.
"Base Rate" means, for any date, the greater of (i) the Federal Funds Rate
in effect on such date plus 0. 5% per annum, and (ii) the rate of interest
publicly announced from time to time by the Administrative Agent as its Prime
Rate.
"Base Rate Revolving Loan" means a Borrowing hereunder which bears interest at
the
"Borrowing" has the meaning ascribed to such term in Section 2.1 hereof.
"Business Day" means any day other than a Saturday, Sunday or other day on
which commercial banks in Chicago, Illinois are authorized or required by law
to close and, if the applicable Business Day relates to any LIBOR Rate
Revolving Loan, a day on which dealings are carried on in the London interbank
market.
"Capital Adequacy Regulation" means any guideline, request or directive of
any cent~ bank or other Governmental Authority, or any other law, rule or
regulation, whether or not having the force of law, in each case, regarding
capital adequacy of any Lender or of any corporation controlling a Lender.
"Capital Lease" means any leasing or similar arrangement which, in
accordanc GAAP, is class)fied as a capital lease.
"Capital Lease Obligations" means all monetary obligations of the Borrower
or an, Subsidiaries under any Capital Leases.
"Cash Equivalents" means: (a) securities issued or fully guaranteed or
insured by the United States Government or any agency thereof having maturities
of not more than six (6) months from the date of acquisition; (b) certificates
of deposit, time deposits, demand deposits, repurchase agreements, reverse
repurchase agreements, or bankers' acceptances, having in each
12
case a tenor of not more than six (6) months, issued by any Lender, or by any
U. S. commercial bank or any branch or agency of a non-U. S. bank licensed to
conduct business in the U.S. having combined capital and surplus of not less
than $500,000,000; (c) commercial paper of an issuer rated, at the time of
purchase, at least A-1 by Standard & Poor's Corporation or P-1 by Xxxxx'x
Investors Service Inc. and in either case having a tenor of not more than six
(6) months.
"CERCLA" has the meaning specified in the definition of"Environmental Laws."
"Change of Control" means such time as (i) the Borrower otherwise becomes
aware that, a "person" or "group" (within the meaning of Sections 13(d) and
14(d)(2) ofthe Exchange Act) has become, directly or indirectly, the
"baneficial owner," by way of merger, consolidation or otherwise, of 30% or
more of the voting power of the voting stock of the Borrower on a fullydiluted
basis after giving effect to the conversion and exercise of all outstanding
warrants, options and other securities of the Borrower (whether or not such
securities are then currently convertible or exercisable), or (ii) during any
period of two consecutive calendar years, individuals who at the beginning of
such period constituted the board of directors of the Borrower (together with
any new directors whose election by the board of directors of the Borrower or
whose nomination for election by the shareholders of the Borrower was approved
by a vote of a majority of the directors then still in office who either were
directors at the beginning of such period or whose election or nomination for
election was previously so approved) cease for any reason to constitute a
majority of the board of directors of the Borrower then in office.
"Closing Date" means July 1, 1997, which was the date on which all
conditions precedent set forth in Section 4.1 of the Original Credit Agreement
were satisfied or waived by all Lenders.
thereunder.
"Code" means the Internal Revenue Code of 1986, and regulations promulgated
"Commitment Fee" has the meaning ascribed to such term in Section 2.9(a)
hereoL.
"Commitment Percentage" means, as to any Lender, the percentage equivalent
of such Lender's Revolving Loan Commitment divided by the Aggregate Revolving
Loan Commitment.
"Confidential Information" has the meaning ascribed to such term in Section
10.9 hereof.
"Consolidated Net Income (Loss)" means, for any period, the net income (or
loss) of Borrower and its Subsidiaries on a consolidated basis for such period,
determined in accordance with GAAP.
"Consolidated Interest Expense" means, for any period, gross consolidated
interest expense for the period (including all commissions, discounts, fees and
other charges in connection with standby letters of credit and similar
instruments) for the Borrower and its Subsidiaries, plus the portion of the
up-front costs and expenses for Rate Contracts (to the extent
13
not included in gross interest expense) fairly allocated to such Rate Contracts
as expenses for such period, all as determined in accordance with GAAP.
"Continuation Date" means any date on which the Borrower continues a LIBOR
Rate Revolving Loan at the end of the period applicable to an existing LIBOR
Rate Revolving Loan.
"Contractual Obligations" means, as to any Person, any provision of any
security issued by such Person or of any agreement, undertaking, contract,
indenture, mortgage, deed of trust or other instrument, document or agreement
to which such Person is a party or by which it or any of its property is bound.
"Controlled Group" means the Borrower and all Persons (whether or not
incorpr under common control or treated as a single employer with the Borrower
pursuant to Section 414(b), (c), (m) or (o) ofthe Code.
"Conversion Date" means any date on which the Borrower converts a Base
Rate Revolving Loan to a LIBOR Rate Revolving Loan or a LIBOR Rate Revolving
Loan to a Base Rate Revolving Loan.
"Default" means any event or circumstance which, with the giving of
notice, the lapse of time, or both, would (if not cured or otherwise remedied
during such time) constitute an Event of Default.
"Debt to EBITDA Ratio" means, as of any date of determination, the ratio
of consolidat, Funded Indebtedness of Borrower as of such date to EBITDA for
the most recently completed four fiscal quarters.
"Disposition" has the meaning subscribed to such term in Section 7.2
"Dollars", "dollars" and "$" each mean lawful money of the United States of
America.
"EBITDA" means, for any period, for the Borrower and its Subsidiaries on a
consolidated basis, determined in accordance with GAAP, income before income
taxes (as reported on the Borrower's financial statements) p!~ interest
expenses, depreciation and amortization and minus interest income for such
Period. Prior to the first anniversary of the consummation of an Acquisition,
the historical financial results of the acquired Person or assets for the
relevant period will be included for purposes of calculating EBITDA (but
without any adjustment to such historical results for cost savings or other
synergies).
"Eligible Assignee" means any of: (a) a commercial bank or other financial
institution organized under the laws of the United States, or any state
thereof, and having a combined capital and surplus of at least $100,000,000;
(b) a commercial bank or other financial institution organized under the laws
of any country which is a member of the Organization for Economic Cooperation
and Development, or a political subdivision of any such country, and having a
combined capital and surplus of at least $100,000,000, provided that such bank
or financial institution is acting through a branch or agency located in the
United States; (c) a Person that is
14
primarily engaged in the business of commercial lending and that is (A) a
Subsidiary of a Lender, (B) a Subsidiary of a Person of which a Lender is
another Subsidiary, or (C) a Person of which a Lender is a Subsidiary or (d) an
insurance company or mutual fund organized under the laws of the United States
or any State thereof and having total net worth in excess of $100,000,000.
"Environmental Claims" means all claims, however asserted, by any
Governmental Authority or other Person alleging potential liability or
responsibility for violation of any Environmental Law, or for release or injury
to the environment or threat to public health, personal injury (including
sickness, disease or death), property damage, natural resources damage, or
otherwise alleging liability or responsibility for damages (punitive or
otherwise), cleanup, removal, remedial or response costs, restitution, civil or
criminal penalties, injunctive relief, or other type of relief, resulting from
or based upon the presence, placement, discharge, emission or release
(including intentional and unintentional, negligent and non-negligent, sudden
or nonsudden, accidental or non-accidental, placement, spills, leaks,
discharges, emissions or releases) of any Hazardous Material at, in, or from
Property, whether or not owned by the Borrower.
"Environmental Laws" means all federal, state or local laws, statutes,
common law duties rules, regulations, ordinances and codes, together with all
administrative orders, licenses, authorizations and permits of, and agreements
with, any Governmental Authorities, in each case relating to environmental,
health, safety and land use matters; including, without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act of 1980
("CERCLA"), the Clean Air Act, the Federal Water Pollution Control Act of 1972,
the Solid Waste Disposal Act, the Federal Resource Conservation and Recovery
Act, the Toxic Substances Control Act, the Emergency Planning and Community
Right-to-Know Act.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and regulations promulgated thereunder.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with the Borrower within the meaning of
Section 414(b), 414(c) or 414(m) of the Code.
"ERISA Event" means (a) a Reportable Event with respect to a Qualified
Plan or a Multiemployer Plan; (b) a withdrawal by the Borrower or any ERISA
Affiliate from a Qualified Plan subject to Section 4063 of ERISA during a plan
year in which it was a substantial employer (as defined in Section 4001(a)(2)
of ERISA); (c) a complete or partial withdrawal by the Borrower or any ERISA
Affiliate from a Multiemployer Plan; (d) the filing of a notice of intent to
terminate, the treatment of a plan amendment as a termination under Section
4041 or 4041A of ERISA or the commencement of proceedings by the PBGC to
terminate a Qualified Plan or Multiemployer Plan subject to Title IV of ERISA;
(e) a failure by the Borrower or any member of the Controlled Group to make
required contributions to a Qualified Plan or Multiemployer Plan; (f) an event
or condition which might reasonably be expected to constitute grounds under
Section 4042 of ERISA for the termination of, or the appointment of a trustee
to administer, any Qualified Plan or Multiemployer Plan; (g) the imposition of
any liability under Title IV of
15
ERISA, other than PBGC premiums due but not delinquent under Section 4007 of
ERISA, upon the Borrower or any ERISA Affiliate; (h) an application for a
funding waiver or an extension of any amortization period pursuant to Section
412 of the Code with respect to any Plan; (i) a nonexempt prohibited
transaction occurs with respect to any Plan for which the Borrower or any
Subsidiary of the Borrower may be directly or indirectly liable; or (j) a
violation of the applicable requirements of Section 404 or 405 of ERISA or the
exclusive benefit rule under Section 401 (a) of the Code by any fiduciary or
disqualified person with respect to any Plan for which the Borrower or any
member of the Controlled Group may be directly or indirectly liable.
"Exchange Act" means the Securities and Exchange Act of 1934, and regu
promulgated thereunder.
"Event of Default" has the meaning ascribed to such term in Section 8.1
hereof.
"Facility Fee" has the meaning ascribed to such term in Section 2.9(b)
hereoL.
"Federal Funds Rate" means, for any day, the rate per annum set forth in
the weekly statistical release designated as H.15(519), or any successor
publication, published by the Federal Reserve Board (including any such
successor, "H.15(519!") for such day opposite the caption "Federal Funds
(Effective)". If on any relevant day such rate is not yet published in
H.15(519), the rate for such day will be the rate set forth in the daily
statistical release designated as the Composite 3:30 p.m. Quotations for U.S.
Government Securities, or any successor publication, published by the Federal
Reserve Bank of New York (including any such successor, the "Composite 3.30
p.m. Ouotation") for such day under the caption "Federal Funds Effective Rate".
If on any relevant day the appropriate rate for such previous day is not yet
published in either H. 15(519) or the Composite 3:30 p.m. Quotations, the rate
for such day will be the arithmetic mean (rounded to the nearest 1/16th) as
determined by the Administrative Agent of the rates for the last transaction in
overnight Federal funds arranged prior to 9:00 a.m. (New York time) on that day
by each of three leading brokers of Federal funds transactions in New York City
selected by the Administrative Agent.
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve S or any entity succeeding to any of its principal functions.
"First Chicago" means First Chicago Capital Markets, Inc., a Delaware
corporation.
"Fixed Charges" means, for any period and without duplication, the sum of
(i) Consolidated Interest Expense and fees paid on, and amortization of debt
discount in respect of, all Funded Indebtedness, plus (ii) Operating Lease
rental payments made during such period, plus (iii) the aggregate principal
amount of all current maturities of long term Funded Indebtedness (including
the principal portion of rentals under Capital Leases) paid by the Borrower and
its Subsidiaries during such period (excluding payments of principal of the
Revolving Loans and payments of principal not required under the Revolving Loan
Documents).
16
"Fixed Charge Coverage Ratio" means, at any date, the ratio of (i) EBITDA
plus Operating Lease rental payments for the period of the most recently
completed four consecutive fiscal quarters, to (ii) Fixed Charges for such
period.
"Form 1001" has the meaning ascribed to such term in Section 3.1(f) hereoL.
"Form 4224" has the meaning ascribed to such term in Section 3.1(f) hereoL.
"Funded Indebtedness" means with respect to any Person, at the time of
computation thereof, all of the following (without duplication): (a)
obligations of such Person in respect of money borrowed; (b) obligations of
such Person (other than trade debt incurred in the ordinary course of
business), whether or not for money borrowed (i) represented by notes payable,
or drafts accepted, in each case representing extensions of credit, (ii)
evidenced by bonds, debentures, notes or similar instruments, or (iii)
constituting purchase money indebtedness, conditional sales contracts, title
retention debt instruments or other similar instruments, upon which interest
charges are customarily paid or that are issued or assumed as full or partial
payment for property; (c) Capitalized Lease Obligations of such Person; (d) all
reimbursement obligations of such Person under any letters of credit or
acceptances (whether or not the same have been presented for payment); and (e)
all Funded Indebtedness of other Persons which (i) such Person has Guaranteed
or (ii) are secured by a Lien on any property of such Person, and which, in
each case of (a) through (e), is or would be reported under GAAP accounting
rules in such Person's financial statement.
"GAAP" means generally accepted accounting principles set forth from time
to time in th~ opinions and pronouncements of the Accounting Principles Board
and the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board (or agencies with
similar functions of comparable stature and authority within the accounting
profession), which are applicable to the circumstances as of the date of
determination.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to
government, and any corporation or other entity owned or controlled, through
stock or capital ownership or otherwise, by any of the foregoing.
"Guaranty Obligation" means, as applied to any Person, any direct or
indirect liability of that Person with respect to any Indebtedness (the
"primary obligations") of another Person (the "primary obligor"), including any
obligation of the Person, whether or not contingent:
(a) to purchase, repurchase or otherwise acquire such primary obligati'
any property constituting direct or indirect security therefor; or
(b) to advance or provide funds (i) for the payment or discharge of any
such primary obligation, or (ii) to maintain working capital or equity capital
of the primary obligor or
17
otherwise to maintain the net worth or solvency or any balance sheet item,
level of income or financial condition of the primary obligor; or
(c) to purchase property, securities or services primarily for the purpose
of assuring the owner of any such primary obligation of the ability of the
primary obligor to make payment of such primary obligation; or
(d) otherwise to assure or hold harmless the holder of any such p
obligation against loss in respect thereof;
in each case, including arrangements wherein the rights and remedies of the
holder of the primary obligation are limited to repossession or sale of certain
property of such Person.
"Hazardous Materials" means all those substances which are regulated 1
Environmental Law.
"Healthcare Regulations" means all Requirements of Law applicable to
providers of life, health care or disability insurance or the provision of
health care services or such insurance or the management of health care
services.
"Immaterial Subsidiary" means a Subsidiary with assets of $15,000,000 or
less and has net income for the previous four fiscal quarters of $5,000,000 or
less as of any date of determination.
"Indebtedness" of any Person means, without duplication: (a) all
indebtedness for borrowed money; (b) all obligations issued, undertaken or
assumed as the deferred purchase price of property or services (other than
trade payables entered into in the Ordinary Course of Business); (c) all
reimbursement obligations with respect to Surety Instruments; (d) all
obligations evidenced by notes, bonds, debentures or similar instruments,
including obligations so evidenced incurred in connection with the acquisition
of property, assets or businesses; (e) all indebtedness created or arising
under any conditional sale or other title retention agreement, or incurred as
financing, in either case with respect to Property acquired by the Person (even
though the rights and remedies of the seller or bank under such agreement in
the event of default are limited to repossession or sale of such property); (f)
all Capital Lease Obligations; (g) all obligations with respect to Rate
Contracts; (h) all indebtedness referred to in clauses (a) through (g) above
secured by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien upon or in Property
(including accounts and contracts rights) owned by such Person, even though
such Person has not assumed or become liable for the payment of such
Indebtedness; provided, however, if recourse to such Person is specifically
limited in writing to the security with respect thereto, the amount of such
indebtedness shall be the lesser of the amount of such indebtedness and the
value of the assets of such Person which secure such indebtedness; and (i) all
Guaranty Obligations in respect of indebtedness or obligations of others of the
kinds referred to in clauses (a) through (g) above.
"Indemnified Person" has the meaning ascribed to such term in Section 10.5
hereoL.
18
"Indemnified Liabilities" has the meaning ascribed to such term in
Section 10.5 hereoL.
"Insolvency Proceeding" means (a) any case, action or proceeding before
any court or other Governmental Authority relating to bankruptcy,
reorganization, insolvency, liquidation, receivership, dissolution, winding-up
or relief of debtors, or (b) any general assignment for the benefit of
creditors, composition, marshalling of assets for creditors, or other, similar
arrangement in respect of its creditors generally or any substantial portion of
its creditors; in each case (a) and (b) undertaken under U. S. Federal, State
or foreign law, including the Bankruptcy Code.
"Insurance Subsidiary" means any Subsidiary directly subject to
regulation by a state
. . .
~nsurance comrn~ss~on, commissioner, or similar authority or Person.
"Interest Payment Date" means, (i) with respect to any LIBOR Rate
Revolving Loan, the earlier of the last day of each Interest Period applicable
to such LIBOR Rate Revolving Loan or the date that is three months after the
date of the applicable LIBOR Rate Revolving Loan Borrowing and each three-month
anniversary thereafter, and (ii) with respect to Base Rate Revolving Loans, the
last Business Day of the months of September, December, March and June. If any
Interest Payment Date falls on a day which is not a Business Day, payment shall
be made on the next succeeding Business Day.
"Interest Period" means, with respect to any LIBOR Rate Revolving Loan,
the period commencing on the Business Day the Revolving Loan is disbursed or
continued or on the Conversion Date on which the Revolving Loan is converted to
the LIBOR Rate Revolving Loan and ending on the date one, two, three or six
months thereafter (or, if available from all Lenders,
nine or twelve months thereafter), as selected by the Borrower in its
Notice of Borrowing or Notice of Conversion/Continuation; provided that:
(a) if any Interest Period pertaining to a LIBOR Rate Revolving Loan would
otherwise end on a day which is not a Business Day, that Interest Period shall
be extended to the next succeeding Business Day unless the result of such
extension would be to carry such Interest Period into another calendar month,
in which event such Interest Period shall end on the immediately preceding
Business Day; and
(b) any Interest Period pertaining to a LIBOR Rate Revolving Loan that
begins on the last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar month at the end of
such Interest Period) shall end on the last Business Day of the calendar month
at the end of such Interest Period.
"Issuing Bank" means LaSalle National Bank or any other Lender which may
at any time issue or be requested to issue a Letter of Credit for the account
of the Borrower under this
19
Agreement. If there is more than one Issuing Bank, all references to "the
Issuing Bank" shall be deemed to refer to each Issuing Bank or to all Issuing
Banks, as the context requires.
"Joint Venture" means a partnership, joint venture or other similar legal
arrangement (whether created pursuant to contract or conducted through a
separate legal entity) now or hereafter formed by the Borrower or any of its
Subsidiaries with another Person in order to conduct a common venture or
enterprise with such Person.
"LaSalle" means LaSalle National Bank a national banking association.
"LaSalle L/C" has the meaning ascribed to such term in Section 2.1 hereof.
"Lender" has the meaning ascribed to such term in the Preamble hereof.
"Lending Office" means, with respect to any Lender, the office or offices
of the Lender specified as its "Lending Office" opposite its name on the
applicable signature page hereto, or such other office or offices ofthe Lender
as it may from time to time notify the Borrower and the Administrative Agent.
"Leverage Ratio" means, as of any date of determination thereof, the
ratio of consolidated
2.1 (b).
Funded Indebtedness of the Borrower as of such date to EBITDA for the twelve
fiscal months then ended.
"Letter of Credit" shall have the meaning ascribed to such term in
Section 2.1 (b).
"Letter of Credit Commitment" shall have the meaning ascribed to such
term in Section
"Letter of Credit Reserve" means, at any time, an amount equal to all
liabilities of the Borrower to the Issuing Bank in respect of any Letters of
Credit outstanding at such time, whether contingent or otherwise, including:
(a) the amount available to be drawn or which may become available to be drawn;
(b) all amounts which have been paid or made available by the Issuing Bank as
issuer of such Letters of Credit to the extent not reimbursed; and (c) all
unpaid interest, fees and expenses in respect of such Letters of Credit.
"LIBOR Rate" means, for each applicable Interest Period, the London
Interbank Offered Rate per annum for deposits of Dollars quoted by the
Administrative Agent that appears on Telerate Page 3750 as of 11:00 A.M.
(London, England time) two (2) Business Days prior to the first day in such
Interest Period for an amount comparable to the amount of the applicable
Revolving Loan and the maturity comparable to such Interest Period. If no such
offered rate exists, such rate will be the rate of interest per annum, as
determined by the Administrative Agent (rounded upwards, if necessary, to the
nearest 1/16 of 1%) at which deposits of Dollars in immediately available funds
are offered at 11:00 A.M. (London, England time) two (2) Business Days prior to
the first day in such Interest Period by major financial institutions
reasonably
20
satisfactory to the Administrative Agent in the London interbank market for a
period comparable to such Interest Period and for an amount equal or comparable
to the principal amount of the Revolving Loans outstanding on such date of
determination. If no such deposits are offered by such institutions, such rate
will be the rate in effect for the prior Interest Period.
"LIBOR Rate Revolving Loan" means a Borrowing hereunder which bears
interest at the LIBOR Rate.
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment, charge or deposit arrangement, encumbrance, lien (statutory or
other) or preference, priority or other security interest or preferential
arrangement of any kind or nature whatsoever (including those created by,
arising under or evidenced by any conditional sale or other title retention
agreement, the interest of a lessor under a Capital Lease obligation, any
financing lease having substantially the same economic effect as any of the
foregoing, or the filing of any financing statement naming the owner of the
asset to which such lien relates as debtor, under the UCC or any comparable
law) and any contingent or other agreement to provide any of the foregoing, but
not including the interest of a lessor under an Operating Lease.
"Majority Lenders" means at any time Lenders then holding at least 51% of
the then aggregate unpaid principal amount of the Revolving Loans or, if no
such principal amount is then outstanding, Lenders then having in excess of 51%
of the Revolving Loan Commitments.
"Margin Stock" means "margin stock" as such term is defined in Regulation
G, T, of the Federal Reserve Board.
"Material Adverse Effect" means (a) a material adverse change in, or a
material adverse effect upon, the operations, business, properties, or
condition (financial or otherwise) of the Borrower or the Borrower and its
Subsidiaries taken as a whole; (b) a material impairment of the ability of the
Borrower to perform any material obligation under any Revolving Loan Document
and avoid any Event of Default; or (c) a material adverse effect upon the
legality, validity, binding effect or enforceability of any Revolving Loan
Document.
hereof.
"Maximum Revolving Loan Balance" has the meaning ascribed to such term in
Section 2.1
"Multiemployer Plan" means a "multiemployer plan" (within the meaning of
Section 4001(a)(3) of ERISA) and to which any member of the Controlled Group
makes, is making, or is obligated to make contributions or, during the
preceding three calendar years, has made, or been obligated to make,
contributions.
"Net Worth" means shareholders' equity of the Borrower as determined in
accordance with GAAP, ~ (i) the lesser of (a) the amount of the total
consideration paid by the Borrower to acquire the Borrower's stock subsequent
to the Closing Date and held by the Borrower as treasury stock under GMP
accounting, or (b) $150,000,000, ~ (ii) any charges incurred subsequent to the
21
Closing Date related to Acquisitions to the extent such charges are written off
against goodwill, provided such charges shall not exceed the aggregate amount
of $175,000,000.
"Note" has the meaning ascribed to such term in Section 2.2(a) hereof.
"Notice of Borrowing" means a notice given by the Borrower to the
Administrative Agent pursuant to Section 2.4, in substantially the form of
Exhibit A hereto.
"Notice of Conversion/Continuation" means a notice given by the Borrower
to the Administrative Agent pursuant to Section 2. 5, in substantially the form
of Exhibit B hereto.
"Notice of Lien" means any "notice of lien" or similar document filed or
recorded with court, registry, recorder's office, central filing office or
other Governmental Authority for the purpose of evidencing, creating,
perfecting or preserving the priority of a Lien securing obligations owing to a
Governmental Authority.
"Obligations" means all Revolving Loans, and other Indebtedness, advances,
debts, liabilities, obligations, covenants and duties owing by the Borrower to
any Lender, the Agents, or any other Person required to be indemnified, that
arises under any Revolving Loan Document, whether or not for the payment of
money, whether arising by reason of an extension of credit, Revolving Loan,
guaranty, indemnification or in any other manner, whether direct or indirect
(including those acquired by assignment), absolute or contingent, due or to
become due, now existing or hereaBcer arising and however acquired.
"Officer's Certificate" has the meaning ascribed to such term in Section
6.2(b) hereof.
"Operating Lease" means, as applied to any Person, any lease of Property
which is not a Capital Lease.
"Ordinary Course of Business" means, in respect of any transaction
involving the Borrower or any Subsidiary of the Borrower, the ordinary course
of such Person's business, as conducted by any such Person in accordance with
industry practice for companies similarly situated and undertaken by such
Person in good faith and not for purposes of evading any covenant or
restriction in any Revolving Loan Document.
"Originating Lender" has the meaning ascribed to such term in Section
10.8(d) hereof.
"Other Taxes" has the meaning ascribed to such term in Section 3.1 (b)
hereof.
"Participant" has the meaning ascribed to such term in Section 10.8(d)
hereof.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding of its principal functions under ERISA.
"Permitted Liens" has the meaning ascribed to such term in Section 7.1
hereoL.
22
"Person" means an individual, partnership, corporation, limited liability
company, busi trust, joint stock company, trust, unincorporated association,
joint venture or Governmental Authority.
"Plan" means an employee benefit plan (as defined in Section 3(3) of
ERISA) which the Borrower or any member of the Controlled Group sponsors or
maintains or to which the Borrower or any member of the Controlled Group makes,
is making or is obligated to make contributions.
"Property" means any interest in any kind of property or asset, whether
real, personal or mixed, and whether tangible or intangible.
"Qualified Plan" means a pension plan (as defined in Section 3(2) of
ERISA) intended to be tax-qualified under Section 401(a) ofthe Code and which
any member of the Controlled Group sponsors, maintains, or to which it makes,
is making or is obligated to make contributions, or in the case of a multiple
employer plan (as described in Section 4064(a) of ERISA) has made contributions
at any time during the immediately preceding period covering at least five (5)
plan years, but excluding any Multiemployer Plan.
"Rate Contracts" means swap agreements (as such term is defined in Section
101 of th Bankruptcy Code) and any other agreements or arrangements designed to
provide protection against fluctuations in interest or currency exchange rates.
"Reportable Event" means, as to any Plan, (a) any of the events set forth
in Section 4043(b) of ERISA or the regulations thereunder, other than any such
event for which the 30-day notice requirement under ERISA has been waived in
regulations issued by the PBGC, (b) a withdrawal from a Plan described in
Section 4063 of ERISA, or (c) a cessation of operations described in Section
4062(e) of ERISA.
"Requirement of Law" means, as to any Person, any law (statutory or
common), treaty, rule or regulation or determination of an arbitrator or of a
Governmental Authority, in each case applicable to or binding upon the Person
or any of its property or to which the Person or any of its property is subject.
"Responsible Officer" means the chief executive officer, the president,
the chief financial officer or any executive vice president of the Borrower, or
any other officer having substantially the same authority and responsibility;
or, with respect to compliance with financial covenants, the chief financial
officer or the treasurer of the Borrower, or any other officer having
substantially the same authority and responsibility.
"Revolving Loan" has the meaning ascribed to such term in Section 2.1
hereof.
hereof.
23
"Revolving Loan Commitment" has the meaning ascribed to such term in
Section 2.1
"Revolving Loan Documents" means this Agreement, the Note, and all Standby
Letter of Credit Agreements, including the LaSalle L/C.
"Solvent" means, as to any Person at any time, that (a) the fair value of
the Property of such Person is greater than the amount of such Person's
liabilities (including disputed, contingent and unliquidated liabilities) as
such value is established and liabilities evaluated for purposes of Section
101(31) of the Bankruptcy Code and, in the .alternative, for purposes of the
Uniform Fraudulent Transfer Act; (b) the present fair saleable value of the
Property of such Person is not less than the amount that will be required to
pay the probable liability of such Person on its debts as they become absolute
and matured; (c) such Person is able to realize upon its Property and pay its
debts and other liabilities (including disputed, contingent and unliquidated
liabilities) as they mature in the normal course of business; (d) such Person
does not intend to, and does not believe that it will, incur debts or
liabilities beyond such Person's ability to pay as such debts and liabilities
mature; and (e) such Person is not engaged in business or a transaction, and is
not about to engage in business or a transaction, for which such Person's
property would constitute unreasonably small capital.
2.1.
"Standby Letter of Credit Agreement" has the meaning ascribed to such
term in Section
"Subsidiary" of a Person means any corporation, association, partnership,
joint venture o other business entity of which more than fifty percent (50%) of
the voting stock or other equity interests (in the case of Persons other than
corporations), is owned or controlled directly or indirectly by the Person, or
one or more of the Subsidiaries of the Person, or a combination thereof.
"Surety Instruments" means all letters of credit (including standby and
commercial), banker's acceptances, bank guaranties, shipside bonds, surety
bonds and similar instruments.
"Taxes" has the meaning ascribed to such term in Section 3.1(a) hereoL.
"Termination Date" means the earlier to occur of: (a) the five year
anniversary of tl Closing Date; and (b) the date on which the Aggregate
Revolving Loan Commitment shall terminate in accordance with the provisions of
this Agreement.
"WCC" means the Uniform Commercial Code as in effect in the State of
Illinois.
"Unfunded Pension Liabilities" means the excess of a Plan's benefit
liabilities under Section 4001(a)(16) of ERISA, over the current value of that
Plan's assets, determined in
accordance with the assumptions used by the Plan's actuaries for funding the
Plan pursuant to section 412 for the applicable plan year.
24
"United States" and "U.S." each means the United States of America.
"Wholly-Owned Subsidiary" means any corporation in which (other than
directors' or other similar qualifying shares required by law) 100% of the
capital stock of each class having ordinary voting power, and 100% of the
capital stock of every other class, in each case, at the time as of which any
determination is being made, is owned, baneficially and of record, by the
Borrower, or by one or more of the other Wholly-Owned Subsidiaries, or both.
SECTION 1.2 Other Interpretive Provisions.
(a) Defined Terms. Unless otherwise specified herein or therein, all terms
defined in this Agreement shall have the defined meanings when used in any
certificate or other document made or delivered pursuant hereto. The meaning of
defined terms shall be equally applicable to the singular and plural forms of
the defined terms. Terms (including uncapitalized terms) not otherwise defined
herein and that are defined in the UCC shall have the meanings therein
described.
(b) The Agreement. The words "hereof", "herein", "hereunder" and words o
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement; and subsection,
section, schedule and exhibit references are to this Agreement unless otherwise
specified.
(c) Certain Common Terms. The term "documents" includes any and all
instruments, documents, agreements, certificates, indentures, notices and other
writings, however evidenced. The term "including" is not limiting and means
"including without limitation."
(d) Performance; Time. Whenever any performance obligation hereunder
(other than a payment obligation) shall be stated to be due or required to be
satisfied on a day other than a Business Day, such performance shall be made or
satisfied on the next succeeding Business Day. In the computation of periods of
time from a specified date to a later specified date, the word "from" means
"from and including"; the words "to" and "until" each mean "to but excluding",
and the word "through" means "to and including." If any provision of this
Agreement refers to any action taken or to be taken by any Person, or which
such Person is prohibited from taking, such provision shall be interpreted to
encompass any and all means, direct or indirect, of taking, or not taking, such
action.
(e) Contracts. Unless otherwise expressly provided herein, references to
agreements and other contractual instruments, including this Agreement and the
other Revolving Loan Documents, shall be deemed to include all subsequent
amendments, thereto, restatements thereof and other mod)fications and
supplements thereto which are in effect from time to time, but only to the
extent such amendments and other mod)fications are not prohibited by the terms
of any Revolving Loan Document.
25
(f) Laws. References to any statute or regulation are to be construed as
including all statutory and regulatory provisions consolidating, amending,
replacing, supplementing or interpreting the statute or regulation.
(g) Amendment and Restatement. On the date that all of the conditions
precedent set forth in Section 4.3 ofthis Agreement have been satisfied (the
"Restatement Effective Date") (i) the full principal balance of all of the
Revolving Loans (as defined in the Original Credit Agreement) outstanding under
the Original Credit Agreement on such date (the "Prior Loans") shall be
converted into and continued as Revolving Loans hereunder; and (ii) all fees
and other obligations of the Borrower which shall have accrued but which shall
remain unpaid on the Restatement Effective Date (the "Accrued Fees") shall be
converted into and continued as obligations of the Borrower hereunder. The
Prior Loans and Accrued Fees outstanding on the Restatement Effective Date
shall not be deemed to have been repaid as a result of this amendment and
restatement and all Interest Payment Dates for Revolving Loans made prior to
the Restatement Effective Date shall remain on the dates that were applicable
under the Original Credit Agreement. Any reference to the Original Credit
Agreement in any Assignment and Acceptance, Officer's Certificate, Notice of
Borrowing or Notice of Conversion/Continuation which is delivered after the
Restatement Effective Date shall be deemed to refer to this Agreement.
SECTION 1.3 Accounting Principles. (a) Unless the context otherwise
clearly requires, all accounting terms not expressly defined herein shall be
construed, and all financial computations required under this Agreement shall
be made, in accordance with GAAP, consistently applied; provided, however, that
if any changes in GAAP are hereafter required or permitted and are adopted by
the Borrower and such changes result in a material change in the method of
calculation of any of the financial covenants or restrictions contained in
Article 7 or in the related definitions or terms used herein, the parties
hereto agree to enter into negotiations in good faith in order to amend such
provisions so as to reflect equitably such changes with the desired result that
the criteria for evaluating the Borrower's financial condition shall be the
same after such changes as if such changes had not been made.
(a) References herein to "fiscal year", "fiscal quarter" and "fisca to
such fiscal periods of the Borrower.
ARTICLE 2
TIIE CRED11 S
SECTION 2.1 Amounts and Terms of Commitments.
(a) The Revolving Credit. Each Lender severally and not jointly agrees, on
the terms and conditions hereinafter set forth, to make Revolving Loans to the
Borrower (the "Revolving Loans") from time to time on any Business Day during
the period from the Closing Date to the Termination Date, in an aggregate
amount not to exceed at any time outstanding the amount set forth opposite the
Lender's name in Schedule I under the heading "Revolving Loan Commitment"
26
(such amount as the same may be reduced from time to time pursuant to subsection
2.7(b) hereof or as a result of one or more assignments pursuant to Section
10.8, the Lender's "Revolving Loan Commitment"); provided, however, that, after
giving effect to any borrowing of Revolving Loans (each, a `'Borrowing"), the
aggregate principal amount of all outstanding Revolving Loans and Letters of
Credit shall not exceed the Maximum Revolving Loan Balance. Within the limits
of each Lender's Revolving Loan Commitment, and subject to the other terms and
conditions hereof, the Borrower may borrow under this Section 2.1, prepay
pursuant to Section 2.6 and reborrow pursuant to this Section 2. 1. The
"Maximum Revolving Loan Balance" will be the aggregate of all Revolving Loan
Commitments then in effect. If at any time the Revolving Loans exceed the
Maximum Revolving Loan Balance, the Revolving Loans must be repaid immediately
in an amount sufficient to eliminate any excess.
(b) Letters of Credit. Subject to the terms and conditions of this
Agreement, in addition to the Revolving Loans, the Revolving Loan Commitments
may be utilized upon the request of Borrower and subject to the Administrative
Agent's approval of each application therefor, for the issuance (or, with
respect to any previously issued Letter of Credit, the extension of the
expiration thereof) by the Issuing Bank (or, if more than one Lender agrees to
be an Issuing Bank, the Issuing Bank designated by Borrower) of letters of
credit (each a "Letter of Credit") to a maximum amount outstanding at any time
of $15,000,000; provided, however, that, after giving effect to any issuance or
extension of a Letter of Credit, the aggregate principal amount of all
outstanding Revolving Loans and Letters of Credit shall not exceed the Maximum
Revolving Loan Balance. LaSalle agrees to be an Issuing Bank and any other
Lender may hereto agree to become an Issuing Bank by written notice to the
Administrative Agent. Each Lender severally and not jointly agrees to purchase
participations from the Issuing Bank in letters of credit issued by the Issuing
Bank in an aggregate amount not to exceed at any time outstanding the amount
set forth opposite the Lender's name in Schedule I under the heading "Letter of
Credit Commitment" (such amount as the same may be reduced from time to time
pursuant to subsection 2.7(b) hereof or as a result of one or more assignments
pursuant to Section 10.8, the Lender's "Letter of Credit Commitment"). In
determining the amount of outstanding Letters of Credit, the maximum amount
then undrawn under each Letter of Credit plus any drawings which have not been
reimbursed to the Issuing Bank will be considered outstanding. Each Letter of
Credit shall expire not later than the Termination Date in effect at the time
of issuance or extension. For each requested Letter of Credit, the Borrower
shall give the Administrative Agent and the Issuing Bank not less than five (5)
Business Days' prior written notice by delivery to the Administrative Agent and
the Issuing Bank of a duly completed and executed application for such Letter
of Credit in the form attached hereto as Exhibit G (each, a "Standby Letter of
Credit Agreement"), which the Administrative Agent or the Issuing Bank may
accept or reject in their sole discretion.
The Borrower shall be irrevocably and unconditionally obligated forthwith
without presentment, demand, protest or other formalities of any kind, to
reimburse the Issuing Bank and the Administrative Agent for any amounts paid by
the Issuing Bank or Administrative Agent under any Letter of Credit. The
Borrower hereby authorizes and directs the Lenders, at the Administrative
Agent's option, to make a Revolving Loan in the amount of any payment made by
the Issuing Bank with respect to any Letter of Credit. All amounts paid by the
Administrative
27
Agent to the Issuing Bank with respect to any Letter of Credit that are not
immediately repaid by Borrower with the proceeds of a Revolving Loan or
otherwise shall bear interest at the interest rate then applicable to Revolving
Loans, calculated using the interest rate then in effect. Each Lender agrees to
fund its pro rata share of any Revolving Loan made pursuant to this subsection
2.1(b) and, if no such Revolving Loans are made, each Lender agrees to
purchase, and shall be deemed to have purchased, a participation in all of the
reimbursement obligation and other rights with respect to such Letter of Credit
in an amount equal to its ratable share of such Letter of Credit based upon the
Letter of Credit Commitments then in effect and each Lender agrees to pay to
the Administrative Agent or the Issuing Bank, as applicable, such share of any
payments made by the Administrative Agent or the Issuing Bank, as applicable,
under such Letter of Credit notwithstanding any challenge by the Borrower to
its obligation to reimburse any payments under such Letter of Credit; provided,
however, that each Lender shall be relieved of its obligations in this
sentence, if, and only if, and only to the extent a court of competent
jurisdiction has declared in a final, non-appealable judgment that Borrower is
relieved of its obligation to repay such Revolving Loan or to reimburse the
Issuing Bank for payments made under the applicable Letter of Credit because of
the Issuing Bank's gross negligence or willful misconduct. The obligations of
each Lender under the preceding two (2) sentences shall be absolute and
unconditional and such remittance shall be made notwithstanding the occurrence
or continuation of an Event of Default or Default or the failure to satisfy any
condition set forth in Section 4.2 hereof. If any Lender fails to make
available to the Administrative Agent or the Issuing Bank, as applicable, the
amount of such Lender's share of any payments made by the Administrative Agent
or the Issuing Bank, as applicable, in respect of any Letter of Credit as
provided in this subsection 2. l(b), the Administrative Agent or the Issuing
Bank, as applicable, shall be entitled to recover such amount on demand from
such Lender together with interest thereon at the Federal Funds Rate for the
period in question.
The parties hereto acknowledge and agree that on September 25, 1997,
LaSalle National Bank issued a letter of credit to Borrower in the amount of
$5,000,000.00 subject to customary terms and conditions (the "LaSalle L/C") and
that, notwithstanding anything to the contrary in this Agreement, on and as of
the date this Agreement becomes effective pursuant to the provisions of Section
4.3 hereof, the LaSalle L/C shall become subject to this Agreement and be
deemed to be a Letter of Credit issued by LaSalle National Bank as Issuing Bank
hereunder subject to the terms and conditions described in the form of Letter
of Credit application attached hereto as Exhibit G.
SECTION 2.2 Note.
(a) The Revolving Loans made by the Lenders shall be evidenced by a single
Revolving Note (the "Note") payable to the order of the Administrative Agent
for the benefit of the Lenders in substantially the form of Exhibit C to the
Original Credit Agreement, in an amount equal to the Aggregate Revolving Loan
Commitments of all Lenders. The note executed pursuant to the Original Credit
Agreement shall continue to evidence all such Revolving Loans and need not be
replaced by a substitute note.
(b) The Administrative Agent may, from time to time, and is irrevocably
authorized by the Borrower to, endorse on the schedules annexed to the Note the
amount of each Revolving
28
Loan made thereunder, the applicable interest rates, all payments of principal
and interest thereon and the principal balance thereof from time to time
outstanding; provided. however, that the failure to make, or an error in
making, a notation thereon with respect to any Revolving Loan shall not limit
or otherwise affect the obligations of the Borrower hereunder or under the
Note.
SECTION 2.3 Revolving Loan Accounts. The Administrative Agent on behalf of
the Lenders, shall record on its books and records the amount of each Revolving
Loan made, the interest rate applicable, all payments of principal and interest
thereon and the principal balance thereof from time to time outstanding, and
the record thereof shall, absent manifest error be conclusive evidence of the
amount of the Revolving Loans made by the Lenders to the Borrower and the
interest and payments thereon. Any failure so to record or any error in doing
so shall not, however, limit or otherwise affect the obligation of the Borrower
hereunder (and under the Note) to pay any amount owing with respect to the
Revolving Loans.
SECTION 2.4 Procedure for Revolving Credit Borrowing.
(a) Each Borrowing shall be made upon the Borrower's irrevocable written
notice or telephonic notice confirmed promptly in writing delivered to the
Administrative Agent in the form of a Notice of Borrowing, which notice must be
received by the Administrative Agent prior to 10:00 a.m. (Chicago time) (x) on
the requested Borrowing date in the case of each Base Rate Revolving Loan and
(y) on the day which is three (3) Business Days prior to the requested
Borrowing date in the case of each LIBOR Rate Revolving Loan. Such Notice of
Borrowing shall specify:
(i) the amount of the Borrowing (which, in the case of both LIBOR Rate
Revolving Loans and Base Rate Revolving Loans, shall be in an aggregate minimum
principal amount of $5,000,000 or any multiple of $1,000,000 in excess
thereof);
(ii) the requested Borrowing date, which shall be a Business Day;
(iii) whether the Borrowing is to be comprised o~ Revolving Loans or Base
Rate Revolving Loans; and
(iv) if the Borrowing is to be LIBOR Rate Revolvi Interest Period
applicable to such Revolving Loans;
provided, however, that with respect to the Borrowing to be made on the Closing
Date, the Notice of Borrowing shall be delivered to the Administrative Agent
not later than 2:00 p.m. (Chicago time) one Business Day before the Closing
Date and such Borrowing will consist of Base Rate Revolving Loans only.
(b) Upon receipt of the Notice of Borrowing, the Administrative Agent will
promptly notify each Lender thereof and of the amount of such Lender's
Commitment Percentage of the Borrowing.
29
(c) After giving effect to any Borrowing, there shall not be mor~
different Interest Periods in effect.
SECTION 2.5 Conversion and Continuation Elections.
(a) Subject to the provisions of this Agreement, the Borrower may upo~
irrevocable written notice or telephonic notice confirmed promptly in writing
to the Administrative Agent in accordance with subsection 2.5(b) below:
(i) elect to convert on any Business Day, any Base Rate Revolving Loans
(or any part thereof in an amount not less than $5,000,000, or that is in an
integral multiple of $1,000,000 in excess thereof) into LIBOR Rate Revolving
Loans or;
(ii) elect to convert on the last day of the applicable Interest Period
any LIBOR Rate Revolving Loans having Interest Periods maturing on such day (or
any part thereof in an amount not less than $5,000,000, or that is in an
integral multiple of $1,000,000 in excess thereof) into Base Rate Revolving
Loans; or
(iii) elect to renew on the last day of the applicable Interest Period any
LIBOR Rate Revolving Loans having Interest Periods maturing on such day (or any
part thereof in an amount not less than $5,000,000, or that is in an integral
multiple of $1,000,000 in excess thereof);
provided, that if the aggregate amount of LIBOR Rate Revolving Loans in respect
of any Borrowing shall have been reduced, by payment, prepayment, or conversion
of part thereof to be less than $5,000,000, such LIBOR Rate Revolving Loans
shall automatically convert into Base Rate Revolving Loans, and on and after
such date the right of the Borrower to continue such Revolving Loans as, and
convert such Revolving Loans into, LIBOR Rate Revolving Loans, as the case may
be, shall terminate.
(b) The Borrower shall deliver a Notice of Conversion/Continuation to be
received by the Administrative Agent not later than 10:00 a.m. (Chicago time)
at least three (3) Business Days in advance of the requested Conversion Date or
Continuation Date, if the Revolving Loans are to be converted into or continued
as LIBOR Rate Revolving Loans and on the requested Conversion Date, if the
Revolving Loans are to be converted into Base Rate Revolving Loans, specifying:
(i) the proposed Conversion Date or Continuation Date;
renewed;
(ii) the aggregate amount of Revolving Loans to be converted or
(iii) the nature of the proposed conversion or continuation; and
30
(iv) the duration of the requested Interest Period with respect to any
Revolving Loans to be converted or continued as LIBOR Rate Revolving Loans.
(c) If upon the expiration of any Interest Period applicable to LIBOR Rate
Revolving Loans, the Borrower has failed to select timely a new Interest Period
to be applicable to such LIBOR Rate Revolving Loans, as the case may be, or if
any Default or Event of Default shall then exist, the Borrower shall be deemed
to have elected to convert such LIBOR Rate Revolving Loans into Base Rate
Revolving Loans effective as of the expiration date of such current Interest
Period.
(d) Upon receipt of a Notice of Conversion/Continuation, the
Administrative Agent will promptly notify each Lender thereof, or, if no timely
notice is provided by the Borrower, the Administrative Agent will promptly
notify each Lender of the details of any automatic conversion. All conversions
and continuations shall be made pro rata according to the respective
outstanding principal amounts of the Revolving Loans with respect to which the
notice was given held by each Lender.
(e) During the existence of a Default or Event of Default, the Borrower
may not elect to have any Revolving Loan converted into or continued as a LIBOR
Rate Revolving Loan.
(f) Notwithstanding any other provision contained in this Agreement, after
giving effect to any conversion or continuation of any Revolving Loans, there
shall not be more than ten (10) different Interest Periods in effect.
SECTION 2.6 Optional Prepayments. Subject to Section 3.4, the Borrower
may, at any time or from time to time, upon at least three (3) Business Days'
notice to the Administrative Agent for LIBOR Rate Revolving Loans and one (1)
Business Days' notice to the Administrative Agent for Base Rate Revolving
Loans, ratably among the Lenders prepay Revolving Loans in whole or in part, in
amounts of $5,000,000 or any multiple of $1,000,000 in excess thereof. Such
notice of prepayment shall specify the date and amount of such prepayment and
whether such prepayment is of Base Rate Revolving Loans or LIBOR Rate Revolving
Loans, or any combination thereoL. Such notice shall not thereafter be
revocable by the Borrower and the Administrative Agent will promptly notify
each Lender thereof and of such Lender's Revolving Loan Commitment Percentage
of such prepayment. If such notice is given by the Borrower, the Borrower shall
make such prepayment and the payment amount specified in such notice shall be
due and payable on the date specified therein, together with any amounts
required pursuant to Section 3.4 and, for LIBOR Rate Revolving Loans, accrued
interest to each such date on the amount prepaid.
SECTION 2.7 Final Pavment: Optional Reduction of Aggregate Commitment.
(a) Final Payment. The Borrower shall repay to the Lenders in full on the
Termination Date the aggregate principal amount of the Revolving Loans
outstanding on such date together with all other amounts owing (including all
accrued interest, whether billed or unbilled) by the Borrower to the Lenders
hereunder.
31
(b) Optional Revolving Loan Commitment Reduction. The Borrower may, at its
option from time to time, by providing five (5) Business Days' irrevocable
written notice or telephonic notice promptly confirmed in writing, to the
Administrative Agent, permanently reduce the amount of either or both of the
Aggregate Revolving Loan Commitment or the Aggregate Letter of Credit
Commitment in the minimum amount, in each case, of $5,000,000, or any multiple
of $1,000,000 in excess thereof, to any amount equal to or greater than the
aggregate principal amount of all outstanding Revolving Loans and Letters of
Credit. The Administrative Agent will promptly notify each Lender of such
notice and of each Lender's reduced Revolving Loan Commitment or Letter of
Credit Commitment (which shall be reduced pro rata among all Lenders based on
the Lenders' respective Commitment Percentage).
SECTION 2.8 Interest.
(a) Subject to subsection 3.4, each Revolving Loan shall bear interest on
the outstanding principal amount thereof from the date when made at a rate per
annum equal to the LIBOR or the Base Rate, as the case may be, plus the
Applicable Margin, as the same may be adjusted pursuant to the provisions of
the definition of Applicable Margin.
(b) Interest on each Revolving Loan shall be paid in arrears on each
Interest Payment Date. Interest shall also be paid on the date of any payment
or prepayment of Revolving Loans in full at the Termination Date pursuant to
Section 2.7(a) or simultaneously with a reduction of the Revolving Loan
Commitments to zero pursuant to Section 2.~(b), and, during the existence of
any Event of Default, interest shall be payable on demand of the Administrative
Agent.
(c) While any Event of Default exists and is continuing or after maturity
of the Revolving Loans (whether by acceleration or otherwise), unless the
Majority Lenders shall otherwise then agree, the Borrower shall pay interest
(after as well as before entry of judgment thereon to the extent permitted by
law) on the principal amount of all Obligations due and unpaid, at a rate per
annum which is determined by adding two percent (2%) per annum to the
Applicable Margin then in effect for such Revolving Loans and, in the case of
Obligations not subject to an Applicable Margin, at a rate per annum equal to
the Base Rate plus two percent (2%); provided, however, that, on and after the
expiration of any Interest Period applicable to any LIBOR Rate Revolving Loan
outstanding on the date of occurrence of such Event of Default or maturity, the
principal amount of such Revolving Loan shall, during the continuation of such
Event of Default or after acceleration, bear interest at a rate per annum
equal to the Base Rate plus two percent (2%).
(d) Anything herein to the contrary notwithstanding, the obligations of
the Borrower hereunder shall be subject to the limitation that payments of
interest shall not be required, for any period for which interest is computed
hereunder, to the extent (but only to the extent) that contracting for or
receiving such payment by the respective Lender would be contrary to the
provisions of any law applicable to such Lender limiting the highest rate of
interest which may be
32
lawfully contracted for, charged or received by such Lender, and in such event
the Borrower shall pay such Lender interest at the highest rate permitted by
applicable law.
SECTION 2.9 Fees.
(a) Commitment and Agencv Fees. Pursuant to the terms of a letter
agreement between the Borrower and the Administrative Agent dated June 11,
1997, the Borrower shall pay to the Administrative Agent (i) on the Closing
Date, a commitment fee (the "Commitment Fee"), and (ii) on the dates set forth
in the letter agreement, agency fees (the "Agency Fees").
(b) Facility Fee. The Borrower shall pay to the Administrative Agent for
the account of each Lender a facility fee ("Facility Fee") on the average daily
portion of such Lender's Revolving Loan Commitment calculated on the basis of ~
360-day year and the actual days multiplied by the Applicable Margin. Facility
Fees shall accrue from the Closing Date to the Termination Date and shall be
due and payable quarterly in arrears on the last Business Day of each
September, December, March and June, commencing on September 30, 1997 except
that the final payment shall be made on the Termination Date. The Facility Fees
provided in this subsection 2.9(b) shall accrue at all times after the Closing
Date, including at any time during which one or more conditions in Article 4
hereof are not met.
(c) Letter of Credit Fees. The Borrower shall pay to the Administrative
Agent (i) for the account of the Issuing Bank a letter of credit fronting fee
of five basis points for each Letter of Credit issued by the Issuing Bank, and
(ii) for the pro rata account of each of the Lenders, on each Interest Payment
Date with respect to Base Rate Revolving Loans, for the time period since the
previous Interest Payment Date, a letter of credit fee calculated on a daily
basis by multiplying the Applicable LIBOR Margin in effect on such day by the
outstanding balance of all Letters of Credit on such day and then dividing the
product by 360.
SECTION 2.10 Computation of Fees and Interest.
(a) Interest payable under this Agreement shall be calculated on the basis
of actual days elapsed in a 360-day year for LIBOR Rate Revolving Loans and in
a 365-day year for Base Rate Revolving Loans. Interest and fees shall accrue
during each period during which interest or such fees are computed from the
first day thereof to the last day thereof.
(b) The Administrative Agent will, with reasonable promptness, notify the
Borrower and the Lenders of each determination of a LIBOR Rate; provided that
any failure to do so shall not relieve the Borrower of any liability hereunder
or provide the basis for any claim against the Administrative Agent. Any
change in the interest rate on a Revolving Loan resulting from a change in the
Applicable Margin shall become effective as of the opening of business on the
day on which such change in the Applicable Margin becomes effective. The
Administrative Agent will with reasonable promptness notify the Borrower and
the Lenders of the effective date and the amount of each such change, provided
that any failure to do so shall not relieve the Borrower of any liability
hereunder or provide the basis for any claim against the Administrative Agent.
33
(c) Each determination of an interest rate by the Administrative Agent
shall be conclusive and binding on the Borrower and the Lenders in the absence
of manifest error.
SECTION 2. 11 Pavments bv the Borrower.
(a) All payments (including prepayments) to be made by the Borrower on
account of principal, interest, fees and other amounts required hereunder shall
be made without setoff, recoupment or counterclaim, shall, except as otherwise
expressly provided herein, be made to the Administrative Agent for the ratable
account of the Lenders at the Administrative Agent's Payment Office, and shall
be made in United States dollars and in immediately available funds, no later
than 1:00 p.m. (Chicago time) on the date specified herein. The Administrative
Agent will promptly distribute to each Lender its Commitment Percentage (or
other applicable share as expressly provided herein) of such principal,
interest, fees or other amounts, in like funds as received. Any payment which
is received by the Administrative Agent later than 1:00 p.m. (Chicago time)
shall be deemed to have been received on the immediately succeeding Business
Day and any applicable interest or fee shall continue to accrue.
(b) Subject to the provisions set forth in the definition of"Interest
Period" herein, if any payment hereunder shall be stated to be due on a day
other than a Business Day, such payment shall be made on the next succeeding
Business Day, and such extension of time shall in such case be included in the
computation of interest or fees, as the case may be.
(c) Unless the Administrative Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the Lenders hereunder
that the Borrower will not make such payment in full as and when required
hereunder, the Administrative Agent may assume that the Borrower has made such
payment in full to the Administrative Agent on such date in immediately
available funds and the Administrative Agent may (but shall not be so
required), in reliance upon such assumption, cause to be distributed to each
Lender on such due date an amount equal to the amount then due such Lender. If
and to the extent the Borrower shall not have made such payment in full to the
Administrative Agent, each Lender shall repay to the Administrative Agent on
demand such amount distributed to such Lender, together with interest thereon
for each day from the date such amount is distributed to such Lender until the
date such Lender repays such amount to the Administrative Agent, at the Federal
Funds Rate as in effect for each such day, and the Borrower shall pay to the
Administrative Agent a processing fee in the amount of $200 for each such
payment for which the Administrative Agent makes demand to any Lender.
SECTION 2.12 Payments bv the Lenders to the Administrative Agent.
(a) Unless the Administrative Agent shall have received notice from a
Lender on the Closing Date or, with respect to each Borrowing after the Closing
Date, on the date of any proposed Borrowing, that such Lender will not make
available to the Administrative Agent as and when required hereunder for the
account of the Borrower the amount of that Lender's Revolving Loan Commitment
Percentage of the Borrowing, the Administrative Agent may assume that each
Lender has made such amount available to the Administrative Agent in
34
immediately available funds on the applicable Borrowing date and the
Administrative Agent may (but shall not be so required), in reliance upon such
assumption, make available to the Borrower on such date a corresponding amount.
If and to the extent any Lender shall not have made its full amount available
to the Administrative Agent in immediately available funds and the
Administrative Agent in such circumstances has made available to the Borrower
such amount, that Lender shall on the next Business Day following the date of
such Borrowing make such amount available to the Administrative Agent, together
with a processing fee of $200 and interest at the Federal Funds Rate for and
determined as of each day during such period. A notice of the Administrative
Agent submitted to any Lender with respect to amounts owing under this
subsection 2.12(a) shall be conclusive, absent manifest error. If such amount
is so made available, such payment to the Administrative Agent shall constitute
such Lender's Revolving Loan on the date of Borrowing for all purposes of this
Agreement. If such amount is not made available to the Administrative Agent on
the next Business Day following the date of such Borrowing, the Administrative
Agent shall notify the Borrower of such failure to fund and, upon demand by the
Administrative Agent, the Borrower shall pay such amount to the Administrative
Agent for the Administrative Agent's account, together with interest thereon
for each day elapsed since the date of such Borrowing, at a rate per annum
equal to the interest rate applicable (including the Applicable Margin) at the
time to the Revolving Loans comprising such Borrowing.
(b) The failure of any Lender to make any Revolving Loan on any date of
Borrowing shall not relieve any other Lender of any obligation hereunder to
make a Revolving Loan on the date of such Borrowing, but no Lender shall be
responsible for the failure of any other Lender to make the Revolving Loan to
be made by such other Lender on the date of any Borrowing.
SECTION 2. 13 Sharing of Payments. Etc. If, other than as expressly
provided elsewl herein, any Lender shall obtain on account of the Revolving
Loans made by it any payment (whether voluntary, involuntary, through the
exercise of any right of set-off including under Section 10.10 of this
Agreement, or otherwise) in excess of its Commitment Percentage of payments on
account of the Revolving Loans obtained by all the Lenders, such Lender shall
forthwith.
(i) notify the Administrative Agent of such fact; and
(ii) purchase from the other Lenders such Participations in the Revolving
Loans made by them as shall be necessary to cause such purchasing Lender to
share the excess payment ratably with each of them; provided, however, that if
all or any portion of such excess payment is thereafter recovered from the
purchasing Lender, such purchase shall to that extent be rescinded and each
other Lender shall repay to the purchasing Lender the purchase price paid
therefor, together with an amount equal to such paying Lender's Commitment
Percentage (according to the proportion of (i) the amount of such paying
Lender's required repayment to (ii) the total amount so recovered from the
purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered.
35
The Borrower agrees that any Lender so purchasing a participation from another
Lender pursuant to this Section 2.13 may, to the fullest extent permitted by
law, exercise all its rights of payment (including the right of set-off, but
subject to Section 10.10) with respect to such participation as fully as if
such Lender were the direct creditor of the Borrower in the amount of such
participation. The Administrative Agent will keep records (which shall be
conclusive and binding in the absence of manifest error) of participations
purchased pursuant to this Section 2.13 and will in each case notify the
Lenders following any such purchases or repayments.
ARTICLE 3
TAXES, YIELD PROTECTION AND ILLEGALITY
SECTION 3.1 Taxes.
(a) Subject to subsection 3. l(g), any and all payments by the Borrower to
each Lender or the Administrative Agent under this Agreement shall be made free
and clear of, and without deduction or withholding for, any and all present or
future taxes, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding, in the case of each Lender and the
Administrative Agent, such taxes (including income taxes or franchise taxes) as
are imposed on or measured by each Lender's net income by the jurisdiction
under the laws of which such Lender or the Administrative Agent, as the case
may be, is organized or maintains a Lending Office or otherwise does business
or any political subdivision thereof (all such non-excluded taxes, levies,
imposts, deductions, charges, withholdings and liabilities being hereinafter
referred to as "Taxes").
(b) In addition, the Borrower shall pay any present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies which arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement or
any other Revolving Loan Documents (hereinafter referred to as L`Other
Taxes,').
(c) Subject to subsection 3.1(g), the Borrower shall indemnify and hold
harmless each Lender and the Administrative Agent for the full amount of Taxes
or Other Taxes (including any Taxes or Other Taxes imposed by any jurisdiction
on amounts payable under this Section 3.1) paid by the Lender or the
Administrative Agent and any liability (including penalties, interest,
additions to tax and expenses) arising therefrom or with respect thereto,
whether or not such Taxes or Other Taxes were correctly or legally asserted.
Payment under this indemnification shall be made within thirty (30) days from
the date the Lender or the Administrative Agent makes written demand therefor.
(d) If the Borrower shall be reauired bv law to deduct or withhold or
Other Taxes from or in respect of any sum payable hereunder to any Lender or
the Administrative Agent, then, subject to subsection 3. l(g):
36
(i) the sum payable shall be increased as necessary so that after making
all required deductions (including deductions applicable to additional sums
payable under this Section 3.1) such Lender or the Administrative Agent, as the
case may be, receives an amount equal to the sum it would have received had no
such deductions been made;
(ii) the Borrower shall make such deductions; and
(iii) the Borrower shall pay the full amount deducted taxation authority
or other authority in accordance with applicable law.
(e) Within thirty (30) days after the date of any payment by the Borrower
of Taxes or Other Taxes, the Borrower shall furnish to the Administrative Agent
the original or a certified copy of a receipt evidencing payment thereof, or
other evidence of payment satisfactory to the Administrative Agent.
(f) Each Lender which is a foreign person (i.e., a person other States
person for United States Federal income tax purposes) agrees that:
(i) it shall, no later than the Closing Date (or, in the case of a Lender
which becomes a party hereto pursuant to Section 10.8 after the Closing Date,
the date upon which the Lender becomes a party hereto) deliver to the Borrower
through the Administrative Agent two accurate and complete signed originals of
Internal Revenue Service Form 4224 or any successor thereto ("Form 4224"), or
two accurate and complete signed originals of Internal Revenue Service Form
1001 or any successor thereto (`'Form 1001"), as appropriate, in each case
indicating that the Lender is on the date of delivery thereof entitled to
receive payments of principal, interest fees and other amounts under this
Agreement free from any deduction for or withholding of United States Federal
income tax;
(ii) if at any time the Lender makes any changes necessitating a new Form
4224 or Form 1001, it shall with reasonable promptness deliver to the Borrower
through the Administrative Agent in replacement for, or in addition to, the
forms previously delivered by it hereunder, two accurate and complete signed
originals of Forrn 4224, or two accurate and complete signed originals of Form
1001, as appropriate, in each case indicating that the Lender is on the date of
delivery thereof entitled to receive payments of principal, interest, fees and
other amounts under this Agreement free from withholding of United States
Federal income tax;
(iii) it shall, before or promptly after the occurrence of any event
(including the passing of time but excluding any event mentioned in (ii) above)
requiring a change in or renewal of the most recent Form 4224 or Form 1001
previously delivered by such Lender and deliver to the Borrower through the
Administrative Agent two accurate and complete original signed copies of Form
4224 or Form 1001 in replacement for the forms previously delivered by the
Lender as appropriate, in each case indicating that the Lender is on the date
of delivery thereof entitled to receive payments of principal, interest, fees
and other amounts under this Agreement free from withholding of United States
Federal income tax; and
37
(iv) it shall, promptly upon the Borrower's or the Administrative Agent's
reasonable request to that effect, deliver to the Borrower or the
Administrative Agent (as the case may be) such other forms or similar
documentation as may be required from time to time by any applicable law,
treaty, rule or regulation in order to establish such Lender's tax status for
withholding purposes.
(g) The Borrower will not be required to pay any additional amounts in
respec of United States Federal income tax pursuant to subsection 3. l(d) to
any Lender for the account of any Lending Office of such Lender (and the
Borrower shall appropriately withhold or deduct Taxes):
(i) if the obligation to pay such additional amounts (or withhold or
deduct Taxes) would not have arisen but for a failure by such Lender to comply
with its obligations under subsection 3. l(f) in respect of such Lending
Office;
(ii) if such Lender shall have delivered to the Borrower a Form 4224 in
respect of such Lending Office pursuant to subsection 3.1(f), and such Lender
shall not at any time be entitled to a full and complete exemption from
deduction or withholding of United States Federal income tax in respect of
payments by the Borrower hereunder for the account of such Lending Office for
any reason other than a change in United States law or regulations or in the
official interpretation of such law or regulations by any governmental
authority charged with the interpretation or administration thereof (whether or
not having the force of law) after the date of delivery of such Form 4224; or
(iii) if the Lender shall have delivered to the Borrower a Form 1001 in
respect of such Lending Office pursuant to subsection 3. l(f), and such Lender
shall not at any time be entitled to a full and complete exemption from
deduction or withholding of United States Federal income tax in respect of
payments by the Borrower hereunder for the account of such Lending Office for
any reason other than a change in United States law or regulations or any
applicable tax treaty or regulations or in the official interpretation of any
such law, treaty or regulations by any governmental authority charged with the
interpretation or administration thereof (whether or not having the force of
law) after the date of delivery of such Form 1001.
(h) If, at any time, the Borrower requests any Lender to deliver any forms
o other documentation pursuant to subsection 3. l(f)(iv), then the Borrower
shall, on demand of such Lender through the Administrative Agent, reimburse
such Lender for any reasonable costs and expenses (including Attomey Costs)
reasonably incurred by such Lender in the preparation or delivery of such forms
or other documentation.
(i) If the Borrower is required to pay additional amounts to any Lender or
the Administrative Agent pursuant to subsection 3. l(d), then such Lender shall
use its reasonable efforts (consistent with legal and regulatory restrictions)
to change the jurisdiction of its Lending Office so as to eliminate any such
additional payment by the Borrower which may thereafter accrue if such change
in the judgment of such Lender is not otherwise materially disadvantageous to
such Lender.
38
SECTION 3.2 Illegality.
(a) If any Lender shall determine that the introduction of any Requirement
of Law, or any change in any Requirement of Law or in the interpretation or
administration thereof, has made it unlawful, or that any central bank or other
Governmental Authority has asserted that it is unlawful, for any Lender or its
Lending Office to make LIBOR Revolving Loans, then, on notice thereof by the
Lender to the Borrower through the Administrative Agent, the obligation of that
Lender to make LIBOR Rate Revolving Loans shall be suspended until the Lender
shall have not)fied the Administrative Agent and the Borrower that the
circumstances giving rise to such determination no longer exist.
(b) If a Lender shall determine that it is unlawful to maintain any LIBOR
Rate Revolving Loan, the Borrower shall prepay in full all LIBOR Rate Revolving
Loans of that Lender then outstanding (or convert such Revolving Loan to Base
Rate Revolving Loans), together with interest accrued thereon, either on the
last day of the Interest Period thereof if the Lender may lawfully continue to
maintain such LIBOR Rate Revolving Loans to such day, or immediately, if the
Lender may not lawfully continue to maintain such LIBOR Rate Revolving Loans,
together with any amounts required to be paid in connection therewith pursuant
to Section 3.4.
(c) If the obligation of any Lender to make or maintain LIBOR Rate
Revolving Loans has been terminated, the Borrower may elect, by giving notice
to the Lender through the Administrative Agent that all Revolving Loans which
would otherwise be made by the Lender as LIBOR Rate Revolving Loans shall be
instead Base Rate Revolving Loans.
(d) Before giving any notice to the Administrative Agent pursuant to this
Section 3.2, the affected Lender shall designate a different Lending Office
with respect to its LIBOR Rate Revolving Loans if such designation will avoid
the need for giving such notice or making such demand and will not, in the
judgment of the Lender, be illegal or otherwise materially disadvantageous to
the Lender.
SECTION 3.3 Increased Costs and Reduction of Return.
(a) If any Lender shall determine that, due to either (i) the introduction
of or any change in or in the interpretation of any law or regulation after the
Closing Date or (ii) the compliance with any guideline or request from any
central bank or other Governmental Authority issued after the Closing Date
(whether or not having the force of law), there shall be any increase in the
cost to such Lender of agreeing to make or making, funding or maintaining any
LIBOR Rate Revolving Loans, then the Borrower shall be liable for, and shall
from time to time, upon demand therefor by such Lender (with a copy of such
demand to the Administrative Agent), pay to the Administrative Agent for the
account of such Lender, additional amounts as are sufficient to compensate such
Lender for such increased costs.
(b) If any Lender shall have determined that:
39
Closing Date;
Date;
(i) the introduction of any Capital Adequacy Regulation after the
(ii) any change in any Capital Adequacy Regulation after the Closing
(iii) any change after the Closing Date in the interpretation or
administration of any Capital Adequacy Regulation by any central bank or other
Governmental Authority charged with the interpretation or administration
thereof; or
(iv) compliance by the Lender (or its Lending Office) or any corporation
controlling the Lender, with any Capital Adequacy Regulation issued after the
Closing Date; affects or would affect the amount of capital required or
expected to be maintained by the Lender or any corporation controlling the
Lender and (taking into consideration such Lender's or such corporation's
policies with respect to capital adequacy and such Lender's desired return on
capital) determines that the amount of such capital is increased as a
consequence of its Revolving Loan Commitment, Revolving Loans, Letter of Credit
Commitment, participation in the Letters of Credit, credits or obligations
under this Agreement, then, upon demand of such Lender (with a copy to the
Administrative Agent), the Borrower shall pay to the Lender, from time to time
as specified by the Lender, additional amounts sufficient to compensate the
Lender for such increase.
(c) Before giving any notice to the Administrative Agent pursuant to this
Section 3.3, the affected Lender shall designate a different Lending Office
with respect to its LIBOR Rate Revolving Loans if such designation will avoid
the need for giving such notice or making such demand and will not, in the
judgment of the Lender, be illegal or otherwise materially disadvantageous to
the Lender.
SECTION 3.4 Funding Losses. The Borrower agrees to reimburse each Lender
and to hold each Lender harmless from any loss or expense which the Lender may
sustain or incur as a consequence of:
- (a) the failure of the Borrower to make any payment of principal of any
LIBOR Rate Revolving Loan (including payments made after any acceleration
thereof);
(b) the failure of the Borrower to borrow, continue or convert a Revolvin
Loan after the Borrower has given (or is deemed to have given) a Notice of
Borrowing or a Notice of Conversion or Continuation;
(c) the failure of the Borrower to make any prepayment after the Borrower
has given a notice in accordance with Section 2.6;
40
(d) the prepayment of a LIBOR Rate Revolving Loan on a day which is not
the last day of the Interest Period with respect thereto; or
(e) the conversion pursuant to Section 2.5 of any LIBOR Rate Revolving
Loan to a Base Rate Revolving Loan on a day that is not the last day of the
applicable Interest Period;
including any such loss or expense arising from the liquidation or reemployment
of funds obtained by it to maintain its LIBOR Rate Revolving Loans hereunder or
from fees payable to terminate the deposits from which such funds were
obtained. Solely for purposes of calculating amounts payable by the Borrower to
the Lenders under this Section 3.4 and under subsection 3.3(b), each LIBOR Rate
Revolving Loan made by a Lender (and each related reserve, special deposit or
similar requirement) shall be conclusively deemed to have been funded at the
LIBOR Rate used in determining the interest rate for such LIBOR Rate Revolving
Loan by a matching deposit or other borrowing in the interbank eurodollar
market for a comparable amount and for a comparable period, whether or not such
LIBOR Rate Revolving Loan is in fact so funded.
SECTION 3 .5 Inabilitv to Determine Rates. If the Administrative Agent
shall have determined that for any reason adequate and reasonable means do not
exist for ascertaining the LIBOR Rate for any requested Interest Period with
respect to a proposed LIBOR Rate Revolving Loan or that the LIBOR Rate
applicable pursuant to subsection 2.8(a) for any requested Interest Period with
respect to a proposed LIBOR Rate Revolving Loan does not adequately and fairly
reflect the cost to the Lenders of funding such Revolving Loan, the
Administrative Agent will forthwith give notice of such determination to the
Borrower and each Lender. Thereafter, the obligation of the Lenders to make or
maintain LIBOR Rate Revolving Loans hereunder shall be suspended until the
Administrative Agent revokes such notice in writing. Upon receipt of such
notice, the Borrower may revoke any Notice of Borrowing or Notice of
ConversionlContinuation then submitted by it. If the Borrower does not revoke
such notice, the Lenders shall make, convert or continue the Revolving Loans,
as proposed by the Borrower, in the amount specified in the applicable notice
submitted by the Borrower, but such Revolving Loans shall be made, converted or
continued as Base Rate Revolving Loans.
SECTION 3.6 Reserves on LlBOR Rate Revolving Loans. The Borrower shall pay
to each Lender, as long as such Lender shall be required under regulations of
the Federal Reserve Board to maintain reserves with respect to liabilities or
assets consisting of or including Eurocurrency funds or deposits (currently
known as "Eurocurrencv liabilities"), additional costs on the unpaid principal
amount of each LIBOR Rate Revolving Loan equal to actual costs of such reserves
allocated to such Revolving Loan by the Lender (as determined by the Lender in
good faithj which determination shall be conclusive), payable on each date on
which interest is payable on such Revolving Loan provided the Borrower shall
have received at least fifteen (15) days' prior written notice (with a copy to
the Administrative Agent) of such additional interest from the Lender. If a
Lender fails to give notice fifteen (15) days prior to the relevant Interest
Payment Date, such additional interest shall be payable fifteen (15) days from
receipt of such notice.
41
SECTION 3.7 Certificates of Lenders. Any Lender claiming reimbursement or
compensation pursuant to this Article 3 shall deliver to the Borrower (with a
copy to the Administrative Agent) a certificate setting forth in reasonable
detail the circumstances which give rise to such claim and the amount payable
to the Lender hereunder and such certificate shall be conclusive and binding on
the Borrower in the absence of manifest error.
SECTION 3.8 Replacement of Lenders. If at any time a Lender fails to fund
all or any portion of its Revolving Loan Commitment (a "Defaulting Lender"),
requests a payment pursuant to Section 3.3 hereof (a "Gross Up Lender") or is
subject to United States withholding tax with respect to the transactions
hereunder, the Borrower shall have the right to replace such Lender with any
Person with the consent of the Administrative Agent, which consent shall not be
unreasonably withheld; provided, that (i) neither the Administrative Agent nor
any Lender shall have any obligation to the Borrower to find such other Person,
(ii) in order for the Borrower to be entitled to replace such a Lender, such
replacement must take place no later than one hundred fifty (150) days after
the date the applicable Lender becomes a Defaulting Lender, a Gross Up Lender,
or becomes subject to United States withholding tax with respect to the
transactions hereunder and (iii) such Lender shall be an Eligible Assignee.
Each Lender agrees to its replacement at the option ofthe Borrower pursuant to
this Section 3.8; provided that the successor Lender shall purchase without
recourse such Lender's interest in the Obligations and rights and obligations
under the Revolving Loan Documents for cash in an aggregate amount equal to the
aggregate unpaid principal amount owing to such selling lender hereunder, all
unpaid interest accrued thereon, and all other amounts then owing by the
Borrower to such Lender hereunder or under any other Revolving Loan Documents.
SECTION 3.9 Survival. The covenants, agreements and obligations of the
Xxxx~ this Article 3 shall survive the payment of all other Obligations.
ARTICLE 4
CONDITIONS PRECEDENT
SECTION 4 1 Conditions of Initial Revolving Loans. The obligation of each
Lender to make its initial Revolving Loan on or before the Closing Date was
subject to the condition that the Administrative Agent shall have received, on
or before the Closing Date, all of the following, which condition the parties
agree was previously satisfied:
(a) Credit Agreement and Note. The Original Credit Agreement and the Note;
(b) Secretary's Certificates: Resolutions: Incumbencv. A c~ Secretary or
Assistant Secretary of the Borrower certifying:
(i) the names and true signatures of the officers of the Borrower
authorized to execute, deliver and perform, as applicable, the Original Credit
Agreement, all other Revolving Loan Documents to be delivered thereunder and
notices to be delivered to the Administrative Agent; and
42
(ii) copies of the resolutions of the board of directors of the Borrower
approving and authorizing the execution, delivery and performance by the
Borrower of the Original Credit Agreement and the other Revolving Loan
Documents to be executed or delivered by it thereunder;
(c) Articles of Incorporation: Bv-laws and Good Standing. Each of the
following documents:
(i) the articles or certificate of incorporation of the Borrower and each
Subsidiary as in effect on the Closing Date, certified by the Secretary of
State (or similar, applicable Governmental Authority) of the state of
incorporation of such Person as of a recent date, and the bylaws of the
Borrower as in effect on the Closing Date, certified by the Secretary or
Assistant Secretary of the Borrower as of the Closing Date; and
(ii) a good standing and tax good standing certificate for the Borrower
from the Secretary of State (or similar, applicable Governmental Authority) of
its state of incorporation.
(d) Legal Opinions. An opinion of Xxxxxx & Xxxxxxx, counsel to the
Borrower and addressed to the Administrative Agent and the Lenders,
substantially in the form of Exhibit D;
(e) Certificate. A certificate signed by a Responsible Offficer, d Closing
Date, stating that:
(i) the representations and warranties contained in Article 5 hereof a~
true and correct on and as of such date, as though made on and as of such date;
(ii) no Default or Event of Default exists or would result from the
initial Borrowing; and
(iii) there has occurred since December 31, 1996, no event or circumstance
that has resulted or could reasonably be expected to result in a Material
Adverse Effect;
(f) Fees. Payment of all of the Administrative Agent's outstanding fees,
including the Agency Fee and the Commitment Fee which are payable at or prior
to the Closing Date.
(g) Acquisition Transactions.
(i) copies of the fully executed Acquisition Documents;
(ii) a certification that the conditions to the closing of t Transactions
have been satisfied or waived; and
(iii) a certification that since the delivery of the Acquisition Documents
to the Administrative Agent on or about June 18, 1997, no material amendments,
revisions or supplements have been made to the Acquisition Documents; and
43
(h) Other Documents. Such other approvals, opinions, document as the
Administrative Agent may reasonably request.
SECMON 4.2 Conditions to All Borrowings and Issuances of Letters of
Credit. The obligation of each Lender to make any Revolving Loan and of any
Issuing Bank to issue any Letter of Credit hereunder is subject to the
satisfaction of the following conditions precedent on the relevant borrowing,
continuation or conversion date:
(a) Notice of Borrowing. Continuation or Conversion. The Administrative
'Agent shall have received a Notice of Borrowing or a Notice of
Continuation/Conversion, as applicable.
(b) Application and Request for Letter of Credit. For each Letter of
Credit requested, the Administrative Agent and the Issuing Bank shall have
received not less than five (5) Business Days' prior written notice of such
requested Letter of Credit accompanied by a completed application in the form
attached hereto as Exhibit G.
(c) Continuation of Representations and Warranties. With respect to any
Borrowing, the representations and warranties made by the Borrower contained in
Article 5 shall be true and correct on and as of such Borrowing with the same
effect as if made on and as of such Borrowing (except to the extent such
representations and warranties expressly refer to an earlier date, in which
case they shall be true and correct as of such earlier date); and
(d) No Existing Default. No Default or Event of Default shal result from
such Borrowing or continuation or conversion.
Each Notice of Borrowing and Notice of Continuation/Conversion and each
application for a Letter of Credit submitted by the Borrower hereunder shall
constitute a representation and warranty by the Borrower hereunder, as of the
date of each such notice or application and as of the date of each Borrowing or
continuation or conversion, as applicable, that the applicable conditions in
Section 4.2 are satisfied.
SECTION 4.3 Conditions to Effectiveness of Amendment and Restatement. The
effectiveness of the amendment and restatement of the Original Credit Agreement
as stated herein is subject to the condition that the Administrative Agent
shall have received all of the following, in form and substance satisfactory to
the Administrative Agent, duly executed by all parties thereto:
(a) Credit Agreement. This Agreement; date hereof, stating that:
(b) Certificate. A certificate signed by a Responsible Officer, dated as
of the
(i) the representations and warranties contained in Article 5 hereof are
true and correct on and as of such date (except to the extent such
representations and warranties expressly refer to an earlier date, in which
case they shall be true and correct as of such earlier date); and
44
Agreement.
(ii) no Default or Event of Default exists under the Original Credit
ARTICLE 5
REPRPSENTATIONS AND WARRAN10;S
The Borrower represents and warrants to the Administrative Agent and each
Lender that (after giving effect to the Acquisition Transactions):
Subsidiaries:
SECTION 5.1 Corporate Existence and Power. The Borrower and each of its
(a) ~ rN-N
is a corDoration duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation (except as otherwise
permitted pursuant to Section 6.4).
(b) has the power and authority and all material governmental licenses,
authorizations, consents and approvals to own its assets, carry on its business
and execute, deliver, and perform its obligations under, the Revolving Loan
Documents;
(c) is duly qualified as a foreign corporation, and licensed and in good
standing, under the laws of each jurisdiction where its ownership, lease or
operation of property or the conduct of its business requires such
qualification or license except to the extent that the failure to do so could
not reasonably be expected to have a Material Adverse Effect; and
(d) is in compliance with all material Requirements of Law.
SECTION 5.2 Corporate Authorization: No Contravention. As of the Closing
Date, t execution, delivery and performance by the Borrower of the Revolving
Loan Documents are within the corporate powers of the Borrower, have been duly
authorized by all necessary corporate action, require no action by or in
respect of, or filing with, any governmental body, agency or offcial which has
not been taken or made and do not contravene, or constitute a default under,
any provision of applicable law or regulation or of the certificate of
incorporation or bylaws of the Borrower or of any debt instrument or material
agreement, judgment, injunction, order, decree or other instrument binding upon
the Borrower or any of its Subsidiaries or result in the creation or imposition
of any Lien on any asset of the Borrower or any of its Subsidiaries.
SECTION 5.3 Governmental Authorization. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority which has not been obtained, taken or made is necessary
or required in connection with the execution,
45
delivery or performance by, or enforcement against, the Borrower of this
Agreement or any other Revolving Loan Document.
SECTION 5.4 Binding Effect. This Agreement and each other Revolving Loan
Document to which the Borrower is a party constitute the legal, valid and
binding obligations of the Borrower, enforceable against the Borrower in
accordance with their respective terms, except as enforceability may be limited
by applicable bankruptcy, insolvency, or similar laws affecting the enforcement
of creditors' rights generally or by equitable principles relating to
enforceability.
SECTION 5.5 Litigation. Except as specifically disclosed in Schedule 5.5,
there is no action, suit, proceeding, claim or dispute pending, or to the best
knowledge of the Borrower, threatened or contemplated, at law, in equity, in
arbitration or before any Governmental Authority, against the Borrower, or its
Subsidiaries or any of their respective Properties which could reasonably be
expected to have a Material Adverse Effect. No injunction, writ, temporary
restraining order or any order of any nature has been issued by any court or
other Governmental Authority purporting to enjoin or restrain the execution,
delivery or performance of this Agreement, any Revolving Loan Document, or any
Acquisition Document, or directing that the transactions provided for herein or
therein not be consummated as herein or therein provided.
SECTION 5.6 NO Default. NO Default or Event of Default exists or would
result from the incurrence of any Obligations by the Borrower. Neither the
Borrower nor any of its Subsidiaries is in default under or with respect to any
Contractual Obligation in any respect which, individually or together with all
such defaults, could reasonably be expected to have a Material Adverse Effect
(provided, that to the extent any such default(s) relate to Indebtedness, the
amount of such Indebtedness shall be at least $25,000,000) or that would, if
such default had occurred after the Closing Date, create an Event of Default.
SECTION 5.7 ERISA Compliance. Schedule 5.7 lists all Plans and separately
identifies Plans intended to be Qualified Plans and Multiemployer Plans. All
written descriptions thereof provided to the Administrative Agent are true and
complete in all material respects. There is (a) no outstanding liability under
Title IV of ERISA with respect to any Qualified Plan maintained or sponsored by
the Borrower or any ERISA Affiliate, nor with respect to any Qualified Plan to
which the Borrower or any ERISA Affiliate contributes or is obligated to
contribute; (b) no Qualified Plan subject to Title IV of ERISA has any Unfunded
Pension Liability in excess of $10,000,000 in the aggregate; and (c) no ERISA
Event which has occurred or is reasonably expected to occur with respect to any
Plan which, in the case of clauses (a), (b) or (c) above, could reasonably be
expected to have a Material Adverse Effect. Neither the Borrower nor any ERISA
Affiliate has incurred nor reasonably expects to incur (i) any liability (and
no event has occurred which, with the giving of notice under Section 4219 of
ERISA, would result in such liability) under Section 4201 or 4243 of ERISA with
respect to a Multiemployer Plan or (ii) any liability under Title IV of ERISA
(other than premiums due and not delinquent under Section 4007 of ERISA) with
respect to a Plan and which, in either case, could reasonably be expected to
have a Material Adverse Effect. Neither the Borrower nor any ERISA Affiliate
has transferred any Unfunded Pension Liability to a Person other than the
Borrower or an ERISA Affiliate or otherwise engaged in a transaction that could
be subject to Section 4069 or 4212(c) of ERISA.
46
SECTTON 5.8 Use of Proceeds: Margin Regulations. The proceeds of the
Revolving Loans are intended to be and shall be used solely for the purposes
set forth in and permitted by Section 6.10, and are intended to be and shall be
used in compliance with Sections 7.7 and 7.18. Neither the Borrower nor any of
its Subsidiaries is generally engaged in the business of purchasing or selling
Margin Stock or extending credit for the purpose of purchasing or carrying
Margin Stock.
SECTTON 5.9 Title to Properties. The Borrower and each of its Subsidiaries
have good record and marketable title in fee simple to, or valid leasehold
interests in, all real Property necessary or used in the ordinary conduct of
their respective businesses, except for such defects in title as could not,
individually or in the aggregate, have a Material Adverse Effect. As of the
Closing Date, the Property of the Borrower and its Subsidiaries is subject to
no Liens, other than Permitted Liens.
SECTION 5.10 Taxes. The Borrower and its Subsidiaries have filed all
Federal and other material tax returns and reports required to be filed, and
have paid all Federal and other material taxes, assessments, fees and other
governmental charges levied or imposed upon them or their Properties, income or
assets otherwise due and payable, except those which are being contested in
good faith by appropriate proceedings and for which adequate reserves have been
provided in accordance with GAAP and no Notice of Lien has been filed or
recorded and except for filings and payments required to be made by an
Immaterial Subsidiary so long as any such failure to file or pay by all such
Immaterial Subsidiaries could not reasonably be expected to have a Material
Adverse Effect. There is no proposed tax assessment against the Borrower or any
of its Subsidiaries which could reasonably be expected to have a Material
Adverse Effect.
SECTION 5.1 1 Financial Condition.
(a) The audited consolidated annual financial statements of the Borrower
and its Subsidiaries dated December 31, 1996, and the related audited
consolidated statements of income or operations, shareholders' equity and cash
flows for the fiscal year ended on December 31, 1996, and the unaudited
consolidated quarterly financial statements of financial condition of the
Borrower and its Subsidiaries dated March 31, 1997, and the related unaudited
consolidated statements of income or operations, shareholders' equity and cash
flows for the fiscal quarter ended on March 31, 1997:
(i) were prepared in accordance with GAAP consistently applied throughout
the period covered thereby, except as otherwise expressly noted therein;
(ii) present fairly the consolidated financial condition of the Borrower
and its Subsidiaries as of the date thereof and results of operations for the
period covered thereby; and
(iii) except as specifically disclosed in Schedule 5. 11, show all
material indebtedness and other liabilities, direct or contingent of the
Borrower and its consolidated Subsidiaries as of the date thereof, including
liabilities for taxes, material commitments and contingent obligations.
47
(b) As of the Closing Date, since December 31, 1996, there has been no
Material Adverse Effect.
SECTION 5.12 Environmental Matters. Except as specifically disclosed in
Schedule 5.12 and except where such non-compliance could not reasonably be
expected to have a Material Adverse Effect, (i) the on-going operations of the
Borrower and each of its Subsidiaries comply in all respects with all
Environmental Laws; (ii) the Borrower and its Subsidiaries have obtained all
licenses, permits and authorizations required by Environmental Laws to conduct
their business; (iii) none of the Borrower, any of its Subsidiaries or any of
their respective present Property or operations, is subject to any outstanding
written order from or agreement with any Governmental Authority, nor subject to
any judicial or docketed administrative proceeding, respecting any
Environmental Law, Environmental Claim or Hazardous Material; and (iv) there
are no Hazardous Materials or circumstances existing with respect to any
Property of the Borrower or any of its Subsidiaries in violation of
Environmental Laws.
SECTION 5.13 Regulated Entities. None of the Borrower, any Person
controlling the Borrower, or any Subsidiary of the Borrower, is (a) an
"Investment Company" within the meaning ofthe Investment Company Act of 1940;
(b) subject to regulation under the Public Utility Holding Borrower Act of
1935, the Federal Power Act, the Interstate Commerce Act, any state public
utilities code, or any other statute or regulation of any Governmental
Authority limiting or restricting its ability to incur Indebtedness, other than
the restrictions imposed in connection with the insurance activities and
businesses of the Subsidiaries identified on Schedule 5.13 in accordance with
Requirements of Law applicable generally to them, with respect to all of which
the Borrower and its Subsidiaries, as applicable, are in compliance except
where the failure to be in compliance would not reasonably be expected to have
a Material Adverse Effect; or (c) except as listed on Schedule 5.13, regulated
under any federal or state insurance, health care or similar laws, rules or
regulations.
SECTION 5.14 No Burdensome Restrictions. (a) Neither the Borrower nor any
if its Subsidiaries is a party to or bound by any Contractual Obligation, or
subject to any charter or corporate restriction, or any Requirement of Law,
which could reasonably be expected to have a Material Adverse Effect and which
Material Adverse Effect could not be cured using the proceeds of any Borrowing,
(b) other than Insurance Subsidiaries or as permitted by Section 7.1 5(b), no
Subsidiary is subject to any Requirement of Law that restricts its ability to
pay dividends (other than those restrictions with respect to capital
requirements and other similar requirements imposed by any applicable state on
all corporations incorporated in such state).
SECTION 5.15 Solvencv. The Borrower and each of its Subsidiaries is
Solvent (other than Immaterial Subsidiaries, except to the extent that the
failure of any one such Immaterial Subsidiary or a group of such Immaterial
Subsidiaries in the aggregate to be Solvent could not reasonably be expected to
have a Material Adverse Effect).
SECTION 5.16 Labor Relations. There are no strikes, lockouts or other
labor disputes against the Borrower or any of its Subsidiaries, or, to the best
of the Borrower's knowledge,
48
threatened against or affecting the Borrower or any of its Subsidiaries, and
no sign)ficant unfair labor practice complaint is pending against the Borrower
or any of its Subsidiaries or, to the best knowledge of the Borrower,
threatened against any of them before any Governmental Authority that could
reasonably be expected to have a Material Adverse Effect.
SECTION 5.17 Copyrights. Patents. Trademarks and Licenses. etc. Schedule
5.17 identifies all material United States patents, trademarks, service marks,
trade names and copyrights, and all registrations and applications for
registration thereof and all licenses thereof, owned or held by Borrower or any
of its Subsidiaries on the Closing Date, and identifies the jurisdictions in
which such registrations and applications have been filed. Except as otherwise
disclosed in Schedule 5.17, as of the Closing Date, Borrower and its
Subsidiaries are the sole beneficial owners of, or have the right to use, free
from any restrictions, claims, rights encumbrances or burdens, the intellectual
property referred to in Schedule 5.17 and all other processes, designs,
formulas, computer programs, computer software packages, trade secrets,
inventions, product manufacturing instructions, technology, research and
development, knowhow and all other intellectual property that are necessary for
the operation of Borrower's and its Subsidiaries' businesses as being operated
on the Closing Date after giving effect to the Acquisition Transactions. Each
patent, trademark, service xxxx trade name, copyright and license listed on
Schedule 5.17 is in full force and effect except to the extent the failure to
be in effect could not be reasonably be expected to have a Material Adverse
Effect. Except as set forth in Schedule 5.17, to the best knowledge of
Borrower, as ofthe Closing Date (a) none ofthe present or contemplated products
or operations of Borrower or its Subsidiaries infringes any patent, trademark,
service xxxx trade name, copyright, license or other right owned by any other
Person, and (b) there is no pending or threatened claim or litigation against
or affecting Borrower or any of its Subsidiaries contesting the right of any of
them to manufacture, process, sell or use any such product or to engage in any
such operation, except for claims and/or litigation which could not reasonably
be expected to have a Material Adverse Effect.
SECTION 5.18 Subsidiaries. As of the Closing Date, the Borrower has no
Subsidiaries or equity investments in any other corporation or entity other
than those specifically disclosed in Schedule 5.18.
SECTION 5.19 Brokers' Fees; Transaction Fees. Other than in connection
with the Acquisition Transactions, neither the Borrower nor any of its
Subsidiaries has any obligation to any Person in respect of any finder's,
broker's or investment banker's fee in connection with the transactions
contemplated hereby.
SECTION 5.20 Insurance. The Properties of the Borrower and its
Subsidiaries are insure~ with financially sound and reputable insurance
companies not Affiliates of the Borrower, in such amounts, with such
deductibles and covering such risks as are customarily carried by companies
engaged in similar businesses and owning similar Properties in localities where
the Borrower or such Subsidiary operates.
SECTION 5.2 1 Compliance with Law. The Borrower and each of its
Subsidiaries are in full compliance with all Requirements of Law, except where
such failure to comply could not
49
reasonably be expected to result in a Material Adverse Effect. The Borrower and
each of its Insurance Subsidiaries are in compliance with (i) all licenses and
certifications required pursuant to any Healthcare Regulation; (ii) all
certifications and authorizations necessary to ensure that the Borrower and
each of its Subsidiaries is eligible for all reimbursements available under the
Healthcare Regulations to the extent applicable to the Subsidiaries and
providers of life, health care and disability insurance of their type; and
(iii) all licenses, permits, authorizations and qualifications required under
the Healthcare Regulations in connection with the ownership or operation of the
Subsidiaries and providers of life, health care and disability insurance and
the conduct of the health care, managed care and health insurance businesses
and businesses incidental thereto; except where the failure to be in compliance
with the items described in any of the preceding three clauses would not
reasonably be expected to have a Material Adverse Effect.
SECTION 5.22 FUJI Disclosure. None of the written representations or
warranties made by the Borrower or any of its Subsidiaries in the Revolving
Loan Documents as of the date such representations and warranties are made or
deemed made, and none of the written statements contained in each exhibit,
report, statement or certificate furnished by or on behalf of the Borrower or
any of its Subsidiaries in connection with the Revolving Loan Documents
(including the due diligence materials delivered by or on behalf of the
Borrower to the Lenders prior to the Closing Date), contains any untrue
statement of a material fact or omits any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which there are made, not misleading as of the time when
made or delivered.
ARTICLE 6
AFFIRMATIVE COVENANTS
The Borrower covenants and agrees that, so long as any Lender shall have
any Revolving Loan Commitment hereunder, or any Revolving Loan or other
Obligation shall remain unpaid or unsatisfied:
SECTION 6.1 Financial Statements. The Borrower shall deliver to the
Administrative Agent in form and detail satisfactory to the Administrative
Agent and the Majority Lenders, with sufficient copies for each Lender:
(a) as soon as available, but not later than ninety (90) days after the
end of each fiscal year, a copy of the audited consolidated balance sheet of
the Borrower and its Subsidiaries as at the end of such year and the related
consolidated statements of income or operations, shareholders' equity and cash
flows for such fiscal year, setting forth in each case in comparative form the
figures for the previous fiscal year, and accompanied by the opinion of
Deloitte & Touche LLP or another nationally-recognized independent public
accounting firm acceptable to the Administrative Agent which report shall state
that such consolidated financial statements present fairly in all material
respects the financial position for the periods indicated in conformity with
GAAP applied on a basis consistent with prior years. Such opinion shall not be
qualified or limited because of a restricted or limited examination by such
accountant of any material portion of the Borrower's or any Subsidiary's
records;
50
(b) as soon as available, but not later than forty-five (45) days after
the end of the first three fiscal quarters of each year, a copy of the
unaudited consolidated balance sheet of the Borrower and its consolidated
Subsidiaries as of the end of such quarter and the related consolidated
statements of income, shareholders' equity and cash flows for the period
commencing on the first day and ending on the last day of such quarter, and
certified by an appropriate Responsible Officer as being complete and correct
and fairly presenting, in accordance with GAAP, the financial position and the
results of operations of the Borrower and the Subsidiaries, subject to normal
year-end adjustments and absence of footnote disclosure;
(c) as soon as available, but not later than seventy-five (75) days after
the Closing Date, a copy of the audited consolidated financial statements of
the Borrower as of June 30, 1997 giving effect to the Acquisition Transactions;
and
(d) at least ten Business Days prior to the consummation of an Acquisition
permitted by Section 7.4(f) with a purchase price of $50,000,000 or more, an
Officer's Certificate certifying that immediately after giving effect to such
Acquisition, the Borrower will be in compliance with representations,
warranties and covenants contained in this Agreement and that no Default or
Event of Default will occur as a result of such Acquisition. Such certificate
shall contain calculations sufficient to demonstrate compliance on a pro forma
basis as of the most recently completed four fiscal quarters, as applicable,
and based on the most recent financial statements delivered to the Lenders
pursuant to Section 6.1, and similar financial statements of the applicable
target, with the terms of Sections 7.12, 7.13, and 7.14 hereoL. If such
Acquisition is an acquisition of a division, the Borrower shall subtract
(except to the extent that the Administrative Agent disallows such subtraction)
reasonable allocations of corporate overhead.
SECTION 6.2 Certificates: Other Information. The Borrower shall furnish
Administrative Agent, with sufficient copies for each Lender:
(a) concurrently with the delivery of the financial statements referred to
in subsection 6. l(a) above, a certificate of the independent certified public
accountants reporting on such financial statements stating that in making the
examination necessary therefor no knowledge was obtained of any Default or
Event of Default, except as specified in such certificate;
(b) concurrently with the delivery of the financial statements referred to
in subsections 6. l(a) and (b) above, a certificate of a Responsible Officer in
the form of Exhibit E hereto (an "Officer's Certificate") (i) stating that, to
the best of such Responsible Officer's knowledge and except as previously
disclosed to the Lenders, the Borrower, during such period, has observed and
performed all of its covenants and other agreements, and satisfied every
condition contained in this Agreement to be observed, performed or satisfied by
it, and that such officer has obtained no knowledge of any Default or Event of
Default except as specified (by applicable subsection reference) in such
certificate, (ii) stating that, to the best of such Responsible Officer's
knowledge, the Borrower could make each of the representations and warranties
contained in Article V hereof effective as of the date of the Officer's
Certificate, except for those representations and warranties listed by Section
number in an attachment to the Officer's Certificate which explains the
Borrower's inability to make such representation or
51
warranty, and (iii) showing in detail the calculations supporting such
statement in respect of Sections 7.12, 7.13 and 7.14 hereof;
(c) promptly after the same are sent, copies of all financial statements
and reports which the Borrower sends to its shareholders; and promptly after
the same are filed, copies of all financial statements and regular, periodical
or special reports which the Borrower or any of its Subsidiaries makes to, or
files with, the Securities and Exchange Commission or any successor or similar
Governmental Authority; and
(d) promptly, such additional business, financial, corporate affairs and
other information as the Administrative Agent, at the request of any Lender,
may from time to time reasonably request.
SECTION 6.3 Notices. The Borrower shall promptly notify the Administrative
Agent and each Lender of any of the following, promptly (and in no event later
than three (3) Business Days) after any member ofthe Borrower's executive
committee or its corporate controller becoming aware thereof:
(a) the occurrence or existence of any Default or Event of
(b) any breach or non-performance of, or any default unde~ Contractual
Obligation of the Borrower or any of its Subsidiaries;
(c) any material dispute, litigation, investigation, proceeding or
suspension which may exist at any time between the Borrower or any of its
Subsidiaries and any Governmental Authority;
(d) the commencement of, or any material development in, any litigation or
proceeding affecting the Borrower or any Subsidiary (i) which, if adversely
determined, could reasonably be expected to have a Material Adverse Effect, or
(ii) in which the validity of this Agreement, any Revolving Loan Document or
any Acquisition Document is questioned or in which the relief sought is an
injunction or other stay of the performance of this Agreement or any Revolving
Loan Document;
(e) (i) any and all enforcement, cleanup, removal or other governmental or
regulatory actions instituted, completed or threatened in writing against the
Borrower or any of its Subsidiaries or any of their respective Properties
pursuant to any applicable Environmental Laws, (ii) all other material
Environmental Claims, and (iii) any environmental or similar condition on any
real property adjoining or in the vicinity of the property of the Borrower or
any Subsidiary that could reasonably be anticipated to cause such property or
any part thereof to be subject to any restrictions on the ownership, occupancy,
transferability or use of such property under any Environmental Laws;
(f) any of the following ERISA events affecting the Borrower or any member
of its Controlled Group, together with a copy of any notice with respect to
such event that may be
52
required to be filed with a Governmental Authority and any notice delivered by
a Governmental Authority to the Borrower or any member or its Controlled Group
with respect to such event:
(i) an ERISA Event;
(ii) the adoption of any new Plan that is subject to Title IV of ERISA or
section 412 of the Code by any member of the Controlled Group;
(iii) the adoption of any amendment to a Plan that is subject to Title IV
of ERISA or section 412 of the Code, if such amendment results in a material
increase in benefits or unfunded liabilities; or
(iv) the commencement of contributions by any member of the Controlled
Group to any Plan that is subject to Title IV of ERISA or section 412 of the
Code;
(g) any Material Adverse Effect subsequent to the date of the most recent
audited financial statements of the Borrower delivered to the Lenders pursuant
to this Agreement;
(h) any material change in accounting policies or financial reporting
practices by the Borrower or any of its Subsidiaries; and
(i) any material labor controversy resulting in or threatening to result
in strike, work stoppage, boycott, shutdown or other labor disruption against
or involving the Borrower or any of its Subsidiaries.
Each notice pursuant to this Section shall be accompanied by a written
statement by a Responsible Officer of the Borrower setting forth details of the
occurrence referred to therein, and stating what action the Borrower proposes
to take with respect thereto and at what time. Each notice under subsection
6.3(a) shall describe with particularity any and all clauses or provisions
ofthis Agreement or other Revolving Loan Document that have been breached or
violated.
SECTION 6.4 Preservation of Corporate Existence. Etc. The Borrower shall,
and shall cause each of its Subsidiaries to:
(a) preserve and maintain in full force and effect its corporate existence
and good standing under the laws of its state or jurisdiction of incorporation
except where the failure to maintain the existence of a Subsidiary could not
reasonably be expected to result in a Material Adverse Effect;
(b) preserve and maintain in full force and effect all rights, privileges,
qualifications, permits, licenses and franchises (including all licenses and
certifications required pursuant to any Healthcare Regulation in connection
with the ownership or operation of Insurance Subsidiaries and the conduct of
the health care, managed care and health insurance businesses and businesses
incidental thereto) necessary or desirable in the normal conduct of its
business (including all certification and authorization necessary to ensure
that each of the Insurance Subsidiaries is eligible for all reimbursements
available under the Healthcare Regulations to the extent
53
applicable) except in connection with transactions permitted by Section 7.3 and
sales of assets permitted by Section 7.2 and except where such failure (as it
relates to a Subsidiary) could not reasonably be expected to result in a
Material Adverse Effect;
(c) use its reasonable efforts, in the Ordinary Course of Business, to
preserve its business organization and preserve the goodwill and business of
the customers, suppliers and others having material business relations with it,
other than, in the case of Immaterial Subsidiaries where the failure to so
preserve, individually or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect; and
(d) preserve or renew all of its registered trademarks, trade names and
service marks, the non-preservation of which could reasonably be expected to
have a Material Adverse Effect.
SECTION 6.5 Maintenance of Property. The Borrower shall maintain and
preserve, and shall cause each of its Subsidiaries to maintain and preserve,
all Property which is used or useful in its or their business in good working
order and condition, ordinary wear and tear excepted and make all necessary
repairs thereto and renewals and replacements thereof except where the failure
to do so could not reasonably be expected to have a Material Adverse Effect and
except as permitted by Section 7.2.
SECTION 6.6 Insurance. The Borrower shall maintain, and shall cause each
of its Subsidiaries to maintain (other than, in the case of Immaterial
Subsidiaries, where the failure to so maintain, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect),
with financially sound and reputable independent insurers, insurance with
respect to its Properties and business against loss or damage of the kinds
customarily insured against by Persons engaged in the same or similar business,
of such types and in such amounts as are customarily carried under similar
circumstances by such other Persons, including workers' compensation insurance,
public liability and property and casualty insurance. Upon request of the
Administrative Agent or any Lender, the Borrower shall furnish the
Administrative Agent, with sufficient copies for each Lender, at reasonable
intervals (but not more than once per calendar year) a certificate of a
Responsible Officer of the Borrower (and, if requested by the Administrative
Agent, any insurance broker of the Borrower) setting forth the nature and
extent of all insurance maintained by the Borrower and its Subsidiaries in
accordance with this Section 6.6 (and which, in the case of a certificate of a
broker, were placed through such broker).
SECTION 6.7 Pavment of Obligations. The Borrower shall, and shall cause
its Subsidiaries to, pay and discharge as the same shall become due and
payable, all their respective material obligations and liabilities, including
all tax liabilities, assessments and governmental charges or levies upon it or
its properties or assets, unless the same are being contested in good faith by
appropriate proceedings and adequate reserves in accordance with GAAP are being
maintained by the Borrower or such Subsidiary.
SECTION 6.8 Compliance with Laws. The Borrower shall comply, and shall
cause each of its Subsidiaries to comply (other than, in the case of Immaterial
Subsidiaries, where the failure to so comply, individually or in the aggregate,
could not reasonably be expected to have a
54
Material Adverse Effect), in all material respects with all material
Requirements of Law of any Governmental Authority having jurisdiction over it
or its business (including applicable labor laws, insurance laws, health care
laws, Environmental Laws and ERISA), except such as may be contested in good
faith or as to which a bona fide dispute may exist.
SECTION 6.9 Inspection of Property and Books and Records. The Borrower
shall maintain and shall cause each of its Subsidiaries to maintain proper
books of record and account, in which full, true and correct entries in
conformity with GAAP (or statutory accounting principles which are converted to
GAAP) consistently applied shall be made of all financial transactions and
matters involving the respective assets and business of the Borrower and such
Subsidiaries. The Borrower shall permit, and shall cause each of its
Subsidiaries to permit, representatives and independent contractors of the
Administrative Agent or any Lender to visit and inspect any of their respective
Properties, to examine their respective corporate, financial and operating
records, and make copies thereof or abstracts therefrom, and to discuss their
respective affairs, finances and accounts with their respective directors,
officers, and independent public accountants at such reasonable times during
normal business hours and as often as may be reasonably desired, upon
reasonable advance notice to the Borrower; provided, however, when a Default or
an Event of Default exists the Administrative Agent or any Lender may do any of
the foregoing at the expense of the Borrower at any time during normal business
hours and without advance notice.
SECTION 6.10 Use of Proceeds. The Borrower shall use the proceeds of the
Revolving Loans solely (a) to fund the Acquisition Transaction and other
permitted Acquisitions, (b) to fund stock purchases, acquisitions or
redemptions to the extent permitted by Section 7. 11, and (c) for working
capital and other general corporate purposes not in contravention of any
Requirement of Law.
SECTION 6.11 Solvency. The Borrower shall at all times be, and shall cause
each of its Subsidiaries to be, Solvent, other than, in the case of Immaterial
Subsidiaries, where the failure to remain Solvent, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.
SECTION 6.12 Further Assurances. The Borrower shall ensure that all
written information, exhibits and reports furnished to the Administrative Agent
or the Lenders by the Borrower or its Subsidiaries do not and will not contain
any untrue statement of a material fact and do not and will not omit to state
any material fact or any fact necessary to make the statements contained
therein not misleading in light of the circumstances in which made, and will
promptly disclose to the Administrative Agent and the Lenders and correct any
defect or error that may be discovered therein or in any Revolving Loan
Document or in the execution, acknowledgment or recordation thereof.
ARTICLE 7
NEGATIVE COVENANTS
55
termination of this ;ease an amount equal to the maximum allowed by any statute
or rule of law In effect at the time Nhen, and governing the proceedings In
which, the damages are to be proved, whether or not the amount be greater,
equal to, or less than the amount of the loss or damages reforred to above.
Should Landlord seek and be awarded a final ludo~nt for liquidated damages
under this section 7.02(b), the remedy In section 7.02(a) haraof shall not be
sought by Landlord.
(c) Landlord may terminate Tenant's right of possession (but not this
lease) and may repossess the fessed premises by forcible entry and detalner
suit or otherwise, without thereby releasing Tenant from any Ilability
hereunder and Nlthout demand or notice of any kind to Tenant and without
terminating this lesse, In which event Landlord may, but shall be under no
obligation to do so, relet the se"for the account of Tenant for such rent and
upon such terms as shall be satisfactory to Landlord. For the purpose of such
reletting, Landlord Is authorized to decorate or to make any repairs, changes,
alterations, or aWltions In or to lease premises as may be reasonably necessary
or desirable, end (1) If Landlord shall fail or refuse
r
Rotwlthstanding any contrary provision contained herein Tenant shall not
be declared In default should It move out of all or any portion of the Leased
Premises, jrovided that Tenant continues to tl_ly pay the rental and other
monetary suns due here~ndar and honor the other provisions of the Lease.
7.03 Ran-wolver. Fallura of Landlord to declare any default Immediately
upon occurrence thereof, or delay In taking any action in connection therewith,
or the acceptance of a partial payment or full payment of the dellnquent
rentals, shall not waive such default, but Landlord shall have the right to
declare any such default at any time and take such action aa might be lawful or
authorized hereunder, either in laN or in equity.
7.04 Holding Over. In the event of holding over by Tenant after expiration
or tars~lnatlon of this lease Nlthout the pclor weltten consent of Landlord,
Tenant shall pay, as liquidated damages, the amount of one hundred fifty
percent (150X) of the nonthly rental (including all tase Rental and Tenant's
Additional Rental) Nhich was due end peyable l~ediately pclor to the expiration
or termination of this Lease, for the entire holdover period. Ro holdine over
by Tenant after the term of this lease ahall be construed to extend the lease;
In the event of eny unauthorized holding over, Tenant shall also Indemnify
Landlord against all claims or de~agea by eny other tenant to whon Landlord
a~ay have leased all or any part of the leased premises effective upon the
termination of this lease. Any holding over with the prior consent of Landlord
in writing shall thereafter constitute thla lease e Xxxxx from e;onth-to-month
any holding over without the prior consent of Landlord In writing shall create
a temncy at sufferance relationship with Tenant. As used in this lease, the
tera aMarket Base Rental Rate" shall _an the annual rental rates then being
charged in the "North Belt" area of Houston, Texas, for space comparable to the
space for which the Market Base Rental Rate is being determined (taking Into
consideration age, use, location and/or floor level within the applicable
building, definition of net rentable area leasehold
56
The Borrower hereby covenants and agrees that, so long as any Lender shall have
any Commitment hereunder, or any Revolving Loan or other Obligation shall
remain unpaid or unsatisfied, unless the Majority Lenders waive compliance in
writing:
SECTION 7. 1 Limitation on Liens. The Borrower shall not, and shall not
suffer or permit any of its Subsidiaries to, directly or indirectly, make,
create, incur, assume or suffer to exist any Lien upon or with respect to any
part of its Property, whether now owned or hereafter acquired, other than the
following ("Permitted Liens"):
(a) any Lien existing on the Property of the Borrower or its Subsidiarie
Closing Date and set forth in Schedule 7.1 securing the principal amount of
Indebtedness outstanding on the date hereof;
(b) Liens for taxes, fees, assessments or other governmental charges which
are not delinquent or remain payable without penalty or which are being
contested in good faith by appropriate proceedings and for which appropriate
reserves have been made in accordance with GAAP; provided that no Notice of
Lien (other than with respect to Liens for de-minimus amounts) has been filed
or recorded under the Code;
(c) carriers', warehousemen's, mechanics', landlords', materialmen's,
repairmen's or other similar Liens arising in the Ordinary Course of Business
which are not delinquent or remain payable without penalty or which are being
contested in good faith and by appropriate proceedings, which proceedings have
the effect of preventing the forfeiture or sale of the Property subject
thereto;
(d) Liens (other than any Lien imposed by ERISA) consisting of pledges or
deposits made in the Ordinary Course of Business in connection with workers'
compensation, unemployment insurance and other social security legislation;
(e) Liens on the Property of the Borrower or any of its Subsidiaries
securing (i) the non-delinquent performance of bids, trade contracts (other
than for borrowed money), leases, statutory obligations, (ii) contingent
obligations on surety and appeal bonds, and (iii) other non-delinquent
obligations of a like nature; in each case, incurred in the Ordinary Course of
Business, provided all such Liens in the aggregate would not (even if enforced)
cause a Material Adverse Effect;
(f) Liens consisting of judgment or judicial attachment liens, provided
that such liens in the aggregate shall not exceed $5,000,000, and provided that
such liens are (i) bonded to the reasonable satisfaction of the Administrative
Agent or (ii) covered by insurance to the reasonable satisfaction of the
Administrative Agent;
(g) easements, rights-of-way, restrictions and other similar encumbrances
incurred in the Ordinary Course of Business which, in the aggregate, are not
substantial in amount, and which do not in any case materially detract from the
value of the Property subject thereto or interfere with the ordinary conduct of
the businesses of the Borrower and its Subsidiaries;
57
(h) Liens on assets of corporations which become Subsidiaries after the
date of this Agreement; provided. however, that (i) such Liens existed at the
time the respective corporations became Subsidiaries and were not created in
anticipation thereof and that all such Liens in the aggregate at any time
outstanding for the Borrower and its Subsidiaries, if enforced, would not cause
a Material Adverse Effect, (ii) until such time as such Liens and the related
Indebtedness have been fully paid, discharged or otherwise satisfied, such
Subsidiary may not engage or participate in any of the transactions permitted
under Sections 7.3, 7.4(c), 7.4(d), 7.4(e), 7.5(b), 7.5(c), 7.5(f) or 7.6, and
(iii) the aggregate principal amount of all Indebtedness of such Subsidiaries
secured by all such Liens does not exceed $25,000,000;
(i) Purchase money security interests on any Property acquired or held by
the Borrower or its Subsidiaries in the Ordinary Course of Business, securing
Indebtedness incurred or assumed for the purpose of financing all or any part
of the cost of acquiring such Property; provided that (i) any such Lien
attaches to such Property concurrently with or within twenty (20) days after
the acquisition thereof, (ii) such Lien attaches solely to the Property so
acquired in such transaction, (iii) the principal amount of the Indebtedness
secured thereby does not exceed 100% of the cost of such Property, and (iv) the
principal amount of the Indebtedness secured by any and all such purchase money
security interests shall not at any time exceed $5,000,000;
(j) Liens securing Capital Lease Obligations on assets subject to such
Capital Leases, provided that such Capital Leases are permitted under
subsection 7.10(c);
(k) Liens arising solely by virtue of any statutory or common law
provision relating to banker's liens, rights of set-off or similar rights and
remedies as to deposit accounts or other funds maintained with a creditor
depository institution; provided that (i) such deposit account is not a
dedicated cash collateral account and is not subject to restrictions against
access by the Borrower in excess of those set forth by regulations promulgated
by the Federal Reserve Board, and (ii) such deposit account is not intended by
the Borrower or any of its Subsidiaries to provide collateral to the depository
institution;
(1) leases or subleases of property of the Borrower or any of its
Subsidiaries not interfering with the ordinary conduct of business of the
Borrower or such Subsidiary; and
(m) any interest of any Person party to an agreement to acquire, or
holding an option to acquire, any property not prohibited from being
transferred hereunder.
SECTION 7.2 Disposition of Assets. The Borrower shall not, and shall not
suffer or permit any of its Subsidiaries to, directly or indirectly, sell,
assign, lease, convey, transfer or otherwise dispose of (whether in one or a
series of transactions) any Property (including accounts and notes receivable,
with or without recourse) or enter into any agreement to do any of the
foregoing (collectively, "Dispositions"), except:
(a) Dispositions of inventory, or used, worn-out or surplus eq' the
Ordinary Course of Business;
58
(b) Dispositions of equipment to the extent that such equipment is
exchanged for credit against the purchase price of similar replacement
equipment, or the proceeds of such sale are, within 90 days of receipt by the
Borrower or such Subsidiary, applied to the purchase price of such replacement
equipment; or
(c) other Dispositions of Property (including the liquidation of a
Subsidiary other than in an Insolvency Preceding during any fiscal year) not to
exceed 5% of Net Worth (as at December 31 of the immediately preceding fiscal
year);
(d) Dispositions of the Investments described in Sections 7.4(a) and
7.4(b) and, to the extent the transactions described in Section 7.3 constitute
a Disposition, Dispositions specifically permitted in Section 7.3; or
Subsidiary.
(e) Dispositions by a Subsidiary to the Borrower or to a Wholly-Owned
SECTION 7.3 Consolidations and Mergers. The Borrower shall not, and shall
not suffer or permit any of its Subsidiaries to, merge, consolidate with or
into, or convey, transfer, lease or otherwise dispose of (whether in one
transaction or in a series of transactions all or substantially all of its
assets (whether now owned or hereafter acquired) to or in favor of any Person,
except:
(a) any Subsidiary of the Borrower may (i) merge with the Borrower (and
the Borrower may make such merger), provided that the Borrower shall be the
continuing or surviving corporation, or (ii) merge with any one or more
Subsidiaries of the Borrower, provided that if any transaction shall be between
a Subsidiary and a Wholly-Owned Subsidiary, the WhollyOwned Subsidiary shall be
the continuing or surviving corporation and shall remain WhollyOwned;
(b) any Subsidiary of the Borrower may sell all or substantially all of
its assets (upon voluntary liquidation or otherwise), to the Borrower or to a
Wholly-Owned Subsidiary of the Borrower; and
(c) any Subsidiary of the Borrower may merge, consolidate with or into, or
convey, transfer, lease or otherwise dispose of all or substantially all of its
assets in a transaction permitted under Section 7.2(c) so long as all such
transactions hereunder and thereunder comply with the limitations set forth in
Section 7.2(c).
SECTION 7.4 Loans and Investments. The Borrower shall not purchase or
acquire, or suffer or permit any of its Subsidiaries to purchase or acquire, or
make any commitment therefor, any capital stock, equity interest, or any
obligations or other securities of, or any interest in, any Person, or make or
commit to make any Acquisitions, or make or commit to make any advance, loan,
extension of credit or capital contribution to or any other investment in, any
Person including any Affiliate of the Borrower, except for:
59
(a) investments identified on Schedule 7.4 and other similar inve in the
Ordinary Course of Business;
(b) investments in Cash Equivalents;
(c) extensions of credit in the nature of accounts receivable or notes
receivable arising from the sale or lease of goods or services in the Ordinary
Course of Business;
(d) extensions of credit by the Borrower to any of its Wholly-Owned
Subsidiaries or by any of its Wholly-Owned Subsidiaries to the Borrower or to
one of its WhollyOwned Subsidiaries;
Subsidiaries;
(e) additional investments in the stock of then existing Wholly-Owned
(f) additional Acquisitions so long as no Default or Event of Default is
in existence or would occur as a result therefrom; provided that, the Borrower
shall deliver the certificate described in Section 6. l(d) with respect to any
Acquisition with a purchase price of $50,000,000 or more;
(g) additional purchases of or investments in the stock or interests of
Subsidiaries or Joint Ventures or the capital stock, assets, obligations or
other securities or interests in other Persons not exceeding $15,000,000 in the
aggregate at any one time outstanding;
(h) advances to employees in the ordinary course of business; and
(i) acquisitions and commitments therefor, of the capital stock of the
Borrower, subject to Section 7.1 l(c).
SECTION 7.5 Limitation on Indebtedness. The Borrower shall not, and shall
not suffer or permit any of its Subsidiaries to, create, incur, assume, suffer
to exist, or otherwise become or remain directly or indirectly liable with
respect to, any Indebtedness, except:
(a) Indebtedness incurred pursuant to this Agreement;
(b) unsecured Indebtedness of Subsidiaries in an aggregate Subsidiaries
not to exceed $10,000,000 at any one time outstanding;
7 lo;
Section 7. 10;
(c) Indebtedness outstanding on the Closing Date and set forth in Schedule
7.5 and extensions, renewals and replacements thereof which do not increase the
principal amount thereof;
60
(d) Indebtedness secured by Liens permitted by Sections 7. l(h), 7.1 (i)
and
(e) Indebtedness incurred in connection with leases permitted pursuant to
(f) Indebtedness incurred in connection with an extension of credit
described in Section 7.4(c);
(g) unsecured Indebtedness of the Borrower in an aggregate amount not to
exceed $100,000,000 at any one time outstanding; provided, that such
Indebtedness is either pari passu with, or subordinated to, the Indebtedness of
the Borrower to the Lenders; and
(h) Indebtedness incurred by the Borrower in connection with Rate
Contracts entered into in the Ordinary Course of Business.
SECTION 7.6 Transactions with Affiliates. The Borrower shall not, and
shall not suffer c permit any of its Subsidiaries to, enter into any
transaction with any Affiliate of the Borrower or of any such Subsidiary (other
than transactions between the Borrower and its Wholly-Owned Subsidiaries or
between its Wholly-Owned Subsidiaries), except:
(a) as expressly permitted by this Agreement; or
(b) in the Ordinary Course of Business and pursuant to t requirements of
the business of the Borrower or such Subsidiary;
and, in each case (a) and (b), upon fair and reasonable terms no less favorable
to the Borrower or such Subsidiary than would obtain in a comparable arm's
length transaction with a Person not an Affiliate of the Borrower or such
Subsidiary.
SECTION 7.7 Use of Proceeds. The Borrower shall not and shall not suffer
or permit any of its Subsidiaries to use any portion of the Revolving Loan
proceeds, directly or indirectly, to purchase or carry Margin Stock in any
manner which violates Regulation G, T, U or X of the Federal Reserve Board or
repay or otherwise refinance indebtedness of the Borrower or others incurred to
purchase or carry Margin Stock in any manner which violates Regulation G, T, U
or X of the Federal Reserve Board, or otherwise in any manner which is in
contravention of any Requirements of Law.
SECTION 7.8 Amendments to Acquisition Documents. The Borrower shall not
(i) amend, modify, supplement, waive or otherwise modify any provision of, the
Acquisition Agreements, or (ii) take or fail to take any action under the
Acquisition Documents, in either case, that could reasonably be expected to
have a Material Adverse Effect.
SECTION 7.9 Compliance with ERISA. The Borrower shall not, and shall not
suffer or permit any of its Subsidiaries to:
61
(a) terminate any Plan subject to Title IV of ERISA so as tc material
liability to the Borrower or any ERISA Affiliate;
(b) permit to exist any ERISA Event or any other event or condition, which
presents the risk of a material liability to any member of the Controlled
Group;
(c) make a complete or partial withdrawal (within the meaning of ERI'
Section 4201) from any Multiemployer Plan so as to result in any material
liability to the Borrower or any ERISA Affiliate;
(d) enter into any new Plan or modify any existing Plan so as to increase
its obligations thereunder which could result in any material liability to any
member of the Controlled Group; or
(e) permit the present value of all nonforfeitable accrued benefits under
any Plan (using the actuarial assumptions utilized by the PBGC upon termination
of a Plan) materially to exceed the fair market value of Plan assets allocable
to such benefits, all determined as of the most recent valuation date for each
such Plan.
SECTION 7.10 Lease Obligations. The Borrower shall not, and shall not
suffer or permit any of its Subsidiaries to, create or suffer to exist any
obligations for the payment of rent for any Property under lease or agreement
to lease, except for:
(a) Operating Leases existing on the Closing Date and, in the case of any
single lease with annual rental payments of $50,000 or more, as set forth on
Schedule 7.10 hereof;
(b) Operating Leases entered into by the Borrower or any of it after the
Closing Date in the Ordinary Course of Business;
(c) leases entered into by the Borrower or any of its Subsidi Closing
Date, provided, that:
(i) immediately prior to giving effect to such lease, the Property subject
to such lease was sold by the Borrower or any such Subsidiary to the lessor
pursuant to a transaction permitted under Section 7.2; and
(ii) no Default or Event of Default exists or would occur as a result of
such sale and subsequent lease;
(d) Capital Leases other than those permitted under clause (b) of this
Section 7.10, entered into by the Borrower or any of its Subsidiaries after the
Closing Date to finance the acquisition of equipment in an aggregate amount not
to exceed $10,000,000 at any one time outstanding.
62
SECTION 7.11 Restricted PaYments. The Borrower shall not, and shall not
suffer or permit any of its Subsidiaries to, declare or make any dividend
payment or other distribution of assets, properties, cash, rights, obligations
or securities on account of any shares of any class of its capital stock, or
purchase, redeem or otherwise acquire for value any shares of its capital stock
or any warrants, rights or options to acquire such shares, now or hereafter
outstanding; except that any Subsidiary of the Borrower may declare and pay
dividends to the Borrower or any WhollyOwned Subsidiary of the Borrower and to
its other equity holders; provided, that any such dividend shall not exceed the
net worth of the applicable Subsidiary, and except that the Borrower may:
(a) its common stock;
declare and make dividend payments or other distributions payable solely in
(b) purchase, redeem or otherwise acquire shares of its common stock or
warrants or options to acquire any such shares with the proceeds received from
the substantially concurrent issue of new shares of its common stock; and
(c) declare or pay cash dividends to its stockholders and purchase, redeem
or otherwise acquire shares of its capital stock or warrants, rights or options
to acquire any such shares for cash (i) in an aggregate amount not to exceed
$150,000,000 for the first four fiscal quarters subsequent to the Closing Date,
and (ii) solely out of 50% of Consolidated Net Income of the Borrower for
fiscal years thereafter, computed on a cumulative consolidated basis, provided,
that, immediately after giving effect to such proposed action, no Default or
Event of Default would exist; and
(d) pay dividends to the extent of any proceeds received by the Borrower
from the issuance of preferred stock.
SECTTON 7.12 Fixed Charge Coverage Ratio. The Borrower shall not permit
its Fixed Charge Coverage Ratio, as determined as of the end of each fiscal
quarter, to be less than 2.5.
SECTION 7.13 Consolidated Net Worth. The Borrower shall not permit its Net
Worth, as determined as of the end of each fiscal quarter, to be less than the
greater of (i) $190,000,000, or (ii) the sum of (x) 75% of the Borrower's Net
Worth as determined by the June 30, 1997 financial statements, plus (y) the
sum of 50% of the Borrower's Consolidated Net Income earned each fiscal quarter
commencing with the fiscal quarter ending September 30, 1997 (provided that if,
for any fiscal quarter, the Borrower's Consolidated Net Income shall be less
than zero, then for purposes of calculating the Borrower's compliance with this
covenant, the Borrower's Consolidated Net Income shall be deemed to be zero for
that fiscal quarter), plus (z) 50% of the net proceeds received from any
unaffiliated third parties from any stock offering of the Borrower.
SECTION 7.14 Leverage Ratio. The Borrower shall not permit its Leverage R;
determined as of the end of each fiscal quarter, to be greater than 3.25.
63
SECTION 7.15 Change in Business. The Borrower shall not, and shall not
permit any of its Subsidiaries to (a) engage in any material line of business
substantially different from those lines of business carried on by the Borrower
or its Subsidiaries on the date hereof or lines of business incidental thereto,
or (b) other than an Insurance Subsidiary, become subject to any Requirement of
Law that restricts its ability to pay dividends (other than those restrictions
with respect to capital requirements and other similar requirements imposed by
any applicable state on all corporations incorporated in such state) unless,
with respect to a Subsidiary, becoming subject to any such Requirement of Law
could not reasonably be expected to have a Material Adverse Effect.
SECTION 7.16 Change in Structure. Except as expressly permitted under
Section 7.3, the Borrower shall not and shall not permit any of its
Subsidiaries to, make any changes in its equity capital structure (including in
the terms of its outstanding stock), or amend its certificate of incorporation
or by-laws in any material respect unless the effect thereof could not
reasonably be expected to have a Material Adverse Effect.
SECTTON 7.17 Accounting Changes. The Borrower shall not, and shall not
suffer or permit any of its Subsidiaries to, make any material change in
accounting treatment or reporting practices, except as required or permitted by
GAAP, or change the fiscal year of the Borrower or of any of its consolidated
Subsidiaries.
SEC~ON 7.18 Hostile Acquisitions. The Borrower shall not, and shall not
suffer or permit any of its Subsidiaries to engage or participate in, or pursue
directly or indirectly, directly with the proceeds of any Revolving Loan, any
Acquisition (or any component part of any Acquisition) which receives any
disapproval vote by the board of directors or shareholders of the target
company.
Default":
ARTICLE 8
EVENTS OF DEFAULT
SECTION 8.1 Event of Default. Any of the following shall constitute an "Event
of
(a) Non-Payment. The Borrower fails to pay, (i) when and as required to be
paid herein, any amount of principal of any Revolving Loan, or (ii) within
three (3) days after the same shall become due, any interest, fee or any other
amount payable hereunder or pursuant to any other Revolving Loan Document; or
(b) Representation or Warranty. Any representation or warranty by the
Borrower or any of its Subsidiaries made or deemed made herein, in any
Revolving Loan Document, or which is contained in any certificate, document or
financial or other written statement by the Borrower, any of its Subsidiaries,
or their respective Responsible Officers, furnished at any time under this
Agreement, or in or under any Revolving Loan Document, shall prove to have been
incorrect in any material respect on or as of the date made or deemed made;
64
(c) Specific Defaults. The Borrower fails to perform or observe any term,
covenant or agreement contained in (i) Sections 6. l(c) and (d), 6.2, 6.3, 6.4
and 6.10 or Article 7 hereof, or (ii) Sections 6.1(a) and (b) hereof and such
default shall continue unremedied for a period of seven (7) days after the date
due under the applicable section; or
(d) Other Defaults. The Borrower fails to perform or observe any other
term or covenant contained in this Agreement or any Revolving Loan Document,
and such default shall continue unremedied for a period of twenty (20) days
after the earlier of (i) the date upon which a Responsible Officer of the
Borrower knew or should have known of such failure or (ii) the date upon which
written notice thereof is given to the Borrower by the Administrative Agent or
any Lender; or
(e) Cross-Default. The Borrower or any Subsidiary (i) fails to make any
payment in respect of any Indebtedness having an aggregate principal amount
(including undrawn committed or available amounts and including amounts owing
to all creditors under any combined or syndicated credit arrangement) of more
than $10,000,000 when due (whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise) and such failure continues after any
applicable grace or notice period, if any; or (ii) fails to perform or observe
any other condition or covenant, or any other event shall occur or condition
exist, under any agreement or instrument relating to any such Indebtedness, and
such failure if the effect of such failure, event or condition is to cause, or
to permit the holder or holders or baneficiary or baneficiaries of such
Indebtedness (or a trustee or agent on behalf of such holder or holders or
baneficiary or baneficiaries) to cause such Indebtedness to be declared to be
due and payable prior to its stated maturity, or such Contingent Obligation to
become payable or cash collateral in respect thereof to be demanded; or
(f) Insolvency: Voluntary Proceedings. The Borrower voluntarily ceases to
conduct its business in the ordinary course or the Borrower or any of its
Subsidiaries (i) generally fails to pay, or admits in writing its inability to
pay, its debts as they become due, subject to applicable grace periods, if any,
whether at stated maturity or otherwise; (ii) commences any Insolvency
Proceeding with respect to itself; or (iii) takes any action to effectuate or
authorize any of the foregoing, except in the case of (i), (ii) or (iii) where
such Subsidiary is an Immaterial Subsidiary and so long as all events described
in clauses (i) (ii) or (iii) herein related to an Immaterial Subsidiary could
not reasonably be expected to have a Material Adverse Effect; or
(g) Involuntary Proceedings. (i) Any involuntary Insolvency Proceeding is
commenced or filed against the Borrower or any Subsidiary of the Borrower, or
any writ, judgment, warrant of attachment, execution or similar process, is
issued or levied against a substantial part of the Borrower's or any of its
Subsidiaries' Properties, and any such proceeding or petition shall not be
dismissed, or such writ, judgment, warrant of attachment, execution or similar
process shall not be released, vacated or fully bonded within sixty (60) days
after commencement, filing or levy; (ii) the Borrower or any of its
Subsidiaries admits the material allegations of a petition against it in any
Insolvency Proceeding, or an order for relief (or similar order under non-U.S.
Iaw) is ordered in any Insolvency Proceeding; or (iii) the Borrower or any
65
of its Subsidiaries acquiesces in the appointment of a receiver, trustee,
custodian, conservator, liquidator, mortgagee in possession (or agent
therefor), or other similar Person for itself or a substantial portion of its
Property or business, except in the case of (i), (ii) or (iii) where such
Subsidiary is an Immaterial Subsidiary and so long as all events described in
clauses (i) (ii) or (iii) herein related to an Immaterial Subsidiary could not
reasonably be expected to have a Material Adverse Effect; or
(h) ERISA. (i) A member of the Controlled Group shall fail to pay when
due, after the expiration of any applicable grace period, any installment
payment with respect to its withdrawal liability under a Multiemployer Plan;
(ii) the Borrower or an ERISA Affiliate shall fail to satisfy its contribution
requirements under Section 412(c)(11) ofthe Code, whether or not it has sought
a waiver under Section 412(d) of the Code; (iii) in the case of an ERISA Event
involving the withdrawal from a Plan of a "substantial employer" (as defined in
Section 4001(a)(2) or Section 4062(e) of ERISA), the withdrawing employer's
proportionate share of that Plan's Unfunded Pension Liabilities is more than $
10,000,000; (iv) in the case of an ERISA Event involving the complete or
partial withdrawal from a Multiemployer Plan, the withdrawing employer has
incurred a withdrawal liability in an aggregate amount exceeding $10,000,000;
(v) in the case of an ERISA Event not described in clause (iii) or (iv), the
Unfunded Pension Liabilities ofthe relevant Plan or Plans exceed $10,000,000;
(vi) a Plan that is intended to be qualified under Section 401(a) ofthe Code
shall lose its qualification, and the loss can reasonably be expected to impose
on members of the Controlled Group liability (for additional taxes, to Plan
participants, or otherwise) in the aggregate amount of $10,000,000 or more;
(vii) the commencement or increase of contributions to, or the adoption of or
the amendment of a Plan by, a member of the Controlled Group shall result in a
net increase in unfunded liabilities to the Controlled Group in excess of $
10,000,000; (viii) any member of the Controlled Group engages in or otherwise
becomes liable for a non-exempt prohibited transaction and the initial tax or
additional tax under section 4975 of the Code relating thereto might reasonably
be expected to exceed $10,000,000; (ix) a violation of section 404 or 405 of
ERISA or the exclusive benefit rule under section 401(a) of the Code if such
violation might reasonably be expected to expose a member or members of the
Controlled Group to monetary liability in excess of $ 10,000,000; (x) any
member of the Controlled Group is assessed a tax under section 4980B of the
Code in excess of $10,000,000; or (xi) the occurrence of any combination of
events listed in clauses (iii) through (x) that involves a potential liability,
net increase in aggregate Unfunded Pension Liabilities, unfunded liabilities,
or any combination thereof, in excess of $10,000,000; or
(i) Monetary Judgments. One or more judgments, noninterlocutory orders,
decrees or arbitration awards shall be entered against the Borrower or any of
its Subsidiaries involving in the aggregate a liability (to the extent not
covered by independent third-party insurance) as to any single or related
series of transactions, incidents or conditions, of $10,000,000 or more, and
the same shall remain unsatisfied, unvacated and unstayed pending appeal for a
period of thirty (30) days after the entry thereof; or
(j) Change of Control. There shall occur a Change of Control.
66
SECTION 8.2 Remedies. If any Event of Default occurs and is continuir
Administrative Agent may, and shall at the request of the Majority Lenders:
(a) declare the Revolving Loan Commitment of each Lender to make Revolving
Loans and the commitment of each Issuing Bank to issue (and the Lenders to
participate therein) Letters of Credit to be terminated, whereupon such
Revolving Loan Commitment and Letter of Credit Commitment shall forthwith be
terminated;
(b) declare the unpaid principal amount of all outstanding Revolving
Loans, all interest accrued and unpaid thereon, and all other amounts owing or
payable hereunder or under any other Revolving Loan Document to be immediately
due and payable; without presentment, demand, protest or other notice of any
kind, all of which are hereby expressly waived by the Borrower; and
(c) exercise on behalf of itself and the Lenders all rights and rem~ to it
and the Lenders under the Revolving Loan Documents or applicable law;
provided, however, that upon the occurrence of any event specified in
subsections 8. 1 (f) and (g) above (in the case of clause (i) of paragraph (g)
upon the expiration of the 60-day period mentioned therein), the obligation of
each Lender to make Revolving Loans shall automatically terminate and the
unpaid principal amount of all outstanding Revolving Loans and all interest and
other amounts as aforesaid shall automatically become due and payable without
further act of the Administrative Agent or any Lender.
SECTION 8.3 Rights Not Exclusive. The rights provided for in this
Agreement and other Revolving Loan Documents are cumulative and are not
exclusive of any other rights, powers, privileges or remedies provided by law
or in equity, or under any other instrument, document or agreement now existing
or hereafter arising.
SECTION 8.4 Cash Collateral for Letters of Credit. If an Event of Default
has occurred and is continuing or this Agreement shall be terminated for any
reason, then the Administrative Agent may demand (which demand shall be deemed
to have been delivered automatically upon any acceleration of the Loans and
other obligations hereunder pursuant to Section 8.2 hereof), and the Borrower
shall thereupon deliver to the Administrative Agent, to be held for the benefit
of the Administrative Agent, the Issuing Bank and the Lenders entitled thereto,
an amount of cash equal to the amount of the Letter of Credit Reserve as
additional collateral security for the Borrower's Obligations in respect of any
outstanding Letters of Credit. The Administrative Agent may at any time apply
any or all of such cash and cash collateral to the payment of any or all of the
Borrower's Obligations in respect of any Letters of Credit, including without
limitation to the payment of any or all of the Borrower's reimbursement
liabilities to the issuers of such Letters of Credit. Pending such application,
the Administrative Agent shall invest the same in an interest bearing account
in the Administrative Agent's name, under which deposits are available for
immediate withdrawal, at such bank or financial institution as the
Administrative Agent may, in its discretion, select, for the benefit of the
Administrative Agent, the Issuing Bank, the Lenders entitled thereto and the
Borrower, it being agreed that all such interest shall be credited to such
67
account and that, to the extent the balance in the interest bearing account
exceeds the Letter of Credit Reserve, whether as a result of interest earnings
or cancellation or expiration of a Letter of Credit or otherwise, all such
excess shall be promptly paid to the Borrower.
ARTICLE 9
THE AGENTS
SECTION 9.1 Appointment and Authorization. Each Lender hereby irrevocably
appoints, designates and authorizes the Agents to take such action on its
behalf under the provisions of this Agreement and each other Revolving Loan
Document and to exercise such powers and perform such duties as are expressly
delegated to it by the terms of this Agreement or any other Revolving Loan
Document, together with such powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary contained elsewhere in this
Agreement or in any other Revolving Loan Document, the Agents shall not have
any duties or responsibilities, except those expressly set forth herein, nor
shall the Agents have or be deemed to have any fiduciary relationship with any
Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any other
Revolving Loan Document or otherwise exist against the Agents. The Syndication
Agent has no rights, duties, obligations or liabilities under this Agreement.
SECTION 9.2 Delegation of Duties. The Agents may execute any oftheir
duties under this Agreement or any other Revolving Loan Document by or through
agents, employees or attorneysin-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. No Agent shall be
responsible for the negligence or misconduct of any agent or attorney-in-fact
that it selects with reasonable care.
SECTION 9.3 Liability of Agents. No Agent-Related Person shall (i) be
liable for any action taken or omitted to be taken by any of them under or in
connection with this Agreement or any other Revolving Loan Document (except for
its own gross negligence or willful misconduct), or (ii) be responsible in any
manner to any of the Lenders for any recital, statement, representation or
warranty made by the Borrower or any Subsidiary or Affiliate of the Borrower,
or any officer thereof, contained in this Agreement or in any other Revolving
Loan Document, or in any certificate, report, statement or other document
referred to or provided for in, or received by the Agents under or in
connection with, this Agreement or any other Revolving Loan Document, or for
the value of any Collateral or the validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Revolving Loan
Document, or for any failure of the Borrower or any other party to any
Revolving Loan Document to perform its obligations hereunder or thereunder. No
Agent-Related Person shall be under any obligation to any Lender to ascertain
or to inquire as to the observance or performance of any of the agreements
contained in, or conditions of, this Agreement or any other Revolving Loan
Document, or to inspect the Properties, books or records of the Borrower or any
of the Borrower's Subsidiaries or Affiliates.
68
SECTION 9.4 Reliance by Agents. The Agents shall be entitled to rely, and
shall be fully protected in relying, upon any writing, resolution, notice,
consent, certificate, affidavit, letter, telegram, facsimile, telex or
telephone message, statement or other document or conversation believed by it
to be genuine and to have been signed, sent or made by the proper Person or
Persons, and upon advice and statements of legal counsel (including counsel to
the Borrower), independent accountants and other experts selected by the
Agents. The Agents shall be fully just)fied in failing or refusing to take any
action under this Agreement or any other Revolving Loan Document unless the
applicable Agent shall first receive such advice or concurrence of the Lenders
(or, where an action or waiver need only be approved by the Majority Lenders,
by the Majority Lenders) as it deems appropriate and, if it so requests, it
shall first be indemnified to its satisfaction by the Lenders against any and
all liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. The Agents shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement or any
other Revolving Loan Document in accordance with a request or consent of the
Lenders (or, where an action or waiver need only be approved by the Majority
Lenders, by the Majority Lenders) and such request and any action taken or
failure to act pursuant thereto shall be binding upon all of the Lenders.
SECTION 9.5 Notice of Default. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default, except with respect to defaults in the payment of principal, interest
and fees required to be paid to the Administrative Agent for the account of the
Lenders, unless the Administrative Agent shall have received written notice
from a Lender or the Borrower referring to this Agreement, describing such
Default or Event of Default and stating that such notice is a "notice of
default". In the event that the Administrative Agent receives such a notice,
the Administrative Agent shall give notice thereof to the Lenders. The
Administrative Agent shall take such action with respect to such Default or
Event of Default as shall be requested by the Majority Lenders in accordance
with Article 8; provided, however. that unless and until the Administrative
Agent shall have received any such request, the Administrative Agent may (but
shall not be obligated to) take such action, or refrain from taking such
action, with respect to such Default or Event of Default as it shall deem
advisable or in the best interest of the Lenders.
SECTION 9.6 Credit Decision. Each Lender expressly acknowledges that no
AgentRelated Person has made any representation or warranty to it and that no
act by the Agents hereinafter taken, including any review of the affairs of the
Borrower and its Subsidiaries shall be deemed to constitute any representation
or warranty by the Agents to any Lender. Each Lender represents to the Agents
that it has, independently and without reliance upon the Agents and based on
such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, prospects, operations,
property, financial and other condition and creditworthiness of the Borrower
and its Subsidiaries, and all applicable bank regulatory laws relating to the
transactions contemplated thereby, and made its own decision to enter into this
Agreement and extend credit to the Borrower hereunder. Each Lender also
represents that it will, independently and without reliance upon the Agents and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis,
69
appraisals and decisions in taking or not taking action under this Agreement
and the other Revolving Loan Documents, and to make such investigations as it
deems necessary to inform itself as to the business, prospects, operations,
property, financial and other condition and creditworthiness of the Borrower.
Except for notices, reports and other documents expressly herein required to be
furnished to the Lenders by the Administrative Agent, the Administrative Agent
shall not have any duty or responsibility to provide any Lender with any credit
or other information concerning the business, prospects, operations, property,
financial and other condition or creditworthiness of the Borrower which may
come into the possession of the Administrative Agent.
SECTION 9.7 Indemnification. Whether or not the transactions contemplated
hereby shall be consummated, upon demand therefor the Lenders shall indemnify
the Agents (to the extent not reimbursed by or on behalf of the Borrower and
without limiting the obligation of the Borrower to do so), ratably from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses and disbursements of any kind
whatsoever which may at any time (including at any time following the repayment
of the Revolving Loans and the termination or resignation of the Agents) be
imposed on, incurred by or asserted against the Agents in any way relating to
or arising out of this Agreement or any document contemplated by or referred to
herein or the transactions contemplated hereby or thereby or any action taken
or omitted by the Agents under or in connection with any of the foregoing;
provided, however, that no Lender shall be liable for the payment to an Agent
of any portion of such liabilities, obligations, Iosses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting solely
from the applicable Agent's gross negligence or willful misconduct. In
addition, each Lender shall reimburse the Agents upon demand for its ratable
share of any costs or out-of-pocket expenses (including Attorney Costs)
incurred by the Agents in connection with the preparation, execution, delivery,
administration, mod)fication, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement, any other Revolving Loan
Document, or any document contemplated by or referred to herein to the extent
that the Agents are not reimbursed for such expenses by or on behalf of the
Borrower. Without limiting the generality of the foregoing, if the Internal
Revenue Service or any other Governmental Authority of the United States or
other jurisdiction asserts a claim that the Administrative Agent did not
properly withhold tax from amounts paid to or for the account of any Lender
(because the appropriate form was not delivered, was not properly executed, or
because such Lender failed to notify the Administrative Agent of a change in
circumstances which rendered the exemption from, or reduction of, withholding
tax ineffective, or for any other reason) such Lender shall indemnify the
Administrative Agent fully for all amounts paid, directly or indirectly, by the
Administrative Agent as tax or otherwise, including penalties and interest, and
including any taxes imposed by any jurisdiction on the amounts payable to the
Administrative Agent under this Section 9.7, together with all related costs
and expenses (including Attorney Costs). The obligation of the Lenders in this
Section 9.7 shall survive the payment of all Obligations hereunder.
SECTION 9.8 Administrative Agent in Individual Capacity. LaSalle, First
Chicago and their Affiliates may make Revolving Loans to, issue letters of
credit for the account of, accept deposits from, acquire equity interests in
and generally engage in any kind of banking, trust, financial advisory or other
business with the Borrower and its Subsidiaries and Affiliates as
70
though LaSalle or First Chicago, as the case may be, were not Agents hereunder
and without notice to or consent of the Lenders. With respect to their
Revolving Loans, LaSalle and First Chicago's Affiliate, The First National Bank
of Chicago, shall have the same rights and powers under this Agreement as any
other Lender and may exercise the same as though it were not Administrative
Agent, and the terms "Lender" and "Lenders" shall include LaSalle and First
Chicago's Affiliate, The First National Bank of Chicago, in their individual
capacities.
SECTION 9.9 Successor Administrative Agent. The Administrative Agent may
resign as Administrative Agent upon thirty (30) days' prior notice to the
Lenders. If the Administrative Agent shall resign as Administrative Agent under
this Agreement, the successor Administrative Agent shall be First Chicago,
which shall thereupon be both Administrative Agent and Syndication Agent. If
First Chicago declines to be the Administrative Agent, the Majority Lenders
shall appoint from among the Lenders a successor administrative agent for the
Lenders. If no successor administrative agent is appointed prior to the
effective date of the resignation of the Administrative Agent, the
Administrative Agent may thereupon appoint a successor administrative agent
from among the Lenders. Upon the acceptance of its appointment as successor
administrative agent hereunder, such successor administrative agent shall
succeed to all the rights, powers and duties of the retiring Administrative
Agent and the term "Administrative Agent" shall mean such successor
administrative agent and the retiring Administrative Agent's appointment,
powers and duties as Administrative Agent shall be terminated. After any
retiring Administrative Agent's resignation hereunder as Administrative Agent,
the provisions of this Article 9 and Sections 9.4 and 9.5 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement. If no successor administrative agent
has accepted appointment as Administrative Agent by the date which is thirty
(30) days following a retiring Administrative Agent's notice of resignation
(or, if later, ten (10) days after the date upon which the Administrative Agent
designates a successor administrative agent), the retiring Administrative
Agent's resignation shall nevertheless thereupon become effective and the
Lenders shall perform all of the duties of the Administrative Agent hereunder
until such time, if any, as the Majority Lenders appoint a successor
administrative agent as provided for above.
ARTICLE 10
MISCELLANEOUS
SECTION 10. 1 Amendments and Waivers. No amendment or waiver of any
provision of this Agreement or any other Revolving Loan Document, and no
consent with respect to any departure by the Borrower therefrom, shall be
effective unless the same shall be in writing and signed by the Majority
Lenders, the Borrower and acknowledged by the Administrative Agent, and then
such waiver shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no such waiver,
amendment, or consent shall, unless in writing and signed by all the Lenders,
the Borrower and acknowledged by the Administrative Agent, do any of the
following:
71
(a) increase or extend the Revolving Loan Commitment or the Letter of Crec
Commitment of any Lender (or reinstate any Revolving Loan Commitment or Letter
of Credit Commitment terminated pursuant to subsection 8.2(a)) or subject any
Lender to any additional obligations;
(b) postpone or delay any date fixed for any payment of principal,
interest, fees or other amounts due to the Lenders (or any of them) hereunder
or under any Revolving Loan Document;
action by all Lenders;
(c) reduce the principal of, or the rate of interest specified herein on
any Revolving Loan, or of any fees or other amounts payable hereunder or under
any Revolving Loan Document;
(d) change the percentage of the Revolving Loan Commitment or Letter of
Credit Commitment or of the aggregate unpaid principal amount of the Revolving
Loans which shall be required for the Lenders or any of them to take any action
hereunder; or
(e) amend this Section 10.1 or any provision providing for consent or other
and, provided further, that no amendment, waiver or consent shall, unless in
writing and signed by the Administrative Agent in addition to the Majority
Lenders or all the Lenders, as the case may be, affect the rights or duties of
the Administrative Agent under this Agreement or any other Revolving Loan
Document; and provided, further that notwithstanding anything to the contrary
contained herein or otherwise, the Administrative Agent and the Borrower may
enter into one or more amendments which have the effect of increasing the
Aggregate Revolving Loan Commitment to an amount not to exceed $350,000,000.
SECTION 10.2 Notices.
(a) All notices, requests and other communications provided for hereunder
shall be in writing (including, unless the context expressly otherwise
provides, by facsimile transmission, provided that any matter transmitted by
the Borrower by facsimile (i) shall be promptly confirmed by a telephone call
to the recipient at the number specified on the applicable signature page
hereof, and (ii) shall be followed promptly by a hard copy original thereof)
and mailed by certified or registered mail, faxed or delivered, to the address
or facsimile number specified for notices on the applicable signature page
hereof; or, if directed to the Borrower or the Agents, to such other address as
shall be designated by such party in a written notice to each of the other
parties hereto given in compliance herewith, or, if directed to any other party
hereto, to such other address as shall be designated by such party in a written
notice given in compliance herewith to the Borrower and the Agents.
(b) All such notices, requests and communications shall, when transmitted
by overnight delivery, or faxed, be effective when delivered for overnight
(next day) delivery, or transmitted by facsimile machine, respectively, or if
mailed, upon the third Business Day after
72
the date deposited into the U.S. Mail, certified or registered, or if
delivered, upon delivery; except that notices pursuant to Article 2 or 9 shall
not be effective until actually received by the Administrative Agent.
(c) The Borrower acknowledges and agrees that any agreement of the
Administrative Agent and the Lenders in Article 2 hereof to receive certain
notices by telephone and facsimile is solely for the convenience and at the
request of the Borrower. The Administrative Agent and the Lenders shall be
entitled to rely on the authority of any Person purporting to be a Person
authorized by the Borrower to give such notice and the Administrative Agent and
the Lenders shall not have any liability to the Borrower or other Person on
account of any action taken or not taken by the Administrative Agent or the
Lenders in reliance upon such telephonic or facsimile notice. The obligation of
the Borrower to repay the Revolving Loans shall not be affected in any way or
to any extent by any failure by the Administrative Agent and the Lenders to
receive written confirrnation of any telephonic or facsimile notice or the
receipt by the Administrative Agent and the Lenders of a confirmation which is
at variance with the terms understood by the Administrative Agent and the
Lenders to be contained in the telephonic or facsimile notice.
SECTION 10.3 No Waiver: Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Administrative Agent or any Lender, any
right, remedy, power or privilege hereunder, shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege.
SECTION 10.4 Costs and Expenses. Whether or not the transactions
contemplated shall be consummated, the Borrower shall pay or reimburse:
(a) LaSalle (including in its capacity as Administrative Agent) within
five (5) Business Days after demand for all costs and expenses (including
without limitation the reasonable fees and expenses of counsel) incurred by
LaSalle (including in its capacity as Administrative Agent) in connection with
the development, preparation, delivery and execution of, and any amendment,
supplement, waiver or mod)fication to (in each case, whether or not
consummated), this Agreement, any Revolving Loan Document and any other
documents prepared in connection herewith or therewith, and the consummation of
the transactions contemplated hereby and thereby, including the reasonable
Attorney Costs incurred by LaSalle (including in its capacity as Administrative
Agent) with respect thereto; provided, that the fees and expenses of counsel in
connection with the initial preparation, delivery, execution and consummation
of this Agreement shall not exceed $50,000;
(b) each Lender and the Agents within five (5) Business Days after demand
for all costs and expenses (including without limitation the reasonable fees
and expenses of counsel) incurred by them in connection with the enforcement,
attempted enforcement, or preservation of any rights or remedies during the
existence of an Event of Default (including in connection with any "workout"
or restructuring regarding the Revolving Loans, and including in any Insolvency
73
Proceeding or appellate proceeding) under this Agreement, any other Revolving
Loan Document, and any such other documents, including Attorney Costs, incurred
by the Agents and/or any
Lender; and
(c) LaSalle (including in its capacity as Administrative Agent) within
five (5) Business Days after demand for all appraisal, audit, environmental
inspection and review, search and filing costs, fees and expenses (including,
without limitation, the reasonable fees and expenses of counsel), incurred or
sustained by LaSalle (including in its capacity as Administrative Agent) in
connection with the matters referred to under subsections (a) and (b) of this
Section 10.4.
SECTION 10.5 Indemnitv. Whether or not the transactions contemplated
hereby shall be consummated, the Borrower shall indemnify, defend and hold
harmless each Lender, the Agents and each of their respective officers,
directors, employees, counsel, agents and attorneys-in-fact (each, an
"Indemnified Person") from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, charges, expenses
or disbursements (including reasonable Attorney Costs):
(a) of any kind or nature whatsoever with respect to the execution,
delivery, enforcement, performance and administration of this Agreement and any
other Revolving Loan Documents, or the transactions contemplated hereby and
thereby, and with respect to any investigation, litigation or proceeding
(including any Insolvency Proceeding or appellate proceeding) related to this
Agreement or the Revolving Loans or the use of the proceeds thereof, whether or
not any Indemnified Person is a party thereto; and
(b) which may be incurred by or asserted against such Indemnified Person
in connection with or arising out of any pending or threatened investigation,
litigation or proceeding, or any action taken by any Person, with respect to
any Environmental Claim arising out of or related to any Property of the
Borrower or its Subsidiaries;
(all the foregoing, collectively, the "Indemnified Liabilities"); provided,
that the Borrower shall have no obligation hereunder to any Indemnified Person
with respect to Indemnified Liabilities arising from the gross negligence or
willful misconduct of such Indemnified Person.
The obligations in this Section 10.5 shall survive payment of all other
Obligations. At the election of any Indemnified Person, the Borrower shall
defend such Indemnified Person using legal counsel satisfactory to such
Indemnified Person in such Person's sole discretion, at the sole cost and
expense of the Borrower. All amounts owing under this Section 10.5 shall be
paid within thirty (30) days after demand.
74
SECTION 10.6 Marshalling: Pavments Set Aside. Neither the Administrative
Agent nor any Lender shall be under any obligation to marshal! any assets in
favor of the Borrower or any other Person or against or in payment of any or
all of the Obligations. To the extent that the Borrower makes a payment or
payments to the Administrative Agent or any Lender, or the Administrative Agent
or any Lender exercise its rights of set-off, and such payment or payments or
the proceeds of such act-off or any part thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside or required (including
pursuant to any settlement entered into by the Administrative Agent in its
discretion) to be repaid to a trustee, receiver or any other party in
connection with any Insolvency Proceeding, or otherwise, then.
(a) to the extent of such recovery the obligation or part thereof
originally intended to be satisfied shall be revived and continued in full
force and effect as if such payment had not been made or such act-off had not
occurred; and
(b) each Lender severally agrees to pay to the Administrative Agent upon
demand its ratable share of the total amount so recovered from or repaid by the
Administrative Agent.
SECTION 10.7 Successors and Assigns. The provisions ofthis Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; provided that any assignment by any Lender
shall be subject to the provisions of Section 10.8 hereof, and provided further
that the Borrower may not assign or transfer any of its rights or obligations
under this Agreement.
SECTION 10.8 Assi~nents. Participations. etc.
(a) Any Lender may, subject to the consent of the Borrower and with the
written consent of the Administrative Agent and the Issuing Bank (in any case,
which consent shall not be unreasonably withheld), at any time sell or assign
and delegate to one or more Eligible Assignees (provided that no consent of the
Borrower or Administrative Agent shall be required in connection with any
assignment and delegation by a Lender to an Eligible Assignee that is an
Affiliate of such Lender) (each an "Assignee") all, or any ratable part of all,
of the Revolving Loans, the Revolving Loan Commitment, the Letter of Credit
Commitment, the rights with respect to Letters of Credit and the other rights
and obligations of such Lender hereunder, in a minimum amount of $10,000,000;
provided however, that the Borrower and the Administrative Agent may continue
to deal solely and directly with such Lender in connection with the interest so
assigned to an Assignee until:
(i) written notice of such assignment, together with payment instructions,
addresses and related information with respect to the Assignee, shall have been
given to the Borrower and the Administrative Agent by such Lender and the
Assignee;
75
(ii) such Lender and its Assignee shall have delivered to the Borrower and
the Administrative Agent an Assignment and Acceptance in the form of Exhibit F
(an "Assignment and Acceptance"); and
(iii) the assignor Lender or the Assignee has paid to the Administrative
Agent a processing fee in the amount of $3,500; provided, however that this
section shall not be applicable to an assignment from a Lender to an Affiliate
of the assigning Lender.
(b) From and after the date that the Administrative Agent not)fies the
assign~ Lender that the Administrative Agent has received and provided its
consent with respect to an executed Assignment and Acceptance and payment of
the above-referenced processing fee:
(i) the Assignee thereunder shall be a party hereto and, to the extent
that rights and obligations hereunder have been assigned to it pursuant to such
Assignment and Acceptance, shall have the rights and obligations of a Lender
under this Agreement and the other Revolving Loan Documents; and
(ii) the assignor Lender shall, to the extent that rights and obligations
hereunder and under the other Revolving Loan Documents have been assigned by it
pursuant to such Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Revolving Loan Documents; provided.
however, that any assignor Lender shall not be released from any claims of any
kind arising from any breach or default under the Revolving Loan Documents by
the assignor Lender which occurred prior to the date of the Administrative
Agent's consent to the assignment.
(c) Immediately upon the making of the processing fee payment to the
Administrative Agent in respect of the Assignment and Acceptance, this
Agreement shall be deemed to be amended to the extent, but only to the extent,
necessary to reflect the addition of the Assignee and the resulting adjustment
of the Revolving Loan Commitment, and Letter of Credit Commitment arising
therefrom. The Revolving Loan Commitment and Letter of Credit Commitment
allocated to each Assignee shall reduce such Revolving Loan Commitment and
Letter of Credit Commitment of the assigning Lender Eg tanto.
(d) Any Lender may at any time sell to one or more commercial banks or
other Persons not Affiliates of the Borrower (a "Participant") participating
interests in any Revolving Loans, the Revolving Loan Commitment and Letter of
Credit Commitment of that Lender and the other interests of that Lender (the
"Originating Lender") hereunder and under the other Revolving Loan Documents;
provided, however, that:
(i) remain unchanged; the Originating Lender's obligations under this
Agreement shall
(ii) the Originating Lender shall remain solely respc performance of such
obligations;
76
(iii) the Borrower and the Administrative Agent shall continue to d solely
and directly with the Originating Lender in connection with the Originating
Lender's rights and obligations under this Agreement and the other Revolving
Loan Documents; and
(iv) no Lender shall transfer or grant any participating interest except
under which the Participant shall only have voting rights with respect to
approving (1) a decrease in the Facility Fee or the Applicable Margin, (2) an
increase in the Revolving Loan Commitment and Xxxxx of Credit Commitment only
if the Participant's Revolving Loan Commitment and Letter of Credit Commitment
are increased, (3) an extension of the Termination Date, or (4) the waiver of
defaults with respect to this Agreement or any other Revolving Loan Document,
except to the extent such amendment, consent or waiver would require unanimous
consent of the Lenders as described in the first proviso to Section 10.1.
In the case of any such participation, and except with respect to the voting
rights in sub-paragraph (iv) above, the Participant shall not have any rights
under this Agreement, or any of the other Revolving Loan Documents, and all
amounts payable by the Borrower hereunder shall be determined as if such Lender
had not sold such participation.
(e) Notwithstanding any other provision contained in this Agreement or any
other Revolving Loan Document to the contrary, any Lender may assign all or any
portion of the Revolving Loans held by it to any Federal Reserve Lender or the
United States Treasury as collateral security pursuant to Regulation A of the
Federal Reserve Board and any Operating Circular issued by such Federal Reserve
Lender, provided that any payment in respect of such assigned Revolving Loans
made by the Borrower to or for the account of the assigning or pledging Lender
in accordance with the terms of this Agreement shall satisfy the Borrower's
obligations hereunder in respect to such assigned Revolving Loans to the extent
of such payment. No such assignment shall release the assigning Lender from its
obligations hereunder.
SECTION 10.9 Confidentiality. Each of the Agents, the Lenders and their
Affiliates shall maintain in confidence in accordance with its customary
procedures for handling confidential information, all written information that
Borrower or any of its Subsidiaries, or any of their authorized
representatives, furnishes to the Agents or any Lender and its Affiliates
("Confidential Information") other than any such Confidential Information that
becomes generally available to the public other than as a result of a breach by
the Agents or any Lender of its obligations hereunder or that is or becomes
available to the Agents or such Lender from a source other than Borrower or any
of its Subsidiaries, or any of their authorized representatives, and that is
not, to the actual knowledge of the recipient thereof, subject to obligations
of confidentiality with respect thereto; provided, however, that the Agents and
each Lender shall in any event have the right to deliver copies of any such
documents, and to disclose any such information, to:
(a) its directors, officers, trustees, employees, agents, professional
consultants;
(b) any xxxx Lender and any successor Agents;
77
(c) any Person to which such Lender offers to sell any Revolving Loan or
any part thereof or interest or participation therein (provided such Person
agrees to keep such information confidential on the terms set forth in this
Section 10.9);
(d) any federal or state regulatory authority or examiner, or any insure'
industry association, including, without limitation, the National Association
of Insurance Commissioners, regulating or having }urisdiction over the Agents
or such Lender; and
(e) any other Person to which such delivery or disclosure may be necessary
or appropriate (i) in compliance with any applicable law, rule, regulation or
order, (ii) in response to any subpoena or other legal process or informal
investigative demand, (iii) in connection with any litigation to which the
Agents or such Lender is a party, or (iv) in connection with the enforcement of
the rights and remedies of the Agents or the Lenders under this Agreement and
the other Revolving Loan Documents at any time when an Event of Default shall
have occurred and be continuing.
SECTION 10.10 Set-off. In addition to any rights and remedies of the
Lenders provided by law, if an Event of Default shall have occurred and be
continuing, each Lender is authorized at any time and from time to time,
without prior notice to the Borrower, any such notice being waived by the
Borrower to the fullest extent permitted by law, to set off end apply any and
all deposits (general or special, time or demand, provisional or final) and
other Property at any time held by, including any indebtedness at any time
owing to, such Lender to or for the credit or the account of the Borrower
against any and all Obligations owing to such Lender, now or hereafter
existing, irrespective of whether or not the Administrative Agent or such
Lender shall have made demand under this Agreement or any Revolving Loan
Document and although such Obligations may be contingent or unmatured. Each
Lender agrees promptly to notify the Borrower and the Administrative Agent
after any such act-off end application made by such Lender; provided, however,
that the failure to give such notice shall not affect the validity of such
set-off and application. The rights of each Lender under this Section 10.10 are
in addition to the other rights and remedies (including other rights of
set-off) which the Lender may have, and subject to each Lender's obligations
under Section 2.13 hereof.
SECTION 10.11 Notification of Addresses Lending Offices. Etc. Each Lender
shall notify the Administrative Agent in writing of any changes in the address
to which notices to the Lender should be directed, of addresses of its Lending
Office, of payment instructions in respect of all payments to be made to it
hereunder and of such other administrative information as the Administrative
Agent shall reasonably request.
SECTION 10.12 Counterparts. This Agreement may be executed by one or more
ofthe parties to this Agreement in any number of separate counterparts, each of
which, when so executed, shall be deemed an original, and all of said
counterparts taken together shall be deemed to constitute but one and the same
instrument. A set of the copies of this Agreement signed by all the parties
shall be lodged with each of the Borrower and the Administrative Agent.
SECTION 10.13 Severabilitv. The illegality or unenforceability of any
provision of this Agreement or any instrument or agreement required hereunder
shall not in any way affect or
78
impair the legality or enforceability of the remaining provisions of this
Agreement or any instrument or agreement required hereunder.
SECTION 10.14 Captions. The captions and headings ofthis Agreement are fo~
convenience of reference only and shall not affect the interpretation of this
Agreement.
SECTION 10.15 Independence of Provisions. The parties acknowledge that
this Agreement and other Revolving Loan Documents may use several different
limitations, tests or measurements to regulate the same or similar matters, and
that such limitations, tests and measurements are cumulative and must each be
performed, except as expressly stated to the contrary in this Agreement.
SECTION 10.16 Interpretation. This Agreement is the result of negotiations
among and has been reviewed by counsel to the Administrative Agent, the
Borrower and other parties, and is the product of all parties hereto.
Accordingly, this Agreement and the other Revolving Loan Documents shall not be
construed against the Lenders or the Administrative Agent merely because of the
Administrative Agent's or Lenders' involvement in the preparation of such
documents and agreements.
SEC~ON 10.17 No Third Parties genefited. This Agreement is made and
entered into for the sole protection and legal benefit of the Borrower, the
Lenders and the Agents, and their permitted successors and assigns, and no
other Person shall be a direct or indirect legal baneficiary of, or have any
direct or indirect cause of action or claim in connection with, this Agreement
or any of the other Revolving Loan Documents. Neither the Agents nor any Lender
shall have any obligation arising under the Revolving Loan Documents to any
Person not a party to this Agreement or other Revolving Loan Documents.
SECTION 10. 18 Governing Law and Jurisdiction.
(a) THIS AGREEMENT AMD THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED 1N
ACCORDANCE WITH, THE LAW OF THE STATE OF ILLINOIS; PROVIDED THAT THE AGENT AND
THE LENDERS SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT AND ANY
OTHER REVOLVING LOAN DOCUMENTS MAY BE BROUGHT IN THE COURTS OF THE STATE OF
lLLlNOIS OR OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF lLLlNOIS, EASTERN
DIVISION, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE
BORROWER, THE AGENTS AND THE LENDERS CONSENTS, FOR ITSELF AND 1N RESPECT OF ITS
PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THOSE COURTS. EACH OF THE
BORROWER, THE AGENTS AND THE LENDERS IRREVOCABLY WAIVES ANY OBJECTION,
lNCLUDlNG ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM
NON CONVENIENS. WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY
ACTION OR PROCEEDING 1N SUCH
79
JURISDICTION 1N RESPECT OF THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO. THE
BORROWER, THE AGENTS AND THE LENDERS EACH WAIVE PERSONAL SERVICE OF ANY
SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS
PERMITTED BY ILLINOIS LAW.
SECTION 10. 19 WAIVER OF JURY TRIAL. THE BORROWER, THE LENDERS AND THE
AGENTS EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR
CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE
OTHER REVOLVING LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY
ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR PARTIES, WHETHER WITH RESPECT TO
CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. THE BORROWER, THE LENDERS AND THE
AGENTS EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A
COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTES FURTHER
AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF
THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN
WHOLE OR 1N PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT
OR THE OTHER REVOLVING LOAN DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF. THIS
WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS AGREEMENT AND THE OTHER REVOLVING LOAN DOCUMENTS.
SECTION 10.20 Entire Agreement. This Agreement, together with the other
Revolving Loan Documents, embodies the entire agreement and understanding among
the Borrower, the Lenders and the Agents, and supersedes all prior or
contemporaneous Agreements and understandings of such Persons, verbal or
written, relating to the subject matter hereof and thereof, except for the fee
letters referenced in subsection 2.9(a), and any prior arrangements made with
respect to the payment by the Borrower of (or any indemnification for) any
fees, costs or expenses payable to or incurred (or to be incurred) by or on
behalf of the Administrative Agent or the Lenders.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
dul, executed and delivered by their duly authorized officers as of the day and
year first above written.
HEALTHCARE COMPARE CORP.
By: :~ | ~ -\~
. ..~
Title: yi e President Finance & CFO
Address for notices:
0000 Xxxxxxxx Xxxxxx
80
Downers Grove, [L 60615
Attn: Xxxxxx Xxxxxxxx
Facsimile: (000)000-0000
Tel: (000)000-0X00
LASALLE NATIONAL BANK, as Administrative Agent
Address for Payments, Notices of Borrowing, Notices of Continuation/Conversion:
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Administrative Services
Xxxxx Xxxx
Facsimile: (000) 000-0000
Tel: (000) 000 0000
FIRST CHICAGO CAPITAL MARKETS, INC.. as Syndication Agent
By: Title:
Address for notices:
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
Facsimile: (000)000-0000
Tel: (000)000-0000
IN WITNESS WHEREOF, the parties hereto have caused this A~eement to be
duly executed and delivered by their duly authonzed off~cers as of the day and
year first above written.
HEALTHCARE COMPARE CORP.
By:
Title: Vice President Finance & CFO
Address for notices:
0000 Xxxxxxxx Xxxxxx
Downers Grove, L 60615
Attn: Xxxxxx Xxxxxxxx
Facsimile: (000)000-0000
Tel: (000)000-0000
81
LASALLE ~NAL BANK, as Adminis,~atiy~ A~ent
>~/~
By: ~_ l
Title: 7 V /z=~,O
Address for Payments, Notices of Borrowing, Notices of Continuation/Conversion:
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Administrative Services
Xxxxx Xxxx
Facsimile: (000) 000-0000
Tel: (000) 000 0000
FIRST CHICAGO CAPITAL MARKETS, INC., as Syndication Agent
By: Title:
Address for notices:
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
Facsimile: (000)000-0000
Tel: (000)000-0000
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their duly authorized officers as of the day and
year first above written.
HEALTHCARE COMPARE CORP.
By:
Title: Vice President Finance & CFO
Address for notices:
0000 Xxxxxxxx Xxxxxx
Xxxxxxx Xxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxx
Facsimile: (000) 000-0000
Tel: (630) 241 -7510
LASALLE NATIONAL BANK, as Administrative Agent
82
Title:
Address for Payments, Notices of Borrowing, Notices of Continuation/Conversion:
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Administrative Services
Xxxxx Xxxx
Facsimile: (000) 000-0000
Tel: (000)000 0000
FIRST CHICAGO CAPITAL MARKETS, INC., as Syndication Agent
By: p.4 ~ {~c-:
Title: ~G~c~.~5 ~ ). ~W
Address for notices:
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
Facsimile: (000) 000-0000
Tel: (000)000-0000
LASALLE N/I9NAL BANK as Lender and Issuing Bank
By: (:':
Title: ~ / V /~/767
Address for notices:
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxxx. X. Xxxxxxx
Facsimile: (000) 000-0000
Tel: (000)000-0000
THE FIRST NATIONAL BANK
OF CHICAGO, as Lender
By: Title:
Address for notices:
Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
83
Attn: Xxx Xxxxxxxx
Facsimile: (000) 000-0000
Tel: (000)000-0000
Lending Off~ce:
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx
Facsimile: (000)000-0000
Tel: (000)000-0000
Lending Office:
Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxx Xxxxx
Facsimile: (000)000-0000
Tel: (000)0000000
LASALLE NATIONAL BANK, as Lender and Issuing Bank
By: Title:
Address for notices:
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxxx. X. Xxxxxxx
Facsimile: (000) 000-0000
Tel: (000)000-0000
THE F~ATIOy'AL BANK
OF C HICA(;b, as,~e~er
By:_ \/~Y ~K
Title: //~TANTVICE PRESIDENT
~ V
Address for notices:
Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxx Xxxxxxxx
Facsimile: (000) 000-0000
Tel: (000) 000-0000
84
Lending Office:
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, L 60603
Attn: Xxxxxxx X. Xxxxxxx
Facsimile: (000)000-0000
Tel: (000)000-0000
Lending Office:
Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxx Xxxxx
Facsimile: (000)000-0000
Tel: (000)000-0000
THE INDUSTRIAL BANK OF
JAPAN, LIMITED, CHICAGO BR~.NCH, as Lender
By: 1 \)QJJ~U~d
Title: Senior Vice Presid~l[pt and
Deputy General Manager
Address for notices:
000 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxx
Facsimile: (000) 000-0000
Tel: (000) 000-0000
CIBC, INC., as Lender
-
T~tle:
Address for notices:
Two Paces West
0000 Xxxxx Xxxxx Xxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxx
Facsimile: (000) 000-0000
85
Tel: (000) 000-0000
Lending Off~ce:
000 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, L 60606
Attn: Xxxxxxx Bacalao
Facsimile: (000) 000-0000
Tel: (000) 000-0000
Lending Office:
000 Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxx Xxxxx
Facsimile: (000) 000-0000
Tel: (000) 000-0000
THE INDUSTR]AL BANK OF
JAPAN, LIMITED, CHICAGO BR\NCH, as Lender
By:Title:
Address for notices:
000 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxx
Facsimile: (000) 000-0000
Tel: (000) 000-0000
CIBC, INC., as Lender
Lending Office:
000 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxxx Bacalao
Facsimile: (000) 000-0000
Tel: (000) 000-0000
By: Ci6/~\L.2
86
Title:/ TIIUO~r
~NAG, ~D GUNDy
Address for notices: P.'ASiGENT Lending Office:
Two Paces West
0000 Xxxxx Xxxxx Xxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxx
Facsimile: (000) 000-0000
Tel: (000) 000-0000
000 Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxx Xxxxx
Facsimile: (000) 000-0000
Tel: (000) 000-0000
UNION BANK OF CALIFORNIA, N.A., as Lender
~c~~ ~
By: XXXXXXXX X. XXXX~N
Title: Aeeistant Vice Precitlpnt
Address for notices:
000 Xxxxx Xxxxxxxx Xxxxxx
16th Floor
Los Angeles. CA 90071
Attn: Xxxxxxx Mo
Facsimile: (000) 000-0000
Tel: (000) 000-0000
BANQUE NATIONALE DE PARIS
By: Title:
Address for notices:
000 Xxxxx XxXxxxx Xxxxxx
0xx Xxxxx
Xxxxxxx, [L 60604
Attn: Xxxxxxx Xxxxxxxx
87
Facsimile: (000) 000-0000
Tel: (3 l2) 000-0000
THE BANK OF NEW YORK, as Lender
By: Title:
Address for notices:
Xxx Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Central Division
Attn: Xxxxx Xxxxx
Facsimile: (000) 000-0000/24
Tel: (000) 000-0000
Lending Office:
000 Xxxxx Xxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxxxx Xxxxxx
Facsimile: (000) 000-0000
Tel: (000) 000-0000
Lending Office:
000 Xxxxx XxXxxxx Xxxxxx
0xx Xxxxx
Xxxxxxx, [L 60604
Attn: Xxxxxxxxx Xxxxxx
Facsimile: (000) 000-0000
Tel: (000) 000-0000
Lending Office:
Xxx Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Central Division
Attn: Xxxx Xxxxx
Facsimile: (000) 000-0000/09
Tel: (000) 000-0000
UNION BANK OF CALIFORNIA, N.A., as Lender
88
Bv:
Title:
Address for notices:
000 Xxxxx Xxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxxx Mo
Facsimile: (0000 000-0000
Tel: (213) 236~065
BANQUE NATIONALE DE PARIS
Lending Off~ce:
000 Xxxxx Xxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxxxx Xxxxxx
Facsimile: (000) 000-0000
Tel: (000) 000-0000
By: Xxxxxx Xxxxxx du Bocage
Title: Executive Vice President and General Manager
Address for notices:
000 Xxxxx XxXxxxx Xxxxxx
0xx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxx
Facsimile: (000)000-0000
Tel: (000) 000-0000
THE BANK OF NEW YORK, as Lender
By: Title:
Address for notices:
Xxx Xxxx Xxxxxx
00xx Xxxxx
00
Xxx Xxxx, XX 00000
Central Division
Attn: Xxxxx Xxxxx
Facsimile: (000) 000-0000/24
Tel: (000) 000-0000
Lending Office:
000 Xxxxx XxXxxxx Xxxxxx
0xx Xxxxx
Xxxxxxx, L 60604
Attn: Xxxxxxxxx Xxxxxx
Facsimile: (000) 000-0000
Tel: (000) 000-0000
Lending Office:
Xxx Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Central Division
Attn: xxxx Xxxxx
Facsimile: (000) 00X-0000/09
Tel: (000) 000-0000
UNION BANK OF CALIFORNIA, N.A., as Lender
Bv:
Title:_
Address for notice~.
000 Xxxxx Xxxxxxxx Xxxxx.
16th Floor
Los Angeles, CA 90071
Attn: Xxxxxxx Mo
Facsimile: (000) 000-0000
Tel: (000) 000-0000
BANQUE NATIONALE DE PARIS
By:Title:
Address for notices:
90
000 Xxxxx XxXxxxx Xxxxxx
0xx Xxxxx
Xxxxxxx, [L 60604
Attn: Xxxxxxx Xxxxxxxx
Facsimile: (000) 000-0000
Tel: (000) 000-0000
THE BANK OF NEW YORK, as Lender
By: qzc~`~ - O,
Title: ~ ~ nuAV lD '/
XXXX ~,. ~v'`~.,~
Addre,\~8ESIDENT'
Xxx Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Central Division
Attn: Xxxxx Xxxxx
Facsimile: (000) 000-0000/24
Tel: (000) 000-0000
Lending Officc.
000 Xxxxx Xxxxxxxx Xxxxxx
16th Floor
Los Angeles, CA 90071
Attn: Xxxxxxxx Xxxxxx
Facsimile: (000) 000-0000
Tel: (000) 000-0000
Lending Office:
000 Xxxxx XxXxxxx Xxxxxx
0xx Xxxxx
Xxxxxxx, [L 60604
Attn: Xxxxxxxxx Xxxxxx
Facsimile: (000) 000-0000
Tel: (000) 000-0000
Lending Office:
Xxx Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
91
Central Division
Attn: Xxxx Xxxxx
Facsimile: (000) 000-0000/09
Tel: (000) 000-0000
CREDIT LYONNAIS, NEW YORK BRANCH, as Lender
V;e Pre s ide ~ C
Title:
Address for notices:
0000 Xxxxxx xxxxx Xxxxxxxx Xxx Xxxx, XX 00000 Attn: Xxxxx X. Xxxxx Facsimile:
(2 l 2) 261 -3440 Tel: (000) 000-0000
THE NORTHERN TRUST COMPANY, as Lender
By:Title:
Address for notices:
X0 X. XxXxxxx Xxxxxx Xxxxxxx, XX 00000 Attn: Xxxx Xxxx Facsimile: (312)
000-0000 Tel: (000) 000-0000
SUNTRUST BANK,
NASHVILLE, N.A., as Lender
By:Title:
Address for notices:
000 0xx Xxxxxx Xxxxx Xxxxxxxxx, XX 00000 Attn: Leigh Xxxx Xxxxxxx Facsimile:
(000) 0000000 Tel: (000) 000-0000
Lending Office:
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx X. Xxxxxx
Facsimile: (212) 261 -3440
Tel: (212) 261 -7344
Lending Office:
00 X. XxXxxxx Xxxxxx
00
Xxxxxxx, XX 00000
Attn: Xxx Xxxxxxxxx
Facsimile: (000) 000-0000
Tel: (000) 000-0000
Lending Office:
000 0xx Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxx Xxxxx
Facsimile: (000) 000-0000
Tel: (000) 000-0000
CREDIT LYONNAIS, NEW YORK BRANCH, as Lender
By: Title:
Address for notices:
0000 Xxxxxx xx xxx Xxxxxxxx Xxx Xxxx, XX 00000 Attn: Xxxxx X. Xxxxx Facsimile:
(000) 0000000 Tel: (000) 000-0000
THE NORTHERN TRUST COMPANY, as Lender
By: 4~/,~
Title: l/ V~
Address for notices:
00 X. XxXxxxx Xxxxxx Xxxxxxx, lL 60675 Attn: Xxxx Xxxx Facsimile: (312)
000-0000 Tel: (000)0000000
SUNTRUST BANK,
NASHlIILLE, N.A., as Lender
By:
Title :
Address for notices:
000 0xx Xxxxxx Xxxxx Xxxxxxxxx, XX 00000 Attn: Leigh Xxxx Xxxxxxx Facsimile:
(000) 0000000 Tel: (000)000-0000
Lending Off~ce:
93
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx X. Xxxxxx
Facsimile: (212) 261 -3440
Tel: (000) 000-0000
Lending Office:
00 X. XxXxxxx Xxxxxx
Xxxxxxx, X 00000
Xxxx: Xxx Xxxxxxxxx
Facsimile: (000)000-0000
Tel: (000)000-0000
Lending Office:
000 0xx Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxx Ahem
Facsimile: (000) 000-0000
Tel: (000) 000-0000
CREDIT LYONNAIS, NEW YORK BRANCH, as Lender
By:Title:
Address for notices:
0000 Xxxxxx xxxxx Xxxxxxxx Xxx Xxxx, XX 00000 Attn: Xxxxx X. Xxxxx Facsimile:
(000) 0000000 Tel: (212) 261 -7313
THE NORTHERN TRUST COMPANY, as Lender
By:Title:
Address for notices:
00 X. XxXxxxx Xxxxxx Xxxxxxx, lL 60675 Attn: Xxxx Xxxx Facsimile: (312)
000-0000 Tel: (000) 0000000
SUNTRUST BANK, NASHVILLE, N.A., as Lender
By: k'~ C~ ~.N
Title: (ir \t P
Address for notices:
94
000 0xx Xxxxxx Xxxxx Xxxxxxxxx, XX 00000 Attn: Leigh Xxxx Xxxxxxx Facsimile:
(000) 0000000 Tel: (000)000-0000
Lending Off~ce:
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: xxxx X. Xxxxxx
Facsimile: (212) 261 -3440
Tel: (000) 000-0000
Lending Office:
00 X. XxXxxxx Xxxxxx
Xxxxxxx, {L 60675
Attn: Xxx Xxxxxxxxx
Facsimile: (312) 0x00-0000
Tel: (000) 000-0000
Lending Office:
000 0xx Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxx Xxxxx
Facsimile: (000) 000-0000
Tel: (000) 000-0000
XXXXXX TRUST & SAVINGS BANK, as Lender
By: <
Title: S,-) y'
Address for notices:
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
Facsimile: (312) 461 -7365
Tel: (000) 000-0000
BANQUE PARIBAS, as Lender
By:Title:
Address for notices:
95
000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, [L 60606
Attn: Xxxxxxx Xxxxx
Facsimile: (000) 000-0000
Tel: (312)6032
NATIONSBANK OF TEXAS, N.A., as Lender
Title: -
Address for notices:
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
TX1492-14-05
Attn: Xxxxx Xxxxxx
Facsimile: (000) 000-0000
Tel: (000) 000-0000
Lending Office:
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxxxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
Tel: (000)000-0000
Lending Office:
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxxx
Facsimile: (000) 000-0000
Tel: (000) 000-0X00
Lending Office:
000 X. Xxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxxxxx Xxxxx
Facsimile: (000) 000-0000
Tel: (000) 0000000
96
XXXXXX TRUST & SAVINGS BANK, as Lender
By:Title:
Address for notices:
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
Facsimile: (000)000-0000
Tel: (000) 000-0000
BANQUE PARIBAS, as Lender
By: ~ i,~)
Title: XXXXXXX X. XXXXX
VICE PRESIDENT
Address for notices:
000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, lL 60606
Attn: Xxxxxxx Xxxxx
Facsimile: (000) 000-0000
Tel: (312) 6032
NATIONSBANK OF TEXAS, N.A., as Lender
By:Title:
Address for notices:
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
TX1492-14-05
Attn: Xxxxx Xxxxxx
Facsimile: (000) 000-0000
Tel: (000) 000-0000
Lending Office:
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, L 60603
Attn: Xxxxxxxxxxx X. Xxxxxxx
Facsimile: (000)000-0000
97
Tel: (312) 461 -5068
c~
D - id R Idh,
_. _
WRiWI
Lending Office:
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxxx
Facsimile: (000) 000-0000
Tel: (000) 000-0000
Lending Office:
000 X. Xxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxxxxx Xxxxx
Facsimile: (000) 000-0000
Tel: (000) 0000000
XXXXXX TRUST & SAVINGS BANK, as Lender
By:Title:
Address fUr notices:
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
Facsimile: (000) 000-0000
Tel: (000) 000-0000
BANQUE PARIBAS, as Lender
Title : -
Address for notices:
000 Xxxx Xxxxxx
00
Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxx
Facsimile: (000) 000-0000
Tel: (312) 6032
NATIONSBANK OF TEXAS, N.A., as Lender
By: i,~ ~& Y. ~c~d
Title: ~,'r ~ ~e5! d~:t
Address for notices:
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
TX1492-14-05
Attn: Xxxxx Xxxxxx
Facsimile: (000) 000-0000
Tel: (000) 000-0000
Lending Office:
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxxxxxxx X. Xxxxxxx
Facsimile: (312) 461 -7365
Tel: (000)000-0000
Lending Office:
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxxx
Facsimile: (000) 000-0000
Tel: (000) 000-0000
Lending Office:
14q X. Xxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxxxxx Xxxxx
Facsimile: (000) 000-0000
Tel: (000) 0000000
E.~IT .\
99
NOTICE OF BORROWIN'G
TO: LaSalle National Bank
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, ~ 60603
Attention:
Gentlemen:
HealthCare COMPARE Corp. ("HCC") hereby irrevocably gives notice pursuant
to Section 2.4 of the Credit Agreement (the "Credit Agreement"), dated as of
July ~ 1997 by and among HealthCare CO~ARE Corp., LaSalle National Bank, as
Administrative ABent and Lender, First Chicago Capital Markets, Inc., as
Syndication Agent, and the xxxx Financial Institutions party thereto that HCC
haeby requests a Borrowing under the Credit Agreement and, in that connection,
sets forth below the information relating to such Borrowing as required by the
Credit Agreement.
A. The Business Day of the proposed Borrowing is (the "Borrowing Date")
B. The amount o. the Borrowing, type of Borrowing (Base Rate or LIBOR
Rate), and the initial Interest Period applicable to any LIBOR Rate is as
follows:
Amount of Borro~vins Tvee of Loan Interest Period (LIBOR)
C. You are hereby authorized to deposit the proceeds of such Borrowing
into our account described below:
[Bankl, [Account Numberl, [Reference!
As of the date hereof
(a) Representations and Warranties. The representations and warranties set
forth in Article V of the Credit Agreement are true and correct in all material
respects.
(b) Events of Default. No Default or Event of Default under the Credit
Agreement, or any event which, with the passage of time or the giving of notice
or both. would constitute, mature into, or become an Event of Defauit under the
Credit Agreement, shall have occurred and be continuing or shall result from
the Borrowing requested hereunder.
(c) Maximum Interest Periods. After including the loterest Periods
requested in connection with this Borrowing, there are no more than ten ( 10)
Interest Periods in effect under the Credit Agreement.
100
Unless otherwise indicated, capitalized terms used in this Borrowing
Notice have the same meaning as defined in the Credit Agreement.
Dated:,
HEALTlICARE COMPARE CORP.
By Titb:
An Authorized Officer
EXHIBIT B
NOTICE OF XXXXX~rAT10N'/CON\TRSION
TO LaSalle National Bank
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention:
Gentlemen:
HealthCare COMPARE Corp. ("HCC") hereby irrevocably gives notice pursuant
to Section 2.5 of the Credit Agreement (the "Credit Agreement"), dated as of
July ~ 1997 by and among HealthCare COMPARE Corp., LaSalle National Bank, as
Administrative Agent and Lender, First Chicago Capital Markets, Inc., as
Syndication Agent, and the other Financial Institutions party thereto that HCC
hereby requests a continuation/conversion of an existing Borrowing under the
Credit Agreement and, in that coMection, sets forth below the information
relating to such continuation or conversion as required by the Credit
Agreement.
A. The Business Day of the proposed continuation or conversion is (the
"Continuation or Conversion Date").
B. The aggregate amount of the existing Borrowing to be converted or
continued, the type of continued or converted Borrowing (Base Rate or LIBOR
Rate), and the Interest Period applicable to any continued or converted LIBOR
Rate Loan is as follows:
Amount of Borrowing to be continued: S
Increase (Decrease) in amount of Borrowing
Amount of Borrowing to be converted: .............
New LIBOR Rate Loan total amount ..........
101
Interest Period for LIBOR Rate Loan ....
As of the date hereof
(a) Events of Default. No Default or Event of Default under the Credit
.~greement, or any event which, with the passage of time or the giving of
notice or both, would constitute, mature into, or become an Event of Default
under the Credit Agreement, shall have occurred and be continuing or shall
result from the Borrowing requested hereunder.
(b) Maximum Interest Periods. ARer including the Imerest Periods requested
in coMection with this continuation or conversion, there are no more than ten (
10) Interest Periods in effect under the Credit Agreement.
Unless otherwise indicated, capitalized terms used in this Notice of
Continuation/Conversion have the same meaning as defined in the Credit
Agreement.
Dated:
HEALTHCARE COMPARE CORP.
By: Title:
An Authorized Officer
REVOLVING NOTE
Chicago, minois luly 1, 1997
For value received, HealthCare COMPARE Corp., a D,elaware co~poration (the
"Borro~ver"), promises to pay to the order of LaSalle National Bank, as
Atministrative Agent for the benefit of the Lendas (the "Bank"), the wegate
unpaid principal amount of the Revolving Loans made by the Lenders to the
Borrower pursuant to the Credit Agreement referred to below on the maturity
date provided for in the Credit Agreemcot. The Borrower prornisa to pay
interest on the aggregate unpaid principal amount of the Revolving Loans on the
data and at the rate or rates provided for in the Credit Agreement. All such
payments of principal and interest shall be made in lawful money of the Unitet
States in Federal or xxxx immediately available funds at the office of LaSalle
National Bank, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx.
All Revolving Loans mate by the Lenders, the respoctive types thereof and
all repayments of the princip&l thereof shall be recordet by the Bank ant, if
the Bank so elects in connection with any transfer or enforcernant hereof,
appropriate notations to evitence the foregoing information with respect to
each such Loan then outstanding may be endorsed by the Bank on the schedule
attached hereto, or on a continuation of such schedule attached to and made a
part haeof; provided that the failure of the Bank to make any such recordation
or endorsement shall not affect the obligations of the Borrower haeunder or
under the Credit Agreement.
102
This note is the Note referred to in the Credit Agreement dated as of July
1, 1997, among HealthCare COMPARE Corp., as Borrowa, LaSalle National Bank, u
Administrative Agent and Xxxxx, First Chicago Capital Markets, Inc., as
Syndication Agent and the other financial institutions party thereto (as the
same may be amended from time to time, the "Credit Agreemeot-). Tarns defined
in the Credit Agreement are used haein with the same meanings. Reference i8
made to the Credit Agreement for provisions for the prepaymcut hereof and the
acceleration of the maturity hereof.
This Note shall be governed by laws of the State of Dlinois. Presentment,
danand, protest and xxxx notice of any kind are hereby expressly wuved by the
Borrower.
HealthCare COMPARE Corn.
LOANS AND PAYMENTS OF PRINCIPAL
Date Made,
Renewed,
Converted,
or Paid
Type of Loan
(Base Rate,
LIBOR Rate)
Amount of
Loan
Arnoum of
Principal
Renewed,
Converted or Xxxx
Unpaid
Principal
Balance of Note
Name of
Person
Making
Notation
LaSalle National Bank, as Administrative Agent 000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
The Lenders which are Parties to the Credit Agreement Referred to Below
103
Re:
HealthCare COMPARE Credit Agreement
We have acted as special counsel to HealthCare COMPARE Corp.. a Delaware
corporation (the "Company"), in connection with that certain Credit Agreement
dated luly I 1997 (the "Credit Agreement") among LaSalle National Bank, as
Administrative Agent, First Chicago Capital Markets, Inc., as Syndication
Agent, and certain other lenders (collectively, the "Lender") and the Company.
This opinion is rendered to you at the request of the Company pursuant to
Section 4.1 (d) of the Credit Agreement. Capitalized terms defined in the
Credit Agreement, used herein and not otherwise defined herein, shall have the
meanings given them in the Credit Agreement.
As such counsel, we have examined such matters of fact and questions of
law as we have considered appropriate for purposes of rendering the opinions
expressed below, except where a statement is qualified as to knowledge or
awareness, in which case we have made only the limited inquiry as specified
below. We have examined. among other things, the following:
(a)
the Credit Agreement;
(b) the Note;
(c) any lease(s), indenturets). note(s). Xxxx agreement(s). mortgage(s).
deed(s) of trust. security agreement(s) and other written ayreement(s) or
instrument(s) creating, evidencine or securing indebtedness ot the Company for
borrowed money. identified to us by an officer of the Company as material to
the Company and listed on Exhibit A hereto (the Ntaterial Agreements ); and
(d) the Certificate of Incorporation and Bylaws of the ( 'Goveming
Documents"~.
The documents described in subsections (a) - (b) above are referred to
herein collectively as the 'Loan Documents." As used in this opinion, the "WCC"
shall mean the Unifomm Commercial Code as now in effect in the State of
Illinois.
In our examination, we have assumed the genuineness of all signatures
(other than those of officers of the Company on the Loan Documents). the
authenticity of all documents submitted to us as originals, and the confommity
to authentic original documents of all documents submitted to us as copies. We
have also been furnished with, and with your consent have relied upon,
certificates of off~cer(s) of the Company with respect to certain factual
matters. In addition, we have obtained and relied upon such certificates and
assurances from public officials as we have deemed necessary.
104
To the extent that the obligations of the Company may be dependent upon
such matters, we assume for purposes of this opinion that: all parties to the
Loan Documents other than the Company are duly incorporated, validly existing
and in good standing under the laws of their respective jurisdictions of
incorporation; all parties tO the Loan Documents other than the Company have
the requisite corporate power and authority tO execute and deliver the Loan
Documents and tO perfortn their respective obligations under the Loan Documents
tO which they are a party; and the Loan Documents to which such parties other
than the Company are a party have been duly authorized, executed and delivered
by such parties and constitute their legally valid and binding obligations,
enforceable against them in accordance with their terms.
We are opining herein as tO the effect on the subject transactions only of
the federal laws of the United States, the intemal laws of the State of
Illinois and the General Corporation Law of the State of Delaware. and we
express no opinion with respect to the applicability thereto, or the effect
thereon. of the laws of any other jurisdiction or, in the case of Delaware. any
other laws or as to any matters of municipal law or the laws of any other local
agencies within any state.
Our opinions set forth in paragraph 4 below are based upon our
consideration of only those statutes, rules and regulations which, in our
experience, are nominally applicable to unsecured lending t,ansactions.
Wl~enever a statement herein is qualified by "to the best of our knowledge''
or a similar phrase. it is intended to indicate that Xxxxxxx X Xxxxx (who is
the partner who has been primarily responsible for the Acquisition Transaction)
and Xxxxxx X Xxxxxxxx. Jet't'rev G Xxxxx and Xxxxxxx X Xxxxxx (who are the only
attomeys in this firm who have rendered any material legal services in
connection with the Credit Agreement) do not have current actual knowledge of
the inaccuracy of such statement: however. except as otherwise expressly
indicated. we have not undertaken any independent investigation to determine
the accuracy ot'any such statement. and no inference that we have any knowledge
of any matters pertaining to such statement should be drawn t'rom our
representation ot' the Company.
Subject to the foregoing and the other matters set forth herein, and in
reliance thereon. it is our opinion that, as of the date hereof and both before
and after giving effect to the Acquisition Transaction:
1 The Company is a corporation which is validly existing and in good
standing under the laws of the State of Delaware with the requisite corporate
power and authority (i) to conduct its business as now conducted, (ii) to own.
or hold under lease, its assets and (iii) to enter into the Loan Documents and
perform its obligations thereunder. Based solely on certificates from of'ficers
of the Company. we confirm that (as of the date of such certificates, the
Company is qualified to do business in all fifty (S0) States:
2. The execution, delivery and performance of the Loan Documents have been
duly authorized by all necessary corporate action of the Company and have been
duly executed and delivered by the Company.
3. Each of the Loan Documents constitutes a legally valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms.
105
4. The execution and delivery of the Loan Documents by the Company, the
borrowing by the Company thereunder, and the payment of the Obligations of the
Company pursuant to the Loan Documents do not: (a) violate any federal or
Illinois statute, rule or regulation applicable to the Company (including,
without limitation, Regulations G, T, U or X of the Board of Govemors of the
Federal Reserve System), (b) violate the provisions of the Goveming Documents,
(c) result in the breach of or a default under any of the Material Agreements
or (d) to the best of our knowledge, require any consents, approvals,
authorizations, registrations, declarations or filings by the Company under any
federal or Illinois statute. rule or regulation applicable to the Company
except those consents. approvals, authorizations. registrations, declarations
and filings, if any. which have already been obtained.
~ The Company is not (a) an investment company'' or a company
.'controlled'' by an 'investment company," within the meaning of the Investment
Company Act of 1940. as amended. or (b) a holding company or a subsidiary
company of a holding company v.ithin the meaning of the Public Utility Holding
Company Act of 19~5. as amended
6 To the best of our knowledge. Schedule 5.5 of the Credit Agreement and
Schedule j I i or the Acquisition Documents (as amended) reflect all actions,
suits. proceedings. claims or disputes which may be required to be disclosed by
the temms of the Credit Agreement. We call to your attention the tact that
Schedule 5 5 does not contain a listing of all of the matters shown on Schedule
5.13 and we express no opinion as to the materiality of such matters or whether
they should be so listed.
In rendering the opinions expressed in paragraph 4 insofar as they require
interpretation of the Material Agreements. (i) we have assumed with your
pemmission that all courts of competent jurisdiction would enforce such
agreements as written but would apply the intemal laws of the State of Illinois
without giving effect to any choice of law provisions contained therein or any
choice of law principles which would result in application of the intemal laws
of any other state. (ii) to the extent that any questions of legality or legal
construction have arisen in connection with our review, we have applied the
laws of thc State of Illinois in resolving such questions. and (iii) we express
no opinion with respect to the effect of any action or inaction which may be
required to be taken by the Company after the date hereof under the Loan
Documents or the Material Agreements which may result in a breach or default
under any Material Agreement. We advise you that certain of the Material
Agreements may be govemed by other laws, that such laws may vary from the law
assumed to govern for purposes of this opinion. and that this opinion may not
be relied upon as to whether or not a breach or default would occur under the
law actually goveming such Material Agreements.
Please also be advised that the opinions expressed in paragraph subject to
the following limitations, qualifications and exceptions:
(a) Such opinions are subject to the effect of applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to or
affecting the rights of creditors generally (including, without limitation, the
effect on the Loan Documents of Section 548 of the
106
federal Banlcruptcy Code and comparable provisions of state law, limitations on
the right to receive postpetition interest under certain circumstances and the
effect on potentially voidable preferences of Section 547 of the federal
Bankruptcy Code);
(b) The enforceability of such Loan Documents may be limited by (i)
certain equitable, legal or statutory principles affecting the enforcement of
contractual rights of the type contained in rhe Loan Documents generally.
regardless of whether such enforcement is considered in a proceeding in equity
or at law, including, without limitation. concepts of notice. materiality
reasonableness. good faith and fair dealing, requirements that waivers or
amendments be in writing, severability of contractual obligations,
jurisdiction, service of process. venue. and applicable statutes of limitation
and doctrines ot'estoppel. and (ii) judicial discretion or statutory
limitations with respect to the availabilits ot'equitable remedies or
det'enses. the calculation ot'damages and the entitlement to attorneys' tees
and other costs;
(c) The enforceability of indemnification or contribution provisions
contained in the Loan Documents under certain circumstances may be limited
under statutory law or court decisions with respect to a liability where such
indemnification or contribution is contrary to public policy or prohibited by
law;
(d) The exercise of self-help or other summary remedies by a lender or an
agent for lenders. particularly without notice or opportunity for a hearing.
may be restricted under certain circumstances by constitutional limitations
under the due process clause of the Constitution of the United States and the
Constitution of the State of Illinois. by applicable rules of civil procedure
and by the general requirements contained in the applicable UCC and other
applicable law that parties to a commercial contract must act in good faith and
in a commercially reasonable manner. but the inclusion of provisions permitting
such summary remedies does not affect the validity of the Loan Documents (each
taken as a whole); and
(e) [llinois case law calls into question the enforceability under certain
circumstances of contractual provisions of the Loan Documents providing for the
compounding of interest or the payment of interest on interest.
This opinion is rendaed only ro you. is solely for your benefit in
connection with the transactions covered hereby and may not be relied upon by
you for any other purpose. A copy of this opinion letter may be delivered by
any Lender to those financial institutions who are participants in the
financing arrangements of such Lender with Borrower, or are assignees of such
Lender. to the extent permitted by Section 10.8 of the Credit Agreement, which
institutions may rely hereon as if the same were addressed and had been
telivered to them. Subject to the foregoing, this opinion letter may be relied
upon by any Lender only in connection with the financing arrangements
contemplated by the Credit Agreement and may not be quoted, used or relied upon
by any Lender or any other person for any purpose whatsoever, without in each
instance our prior written consent, except as may be required by any court or
other govermnental or regulatory authority or in coMection with any litigation
or other proceeding to which this opinion letter may be relevant. All persons
who shall at any time rely on this opinion should recognize that this opinion
speaks only as of the date hereof and to its addressees and that we
107
have no responsibility or obligation to update this opinion. to consider its
applicability or correctness to persons other than its addressees. or to take
into account changes in law. facts or anv other developments of which we may
later become aware.
Very truly yours,
EXHIBIT A
to Latharn & Xxxxxxx Opinion
Material Agreements
1. Amended and Restated System Agreement entered into September 1. 1995. by and
between Electronic Data Systems Corporation and HealthCare COMPARE Corp.
2. Utilization Review Ayreement entered into as of lanuary 1, 1989. between
HealthCare COMPARE Corp. and National Association of Letter Carriers Health
Benefit Plan;
PPO Agreement effective lanuary 1. 1996. between HealthCare COMPARE Corp. and
Government Employees Hospital Association. Inc.
EXHIBIT E
OmCER'S CERT~XXX
XxXxxxx ~'ational Bank '~ 3 0 Xxxxx XxXxxxx Xxxxxx Xxxxxxx, Xxxxxxxx 00000
Attn:
Ladies and Gentlemcn:
to Bank that:
A. On
Y. Re: Credit Agreement dated as of July ~ 1997, (the "Credit Agreement")
between HealthCare COMPARE Corp. (the "Borrower"), LaSalle National Bank as
Administrative Agent and Lender, First Chicago Capital Markets, Inc., as
Syndication Agent, and the Other Financial Institutions Party thereto.
In accordance with Section 6.2(b) of the Credit Agreement, the Borrower hereby
certifies
, , the Fixed Charge Covcrage Ratio of the Borrower was as computed on
Attachment 1 hereto.
B. On , , the Net Worth of the Borrower was S , as computed
on Attachment 2 hereto.
108
C. On , , the Leverage Ratio of the Borrower was , as computed on Attachment 3
hereto.
D. To the best of the undersigned's knowledge and except as previously
disclosed to the Lenders, during the periot commencing , through and including,
the Borrower has observet and performed all of its covenants and other
agreements, and satisfied every contition containet in the Credit Agreement to
be observed, performed or satisfied by the Borrower except as identified on
Attachment 5 hereto.
E. To the bat of the undersigned's knowledge, as of the date hereof, the
Borrower could make each of the representations and war,ranties contained in
Article V of the Credit Agreement effective as of the date hereof, except for
those representations and warranties listed (by Section number
corresponding to the Credit Agreement) in Attachment 4 hereto which explains
the Borrower's inability to make such representation or wa'Tanty.
F. The undersigned has obtained no knowledge of any Default or Event of Default
except as identified on Attachment 5 hereto.
~ WIT~'ESS WEEREOF, the Borrower has caused this Certificate tO be
executed and delivered ths _ day of
HEALTHCARE COMPARE CORP.
Attachment l
Fixed Charge Coverage Ratio
Income before income taxes (as set forth on Borrower's most recent financial
statement) .
Interest Expenses
Depreciation . .
4. Amortization
Interest Income S
6. EBITDA: the sum of Items 1, 2, 3 and 4 less Item 5 . S
Operating Lease rental payments for the period of the most recently completed
four consecutive fiscal quarters
8. Fixed Charges for the period , _ through
~ the sum, without duplication of Items 8A, 8B and 8C:
109
A. Consolidated Interest Expense and fees paid on, and amortization of debt
discount in respect of, all Funded Indebtedness ........
$
S
................ J
. . $
, $
B.
Operating Lease rental payments made during such
C. The aggregate principal amount of all current maturities of long
term Funded Indebtednag (including the principal portion of remais
under Capital Leages) paid by the Borrower and its Subsidiaries
during such period (excluding payments of principal of the
Revolving Loans and payments of principal not required under the
Revolvina Loan Documentg) S
Total: ................
9. Flxed Charge Coverage Ratio: the sum of Items 6 and 7 divided by
Item 8:
10. Minimum Fixed Charge Coverage Ratio permitted under
Section 7.12 2
Attachment 2
Consolidated Net Worth
I Borrower's Net Worth
I Shareholders' equity of the Borrower determined in accordance with
110
GAAP . .
. $
2. Consideration paid by Borrower for repurchase of Borrower's stock
subsequent to Closing Date or $150,000,000, whichever
is less ....
3. The aggregate of all charges incurred by Borrower subsequent to Closing
Date related to Acquisitions to the extent such charges are written off
against goodwill, or S175,000,000, whichever is less $
Net Worth: The sum of Items 1, 2 and 3 S
II. Compliance with Net Worth Covenant (Section 7.13)
1. 75% of Borrower's Net Worth as determined using Borrower's June 30,
1997 financial statements $
2. The sum of 50% of the Borrower's Consolidated Net Income earned each
fiscal quarter commencing with the fiscal quarter ending September 30,
1997 (provided that if, for any fiscal quarter, the Borrower's Consolidated
Net Income shall be less than zero, then for purposes of this calculation,
the Borrow's Consolidated Net Income shall be deemed to be zero for the
fiscalquarter) S
3. SO% of the net proceeds received from any unaffiliated third parties from
any stock offering of the Borrower S
Minimum covenanted Net Worth (pursuant to Section 7.13): The sum of
Xxxx~ 1, 2 and 3, or S190,000,000, whichever is greater . . . S
2
4
6.
8.
111
9.
Attachment 3
Leverage Ratio
Total Funded Indebtedness of Borrower and its Subsidiaries ... .. $
Income before income taxes (as set forth on Borrower's most recent financial
statement)
Interest Expenses .
Depreciation . . .
Amortization
Interest Income
EBITDA: the sum of Items 2, 3, 4 and 5 le~s Item 6 S
Leverage ratio: Item 1 divided by Item 7 ......................
Maximum Leverage Ratio permitted under Section 7.14 .
........ 3.25
EXHIBIT F
ASSI~ENT AND ACCEPTANCE AGREEMENT
AGREEMENT dated as of , 19_ among (the "Assigoor"),
(the "Assignee"), HealthCare COMPARE Corp. (the "Borrower")
and LaSalle National Bank, as Administrative Agent (the "Administrative
Agent").
WHEREAS, this Assignment and Acceptance Agreement (the "Agreemeot")
relates to the Credit Agreement dated as of luly _, 1997 among the Borrower,
the Assignor and the other Financial Institutions party thereto, as Lenders,
and the Administrative Agent (the "Credit Agreement");
WHEREAS, as provided under the Credit Agreement, the Assignor has a
Revolving Loan Commitment to make Revolving Loans to the Borrower in an
aggregate principal amount at any time outstanding not to exceed S
WHEREAS, Revolving Loans made to the Borrower by the Assignor under the
Credit Agreement in the aggregate principal amount of Shereof,
are outstanding at the date
112
WHEREAS, the Assignor proposes to assign to the Assignee all of the nghts of
the
Assignor under the Credit Agreement in respect of a portion of its Revolving
Loan Commitment thereunder in an amount equal to S (the "Assigned Amount"),
together with a corresponding portion of its outstanding Revolving Loans, and
the Assignee proposes to accept assignment of such rights and assume the
corresponding obligations from the Assignor on such terms,
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the pardes hereto agree as follows:
Section 1. Dcfinftions. All capitalizet terms not otherwise defined herein
shall have the respective meanings set forth in the Credit Agreement.
Section 2. Assignmcnt. The Assignor hereby assigns and sells tO the
Assignee all of the rights of the Assignor under the Credit Agreement in
respect of its Revolving Loan Commitment to the extent of the Assigned Amount,
and the Assignee hereby accepts such assignment from the Assignor and assumes
all of the related obligations of the Assignor under the Credit Agreement to
the extent of the Assigned Amount, including the purchase from the Assignor of
the corresponding portion of the principal amount of the Revolving Loans made
bv the Assignor outstanding at the date hereof. Upon the execution and delivery
hereof by the Assignor, the Assignee and the Agent and the payment of the
amounts specified in Section 3 hereof required to be paid on the date hereof
(i) the Assignee shall, as of the date hereof, succeed to the rights and be
obligated to perform the obligations of a Lender under the Credit Agreement
with a Revolving Loan Commitment in an amount equal to the Assigned Amount, and
(ii) the Revolving Loan Commitment of the Assignor shall, as of the date
hereof, be reduced by a like amount and the Assignor released from its
obligations under the Credit Agreement to the extent such Obligations have been
assumed by the Assignee. The assignment provided for herein shall be without
recourse to the Assignor.
Section 3. Payments. As consideration for the assignment and sale
contemplated in Section 2 hereof, the Assignee shall pay to the Assignor on the
date hereof in Federal funds the amount heretofore agreed between them.' Each
of the Assignor and the Assignee hereby agrees that if it receives any amount
under the Credit Agreement which is for the account of the other party hereto,
it shall receive the same for the account of such other party to the extent of
such other party's interest therein and shall promptly pay the same to such
other party.
Section 4. Consent of the Borrower and the Agent. This Agreement is
conditioned upon the consent of the Borrower and the Agent pursuant to Secdon
10.8(c) of the Credit Agreement. The execution of this Agreement by the
Borrower, and the Agent is evidence of this consent.
Section S. Non-Reliance on Assignor. The Assignor makes no representation
or warranty in connection with, and shall have no responsibility with respect
to, the solvency, financial condidon, or statements of the Borrower, or the
validity and enforceability of the obligations of the Borrower in respect of
the Cretit Agreement or any other Revolving Loan Document. The
113
Assignee acknowledges that it has, independently and without reliance on the
Assignor, and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement and will continue to be responsible for making its own independent
appraisal of the business, affairs and financial condition of the Borrower.
Secdon 6. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Illinois.
Section 7. Countc~p~ts This Agreement may be signet in any number of
counterparts, each of which shall be an original, with the same effect as if
the sigrlatures thereto and hereto were upon the same instrument.
1/ Amount should combine principal together with accrued interest and breakage
compensation, if any, to be paid by the Assignee, net of any portion of any
upfront fee to be paid by the Assignor to the Assignee.
~ WITNESS WHEREOF, the parties have caused this Agreement tO be executed
and delivered by their duly authorized of ficers as of the date first above
wntten:
~NAME OF ASSIGNOR>
By:
.
Name Title:
~NAME OF ASSIGNEE>
By:
Name Title:
HEALTHCARE COMPARE CORP.
By:
Name Title:
LASALLE NATIONAL BANK, as
Administrative Agent
By:
Xxxxx Title:
EXHIBIT G
114
TO
CREDIT AGREEMENT
LaSalle National Bank
ntematonal Banking
000 Xxxx Xxxxxx Xxxxxx Xxxxxxx. Illinols
APPLICAT!ON FOR STANDBY LETTER OF CREDIT
LASALLE BANKS
Date
Applicant~s Phone Number
Contact Person
Designated Party (Multi-Applicant)
~For 8ank Use On~y;
Please rssue an irrevocable Standby Letter of Credit substanhally as set forth
below and forward the same to your correspondent (or advising bank, if
indicated below) for delivery to the geneficiary or directly to the genefic~ary
(as applicable) by
_ Air Maid Air Ma~l. with ~hon prelirninarY Tebtranerni~ion advice ~
Tebinnsmissicn Courar _ _
Advising Bank (if any)
Applicant (name and address)
geneficiary (name and address)
Amount (USD unless otherwise indicated)
Expiry Date
Presentation for Payment Drafts must be drawn on you and presented with
accompanying documentation at your offce se forth above on or before the expiry
date, unless otherw~se indicated below.
Available by draft(s) at sight drawn on LaSalle National Bank, Chicago,
Illinois, accompanied by the following documents(s):
115
geneficiary's signed statement reading as follows:
_ Attachments (NOTE: All attachments must also be signed.)
All draft() drawn must be marked as drawn under this CREDIT. The onginal
LetQer of Credit must e presented for endorsement at the time of payment.
Partial drawings are 1 ] permitted [ | prohibited
arge our 3ccount'or 311 cayrrents and 'ees nder rhs LC. ntess
ornerw~se nd~cated
i.ur crresponc'
Account No I Our account
[ ] geneficiarv s accot tn'
PLEASE DATE AND OFFICIALLY SIGN THE AGRE iEMENT ON PAGE 8 OF THE A~CHLO
AORLEMENI
STANDBY LETIER OF CREDIT.AGREE.\IE.NT
In consideration of (the [ssuer ) issuing
an Lrrevocable standby letter of credit substantially in accordance with the
Application attached hereto (the Application') and as such letter of credit may
be amended (the Credit"). rhe undersigned (each. an Applicant"), jointly and
severally if there is more than one ot rhe undersigned. unconditionally and
irrevocably agrees as follows:
This Agreement and the Credit issued hereunder are subject to the terms
and conditions of the Amended and Restated Credit Agreement dated as of October
_ . 1997. by and among HealthCare COMPARE Corp., as Borrower. LaSalle National
Bank, as Administrative Agent, Issuing Bank and Lender, First Chicago Capital
Markets, Inc., as Syndication Agent. and the xxxx financial institutions party
thereto, as Lenders (the "Credit Agreement"). We refer you to the Credit
Agreement for provisions concerrung payment, commissions, fees, defaults and
remedies. Capitalized terms used herein and not otherwise defined shall have
the meanings ascribed to them in the Credit Agreement.
1. ISSUER'S GENERAL OBLIGATIONS. Upon the issuance of a Credit, the
Issuer's obligations to the Applicant with respect to the Credit include good
faith and observance of general banking usage, but do NOT include liability or
responsibility of any kind arising out of or in connection with: (a)
performance of the underlying contract or xxxx transactions between the
Applicant and the baneficiary or any other person; (b) acts, errors, defaults
or omissions of any person other than the Issuer, including any use of the
Credit by any such person; (c) loss or
116
destruction of any telegram, cable, letter, instrument or document while in
transit or in the possession of others; (d) knowledge or lack of knowledge of
any custom or usage of any particular trade; (e) transmission, delivery,
translation or interpretation of any message including any interruption, delay,
error or orrrission therein; (f) insufficiency, lack of authorization,
invalidity of, lack of genuineness, truthfulness or error or fraud in any
documents presented under the Credit or in any instructions purporting to be
from the Applicant or the Issuer's correspondent; (g) validity or correctness
of any transfer or proper identity of any transferee (if the Credit is issued
in transferable forte); (h) waiver of any requirement which exists for the
Issuer's protection and not the protection of the Applicant, or which waiver
does not in fact materially prejudice the Applicant; or (j) any other act or
omission for which banks are relieved of responsibility under the "Uniform
Customs & Practice for Documentary Credits" of the International Chamber of
Commerce (hereafter, the "UCP"), in effect on the date hereof.
2. ISSUER'S OBLIGATIONS CONCERNING DOCUMENTS.
(a) The Issuer's obligations relative to the Credit include the
examination of documents with reasonable care so as to ascertain that on their
face they appear to comply with the terms of Credit, but do NOT include
liability or responsibility of any kind arising out of or in connection with:
(i) validity, sufficiency, truthfulness, genuineness or effect of documents
which appear on Issuer's examination to be regular on their face; (ii) honor of
drafts or demands for payment which appear on Issuc,r's examination to be
regular on their face; or (iii) the ultimate correctness of Issuer's decision
regarding documentary compliance, where such decision is based on Issuer's
examination of the documents, or Issuer's exercise of judgment, in a manner not
manifestly unreasonable. The Issuer may in its discresion (but shall not be
obligated tO) accept documents which substantially or reasonably comply with
the terms of the Credit.
(b) I~'nless otherwise specified in the Application, the [ssuer mav in its
discretion accept or honor (in the case of negotiable Credits) as complying
with the Credit: (i) drafts or document signed by or issued to the purported
agent, executor, administrator. Iiquidator. receiver, trustee in bankruptcy or
other legal representative of any party designated in the Credit; (ii) drains
which fail to bear any or adequate reference to the Credit or notation to be
made on the Credit. or the Credit to be surrendered, or documents to be
forwarded apart from the draft, whether or not required by the Credit; (iii)
drafts or documents which comply under the laws, rules, regulations, and
general banking or trade customs and usages of the place of drawing or
presentation; or (iv) drafts or documents which comply with the UCP.
3. PAYMENT; COMMISSIONS.
(a) The Applicant shall pay the issuer in United States currency at the
office identified on the Application, the amount paid or to be paid by the
Issuer or the Issuer's agent or any party on Issuer's behalf on each draft or
other order, instrument or demand drawn, presented or purporting to be drawn or
presented under the Credit (the "Item") together with all other amounts owing
to the Issuer in coMection therewith, such payment to be made at the time of
honor of each Item if so demanded by the Issuer, on demand in advance of any
drawing. In the case of Items drawn in foreign currency, such payments shall be
at the Issuer's current rate of exchange for transfers to the place of payment
in the curtency in which such Item is drawn (or, if for any reason the Issuer
117
is unable to establish such a rate of exchange, in an amount equal to the
Issuer's actual cost of settlement). The Applicant shall reimburse the Issuer
in the same currency in which the Item is payable, provided that at the
Issuer's option, Applicant shall reimburse Issuer in United States dollars for
Items payable in a foreign currency at the rate at which Issuer could sell such
foreign currency in exchange for United States dollars for transfer to the
place of payment of the Item, or, if there is no such rate, the United States
dollar equivalent of Applicant's actual cost of settlement. Applicant agrees to
pay Issuer on demand in United States dollars such amounts as Issuer may be
required to expend to comply with any and all governmental exchange regulations
now or hereafter applicable to the purchase of foreign currency.
(b) The Applicant shall pay the Issuer on demand, in United States
currency at the office as identiffed on the Application interest, commissions,
fees and other charges and expenses as provided for in the Credit Agreement and
all charges and fees payable under any fee schedule of the Issuer in effect
from time to time or as otherwise agreed.
(c) All amounts payable by the Applicant hereunder shall be paid at the
office of the Issua identiSed on the Application, in immediately available and
freely transferable funds at such place of payment. The Issuer is authorized to
set off or charge to any account or other funds of the Applicant in Issuer's
possession all obligations of the Applicant owing hereunder, irrespective of
the currency in which such account or funds are denonunated.
(d) If, as a result of any law, regulation, trea~ or directive introduced
xXxx xxxx 1, 1997, or any change therein issued after luly 1, 1997, or in the
interpretation or application thereof after luly 1, 1997 or Issuer's compliance
with any request or directive (whether or not having the force of law) from any
court or governmental authority, agency, instrumentality, after July 1, 1997
anv reserve capital requirement. premium. special deposit, special assessment
or similar requirement against the Issuer s assets, deposits or credit extended
bv the Issuer. are imposed, mod)fied or deemed applicable after luly 1, 1997
and the Issuer shall determine that by reason thereof, the cost to the Issuer
of issuing or maintaining the Credit is increased. ~he .\pplicant agrees to pay
the Issuer upon demand such additional amount or amounts as will compensate the
Issuer for such additional cost. The Applicant further agrees to pav anv
applicable levies or other taxes imposed in coMection with the Credit other
than net income taxes payable by the [ssuer, and tO otherwise comply with all
domestic and foreign laws and re~ulations applicable tO all transactions under
or in connection with the Credit.
4. OBLIGATION OF APPLICANT; ASSUMPTION OF RISK BY APPLICANT;
INDEMNIFICATION OF ISSUER BY APPLICANT; SUBROGATION.
(a) The Applicant's obligations to the Issua hereunder are, and shall
remain. absolute and unconditional notwithstanding any lack of enforceability
of the Credit or the existence of any claim, counterclaim, defense or right of
set off the Applicant may have against the Issuer.
(b) The baneficiary or any other user of the Credit and any other drawer
of any draft or the presenter of any demand for payment thereunder shall be
deemed Applicant's agents, and the Applicant assumes all risk, loss, liability,
charges and expenses with respect to their acts or
118
omissions and also with respect to any error, delay, misdelivay or loss in or
arising out of the transmission of telegrams, cables, letters or other
communications, documents or items forwarded in connection with the drafts or
the Credit. The Applicant shall not h relieved from any obligation or
liability, nor shall the terms of this Agreement be affected by the occurrence
of the foregoing. Any action or inaction by the Issuer or its correspondents in
connection the Credit or with instructions, drafts or documents relative to tnc
Credit, shall, if in good faith, conclusively be deemed to have been authorized
by the Applicant, and the Issuer shall have no liability therefor.
(c) Thc applicant shall indemnify the Issuer and its correspondents and
shall defend and hold the Issucr and its correspondents harmless from and
against any and all claims. darnages, loss, cos~, expenses (including
attorney's fees) and liabilities, of any nature whatever, sustained or incurred
or asserted in connection with the Credit, the payment or acceptance or refusal
tO pay or accept any draB or other demand for payment, and any other action or
inaction in reliance upon tne provisions of this Agreement except claims,
damages, loss, expenses or liabilities, armug from the wilfi~l misconduct or
gross negligence of the Issuer in connection with the Credit, the payment or
acceptance or refusal to pay or accept any draft or other demand for payment,
and any other action or inaction in reliance upon the provisions of this
Agreement. lt is understood that in making payment under the Credit the
Issuer's exclusive reliance on the documents presented to the Issuer in
accordance with the terms of the Credit as to any and all matters set forth
therein, whether or not any statement or any document presented pursuant tO the
Credit proves to be forged, fraudulent, invalid or insufficient in any respect
whatsoever, shall not be deemed w~ilful misconduct or gross negligence of the
Issuer.
(d) The Issuer shall be subrogated (for purposes of defending against the
Applicant's claims and proceeding against others to the extent of the Issuer's
liability to the Applicant) to the Applicant's rights against any person who
mav be liable to the .Applicant on any underlying transaction, to the rights of
any holder in due course or person with similar status against the Applicant
and the rights of the baneficiary or itS assignee or person with similar status
against the Applicant.
(e) The Applicant certifies that transactions in any cornrnodiries covered
bv che Application are not prohibited under the foreign assets control
regulations of the United States Treasury Deparunent and that any importation
covered by the Application conforms in every respect with all United States
regulations then in effect.
S. WAIVER BY ISSUER; ACTS NOT AFFECTING AGREEMENT. Subject to the terms of
the Credit Agreement, the Issuer shall have no duty to exercise any of its
rights hereunder, and shall not be liable for any failure or delay in doing so.
No failure or delay on the part of the Issuer or its correspondents shall
operate as a waiver, and no notice to or demand by the Issuer or its
correspondents shall be deemed a waiver of the Issuer's right to take any other
or further action without notice or demand. Issuer's rights and Applicant's
obligations and liabilities under this Agreement shall continue unimpaired and
this Agreement shall remain binding upon each party hereto signing as an
Applicant, notwithstanding: (a) extension of the maturity or time for
presentation of draf~ acceptances or documents; (b) any other mod)fication of
the terms of
119
the Credit at the request of any party hereto signing as an Applicant, with or
without not)fication to any other party; or (c) any increase in the amount of
the Credit at the request of any party hereto. No delay, extension of time,
renewal, compromise or other indulgence which the Issuer may permit in
connection with any of its rights hereunder shall impair those rights, and the
Issuer shall not be deemed to have waived any rights unless such waiver is in
writing and signed by the Issuer or its authorized agent; nor shall any such
waiver constitute a waiver of any other right or of the same right at any
future time.
6. SOLE OBLIGATION OF ISSUER Without limiting any other provision herein,
the Issuer is hereby expressly authorized and directed to honor any request for
payment which is made under and in compliance with the terms of the Credit
without regard to, and without any duty on the part of the Issuer to inquire
into, the existence of any disputes or controversies between any of the
Applicant, the baneficiary of the Credit or any other person, firm or
corporation, or the respective rights, xxxxx or liabilitia of any of them or
whether any facts represented in any of the documents presented unda the Credit
are true or correct. Furthermore, the Applicant agrees that the Issua's
obligation to the Applicant shall be limited to honoring re~ests for payment
made under and in compliance with the terms of the Credit and this Agreement
and the Issuer's obligation remains so limited even if thc Issuer may have
assisted in the preparation of the wording of the Credit or any documents
required to be presented thereunder or the Issuc.r may otherwise be aware of
the underlying transaction giving rise to the Credit and this Agreement.
7. DURATION OF AGREEMENT; B~DING UPON SUCCESSORS; INDEMNrlY. This
Agreement shall remain in fi,ll force and effect until the Issuer has actually
received written notice to the contrary from the Applicant, and after receipt
of such written notice shall continue in full force and effect as to all
transactions between the Applicant and the Issuer commenced prior to the date
of such receipt. All indemnities, covenants, agreements. representations and
warranties made in this Agreement shall survive the issuance by the Issuer
of the Credit and shall continue in full force and effect so long as the
Credit. or anv por~ion thereof. shall be unexpired or any sums drawn thereunder
or other amounts owing hereunder shall remain unpaid, provided, however, that
the provisions of Sections 3(b). 3(d). 5(c), 9. 1 1. 12(by. I2(c) and 12(k)
shall survive the termination of this Agreement. This Agreement shall not be
revoked or impaired by the death of any party hereto, by the revocation or
release of anv obligations hereunder of any one or more parties hereto (or of
any party hereto shall be a partnership. bv anv changes in the parties
composing the partnership) [f this .~greement is terminated or revoked as to
any party for any reason, the Applicant shall indemnify and hold the Issuer
harmless from any loss incurred in acting hereunder prior to the actual receipt
of written notice of such termination or revocation. Thc invalidity or lack of
enforceability of any provision hereof shall not affect the validity or
enforceability of any other provision hereof. If this Agreement is signed by
two or more parties, it shall constitute the joint and several agreement of
such parties, provided, that the Designated Party, as defined below, shall have
the exclusive right to issue all instructions relating to the Credit including,
without limitation, instructions as to the disposition of documents and any
unutilized funds, waivers of discrepancies and to agree with the Issuer upon
any amendments, mod)fications, extensions, renewals or increases in the Credit
or the further financing or refinancing of any transaction effected hereunder,
irrespective of
120
whether the same may now or hereafter affect the rights of any party hereto or
their legal representatives, heirs or assigns. The Designated Party shall have
specimen signatures on file with the Issuer and the Issuer may give any notices
to the Designated Party without notice to any other party.
8. LAW GOVERNING. The Credit and this Agreement shall be govemed by and
construed in accordance with the laws of the State of Illinois applicable to
contracts made and to be wholly perfommed within such State. Unless
inconsistent with such state law or except so far as expressly stated in the
Credit, the Credit and this Agreement are subject to the terms of the UCP in
effect on the date of the Application, provided, however, that, without
limiting the foregoing, Articles 45 and 47 of UCP 400 and Articles 41 and 43 of
UCP 500 shall have no application to the Credit or this Agreement. In the
absence of proof expressly to the contrary, the UCP shall serve as evidence of
general banking usage.
9. GROSS-UP PROVISION. Any and all payments made tO Issuer hereunder shall
be made free and clear of, and without deduction or withholding for, any
present or future taxes, levies, imposts, deductions, charges or withholdings
of any nature, and all liabilities with respect thereto, excluding taxed
imposed on net income of the Issuer and all income and franchise taxes of the
United States and any political subdivision thereof imposed on the Issuer (all
such non-excluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities are referred to herein as "Taxes"). If the Applicant shall be
required by law to deduct any Taxes from or in respect to any sum payable
hereunder (i) the sum payable shall be increased as may be necessary to that
after making all required deductions (including deductions applicable to
additional sums payable under this Section 11, the Issuer shall receive an
amount equal to the sum the Issuer would have received had no deductions been
made); (ii) the Applicant shall make all such deductions; and (iii) the
Applicant shall pay the full amount deducted to the relevant taxation authority
or other authority in compliance with applicable law. The Applicant shall
indemnify the Issuer for the fiull amount of Taxes, (including, without
limitation, and Taxes imposed by any jurisdiction on amounts payable hereunder)
paid by the Issuer and any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto, whether or not such Taxes
were correctly or legally asserted Payment upon this indemnification shall be
made within th~y (30) days from the date the Issuer makes written demand
therefor U ithin th~y (30) days after date of the payment of Taxes, the
Applicant shall fumish tO the issuer the original or certified copy of a
receipt evidencing payment thereof
10. OTHER TERMS.
(a) If the Credit shall contain any provision for automatic renewal. the
Applicant acknowledges and agrees that the Issuer is under no obligation to
allow such renewal to occur and any such renewal shall remain within the sole
and absolute discretion of the Issuer. The Applicant hereby irrevocably
consents to the automatic renewal of such Credit in accordance with its terms
should the Issuer decide to allow such renewal to occur; provided however, that
the Applicant shall have the right to request the issuer to disallow such
renewal on the condition that the Applicant shall give the Issuer prior written
notice of such request not less than thirty (30)
121
days prior to the deadline imposed upon the Issuer for not)fication to the
baneficiary of nonrenewal of the Credit.
(b) The Applicant shall indemnify the Issuer against any loss incurred by
the Issua as a result of any judgment or order being given or made for the
payment of any amount due haeunda in a particular currency (the "Currency of
Account") and such judgment or order being expressed in a currency (the
"Judgment Currency'') other than the Currency of Account and as a result of any
variation having occurred in the rates of exchange between the date which such
amount is converted into the ludgment Currency and the date of actual payment
pursuant thereto. The foregoing indemnity shall constitute a separate and
independent obligation of the Applicant.
(c) Each party signing as Applicant and any guarantor thereof agrees that
if any amount paid to the Issuer hereunda is rescinded or must be otherwise
restored or returned by the Issuer due to the insolvency, bankruptcy,
liquidation or reorganization of any party hereto, each party's obligations
hereunder with respect to each such amount shall be reinstated to the same
extent as if such payment had not been made.
(d) The Applicant authonz~s the Issuer to set forth the teens of the
Application in the Credit in such language as the Issuer deems appropriate,
with such variations from such terms as the Issuer may in its discretion
determine to be necessary (which determination shall be conclusive) and not
materially inconsistent with the Application. If Applicant, or in the case of
more than one AppLicant, the Designated Party, does not notify the Issuer
within ten ( 10) calendar days of its issuance, Applicant agrees that such
Credit is conclusively presumed to be in proper form. Upon receipt of timely
notice of any discrepancy in the Credit, the Issuer will endeavor to obtain the
consent of the confirming bank (if any) and the baneficiary for an appropriate
mod)fication to the Credit; provided, however, that the Issuer shall assume no
liability or responsibility for its failure to obtain such consent.
(e) No Party to this Agreement may assign its rights or obligations under
this Agreement without the prior written consent of the Issuer and the
Ad~sunistrative Agent, provided that the obligations of the Issuer under this
Agreanent may be provided or furfilled by an affiliate of the Issuer so long as
the Issuer assumes full responsibility for such obligations.
(f) ll~is Agreement and any exhibits hereto and the Credit Agreement and
the exhibits and schedules thereto constitute the entire agreement among the
parties and supersede any and all prior agreements, proposals, negotiations and
representations pertaining tO the obligations and duties to be performed under
this Agreement. No amendments or mod)fications of this .Agreement shall be
valid unless in writing and signed by or on behalf of Applicant and Issuer
(g) Except as otherwise provided in this Agreement, all notices required
to be given pursuant to this Agreement, all notices required to be given
pursuant to this Agreement shall be effective when received, and shall be
aufficient if given in v~riting, hand delivered or sent by First Class United
State Mail, postage prepaid, air couner or telecopier, and addressed to the
appropriate party at its address as shown on the signature page hereof or at
such other address as the sending party shall have been advised in writing.
122
(h) Any provision of this Agreement which is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdictio4 be ineffective to the extent
of such prohibition or lack of enforceability without invalidating the
remaining provisions hereof or affecting the validity or enforceability of such
provision in any other jurisdiction. Wherever possible, each provision of this
Agreement chs~l be interpreted in such manner as to be effective and valid
under applicable law.
(i) This Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed to be an original and all of which taken
together shall constitute but one and the same instrument.
(j) Regar~ess of the expiry date of the Credit, the Applicant shall remain
liable hereunder until the Issuer is released from liability by every perso4
firm, corporation or other entity which is entitled to draw or demant paymant
unda the Credit.
(k) Applicant agrees to indemnify and hold Issuer harmless from each and
every clair4 demant, liability, loss, cost or expense (including, but not
limited to, attorneys' fees and court costs) which may arise or be created by
Issuer's acceptance of telecommunication ir~tructions in connection with the
Credit, including, but not limited to, telephone or facsimile instructions in
connection with any waiver of discrepancies.
(1) Applicant, or in the case of more than one person signing as
Applicant, the Designated Party, agrees to exanune promptly all instruments and
documents delivered to the Applicant or Designated Party, as the case may be,
from time to time and in the event the Applicant or Designated Party sball have
any claim of non-compliance with their instructions or of discrepancies or xxxx
irregularity, the Applicant or the Designated Party, as the case may be, shall
immediately notify the Issua thaeof in writing. The Applicant and the
Designated Party shall conclusively be deemed to hew waived any such claim
against the Issuer unless such immediate notice is given as stated above.
[N WITNESS WE~REOF. the parties have caused this Agreement tO be executed
by their duly authonzed off~cers as ot this day of
[APPLICANT]
By: Name: Title:
Address:
[APPLICANT]
By: Name: Title:
Address:
123
SCHEDULE I
COMMITMENT SCIIEDULE
LENDEn~
REVOLVING
COMMITMENT
XXXXXX OF
CREDIT
COMMirMEN'
1. LASALLE NATIONAL BANK $35,000,000.00 $1,500,000.00
2. THE FIRST NATIONAL BANK OF
CHICAGO
$35,000,000.00
$1,500,000.00
3. CIBC, INC.
$30,000,000.00
$1,285,714.29
4. NATIONSBANK OF TEXAS, N.A.
$30,000,000.00
$1,285,714.29
5. UNION BANK OF CALIFORNIA, N.A.
$30,000,000.00
$1,285,714.29
6. BANQUE NATIONALE DE PARIS
$25,000,000.00 $1,071,428.57
124
7. BANQUE PARIBAS $25,000,000.00 $1,071,428.57
8. THE BANK OF NEW YORK $25,000,000.00 $1,071,428.57
9. CREDIT LYONNAIS, NEW YORK BRANCH $25,000,000.00
$1,071,428.57
10. THE INDUSTRIAL BANK OF JAPAN,
LIMITED, CHICAGO BRANCH
$25,000,000.00
$1,071,428.57
11. THE NORTHERN TRUST COMPANY$25,000,000.00 $1,071,428.57
12. SUNTRUST BANK, NASHVILLE, N.A. $25,000,000.00 $1,071,428.57
13. XXXXXX TRUST & SAVINGS BANK
$15,000,000.00
$642,857.14
TOTAL: $350,000,000.00 $15,000,000.00
MAXIMUM REVOLVING LOAN BALANCE (including outstanding Letters of Credit)
................
$350,000,000.00
SCHEDLLE','
LITIGATIO;~o'
This Schedule ~ ~ lists ~arious actions. suits. proceedings. claims or disputes
pending. or tO the bes~ kno~ led`'e ot' the Borrower. threatened or
contemplated by or against the Borrower or its Subsidiaries. Annex A reflects
actions tiled bv or against the Borrower and which Borrower believes may be
required to be disclosed. Annex B reflects actions or disputed claims f led or
made by or against Subsidiaries and is based on data collected by Borrower in
the course ot'the Acquisition Transaction. Borrower does not represent or
concede that any of the litigation on Annex B might have a Material Adverse
Et'fect: the matters are disclosed because. due to Borrower's lack of
familiarity with the litigation it is possible that some or all of the matters
listed on Annex B. if decided against the Borrower or any Subsidiary, as the
case may be, might individually or in the aggreyate have a Material Adversc
Effect.
125
Annex a eo Schcdule 5, 5
Actions Filcd By or AAainse Borrower
~Case Xx. 00 XXxX0 (Xxxxxxx Xxxxx, Xxxx Xxxxxx Xxxxxxxx). CouDsel: IaDer,
MUCDID, Xxxxxxx, Xxxxxx' Xxxxx and Tominber'~, Ltd. (l~hor~s Bnd~ley).
This acdon was filet on May 20, 1994 (HCCC was scrvet on June 29, 1994) by a
former HCCC employee. The complaint alleges thtt HCCC discharget Patinos in
retaliation for Ptdnos' filing of a report of HCCC's acti~itics with the
Illinois Dcpartment of Professional Reguladon. HCCC has filed counteractdons
agtinst Patinos for violatdon of the Blinois Trade Secrets Act, Brcach of
Confidendality Agreement, Conversion ant Tordous Interferencc with Contract
baset on Patinos' actions in copying HCCC confidential and proprietary
information and distribution the information to third partia without the
authorizadon and approval of HCCC. There has been essendally no activity on
this matter over the last nine monthe.
XXXXXXX XXXXXXX v lIEALTlICME COMPARE CORP., Case No. 94 L 1780 (Circuit Court,
DuPage CouDty Illinois). COUD#I: Lar~er, Muchln, Dombrow, Becker, Xxxxx and
Tominberg, Ltd. (ISomas Xxxxxxx) Case No. 94L0178.
A case related tO Patinos, above. Forma employee alleges she was wrongfully
terminated. The complaint consists of four counts consisting of alleges
violatdon under the minois Medical Practices Act, the minois Health Finance
Reform Act, the Illinois Eavesdropping statute and invasion of privacy.
Discovery condnua. The parties were unable to resolve the matter at the
metiation proceeding before Judge Bua on November 8, 1996. Both Xxxxxxx and
HCCC filet modons for summary judgment. Plaintiff's motion which sought summary
judgment on the eavestropping claimNwas teniet. The Court granted HCCC's
motion, ruling (1) that Plaintdff was not enthtled to back pay because she
failed to mithgate her damaga; (2) that Plaindff could not base a retaliatory
discharge claim on the Blinois Health Finance Reform Act. The Court has set a
trial date of September 22, 1997.
HEALTHCARE COMPARE CORP. v. UNITED PAYORS & UNITED PROVIDERS; Xxxx Xx. 0XX
0X00; Xxxxxx Xxxxx Xxxxxxxx Xxxxx for the Northern D~ct of Illinois, Eastero
Divisiou. Counsel: ChDdress & Xxxx, Ltd. (Xxxxxxxxxxx X. Mamme0.
HCCC filed a five~count complaint aeainst UP&UP stemming from acdons conshtuhug
deceptive business prashees, intentional interference with contracts ant unfair
compeddon. UP&UP has filed a counterclaims alleging def~tion ant commercial
disparagement, ant seeking service marl: cancellation. Discovay is ongoing and
we are attempting to resolve discovery disputes.
SCHEDULE S.7
ERISA
There are no Multiemplo~ er Plans. The onl~ Qualitled Plan is:
HealthCare COMPARE Corp. Retirement Saving
126
SCHEDULE 5.11
FINANCIAL CONDITION
SCHEDULE 5.12
ENVIRONMENTAL MATTERS
This schedule contains a summary of an environmental matter which mav or
may not be material to the business or Borro``er. This schedule makes no
representations or warranties with respect to the materiality of such matter.
SCHEDULE 5.13
REGELATED E,NTITIES
A=exes A and B- I reflect data provided bv the Borrower as of the Closing
Date. ~nnex B2 reelects data made relevant at the time of the Acquisition
Transaction.
STATE CERT~CATIONSIREGISTRA=ONS AS OF 6/t7t97
EIEALTElCARE COMPARE CORE.
UTLIZAT10!4 REVEW
PPO -
WORKERS' COMPENSATION -
ALABAMA
ARKANSAS
CONNECTICUT
FLORIDA
INDIANA
KANSAS
KENTUCKY
LOUISIANA
MAINE
MARYLAND
MINNESOTA
MISSISSIPPI
MISSOURI
NEBRASKA
NEVADA
NEW HAMPSHIRE
NORTH CAROLINA
NORTH DAKOTA
OKLAHOMA
RHODE ISLAMD
SOUTH CAROLINA
000
XXXXX XXXXXX
XXXXXXXXX
XXXXX
VERMONT (Mental Health UR)
VIRGINIA
CONNECTICUT ILLINOIS INDIANA (File Annual Information with State) IOWA (F'led
Infonnation with State) MAINE (Hospital Network Only-7 Counties) NORTH CAROLINA
(changet regulations to regulate carrier' not PPOs, except for Workers' Comp.
network) PENNSYLVANIA (Erisa Exempt)
ALABAMA (Utilization Revew/Xxxx Screening)
ARKANSAS (Managed Care Organization)
KENTUCKY (UMJMedical Xxxx Audit)
KENTUCKY (Managed Care Health System-10 Counties)
MASSACHUSETTS (Utilization Review)
MICHIGAN (Utilization Review-On beh~f Of MISSOURI (Managed Care
Organization-29 C~`es NORTH CAROLINA (Managet Care Or~r~c OKLAHOMA (Centfied
Workplace Metical Pl" (CWM)) OREGON (Managed Care Organization-EuFne Ponland
Geographic Ser~qce Areas) SOI]TH CAROLINA (Xxxx Review)
OTHER -
UTILIZATION REVEW ACCREDITATION
COMMISSION (URAC) (Inclutes Work - 's C_ation
Services)
A=ex B- l tO Schedule ~ 1;
Sl~'BSIDIARJES
Insurance Companv .\uthorizations
E~
State Class of Insurance
American Life and Health Insurance Company
Califomia Life and Disability
IllinoisLife, Accident and Health
Missouri Life, Annuities. Endorsements.
Accident and Health
Wisconsin Lit'e. Accident and Health
Cambrid',e Lit'e Insurance Company
000
Xxxxxxx
Xxxxxxxx
Xxxxxxxx
Xxxxxxx
hldiana
Kansas
Kentu,cky
Louisiana
Maryland
~lassachusetts
Mississippi
Missouri
Montana
Nebraska
Nevada
New Mexico
North Carolina
Oklahoma
South Carolina
South Dakota
Tennessee
Texas
Utah
West Virginia
Life and Disability
Life and Disability
Life
Accident and Health
Stock Lit'e
Life, Accident and Health
Life and Health
Health and Accident
Life, Annuities and Health
Life. Accident and Health
Life and Health
Life. Annuities. Endorsements.
Accident and Health
Life and Disability
Sickness and Accident
Life and Health
Life and Health
Accident and Health
Life, Accident and Health
129
Life. Accident and Health
Life and Health
Life, Accident and Health
Life, Accident and Health
Life and Disability
Life. Accident and Sickness
Insurance \gencv Licenses
E~
S~e Class of Insurapce
HCC Insurance Services Corp
Colorado
I I linois
~'ew Iersey
Nevada
Virginia
\tontana
Nevada
Arl~ansas
Arizona
!`lichh~an
~larv land
Kansas
Nlebraska
Wasl~ington
vireinia
New York
Califomia
North Carolina
North Dakota
South Carolina
Oregon
Idaho
South Dakota
Louisiana
Rhode Island
Delaware
Alaska
New Hampshire
Health and Life
General
130
Health and Life
Health and Life
General
Life and Disability
Life and Health
Life and Disabilitv
Life and Disability
Accident. Health and Life
General
General
General
Life and Disability
Life and Health
Accident. Health and Life
Life
General
General
General
Life and Health
Life and Disability
Life and Health
General
General
General
Life and Health
Life, Accident and Health
Third Part' ``lministratgr (TPAl Liceruses
~e Class of License
HCC Administrative Services. Inc.
Idaho
!~tontana
Nebraska
Pennsvlvania
South Dakota
Tennessee
Utah
Wisconsin
Florida
California
Indiana
Texas
South Carolina
131
OreBon
Oklahoma
North Dakota
blew Mexico
Missouri
Maryland
Louisiana
Kentucky
Kansas
Illinois
Connecticut
Arl;ansas
TPA
TPA
TPA
TPA
TPA
Life and Health
TPA - Life and Disability
EBP Administrator
TPA
Registered Administrator
Administrator
TPA
Administrator
TPA
TPA
Administrator
TPA
TPA
TPA
TPA
TPA
Administrator
TPA
Producer-Life. Accident and
Health
TPA
SCHEDULE S.17
INTELLECTUAL PROPERTY
132
AMex A reflects data provided by the Borrower as of the Closing Date.
Annex B reflects data made relevant at the time of the Acquisition Transaction.
Annex C reflects the only infringemenr actions knoun to be pending or
threatened as of the Closing Date.
INFRINGEMENT OF IMELLECTUAL PROPERTY
Fim wealth of Ari~ona v FIRST ~Al 1~ ttrate~eS of Xxxx. Xxxxxxx Xxxxxxx Xxxxx,
Xxxxxxx, 0000. PlaindL.dleged infiingement of its tnde rume by St~te~pe~. Cue
settled 12-20~ th Strate~es' egreement (expressly on behalf of itself ant not
on behlf of any other entity) u foDo~:
1. Not to use the xxxxx "F~st Health" or ~F=t Health Strategia" wit~n the
State of Arizona in tbe madc~ of any Medicare supplement or Mediw ~e protuct.
2. Not tO use tbe n~ne "Frst Health" or "Frst Healtb Str~a" or u2y
teriv~ve of such nama in connection with the ownership or operaion of
risk-con~ng Health Msinter~nce Organ~ion (~O") u defines by feterel la~r, or
~ntb the ownership or operuion of a Health Care ServTces Org~ation ~HCSO") ~
dednet unter Asizona law.
3.
Not to use the nane "F~rst Health" or "F~rst Health Str~ia" or any der~re of
such names in the ownership or opaaoion of a HMO-I0ce busina~ that pro~nda
d~ect medical sen~ces to the public, or tht leases physicun networla to
employer groups, self-fundet. ERISA pbas, or to xxxx managed care networks;
provitet however, tht Str~egies is not precludd from using the name or marlc
Fust }leaRb or Fust Heelth Sttategia un comection with its business of
providing health care mu~gement service~, including claims atmini~ion,
uti~i-.tion m~nagement, m~gd care provider networlts, "a analysi$, insurance
brokerage, and xxxx health care benefit seMces; or from using the names First
Health or Fust Health Strategies in conne~ion with its bu~ of pro~ding
outsourcing ser~ces to m~ged care entities thst a~nnge for the provuioa of
medical seMces (includi" but not limitet to, ~IO's, PPO'~, ~PA'~, PHO'~, in~,
healtb elli~ or other combin~ons of health care providers) if ~ itS b of clsime
adminis~udon, claim processing, utilizuion mar~ement und t" sn~
To hve printod on all Explanations of genefit' ~ to pbn enroDea raiding in
ca~in zip xxxx wi~a Arizona the following di~c~imm "Not ~d with Fr~t Health of
Arizon~"
SCHEDLEE x.xx
SI:BSIDIARIES Al~D EQUITY INVESTNIENTS
Annex A lists Subsidiaries of the Borrower as of the Closing Date. .A=ex B
lists equity investments of the Borrower as of Mav i I. 1997 Other investments
or changes in the listed
133
investments mav have been made after that date. but the aggregate of such
changes will not have a Slaterial .Ndverse Effect. Annex .A to Schedule j 18
List ot Subsidianes
PRE-CLOSING SUBSIDIARIES OF BORRO~ER
i HeaithCare COMPARE Administrative Services. Inc
2. Office Realry [n~estors. Inc.
3. COMPARE Leasing Corp.
4. HCC Insurance Services Corp.
5 CHP Administration. Inc.
6. American Life and Health Insurance Companv
7. Cambadge Life Insurance Company
POST-CLOSING NEW SUBSID[ARIES OF BORROWER
8. First Health Strategies. Inc.
9. First Health Strategies of Ohio. Inc.
10. First Health Insurance Agency, Inc.
11. First Health Review, Inc.
i2. First Health Strategies of Pennsylvania. Inc.
13. First Health of Canada. Inc.
14. U.S. Administrators, Inc.
15. First Health Strategies (TPA), Inc.
16. First Health Realty, Inc.
17. First Health Strategies of Texas
18. First Health Strategies of l~ew Mexico. Inc.
19. First Health Strategies of Utah, Inc.
134
20. PRIMExtra. Inc.
21. First Health Services Corporation
22. Midwest genefits Corporation
23. First Mental Health, Inc.
SCEDULE 7.5
INDEBTEDNESS
None.
SCHEDI,'LE 7.10
LEASE OBLIGATloNS
.A=ex A reflects all Lease Obligations of the Borrower prior to the
Closing Date which are required to be disclosed. Annex B was derived by
representatives of First Health Strategies and Sersices and includes some
leases ~ith aggregate annual rent less than S50.000. For purposes of this
Schedule 7. 10, those leases on Annex B showing aggregate annual rent of less
than S50.000 shall be deemed to have been deleted from Annex B.
~.NYEX A TO SCHEDULE 7.10
HEALTHC.ARE CO \I P.\RE CO RP.
SCHEDI,LE OF LEASES
.AS OF JI!:N E 1997
PROPERTY LE.ASES
PAYEE, PROPERTY LOCATION
I Xxxxxxxx Properties
Sacramento. CA
. Xxxxx [nterests LTD Part
Ir~inu. TX
Redico Mananement. Inc.
Livonia (Southfield). Xx
Xxxxx Store Sers ice Corp
Atlanta. GA Office
TOTAL PROPERTY
135
MONTHLY EXPIRATION
RENT DATE
S 104.066.79 December 1999
10.501 08 March 2006
10.286.73 lanuary 2002
6.230.32 Februarv 1999
5131.084 92
EQUIP\1E.NT LEASES
PAYEE/TYPE/LOCATION
..
OCE CREDIT CORP
COPYING MACHINES:
DOWNERS GROVE. IL 3 ~ 52.885.00 4 ~ $ 1.168 00 TOTAL EQUIPMENT
GRAND TOTAL
MONTHLY EXPIRATION
RENT DATE
l
58.655.00 March 19'
7.072.00 May 204
$15.727 00
S146.811.92
SCHEDULE 7.5
INDEBTEDNESS
None.
SCHEDULE 7.10
LEASE OBLIGATIO~o'S
136
Annex A reflects all Lease Obligations of the Borrower prior to the
Closing Date ``hich are required tO be disclosed. Annex B was deri~ed b`:
representatives of First Health Strategies and Services and includes some
leases with aggregate annual rent less than 5S0.000. For purposes of this
Schedule 7.10, those leases on Annex B showing aggregate annual rent of less
than S50.000 shall be deemed to have been deleted trom Annex B.
`,~,iEX A TO SCHEDl:LE 7.10
HE.ALTHC.ARE Co Nl P.` RE CORP.
SCHEDI~'LE OF LEASES
~SOFJENE 1997
PROPERTY LEASES
PAYEE PROPERTY LOCATION
I Xxxxxxxx Properties
Sacramento. CA
. Xxxxx Interests LTD P~rt
Ir~ing. TX
.~tONTHLYE.YPIRATION
RE!\iT DATE
S 104.066.79December 1999
10.501.08 .\larch 2006
3 Redico Nfanacement. Inc. 10.286.73 lanuarv '002
Livonia (Southfield). MI
4. Monev Store Ser~ice Corp. 6.230.39 Februarv 1999
Atlanta. GA Office
TOTAL PROPERTY
$ 131.084.92
EQljIP.~1E.`IT LEASES
PAYEE'TYPE'LOCATION OCE CREDIT CORP.
COPYING MACHINES:
137
DOWNERS GROVE. IL
3 ~ S2.885.00
4 ~ Sl.768.00
TOTAL EQUIPMENT
GRAND TOTAL
MONTHLY E,YPIRATION
RE>IT DATE
S8.655.00 ~tarch 1'
7.072 00 May 2(
$15.727.00
$146.811.92
