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Exhibit 4.2
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U.S. $400,000,000
364-DAY CREDIT AGREEMENT
Dated as of December 21, 1998
Among
OMNICARE, INC.
as the Borrower,
THE BANKS NAMED HEREIN
as the Lenders,
THE FIRST NATIONAL BANK OF CHICAGO
as the Administrative Agent,
DEUTSCHE BANK AG
and
NATIONSBANK, N.A.
as Co-Documentation Agents,
and
BANKERS TRUST COMPANY
as Co-Agent
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TABLE OF CONTENTS
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Section Page
ARTICLE I
DEFINITIONS
1.1. Certain Defined Terms ............................................................1
ARTICLE II
THE LOAN FACILITY
2.1. The Loans .......................................................................11
2.2 Repayment of the Loans ..........................................................11
2.3. Ratable Loans; Types of Advances ................................................12
2.4. Minimum Amount of Each Advance ..................................................12
2.5. Optional Prepayments of Loans ...................................................12
2.6. Method of Selecting Types and Interest Periods for New Advances .................12
2.7. Conversion and Continuation of Outstanding Advances .............................13
2.8. Payment of Interest on Advances; Changes in Interest Rate .......................14
2.9. Commitment Fee; Reductions in Aggregate Commitment ..............................14
2.10. Rates Applicable After Default ..................................................15
2.11. Method of Payment ...............................................................15
2.12. Notes; Telephonic Notices .......................................................15
2.13. Notification of Advances, Interest Rates, Prepayments and Commitment
Reductions ....................................................................15
2.14. Lending Installations ...........................................................16
2.15. Non-Receipt of Funds by the Agent ...............................................16
2.16. Withholding Tax Exemption .......................................................16
ARTICLE III
CHANGE IN CIRCUMSTANCES
3.1. Yield Protection ................................................................17
3.2. Changes in Capital Adequacy Regulations .........................................17
3.3. Availability of Types of Advances ...............................................18
3.4. Funding Indemnification .........................................................18
3.5. Mitigation; Lender Statements; Survival of Indemnity ............................18
ARTICLE IV
CONDITIONS PRECEDENT
4.1. Effectiveness; Initial Advance ..................................................19
4.2. Each Advance ....................................................................20
ARTICLE V
REPRESENTATIONS AND WARRANTIES
5. Representations and Warranties ..................................................20
5.1. Corporate Existence and Standing ................................................20
5.2. Authorization and Validity ......................................................21
5.3. No Conflict; Government Consent .................................................21
5.4. Financial Statements ............................................................21
5.5. Material Adverse Change .........................................................21
5.6. Taxes ...........................................................................21
5.7. Litigation and Contingent Liabilities ...........................................22
5.8. Subsidiaries ....................................................................22
5.9. ERISA ...........................................................................22
5.10. Accuracy of Information .........................................................22
5.11. Regulation U ....................................................................23
5.12. Material Agreements .............................................................23
5.13. Compliance With Laws ............................................................23
5.14. Ownership of Properties .........................................................23
5.15. Investment Company Act ..........................................................23
5.16. Public Utility Holding Company Act ..............................................23
5.17. Year 2000. ......................................................................23
ARTICLE VI
COVENANTS
6. Covenants .......................................................................24
6.1. Financial Reporting .............................................................24
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Section Page
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6.2. Use of Proceeds .................................................................26
6.3. Notice of Default ...............................................................26
6.4. Conduct of Business .............................................................26
6.5. Taxes ...........................................................................26
6.6. Insurance .......................................................................26
6.7. Compliance with Laws ............................................................26
6.8. Maintenance of Properties .......................................................26
6.9. Inspection ......................................................................27
6.10. Merger ..........................................................................27
6.11. Sale of Assets ..................................................................27
6.12. Prepayments .....................................................................27
6.13. Affiliates ......................................................................28
6.14. Investments .....................................................................28
6.15. Contingent Obligations ..........................................................29
6.16. Liens ...........................................................................30
6.17. Minimum Consolidated Net Worth ..................................................31
6.18. Fixed Charges Coverage ..........................................................31
6.19. Acquisitions ....................................................................31
6.20. Supplemental Guarantors. ........................................................31
6.21. Year 2000. ......................................................................32
ARTICLE VII
DEFAULTS
7. Defaults .............................................................................32
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1. Acceleration ....................................................................35
8.2. Amendments ......................................................................35
8.3. Preservation of Rights ..........................................................36
ARTICLE IX
GENERAL PROVISIONS
9.1. Survival of Representations .....................................................36
9.2. Governmental Regulation .........................................................36
9.3. Stamp Duties ....................................................................36
9.4. Headings ........................................................................36
9.5. Entire Agreement; Independence of Covenants .....................................36
9.6. Several Obligations; Benefits of this Agreement .................................36
9.7. Expenses; Indemnification .......................................................37
9.8. Numbers of Documents ............................................................37
9.9. Accounting ......................................................................37
9.10. Severability of Provisions ......................................................37
9.11. Nonliability of Lenders .........................................................37
9.12. CHOICE OF LAW ...................................................................38
9.13. CONSENT TO JURISDICTION .........................................................38
9.14. WAIVER OF JURY TRIAL ............................................................38
9.15. Confidentiality .................................................................38
ARTICLE X
THE AGENT
10.1. Appointment .....................................................................39
10.2. Powers ..........................................................................39
10.3. General Immunity ................................................................39
10.4. No Responsibility for Loans, Recitals, Etc. .....................................39
10.5. Action on Instructions of Lenders ...............................................39
10.6. Employment of Agents and Counsel ................................................39
10.7. Reliance on Documents; Counsel ..................................................40
10.8. Agent's Reimbursement and Indemnification .......................................40
10.9. Rights as a Lender ..............................................................40
10.10. Lender Credit Decision ..........................................................40
10.11. Successor Agent .................................................................41
10.12. Agent's Fee. ....................................................................41
10.13. Co-Agents, Documentation Agents, etc. ...........................................41
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Section Page
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ARTICLE XI
SETOFF; RATABLE PAYMENTS
11.1. Setoff ..........................................................................41
11.2. Ratable Payments ................................................................41
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1. Successors and Assigns ..........................................................42
12.2. Participations ..................................................................42
12.3. Assignments .....................................................................43
12.4. Dissemination of Information ....................................................44
12.5. Tax Treatment ...................................................................44
ARTICLE XIII
NOTICES
13.1. Giving Notice ......................................................................45
13.2. Change of Address ..................................................................45
ARTICLE XIV
COUNTERPARTS
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SCHEDULES
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Schedule I - Pricing Schedule
Schedule II - Disclosure Schedule [SCHEDULE OMITTED]
Schedule III - Initial Guarantors
EXHIBITS
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Exhibit A - Form of Note
Exhibit B - Required Opinions
Exhibit C - Form of Compliance Certificate
Exhibit D - Form of Assignment Agreement
Exhibit E - Form of Loan/Credit Related Money Transfer Instruction
Exhibit F - Form of Borrowing Notice
Exhibit G - Form of Prepayment Notice
Exhibit H - Form of Conversion/Continuation Notice
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THIS 364-DAY CREDIT AGREEMENT, dated as of December 21, 1998,
is among OMNICARE, INC., as the Borrower, THE BANKS NAMED HEREIN, as the
Lenders, THE FIRST NATIONAL BANK OF CHICAGO, as the Administrative Agent,
DEUTSCHE BANK AG and NATIONSBANK, N.A., as Co-Documentation Agents, and BANKERS
TRUST COMPANY, as Co-Agent. The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1. CERTAIN DEFINED TERMS . As used in this Agreement the
following terms shall have the following meanings, such meanings being equally
applicable to both the singular and plural forms of the terms defined:
"ACQUISITION" means any transaction, or any series of related
transactions, by which the Borrower or any of its Subsidiaries (a) acquires any
going business or all or substantially all of the assets of any firm,
corporation or division thereof which constitutes a going business, whether
through purchase of assets, merger or otherwise or (b) directly or indirectly
acquires (in one transaction or as the most recent transaction in a series of
transactions) at least a majority (in number of votes) of the securities of a
corporation which have ordinary voting power for the election of directors
(other than securities having such power only by reason of the happening of a
contingency) or a majority (by percentage or voting power) of the outstanding
partnership interests of a partnership or a majority (by percentage or voting
power) of the outstanding ownership interests of a limited liability company.
"ADVANCE" means a borrowing consisting of simultaneous Loans
of the same Type made to the Borrower by each of the Lenders pursuant to SECTION
2.1 and, for each Eurodollar Advance, the same Interest Period.
"AFFILIATE" of any Person means any other Person directly or
indirectly controlling, controlled by or under common control with such Person.
A Person shall be deemed to control another Person if the controlling Person
owns 10% or more of any class of voting securities (or other ownership
interests) of the controlled Person or possesses, directly or indirectly, the
power to direct or cause the direction of the management or policies of the
controlled Person, whether through ownership of stock, by contract or otherwise.
"AGENT" means First Chicago in its capacity as agent for the
Lenders pursuant to ARTICLE X, and not in its capacity as a Lender, and any
successor Agent appointed pursuant to ARTICLE X.
"AGGREGATE COMMITMENT" means the aggregate of the Commitments
of all the Lenders, as reduced from time to time pursuant to the terms hereof.
"AGREEMENT" means this 364-Day Credit Agreement, as it may
from time to time be amended, restated, supplemented or otherwise modified.
"AGREEMENT ACCOUNTING PRINCIPLES" means GAAP, applied in a
manner consistent with that used in preparing the financial statements referred
to in SECTION 5.4.
"ALTERNATE BASE RATE" means, for any day, a rate of interest
per annum equal to the higher of (a) the Corporate Base Rate for such day and
(b) the Federal Funds Effective Rate for such day plus 0.50% per annum.
"APPLICABLE COMMITMENT FEE RATE" means, at any time, the
percentage rate per annum at which commitment fees are accruing on the unused
portion of the Aggregate Commitment at such time as set forth in the Pricing
Schedule.
"APPLICABLE MARGIN" means, with respect to Eurodollar
Advances, the percentage rate per annum which is applicable at such time with
respect to Advances of such Type as set forth in the Pricing Schedule.
"ARTICLE" means an article of this Agreement unless another
document is specifically referenced.
"AUTHORIZED OFFICER" means any of the President, Executive
Vice President, Senior Vice President, Vice President, Finance or Treasurer of
the Borrower, or any Person designated by any two of the foregoing, acting
singly.
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"BORROWER" means Omnicare, Inc., a Delaware corporation, and
its successors and assigns.
"BORROWING DATE" means a date on which an Advance is made
hereunder.
"BORROWING NOTICE" has the meaning set forth in SECTION 2.6.
"BUSINESS DAY" means (a) with respect to any borrowing,
payment or rate selection of Eurodollar Advances, a day (other than a Saturday
or Sunday) on which banks generally are open in Chicago, New York and London for
the conduct of substantially all of their commercial lending activities and (b)
for all other purposes, a day (other than a Saturday or Sunday) on which banks
generally are open in Chicago and New York for the conduct of substantially all
of their commercial lending activities.
"CAPITALIZED LEASE" of a Person means any lease of Property by
such Person as lessee which would be capitalized on a balance sheet of such
Person prepared in accordance with Agreement Accounting Principles.
"CAPITALIZED LEASE OBLIGATIONS" of a Person means the amount
of the obligations of such Person under Capitalized Leases which would be shown
as a liability on a balance sheet of such Person prepared in accordance with
Agreement Accounting Principles.
"CHANGE IN CONTROL" means the acquisition by any Person, or
two or more Persons acting in concert, of beneficial ownership (within the
meaning of Rule 13d-3 of the Securities and Exchange Commission under the
Securities Exchange Act of 1934, as amended) of 45% or more of the outstanding
shares of voting stock of the Borrower.
"CHIEF FINANCIAL OFFICER" means, at any time, the Person who
reports to the board of directors of the Borrower on the financial affairs of
the Borrower and the Subsidiaries.
"CODE" means the Internal Revenue Code of 1986, as amended,
reformed or otherwise modified from time to time.
"COMMITMENT" means, for each Lender, the obligation of such
Lender to make Loans not exceeding the amount set forth opposite its signature
below or as set forth in any Notice of Assignment relating to any assignment
that has become effective pursuant to SECTION 12.3.2, as such amount may be
modified from time to time pursuant to the terms hereof.
"CONDEMNATION" has the meaning specified in SECTION 7.8.
"CONSOLIDATED FIXED CHARGES" for any period means on a
consolidated basis for the Borrower and all of its Subsidiaries for such period,
the sum of (a) all interest paid in cash by the Borrower and all of its
Subsidiaries (net of interest income), including the cash interest component of
Capitalized Lease Obligations, (b) all payments of the principal amount of any
Indebtedness of the Borrower or any of its Subsidiaries (including any
redemption or purchase of any such Indebtedness but excluding any payment of
Indebtedness of a Subsidiary acquired subsequent to the date of this Agreement
if such Indebtedness is repaid within sixty (60) days of the Acquisition of such
Subsidiary), (c) all income or similar taxes paid in cash by the Borrower or any
of its Subsidiaries, and (d) all payments of Rentals by the Borrower or any of
its Subsidiaries, all as determined in accordance with Agreement Accounting
Principles.
"CONSOLIDATED NET INCOME" means, for any period, the
consolidated net income (or loss) of the Borrower and its Subsidiaries for such
period determined in accordance with Agreement Accounting Principles; PROVIDED,
that there shall be excluded (i) the income (or loss) of any Affiliate of the
Borrower or other Person (other than a Subsidiary of the Borrower) in which any
Person (other than the Borrower or any of its Subsidiaries) has a joint
interest, except to the extent of the amount of dividends or other distributions
actually paid to the Borrower or any of its Subsidiaries by such Affiliate or
other Person during such period and (ii) the income (or loss) of any Person
accrued prior to the date it becomes a Subsidiary of the Borrower or is merged
into or consolidated with the Borrower or any of its Subsidiaries or that
Person's assets are acquired by the Borrower or any of its Subsidiaries.
"CONSOLIDATED NET WORTH" means, as of the date of any
determination thereof, the amount of the shareholders' equity of the Borrower
and its Subsidiaries as would be shown on the consolidated balance sheet of the
Borrower and its Subsidiaries determined on a consolidated basis in accordance
with Agreement Accounting Principles.
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"CONTINGENT OBLIGATION" of a Person means any agreement,
undertaking or arrangement by which such Person assumes, guarantees, endorses,
contingently agrees to purchase or provide funds for the payment of, or
otherwise becomes or is contingently liable upon, the obligation or liability of
any other Person, or agrees to maintain the net worth or working capital or
other financial condition of any other Person, or otherwise assures any creditor
of such other Person against loss, including, without limitation, any operating
agreement, take-or-pay contract or application for or reimbursement agreement
with respect to a letter of credit.
"CONVERSION/CONTINUATION NOTICE" has the meaning specified in
SECTION 2.7.
"CONVERTIBLE NOTES" means the 5 3/4 Convertible Subordinated
Notes due 2003 and the 5% Convertible Subordinated Notes due 2007 issued by the
Borrower pursuant to the terms of the respective Indentures.
"CONTROLLED GROUP" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Borrower or any of its Subsidiaries, are
treated as a single employer under Section 414 of the Code.
"CORPORATE BASE RATE" means a rate per annum equal to the
corporate base rate of interest announced by First Chicago from time to time,
changing when and as said corporate base rate changes.
"DEFAULT" means an event described in ARTICLE VII.
"DOLLARS" and "$" mean the lawful money of the United States.
"EBIT" for any period means the sum of (a) Consolidated Net
Income during such period, plus (to the extent deducted in determining
Consolidated Net Income), (b) all provisions for any income or similar taxes
paid or accrued by the Borrower or any of its Subsidiaries during such period,
(c) interest paid or payable by the Borrower or any of its Subsidiaries during
such period as determined in accordance with Agreement Accounting Principles and
minus (to the extent included in Consolidated Net Income) (d) interest earned by
the Borrower or any of its Subsidiaries during such period.
"EFFECTIVE DATE" means December 21, 1998.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and any rule or regulation issued
thereunder.
"EURODOLLAR ADVANCE" means an Advance denominated in Dollars
that bears interest at a Eurodollar Rate.
"EURODOLLAR BASE RATE" means, with respect to a Eurodollar
Advance for the relevant Eurodollar Interest Period, the per annum rate at which
deposits in Dollars are offered by First Chicago to first-class banks in the
London interbank market at approximately 11:00 a.m. (London time) two Business
Days prior to the first day of such Eurodollar Interest Period, in the
approximate amount of First Chicago's relevant Eurodollar Loan and having a
maturity approximately equal to such Eurodollar Interest Period.
"EURODOLLAR INTEREST PERIOD" means, with respect to a
Eurodollar Advance, a period of one, two, three or six months commencing on a
Business Day selected by the Borrower pursuant to this Agreement. Such
Eurodollar Interest Period shall end on (but exclude) the day which corresponds
numerically to such date one, two, three or six months thereafter, unless there
is no such numerically corresponding day in such next, second, third or sixth
succeeding month, in which case such Eurodollar Interest Period shall end on the
last Business Day of such next, second, third or sixth succeeding month. If a
Eurodollar Interest Period would otherwise end on a day which is not a Business
Day, such Eurodollar Interest Period shall end on the next succeeding Business
Day, unless said next succeeding Business Day falls in a new calendar month, in
which case such Eurodollar Interest Period shall end on the immediately
preceding Business Day.
"EURODOLLAR LOAN" means a Loan denominated in Dollars which
bears interest at a Eurodollar Rate.
"EURODOLLAR RATE" means, with respect to a Eurodollar Advance
for the relevant Eurodollar Interest Period, the sum of (a) the quotient of (i)
the Eurodollar Base Rate applicable
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to such Eurodollar Interest Period, divided by (ii) one minus the Reserves
(expressed as a decimal) applicable to such Eurodollar Interest Period, plus (b)
the Applicable Margin in effect from time to time during such Eurodollar
Interest Period. The Eurodollar Rate shall be rounded to the next higher
multiple of 1/16 of 1% if the rate is not such a multiple.
"EXISTING CREDIT AGREEMENT" has the meaning set forth in
SECTION 4.1(h).
"FACILITY TERMINATION DATE" means December 20, 2000.
"FAIR VALUE" means the value of the relevant asset determined
in an arm's-length transaction conducted in good faith between an informed and
willing buyer and an informed and willing seller under no compulsion to buy or
sell.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, an interest
rate per annum equal to the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System arranged by
Federal funds brokers on such day, as published for such day (or, if such day is
not a Business Day, for the immediately preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day which
is a Business Day, the average of the quotations at approximately 10:00 a.m.
(Chicago time) on such day on such transactions received by the Agent from three
Federal funds brokers of recognized standing selected by the Agent in its sole
discretion.
"FINANCIAL UNDERTAKING" of a Person means (a) any repurchase
obligation or liability of such Person or any of its Subsidiaries with respect
to accounts or notes receivable sold by such Person or any of its Subsidiaries,
(b) any liability under any sale and leaseback transactions which do not create
a liability on the consolidated balance sheet of such Person and its
Subsidiaries, (c) obligations arising with respect to any other transaction
which is the functional equivalent of or takes the place of borrowing but which
does not constitute a liability on the consolidated balance sheet of such Person
and its Subsidiaries or (d) net liabilities under any agreements, devices or
arrangements designed to protect at least one of the parties thereto from the
fluctuations of interest rates, exchange rates or forward rates applicable to
such party's assets, liabilities or exchange transactions, including, but not
limited to, interest rate exchange agreements, forward currency exchange
agreements, interest rate cap or collar protection agreements, and forward rate
currency or interest rate options.
"FIRST CHICAGO" means The First National Bank of Chicago in
its individual capacity, and its successors.
"FIXED CHARGE COVERAGE RATIO" means, for any period, the ratio
of (a) the sum of (i) EBIT of the Borrower and all of its Subsidiaries plus (ii)
Rentals of the Borrower and all of its Subsidiaries on a consolidated basis to
(b) Consolidated Fixed Charges.
"FLOATING RATE" means, for any day, a rate per annum equal to
the Alternate Base Rate for such day, changing when and as the Alternate Base
Rate changes.
"FLOATING RATE ADVANCE" means an Advance denominated in
Dollars which bears interest at the Floating Rate.
"FLOATING RATE LOAN" means a Loan denominated in Dollars which
bears interest at the Floating Rate.
"GAAP" means generally accepted accounting principles as in
effect from time to time.
"GOVERNMENTAL AUTHORITY" means any country or nation, any
political subdivision of such country or nation, and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government of any country or nation or political subdivision
thereof.
"GROSS NEGLIGENCE" means either recklessness or actions taken
or omitted with conscious indifference to or the complete disregard of
consequences. Gross Negligence does not mean the absence of ordinary care or
diligence, or an inadvertent act or inadvertent failure to act. If the term
"gross negligence" is used with respect to the Agent or any Lender or any
indemnitee in any of the other Loan Documents, it shall have the meaning set
forth herein.
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"GUARANTOR" means (a) as of the date of this Agreement, the
Initial Guarantors and (b) each other Subsidiary added as a Guarantor pursuant
to the terms of SECTION 6.20 (a "SUPPLEMENTAL GUARANTOR"), and in each such case
their respective successors and assigns.
"GUARANTY" means (a) each guaranty executed as of the date of
this Agreement by each of the Initial Guarantors and (b) each other guaranty
executed by a Supplemental Guarantor pursuant to the terms of SECTION 6.20, and
in each such case as the same may from time to time be amended, modified,
supplemented and/or restated.
"HEALTH CARE COMPANY" means a Person that is engaged, directly
or indirectly, in (a) owning, operating or managing one or more facilities which
dispenses, markets or provides healthcare products or services, including,
without limitation, pharmaceutical products or services, (b) purchasing,
repackaging, selling or dispensing pharmaceutical products, (c) providing
healthcare consulting and billing services, (d) distributing medical supplies
and equipment, (e) providing infusion therapy products or services, (f)
providing respiratory services, equipment or supplies, (g) providing parenteral
and enteral nutrition products, wound care products, osotomy and urological
supplies, (h) providing home health care services, (i) providing dialysis
services, (j) providing contract pharmaceutical research services, (k) providing
disease and outcome management services, including formulary services, (l)
providing orthopedic supplies and services, (m) providing information
technology, including software products and services, to Persons engaged in any
of the foregoing businesses, including long term care institutions, (n)
providing any service or product described in the Standard Industrial
Classification Manual (1987 Revision) published by the Office of Management and
Budget under the heading Industry No. 5047, 5122, 5912 or 8731 or Major Group 80
as a whole, (o) providing any product or service ancillary or incidental to the
healthcare industry to any customer or client of any of the foregoing Persons,
or (p) providing any other healthcare related products or services.
"INDEBTEDNESS" of a Person means, without duplication, such
Person's (a) obligations for borrowed money, (b) obligations representing the
deferred purchase price of Property or services (other than accounts payable
arising in the ordinary course of such Person's business payable on terms
customary in the trade), (c) obligations, whether or not assumed, secured by
Liens or payable out of the proceeds or production from Property now or
hereafter owned or acquired by such Person, (d) obligations which are evidenced
by notes, acceptances, or other instruments, (e) Capitalized Lease Obligations,
(f) Financial Undertakings, (g) Contingent Obligations and (h) obligations under
or in connection with a letter of credit; but excluding, in any event, (i)
amounts payable by such Person in respect of covenants not to compete, and (ii)
with reference to the Borrower and its Subsidiaries, all obligations of the
Borrower and its Subsidiaries of the character referred to in this definition to
the extent owing to the Borrower or any Subsidiary of the Borrower.
"INDENTURES" means the Indenture dated as of October 1, 1993
by and between the Borrower and NBD Bank (formerly known as NBD Bank, N.A.) and
the Indenture dated as of December 10, 1997 by and between the Borrower and The
First National Bank of Chicago, in each case as the same may be amended or
modified from time to time, pursuant to which the respective Convertible Notes
were issued.
"INITIAL GUARANTORS" means the Subsidiaries of the Borrower
listed on SCHEDULE III hereto.
"INTEREST PERIOD" means a Eurodollar Interest Period.
"INVESTMENT" of a Person means any loan, advance (other than
commission, travel and similar advances to officers and employees made in the
ordinary course of business), extension of credit (other than accounts
receivable arising in the ordinary course of business on terms customary in the
trade), deposit account or contribution of capital by such Person to any other
Person or any investment in, or purchase or other acquisition of, the stock,
partnership interests, ownership interests in any limited liability company,
notes, debentures or other securities of any other Person made by such Person.
"JOINT VENTURE" means any corporation, partnership, limited
liability company association, joint stock company, business trust or other
combined enterprise other than a Subsidiary in which or to which the Borrower or
any of its Subsidiaries has made an Investment to fund a business enterprise
which engages or will engage in a business in which the Borrower or any of its
Subsidiaries is engaged from time to time during the term of this Agreement.
"LENDERS" means the lending institutions listed on the
signature pages of this Agreement and their respective successors and assigns.
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"LENDING INSTALLATION" means, with respect to a Lender, any
office, branch, subsidiary or affiliate of such Lender.
"LIEN" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever (including, without limitation, the interest of a vendor or
lessor under any conditional sale, Capitalized Lease or other title retention
agreement).
"LOAN" means a loan by a Lender to the Borrower as part of an
Advance.
"LOAN DOCUMENTS" means this Agreement, the Notes and the
Guaranties.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on
(a) the business, Property, condition (financial or otherwise), results of
operations, or prospects of the Borrower and its Subsidiaries taken as a whole,
(b) the ability of the Borrower or the Guarantors to perform their respective
obligations under the Loan Documents, or (c) the validity or enforceability of
any of the Loan Documents or the rights or remedies of the Agent or the Lenders
thereunder.
"MOODY'S" means Xxxxx'x Investors Service, Inc.
"MULTIEMPLOYER PLAN" means a Plan, if any, maintained pursuant
to a collective bargaining agreement or any other arrangement to which the
Borrower or any member of the Controlled Group is a party to which more than one
employer is obligated to make contributions.
"NOTE" means a promissory note of the Borrower payable to the
order of any Lender, in substantially the form of EXHIBIT A hereto, evidencing
the aggregate indebtedness of the Borrower to such Lender resulting from the
Loans made by such Lender to the Borrower.
"NOTICE OF ASSIGNMENT" has the meaning specified in SECTION
12.3.2.
"OBLIGATIONS" means all unpaid principal of and accrued and
unpaid interest on the Notes, all accrued and unpaid fees and all expenses,
reimbursements, indemnities and other obligations of the Borrower to the Lenders
or to any Lender, the Agent or any indemnified party hereunder arising under the
Loan Documents.
"PARTICIPANTS" has the meaning specified in SECTION 12.2.1.
"PAYMENT OFFICE" means the principal office of the Agent in
Chicago, Illinois, located on the date hereof at Xxx Xxxxx Xxxxxxxx Xxxxx,
Xxxxxxx, Xxxxxxxx 00000 or such other office of the Agent as the Agent may from
time to time designate by written notice to the Borrower and the Lenders.
"PBGC" means the Pension Benefit Guaranty Corporation, or any
successor thereto.
"PERMITTED ACQUISITION" means any Acquisition made by the
Borrower or any of its Subsidiaries provided that: (a) as of the date of such
Acquisition, no Default or Unmatured Default shall have occurred and be
continuing or would result from such Acquisition or from the incurrence of any
Indebtedness in connection with such Acquisition; (b) prior to the date of such
Acquisition, such Acquisition shall have been approved by the board of directors
and, if applicable, the shareholders of the Person whose stock or assets are
being acquired in connection with such Acquisition and no claim or challenge has
been asserted or threatened by any shareholder or director of such Person which
could reasonably be expected to have a material adverse effect on such
Acquisition or a Material Adverse Effect; (c) as of the date of any such
Acquisition, all approvals required in connection with such Acquisition shall
have been obtained; and (d) any such Acquisition is an Acquisition of the assets
or capital stock or other equity interests of a Person engaged in any line of
business being conducted by the Borrower or any of its Subsidiaries at the time
of such Acquisition or of a Health Care Company.
"PERSON" means any natural person, corporation, firm, joint
venture, partnership, limited liability company, association, enterprise, trust
or other entity or organization, or any government or political subdivision or
any agency, department or instrumentality thereof.
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"PLAN" means an employee pension benefit plan which is covered
by Title IV of ERISA or subject to the minimum funding standards under Section
412 of the Code as to which the Borrower or any member of the Controlled Group
may have any liability.
"PREPAYMENT NOTICE" has the meaning specified in SECTION 2.5.
"PRICING SCHEDULE" means the Schedule attached hereto as
SCHEDULE I.
"PROPERTY" of a Person means any and all property, whether
real, personal, tangible, intangible, or mixed, of such Person, or other assets
owned, leased or operated by such Person.
"PURCHASERS" has the meaning specified in SECTION 12.3.1.
"REGULATION D" means Regulation D of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor
thereto or other regulation or official interpretation of said Board of
Governors relating to reserve requirements applicable to member banks of the
Federal Reserve System.
"REGULATION U" means Regulation U of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor or
other regulation or official interpretation of said Board of Governors relating
to the extension of credit by banks for the purpose of purchasing or carrying
margin stocks applicable to member banks of the Federal Reserve System.
"RENTALS" of a Person means the aggregate fixed amounts
payable by such Person under any lease of Property having an original term
(including any required renewals or any renewals at the option of the lessor or
lessee) of one year or more.
"REPORTABLE EVENT" means a reportable event as defined in
Section 4043 of ERISA and the regulations issued under such section, with
respect to a Plan, excluding, however, such events as to which the PBGC by
regulation waived the requirement of Section 4043(a) of ERISA that it be
notified within 30 days of the occurrence of such event; PROVIDED, HOWEVER, that
a failure to meet the minimum funding standard of Section 412 of the Code and of
Section 302 of ERISA shall be a Reportable Event regardless of the issuance of
any such waiver of the notice requirement in accordance with either Section
4043(a) of ERISA or Section 412(d) of the Code.
"REQUIRED LENDERS" means Lenders in the aggregate having at
least 51% of the Aggregate Commitment or, if the Aggregate Commitment has been
terminated, Lenders in the aggregate holding at least 51% of the aggregate
unpaid principal amount of the outstanding Advances.
"RESERVES" means, with respect to a Eurodollar Interest
Period, the maximum aggregate reserves (including all basic, supplemental,
marginal and other reserves) imposed under Regulation D on Eurocurrency
liabilities.
"REVOLVING CREDIT TERMINATION BALANCE" means the aggregate
principal amount of Advances outstanding on the Revolving Credit Termination
Date after giving effect to any Advances made or repaid on such date.
"REVOLVING CREDIT TERMINATION DATE" means December 20, 1999 or
any earlier date on which the Aggregate Commitment is reduced to zero or
otherwise terminated pursuant to the terms hereof.
"SECTION" means a numbered section of this Agreement, unless
another document is specifically referenced.
"SINGLE EMPLOYER PLAN" means a Plan, if any, maintained by the
Borrower or any member of the Controlled Group for employees of the Borrower or
any member of the Controlled Group.
"SPECIFIED REMITTANCE TIME" means (a) if the relevant Payment
Office is located in Chicago, 12:00 noon (Chicago time) and (b) if the relevant
Payment Office is located elsewhere, such time as the Agent shall specify after
consultation with the Borrower and the Lenders.
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"STANDARD & POOR'S" means Standard & Poor's Ratings Group, a
division of The XxXxxx-Xxxx Companies, Inc.
"SUBSIDIARY" of a Person means (a) any corporation more than
50% of the outstanding securities having ordinary voting power of which shall at
the time be owned or controlled, directly or indirectly, by such Person or by
one or more of its Subsidiaries or by such Person and one or more of its
Subsidiaries, or (b) any partnership, limited liability company, association,
joint venture or similar business organization more than 50% of the ownership
interests having ordinary voting power of which shall at the time be so owned or
controlled. Unless otherwise expressly provided, all references herein to a
"Subsidiary" shall mean a Subsidiary of the Borrower.
"SUBSTANTIAL PORTION" means, with respect to the Property of
the Borrower and the Subsidiaries, Property that has a Fair Value representing
more than 5% of Consolidated Net Worth determined as of the end of the fiscal
quarter of the Borrower most recently ended prior to the date on which such
determination is made.
"SUPPLEMENTAL GUARANTOR" has the meaning given that term in
the definition of "Guarantor" above.
"TERM LOAN OPTION" has the meaning set forth in SECTION 2.2.
"TRANSFEREE" has the meaning specified in SECTION 12.4.
"TYPE" means, (a) with respect to any Loan, its nature as a
Floating Rate Loan or a Eurodollar Loan and (b) with respect to any Advance, its
nature as a Floating Rate Advance or a Eurodollar Advance.
"UNFUNDED LIABILITIES" means the amount (if any) by which the
present value of all vested nonforfeitable benefits under all Single Employer
Plans exceeds the Fair Value of all such Plan assets allocable to such benefits,
all determined as of the then most recent valuation date for such Plans.
"UNITED STATES" and "U.S." mean the United States of America.
"UNMATURED DEFAULT" means an event which but for the lapse of
time or the giving of notice, or both, would constitute a Default.
"WHOLLY-OWNED SUBSIDIARY" of a Person means (a) any Subsidiary
all of the outstanding voting securities of which shall at the time be owned or
controlled, directly or indirectly, by such Person or one or more Wholly-Owned
Subsidiaries of such Person, or by such Person and one or more Wholly-Owned
Subsidiaries of such Person, or (b) any partnership, association, joint venture
or similar business organization 100% of the ownership interests having ordinary
voting power of which shall at the time be so owned or controlled.
"YEAR 2000 ISSUES" means, with respect to any computer-related
systems of the Borrower and its Subsidiaries, anticipated costs, problems and
uncertainties associated with the inability of certain computer applications to
effectively handle data including dates on and after January 1, 2000, as such
inability affects the business, operations, and financial condition of the
Borrower and its Subsidiaries.
ARTICLE II
THE LOAN FACILITY
2.1. THE LOANS. From and including the date of this Agreement
and prior to the Revolving Credit Termination Date, each Lender severally
agrees, on the terms and conditions set forth in this Agreement (including,
without limitation, the terms and conditions of SECTION 2.9 and SECTION 8.1
relating to the reduction, suspension or termination of the Aggregate
Commitment), to make Loans to the Borrower from time to time in an aggregate
amount not to exceed at any one time outstanding the amount of such Lender's
Commitment. Subject to the terms of this Agreement (including, without
limitation, the terms and conditions of SECTION 2.9 and SECTION 8.1 relating to
the reduction, suspension or termination of the Aggregate Commitment), the
Borrower may borrow, repay and reborrow Loans at any time prior to the Revolving
Credit Termination Date. Unless earlier terminated in accordance with the terms
and conditions of this Agreement, the Commitments of the Lenders to lend
hereunder shall expire on
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the Revolving Credit Termination Date. Principal payments made after the
Revolving Credit Termination Date may not be reborrowed.
2.2 REPAYMENT OF THE LOANS . The Revolving Credit Termination
Balance shall be paid in full by the Borrower on the Revolving Credit
Termination Date; PROVIDED, HOWEVER, that (a) Loans may be prepaid prior to the
Revolving Credit Termination Date in accordance with the terms of this Agreement
and (b) the Revolving Credit Termination Balance may be consolidated and
converted into a single one-year term loan (the "TERM LOAN OPTION"). The
Borrower may elect the Term Loan Option by providing written notice of such
election to the Agent and Lenders at least thirty days prior to the Revolving
Credit Termination Date. Upon such election, the Revolving Credit Termination
Balance shall be converted into a one-year term loan payable in four equal,
consecutive quarterly installments of principal, on March 20, 2000, June 20,
2000, September 20, 2000, and on the Facility Termination Date. All unpaid
Obligations shall be paid in full by the Borrower on the Facility Termination
Date. All other provisions of this Agreement shall apply to such term loans,
including, without limitation, interest rate options and interest payment
provisions pursuant to SECTIONS 2.7 and 2.8. Notwithstanding the foregoing, the
Term Loan Option shall not be available to the Borrower if a Default or
Unmatured Default has occurred or is continuing as of the date of the Revolving
Credit Termination Date.
2.3. RATABLE LOANS; TYPES OF ADVANCES . Each Advance hereunder
shall consist of Loans made from the several Lenders ratably in proportion to
the ratio that their respective Commitments bear to the Aggregate Commitment.
Any Advance may be a Floating Rate Advance or a Eurodollar Advance, as the
Borrower shall select in accordance with SECTIONS 2.6 and 2.7.
2.4. MINIMUM AMOUNT OF EACH ADVANCE . Each Advance shall be in
a minimum amount not less than $15,000,000 or an integral multiple of $1,000,000
in excess thereof; PROVIDED, HOWEVER, that any Advance may be in the amount of
the unused Aggregate Commitment.
2.5. OPTIONAL PREPAYMENTS OF LOANS . Subject to SECTION 3.4
and the requirements of SECTION 2.4, the Borrower may (a) following notice given
to the Agent by the Borrower, in the form attached hereto as EXHIBIT G (a
"PREPAYMENT NOTICE") by not later than 10:00 a.m. (Chicago time) one Business
Day prior to the date of the proposed prepayment, such notice specifying the
aggregate principal amount of and the proposed date of the prepayment, and if
such notice is given the Borrower shall, prepay the outstanding principal
amounts of the Floating Rate Loans comprising part of the same Advance in whole
or ratably in part, together with accrued interest to the date of such
prepayment on the principal amount prepaid and (b) following a Prepayment Notice
given to the Agent by the Borrower by not later than 10:00 a.m. (Chicago time)
on, if the Advance to be prepaid is a Eurodollar Advance, the third Business Day
preceding the date of the proposed prepayment, such notice specifying the
Advance to be prepaid and the proposed date of the prepayment, and, if such
notice is given, such Borrower shall, prepay the outstanding principal amounts
of the Eurodollar Loans comprising a Eurodollar Advance in whole (and not in
part), together with accrued interest to the date of such prepayment on the
principal amount prepaid. In the case of a Floating Rate Advance, each partial
prepayment shall be in an aggregate principal amount not less than $1,000,000.
2.6. METHOD OF SELECTING TYPES AND INTEREST PERIODS FOR NEW
ADVANCES . The Borrower shall select the Type of each Advance and, in the case
of a Eurodollar Advance, the Interest Period applicable to such Advance from
time to time. The Borrower shall give the Agent irrevocable notice, in the form
attached hereto as EXHIBIT F (a "BORROWING NOTICE"), not later than 10:00 a.m.
(Chicago time) (i) on the Borrowing Date for each Floating Rate Advance and (ii)
at least three Business Days before the Borrowing Date for each Eurodollar
Advance, specifying:
(a) the Borrowing Date, which shall be a Business Day, of such
Advance,
(b) the aggregate amount of such Advance,
(c) the Type of such Advance, and
(d) in the case of each Eurodollar Advance, the Interest
Period applicable thereto.
Not later than the Specified Remittance Time on each Borrowing Date, each Lender
shall make available its Loan or Loans to the Agent in immediately available
funds at the relevant Payment
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Office. To the extent that the Agent has received funds from the Lenders as
specified in the preceding sentence and the applicable conditions set forth in
ARTICLE IV have been fulfilled, the Agent will make such funds available to the
Borrower at the relevant Payment Office within two hours following the Specified
Remittance Time, it being understood that if the relevant Payment Office is
located in Chicago, the Agent will make the applicable funds available to the
Borrower by depositing such funds to such account with First Chicago as the
Borrower shall designate.
2.7. CONVERSION AND CONTINUATION OF OUTSTANDING ADVANCES .
Floating Rate Advances shall continue as Floating Rate Advances unless and until
such Floating Rate Advances are converted into Eurodollar Advances or prepaid
pursuant to SECTION 2.5. Each Eurodollar Advance of any Type shall continue as a
Eurodollar Advance of such Type until the end of the then applicable Interest
Period therefor, at which time such Eurodollar Advance shall be automatically
converted into a Floating Rate Advance unless the Borrower shall have given the
Agent a Conversion/Continuation Notice requesting that, at the end of such
Interest Period, such Eurodollar Advance either continue as a Eurodollar Advance
of such Type for the same or another Interest Period or be converted into an
Advance of another Type. Subject to the terms of SECTION 2.6, the Borrower may
elect from time to time to convert all or any part of an Advance of any Type
into any other Type or Types of Advances; provided that any conversion of any
Eurodollar Advance shall be made on, and only on, the last day of the Interest
Period applicable thereto. The Borrower shall give the Agent irrevocable notice
in the form of EXHIBIT I hereto (a "CONVERSION/CONTINUATION NOTICE") of each
conversion of an Advance or continuation of a Eurodollar Advance not later than
10:00 a.m. (Chicago time) (i) in the case of a conversion into a Floating Rate
Advance on the date of such conversion and (ii) in the case of a conversion into
or continuation of a Eurodollar Advance, at least three Business Days before the
date of such conversion or continuation, specifying:
(a) the requested date, which shall be a Business Day, of such
conversion or continuation;
(b) the aggregate amount and Type of the Advance which is to
be converted or continued; and
(c) the amount and Type(s) of Advance(s) into which such
Advance is to be converted or continued and, in the case of a
conversion into or continuation of a Eurodollar Advance, the duration
of the Interest Period applicable thereto.
The Borrower shall select Interest Periods so that it is not necessary to repay
any portion of a Eurodollar Advance prior to the last day of the applicable
Interest Period in order to make a mandatory repayment required pursuant to
SECTION 2.2.
2.8. PAYMENT OF INTEREST ON ADVANCES; CHANGES IN INTEREST
RATE. (a) Interest accrued on each Floating Rate Advance shall be payable on the
last Business Day of each calendar month, on the Revolving Credit Termination
Date, and on the earliest of the Facility Termination Date, the date of the
reduction to zero of the Aggregate Commitment pursuant to SECTION 2.9 and the
date of the acceleration of the Obligations pursuant to SECTION 8.1. Interest
accrued on each Eurodollar Advance shall be payable on the last day of its
applicable Interest Period, on any date on which such Eurodollar Advance is
prepaid, whether by acceleration or otherwise, and at maturity. Interest accrued
on each Eurodollar Advance having an Interest Period longer than three months
shall also be payable on the last day of each three-month interval during such
Interest Period. Interest on Floating Rate Advances shall be calculated for
actual days elapsed on the basis of a 365/366-day year. Interest on Eurodollar
Advances shall be calculated for actual days elapsed on the basis of a 360-day
year. Interest shall be payable for the day a Advance is made but not for the
day of any payment on the amount paid if payment is received prior to noon
(local time) at the place of payment. If any payment of principal of or interest
on a Advance shall become due on a day which is not a Business Day, such payment
shall be made on the next succeeding Business Day and, in the case of a
principal payment, such extension of time shall be included in computing
interest in connection with such payment.
(b) Each Floating Rate Advance shall bear interest on the
outstanding principal amount thereof, for each day from and including the date
such Advance is made or is converted from a Eurodollar Advance into a Floating
Rate Advance pursuant to SECTION 2.7(b) to but excluding the date it becomes due
or is converted into a Eurodollar Advance pursuant to SECTION 2.7(b), at a rate
per annum equal to the Floating Rate for such day. Changes in the rate of
interest on each Advance maintained as a Floating Rate Advance will take effect
simultaneously with each change in the Alternate Base Rate. Each Eurodollar
Advance shall bear interest from and
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including the first day of the Interest Period applicable thereto to (but not
including) the last day of such Interest Period at the Eurodollar Rate
determined as applicable to such Eurodollar Advance. No Interest Period may end
after the Facility Termination Date.
2.9. COMMITMENT FEE; REDUCTIONS IN AGGREGATE COMMITMENT. (a)
The Borrower agrees to pay to the Agent for the account of each Lender a
commitment fee at a rate per annum equal to the Applicable Commitment Fee Rate
in effect from time to time on the daily unused portion of such Lender's
Commitment from the date hereof to but excluding the earliest of the Revolving
Credit Termination Date, the date of the reduction to zero of the Aggregate
Commitment pursuant to SECTION 2.9(b) and the date of the termination of the
Aggregate Commitment pursuant to SECTION 8.1. Such commitment fees shall be
payable in arrears on the last Business Day of each March, June, September and
December, and on the earliest of the Revolving Credit Termination Date, the date
of the reduction to zero of the Aggregate Commitment pursuant to SECTION 2.9(b)
and the date of the termination of the Aggregate Commitment pursuant to SECTION
8.1. Commitment fees shall be calculated for actual days elapsed on the basis of
a 360-day year.
(b) The Borrower may permanently reduce the Aggregate
Commitment in whole, or in part ratably among the Lenders in integral multiples
of not less than $20,000,000 or an integral multiple of $5,000,000 in excess
thereof, upon at least three Business Days' written notice to the Agent, which
notice shall specify the amount of any such reduction; PROVIDED, HOWEVER, that
the amount of the Aggregate Commitment may not be reduced below the sum of the
aggregate principal amount of the outstanding Advances.
2.10. RATES APPLICABLE AFTER DEFAULT. Notwithstanding
anything to the contrary contained in SECTION 2.8, during the continuance of a
Default or Unmatured Default no Advance may be made as, converted into or
continued as a Eurodollar Advance. During the continuance of a Default pursuant
to SECTION 7.2 and, if the Required Banks so elect, during the continuance of
any other Default, (a) each Eurodollar Advance, until paid in full or converted
to a Floating Rate Advance, shall bear interest at the Eurodollar Rate then
applicable to such Advance plus 3% per annum, and (b) each Floating Rate Advance
shall bear interest until paid in full at a rate per annum equal to the Floating
Rate plus 3% per annum.
2.11. METHOD OF PAYMENT. All payments of the Obligations
hereunder shall be made, without setoff, deduction, or counterclaim, in
immediately available funds to the Agent at the Agent's address specified
pursuant to ARTICLE XIII, or at any other Lending Installation of the Agent
specified in writing by the Agent to the Borrower, by 12:00 noon (local time) on
the date when due and shall be remitted by the Agent to the Lenders according to
their respective interests therein. Each payment delivered to the Agent for the
account of any Lender shall be delivered promptly by the Agent to such Lender in
the same type of funds that the Agent received at its address specified pursuant
to ARTICLE XIII or at any Lending Installation specified in a notice received by
the Agent from such Lender. The Agent is hereby authorized, but is not
obligated, to charge the accounts of the Borrower maintained with First Chicago
into which proceeds of Advances are remitted pursuant to SECTION 2.6 for each
payment of interest and fees as it becomes due hereunder and for each payment of
principal, in accordance with the applicable Prepayment Notice or when otherwise
due and payable in accordance with the terms hereof.
2.12. NOTES; TELEPHONIC NOTICES. Each Lender is hereby
authorized to record the date and principal amount of each of its Loans and the
date and amount of each repayment on the schedule attached to its Note;
PROVIDED, HOWEVER, that the failure to so record shall not affect the Borrower's
obligations under such Note. The Borrower hereby authorizes the Lenders and the
Agent to extend, convert or continue Advances and effect selections of Types of
Advances based on telephonic notices made by any person or persons the Agent in
good faith believes to be acting on behalf of the Borrower. The Borrower agrees
to deliver promptly to the Agent a written confirmation, if such confirmation is
requested by the Agent or any Lender, of each telephonic notice, signed by an
Authorized Officer. If the written confirmation differs in any material respect
from the action taken by the Agent and the Lenders, the records of the Agent of
the relevant telephonic notice shall govern absent manifest error.
2.13. NOTIFICATION OF ADVANCES, INTEREST RATES, PREPAYMENTS
AND COMMITMENT REDUCTIONS. Promptly after receipt thereof, the Agent will
notify each Lender of the contents of each Aggregate Commitment reduction
notice, Borrowing Notice, Conversion/Continuation Notice, and Prepayment Notice
received by it hereunder. The Agent will notify each Lender of the interest rate
applicable to each Eurodollar Advance promptly upon determination of such
interest rate and will give each Lender prompt notice of each change in the
Alternate Base Rate.
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2.14. LENDING INSTALLATIONS. Each Lender may book its Loans
at any one or more Lending Installations selected by such Lender and may change
any such Lending Installation from time to time. All terms of this Agreement
shall apply to any such Lending Installation and the Notes shall be deemed held
by each Lender for the benefit of such Lending Installation. Each Lender may, by
written or telex notice to the Agent and the Borrower, designate a Lending
Installation through which Loans will be made by it and for whose account Loan
payments are to be made.
2.15. NON-RECEIPT OF FUNDS BY THE AGENT. Unless the Borrower
or a Lender, as the case may be, notifies the Agent prior to the date on which
it is scheduled to make payment to the Agent of (a) in the case of a Lender, the
proceeds of a Loan or (b) in the case of the Borrower, a payment of principal,
interest or fees to the Agent for the account of the Lenders, that it does not
intend to make such payment, the Agent may assume that such payment has been
made. The Agent may, but shall not be obligated to, make the amount of such
payment available to the intended recipient in reliance upon such assumption. If
such Lender or the Borrower, as the case may be, has not in fact made such
payment to the Agent, the recipient of such payment shall, on demand by the
Agent, repay to the Agent the amount so made available together with interest
thereon in respect of each day during the period commencing on the date such
amount was so made available by the Agent until the date the Agent recovers such
amount at a rate per annum equal to (a) in the case of repayment by a Lender,
the Federal Funds Effective Rate for such day or (b) in the case of repayment by
the Borrower, the interest rate applicable to the relevant Loan.
2.16. WITHHOLDING TAX EXEMPTION. At least five Business Days
prior to the first date on which interest or fees are payable hereunder for the
account of any Lender, each Lender that is not incorporated under the laws of
the United States of America, or a state thereof, agrees that it will deliver to
each of the Borrower and the Agent two duly completed copies of United States
Internal Revenue Service Form 1001 or 4224, certifying in either case that such
Lender is entitled to receive payments under this Agreement and the Notes
without deduction or withholding of any United States federal income taxes. Each
Lender which so delivers a Form 1001 or 4224 further undertakes to deliver to
each of the Borrower and the Agent two additional copies of such form (or any
successor form or related form as may from time to time be required under
applicable law) on or before the date that such form expires (currently, three
successive calendar years for Form 1001 and one calendar year for Form 4224) or
becomes obsolete or after the occurrence of any event requiring a change in the
most recent forms so delivered by it, and such amendments thereto or extensions
or renewals thereof as may be reasonably requested by the Borrower or the Agent,
in each case certifying that such Lender is entitled to receive payments under
this Agreement and the Notes without deduction or withholding of any United
States federal income taxes, unless an event (including without limitation any
change in treaty, law or regulation) has occurred prior to the date on which any
such delivery would otherwise be required which renders all such forms
inapplicable or which would prevent such Lender from duly completing and
delivering any such form with respect to it and such Lender advises the Borrower
and the Agent that it is not capable of receiving payments without any deduction
or withholding of United States federal income tax.
ARTICLE III
CHANGE IN CIRCUMSTANCES
3.1. YIELD PROTECTION. If any law or any governmental or
quasi-governmental rule, regulation, policy, guideline or directive (whether or
not having the force of law), or any interpretation thereof, or the compliance
by any Lender therewith,
(a) subjects any Lender or any applicable Lending Installation
to any tax, duty, charge or withholding on or from payments due from
the Borrower (excluding federal taxation of the overall net income of
any Lender), or changes the basis of taxation of payments to any Lender
in respect of its Loans or other amounts due it hereunder, or
(b) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar requirement
against assets of, deposits with or for the account of, or credit
extended by, any Lender or any applicable Lending Installation (other
than reserves and assessments taken into account in determining the
interest rate applicable to Eurodollar Advances), or
(c) imposes any other condition the result of which is to
increase the cost to any Lender or any applicable Lending Installation
of making, funding or maintaining Loans or reduces any amount
receivable by any Lender or any applicable Lending Installation in
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connection with Loans, or requires any Lender or any applicable Lending
Installation to make any payment calculated by reference to the amount
of Loans held, or interest received, by it by an amount deemed material
by such Lender,
then, within 15 days of demand by such Lender, the Borrower shall pay such
Lender that portion of such increased expense incurred or reduction in an amount
received which such Lender determines is attributable to making, funding and
maintaining its Loans and its Commitment.
3.2. CHANGES IN CAPITAL ADEQUACY REGULATIONS. If a Lender
determines that the amount of capital required or expected to be maintained by
such Lender, any Lending Installation of such Lender or any corporation
controlling such Lender is increased as a result of a Change (as defined below
in this SECTION 3.2), then, within 15 days of demand by such Lender, the
Borrower shall pay such Lender the amount necessary to compensate for any
shortfall in the rate of return on the portion of such increased capital which
such Lender determines is attributable to this Agreement, its Loans, or its
obligation to make Loans hereunder (after taking into account such Lender's or
such controlling corporation's policies as to capital adequacy). "CHANGE" means
(a) any change after the date of this Agreement in the Risk-Based Capital
Guidelines (as defined below in this SECTION 3.2) or (b) any adoption of or
change in any other law, governmental or quasi-governmental rule, regulation,
policy, guideline, interpretation, or directive (whether or not having the force
of law) after the date of this Agreement which affects the amount of capital
required or expected to be maintained by any Lender or any Lending Installation
or any corporation controlling any Lender. "RISK-BASED CAPITAL GUIDELINES" means
(a) the risk-based capital guidelines in effect in the United States on the date
of this Agreement, including transition rules, and (b) the corresponding capital
regulations promulgated by regulatory authorities outside the United States
implementing the July 1988 report of the Basle Committee on Banking Regulation
and Supervisory Practices Entitled "International Convergence of Capital
Measurements and Capital Standards," including transition rules, and any
amendments to such regulations adopted prior to the date of this Agreement.
3.3. AVAILABILITY OF TYPES OF ADVANCES. If any Lender
determines that maintenance of its Eurodollar Loans at a suitable Lending
Installation would violate any applicable law, rule, regulation, or directive,
whether or not having the force of law, or if the Required Lenders determine
that (a) deposits of a type and maturity appropriate to match fund Eurodollar
Advances are not available or (b) the interest rate applicable to a Type of
Advance does not accurately reflect the cost of making or maintaining such
Advance, then the Agent shall suspend the availability of the affected Type of
Advance and require any Eurodollar Advances of the affected Type to be prepaid.
3.4. FUNDING INDEMNIFICATION. If any payment of a Eurodollar
Advance occurs on a date which is not the last day of the applicable Interest
Period in the case of a Eurodollar Advance, whether because of acceleration,
prepayment or otherwise, or a Eurodollar Advance is not made (whether by
borrowing, continuation or conversion) on the date specified by the Borrower for
any reason other than default by the Lenders, or an optional prepayment, notice
of which has been given in accordance with SECTION 2.5, is not made on the date
specified therefor in such notice, the Borrower will indemnify each Lender for
any loss or cost incurred by it resulting therefrom, including, without
limitation, any loss or cost in liquidating or employing deposits acquired to
fund or maintain such Eurodollar Advance.
3.5. MITIGATION; LENDER STATEMENTS; SURVIVAL OF INDEMNITY .
(a) To the extent reasonably possible, each Lender shall designate an alternate
Lending Installation with respect to its Eurodollar Loans to reduce any
liability of the Borrower to such Lender under SECTIONS 3.1 and 3.2 or to avoid
the unavailability of a Type of Advance under SECTION 3.3, so long as such
designation is not disadvantageous to such Lender. If the obligation of the
Lenders to make Eurodollar Advances has been suspended pursuant to SECTION 3.3
as a consequence of a determination by any Lender that maintenance of its
Eurodollar Loans at a suitable Lending Installation would violate any applicable
law or any Lender has demanded compensation under SECTION 3.1 or 3.2, the
Borrower may elect (i) subject to SECTION 3.4, to prepay any outstanding
Advances to the extent necessary to mitigate its liability under SECTION 3.1 or
3.2, (ii) to terminate the applicable Lender's Commitment hereunder or (iii) to
require the applicable Lender to assign its outstanding Loans and Commitment
hereunder to another financial institution designated by the Borrower and
reasonably acceptable to the Agent. The obligation of a Lender to assign its
rights and obligations hereunder or terminate its Commitment hereunder as
contemplated by this SECTION 3.5(a) is subject to the requirements that (x) all
amounts owing to that Lender under the Loan Documents are paid in full upon the
completion of such assignment or prior to such termination and (y) any
assignment is effected in accordance with the terms of SECTION 12.3 and
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on terms otherwise satisfactory to that Lender (it being understood that the
Borrower shall pay the processing fee payable to the Agent pursuant to SECTION
12.3.2 in connection with any such assignment).
(b) Each Lender shall deliver a written statement of such
Lender as to the amount due, if any, under SECTION 3.1, 3.2 or 3.4. Such written
statement shall set forth in reasonable detail the calculations upon which such
Lender determined such amount and shall be final, conclusive and binding on the
Borrower in the absence of manifest error. Determination of amounts payable
under such Sections in connection with a Eurodollar Loan shall be calculated as
though each Lender funded such Loan through the purchase of a deposit of the
type and maturity corresponding to the deposit used as a reference in
determining the interest rate applicable to such Loan, whether in fact that is
the case or not. Unless otherwise provided herein, the amount specified in the
written statement shall be payable on demand after receipt by the Borrower of
the written statement. The obligations of the Borrower under SECTIONS 3.1, 3.2
and 3.4 shall survive payment of the Obligations and termination of this
Agreement.
ARTICLE IV
CONDITIONS PRECEDENT
4.1. EFFECTIVENESS; INITIAL ADVANCE. This Agreement shall
become effective and the Lenders shall be obligated to make the initial Advance
hereunder only after the Agent shall have received from the Borrower, with
sufficient copies (other than in the case of the Notes) for each of the Lenders,
each of the following items in form and substance satisfactory to the Agent:
(a) copies of the certificate of incorporation of the
Borrower, together with all amendments, and, to the extent applicable,
a certificate of good standing, certified by the Delaware Secretary of
State.
(b) copies, certified by the Secretary, Assistant Secretary or
other appropriate officer or director of the Borrower of its by-laws
(or any comparable constitutive laws, rules or regulations) and of its
board of directors' resolutions (and resolutions of other bodies, if
any are deemed necessary by counsel for any Lender) authorizing the
execution of the relevant Loan Documents;
(c) incumbency certificates, executed by the Secretary or
Assistant Secretary or other appropriate officer or director of the
Borrower, which shall identify by name and title and bear the signature
of the officers of the Borrower authorized to sign the relevant Loan
Documents and to make borrowings hereunder, as applicable, upon which
certificate the Agent and the Lenders shall be entitled to rely until
informed of any change in writing by the Borrower.
(d) a certificate, signed by the Chief Financial Officer of
the Borrower, stating that, to the best of his knowledge after due
inquiry, on the date hereof no Default or Unmatured Default has
occurred and is continuing;
(e) an opinion of Xxxxxxxx Xxxx & Xxxxx LLP, counsel to the
Borrower;
(f) the Notes payable to the order of each of the Lenders;
(g) written money transfer instructions, in substantially the
form of EXHIBIT E hereto, addressed to the Agent and signed by an
Authorized Officer;
(h) an executed copy of Amendment No. 2 to the Credit
Agreement dated as of October 22, 1996 (as amended from time to time,
the "EXISTING CREDIT AGREEMENT"), by and among Omnicare, Inc., the
banks party thereto and First Chicago, as Agent, which Amendment shall
amend the Existing Credit Agreement to permit the execution, delivery
and performance of this Agreement and the other Loan Documents;
(i) a Guaranty signed by each of the Guarantors;
(j) an opinion of Sidley & Austin, counsel to the Agent; and
(k) such other documents as any Lender or its counsel may have
reasonably requested.
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By January 22, 1999, the Borrower shall deliver to the Agent a certificate of
the Secretary or Assistant Secretary of each Initial Guarantor certifying
resolutions of such Initial Guarantor's board of directors authorizing the
execution, delivery and performance of the Guaranty.
4.2. EACH ADVANCE. No Lender shall be required to make any
Loan hereunder, unless on the applicable Borrowing Date:
(a) there exists no Default or Unmatured Default;
(b) the representations and warranties contained in ARTICLE V
are true and correct as of such Borrowing Date except to the extent any
such representation or warranty is stated to relate solely to an
earlier date, in which case such representation or warranty shall be
true and correct on and as of such earlier date; and
(c) after giving effect to such Loan, the aggregate
outstanding principal amount of all Advances does not exceed the
Aggregate Commitment.
Each Borrowing Notice and each Conversion/Continuation Notice with respect to a
Loan shall constitute a representation and warranty by the Borrower that the
conditions contained in SECTIONS 4.2(a), (b) and (c) have been satisfied.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
5. REPRESENTATIONS AND WARRANTIES. The Borrower represents
and warrants to the Lenders that:
5.1. CORPORATE EXISTENCE AND STANDING. The Borrower and each
of its Subsidiaries is a corporation duly incorporated, validly
existing and in good standing under the laws of its jurisdiction of
incorporation and has all requisite authority to conduct its business
in each jurisdiction in which its business is conducted, except to the
extent that, in the case of any Subsidiary of the Borrower, the failure
to be in good standing or authorized to conduct business in any
jurisdiction could not, when taken together with all similar failures
by such Subsidiary and each other Subsidiary, reasonably be expected to
have a Material Adverse Effect.
5.2. AUTHORIZATION AND VALIDITY. The Borrower and each
Guarantor has the corporate power and authority and legal right to
execute and deliver the Loan Documents to which it is party and to
perform its obligations thereunder. The execution and delivery by each
of the Borrower and each Guarantor of the Loan Documents to which it is
party and the performance of its obligations thereunder have been duly
authorized by proper corporate proceedings, and each Loan Document to
which the Borrower or any Guarantor is party constitutes the legal,
valid and binding obligation of the Borrower or such Guarantor, as
applicable, enforceable against the Borrower or such Guarantor, as
applicable, in accordance with its terms, except as enforceability may
be limited by bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally and general principles of
equity, regardless of whether the application of such principles is
considered in a proceeding in equity or at law.
5.3. NO CONFLICT; GOVERNMENT CONSENT. Neither the execution
and delivery by each of the Borrower and each Guarantor of the Loan
Documents to which it is party, nor the consummation of the
transactions therein contemplated, nor compliance with the provisions
thereof will violate any law, rule, regulation, order, writ, judgment,
injunction, decree or award binding on the Borrower or any Subsidiary
or the Borrower's or any Subsidiary's articles of incorporation or
by-laws or comparable constitutive documents or the provisions of any
indenture, instrument or agreement to which the Borrower or any
Subsidiary is a party or is subject, or by which it, or its Property,
is bound, or conflict with or constitute a default thereunder, or
result in the creation or imposition of any Lien in, of or on the
Property of the Borrower or any Subsidiary pursuant to the terms of any
such indenture, instrument or agreement which violation, conflict or
imposition could reasonably be expected to have a Material Adverse
Effect. No order, consent, approval, license, authorization, or
validation of, or filing, recording or registration with, or exemption
by, any governmental or public body or authority, or any subdivision
thereof, is required to authorize, or is required in connection with
the execution, delivery and
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performance of, or the legality, validity, binding effect or
enforceability of, any of the Loan Documents.
5.4. FINANCIAL STATEMENTS. The December 31, 1997 and June 30,
1998 consolidated financial statements of the Borrower and its
Subsidiaries, heretofore delivered to the Lenders, were prepared in
accordance with GAAP in effect on the dates such statements were
prepared and fairly present the consolidated financial condition and
operations of the Borrower and its Subsidiaries at the dates thereof
and the consolidated results of their operations for the periods then
ended, subject, in the case of the June 30, 1998 financial statements,
to normal year-end adjustments and the absence of notes.
5.5. MATERIAL ADVERSE CHANGE. Since June 30, 1998, there has
been no change in the business, Property, prospects, condition
(financial or otherwise) or results of operations of the Borrower and
its Subsidiaries which could reasonably be expected to have a Material
Adverse Effect.
5.6. TAXES. All tax returns required to be filed by the
Borrower or any of its Subsidiaries in any jurisdiction have, in fact,
been filed, all such tax returns have been prepared in accordance with
applicable laws, and all taxes, assessments, fees and other
governmental charges upon the Borrower or any Subsidiary or upon any of
their respective properties, income or franchises, which are shown on
such returns have been paid except to the extent such tax payments are
being contested in good faith by appropriate proceedings and with
respect to which adequate reserves or other appropriate provisions are
being maintained in accordance with Agreement Accounting Principles.
For all taxable years ending on or before December 31, 1994, the United
States Federal income tax liability of the Borrower and its
Subsidiaries has been satisfied and either the period of limitations on
assessment of additional United States Federal income tax has expired
or the Borrower or the applicable Subsidiary has entered into an
agreement with the United States Internal Revenue Service closing
conclusively the total tax liability for the taxable year. Neither the
Borrower nor any of its Subsidiaries knows of any proposed additional
tax assessment against it or any of them for which adequate provision
has not been made on its or their accounts, and no controversy in
respect of additional income or other taxes due or claimed to be due to
any Governmental Authority is pending or to the knowledge of the
Borrower or its Subsidiaries threatened the outcome of which could
reasonably be expected to have a Material Adverse Effect. The charges,
accruals and reserves on the books of the Borrower and its Subsidiaries
in respect of any taxes or other governmental charges are adequate.
5.7. LITIGATION AND CONTINGENT LIABILITIES. Except as set
forth on SCHEDULE II hereto, there is no litigation, arbitration,
governmental investigation, proceeding or inquiry pending or, to the
knowledge of any of their officers, threatened against or affecting the
Borrower or any Subsidiary of the Borrower which could reasonably be
expected to have a Material Adverse Effect. Other than any liability
incident to such litigation, arbitration or proceedings, to the
knowledge of the Borrower's officers neither the Borrower nor any of
its Subsidiaries has any material contingent liabilities not provided
for or disclosed in the financial statements referred to in SECTION
5.4.
5.8. SUBSIDIARIES. SCHEDULE II hereto, together with the most
recent update, if any, delivered pursuant to SECTION 6.1(i), contains
an accurate list of all of the Subsidiaries (except for inactive
Subsidiaries with immaterial assets and liabilities) of the Borrower,
setting forth their respective jurisdictions of incorporation and the
percentage of their respective capital stock owned by the Borrower or
its Subsidiaries. All of the issued and outstanding shares of capital
stock of the Subsidiaries of the Borrower listed on SCHEDULE II hereto,
together with the most recent update, if any, delivered pursuant to
SECTION 6.1(i), have been duly authorized and issued and are fully paid
and non-assessable.
5.9. ERISA. The Unfunded Liabilities of all Single Employer
Plans do not in the aggregate exceed $10,000,000. Neither the Borrower
nor any other member of the Controlled Group has incurred, or is
reasonably expected to incur, any withdrawal liability to Multiemployer
Plans in excess of $10,000,000 in the aggregate. Each Plan complies in
all material respects with all applicable requirements of law and
regulations, no Reportable Event has occurred with respect to any Plan,
none of the Borrower or any other member of the Controlled Group has
withdrawn from any Plan or initiated steps to do so, and no steps have
been taken to reorganize or terminate any Plan.
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5.10. ACCURACY OF INFORMATION. No written information,
exhibit or report prepared and furnished by the Borrower or any
Subsidiary to the Agent or to any Lender in connection with the
negotiation of, or compliance with, the Loan Documents, taken as a
whole, contained any material misstatement of fact or omitted to state
a material fact or any fact necessary to make the statements contained
therein not misleading.
5.11. REGULATION U. The Borrower and its Subsidiaries are in
compliance with Regulation U.
5.12. MATERIAL AGREEMENTS. Neither the Borrower nor any of its
Subsidiaries is in default in the performance, observance or
fulfillment of any of the obligations, covenants or conditions
contained in any agreement to which it is a party, which default could
have a Material Adverse Effect.
5.13. COMPLIANCE WITH LAWS. The Borrower and its Subsidiaries
have complied in all material respects with all applicable statutes,
rules, regulations, orders and restrictions of any Governmental
Authority having jurisdiction over the conduct of their respective
businesses or the ownership of their respective Property except for
such non-compliance as could not reasonably be expected to have a
Material Adverse Effect. Neither the Borrower nor any of its
Subsidiaries has received any notice to the effect that, or is
otherwise aware that, its operations are not in material compliance
with any of the requirements of applicable environmental, health and
safety statutes and regulations of any Governmental Authority or the
subject of any investigation by any Governmental Authority evaluating
whether any remedial action is needed to respond to a release of any
toxic or hazardous waste or substance into the environment, which
non-compliance or remedial action could reasonably be expected to have
a Material Adverse Effect.
5.14. OWNERSHIP OF PROPERTIES. Except as set forth on
SCHEDULE II hereto, on the date of this Agreement, there are no Liens,
other than those permitted by SECTION 6.16, on the Property and assets
reflected as owned by the Borrower or any of its Subsidiaries in the
financial statements delivered from time to time pursuant hereto.
5.15. INVESTMENT COMPANY ACT. Neither the Borrower nor any of
its Subsidiaries is an "investment company" or a company "controlled"
by an "investment company", within the meaning of the Investment
Company Act of 1940, as amended.
5.16. PUBLIC UTILITY HOLDING COMPANY ACT. Neither the
Borrower nor any of its Subsidiaries is a "holding company" or a
"subsidiary company" of a "holding company", or an "affiliate" of a
"holding company" or of a "subsidiary company" of a "holding company",
within the meaning of the Public Utility Holding Company Act of 1935,
as amended.
5.17. YEAR 2000. The Borrower and its Subsidiaries have made
an assessment of the Year 2000 Issues and in good faith believe they
have a realistic and achievable program for remediating the Year 2000
Issues on a timely basis and a reasonable contingency plan to address
any inability of computer applications in the computer systems of their
material customers, suppliers and vendors to effectively handle data
including dates on and after January 1, 2000. Based on such assessment
and program, the Borrower and its Subsidiaries do not reasonably
anticipate that Year 2000 Issues will have a Material Adverse Effect.
ARTICLE VI
COVENANTS
6. COVENANTS. During the term of this Agreement, unless the
Required Lenders shall otherwise consent in writing:
6.1. FINANCIAL REPORTING. The Borrower will maintain, and
cause each of its Subsidiaries to maintain, a system of accounting
established and administered in accordance with generally accepted
accounting principles, and will furnish or cause to be furnished to the
Lenders:
(a) (i) within 120 days after the close of each of
the Borrower's fiscal years, an unqualified (except for
qualifications relating to changes in accounting principles or
practices reflecting changes in GAAP and required or approved
by
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the Borrower's independent chartered accountants or
independent public accountants) audit report certified by
independent public accountants acceptable to the Lenders,
prepared in accordance with Agreement Accounting Principles on
a consolidated basis for itself and its Subsidiaries,
including balance sheets as of the end of such period, related
profit and loss and reconciliation of surplus statements, and
a statement of cash flows, accompanied by a letter which
conforms to professional pronouncements promulgated by the
American Institute of Certified Public Accountants from the
firm of said accountants to the effect that in the course of,
and based solely upon their audit of such financial
statements, nothing has come to their attention to cause them
to believe that there existed on the date of such statements
any Default or Unmatured Default under SECTIONS 6.17 or 6.18,
or, if in the opinion of such accountants, any Default or
Unmatured Default exists, the statement shall state its nature
and length of time it has existed; and (ii) within 180 days
after the close of each of the Borrower's fiscal years, the
management letter, if any, prepared by the applicable
accountants in connection with the financial statements for
such fiscal year delivered pursuant to the foregoing clause
(i);
(b) within 60 days after the close of the first three
quarterly periods of each of the Borrower's fiscal years, for
the Borrower and its Subsidiaries, consolidated unaudited
balance sheets as at the close of each such period and
consolidated profit and loss and reconciliation of surplus
statements and a statement of cash flows for the period from
the beginning of such fiscal year to the end of such quarter,
all certified by the Chief Financial Officer;
(c) together with the financial statements required
pursuant to the foregoing clauses (a) and (b), a compliance
certificate in substantially the form of EXHIBIT C hereto
signed by the Chief Financial Officer showing the calculations
necessary to determine compliance with this Agreement
(including, without limitation the financial covenants,
compliance with SECTION 6.20, and compliance with the various
other covenants which contain financial tests or baskets) and
stating that no Default or Unmatured Default exists, or if any
Default or Unmatured Default exists, stating the nature and
status thereof and any and all actions taken with respect
thereto;
(d) within 270 days after the close of each fiscal
year, a statement of the Unfunded Liabilities of each Single
Employer Plan, certified as correct by an actuary enrolled
under ERISA;
(e) as soon as possible and in any event within ten
days after the Borrower knows that any Reportable Event has
occurred with respect to any Plan, the occurrence of which may
reasonably be expected to give rise to a Material Adverse
Effect, a statement, signed by the Chief Financial Officer,
describing said Reportable Event and the action which the
Borrower proposes to take with respect thereto;
(f) as soon as possible and in any event within 30
days after receipt by the Borrower or any of its Subsidiaries,
a copy of (i) any notice or claim to the effect that the
Borrower or any of its Subsidiaries is or may reasonably be
expected to be liable for $10,000,000 or more of potential
liability (when aggregated with other similar potential
liability) to any Person as a result of the release by the
Borrower, any of its Subsidiaries, or any other Person of any
toxic or hazardous waste or substance into the environment,
and (ii) any notice alleging any violation of any federal,
state or local environmental, health or safety law or
regulation by the Borrower or any of its Subsidiaries, which
violation could reasonably be expected to give rise to a
Material Adverse Effect;
(g) promptly upon the furnishing thereof to the
shareholders of the Borrower, copies of all financial
statements, reports and proxy statements so furnished;
(h) promptly upon their becoming available, one copy
of each financial statement, report, notice or proxy statement
sent by the Borrower to stockholders generally and of each
regular report and any registration statement or prospectus,
filed by the Borrower with the Securities and Exchange
Commission or any other
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United States federal or state securities exchange, securities
trading system or with any United States national stock
exchange and one copy of each periodic report filed by the
Borrower with any other similar regulatory authority, in all
cases without duplication; PROVIDED, HOWEVER, that the
Borrower shall not be obligated to provide to the Agent and
the Lenders routine reports which are required to be provided
to any of the above-listed entities concerning the management
of employee benefit plants, including, without limitation,
stock purchases or the exercise of stock options made under
any such employee benefit plan;
(i) together with the financial statements delivered
pursuant to SECTION 6.1(a), a current list of all of the
Subsidiaries of the Borrower, setting forth their respective
jurisdictions of incorporation and the percentage of their
respective capital stock owned by the Borrower or its
Subsidiaries; and
(j) promptly, such other information (including
non-financial information) as the Agent or any Lender may from
time to time reasonably request.
6.2. USE OF PROCEEDS. The Borrower will, and will cause each
of its Subsidiaries to, use the proceeds of the Advances, to make
Permitted Acquisitions or for general corporate purposes. The Borrower
will not, nor will it permit any of its Subsidiaries to, use any of the
proceeds of the Advances to purchase or carry any "margin stock" (as
defined in Regulation U), except for purposes of making a Permitted
Acquisition to the extent permitted by Regulation U. The Borrower will
not, nor will it permit any Subsidiary, to use proceeds of the Advances
other than as contemplated in this SECTION 6.2.
6.3. NOTICE OF DEFAULT. The Borrower will, and will cause
each of its Subsidiaries to, give notice in writing to the Lenders of
the occurrence (a) of any Default or Unmatured Default and (b) of any
other development, financial or otherwise, which could reasonably be
expected to have a Material Adverse Effect, which notice, in either
case, shall be given promptly and in any event within five Business
Days after the Borrower or relevant Subsidiary becomes aware of the
Default, Unmatured Default or other development and shall state the
nature and status thereof and any and all actions taken with respect
thereto.
6.4. CONDUCT OF BUSINESS. The Borrower will, and will cause
each of its Subsidiaries to, carry on and conduct its business in
substantially the same manner and in substantially the same fields of
enterprise as it is presently conducted and to do all things necessary
to remain duly incorporated, validly existing and in good standing as a
domestic corporation in its jurisdiction of incorporation and maintain
all requisite authority to conduct its business in each jurisdiction in
which its business is conducted except where the failure to maintain
such authority could not reasonably be expected to have a Material
Adverse Effect.
6.5. TAXES. The Borrower will, and will cause each of its
Subsidiaries to, pay when due all taxes, assessments and governmental
charges and levies upon it or its income, profits or Property, except
those which are being contested in good faith by appropriate
proceedings and with respect to which adequate reserves or other
appropriate provisions are being maintained in accordance with
Agreement Accounting Principles.
6.6. INSURANCE. The Borrower will, and will cause each of its
Subsidiaries to, maintain with financially sound and reputable
insurance companies insurance on all their Property in such amounts and
covering such risks as is consistent with sound business practice and
customary for companies similar in size and nature, and the Borrower
will furnish to any Lender upon request full information as to the
insurance carried.
6.7. COMPLIANCE WITH LAWS. The Borrower will, and will cause
each of its Subsidiaries to, comply in all material respects with all
laws (including, without limitation, all environmental laws), rules,
regulations, orders, writs, judgments, injunctions, decrees or awards
to which it may be subject.
6.8. MAINTENANCE OF PROPERTIES. The Borrower will, and will
cause each of its Subsidiaries to, do all things necessary to maintain,
preserve, protect and keep its Property in good repair, working order
and condition, ordinary wear and tear excepted,
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and make all necessary and proper repairs, renewals and replacements so
that its business carried on in connection therewith may be properly
conducted at all times.
6.9. INSPECTION. The Borrower will, and will cause each of
its Subsidiaries to, permit the Agent and any or each Lender, by its
respective representatives and agents, to inspect any of the Property,
corporate books and financial records of the Borrower and each of its
Subsidiaries, to examine and make copies of the books of accounts and
other financial records of the Borrower and each of its Subsidiaries,
and to discuss the affairs, finances and accounts of the Borrower and
each of its Subsidiaries with, and to be advised as to the same by,
their respective officers at such reasonable times and intervals during
normal business hours, upon oral or written request of the Agent or any
Lender at least three Business Days in advance so long as no Default or
Unmatured Default shall have occurred and is continuing, or, if a
Default or Unmatured Default has occurred and is continuing, upon the
Agent's request. Such inspection rights are subject to reasonable
limitations imposed by the Borrower and its Subsidiaries with respect
to safety and shall not extend to trade secrets of the Borrower or its
Subsidiaries or to information covered by attorney-client or other
privilege.
6.10. MERGER. The Borrower will not, nor will it permit any
of its Subsidiaries to, merge or consolidate with any other Person, or
permit any other Person to consolidate with it, except that:
(a) any Subsidiary may consolidate with or merge with
or into (i) the Borrower or any Wholly-Owned Subsidiary (if
the Borrower or such Wholly-Owned Subsidiary shall be the
continuing or surviving corporation) or (ii) any other
corporation (if such Subsidiary shall be the continuing or
surviving corporation); and
(b) the Borrower may merge with or into any other
corporation if the Borrower shall be the continuing or
surviving corporation;
PROVIDED, that as of the date of such merger or consolidation,
no Default or Unmatured Default shall have occurred and be
continuing or would result from such merger or consolidation
or from the incurrence of any Indebtedness in connection with
such merger or consolidation.
6.11. SALE OF ASSETS. The Borrower will not, nor will it
permit any of its Subsidiaries to, lease, sell or otherwise dispose of
its Property to any other Person except for (a) sales of Property in
the ordinary course of business, (b) leases, sales or other
dispositions of its Property to the Borrower or a Subsidiary of the
Borrower, and (c) other leases, sales or other dispositions of its
Property subject to the requirement that at least 90% of the aggregate
net proceeds of each such lease, sale or other disposition of Property
in each fiscal year are reinvested in the business of the Borrower and
the Subsidiaries as conducted in accordance with the requirements of
SECTION 6.4.
6.12. PREPAYMENTS. The Borrower will not, nor will it permit
or any of its Subsidiaries to, either directly or indirectly,
voluntarily redeem, retire or otherwise pay prior to its scheduled
maturity, or accelerate the maturity of, Indebtedness of the Borrower
or any of its Subsidiaries (other than Indebtedness arising hereunder
or the conversion of Indebtedness of the Borrower or any of its
Subsidiaries to equity of the Borrower or any of its Subsidiaries) in
an amount in excess of $20,000,000 in the aggregate; PROVIDED, HOWEVER,
that this SECTION 6.12 shall not prohibit any payment or prepayment
under the Existing Credit Agreement.
6.13. AFFILIATES. The Borrower will not, nor will it permit
any of its Subsidiaries to, enter into any transaction (including,
without limitation, the purchase or sale of any Property or service)
with, or make any payment or transfer to, any Affiliate except in the
ordinary course of business and pursuant to the reasonable requirements
of the Borrower's or such Subsidiary's business and upon fair and
reasonable terms no less favorable to the Borrower or such Subsidiary
than the Borrower or such Subsidiary would obtain in a comparable
arm's-length transaction; PROVIDED, HOWEVER, that nothing contained in
this SECTION 6.13 shall prohibit transactions between the Borrower and
any Guarantor, or between or among Guarantors, in each case in the
ordinary course of business.
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6.14. INVESTMENTS. The Borrower will not, nor will it permit
any of its Subsidiaries to, make or suffer to exist any Investments, or
commitments therefor, except:
(a) Investments existing on the date of this
Agreement and described on SCHEDULE II hereto;
(b) Investments by the Borrower or any of its
Subsidiaries in and to any Subsidiary, including any
Investment in a corporation which, after giving effect to such
Investment, will become a Subsidiary; PROVIDED that if such
Investment is an Acquisition, it shall be a Permitted
Acquisition;
(c) Investments in property or assets to be used in
the ordinary course of business of the Borrower and any of its
Subsidiaries conducted as described in SECTION 6.4;
(d) Investments in commercial paper maturing in 270
days or less from the date of issuance which, at the time of
acquisition by the Borrower or any Subsidiary, is accorded a
rating of A2 or better by Standard & Poor's or P2 or better by
Xxxxx'x or any other United States nationally recognized
credit rating agency of similar standing;
(e) Investments in direct obligations of the United
States, any agency or instrumentality of the United States,
the payment or guarantee of which constitutes a full faith and
credit obligation of the United States, maturing in three
years or less from the date of acquisition thereof;
(f) Investments in direct obligations of any State or
municipality within the United States maturing in three years
or less from the date of acquisition thereof which, in any
such case, at the time of acquisition by the Borrower or any
Subsidiary, is accorded one of the two highest long-term or
short-term, as applicable, debt ratings by Standard & Poor's
or Xxxxx'x or any other United States nationally recognized
credit rating agency of similar standing;
(g) Investments in certificates of deposit or
bankers' acceptances issued by a bank or trust company having
capital, surplus and undivided profits aggregating at least
$100,000,000 and having a short-term unsecured debt rating of
at least "P-1" by Xxxxx'x or "A-1" by Standard & Poor's;
(h) Investments made in connection with Permitted
Acquisitions;
(i) Investments made as of the Effective Date in
connection with Joint Ventures described on SCHEDULE II
hereto;
(j) any loan or other advance by the Borrower or any
of its Subsidiaries, as the case may be, to any of its or
their officers or employees, as the case may be, in the normal
course of business, so long as the aggregate of all such loans
or advances by the Borrower and its Subsidiaries does not
exceed $5,000,000 at any time outstanding, plus reasonable,
reimbursable business and travel expenses;
(k) any fund or other pooling arrangement which
exclusively purchases and holds Investments described in this
SECTION 6.14;
(l) any Oasis Account or Pegasus Fund Account
maintained by the Agent on behalf of the Borrower as overnight
sweep services for cash management purposes; and
(m) other Investments, together with Contingent
Obligations permitted pursuant to SECTION 6.15(g) not to
exceed in the aggregate more than 5% of Consolidated Net
Worth.
6.15. CONTINGENT OBLIGATIONS. The Borrower will not, nor will
it permit any of its Subsidiaries to, make or suffer to exist any
Contingent Obligation, except (a) by endorsement of instruments for
deposit or collection in the ordinary course of business, (b) pursuant
to the Guaranties, (c) Contingent Obligations of the Borrower and any
of its Subsidiaries described on SCHEDULE II hereto, (d) Contingent
Obligations incurred by the
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Borrower in respect of the obligations (other than obligations
constituting Indebtedness of the types described in CLAUSES (a), (d),
(e) and, to the extent issued in support of Indebtedness of the types
described in such CLAUSES (a), (d) and (e), CLAUSE (h) of the
definition of "Indebtedness") of any Guarantor, (e) Contingent
Obligations incurred by any Guarantor in respect of obligations (other
than obligations constituting Indebtedness of the types described in
CLAUSES (a), (d), (e) and, to the extent issued in support of
Indebtedness of the types described in such CLAUSES (a), (d) and (e),
CLAUSE (h) of the definition of "Indebtedness") of any of its
Subsidiaries that is a Guarantor, (f) Contingent Obligations incurred
by any Subsidiary in respect of the obligations of any of its
Subsidiaries and existing at the time such Subsidiary is acquired,
directly or indirectly, by the Borrower and not incurred in
anticipation of such Acquisition, and Contingent Obligations incurred
by the Borrower in respect of any such obligations, and (g) other
Contingent Obligations, together with Investments permitted pursuant to
SECTION 6.14(m), not to exceed in the aggregate more than 5% of
Consolidated Net Worth; PROVIDED, HOWEVER, that nothing contained in
this SECTION 6.15 shall prohibit any Subsidiary of the Borrower that is
a Guarantor from also guaranteeing the repayment of Indebtedness under
the Existing Credit Agreement.
6.16. LIENS. The Borrower will not, nor will it permit any of
its Subsidiaries to, create, incur, or suffer to exist any Lien in, of
or on the Property of the Borrower or such Subsidiary, as applicable,
except:
(a) Liens for taxes, assessments or governmental
charges or levies on its Property if the same shall not at the
time be delinquent or thereafter can be paid without penalty,
or are being contested in good faith and by appropriate
proceedings and for which adequate reserves in accordance with
GAAP shall have been set aside on its books;
(b) Liens imposed by law, such as carriers',
warehousemen's and mechanics' liens and other similar liens
arising in the ordinary course of business which secure
payment of obligations not more than 60 days past due or which
are being contested in good faith by appropriate proceedings
and for which adequate reserves shall have been set aside on
its books;
(c) Liens arising out of pledges or deposits under
worker's compensation laws, unemployment insurance, old age
pensions, or other social security or retirement benefits, or
similar legislation;
(d) utility easements, building restrictions and such
other encumbrances or charges against real property as are of
a nature generally existing with respect to properties of a
similar character and which do not in any material way affect
the same or interfere with the use thereof in the business of
the Borrower or any Subsidiary of the Borrower;
(e) Liens existing on the date of this Agreement and
described on SCHEDULE II hereto;
(f) Liens created or incurred after December 31,
1997, given to secure the Indebtedness incurred or assumed in
connection with the acquisition of property or assets useful
and intended to be used in carrying on the business of the
Borrower or any Subsidiary of the Borrower, including Liens
existing on such property or assets at the time of acquisition
thereof or at the time of acquisition by the Borrower or such
Subsidiary, as applicable, of an interest in any business
entity then owning such property or assets, whether or not
such existing Liens were given to secure the consideration for
the property or assets to which they attach, subject to the
requirement that the Lien shall attach solely to the assets
acquired or purchased;
(g) any extension, renewal or replacement of any Lien
permitted by the preceding clauses (e) and (f) in respect of
the same property or assets theretofore subject to such Lien
in connection with the extension, renewal or refunding of the
Indebtedness secured thereby; provided that (i) such Lien
shall attach solely to the same property or assets, and (ii)
such extension, renewal or refunding of such Indebtedness
shall be without increase in the principal remaining unpaid as
of the date of such extension, renewal or refunding; and
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(h)(i) Liens incurred in the ordinary course of
business to secure the performance of statutory obligations
arising in connection with progress payments or advance
payments due under contracts with the United States, any state
or any foreign government or agency thereof entered into in
the ordinary course of business and (ii) Liens incurred in the
ordinary course of business to secure the performance of
statutory obligations, bids, leases, fee and expense
arrangements with trustees and fiscal agents and other similar
obligations, PROVIDED that full provision for the payment of
all such obligations set forth in clauses (i) and (ii) has
been made on the books of the Borrower or such Subsidiary as
may be required by Agreement Accounting Principles.
6.17. MINIMUM CONSOLIDATED NET WORTH. The Borrower will
maintain at all times a Consolidated Net Worth of at least the sum of:
(a) 80% of Consolidated Net Worth as of September 30,
1996, plus
(b) the sum of 50% of Consolidated Net Income for
each fiscal quarter ended after October 1, 1996 (but only to
the extent that, in the case of any such fiscal quarter,
Consolidated Net Income for such fiscal quarter is at least
$1.00), plus
(c) 100% of the aggregate amount of the net cash
proceeds received by the Borrower or any of its Subsidiaries
from the issuance or sale on and after October 1, 1996 of
capital stock of the Borrower or any of its Subsidiaries, plus
(d) 100% of the aggregate principal amount of
Convertible Notes which have been converted after October 1,
1996 into capital stock of the Borrower.
6.18. FIXED CHARGES COVERAGE. The Borrower will at all times
maintain a Fixed Charge Coverage Ratio for the most recently ended
period of four consecutive fiscal quarters of at least 1.35 to 1.00.
6.19. ACQUISITIONS. The Borrower will not, nor will it permit
any of its Subsidiaries to, make any Acquisition other than a Permitted
Acquisition.
6.20. SUPPLEMENTAL GUARANTORS. The Borrower will at all times
maintain Guaranties from the Initial Guarantors and Supplemental
Guarantors such that as of the end of each fiscal quarter (a) the
aggregate assets of the Borrower and the Guarantors are not less than
90% of the consolidated assets of the Borrower and its Subsidiaries and
(b) the aggregate gross revenues of the Borrower and the Guarantors
(calculated as of the last day of the Borrower's and the Guarantors'
most recently ended fiscal quarter for the four consecutive fiscal
quarters ending with such fiscal quarter) do not constitute less than
90% of the aggregate gross revenues of the Borrower and its
Subsidiaries (calculated as of the last day of the Borrower's and its
Subsidiaries' most recently ended fiscal quarter for the four
consecutive fiscal quarters ending with such fiscal quarter); PROVIDED,
that in the event that any Subsidiary of the Borrower (other than a
Guarantor) at any time has assets, determined in accordance with GAAP,
with a book value equal to or greater than an amount equal to two and
one half percent (2 1/2%) of the consolidated assets of the Borrower
and its Subsidiaries determined as of the last day of the immediately
preceding fiscal quarter, such Subsidiary shall promptly execute and
deliver a Guaranty as a Supplemental Guarantor pursuant to this SECTION
6.20. In maintaining such Guaranties, the guaranties executed by any
Supplemental Guarantors shall be executed and delivered to the Agent
for the benefit of each of the Lenders and shall be substantially
identical to the guaranties previously executed by each of the Initial
Guarantors, together with such supporting documentation, including
corporate resolutions and opinions of counsel with respect to such
additional guaranty, as may be reasonably required by the Agent and the
Required Lenders.
6.21. YEAR 2000. The Borrower shall take and will ensure its
Subsidiaries take all actions reasonably necessary to assure that the
Year 2000 Issues will not have a Material Adverse Effect and to
implement their contingency plan to address any inability of computer
applications in the computer systems of their material customers,
suppliers and vendors to effectively handle data including dates on and
after January 1, 2000. The Borrower, on behalf of itself and its
Subsidiaries, will promptly notify the Agent in writing of any
reasonably anticipated Material Adverse Effect as a result of Year 2000
Issues or as
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a result of any such inability with respect to their material
customers, suppliers and vendors.
ARTICLE VII
DEFAULTS
7. DEFAULTS. The occurrence of any one or more of the
following events shall constitute a Default:
7.1. Any representation or warranty made or deemed made by or
on behalf of the Borrower or any of its Subsidiaries to the Lenders or
the Agent under or in connection with this Agreement, any Loan, any
Guaranty or any certificate or information delivered in connection with
this Agreement or any other Loan Document shall be materially false on
the date as of which made or deemed made.
7.2. Nonpayment of principal of any Loan or Note when due, or
nonpayment of interest upon any Loan or of any commitment fee or other
obligations under any of the Loan Documents within five Business Days
after the same becomes due.
7.3. The breach by the Borrower or any of its Subsidiaries of
any of the terms or provisions of SECTION 6.1, 6.2, 6.3(a), 6.10, 6.11,
6.12, 6.14, 6.15, 6.16, 6.17, 6.18, 6.19, or 6.20.
7.4. The breach by the Borrower or any of its Subsidiaries
(other than a breach which constitutes a Default under SECTION 7.1, 7.2
or 7.3) of any of the terms or provisions of this Agreement which is
not remedied within 30 days after written notice from the Agent or any
Lender.
7.5. Failure of the Borrower or any of its Subsidiaries to pay
any Indebtedness equal to or exceeding $25,000,000 in the aggregate
when due; or the default by the Borrower or any of its Subsidiaries in
the performance of any term, provision or condition contained in any
agreement under which any Indebtedness equal to or exceeding
$25,000,000 in the aggregate was created or is governed, or any other
event shall occur or condition exist, the effect of which is to cause,
or to permit the holder or holders of such Indebtedness to cause, such
Indebtedness to become due prior to its stated maturity; or any
Indebtedness of the Borrower or any of its Subsidiaries equal to or
exceeding $25,000,000 in the aggregate shall be declared to be due and
payable or required to be prepaid (other than by a regularly scheduled
payment) prior to the stated maturity thereof; or the Borrower or any
of its Subsidiaries shall not pay, or shall admit in writing its
inability to pay, its debts generally as they become due.
7.6. The Borrower or any of its Subsidiaries shall (a) have an
order for relief entered with respect to it under the United States
bankruptcy laws as now or hereafter in effect or cause or allow any
similar event to occur under any bankruptcy or similar law or laws for
the relief of debtors as now or hereafter in effect in any other
jurisdiction, (b) make an assignment for the benefit of creditors, (c)
apply for, seek, consent to, or acquiesce in, the appointment of a
receiver, custodian, trustee, examiner, liquidator, monitor or similar
official for it or any Substantial Portion of its Property, (d)
institute any proceeding seeking an order for relief under the United
States bankruptcy laws as now or hereafter in effect or seeking to
adjudicate it a bankrupt or insolvent, or seeking dissolution, winding
up, liquidation, reorganization, arrangement, adjustment or composition
of it or any of its property or its debts under any law relating to
bankruptcy, insolvency or reorganization or compromise of debt or
relief of debtors as now or hereafter in effect in any jurisdiction, or
any organization, arrangement or compromise of debt under the laws of
its jurisdiction of incorporation or fail to promptly file an answer or
other pleading denying the material allegations of any such proceeding
filed against it, (e) take any corporate action to authorize or effect
any of the foregoing actions set forth in this SECTION 7.6 or (f) fail
to contest in good faith, or consent to or acquiesce in, any
appointment or proceeding described in SECTION 7.7.
7.7. Without the application, approval or consent of the
Borrower or any of its Subsidiaries, a receiver, custodian, trustee,
examiner, liquidator or similar official shall be appointed (either
privately or by a court) for the Borrower or any of its Subsidiaries or
any Substantial Portion of its Property, or a proceeding described in
SECTION 7.6(d) shall be instituted against the Borrower or any of its
Subsidiaries and such appointment
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continues undischarged or such proceeding continues undismissed or
unstayed for a period of 60 consecutive days.
7.8. Any court, government or governmental agency shall
condemn, seize or otherwise appropriate, or take custody or control of
(each a "CONDEMNATION"), all or any portion of the Property of the
Borrower and its Subsidiaries which, when taken together with all other
Property of the Borrower and its Subsidiaries so condemned, seized,
appropriated, or taken custody or control of, during the twelve-month
period ending with the month in which any such Condemnation occurs,
constitutes a Substantial Portion.
7.9. The Borrower or any of its Subsidiaries shall fail within
60 days to pay, bond or otherwise discharge any judgment or order for
the payment of money in excess of $25,000,000, which is not stayed on
appeal or otherwise being appropriately contested in good faith.
7.10. The Unfunded Liabilities of all Single Employer Plans
shall exceed in the aggregate $10,000,000 or any Reportable Event, the
occurrence which may reasonably be expected to give rise to Material
Adverse Effect, shall occur in connection with any Plan.
7.11. The Borrower or any other member of the Controlled Group
shall have been notified by the sponsor of a Multiemployer Plan that it
has incurred withdrawal liability to such Multiemployer Plan in an
amount which, when aggregated with all other amounts required to be
paid to Multiemployer Plans by the Borrower or any other member of the
Controlled Group as withdrawal liability (determined as of the date of
such notification), exceeds $10,000,000 or requires payments exceeding
$5,000,000 per annum.
7.12. The Borrower or any other member of the Controlled Group
shall have been notified by the sponsor of a Multiemployer Plan that
such Multiemployer Plan is in reorganization or is being terminated,
within the meaning of Title IV of ERISA, if as a result of such
reorganization or termination the aggregate annual contributions of the
Borrower and the other members of the Controlled Group (taken as a
whole) to all Multiemployer Plans which are then in reorganization or
being terminated have been or will be increased over the amounts
contributed to such Multiemployer Plans for the respective plan years
of each such Multiemployer Plan immediately preceding the plan year in
which the reorganization or termination occurs by an amount exceeding
$10,000,000.
7.13. The Borrower or any of its Subsidiaries shall be the
subject of any proceeding or investigation pertaining to the release by
the Borrower or any such Subsidiary, or any other Person of any toxic
or hazardous waste or substance into the environment, or any violation
of any environmental, health or safety law or regulation of any
Governmental Authority, which, in either case, could reasonably be
expected to have a Material Adverse Effect.
7.14. Any Guaranty shall fail to remain in full force or
effect or any action shall be taken to discontinue or to assert the
invalidity or unenforceability of any Guaranty, or any Guarantor shall
fail to perform its obligations under or otherwise comply with any of
the terms or provisions of any Guaranty to which it is a party, or any
Guarantor shall deny that it has any further liability under any
Guaranty to which it is a party, or shall give notice to such effect.
7.15. Any Change in Control shall occur.
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1. ACCELERATION. If any Default described in SECTION 7.6 or
7.7 occurs, the obligations of the Lenders to make Loans hereunder shall
automatically terminate and the Obligations shall immediately become due and
payable without any election or action on the part of the Agent or any Lender,
and without presentment, demand, protest or notice of any kind, all of which the
Borrower hereby expressly waives. If any other Default occurs, the Required
Lenders may (a) terminate or suspend the obligations of the Lenders to make
Loans or (b) declare the Obligations to be due and payable, whereupon the
Obligations shall become immediately due and payable, without presentment,
demand, protest or notice of any kind, all of which the
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Borrower hereby expressly waives, or (c) take the action described in both the
preceding clause (a) and the preceding clause (b).
If, within 30 days after acceleration of the maturity of the
Obligations or termination of the obligations of the Lenders to make Loans
hereunder as a result of any Default (other than any Default as described in
SECTION 7.6 or 7.7) and before any judgment or decree for the payment of the
Obligations due shall have been obtained or entered, the Required Lenders (in
their sole discretion) shall so direct, the Agent shall, by notice to the
Borrower, rescind and annul such acceleration and/or termination.
8.2. AMENDMENTS. Subject to the provisions of this ARTICLE
VIII, the Required Lenders (or the Agent with the consent in writing of the
Required Lenders) and the Borrower may enter into agreements supplemental hereto
for the purpose of adding or modifying any provisions to the Loan Documents or
changing in any manner the rights of the Lenders and the Borrower hereunder or
waiving any Default hereunder; PROVIDED, HOWEVER, that no such supplemental
agreement shall, without the consent of each Lender affected thereby:
(a) extend the maturity of any Loan or Note or forgive all or
any portion of the principal amount thereof, any interest thereon or
any fees or other amounts payable hereunder, or reduce the rate or
extend the time of payment of interest, fees or other amounts payable
hereunder;
(b) reduce the percentage specified in the definition of
Required Lenders;
(c) reduce the amount or extend the payment date for the
mandatory payments required under SECTION 2.2, or increase the amount
of the Commitment of any Lender hereunder, or permit the Borrower to
assign its rights or obligations under this Agreement;
(d) amend this SECTION 8.2; or
(e) release any Guarantor.
No amendment of any provision of this Agreement relating in any way to the Agent
shall be effective without the written consent of the Agent. The Agent may waive
payment of the fee required under SECTION 12.3.2 without obtaining the consent
of any other party to this Agreement.
8.3. PRESERVATION OF RIGHTS. No delay or omission of the
Lenders or any of them or the Agent to exercise any right under the Loan
Documents shall impair such right or be construed to be a waiver of any Default
or an acquiescence therein, and the making of a Loan notwithstanding the
existence of a Default or the inability of the Borrower to satisfy the
conditions precedent to such Loan shall not constitute any waiver or
acquiescence. Any single or partial exercise of any such right shall not
preclude any other or further exercise thereof or the exercise of any other
right, and no waiver, amendment or other variation of the terms, conditions or
provisions of the Loan Documents whatsoever shall be valid unless in writing
signed by (or with the consent of) the Lenders required pursuant to SECTION 8.2,
and then only to the extent specifically set forth in such writing. All remedies
contained in the Loan Documents or afforded by law shall be cumulative and all
shall be available to the Agent and the Lenders until the Obligations have been
paid in full.
ARTICLE IX
GENERAL PROVISIONS
9.1. SURVIVAL OF REPRESENTATIONS. All representations and
warranties of the Borrower contained in this Agreement shall survive delivery of
the Notes and the making of the Loans herein contemplated.
9.2. GOVERNMENTAL REGULATION. Anything contained in this
Agreement to the contrary notwithstanding, no Lender shall be obligated to
extend credit to the Borrower in violation of any limitation or prohibition
provided by any applicable statute or regulation.
9.3. STAMP DUTIES. The Borrower shall pay and forthwith on
demand indemnify each of the Agent and each Lender against any liability it
incurs in respect of any stamp,
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registration and similar tax which is or becomes payable in connection with the
entry into, performance or enforcement of any Loan Document.
9.4. HEADINGS. Section headings in the Loan Documents are for
convenience of reference only and shall not govern the interpretation of any of
the provisions of the Loan Documents.
9.5. ENTIRE AGREEMENT; INDEPENDENCE OF COVENANTS. The Loan
Documents and the letter agreement among the Agent, First Chicago Capital
Markets, Inc. and the Borrower dated November 2, 1998 embody the entire
agreement and understanding among the Borrower, the Agent and the Lenders and
supersede all prior agreements and understandings among the Borrower, the Agent
and the Lenders relating to the subject matter thereof. Except as otherwise
expressly provided herein, no provision of this Agreement shall be construed as
waiving, negating or otherwise qualifying any restriction, limitation or other
condition imposed by any other provision of this Agreement.
9.6. SEVERAL OBLIGATIONS; BENEFITS OF THIS AGREEMENT. The
respective obligations of the Lenders hereunder are several and not joint and no
Lender shall be the partner or agent of any other (except to the extent to which
the Agent is authorized to act as such). The failure of any Lender to perform
any of its obligations hereunder shall not relieve any other Lender from any of
its obligations hereunder. This Agreement shall not be construed so as to confer
any right or benefit upon any Person other than the parties to this Agreement
(and their Affiliates and respective directors, officers and employees with
respect to SECTION 9.7) and their respective successors and assigns.
9.7. EXPENSES; INDEMNIFICATION. The Borrower shall reimburse
the Agent for any reasonable costs, internal charges and out-of-pocket expenses
(including reasonable attorneys' fees and time charges of attorneys for the
Agent, which attorneys may be employees of the Agent) paid or incurred by the
Agent in connection with the preparation, negotiation, execution, delivery,
review, amendment, modification, and administration of the Loan Documents. The
Borrower also agrees to reimburse the Agent and the Lenders for any reasonable
costs, internal charges and out-of-pocket expenses (including reasonable
attorneys' fees and time charges of attorneys for the Agent and the Lenders,
which attorneys may be employees of the Agent or the Lenders) paid or incurred
by the Agent or any Lender in connection with the collection and enforcement of
the Loan Documents. The Borrower further agrees to indemnify the Agent, each
Lender and their respective Affiliates, and such entities' respective directors,
officers and employees (each an "Indemnitee") against all losses, claims,
damages, penalties, judgments, liabilities and expenses (including, without
limitation, all reasonable expenses of litigation or preparation therefor
whether or not the Agent or any Lender is a party thereto) which any of them may
pay or incur arising out of or relating to this Agreement, the other Loan
Documents, the transactions contemplated hereby or the direct or indirect
application or proposed application of the proceeds of any Loan hereunder except
to the extent that such losses, claims, damages, penalties, judgments,
liabilities and expenses are found in a final judgment by a court of competent
jurisdiction to have arisen solely from the Gross Negligence or willful
misconduct of such Indemnitee. The obligations of the Borrower under this
Section shall survive the termination of this Agreement.
9.8. NUMBERS OF DOCUMENTS. All statements, notices, closing
documents, and requests hereunder shall be furnished to the Agent with
sufficient counterparts so that the Agent may furnish one to each of the
Lenders.
9.9. ACCOUNTING. Except as provided to the contrary herein,
all accounting terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with Agreement Accounting
Principles; PROVIDED, HOWEVER, that to the extent that any change in GAAP shall
alter the result of any financial covenant or test or any other accounting
determination to be computed or made hereunder, the Borrower agrees that such
covenant, test or other determination shall continue to be computed or made on
the basis of Agreement Accounting Principles as in effect prior to such change
in GAAP, unless the Required Lenders shall otherwise consent.
9.10. SEVERABILITY OF PROVISIONS. Any provision in any Loan
Document that is held to be inoperative, unenforceable, or invalid in any
jurisdiction shall, as to that jurisdiction, be inoperative, unenforceable, or
invalid without affecting the remaining provisions in that jurisdiction or the
operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are declared
to be severable.
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9.11. NONLIABILITY OF LENDERS. The relationship between the
Borrower, on the one hand, and the Lenders and the Agent, on the other hand,
shall be solely that of borrower and lender. Neither the Agent nor any Lender
shall have any fiduciary responsibilities to the Borrower or any of its
Subsidiaries. Neither the Agent nor any Lender undertakes any responsibility to
the Borrower or any of its Subsidiaries to review or inform the Borrower or any
of its Subsidiaries of any matter in connection with any phase of the business
or operations of the Borrower or any of its Subsidiaries.
9.12. CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE
CONTAINING A CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF
ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
9.13. CONSENT TO JURISDICTION. THE BORROWER HEREBY
IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES
FEDERAL OR ILLINOIS STATE COURT SITTING IN CHICAGO IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENTS AND THE BORROWER HEREBY
IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY
BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION
IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM.
NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE AGENT OR ANY LENDER TO BRING
PROCEEDINGS AGAINST THE BORROWER IN THE COURTS OF ANY OTHER JURISDICTION.
9.14. WAIVER OF JURY TRIAL. THE BORROWER, THE AGENT AND EACH
LENDER HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY
OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN
ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT OR THE
RELATIONSHIP ESTABLISHED THEREUNDER.
9.15. CONFIDENTIALITY. Each of the Agent and each Lender
agrees to hold any confidential information which it may receive from the
Borrower or any of its Subsidiaries pursuant to this Agreement in confidence,
except for disclosure (a) to other Lenders or their respective affiliates, (b)
to legal counsel, accountants, and other professional advisors to that Lender or
to a Transferee, (c) to regulatory officials and examiners, (d) to any Person as
requested pursuant to or as required by law, regulation, or legal process, (e)
to any Person in connection with any legal proceeding to which that Lender is a
party, and (f) permitted by SECTION 12.4; PROVIDED, HOWEVER, with respect to any
disclosure pursuant to SUBSECTIONS (d) and (e), the Agent or such Lender, as
applicable, uses its best efforts to notify the Borrower in writing immediately
upon its or their receipt of any demand for such disclosures except to the
extent such notice to the Borrower is prohibited by any law or regulatory
authority.
ARTICLE X
THE AGENT
10.1. APPOINTMENT. First Chicago is hereby appointed Agent
hereunder and under each other Loan Document, and each of the Lenders
irrevocably authorizes the Agent to act as the agent of such Lender. The Agent
agrees to act as such upon the express conditions contained in this ARTICLE X.
The Agent shall not have a fiduciary relationship in respect of the Borrower,
any Subsidiary of the Borrower or any Lender by reason of this Agreement.
10.2. POWERS. The Agent shall have and may exercise such
powers under the Loan Documents as are specifically delegated to the Agent by
the terms of each thereof, together with such powers as are reasonably
incidental thereto. The Agent shall have no implied duties to the Lenders, or
any obligation to the Lenders to take any action thereunder except any action
specifically provided by the Loan Documents to be taken by the Agent.
10.3. GENERAL IMMUNITY. Neither the Agent nor any of its
directors, officers, agents or employees shall be liable to any or all of the
Borrower, any Subsidiary of the Borrower or the Lenders for any action taken or
omitted to be taken by it or them hereunder or under any
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34
other Loan Document or in connection herewith or therewith, except to the extent
that such action or inaction is found in a final judgment by a court of
competent jurisdiction to have arisen solely from the Gross Negligence or wilful
misconduct of such Person.
10.4. NO RESPONSIBILITY FOR LOANS, RECITALS, ETC. Neither the
Agent nor any of its directors, officers, agents or employees shall be
responsible for or have any duty to ascertain, inquire into, or verify (a) any
statement, warranty or representation made in connection with any Loan Document
or any borrowing hereunder; (b) the performance or observance of any of the
covenants or agreements of any obligor under any Loan Document, including,
without limitation, any agreement by an obligor to furnish information directly
to each Lender; (c) the satisfaction of any condition specified in ARTICLE IV,
except receipt of items required to be delivered to the Agent; or (d) the
validity, effectiveness or genuineness of any Loan Document or any other
instrument or writing furnished in connection therewith. The Agent shall have no
duty to disclose to the Lenders information that is not required to be furnished
by the Borrower to the Agent at such time, but is voluntarily furnished by the
Borrower to the Agent (either in its capacity as Agent or in its individual
capacity).
10.5. ACTION ON INSTRUCTIONS OF LENDERS. The Agent shall in
all cases be fully protected in acting, or in refraining from acting, hereunder
and under any other Loan Document in accordance with written instructions signed
by the Required Lenders or, in the case of any act or failure to act calculated
to give rise to any of the events or circumstances described in clauses (a)
through (e) of SECTION 8.2, each affected Lender, and such instructions and any
action taken or failure to act pursuant thereto shall be binding on all of the
Lenders and on all holders of Notes. The Agent shall be fully justified in
failing or refusing to take any action hereunder and under any other Loan
Document unless it shall first be indemnified to its satisfaction by the Lenders
pro rata against any and all liability, cost and expense that it may incur by
reason of taking or continuing to take any such action.
10.6. EMPLOYMENT OF AGENTS AND COUNSEL. The Agent may execute
any of its duties as Agent hereunder and under any other Loan Document by or
through employees, agents, and attorneys-in-fact and shall not be answerable to
the Lenders, except as to money or securities received by it or its authorized
agents, for the default or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. The Agent shall be entitled to advice of
counsel concerning all matters pertaining to the agency hereby created and its
duties hereunder and under any other Loan Document.
10.7. RELIANCE ON DOCUMENTS; COUNSEL. The Agent shall be
entitled to rely upon any Note, notice, consent, certificate, affidavit, letter,
telegram, statement, paper or document believed by it to be genuine and correct
and to have been signed or sent by the proper person or persons, and, in respect
of legal matters, upon the opinion of counsel selected by the Agent, which
counsel may be employees of the Agent.
10.8. AGENT'S REIMBURSEMENT AND INDEMNIFICATION. The Lenders
agree to reimburse and indemnify the Agent ratably in proportion to their
respective Commitments (a) for any amounts not reimbursed by the Borrower for
which the Agent is entitled to reimbursement by the Borrower under the Loan
Documents, (b) for any amounts not reimbursed by the Borrower for any other
expenses incurred by the Agent on behalf of the Lenders, in connection with the
preparation, execution, delivery, administration and enforcement of the Loan
Documents and (c) for any amounts not reimbursed by the Borrower for any
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind and nature whatsoever which may be
imposed on, incurred by or asserted against the Agent in any way relating to or
arising out of the Loan Documents or any other document delivered in connection
therewith or the transactions contemplated thereby, or the enforcement of any of
the terms thereof or of any such other documents, provided that no Lender shall
be liable for any of the foregoing to the extent they are determined in a final
judgment of a court of competent jurisdiction to have arisen solely from the
Gross Negligence or willful misconduct of the Agent. The obligations of the
Lenders under this SECTION 10.8 shall survive payment of the Obligations and
termination of this Agreement.
10.9. RIGHTS AS A LENDER. In the event the Agent is a Lender,
the Agent shall have the same rights and powers hereunder and under any other
Loan Document as any Lender and may exercise the same as though it were not the
Agent, and the term "Lender" or "Lenders" shall, at any time when the Agent is a
Lender, unless the context otherwise indicates, include the Agent in its
individual capacity. The Agent may accept deposits from, lend money to, and
generally engage in any kind of trust, debt, equity or other transaction, in
addition to those contemplated by
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this Agreement or any other Loan Document, with the Borrower or any of its
Subsidiaries in which the Borrower or any of its Subsidiaries is not restricted
hereby from engaging with any other Person. The Agent, in its individual
capacity, is not obligated to remain a Lender; PROVIDED, HOWEVER, that in the
event that the Agent ceases to be a Lender hereunder, the Required Lenders may
remove the Agent and appoint a successor Agent, if no Default has occurred and
is continuing, with the consent of the Borrower.
10.10. LENDER CREDIT DECISION. Each Lender acknowledges that
it has, independently and without reliance upon the Agent or any other Lender
and based on the financial statements prepared by the Borrower and such other
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement and the other Loan Documents.
Each Lender also acknowledges that it will, independently and without reliance
upon the Agent or any other Lender and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this Agreement and the other Loan
Documents.
10.11. SUCCESSOR AGENT. The Agent may resign at any time by
giving written notice thereof to the Lenders and the Borrower, such resignation
to be effective upon the appointment of a successor Agent or, if no successor
Agent has been appointed, 45 days after the resigning Agent gives notice of its
intention to resign. Upon any such resignation the Required Lenders shall have
the right to appoint, on behalf of the Borrower and the Lenders, a successor
Agent. If no successor Agent shall have been so appointed by the Required
Lenders within 30 days after the resigning Agent's giving notice of its
intention to resign, then the resigning Agent may appoint, on behalf of the
Borrower and the Lenders, a successor Agent. If the Agent has resigned and no
successor Agent has been appointed, the Lenders may perform all the duties of
the Agent hereunder and the Borrower shall make all payments in respect of the
Obligations to the applicable Lender and for all other purposes shall deal
directly with the Lenders. No successor Agent shall be deemed to be appointed
hereunder until such successor Agent has accepted the appointment and, if no
Default or Unmatured Default has occurred and is continuing, the Borrower has
consented to such appointment. Any such successor Agent shall be a commercial
bank having capital and retained earnings of at least $500,000,000. Upon the
acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the resigning Agent. Upon the
effectiveness of the resignation of the Agent, the resigning Agent shall be
discharged from its duties and obligations hereunder and under the Loan
Documents. After the effectiveness of the resignation of an Agent, the
provisions of this ARTICLE X shall continue in effect for the benefit of such
Agent in respect of any actions taken or omitted to be taken by it while it was
acting as the Agent hereunder and under the other Loan Documents.
10.12. AGENT'S FEE. The Borrower agrees to pay to the Agent,
for its own account, the fees agreed to by the Borrower and the Agent by
separate letter agreement, or as otherwise agreed from time to time.
10.13. CO-AGENTS, DOCUMENTATION AGENTS, ETC. Neither any of
the Lenders identified in this Agreement as a "Co-Agent" nor the
Co-Documentation Agents shall have any right, power, obligation, liability,
responsibility or duty under this Agreement other than those applicable to all
Lenders as such. Without limiting the foregoing, none of such Lenders shall have
or be deemed to have a fiduciary relationship with any Lender. Each Lender
hereby makes the same acknowledgments with respect to such Lenders as it makes
with respect to the Agent in SECTION 10.10.
ARTICLE XI
SETOFF; RATABLE PAYMENTS
11.1. SETOFF. In addition to, and without limitation of, any
rights of the Lenders under applicable law, if the Borrower becomes insolvent,
however evidenced, or any Default or Unmatured Default occurs, any and all
deposits (including all account balances, whether provisional or final and
whether or not collected or available) and any other Indebtedness at any time
held or owing by any Lender to or for the credit or account of the Borrower may
be offset and applied toward the payment of the Obligations owing to such
Lender, whether or not the Obligations, or any part hereof, shall then be due.
11.2. RATABLE PAYMENTS. If any Lender, whether by setoff or
otherwise (other than pursuant to SECTION 3.5 and ARTICLE XII), has payment made
to it upon its Loans (other than payments received pursuant to SECTION 3.1, 3.2
or 3.4) in a greater proportion than that received
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36
by any other Lender, such Lender agrees, promptly upon demand, to purchase a
portion of the Loans held by the other Lenders so that after such purchase each
Lender will hold its ratable proportion of Loans. If any Lender, whether in
connection with setoff or amounts which might be subject to setoff or otherwise,
receives collateral or other protection for its Obligations or such amounts
which may be subject to setoff, such Lender agrees, promptly upon demand, to
take such action necessary such that all Lenders share in the benefits of such
collateral ratably in proportion to their Loans. In case any such payment is
disturbed by legal process, or otherwise, appropriate further adjustments shall
be made.
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1. SUCCESSORS AND ASSIGNS. The terms and provisions of the
Loan Documents shall be binding upon and inure to the benefit of the Borrower,
the Agent and the Lenders and their respective successors and assigns, except
that (a) the Borrower shall not have the right to assign its rights or
obligations under the Loan Documents without the consent of all of the Lenders
and (b) any assignment by any Lender must be made in compliance with SECTION
12.3. Notwithstanding clause (b) of the preceding sentence, any Lender may at
any time, without the consent of the Borrower or the Agent, assign all or any
portion of its rights under this Agreement and its Notes to a Federal Reserve
Bank; provided, HOWEVER, that no such assignment shall release the transferor
Lender from its obligations hereunder. The Agent may treat the payee of any Note
as the owner thereof for all purposes hereof unless and until such payee
complies with SECTION 12.3 in the case of an assignment thereof or, in the case
of any other transfer, a written notice of the transfer is filed with the Agent.
Any assignee or transferee of a Note agrees by acceptance thereof to be bound by
all the terms and provisions of the Loan Documents. Any request, authority or
consent of any Person, who at the time of making such request or giving such
authority or consent is the holder of any Note, shall be conclusive and binding
on any subsequent holder, transferee or assignee of such Note or of any Note or
Notes issued in exchange therefor.
12.2. PARTICIPATIONS .
12.2.1 PERMITTED PARTICIPANTS; EFFECT. Any Lender may, in the
ordinary course of its business and in accordance with applicable law,
(a) with contemporaneous notice to the Borrower, at any time sell to
one or more banks or (b) with the consent of the Borrower, which
consent shall not be unreasonably withheld, at any time sell to one or
more other entities (each such bank or other entity being referred to
herein as a "PARTICIPANT") participating interests in any Loan owing to
such Lender, any Note held by such Lender, the Commitment of such
Lender or any other interest of such Lender under the Loan Documents;
PROVIDED, HOWEVER, that if a Participant is an Affiliate of such Lender
or if a Default has occurred and is continuing, the consent of the
Borrower shall not be required. In the event of any such sale by a
Lender of participating interests to a Participant, such Lender's
obligations under the Loan Documents shall remain unchanged, such
Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations, such Lender shall remain the
holder of any such Note for all purposes under the Loan Documents, all
amounts payable by the Borrower under this Agreement shall be
determined as if such Lender had not sold such participating interests,
and the Borrower and the Agent shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under the Loan Documents. The participation agreement
effecting the sale of any participating interest shall contain a
representation by the Participant to the effect that none of the
consideration used to make the purchase of the participating interest
in the Commitment and Loans under such participation agreement are
"plan assets" as defined under ERISA and that the rights and interests
of the Participant in and under the Loan Documents will not be "plan
assets" under ERISA.
12.2.2. VOTING RIGHTS. Each Lender shall retain the sole
right to approve, without the consent of any Participant, any
amendment, modification or waiver of any provision of the Loan
Documents other than any amendment, modification or waiver with respect
to any Loan or Commitment in which such Participant has an interest
which forgives principal, interest or fees or reduces the interest rate
or fees payable with respect to any such Loan or Commitment, postpones
any date fixed for any regularly-scheduled payment of principal of, or
interest or fees on, any such Loan or Commitment, or releases any
guarantor of any such Loan.
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37
12.2.3. BENEFIT OF SETOFF. The Borrower agrees that to the
extent permitted by applicable law each Participant shall be deemed to
have the right of setoff provided in SECTION 11.1 in respect of its
participating interest in amounts owing under the Loan Documents to the
same extent as if the amount of its participating interest were owing
directly to it as a Lender under the Loan Documents, provided that each
Lender shall retain the right of setoff provided in SECTION 11.1 with
respect to the amount of participating interests sold to each
Participant. The Lenders agree to share with each Participant, and each
Participant shall be deemed to agree, by exercising the right of setoff
provided in SECTION 11.1, to share with each Lender, any amount
received pursuant to the exercise of its right of setoff, such amounts
to be shared in accordance with SECTION 11.2 as if each Participant
were a Lender.
12.3. ASSIGNMENTS.
12.3.1. PERMITTED ASSIGNMENTS. Any Lender may, in the
ordinary course of its business and in accordance with applicable law,
at any time assign to one or more banks or other entities
("PURCHASERS") all or any part of its Commitment and outstanding Loans,
together with its rights and obligations under the Loan Documents with
respect thereto; PROVIDED, HOWEVER, that (a) each such assignment shall
be of a constant, and not a varying, percentage of all of the assigning
Lender's rights and obligations so assigned; (b) the amount of the
Commitment of the assigning Lender being assigned pursuant to each such
assignment (determined as of the date of such assignment) may be in the
amount of such Lender's entire Commitment but otherwise shall not be
less than $10,000,000 or an integral multiple of $1,000,000 in excess
of that amount; and (c) notwithstanding the foregoing clause (b), (i)
if the assignment is made to a Lender, the amount of the Commitment
assigned shall not be less than $1,000,000 or an integral multiple
thereof and (ii) if the assignment is made pursuant to SECTION 3.5, the
Commitment assigned may be in the amount of the relevant Lender's
entire remaining Commitment. Such assignment shall be substantially in
the form of EXHIBIT D hereto or in such other form as may be agreed to
by the parties thereto. The consent of the Borrower and the Agent shall
be required prior to an assignment becoming effective with respect to a
Purchaser which is not a Lender; PROVIDED, HOWEVER, that if a Default
has occurred and is continuing, the consent of the Borrower shall not
be required. Such consents shall not be unreasonably withheld.
12.3.2. EFFECT; EFFECTIVE DATE. Upon the later of (i) two
Business Days (or such shorter period agreed to by the Agent) after (a)
delivery to the Agent of a notice of assignment, substantially in the
form attached to EXHIBIT D hereto (a "NOTICE OF ASSIGNMENT"), together
with any consents required by SECTION 12.3.1, and (b) payment of a
$3,500 fee to the Agent for processing such assignment, and (ii) the
date certain specified in such Notice of Assignment, such assignment
shall become effective. The Notice of Assignment shall contain a
representation by the Purchaser to the effect that none of the
consideration used to make the purchase of the Commitment and Loans
under the applicable assignment agreement are "plan assets" as defined
under ERISA and that the rights and interests of the Purchaser in and
under the Loan Documents will not be "plan assets" under ERISA. On and
after the effective date of such assignment, such Purchaser shall for
all purposes be a Lender party to this Agreement and any other Loan
Document executed by the Lenders and shall have all the rights and
obligations of a Lender under the Loan Documents, to the same extent as
if it were an original party hereto and thereto, and no further consent
or action by the Borrower, the Lenders or the Agent shall be required
to release the transferor Lender with respect to the percentage of the
Aggregate Commitment and Loans assigned to such Purchaser. Upon the
consummation of any assignment to a Purchaser pursuant to this SECTION
12.3.2, the transferor Lender, the Agent, and the Borrower shall make
appropriate arrangements so that replacement Notes are issued to such
transferor Lender and new Notes or, as appropriate, replacement Notes,
are issued to such Purchaser, in each case in principal amounts
reflecting its Commitment, as adjusted pursuant to such assignment.
12.4. DISSEMINATION OF INFORMATION. The Borrower authorizes
each Lender to disclose to any Participant or Purchaser or any other Person
acquiring an interest in the Loan Documents by operation of law (each a
"TRANSFEREE") and any prospective Transferee any and all information in such
Lender's possession concerning the creditworthiness of the Borrower and its
Subsidiaries; provided that each Transferee and prospective Transferee agrees to
be bound by SECTION 9.15.
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12.5. TAX TREATMENT. If any interest in any Loan Document is
transferred to any Transferee which is organized under the laws of any
jurisdiction other than the United States or any State thereof, the transferor
Lender shall cause such Transferee, concurrently with the effectiveness of such
transfer, to comply with the provisions of SECTION 2.16.
ARTICLE XIII
NOTICES
13.1. GIVING NOTICE. Except as otherwise permitted by SECTION
2.12 with respect to Borrowing Notices, all notices and other communications
provided to any party hereto under this Agreement or any other Loan Document
shall be in writing or by telex or by facsimile and addressed or delivered to
such party at its address set forth below its signature hereto or at such other
address as may be designated by such party in a notice to the other parties. Any
notice, if mailed and properly addressed with postage prepaid, shall be deemed
given when received; any notice, if transmitted by telex or facsimile, shall be
deemed given when transmitted (answerback confirmed in the case of telexes).
13.2. CHANGE OF ADDRESS. The Borrower, the Agent and any
Lender may each change the address for service of notice upon it by a notice in
writing to the other parties hereto.
ARTICLE XIV
COUNTERPARTS
This Agreement may be executed in any number of counterparts,
all of which taken together shall constitute one agreement, and any of the
parties hereto may execute this Agreement by signing any such counterpart.
Subject to SECTION 4.1, this Agreement shall be effective when it has been
executed by the Borrower, the Agent and the Lenders and each party has notified
the Agent by telex or telephone, that it has taken such action.
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IN WITNESS WHEREOF, the Borrower, the Lenders and the Agent
have executed this Agreement as of the date first above written.
OMNICARE, INC.
By: /s/ Xxxxx X. Xxxxxxx, Xx.
-----------------------------------------
Name: Xxxxx X. Xxxxxxx, Xx.
Title: Chief Financial Officer
1600 RiverCenter II
000 Xxxx XxxxxXxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Chief Financial Officer
Facsimile No. 000-000-0000
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Commitment:
-----------
$40,000,000 THE FIRST NATIONAL BANK OF CHICAGO,
as a Lender and as Administrative Agent
By: /s/ Xxxxxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Vice President
Address:
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Public Banking
Facsimile No.:312/732-2016
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41
$55,000,000.00 DEUTSCHE BANK AG NEW YORK BRANCH AND/OR
CAYMAN ISLANDS BRANCH, as a Lender
and as
Co-Documentation Agent
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Director
By: /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Director
Address:
00 X. 00xx Xx.
Xxx Xxxx, XX 00000
Attention: Xxx Xxxxxxx
Facsimile No.: 000-000-0000
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42
$55,000,000.00 NATIONSBANK, N.A.,
as a Lender and as Co-Documentation Agent
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
Address:
000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxx
Facsimile No.: 000-000-0000
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43
$40,000,000.00 BANKERS TRUST COMPANY,
as a Lender and as Co-Agent
By: /s/ Xxxxx X. Xxxx
-----------------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
Address:
000 Xxxxxxx Xx.
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxx
Facsimile No.: 000-000-0000
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44
$25,000,000.00 CREDIT SUISSE FIRST BOSTON,
as a Lender
By: /s/ Xxxx X. Xxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxx
Title: Director
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
Address:
Eleven Xxxxxxx Xxx.
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxx
Facsimile No.: 000-000-0000
39
45
$25,000,000.00 FLEET NATIONAL BANK,
as a Lender
By: /s/ Xxxxx Xxxxx
------------------------------------------
Name: Xxxxx Xxxxx
Title: Senior Vice President
Address:
Mail Code MAOFDO7B
Xxx Xxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Attention:
Facsimile No.: 000-000-0000
40
46
$25,000,000.00 CITICORP USA, INC.
as a Lender
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Attorney-in-Fact
Address:
000 Xxxx Xxxxxx - 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxx
Facsimile No.: 000-000-0000
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47
$25,000,000.00 COMERICA BANK,
as a Lender
By: /s/ Xxx X. Xxxxxxxx
-----------------------------------------
Name: Xxx X. Xxxxxxxx
Title: First Vice President
Address:
One Detroit Center
000 Xxxxxxxx Xxx.
Xxxxxxx, XX 00000-0000
Attention: Xxxx Xxxxxx
Facsimile No.: 313/222-9514
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48
$25,000,000.00 NATIONAL CITY BANK OF KENTUCKY,
as a Lender
By: /s/ Deny Xxxxx
------------------------------------------
Name: Deny Xxxxx
Title: Vice President
Address:
000 Xxxxx Xxxxx Xx.
Xxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxx
Facsimile No.: 000-000-0000
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49
$25,000,000.00 SUNTRUST BANK, NASHVILLE, N.A.,
as a Lender
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
Address:
000 0xx Xxxxxx Xxxxx
0xx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxx
Facsimile No.: 000-000-0000
44
50
$25,000,000.00 BANQUE NATIONALE DE PARIS,
as a Lender
By: /s/ Arnaud Xxxxxx xx Xxxxxx
------------------------------------------
Name: Arnaud Xxxxxx xx Xxxxxx
Title: Executive Vice President and
General Manager
Address:
000 Xxxxx XxXxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Facsimile No.: 312/977-1380
45
51
$10,000,000.00 BANCA CRT S.p.A., as a Lender
By: /s/ Xxxxxx X. XxXxxxxx
------------------------------------------
Name: Xxxxxx X. XxXxxxxx
Title: First Vice President
Head of Corporate Banking
By: /s/ Xxxx X. Xxxxx
------------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President, Corporate Banking
Address:
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: J. Xxxxx Xxxxxx, Xx.
Facsimile No.: 000-000-0000
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52
$10,000,000.00 BANK HAPOALIM, B.M.,
as a Lender
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President-Senior Lending
Officer
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
Address:
000 Xxxxx Xxxxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
Facsimile No.: 000-000-0000
47
53
$10,000,000.00 STAR BANK,
as a Lender
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
Address:
000 Xxxxxx Xxxxxx
Xxxxxxxx 0000
Xxxxxxxxxx, XX 00000
Attention:
Facsimile No.: 513-632-_
48
54
$5,000,000.00 FIFTH THIRD BANK,
as a Lender
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
Address:
Fifth Third Center
00 Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxx
Facsimile No.: 000-000-0000
49
55
SCHEDULE I
PRICING SCHEDULE
--------------------------- ----------------- --------------------- --------------------- --------------------- --------------------
STATUS LEVEL I STATUS LEVEL II STATUS LEVEL III STATUS LEVEL IV STATUS LEVEL V STATUS
--------------------------- ----------------- --------------------- --------------------- --------------------- --------------------
Applicable Margin 0.75% 0.85% 1.00% 1.25% 1.625%
--------------------------- ----------------- --------------------- --------------------- --------------------- --------------------
Applicable Commitment Fee 0.10% 0.125% 0.175% 0.25% 0.25%
Rate
--------------------------- ----------------- --------------------- --------------------- --------------------- --------------------
For the purposes of this Schedule, the following terms have the
following meanings, subject to the final paragraph of this Schedule:
"Level I Status" exists at any date if, on such date, the Borrower's
Xxxxx'x Rating is Baa1 or better or the Borrower's S&P Rating is BBB+ or better.
"Level II Status" exists at any date if, on such date, (i) the Borrower
has not qualified for Level I Status and (ii) the Borrower's Xxxxx'x Rating is
Baa2 or better or the Borrower's S&P Rating is BBB or better.
"Level III Status" exists at any date if, on such date, (i) the
Borrower has not qualified for Level I Status or Level II Status and (ii) the
Borrower's Xxxxx'x Rating is Baa3 or better or the Borrower's S&P Rating is BBB-
or better.
"Level IV Status" exists at any date if, on such date (i) the Borrower
has not qualified for Level I Status, Level II Status or Level III Status and
(ii) the Borrower's Xxxxx'x Rating is Ba1 or better or the Borrower's S&P Rating
is BB+ or better.
"Level V Status" exists at any date if, on such date, the Borrower has
not qualified for Level I Status, Level II Status, Level III Status, or Level IV
Status.
"Xxxxx'x Rating" means, at any time, the rating issued by Xxxxx'x
Investors Service, Inc. and then in effect with respect to the Borrower's senior
unsecured long-term debt securities without third-party credit enhancement.
"S&P Rating" means, at any time, the rating issued by Standard & Poor's
Rating Services, a division of The XxXxxx-Xxxx Companies, Inc. and then in
effect with respect to the Borrower's senior unsecured long-term debt securities
without third-party credit enhancement.
"Status" means either Level I Status, Level II Status, Level III
Status, Level IV Status or Level V Status.
The Applicable Margin and Applicable Commitment Fee Rate shall be
determined in accordance with the foregoing table based on the Borrower's Status
as determined from its then-current Moody's and S&P Ratings. The credit rating
in effect on any date for the purposes of this Schedule is that in effect at the
close of business on such date. If at any time the Borrower has no Xxxxx'x
Rating or no S&P Rating, Level V Status shall exist, PROVIDED that if either S&P
or Moody's shall no longer provide debt ratings for companies in the Borrower's
industry generally, the Borrower may substitute for either such rating
organization another nationally recognized statistical rating organization, the
corresponding ratings of which shall be used to determine the Borrower's Status.
If the Borrower is split-rated and the ratings differential is one level, the
higher rating will apply. If the Borrower is split-rated and the ratings
differential is two levels,
50
56
the intermediate rating at the midpoint will apply. If the Borrower is
split-rated and the ratings differential is more than two levels, the rating
that is one level above the lowest rating will apply.
51
57
SCHEDULE II
[SCHEDULE OMITTED]
58
SCHEDULE III
LIST OF GUARANTORS
364-DAY CREDIT AGREEMENT DATED AS OF DECEMBER 21, 1998
NAME OF GUARANTOR JURISDICTION OF PERCENTAGE OF
----------------- --------------- -------------
INCORPORATION OWNERSHIP(1)
------------- ------------
1. AAHS ACQUISITION CORP. DELAWARE 100%
1. ACCU-MED SERVICES, CORP. DELAWARE 100%
1. ACP ACQUISITION CORP. DELAWARE 100%
1. AMC-NEW YORK, INC. DELAWARE 100%(2)
1. AMC REGIONAL HOLDINGS, INC. DELAWARE 100%(3)
1. AMC TENNESSEE, INC. DELAWARE 100%(4)
1. AMERICAN MEDSERVE CORPORATION DELAWARE 100%(5)
1. XXXXXXXX MEDICAL SERVICES, INC. DELAWARE 100%
1. APEX LONG TERM CARE PHARMACY, INC. DELAWARE 100%
1. BADGER ACQUISITION LLC DELAWARE 100%
1. BADGER ACQUISITION OF WASHINGTON LLC DELAWARE 100%
1. BADGER ACQUISITION OF MINNESOTA LLC DELAWARE 100%
1. BADGER ACQUISITION OF WISCONSIN LLC DELAWARE 100%
1. BADGER ACQUISITION OF INDIANA LLC DELAWARE 100%
1. BADGER ACQUISITION OF KENTUCKY LLC DELAWARE 100%
1. BADGER ACQUISITION OF MICHIGAN LLC DELAWARE 100%
1. BADGER ACQUISITION OF ORLANDO LLC DELAWARE 100%
1. BADGER ACQUISITION OF TAMPA LLC DELAWARE 100%
1. BADGER ACQUISITION OF BROOKSVILLE LLC DELAWARE 100%
1. BADGER ACQUISITION OF PITTSBURGH LLC DELAWARE 100%
1. BADGER ACQUISITION OF ALLENTOWN LLC DELAWARE 100%
1. BADGER ACQUISITION OF OHIO LLC DELAWARE 100%
1. BADGER ACQUISITION OF TEXAS LLC DELAWARE 100%
1. XXXXXX PHARMACIES, INC. OHIO 100%
1. BPNY ACQUISITION CORP. DELAWARE 100%
1. BPTX ACQUISITION CORP. DELAWARE 100%
-----------------
1 Unless otherwise noted, percentage of ownership refers to the
percentage owned by Omnicare Holding Company.
2 AMC Regional Holdings, Inc.
3 American Medserve Corporation
4 AMC Regional Holdings, Inc.
5 Omnicare, Inc.
2
59
NAME OF GUARANTOR JURISDICTION OF PERCENTAGE OF
----------------- --------------- -------------
INCORPORATION OWNERSHIP
------------- ---------
1. CAMPO'S MEDICAL PHARMACY, INC. LOUISIANA 100%(6)
1. CARE PHARMACEUTICAL SERVICES, INC. DELAWARE 100%
1. CP ACQUISITION CORP. DELAWARE 100%
1. CHP ACQUISITION CORP. DELAWARE 100%
1. CIP ACQUISITION CORP DELAWARE 100%
1. CTLP ACQUISITION CORP. DELAWARE 100%
1. CMD ACQUISITION CORP. DELAWARE 100%
1. COMPSCRIPT, INC. FLORIDA 100%(7)
1. COMPSCRIPT-BOCA, INC. FLORIDA 100%(8)
1. COMPSCRIPT-MOBILE, INC. DELAWARE 100%(9)
1. CONSULTING AND PHARMACEUTICAL
SERVICES, INC. DELAWARE 100%
1. COROMED, INC. DELAWARE 100%(10)
1. CMCP ACQUISITION LLC DELAWARE 100%
1. D&R PHARMACEUTICAL SERVICES, INC. KENTUCKY 100%
1. DATASCRIPT CORP. DELAWARE 100%
1. XXXXX PHARMACY, INC. ILLINOIS 100%(11)
1. DOWNEAST PHARMACY, INC. MAINE 100%
1. DYNATRAN COMPUTER SYSTEMS, INC. DELAWARE 100%
1. EHIS ACQUISITION CORP. DELAWARE 100%
1. ELECTRA ACQUISITION CORP. DELAWARE 100%
1. XXXXX DRUGS, INC. DELAWARE 100%
1. EVERGREEN PHARMACEUTICAL, INC. WASHINGTON 100%(12)
1. EVERGREEN PHARMACEUTICAL EAST, INC. WASHINGTON 100%(13)
1. EVERGREEN PHARMACEUTICAL SUPPLY, INC. WASHINGTON 100%(14)
1. EVERGREEN SPOKANE, INC. WASHINGTON 100%(15)
1. FREED'S PHARMACY, INC. DELAWARE 100%
NAME OF GUARANTOR JURISDICTION OF PERCENTAGE OF
----------------- --------------- -------------
INCORPORATION OWNERSHIP
------------- ---------
1. XXXXX LTC SERVICES, INC. PENNSYLVANIA 100%(16)
1. HCC MEDICAL SUPPLY, INC. PENNSYLVANIA 100%(17)
1. HMIS, INC. DELAWARE 100%(18)
1. HOME CARE PHARMACY, INC. DELAWARE 100%
1. HOME PHARMACY SERVICES, INC. MISSOURI 100%
1. HOSPICE CARE OF OKLAHOMA, LLC OKLAHOMA 50%/50%(19)
---------------------
6 CompScript, Inc.
7 Omnicare, Inc.
8 CompScript, Inc.
9 CompScript, Inc.
10 Omnicare, Inc.
11 AMC Regional Holdings, Inc.
12 Omnicare, Inc.
13 Omnicare, Inc.
14 Evergreen Pharmaceutical, Inc.
15 Evergreen Pharmaceutical, Inc.
16 AMC Regional Holdings, Inc.
17 Xxxxx LTC Services, Inc.
18 AMC Regional Holdings, Inc.
19 Hospice Acquisition One Corp. (50%) and Hospice Acquisition Two
Corp. (50%), each of which is a
(continued...)
3
60
NAME OF GUARANTOR JURISDICTION OF PERCENTAGE OF
----------------- --------------- -------------
INCORPORATION OWNERSHIP
------------- ---------
1. HOSPICE OF THE HEARTLAND, LLC OKLAHOMA 50%/50%(20)
1. XXXXXX'X PHARMACY, INC. OHIO 100%
1. HYTREE PHARMACY, INC. OHIO 100%(21)
1. I.V. SERVICES OF OKLAHOMA, INC. OKLAHOMA 70%/30%(22)
1. IBAH, INC. DELAWARE 100%(23)
1. IBAH PHARMACEUTICS SERVICES, INC. DELAWARE 100%(24)
1. INTERLOCK PHARMACY SYSTEMS, INC. MISSOURI 100%
1. JHC ACQUISITION CORP. DELAWARE 100%
1. KONSULT, INC. DELAWARE 100%
1. XXXXXXX HEALTH SERVICES, INC. DELAWARE 100%
1. XXXXXXX MEDICAL PRODUCTS, INC. DELAWARE 100%
1. XXXXXXXX MEDICAL SUPPLY, INC. DELAWARE 100%
1. LPI ACQUISITION CORP. DELAWARE 100%
1. LO-MED PRESCRIPTION SERVICES, INC. OHIO 100%(25)
1. MANAGED HEALTH CARE, INC. DELAWARE 100%
1. MED WORLD ACQUISITION CORP. DELAWARE 100%
1. MEDICAL ARTS HEALTH CARE, INC. GEORGIA 100%
1. MEDICAL COMMUNICATIONS SOFTWARE, INC. KANSAS 100%
1. MEDICAL SERVICES CONSORTIUM, INC. FLORIDA 100%(26)
1. MOSI ACQUISITION CORP. DELAWARE 100%
1. MSD ACQUISITION CORP. DELAWARE 100%
1. NIHAN & XXXXXX, INC. DELAWARE 100%(27)
1. NIV ACQUISITION CORP. DELAWARE 100%
1. NORTH SHORE PHARMACY SERVICES, INC. DELAWARE 100%
1. NORTHWEST PHARMACEUTICAL, INC. DELAWARE 100%(28)
1. OCR-RA ACQUISITION CORP. DELAWARE 100%
1. OCR SERVICES CORPORATION DELAWARE 100%
1. OKLAHOMA CONSULTING SERVICES, INC. OKLAHOMA 100%
1. OMNICARE MANAGEMENT COMPANY DELAWARE 100%
1. OMNICARE PHARMACY & SUPPLY, INC. SOUTH DAKOTA 100%
1. PBM-PLUS, INC. DELAWARE 100%(29)
1. PHARMACON CORP. NEW YORK 100%
1. PHARMACY ACQUISITION, INC. DELAWARE 100%
1. PHARMACY ASSOCIATES OF GLENS FALLS, INC. NEW YORK 100%(30)
1. PHARMED HOLDINGS, INC. DELAWARE 100%(31)
1. PIP ACQUISITION CORP. CALIFORNIA 100%
---------------------
(...continued)
wholly owned subsidiary of Omnicare Holding Company.
20 Hospice Acquisition One Corp. (50%) and Hospice Acquisition Two
Corp. (50%), each of which is a wholly owned subsidiary of Omnicare
Holding Company.
21 CompScript, Inc.
22 Oklahoma Consulting Services, Inc. (70%) and Omnicare Holding
Company (30%)
23 Omnicare, Inc.
24 IBAH, Inc.
25 Omnicare, Inc.
26 CompScript, Inc.
27 AMC Regional Holdings, Inc.
28 Evergreen Pharmaceutical, Inc.
29 PBM Holding Co., a wholly owned subsidiary of Omnicare, Inc.
30 AMC- New York, Inc.
31 Sterling Healthcare Services, Inc.
4
61
1. POMPTON NURSING HOME SUPPLIERS, INC. DELAWARE 100%
1. PRN PHARMACEUTICAL SERVICES, INC. DELAWARE 100%
1. PROFESSIONAL PHARMACY GROUP, INC. OKLAHOMA 100%(32)
1. XXXXX ACQUISITION CORP. DELAWARE 100%
1. ROESCHEN'S HEALTHCARE CORP. WISCONSIN 100%
1. RDSI ACQUISITION CORP. DELAWARE 100%
1. SA ACQUISITION CORP. DELAWARE 100%
1. SALTD ACQUISITION CORP. NEW YORK 100%
1. SC ACQUISITION CORP. DELAWARE 100%
1. SHORE PHARMACEUTICAL PROVIDERS, INC. DELAWARE 100%
1. SPECIALIZED PATIENT CARE SERVICES, INC. ALABAMA 100%(33)
1. SPECIALIZED PHARMACY SERVICES, INC. MICHIGAN 100%
1. SCP ACQUISITION CORP. DELAWARE 100%
1. SRMS ACQUISITION LLC DELAWARE 100%
1. STERLING HEALTH CARE SERVICES, INC. DELAWARE 100%(34)
1. SUPERIOR CARE PHARMACY, INC. DELAWARE 100%
1. TCPI ACQUISITION CORP. DELAWARE 100%
1. THG ACQUISITION CORP. DELAWARE 100%
1. THREE FORKS APOTHECARY, INC. KENTUCKY 100%
1. UC ACQUISITION CORP. DELAWARE 100%
1. UNITED HEALTH CARE, INC. OKLAHOMA 100%
1. UNITED HEALTH REFERRAL, INC. OKLAHOMA 100%
1. UNITED SKIN THERAPEUTICS, INC. OKLAHOMA 100%
1. VALUE HEALTHCARE SERVICES, INC. DELAWARE 100%
1. VALUE PHARMACY, INC. MASSACHUSETTS 100%
1. VITAL CARE INFUSIONS, INC. NEW YORK 100%
1. XXXXX MEDICAL SYSTEMS, INC. DELAWARE 100%
1. WESTHAVEN SERVICES CO. OHIO 100%
1. WEST-VAL CARE, INC. DELAWARE 100%
1. XXXXXXXXXX DRUG COMPANY, INCORPORATED VIRGINIA 100%(35)
1. XXXXXXX'X PHARMACY NEW JERSEY 100%
-------------------
32 AMC Regional Holdings, Inc.
33 AMC Regional Holdings, Inc.
34 AMC Regional Holdings, Inc.
35 AMC Regional Holdings, Inc.
5
62
EXHIBIT A
FORM OF NOTE
[DATE]
OMNICARE, INC., A DELAWARE CORPORATION (THE "BORROWER"),
PROMISES TO PAY TO THE ORDER OF ____________________ (THE "LENDER") THE
AGGREGATE UNPAID PRINCIPAL AMOUNT OF ALL LOANS MADE BY THE LENDER TO THE
BORROWER PURSUANT TO ARTICLE II OF THE CREDIT AGREEMENT HEREINAFTER REFERRED TO
(AS THE SAME MAY BE AMENDED OR MODIFIED, THE "AGREEMENT"; CAPITALIZED TERMS USED
HEREIN AND NOT OTHERWISE DEFINED HEREIN ARE USED WITH THE MEANINGS ATTRIBUTED TO
THEM IN THE AGREEMENT), IN IMMEDIATELY AVAILABLE FUNDS ON THE DATES AND AT THE
OFFICES OF THE FIRST NATIONAL BANK OF CHICAGO, AS AGENT, SPECIFIED IN THE
AGREEMENT, TOGETHER WITH INTEREST ON THE UNPAID PRINCIPAL AMOUNT HEREOF AT THE
RATES AND ON THE DATES DETERMINED IN ACCORDANCE WITH THE AGREEMENT. THE BORROWER
SHALL PAY THE PRINCIPAL OF AND ACCRUED AND UNPAID INTEREST ON THE LOANS IN FULL
ON THE REVOLVING CREDIT TERMINATION DATE, UNLESS THE TERM LOAN OPTION HAS BEEN
SELECTED, IN WHICH CASE SUCH PAYMENTS SHALL BE MADE IN FULL ON THE FACILITY
TERMINATION DATE.
THE LENDER SHALL, AND IS HEREBY AUTHORIZED TO, RECORD ON THE
SCHEDULE ATTACHED HERETO, OR TO OTHERWISE RECORD IN ACCORDANCE WITH ITS USUAL
PRACTICE, THE DATE AND AMOUNT OF EACH LOAN AND THE DATE AND AMOUNT OF EACH
PRINCIPAL PAYMENT HEREUNDER.
THIS NOTE IS ONE OF THE NOTES ISSUED PURSUANT TO, AND IS
ENTITLED TO THE BENEFITS OF, THE 364-DAY CREDIT AGREEMENT, DATED AS OF DECEMBER
21, 1998, AMONG THE BORROWER, THE FIRST NATIONAL BANK OF CHICAGO, AS AGENT, AND
THE LENDERS PARTIES THERETO, INCLUDING THE LENDER, TO WHICH AGREEMENT, AS IT MAY
BE AMENDED FROM TIME TO TIME, REFERENCE IS HEREBY MADE FOR A STATEMENT OF THE
TERMS AND CONDITIONS GOVERNING THIS NOTE, INCLUDING THE TERMS AND CONDITIONS
UNDER WHICH THIS NOTE MAY BE PREPAID OR ITS MATURITY DATE ACCELERATED. THE
AGREEMENT, AMONG OTHER THINGS, PROVIDES FOR THE MAKING OF "LOANS" BY THE LENDER
TO THE BORROWER FROM TIME TO TIME IN AN AGGREGATE AMOUNT NOT TO EXCEED AT ANY
TIME OUTSTANDING THE LENDER'S COMMITMENT, EXCEPT AS OTHERWISE CONTEMPLATED IN
THE AGREEMENT.
THE BORROWER HEREBY WAIVES PRESENTMENT, DEMAND, PROTEST AND
NOTICE OF ANY KIND. NO FAILURE TO EXERCISE, AND NO DELAY IN EXERCISING, ANY
RIGHTS HEREUNDER ON THE PART OF THE HOLDER HEREOF SHALL OPERATE AS A WAIVER OF
SUCH RIGHTS.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF ILLINOIS, UNITED STATES.
OMNICARE, INC.
BY:
NAME:
TITLE:
6
63
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO
NOTE OF OMNICARE, INC.,
DATED DECEMBER 21, 1998
PRINCIPAL MATURITY
AMOUNT OF OF INTEREST PRINCIPAL UNPAID
DATE LOAN PERIOD AMOUNT PAID BALANCE
---- ---- ------ ----------- -------
7
64
EXHIBIT B
DECEMBER 21, 1998
TO THE LENDERS AND THE AGENT
REFERRED TO HEREIN
REFERRED TO BELOW
C/O THE FIRST NATIONAL BANK OF CHICAGO
XXX XXXXX XXXXXXXX XXXXX
XXXXXXX, XXXXXXXX 00000
LADIES AND GENTLEMEN:
WE HAVE ACTED AS COUNSEL TO OMNICARE, INC. (THE "COMPANY") AND THE
ENTITIES LISTED ON SCHEDULE 1 HERETO (THE "GUARANTORS") IN CONNECTION WITH THE
364-DAY CREDIT AGREEMENT DATED AS OF DECEMBER 21, 1998 (THE "CREDIT AGREEMENT")
AMONG THE COMPANY, THE LENDERS LISTED ON THE SIGNATURE PAGES THEREOF (THE
"LENDERS") AND THE FIRST NATIONAL BANK OF CHICAGO, AS AGENT. THIS OPINION IS
FURNISHED TO YOU PURSUANT TO SECTION 4.1(e) OF THE CREDIT AGREEMENT. CAPITALIZED
TERMS USED IN THIS OPINION, AND NOT OTHERWISE DEFINED HEREIN, SHALL HAVE THE
MEANINGS ASCRIBED TO THEM IN THE CREDIT AGREEMENT.
IN CONNECTION WITH THIS OPINION, WE HAVE REVIEWED THE CREDIT AGREEMENT
AND THE DOCUMENTS CONTEMPLATED BY THE CREDIT AGREEMENT TO BE EXECUTED AND
DELIVERED BY THE COMPANY AND THE GUARANTORS, INCLUDING THE NOTES AND THE
GUARANTY AND CONTRIBUTION AGREEMENT ENTERED INTO BY EACH OF THE GUARANTORS
(COLLECTIVELY, WITH THE CREDIT AGREEMENT, HEREIN REFERRED TO AS THE "LOAN
DOCUMENTS"). THE COMPANY AND THE GUARANTORS ARE HEREINAFTER COLLECTIVELY
REFERRED TO AS THE "CORPORATIONS." IN ADDITION, WE HAVE MADE SUCH INVESTIGATIONS
OF LAW AS WE HAVE DEEMED APPROPRIATE AS A BASIS FOR THE OPINIONS EXPRESSED
BELOW.
IN RENDERING SUCH OPINIONS WE HAVE ASSUMED (I) THE GENUINENESS OF ALL
SIGNATURES (OTHER THAN THOSE ON BEHALF OF EACH CORPORATION), (II) THE
AUTHENTICITY OF ALL DOCUMENTS SUBMITTED TO US AS ORIGINALS AND THE CONFORMITY TO
THE ORIGINALS OF ALL DOCUMENTS SUBMITTED TO US AS CERTIFIED OR PHOTOSTATIC
COPIES, (III) THE DUE ORGANIZATION AND VALID EXISTENCE OF EACH OF THE LENDERS
AND THE AGENT, AND THE DUE AUTHORIZATION, EXECUTION AND DELIVERY BY EACH OF THE
LENDERS AND THE AGENT, AND THE LEGAL RIGHT OF EACH OF THE LENDERS AND THE AGENT
TO PERFORM ITS OBLIGATIONS UNDER, THE LOAN DOCUMENTS TO WHICH EACH IS A PARTY
AND (IV) THE ACCURACY AS TO FACTUAL MATTERS OF THE REPRESENTATIONS AND
WARRANTIES CONTAINED IN OR MADE PURSUANT TO THE CREDIT AGREEMENT.
THE OPINION EXPRESSED BELOW AS TO THE CHOICE OF ILLINOIS LAW IS SUBJECT
TO THE CONDITION THAT THE APPLICATION OF ILLINOIS LAW WOULD NOT BE CONTRARY TO
THE FUNDAMENTAL POLICY OF A JURISDICTION OTHER THAN THE STATE OF OHIO (THE LAWS
OF WHICH OTHER JURISDICTION WOULD BE THE APPLICABLE LAW BUT FOR THE CHOICE OF
THE LAWS OF THE STATE OF ILLINOIS) HAVING A GREATER MATERIAL INTEREST IN THE
ISSUE THAN THE STATE OF ILLINOIS.
WE ARE MEMBERS OF THE BAR OF THE STATE OF OHIO, AND WE EXPRESS NO
OPINION AS TO MATTERS GOVERNED BY THE LAWS OF ANY JURISDICTION OTHER THAN THE
FEDERAL LAW OF THE UNITED STATES, THE LAWS OF THE STATE OF OHIO AND, AS TO THE
OPINION EXPRESSED IN NUMBERED PARAGRAPHS 1, 2 AND 3 BELOW, THE GENERAL
CORPORATION LAW OF THE STATE OF DELAWARE. THE OPINION IN NUMBERED PARAGRAPH 1
WITH RESPECT TO THE INCORPORATION OF ANY CORPORATION UNDER THE LAWS OF ANY
JURISDICTION OTHER THAN OHIO OR DELAWARE AND WITH RESPECT TO THE FOREIGN
CORPORATION QUALIFICATION OR LICENSING OF ANY CORPORATION UNDER ANY JURISDICTION
IS BASED SOLELY UPON OUR REVIEW OF GOOD STANDING OR FOREIGN QUALIFICATION (AS
APPROPRIATE) CERTIFICATES FROM THE NECESSARY JURISDICTIONS.
65
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To the Lenders and the Agent
referred to herein Page 2
BASED UPON THE FOREGOING AND SUBJECT TO THE FURTHER ASSUMPTIONS AND
QUALIFICATIONS SET FORTH HEREIN, WE ARE OF THE OPINION THAT:
1. EACH OF THE CORPORATIONS IS A CORPORATION OR LIMITED LIABILITY
COMPANY, AS THE CASE MAY BE DULY ORGANIZED, VALIDLY EXISTING AND IN GOOD
STANDING UNDER THE LAWS OF ITS JURISDICTION OF INCORPORATION AND HAS ALL
REQUISITE CORPORATE POWER AND AUTHORITY TO OWN ITS PROPERTY AND ASSETS AND TO
CARRY ON ITS BUSINESS AS NOW BEING CONDUCTED. THE COMPANY AND, TO THE BEST OF
OUR KNOWLEDGE EACH OF THE GUARANTORS IS DULY QUALIFIED OR LICENSED TO DO
BUSINESS AS A FOREIGN CORPORATION, AND IS IN GOOD STANDING IN EACH JURISDICTION
WHEREIN BY REASON OF THE NATURE OF ITS ACTIVITIES AND/OR THE PROPERTIES OWNED OR
LEASED BY IT, SUCH QUALIFICATION OR LICENSING IS NECESSARY, EXCEPT WHERE THE
FAILURE TO BE SO QUALIFIED OR LICENSED DOES NOT HAVE A MATERIAL ADVERSE AFFECT
UPON ALL OF THE CORPORATIONS AND THEIR SUBSIDIARIES, TAKEN AS A WHOLE.
2. THE EXECUTION, DELIVERY AND PERFORMANCE BY THE CORPORATIONS OF THE
LOAN DOCUMENTS TO WHICH THEY ARE PARTIES ARE WITHIN THEIR RESPECTIVE CORPORATE
POWERS, HAVE BEEN DULY AUTHORIZED AND, TO THE BEST OF OUR KNOWLEDGE, ARE NOT IN
CONTRAVENTION OF THE TERMS OF THEIR RESPECTIVE ARTICLES OR CERTIFICATES OF
INCORPORATION OR BY-LAWS.
3. EACH OF THE LOAN DOCUMENTS TO WHICH THE CORPORATIONS ARE PARTIES
HAVE BEEN DULY EXECUTED AND DELIVERED BY THEM BY THEIR RESPECTIVE DULY
AUTHORIZED OFFICERS.
4. ASSUMING THAT SUCH PROVISIONS ARE LEGAL, VALID, AND BINDING UNDER
THE LAWS OF ILLINOIS, THE PROVISIONS OF THE LOAN DOCUMENTS PROVIDING THAT SUCH
DOCUMENTS ARE GOVERNED BY ILLINOIS LAW SHOULD BE RESPECTED BY COURTS OF THE
STATE OF OHIO, AND, ACCORDINGLY, ILLINOIS LAW SHOULD BE APPLIED BY THE COURTS OF
THE STATE OF OHIO SO LONG AS THE PROVISIONS OF ILLINOIS LAW SOUGHT TO BE
ENFORCED ARE NOT INCONSISTENT WITH PUBLIC POLICY, AS SUCH TERM IS INTERPRETED
UNDER THE LAWS OF OHIO, IF ENFORCEMENT OF THE LOAN DOCUMENTS IS CONSIDERED BY
SUCH COURTS. IN THE EVENT COURTS IN THE STATE OF OHIO OR FEDERAL COURTS WERE TO
APPLY OHIO LAW AS THE GOVERNING LAW, EACH LOAN DOCUMENT WOULD CONSTITUTE THE
LEGAL, VALID AND BINDING OBLIGATION OF EACH CORPORATION WHICH IS A PARTY
THERETO, ENFORCEABLE AGAINST SUCH CORPORATION IN ACCORDANCE WITH ITS TERMS,
SUBJECT TO THE QUALIFICATIONS EXPRESSED BELOW.
5. TO THE BEST OF OUR KNOWLEDGE, THE EXECUTION, DELIVERY AND
PERFORMANCE BY EACH CORPORATION OF THE LOAN DOCUMENTS TO WHICH IT IS A PARTY
WILL NOT (a) VIOLATE OR RESULT IN A BREACH OF THE PROVISIONS OF, OR CONSTITUTE A
DEFAULT UNDER, ANY CONTRACT TO WHICH EACH SUCH CORPORATION IS A PARTY, EXCEPT
FOR ANY SUCH BREACH OR DEFAULT WHICH IS NOT LIKELY TO RESULT IN ANY MATERIAL
ADVERTISE CHANGE IN THE BUSINESS, OPERATIONS, CONDITION (FINANCIAL OR OTHERWISE)
, PROPERTIES OR ASSETS OF ALL OF THE CORPORATIONS AND THEIR SUBSIDIARIES, TAKEN
AS A WHOLE, OR (b) CONFLICT WITH OR RESULT IN THE BREACH OF ANY COURT DECREE OR
ORDER OF ANY GOVERNMENTAL BODY BINDING UPON EACH SUCH CORPORATION.
THE OPINIONS EXPRESSED HEREIN ARE SUBJECT TO THE FOLLOWING
QUALIFICATIONS:
A. THE ENFORCEABILITY OF THE LOAN DOCUMENTS MAY BE LIMITED BY
APPLICABLE BANKRUPTCY, INSOLVENCY, REORGANIZATION, FRAUDULENT TRANSFER,
MORATORIUM, REARRANGEMENT, LIQUIDATION, CONSERVATORSHIP OR OTHER LAWS AFFECTING
CREDITORS, RIGHTS GENERALLY, INCLUDING COURT DECISIONS INTERPRETING SUCH LAWS,
STATUTES OF LIMITATIONS AND PERSONAL JURISDICTION.
B. THE ENFORCEABILITY OF THE LOAN DOCUMENTS AND THE AVAILABILITY OF
SPECIFIC PERFORMANCE, INJUNCTIVE RELIEF, AND OTHER FORMS OF EQUITABLE RELIEF ARE
SUBJECT TO PRINCIPLES OF EQUITY (REGARDLESS OF WHETHER SUCH ENFORCEABILITY
2
66
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To the Lenders and the Agent
referred to herein Page 3
IS CONSIDERED IN A PROCEEDING IN EQUITY OR AT LAW), COMMERCIAL REASONABLENESS
AND CONSCIONABILITY, UNDER WHICH A COURT MIGHT, AMONG OTHER THINGS., DECLINE TO
PERMIT ACCELERATION OF INDEBTEDNESS OR DEMAND FOR PAYMENT WITH RESPECT TO BREACH
OF A COVENANT DEEMED NOT MATERIAL BY THE COURT, OR REQUIRE THE LENDERS AND/OR
THE AGENT TO ACT WITH REASONABLENESS AND GOOD FAITH.
C. CERTAIN RIGHTS OR REMEDIES UNDER THE LOAN DOCUMENTS MAY BE LIMITED
BY, OR UNAVAILABLE UNDER, THE LAWS OF THE STATE OF OHIO. HOWEVER, NONE OF SUCH
LIMITATIONS OR AVAILABILITY, SINGLY OR IN THE AGGREGATE, SHOULD MATERIALLY
INTERFERE WITH THE PRACTICAL REALIZATION OF THE LEGAL RIGHTS AND REMEDIES
PROVIDED FOR BY THE LOAN DOCUMENTS.
D. NO OPINION IS EXPRESSED WITH RESPECT TO THE ENFORCEABILITY OF ANY
PROVISIONS OF THE LOAN DOCUMENTS THAT PURPORT TO REQUIRE PAYMENT OR
REIMBURSEMENT OF ATTORNEYS' FEES OR LITIGATION EXPENSES OF ANOTHER PARTY.
E. WITH REGARD TO THE ENFORCEABILITY OF EACH GUARANTY AND CONTRIBUTION
AGREEMENT, WE HAVE ASSUMED, BUT EXPRESS NO OPINION AS TO, THE EXISTENCE OF
ADEQUATE AND SUFFICIENT CONSIDERATION TO THE APPLICABLE GUARANTOR AND
CO-OBLIGOR. NO OPINION IS EXPRESSED WITH RESPECT TO THE ENFORCEABILITY OF ANY
PROVISIONS OF THE LOAN DOCUMENTS THAT PURPORT TO REQUIRE, OR WOULD HAVE THE
EFFECT OF REQUIRING, ANY OF THE CORPORATIONS TO PAY, PURSUANT TO A GUARANTY OR
CONTRIBUTION AGREEMENT, ANY AMOUNT IN EXCESS OF ITS ALLOCABLE AMOUNT (AS DEFINED
IN THE CONTRIBUTION AGREEMENT) TO ANY OR ALL OF THE CREDITORS.
F. NO OPINION IS EXPRESSED WITH RESPECT TO (I) SECTION 12.2 OF THE
CREDIT AGREEMENT INSOFAR AS IT PROVIDES THAT ANY ENTITY PURCHASING A
PARTICIPATION FROM A LENDER PURSUANT THERETO MAY EXERCISE SET-OFF OR SIMILAR
RIGHTS WITH RESPECT TO SUCH PARTICIPATION, (II) SECTION 11.1 OF THE CREDIT
AGREEMENT INSOFAR AS IT AUTHORIZES EACH LENDER TO SET OFF AND APPLY ANY DEPOSITS
AT ANY TIME HELD, AGAINST ANY OTHER INDEBTEDNESS AT ANY TIME OWING, BY SUCH
LENDER TO OR ON ACCOUNT OF THE COMPANY, AND (III) THE EFFECT OF THE LAW OF ANY
JURISDICTION OTHER THAN THE STATE OF OHIO WHEREIN ANY LENDER MAY BE LOCATED OR
WHEREIN ENFORCEMENT OF THE LOAN DOCUMENTS MAY BE SOUGHT THAT LIMITS THE RATES OF
INTEREST LEGALLY CHARGEABLE OR COLLECTIBLE.
G. AN OPINION EXPRESSED "TO THE BEST OF OUR KNOWLEDGE", IS BASED SOLELY
UPON THE CURRENT ACTUAL KNOWLEDGE OF THOSE LAWYERS OF THE FIRM ACTIVELY ENGAGED
IN REPRESENTING THE COMPANY IN CURRENT MATTERS AND OUR INQUIRY OF OFFICERS,
INCLUDING THE CHIEF FINANCIAL OFFICER, OF THE COMPANY.
THIS OPINION IS PROVIDED AS A LEGAL OPINION ONLY, AND NO OPINIONS MAY
BE INFERRED OR IMPLIED BEYOND THE MATTERS EXPRESSLY STATED HEREIN. THIS OPINION
IS SOLELY FOR THE BENEFIT OF THE AGENT AND THE BANKS (AND THEIR PERMITTED
ASSIGNEES) AND MAY NOT BE RELIED UPON IN ANY MANNER FOR ANY PURPOSE BY ANY OTHER
PERSON OR ENTITY WITHOUT OUR PRIOR WRITTEN CONSENT. THIS OPINION SPEAKS AS OF
ITS DATE ONLY, AND WE DISCLAIM ANY UNDERTAKING OR OBLIGATION TO ADVISE YOU OF
CHANGES THAT HEREAFTER MAY BE BROUGHT TO OUR ATTENTION.
VERY TRULY YOURS,
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EXHIBIT C
FORM OF COMPLIANCE CERTIFICATE
TO: THE LENDERS PARTIES TO THE
CREDIT AGREEMENT DESCRIBED BELOW
THIS COMPLIANCE CERTIFICATE IS FURNISHED PURSUANT TO THAT
CERTAIN 364-DAY CREDIT AGREEMENT DATED AS OF DECEMBER 21, 1998 (AS AMENDED,
MODIFIED, RENEWED OR EXTENDED FROM TIME TO TIME, THE "AGREEMENT") AMONG
OMNICARE, INC. (THE "BORROWER"), THE LENDERS PARTY THERETO AND THE FIRST
NATIONAL BANK OF CHICAGO, AS CONTRACTUAL REPRESENTATIVE (THE "AGENT") FOR THE
LENDERS. UNLESS OTHERWISE DEFINED HEREIN, CAPITALIZED TERMS USED IN THIS
COMPLIANCE CERTIFICATE HAVE THE MEANINGS ASCRIBED THERETO IN THE AGREEMENT.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I AM THE DULY ELECTED __________________ OF THE BORROWER
AND THE CHIEF FINANCIAL OFFICER;
2. I HAVE REVIEWED THE TERMS OF THE AGREEMENT AND I HAVE MADE,
OR HAVE CAUSED TO BE MADE UNDER MY SUPERVISION, A DETAILED REVIEW OF THE
TRANSACTIONS AND CONDITIONS OF THE BORROWER AND ITS SUBSIDIARIES DURING THE
ACCOUNTING PERIOD COVERED BY THE ATTACHED FINANCIAL STATEMENTS;
3. THE EXAMINATIONS DESCRIBED IN PARAGRAPH 2 DID NOT DISCLOSE,
AND I HAVE NO KNOWLEDGE OF, THE EXISTENCE OF ANY CONDITION OR EVENT WHICH
CONSTITUTES A DEFAULT OR UNMATURED DEFAULT DURING OR AT THE END OF THE
ACCOUNTING PERIOD COVERED BY THE ATTACHED FINANCIAL STATEMENTS OR AS OF THE DATE
OF THIS CERTIFICATE, EXCEPT AS SET FORTH BELOW; AND
4. SCHEDULE I ATTACHED HERETO SETS FORTH FINANCIAL DATA AND
COMPUTATIONS EVIDENCING THE BORROWER'S COMPLIANCE WITH CERTAIN COVENANTS OF THE
AGREEMENT, ALL OF WHICH DATA AND COMPUTATIONS ARE TRUE, COMPLETE AND CORRECT.
DESCRIBED BELOW ARE THE EXCEPTIONS, IF ANY, TO PARAGRAPH 3 BY
LISTING, IN DETAIL, THE NATURE OF THE CONDITION OR EVENT, THE PERIOD DURING
WHICH IT HAS EXISTED AND THE ACTION WHICH THE BORROWER HAS TAKEN, IS TAKING, OR
PROPOSES TO TAKE WITH RESPECT TO EACH SUCH CONDITION OR EVENT:
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-----------------------------------------------------------------
-----------------------------------------------------------------
THE FOREGOING CERTIFICATIONS, TOGETHER WITH THE COMPUTATIONS
SET FORTH IN SCHEDULE I HERETO AND THE FINANCIAL STATEMENTS DELIVERED WITH THIS
CERTIFICATE IN SUPPORT HEREOF, ARE MADE AND DELIVERED THIS _____ DAY OF
__________, ____.
--------------------------------
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SAMPLE SCHEDULE I TO COMPLIANCE CERTIFICATE
SCHEDULE OF COMPLIANCE AS OF _______________ WITH
PROVISIONS OF ____ AND ___ OF
THE AGREEMENT
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EXHIBIT D
FORM OF ASSIGNMENT AGREEMENT
THIS ASSIGNMENT AGREEMENT (THIS "ASSIGNMENT AGREEMENT")
BETWEEN _______________ (THE "ASSIGNOR") AND ______________ (THE "ASSIGNEE") IS
DATED AS OF _________, 19___. THE PARTIES HERETO AGREE AS FOLLOWS:
1. PRELIMINARY STATEMENT. THE ASSIGNOR IS A PARTY TO A 364-DAY
CREDIT AGREEMENT (WHICH, AS IT MAY BE AMENDED, MODIFIED, RENEWED OR EXTENDED
FROM TIME TO TIME IS HEREIN CALLED THE "CREDIT AGREEMENT") DESCRIBED IN ITEM 1
OF SCHEDULE 1 ATTACHED HERETO ("SCHEDULE 1"). CAPITALIZED TERMS USED HEREIN AND
NOT OTHERWISE DEFINED HEREIN SHALL HAVE THE MEANINGS ATTRIBUTED TO THEM IN THE
CREDIT AGREEMENT.
2. ASSIGNMENT AND ASSUMPTION. THE ASSIGNOR HEREBY SELLS AND
ASSIGNS TO THE ASSIGNEE, AND THE ASSIGNEE HEREBY PURCHASES AND ASSUMES FROM THE
ASSIGNOR, AN INTEREST IN AND TO THE ASSIGNOR'S RIGHTS AND OBLIGATIONS UNDER THE
CREDIT AGREEMENT SUCH THAT AFTER GIVING EFFECT TO SUCH ASSIGNMENT THE ASSIGNEE
SHALL HAVE PURCHASED PURSUANT TO THIS ASSIGNMENT AGREEMENT THE PERCENTAGE
INTEREST SPECIFIED IN ITEM 3 OF SCHEDULE 1 OF ALL OUTSTANDING RIGHTS AND
OBLIGATIONS UNDER THE CREDIT AGREEMENT AND THE OTHER LOAN DOCUMENTS. THE
AGGREGATE COMMITMENT (OR LOANS, IF THE APPLICABLE COMMITMENT HAS BEEN
TERMINATED) PURCHASED BY THE ASSIGNEE HEREUNDER IS SET FORTH IN ITEM 4 OF
SCHEDULE 1.
3. EFFECTIVE DATE. THE EFFECTIVE DATE OF THIS ASSIGNMENT
AGREEMENT (THE "EFFECTIVE DATE") SHALL BE THE LATER OF (I) THE DATE SPECIFIED IN
ITEM 5 OF SCHEDULE 1 OR (II) TWO BUSINESS DAYS (OR SUCH SHORTER PERIOD AGREED TO
BY THE AGENT) AFTER A NOTICE OF ASSIGNMENT SUBSTANTIALLY IN THE FORM OF EXHIBIT
H ATTACHED HERETO, TOGETHER WITH ANY CONSENTS AND FEES REQUIRED BY SECTIONS
12.3.1 AND 12.3.2 OF THE CREDIT AGREEMENT, HAS BEEN DELIVERED TO THE AGENT. IN
NO EVENT WILL THE EFFECTIVE DATE OCCUR IF THE PAYMENTS REQUIRED TO BE MADE BY
THE ASSIGNEE TO THE ASSIGNOR ON THE EFFECTIVE DATE UNDER SECTIONS 4 AND 5 HEREOF
ARE NOT MADE ON THE PROPOSED EFFECTIVE DATE. THE ASSIGNOR WILL NOTIFY THE
ASSIGNEE OF THE PROPOSED EFFECTIVE DATE NO LATER THAN THE BUSINESS DAY PRIOR TO
THE PROPOSED EFFECTIVE DATE. AS OF THE EFFECTIVE DATE, (a) THE ASSIGNEE SHALL
HAVE THE RIGHTS AND OBLIGATIONS OF A LENDER UNDER THE LOAN DOCUMENTS WITH
RESPECT TO THE RIGHTS AND OBLIGATIONS ASSIGNED TO THE ASSIGNEE HEREUNDER AND (b)
THE ASSIGNOR SHALL RELINQUISH ITS RIGHTS (OTHER THAN ITS RIGHTS PURSUANT TO
SECTIONS 3.1, 3.2, 3.4, 3.5 AND 9.7) AND BE RELEASED FROM ITS CORRESPONDING
OBLIGATIONS UNDER THE LOAN DOCUMENTS WITH RESPECT TO THE RIGHTS AND OBLIGATIONS
ASSIGNED TO THE ASSIGNEE HEREUNDER.
4. PAYMENTS OBLIGATIONS. ON AND AFTER THE EFFECTIVE DATE, THE
ASSIGNEE SHALL BE ENTITLED TO RECEIVE FROM THE AGENT ALL PAYMENTS OF PRINCIPAL,
INTEREST AND FEES WITH RESPECT TO THE INTEREST ASSIGNED HEREBY. THE ASSIGNEE
SHALL ADVANCE FUNDS DIRECTLY TO THE AGENT WITH RESPECT TO ALL LOANS MADE ON OR
AFTER THE EFFECTIVE DATE WITH RESPECT TO THE INTEREST ASSIGNED HEREBY. [IN
CONSIDERATION FOR THE SALE AND ASSIGNMENT OF LOANS HEREUNDER, (a) THE ASSIGNEE
SHALL PAY THE ASSIGNOR, ON THE EFFECTIVE DATE, AN AMOUNT EQUAL TO THE PRINCIPAL
AMOUNT OF THE PORTION OF ALL FLOATING RATE LOANS ASSIGNED TO THE ASSIGNEE
HEREUNDER AND (b) WITH RESPECT TO EACH EURODOLLAR RATE LOAN MADE BY THE ASSIGNOR
AND ASSIGNED TO THE ASSIGNEE HEREUNDER WHICH IS OUTSTANDING ON THE EFFECTIVE
DATE, ON THE EARLIEST OF (I) THE LAST DAY OF THE INTEREST PERIOD THEREFOR, (II)
SUCH EARLIER DATE AGREED TO BY THE ASSIGNOR AND THE ASSIGNEE AND (III) THE DATE
ON WHICH ANY SUCH EURODOLLAR RATE LOAN EITHER BECOMES DUE (BY ACCELERATION OR
OTHERWISE) OR IS PREPAID (SUCH EARLIEST DATE BEING HEREINAFTER REFERRED TO AS
THE "PAYMENT DATE"), THE ASSIGNEE SHALL PAY THE ASSIGNOR AN AMOUNT EQUAL TO THE
PRINCIPAL AMOUNT OF THE PORTION OF SUCH EURODOLLAR RATE LOAN ASSIGNED TO THE
ASSIGNEE WHICH IS OUTSTANDING ON THE PAYMENT DATE. IF THE ASSIGNOR AND THE
ASSIGNEE AGREE THAT THE PAYMENT DATE FOR SUCH EURODOLLAR RATE LOAN SHALL BE THE
EFFECTIVE DATE, THEY SHALL AGREE ON THE INTEREST RATE APPLICABLE TO THE PORTION
OF SUCH LOAN ASSIGNED HEREUNDER FOR THE PERIOD FROM THE EFFECTIVE DATE TO THE
END OF THE EXISTING INTEREST PERIOD APPLICABLE TO SUCH EURODOLLAR RATE LOAN (THE
"AGREED INTEREST RATE") AND ANY INTEREST RECEIVED BY THE ASSIGNEE IN EXCESS OF
THE AGREED INTEREST RATE SHALL BE REMITTED TO THE ASSIGNOR. IN THE EVENT
INTEREST FOR THE PERIOD FROM THE EFFECTIVE DATE TO BUT NOT INCLUDING THE PAYMENT
DATE IS NOT PAID BY THE BORROWER WITH RESPECT TO ANY EURODOLLAR RATE LOAN SOLD
BY THE ASSIGNOR TO THE ASSIGNEE HEREUNDER, THE ASSIGNEE SHALL PAY TO THE
ASSIGNOR INTEREST FOR SUCH PERIOD ON THE PORTION OF SUCH EURODOLLAR RATE LOAN
SOLD BY THE ASSIGNOR TO THE ASSIGNEE HEREUNDER AT THE APPLICABLE RATE PROVIDED
BY THE CREDIT AGREEMENT. IN THE EVENT A PREPAYMENT OF ANY EURODOLLAR RATE LOAN
WHICH IS EXISTING ON THE PAYMENT DATE
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AND ASSIGNED BY THE ASSIGNOR TO THE ASSIGNEE HEREUNDER OCCURS AFTER THE PAYMENT
DATE BUT BEFORE THE END OF THE INTEREST PERIOD APPLICABLE TO SUCH EURODOLLAR
RATE LOAN, THE ASSIGNEE SHALL REMIT TO THE ASSIGNOR THE EXCESS OF THE PREPAYMENT
PENALTY PAID WITH RESPECT TO THE PORTION OF SUCH EURODOLLAR RATE LOAN ASSIGNED
TO THE ASSIGNEE HEREUNDER OVER THE AMOUNT WHICH WOULD HAVE BEEN PAID IF SUCH
PREPAYMENT PENALTY WAS CALCULATED BASED ON THE AGREED INTEREST RATE. THE
ASSIGNEE WILL ALSO PROMPTLY REMIT TO THE ASSIGNOR (a) ANY PRINCIPAL PAYMENTS
RECEIVED FROM THE AGENT WITH RESPECT TO EURODOLLAR RATE LOANS PRIOR TO THE
PAYMENT DATE AND (b) ANY AMOUNTS OF INTEREST ON LOANS AND FEES RECEIVED FROM THE
AGENT WHICH RELATE TO THE PORTION OF THE LOANS OR COMMITMENT ASSIGNED TO THE
ASSIGNEE HEREUNDER FOR PERIODS PRIOR TO THE EFFECTIVE DATE, IN THE CASE OF
FLOATING RATE LOANS, OR THE PAYMENT DATE, IN THE CASE OF EURODOLLAR RATE LOANS,
AND NOT PREVIOUSLY PAID BY THE ASSIGNEE TO THE ASSIGNOR.]* IN THE EVENT THAT
EITHER PARTY HERETO RECEIVES ANY PAYMENT TO WHICH THE OTHER PARTY HERETO IS
ENTITLED UNDER THIS ASSIGNMENT AGREEMENT, THEN THE PARTY RECEIVING SUCH AMOUNT
SHALL PROMPTLY REMIT IT TO THE OTHER PARTY HERETO.
5. FEES PAYABLE BY THE ASSIGNEE. THE ASSIGNEE AGREES TO PAY
__% OF THE RECORDATION FEE REQUIRED TO BE PAID TO THE AGENT IN CONNECTION WITH
THIS ASSIGNMENT AGREEMENT PURSUANT TO SECTION 12.3.2 OF THE CREDIT AGREEMENT.
6. REPRESENTATIONS OF THE ASSIGNOR; LIMITATIONS ON THE
ASSIGNOR'S LIABILITY. THE ASSIGNOR REPRESENTS AND WARRANTS THAT IT IS THE LEGAL
AND BENEFICIAL OWNER OF THE INTEREST BEING ASSIGNED BY IT HEREUNDER AND THAT
SUCH INTEREST IS FREE AND CLEAR OF ANY ADVERSE CLAIM CREATED BY THE ASSIGNOR. IT
IS UNDERSTOOD AND AGREED THAT THE ASSIGNMENT AND ASSUMPTION HEREUNDER ARE MADE
WITHOUT RECOURSE TO THE ASSIGNOR AND THAT THE ASSIGNOR MAKES NO OTHER
REPRESENTATION OR WARRANTY OF ANY KIND TO THE ASSIGNEE. NEITHER THE ASSIGNOR NOR
ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR ATTORNEYS SHALL BE
RESPONSIBLE FOR (a) THE DUE EXECUTION, LEGALITY, VALIDITY, ENFORCEABILITY,
GENUINENESS, SUFFICIENCY OR COLLECTABILITY OF ANY LOAN DOCUMENT, INCLUDING
WITHOUT LIMITATION, DOCUMENTS GRANTING THE ASSIGNOR AND THE OTHER LENDERS A
SECURITY INTEREST IN ASSETS OF THE BORROWER OR ANY GUARANTOR, (b) ANY
REPRESENTATION, WARRANTY OR STATEMENT MADE IN OR IN CONNECTION WITH ANY OF THE
LOAN DOCUMENTS, (c) THE FINANCIAL CONDITION OR CREDITWORTHINESS OF THE BORROWER
OR ANY GUARANTOR, (d) THE PERFORMANCE OF OR COMPLIANCE WITH ANY OF THE TERMS OR
PROVISIONS OF ANY OF THE LOAN DOCUMENTS, (e) INSPECTING ANY OF THE PROPERTY,
BOOKS OR RECORDS OF THE BORROWER, (f) THE VALIDITY, ENFORCEABILITY, PERFECTION,
PRIORITY, CONDITION, VALUE OR SUFFICIENCY OF ANY COLLATERAL SECURING OR
PURPORTING TO SECURE THE LOANS OR (g) ANY MISTAKE, ERROR OF JUDGMENT, OR ACTION
TAKEN OR OMITTED TO BE TAKEN IN CONNECTION WITH THE LOANS OR THE LOAN DOCUMENTS.
7. REPRESENTATIONS OF THE ASSIGNEE. THE ASSIGNEE (a) CONFIRMS
THAT IT HAS RECEIVED A COPY OF THE CREDIT AGREEMENT, TOGETHER WITH COPIES OF THE
FINANCIAL STATEMENTS REQUESTED BY THE ASSIGNEE AND SUCH OTHER DOCUMENTS AND
INFORMATION AS IT HAS DEEMED APPROPRIATE TO MAKE ITS OWN CREDIT ANALYSIS AND
DECISION TO ENTER INTO THIS ASSIGNMENT AGREEMENT, (b) AGREES THAT IT WILL,
INDEPENDENTLY AND WITHOUT RELIANCE UPON THE AGENT, THE ASSIGNOR OR ANY OTHER
LENDER AND BASED ON SUCH DOCUMENTS AND INFORMATION AT IT SHALL DEEM APPROPRIATE
AT THE TIME, CONTINUE TO MAKE ITS OWN CREDIT DECISIONS IN TAKING OR NOT TAKING
ACTION UNDER THE LOAN DOCUMENTS, (c) APPOINTS AND AUTHORIZES THE AGENT TO TAKE
SUCH ACTION AS AGENT ON ITS BEHALF AND TO EXERCISE SUCH POWERS UNDER THE LOAN
DOCUMENTS AS ARE DELEGATED TO THE AGENT BY THE TERMS THEREOF, TOGETHER WITH SUCH
POWERS AS ARE REASONABLY INCIDENTAL THERETO,
----------------------------
* Each Assignor may insert its standard payment provisions in
lieu of the foregoing payment terms.
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(d) AGREES THAT IT WILL PERFORM IN ACCORDANCE WITH THEIR TERMS ALL OF THE
OBLIGATIONS WHICH BY THE TERMS OF THE LOAN DOCUMENTS ARE REQUIRED TO BE
PERFORMED BY IT AS A LENDER, (e) AGREES THAT ITS PAYMENT INSTRUCTIONS AND NOTICE
INSTRUCTIONS ARE AS SET FORTH IN THE ATTACHMENT TO SCHEDULE 1[,] [AND] (e)
CONFIRMS THAT NONE OF THE FUNDS, MONIES, ASSETS OR OTHER CONSIDERATION BEING
USED TO MAKE THE PURCHASE AND ASSUMPTION HEREUNDER ARE "PLAN ASSETS" AS DEFINED
UNDER ERISA AND THAT ITS RIGHTS, BENEFITS AND INTERESTS IN AND UNDER THE LOAN
DOCUMENTS WILL NOT BE "PLAN ASSETS" UNDER ERISA [AND (f) ATTACHES THE FORMS
PRESCRIBED BY THE INTERNAL REVENUE SERVICE OF THE UNITED STATES CERTIFYING THAT
THE ASSIGNEE IS ENTITLED TO RECEIVE PAYMENTS UNDER THE LOAN DOCUMENTS WITHOUT
DEDUCTION OR WITHHOLDING OF ANY UNITED STATES FEDERAL INCOME TAXES].*
8. INDEMNITY. THE ASSIGNEE AGREES TO INDEMNIFY AND HOLD
HARMLESS THE ASSIGNOR AGAINST ANY AND ALL LOSSES, COSTS AND EXPENSES (INCLUDING,
WITHOUT LIMITATION, REASONABLE ATTORNEYS' FEES) AND LIABILITIES INCURRED BY THE
ASSIGNOR IN CONNECTION WITH OR ARISING IN ANY MANNER FROM THE ASSIGNEE'S
NON-PERFORMANCE OF THE OBLIGATIONS ASSUMED UNDER THIS ASSIGNMENT AGREEMENT.
9. SUBSEQUENT ASSIGNMENTS. AFTER THE EFFECTIVE DATE, THE
ASSIGNEE SHALL HAVE THE RIGHT PURSUANT TO SECTION 12.3.1 OF THE CREDIT AGREEMENT
TO ASSIGN THE RIGHTS WHICH ARE ASSIGNED TO THE ASSIGNEE HEREUNDER TO ANY ENTITY
OR PERSON, PROVIDED THAT (a) ANY SUCH SUBSEQUENT ASSIGNMENT DOES NOT VIOLATE ANY
OF THE TERMS AND CONDITIONS OF THE LOAN DOCUMENTS OR ANY LAW, RULE, REGULATION,
ORDER, WRIT, JUDGMENT, INJUNCTION OR DECREE AND THAT ANY CONSENT REQUIRED UNDER
THE TERMS OF THE LOAN DOCUMENTS HAS BEEN OBTAINED AND (b) UNLESS THE PRIOR
WRITTEN CONSENT OF THE ASSIGNOR IS OBTAINED, THE ASSIGNEE IS NOT THEREBY
RELEASED FROM ITS OBLIGATIONS TO THE ASSIGNOR HEREUNDER, IF ANY REMAIN
UNSATISFIED, INCLUDING, WITHOUT LIMITATION, ITS OBLIGATIONS UNDER SECTIONS 4, 5
AND 8 HEREOF.
10. REDUCTIONS OF AGGREGATE COMMITMENT. IF ANY REDUCTION IN
THE AGGREGATE COMMITMENT OCCURS BETWEEN THE DATE OF THIS ASSIGNMENT AGREEMENT
AND THE EFFECTIVE DATE, THE PERCENTAGE INTEREST SPECIFIED IN ITEM 3 OF SCHEDULE
1 SHALL REMAIN THE SAME, BUT THE DOLLAR AMOUNT PURCHASED SHALL BE RECALCULATED
BASED ON THE REDUCED AGGREGATE COMMITMENT.
11. ENTIRE AGREEMENT. THIS ASSIGNMENT AGREEMENT AND THE
ATTACHED NOTICE OF ASSIGNMENT EMBODY THE ENTIRE AGREEMENT AND UNDERSTANDING
BETWEEN THE PARTIES HERETO AND SUPERSEDE ALL PRIOR AGREEMENTS AND UNDERSTANDINGS
BETWEEN THE PARTIES HERETO RELATING TO THE SUBJECT MATTER HEREOF.
12. GOVERNING LAW. THIS ASSIGNMENT AGREEMENT SHALL BE GOVERNED
BY THE INTERNAL LAW, AND NOT THE LAW OF CONFLICTS, OF THE STATE OF ILLINOIS.
13. NOTICES. NOTICES SHALL BE GIVEN UNDER THIS ASSIGNMENT
AGREEMENT IN THE MANNER SET FORTH IN THE CREDIT AGREEMENT. FOR THE PURPOSE
HEREOF, THE ADDRESSES OF THE PARTIES HERETO (UNTIL NOTICE OF A CHANGE IS
DELIVERED) SHALL BE THE ADDRESSES SET FORTH IN THE ATTACHMENT TO SCHEDULE 1.
------------------------
* To be inserted if the Assignee is not incorporated under the
laws of the United States, or a state thereof.
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IN WITNESS WHEREOF, THE PARTIES HERETO HAVE EXECUTED THIS
ASSIGNMENT AGREEMENT BY THEIR DULY AUTHORIZED OFFICERS AS OF THE DATE FIRST
ABOVE WRITTEN.
[NAME OF ASSIGNOR]
BY:
----------------------------
TITLE:
--------------------------
--------------------------------
--------------------------------
[NAME OF ASSIGNEE]
BY:
----------------------------
TITLE:
--------------------------
--------------------------------
--------------------------------
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SCHEDULE 1
TO ASSIGNMENT AGREEMENT
1. DESCRIPTION AND DATE OF CREDIT AGREEMENT:
364-DAY CREDIT AGREEMENT DATED AS OF DECEMBER 21, 1998, AMONG
OMNICARE, INC., THE VARIOUS FINANCIAL INSTITUTIONS PARTIES
THERETO (THE "LENDERS") AND THE FIRST NATIONAL BANK OF
CHICAGO, AS CONTRACTUAL REPRESENTATIVE (THE "AGENT") FOR THE
LENDERS, AS AMENDED FROM TIME TO TIME
2. DATE OF ASSIGNMENT AGREEMENT: ________, ___
3. AMOUNTS (AS OF DATE OF ITEM 2 ABOVE):
A. TOTAL OF COMMITMENTS* UNDER
CREDIT AGREEMENT $________
B. ASSIGNEE'S PERCENTAGE
OF THE FACILITY PURCHASED UNDER
THE ASSIGNMENT AGREEMENT** ________%
C. AMOUNT OF ASSIGNED SHARE
IN THE FACILITY PURCHASED UNDER
THE ASSIGNMENT AGREEMENT $________
4. ASSIGNEE'S AGGREGATE COMMIT-
MENT AMOUNT*
PURCHASED HEREUNDER: $________
5. PROPOSED EFFECTIVE DATE: ____________________
---------------------
* If the Aggregate Commitment has been terminated, insert
outstanding Loans in place of Commitments.
** Percentage taken to 10 decimal places.
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ACCEPTED AND AGREED:
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
BY: BY:
------------------------- ------------------------------
TITLE: TITLE:
---------------------- ---------------------------
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ATTACHMENT TO SCHEDULE 1 TO ASSIGNMENT AGREEMENT
ATTACH ASSIGNOR'S ADMINISTRATIVE INFORMATION SHEET, WHICH MUST
INCLUDE NOTICE ADDRESS FOR THE ASSIGNOR AND THE ASSIGNEE
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EXHIBIT 1
TO ASSIGNMENT AGREEMENT
FORM OF NOTICE OF ASSIGNMENT
____________, __
TO: OMNICARE, INC.
2800 CHEMED CENTER
000 XXXX XXXXX XXXXXX
XXXXXXXXXX, XX 00000
ATTENTION: CHIEF FINANCIAL OFFICER
THE FIRST NATIONAL BANK OF CHICAGO, AS AGENT
XXX XXXXX XXXXXXXX XXXXX
XXXXXXX, XXXXXXXX 00000
ATTENTION: XXXXX XXXXX
FROM: [NAME OF ASSIGNOR] (THE "ASSIGNOR")
[NAME OF ASSIGNEE] (THE "ASSIGNEE")
1. WE REFER TO THE 364-DAY CREDIT AGREEMENT (AS IT MAY BE
AMENDED, MODIFIED, RENEWED OR EXTENDED FROM TIME TO TIME, THE "CREDIT
AGREEMENT") DESCRIBED IN ITEM 1 OF SCHEDULE 1 ATTACHED HERETO ("SCHEDULE 1").
CAPITALIZED TERMS USED HEREIN AND NOT OTHERWISE DEFINED HEREIN SHALL HAVE THE
MEANINGS ATTRIBUTED TO THEM IN THE CREDIT AGREEMENT.
2. THIS NOTICE OF ASSIGNMENT (THIS "NOTICE") IS GIVEN AND
DELIVERED TO THE BORROWER AND THE AGENT PURSUANT TO SECTION 12.3.2 OF THE CREDIT
AGREEMENT.
3. THE ASSIGNOR AND THE ASSIGNEE HAVE ENTERED INTO AN
ASSIGNMENT AGREEMENT, DATED AS OF , (THE "ASSIGNMENT"), PURSUANT TO WHICH, AMONG
OTHER THINGS, THE ASSIGNOR HAS SOLD, ASSIGNED, DELEGATED AND TRANSFERRED TO THE
ASSIGNEE, AND THE ASSIGNEE HAS PURCHASED, ACCEPTED AND ASSUMED FROM THE ASSIGNOR
THE PERCENTAGE INTEREST SPECIFIED IN ITEM 3 OF SCHEDULE 1 OF ALL OUTSTANDINGS,
RIGHTS AND OBLIGATIONS UNDER THE CREDIT AGREEMENT. THE EFFECTIVE DATE OF THE
ASSIGNMENT SHALL BE THE LATER OF THE DATE SPECIFIED IN ITEM 5 OF SCHEDULE 1 OR
TWO BUSINESS DAYS (OR SUCH SHORTER PERIOD AS AGREED TO BY THE AGENT) AFTER THIS
NOTICE OF ASSIGNMENT AND ANY CONSENTS AND FEES REQUIRED BY SECTIONS 12.3.1 AND
12.3.2 OF THE CREDIT AGREEMENT HAVE BEEN DELIVERED TO THE AGENT, PROVIDED THAT
THE EFFECTIVE DATE SHALL NOT OCCUR IF ANY CONDITION PRECEDENT AGREED TO BY THE
ASSIGNOR AND THE ASSIGNEE HAS NOT BEEN SATISFIED.
4. THE ASSIGNOR AND THE ASSIGNEE HEREBY GIVE TO THE BORROWER
AND THE AGENT NOTICE OF THE ASSIGNMENT AND DELEGATION REFERRED TO HEREIN. THE
ASSIGNOR WILL CONFER WITH THE AGENT BEFORE THE DATE SPECIFIED IN ITEM 5 OF
SCHEDULE 1 TO DETERMINE IF THE ASSIGNMENT AGREEMENT WILL BECOME EFFECTIVE ON
SUCH DATE PURSUANT TO SECTION
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3 HEREOF, AND WILL CONFER WITH THE AGENT TO DETERMINE THE EFFECTIVE DATE
PURSUANT TO SECTION 3 HEREOF IF IT OCCURS THEREAFTER. THE ASSIGNOR SHALL NOTIFY
THE AGENT IF THE ASSIGNMENT AGREEMENT DOES NOT BECOME EFFECTIVE ON ANY PROPOSED
EFFECTIVE DATE AS A RESULT OF THE FAILURE TO SATISFY THE CONDITIONS PRECEDENT
AGREED TO BY THE ASSIGNOR AND THE ASSIGNEE. AT THE REQUEST OF THE AGENT, THE
ASSIGNOR WILL GIVE THE AGENT WRITTEN CONFIRMATION OF THE SATISFACTION OF THE
CONDITIONS PRECEDENT.
5. THE ASSIGNOR OR THE ASSIGNEE SHALL PAY TO THE AGENT ON OR
BEFORE THE EFFECTIVE DATE THE PROCESSING FEE OF $3,500 REQUIRED BY SECTION
12.3.2 OF THE CREDIT AGREEMENT.*
6. IF NOTES ARE OUTSTANDING ON THE EFFECTIVE DATE, THE
ASSIGNOR AND THE ASSIGNEE REQUEST AND DIRECT THAT THE AGENT PREPARE AND CAUSE
THE BORROWER TO EXECUTE AND DELIVER NEW NOTES OR, AS APPROPRIATE, REPLACEMENT
NOTES, TO THE ASSIGNOR AND THE ASSIGNEE. THE ASSIGNOR AND, IF APPLICABLE, THE
ASSIGNEE EACH AGREE TO DELIVER TO THE AGENT THE ORIGINAL NOTES RECEIVED BY IT
FROM THE BORROWER UPON ITS RECEIPT OF NEW NOTES IN THE APPROPRIATE AMOUNT.
7. THE ASSIGNEE ADVISES THE AGENT THAT ITS NOTICE AND PAYMENT
INSTRUCTIONS ARE SET FORTH IN THE ATTACHMENT TO SCHEDULE 1.
8. THE ASSIGNEE HEREBY REPRESENTS AND WARRANTS THAT NONE OF
THE FUNDS, MONIES, ASSETS OR OTHER CONSIDERATION BEING USED TO MAKE THE PURCHASE
PURSUANT TO THE ASSIGNMENT ARE "PLAN ASSETS" AS DEFINED UNDER ERISA AND THAT ITS
RIGHTS, BENEFITS, AND INTERESTS IN AND UNDER THE LOAN DOCUMENTS WILL NOT BE
"PLAN ASSETS" UNDER ERISA.
-----------------
* Such fee to be for the account of the Borrower if pursuant to
SECTION 3.5 of the Credit Agreement.
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9. THE ASSIGNEE AUTHORIZES THE AGENT TO ACT AS ITS AGENT UNDER
THE LOAN DOCUMENTS IN ACCORDANCE WITH THE TERMS THEREOF. THE ASSIGNEE
ACKNOWLEDGES THAT THE AGENT HAS NO DUTY TO SUPPLY INFORMATION WITH RESPECT TO
THE BORROWER OR THE LOAN DOCUMENTS TO THE ASSIGNEE UNTIL THE ASSIGNEE BECOMES A
PARTY TO THE CREDIT AGREEMENT.*
NAME OF ASSIGNOR NAME OF ASSIGNEE
BY: BY:
------------------------- ----------------------------
TITLE: TITLE:
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ACKNOWLEDGED AND CONSENTED ACKNOWLEDGED AND CONSENTED
TO BY THE FIRST NATIONAL TO BY OMNICARE, INC.
BANK OF CHICAGO, AS AGENT
BY: BY:
------------------------- ----------------------------
TITLE: TITLE:
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[ATTACH PHOTOCOPY OF SCHEDULE 1 TO ASSIGNMENT AS SCHEDULE 1 HERETO]
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* This paragraph may be eliminated if the Assignee is a party to
the Credit Agreement prior to the Effective Date.
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81
EXHIBIT E
FORM OF LOAN/CREDIT RELATED MONEY TRANSFER INSTRUCTION
TO THE FIRST NATIONAL BANK OF CHICAGO,
AS AGENT (THE "AGENT") UNDER THE CREDIT AGREEMENT
DESCRIBED BELOW.
RE: 364-DAY CREDIT AGREEMENT, DATED AS OF DECEMBER 21, 1998 (AS THE SAME
MAY BE AMENDED OR MODIFIED, THE "CREDIT AGREEMENT"), AMONG OMNICARE,
INC., THE FINANCIAL INSTITUTIONS PARTIES THERETO (THE "LENDERS") AND
THE FIRST NATIONAL BANK OF CHICAGO, AS CONTRACTUAL REPRESENTATIVE (THE
"AGENT") FOR THE LENDERS. TERMS USED HEREIN AND NOT OTHERWISE DEFINED
SHALL HAVE THE MEANINGS ASSIGNED THERETO IN THE CREDIT AGREEMENT.
THE AGENT IS SPECIFICALLY AUTHORIZED AND DIRECTED TO
ACT UPON THE FOLLOWING STANDING MONEY TRANSFER INSTRUCTIONS WITH RESPECT TO THE
PROCEEDS OF ADVANCES OR OTHER EXTENSIONS OF CREDIT FROM TIME TO TIME UNTIL
RECEIPT BY THE AGENT OF A SPECIFIC WRITTEN REVOCATION OF SUCH INSTRUCTIONS BY
THE BORROWER SIGNED BY TWO AUTHORIZED OFFICERS; PROVIDED, HOWEVER, THAT THE
AGENT MAY OTHERWISE TRANSFER FUNDS AS HEREAFTER DIRECTED IN WRITING BY AN
AUTHORIZED OFFICER OF THE BORROWER, IT BEING UNDERSTOOD THAT ANY CHANGE IN
STANDING WIRE TRANSFER INSTRUCTIONS FOR THE TRANSFER OF FUNDS SHALL ONLY BE MADE
UPON THE WRITTEN DIRECTION OF TWO AUTHORIZED OFFICERS.
FACILITY IDENTIFICATION NUMBER(S)________________________________
CUSTOMER/ACCOUNT NAME____________________________________________
TRANSFER FUNDS TO________________________________________________
______________________________________________
______________________________________________
FOR ACCOUNT NO.__________________________________________________
REFERENCE/ATTENTION TO___________________________________________
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To the Lenders and the Agent
referred to herein Page 2
AUTHORIZED OFFICER (CUSTOMER REPRESENTATIVE) DATE_______________
----------------------------- -----------------------------------
(PLEASE PRINT) SIGNATURE
BANK OFFICER NAME
----------------------------- -----------------------------------
(PLEASE PRINT) SIGNATURE
(DELIVER COMPLETED FORM TO CREDIT SUPPORT STAFF FOR IMMEDIATE PROCESSING)
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83
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To the Lenders and the Agent
referred to herein Page 1
EXHIBIT F
FORM OF BORROWING NOTICE
[DATE]
THE FIRST NATIONAL BANK OF CHICAGO, AS AGENT
XXX XXXXX XXXXXXXX XXXXX
XXXXXXX, XXXXXXXX 00000
ATTENTION: XXXXX XXXXX
LADIES AND GENTLEMEN:
THE UNDERSIGNED, OMNICARE, INC., REFERS TO THE
364-DAY CREDIT AGREEMENT, DATED AS OF DECEMBER 21, 1998 (AS AMENDED, THE "CREDIT
AGREEMENT", THE TERMS DEFINED THEREIN BEING USED HEREIN AS THEREIN DEFINED),
AMONG THE UNDERSIGNED, CERTAIN LENDERS PARTIES THERETO AND THE FIRST NATIONAL
BANK OF CHICAGO, AS AGENT FOR SAID LENDERS (THE "AGENT"). THE UNDERSIGNED HEREBY
GIVES YOU NOTICE, IRREVOCABLY, PURSUANT TO SECTION 2.6 OF THE CREDIT AGREEMENT
THAT THE UNDERSIGNED HEREBY REQUESTS AN ADVANCE UNDER THE CREDIT AGREEMENT, AND
IN THAT CONNECTION SETS FORTH BELOW THE INFORMATION RELATING TO SUCH ADVANCE
(THE "PROPOSED ADVANCE") AS REQUIRED BY SECTION 2.6 OF THE CREDIT AGREEMENT:
(a) THE BORROWING DATE FOR THE PROPOSED ADVANCE IS
_________________, ____.
(b) THE AGGREGATE AMOUNT OF THE PROPOSED ADVANCE IS
________________________.
(c) THE PROPOSED ADVANCE IS TO BE [A FLOATING RATE
ADVANCE] [A EURODOLLAR ADVANCE].
(d) THE INTEREST PERIOD FOR THE PROPOSED ADVANCE IS ___
MONTHS.*
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* To be included if the Proposed Advance is to be a Eurodollar
Advance.
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To the Lenders and the Agent
referred to herein Page 2
THE UNDERSIGNED HEREBY CERTIFIES THAT THE FOLLOWING
STATEMENTS ARE TRUE ON THE DATE HEREOF, AND WILL BE TRUE ON THE DATE OF THE
PROPOSED ADVANCE:
(A) THE REPRESENTATIONS AND WARRANTIES CONTAINED IN ARTICLE V
OF THE CREDIT AGREEMENT ARE CORRECT IN ALL MATERIAL RESPECTS, BEFORE
AND AFTER GIVING EFFECT TO THE PROPOSED ADVANCE AND TO THE APPLICATION
OF THE PROCEEDS THEREFROM, AS THOUGH MADE ON AND AS OF SUCH DATE; AND
(B) NO DEFAULT OR UNMATURED DEFAULT HAS OCCURRED AND IS
CONTINUING, OR WOULD RESULT FROM THE PROPOSED ADVANCE OR FROM THE
APPLICATION OF THE PROCEEDS THEREFROM.
VERY TRULY YOURS,
OMNICARE, INC.
BY
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TITLE:
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85
EXHIBIT G
FORM OF PREPAYMENT NOTICE
[DATE]
THE FIRST NATIONAL BANK OF CHICAGO, AS AGENT
XXX XXXXX XXXXXXXX XXXXX
XXXXXXX, XXXXXXXX 00000
ATTENTION: XXXXX XXXXX
LADIES AND GENTLEMEN:
THE UNDERSIGNED, OMNICARE, INC., REFERS TO THE
364-DAY CREDIT AGREEMENT, DATED AS OF DECEMBER 21, 1998 (AS AMENDED, THE "CREDIT
AGREEMENT", THE TERMS DEFINED THEREIN BEING USED HEREIN AS THEREIN DEFINED),
AMONG THE UNDERSIGNED, CERTAIN LENDERS PARTIES THERETO AND THE FIRST NATIONAL
BANK OF CHICAGO, AS CONTRACTUAL REPRESENTATIVE (THE "AGENT") FOR SAID LENDERS.
THE UNDERSIGNED HEREBY GIVES YOU NOTICE, IRREVOCABLY, PURSUANT TO SECTION 2.5 OF
THE CREDIT AGREEMENT THAT THE UNDERSIGNED HEREBY ELECTS TO:*
PREPAY THE FLOATING RATE LOANS COMPRISING PART OF THE SAME
ADVANCE IN AGGREGATE PRINCIPAL AMOUNT OF $____________ ON
______________, ____.
PREPAY A EUROCURRENCY ADVANCE IN AGGREGATE PRINCIPAL AMOUNT OF
$_______________ AND WITH A CURRENT INTEREST PERIOD ENDING
_____________, ____, ON ______________, ____.
VERY TRULY YOURS,
OMNICARE, INC.
BY
--------------------------------
TITLE:
----------------------
* Include one or more of the following, as applicable.
86
EXHIBIT H
FORM OF CONVERSION/CONTINUATION NOTICE
[DATE]
THE FIRST NATIONAL BANK OF CHICAGO, AS AGENT
XXX XXXXX XXXXXXXX XXXXX
XXXXXXX, XXXXXXXX 00000
ATTENTION: XXXXX XXXXX
LADIES AND GENTLEMEN:
THE UNDERSIGNED, OMNICARE, INC., REFERS TO THE
364-DAY CREDIT AGREEMENT, DATED AS OF DECEMBER 21, 1998 (AS AMENDED, THE "CREDIT
AGREEMENT", THE TERMS DEFINED THEREIN BEING USED HEREIN AS THEREIN DEFINED),
AMONG THE UNDERSIGNED, CERTAIN LENDERS PARTIES THERETO AND THE FIRST NATIONAL
BANK OF CHICAGO, AS CONTRACTUAL REPRESENTATIVE (THE "AGENT") FOR SAID LENDERS.
THE UNDERSIGNED HEREBY GIVES YOU NOTICE, IRREVOCABLY, PURSUANT TO SECTION 2.7 OF
THE CREDIT AGREEMENT THAT THE UNDERSIGNED HEREBY ELECTS TO:*
CONVERT A FLOATING RATE ADVANCE IN AGGREGATE PRINCIPAL AMOUNT
OF $____________ TO A EUROCURRENCY ADVANCE ON ______________, ____. THE
INITIAL INTEREST PERIOD FOR SUCH EUROCURRENCY ADVANCE IS REQUESTED TO
BE ______ MONTH[S].
CONVERT A EUROCURRENCY ADVANCE IN AGGREGATE PRINCIPAL AMOUNT
OF $____________ AND WITH A CURRENT INTEREST PERIOD ENDING __________,
____, TO A FLOATING RATE ADVANCE ON __________________, ____.
CONTINUE A EUROCURRENCY ADVANCE IN AGGREGATE PRINCIPAL AMOUNT
OF $____________ AND WITH A CURRENT INTEREST PERIOD ENDING __________,
____, AS A EUROCURRENCY ADVANCE. THE SUCCEEDING INTEREST PERIOD IS
REQUESTED TO BE ______ MONTH[S].
VERY TRULY YOURS,
OMNICARE, INC.
BY
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TITLE:
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* Include one or more of the following, as applicable.
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referred to herein Page 2
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