EXECUTION COPY
364-DAY CREDIT AGREEMENT
among
HUMANA INC.,
THE SEVERAL BANKS AND OTHER FINANCIAL INSTITUTIONS
FROM TIME TO TIME PARTIES HERETO,
and
THE CHASE MANHATTAN BANK,
as Administrative Agent and as CAF Loan Agent,
BANK OF AMERICA, N.A.,
CITIBANK, N.A.,
and
WACHOVIA BANK,
as
Syndication Agents
and
X.X. XXXXXX SECURITIES INC.,
as Sole Lead Arranger and Sole Lead Bookrunner
Dated as of October 11, 2001
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS 1
1.1 Defined Terms 1
1.2 Other Definitional Provisions 17
SECTION 2. AMOUNT AND TERMS OF LOANS 17
2.1 Revolving Credit Loans; Conversion of RFC Loans to
Tranche B Revolving Credit Loans 17
2.2 CAF Loans 19
2.3 Repayment of Loans; Evidence of Debt 21
2.4 Fees 22
2.5 Termination, Reduction or Conversion of Commitments 23
2.6 Optional Prepayments 23
2.7 Conversion Options; Minimum Amount of Loans. 24
2.8 Interest Rate and Payment Dates for Loans 24
2.9 Computation of Interest and Fees 25
2.10 Inability to Determine Interest Rate 26
2.11 Pro Rata Borrowings and Payments 26
2.12 Illegality 28
2.13 Requirements of Law 28
2.14 Capital Adequacy 29
2.15 Taxes 30
2.16 Indemnity 31
2.17 Application of Proceeds of Loans 31
2.18 Notice of Certain Circumstances; Assignment of
Commitments Under Certain Circumstances 32
2.19 Regulation U 32
2.20 Borrowings and Repayments after Transition Date. 33
SECTION 3. [RESERVED] 34
SECTION 4. REPRESENTATIONS AND WARRANTIES 34
4.1 Corporate Existence; Compliance with Law 34
4.2 No Legal Obstacle to Agreement; Enforceability 34
4.3 Litigation 35
4.4 Disclosure 35
4.5 Defaults 35
4.6 Financial Condition 36
4.7 Changes in Condition 36
4.8 Assets 36
4.9 Tax Returns 36
4.10 Contracts, etc 37
4.11 Subsidiaries 37
4.12 Burdensome Obligations 37
4.13 Pension Plans 37
4.14 Environmental and Public and Employee Health and
Safety Matters 38
4.15 Federal Regulations 38
4.16 Investment Company Act; Other Regulations 38
4.17 Solvency 38
4.18 Casualties 39
4.19 Business Activity 39
4.20 Purpose of Loans 39
SECTION 5. CONDITIONS 39
5.1 Conditions to the Closing Date 39
5.2 Conditions to Each Loan 41
SECTION 6. AFFIRMATIVE COVENANTS 42
6.1 Taxes, Indebtedness, etc 42
6.2 Maintenance of Properties; Maintenance of Existence 42
6.3 Insurance 43
6.4 Financial Statements 43
6.5 Certificates; Other Information 44
6.6 Compliance with ERISA 45
6.7 Compliance with Laws 45
6.8 Inspection of Property; Books and Records;
Discussions 45
6.9 Notices 46
6.10 Maintenance of Licenses, Etc 47
6.11 Further Assurances 47
SECTION 7. NEGATIVE COVENANTS 47
7.1 Financial Condition Covenants. 47
7.2 Limitation on Subsidiary Indebtedness 48
7.3 Limitation on Liens 48
7.4 Limitations on Fundamental Changes 50
7.5 Limitation on Sale of Assets 50
7.6 Limitation on Distributions 51
7.7 Transactions with Affiliates 51
7.8 Sale and Leaseback 51
SECTION 8. DEFAULTS 51
8.1 Events of Default 51
8.2 Annulment of Defaults 54
8.3 Waivers 54
8.4 Course of Dealing 55
SECTION 9. THE AGENT 55
9.1 Appointment 55
9.2 Delegation of Duties 55
9.3 Exculpatory Provisions 55
9.4 Reliance by Agent 56
9.5 Notice of Default 56
9.6 Non-Reliance on Agent and Other Banks 57
9.7 Indemnification 57
9.8 Agent and CAF Loan Agent in Its Individual Capacity 57
9.9 Successor Agent and CAF Loan Agent 58
SECTION 10. MISCELLANEOUS 58
10.1 Amendments and Waivers 58
10.2 Notices 59
10.3 No Waiver; Cumulative Remedies 59
10.4 Survival of Representations and Warranties 60
10.5 Payment of Expenses and Taxes; Indemnity 60
10.6 Successors and Assigns; Participations; Purchasing
Banks 61
10.7 Adjustments; Set-off 64
10.8 Counterparts 65
10.9 GOVERNING LAW 65
10.10 WAIVERS OF JURY TRIAL 65
10.11 Submission To Jurisdiction; Waivers 66
10.12 Confidentiality of Information 66
10.13 Existing Credit Agreement 66
SCHEDULES
SCHEDULE I Commitment Amounts and Percentages; Lending Offices;
Addresses for Notice
SCHEDULE II Pricing Grid
SCHEDULE III Indebtedness
SCHEDULE IV Subsidiaries of the Company
SCHEDULE V Liens
SCHEDULE VI Certain Acquisitions and Dispositions
SCHEDULE VII Other Regulations
SCHEDULE VIII Business Activities
EXHIBITS
EXHIBIT A Form of Revolving Credit Note
EXHIBIT B Form of Grid CAF Loan Note
EXHIBIT C Form of Individual CAF Loan Note
EXHIBIT D Form of CAF Loan Request
EXHIBIT E Form of CAF Loan Offer
EXHIBIT F Form of CAF Loan Confirmation Agreement
EXHIBIT G Form of Commitment Transfer Supplement
EXHIBIT H Form of Closing Certificate
EXHIBIT I-1 Form of Company Counsel Opinion
EXHIBIT I-2 Form of Opinion of Fried, Frank, Harris, Xxxxxxx &
Xxxxxxxx
364-DAY CREDIT AGREEMENT, dated as of October 11, 2001,
among HUMANA INC., a Delaware corporation (the "Company"), the
several banks and other financial institutions from time to time
parties to this Agreement (the "Banks"), and THE CHASE MANHATTAN
BANK, a New York banking corporation, as administrative agent for
the Banks hereunder (in such capacity, the "Agent") and as CAF
Loan agent (in such capacity, the "CAF Loan Agent").
W I T N E S S E T H:
WHEREAS, the Company has requested the Banks to provide
a 364-day revolving credit facility in the aggregate principal
amount of $265,000,000; and
WHEREAS, the Banks are willing to provide such credit
facility upon and subject to the terms and conditions hereinafter
set forth;
NOW, THEREFORE, the parties hereto hereby agree as
follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms
As used in this Agreement, the following terms have
the following meanings:
"Admitted Asset": with respect to any HMO Subsidiary
or Insurance Subsidiary, any asset of such HMO subsidiary or
Insurance Subsidiary which qualifies as an "admitted asset"
(or any like item) under the applicable Insurance
Regulations and HMO Regulations.
"Affiliate": as to any Person, any other Person (other
than a Subsidiary) which, directly or indirectly, is in
control of, is controlled by, or is under common control
with, such Person. For purposes of this definition,
"control" of a Person means the power, directly or
indirectly, either to direct or cause the direction of the
management and policies of such Person, whether by contract
or otherwise.
"Aggregate Outstanding Extensions of Credit": as to
any Bank at any time, an amount equal to the aggregate
principal amount of all Loans made by such Bank then
outstanding.
"Agreement": this 364-Day Credit Agreement, as the
same may be amended, supplemented or otherwise modified from
time to time.
"Alternate Base Rate": for any day, a rate per annum
(rounded upwards, if necessary, to the next 1/16 of 1%)
equal to the greatest of (a) the Prime Rate in effect on
such day, (b) the Base CD Rate in effect on such day plus 1%
and (c) the Federal Funds Effective Rate in effect on such
day plus 1/2 of 1%. For purposes hereof: "Prime Rate"
shall mean the rate of interest per annum publicly announced
from time to time by the Agent as its prime rate in effect
at its principal office in New York City (each change in the
Prime Rate to be effective on the date such change is
publicly announced); "Base CD Rate" shall mean the sum of
(a) the product of (i) the Three-Month Secondary CD Rate and
(ii) a fraction, the numerator of which is one and the
denominator of which is one minus the C/D Reserve Percentage
and (b) the C/D Assessment Rate; "Three-Month Secondary CD
Rate" shall mean, for any day, the secondary market rate for
three-month certificates of deposit reported as being in
effect on such day (or, if such day shall not be a Business
Day, the next preceding Business Day) by the Board of
Governors of the Federal Reserve System (the "Board")
through the public information telephone line of the Federal
Reserve Bank of New York (which rate will, under the current
practices of the Board, be published in Federal Reserve
Statistical Release H.15(519) during the week following such
day), or, if such rate shall not be so reported on such day
or such next preceding Business Day, the average of the
secondary market quotations for three-month certificates of
deposit of major money center banks in New York City
received at approximately 10:00 A.M., New York City time, on
such day (or, if such day shall not be a Business Day, on
the next preceding Business Day) by the Agent from three New
York City negotiable certificate of deposit dealers of
recognized standing selected by it; "C/D Reserve Percentage"
shall mean, for any day, that percentage (expressed as a
decimal) which is in effect on such day, as prescribed by
the Board (or any successor), for determining the maximum
reserve requirement for a member bank of the Federal Reserve
System in New York City with deposits exceeding one billion
Dollars in respect of new non-personal three-month
certificates of deposit in the secondary market in Dollars
in New York City and in an amount of $100,000 or more; "C/D
Assessment Rate" shall mean, for any day, the net annual
assessment rate (rounded upward to the nearest 1/100th of
1%) determined by The Chase Manhattan Bank to be payable on
such day to the Federal Deposit Insurance Corporation or any
successor ("FDIC") for FDIC's insuring time deposits made in
Dollars at offices of The Chase Manhattan Bank in the United
States; and "Federal Funds Effective Rate" shall mean, for
any day, the weighted average of the rates on overnight
federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as
published on the next succeeding 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 for the day of such transactions received
by the Agent from three federal funds brokers of recognized
standing selected by it. Any change in the Alternate Base
Rate due to a change in the Prime Rate, the Three-Month
Secondary CD Rate or the Federal Funds Effective Rate shall
be effective on the effective day of such change in the
Prime Rate, the Three-Month Secondary CD Rate or the Federal
Funds Effective Rate, respectively.
"Alternate Base Rate Loans": Revolving Credit Loans
hereunder at such time as they are made and/or being
maintained at a rate of interest based upon the Alternate
Base Rate.
"Applicable LIBOR Auction Advance Rate": in respect of
any CAF Loan requested pursuant to a LIBOR Auction Advance
Request, the London interbank offered rate for deposits in
Dollars for the period commencing on the date of such CAF
Loan and ending on the maturity date thereof which appears
on Telerate Page 3750 as of 11:00 A.M., London time, two
Working Days prior to the beginning of such period.
"Applicable Margin": for each Type of Revolving Credit
Loan, the rate per annum applicable to such type determined
in accordance with the Pricing Grid.
"Available Commitments": at a particular time, an
amount equal to the difference between (a) the amount of the
Commitments at such time and (b) the Aggregate Outstanding
Extensions of Credit at such time.
"Average Quarterly Commitment": as defined in
subsection 2.4(a) hereto.
"Bank Obligations": as defined in subsection 8.1.
"Banks": the several banks and other financial
institutions from time to time parties to this Agreement.
"Benefitted Bank": as defined in subsection 10.7.
"Borrowing Date": any Business Day specified in a
notice pursuant to subsection 2.1(c) or a CAF Loan Request
pursuant to subsection 2.2(b) as a date on which the Company
requests the Banks to make Revolving Credit Loans or CAF
Loans, as the case may be, hereunder.
"Business Day": a day other than a Saturday, Sunday or
other day on which commercial banks in New York City are
authorized or required by law to close, provided, that with
respect to notices and determinations in connection with,
and payments of principal and interest on, Eurodollar Loans,
such day is also a day for trading by and between banks in
Dollar deposits in the interbank eurodollar market.
"CAF Loan": each CAF Loan made pursuant to subsection
2.2; the aggregate amount advanced by a CAF Loan Bank
pursuant to subsection 2.2 on each CAF Loan Date shall
constitute one or more CAF Loans, as specified by such CAF
Loan Bank pursuant to subsection 2.2(b)(vi).
"CAF Loan Assignee": as defined in subsection 10.6(c).
"CAF Loan Assignment": any assignment by a CAF Loan
Bank to a CAF Loan Assignee of a CAF Loan and related
Individual CAF Loan Note; any such CAF Loan Assignment to be
registered in the Register must set forth, in respect of the
CAF Loan Assignee thereunder, the full name of such CAF Loan
Assignee, its address for notices, its lending office
address (in each case with telephone and facsimile
transmission numbers) and payment instructions for all
payments to such CAF Loan Assignee, and must contain an
agreement by such CAF Loan Assignee to comply with the
provisions of subsection 10.6(c), 10.6(h) and 10.12 to the
same extent as any Bank.
"CAF Loan Banks": Banks from time to time designated
as CAF Loan Banks by the Company by written notice to the
CAF Loan Agent (which notice the CAF Loan Agent shall
transmit to each such CAF Loan Bank).
"CAF Loan Confirmation": each confirmation by the
Company of its acceptance of one or more CAF Loan Offers,
which CAF Loan Confirmation shall be substantially in the
form of Exhibit F and shall be delivered to the CAF Loan
Agent in writing or by facsimile transmission.
"CAF Loan Date": each date on which a CAF Loan is made
pursuant to subsection 2.2.
"CAF Loan Note": a Grid CAF Loan Note or an Individual
CAF Loan Note.
"CAF Loan Offer": each offer by a CAF Loan Bank to
make one or more CAF Loans pursuant to a CAF Loan Request,
which CAF Loan Offer shall contain the information specified
in Exhibit E and shall be delivered to the CAF Loan Agent by
telephone, immediately confirmed by facsimile transmission.
"CAF Loan Request": each request by the Company for
CAF Loan Banks to submit bids to make CAF Loans, which shall
contain the information in respect of such requested CAF
Loans specified in Exhibit D and shall be delivered to the
CAF Loan Agent in writing or by facsimile transmission, or
by telephone, immediately confirmed by facsimile
transmission.
"Capital Stock": any and all shares, interests,
participations or other equivalents (however designated) of
capital stock of a corporation, any and all equivalent
ownership interests in a Person (other than a corporation)
and any and all warrants or options to purchase any of the
foregoing.
"Change in Control": of any corporation, shall occur
where (a) any Person or "group" (as defined in Section
13(d)(3) of the Securities Exchange Act of 1934, as
amended), other than the Company, shall acquire more than
30% of the Voting Stock of such corporation or (b) the
Continuing Directors shall not constitute a majority of the
board of directors of such corporation.
"Closing Date": the date on which all of the
conditions precedent for the Closing Date set forth in
Section 5 shall have been fulfilled.
"Code": the Internal Revenue Code of 1986, as amended
from time to time.
"Commitments": the collective reference to the Tranche
A Commitments and the Tranche B Commitments.
"Commitment Percentage": as to any Bank, the
percentage of the aggregate Commitments constituted by such
Bank's Commitments.
"Commitment Period": the period from and including the
Closing Date to but not including the Termination Date or
such earlier date on which the Commitments shall terminate
as provided herein.
"Commitment Transfer Supplement": a Commitment
Transfer Supplement, substantially in the form of Exhibit G.
"Commonly Controlled Entity": an entity, whether or
not incorporated, which is under common control with the
Company within the meaning of Section 4001 of ERISA or is
part of a group which includes the Company and which is
treated as a single employer under Section 414 of the Code.
"Conduit Lender": any special purpose corporation
organized and administered by any Bank for the purpose of
making Loans otherwise required to be made by such Bank and
designated by such Bank in a written instrument; provided,
that the designation by any Bank of a Conduit Lender shall
not relieve the designating Bank of any of its obligations
to fund a Loan under this Agreement if, for any reason, its
Conduit Lender fails to fund any such Loan, and the
designating Bank (and not the Conduit Lender) shall have the
sole right and responsibility to deliver all consents and
waivers required or requested under this Agreement with
respect to its Conduit Lender, and provided, further, that
no Conduit Lender shall (a) be entitled to receive any
greater amount pursuant to Section 2.13, 2.14, 2.15, 2.16 or
10.5 than the designating Bank would have been entitled to
receive in respect of the extensions of credit made by such
Conduit Lender (and each Bank which designates a Conduit
Lender shall indemnify the Company against any increased
taxes, costs, expenses, liabilities or losses associated
with any payment thereunder to such Conduit Lender) or (b)
be deemed to have any Commitment.
"Consolidated Assets": the consolidated assets of the
Company and its Subsidiaries, determined in accordance with
GAAP.
"Consolidated EBIT": for any period for which the
amount thereof is to be determined, Consolidated Net Income
for such period plus all amounts deducted in computing such
Consolidated Net Income in respect of Consolidated Interest
Expense and income taxes, all determined in accordance with
GAAP; provided, that for purposes of calculating
Consolidated EBIT for any period of four full fiscal
quarters, (i) the Consolidated EBIT attributable to any
Person or business unit acquired by the Company or its
Subsidiaries during such period (such Consolidated EBIT to
be calculated in the same manner as Consolidated EBIT for
the Company and its Subsidiaries is calculated, mutatis
mutandis, provided that amounts arising prior to the time
such acquired Person or business unit was acquired
attributable to (a) any discontinued operations or products
of the acquired Person or business unit or (b) operations or
products of the acquired Person or business unit which the
Company expects to discontinue as disclosed in the Company's
reports filed with the Securities and Exchange Commission
within three months after the date of acquisition of such
Person or business unit shall be excluded in such
calculation) shall be included on a pro forma basis for such
period of four full fiscal quarters (assuming the
consummation of each such acquisition and the incurrence,
assumption or repayment of any Indebtedness in connection
therewith occurred on the first day of such period of four
full fiscal quarters) and (ii) the Consolidated EBIT of any
Person or business unit disposed of by the Company or its
Subsidiaries during such period (such Consolidated EBIT to
be calculated in the same manner as Consolidated EBIT for
the Company and its Subsidiaries is calculated, mutatis
mutandis) shall be deducted on a pro forma basis for such
period of four full fiscal quarters (assuming the
consummation of each such disposition and the repayment of
any Indebtedness in connection therewith occurred on the
first day of such period of four full fiscal quarters).
"Consolidated EBITDA": for any fiscal period for which
the amount thereof is to be determined, Consolidated EBIT
for such fiscal period plus, to the extent deducted from
Consolidated Net Income for such fiscal period, depreciation
and amortization for such fiscal period.
"Consolidated Interest Expense": for any period for
which the amount thereof is to be determined, all amounts
deducted in computing Consolidated Net Income for such
period in respect of interest expense on Indebtedness
determined in accordance with GAAP; provided, that for
purposes of calculating Consolidated Interest Expense for
any period of four full fiscal quarters, (i) the
Consolidated Interest Expense of any Person or business unit
acquired by the Company or its Subsidiaries during such
period (such Consolidated Interest Expense to be calculated
in the same manner as Consolidated Interest Expense for the
Company and its Subsidiaries is calculated, mutatis
mutandis, provided that amounts arising prior to the time
such acquired Person or business unit was acquired
attributable to (a) any discontinued operations or products
of the acquired Person or business unit or (b) operations or
products of the acquired Person or business unit which the
Company expects to discontinue as disclosed in the Company's
reports filed with the Securities and Exchange Commission
within three months after the date of acquisition of such
Person or business unit shall be excluded in such
calculation) shall be included on a pro forma basis for such
period of four full fiscal quarters (assuming the
consummation of each such acquisition and the incurrence,
assumption or repayment of any Indebtedness in connection
therewith occurred on the first day of such period of four
full fiscal quarters) and (ii) the Consolidated Interest
Expense of any Person or business unit disposed of by the
Company or its Subsidiaries during such period (such
Consolidated Interest Expense to be calculated in the same
manner as Consolidated Interest Expense for the Company and
its Subsidiaries is calculated, mutatis mutandis) shall be
deducted on a pro forma basis for such period of four full
fiscal quarters (assuming the consummation of each such
disposition and the repayment of any Indebtedness in
connection therewith occurred on the first day of such
period of four full fiscal quarters). Consolidated Interest
Expense shall in any event include the Synthetic Lease
Interest Component of any Synthetic Lease entered into by
the Company or any of its Subsidiaries.
"Consolidated Net Income": for any period, the
consolidated net income, if any, after taxes, of the Company
and its Subsidiaries for such period determined in
accordance with GAAP; provided, that, for all purposes other
than subsection 7.1(a), Consolidated Net Income shall not be
reduced or increased by the amount of any non-cash
extraordinary charges or credits that would otherwise be
deducted from or added to revenue in determining such
Consolidated Net Income.
"Consolidated Net Tangible Assets": at any date, the
total amount of assets (less applicable reserves and other
properly deductible items) after deducting therefrom (i) all
current liabilities as disclosed on the consolidated balance
sheet of the Company (excluding any thereof which are by
their terms extendable or renewable at the option of the
obligor thereon to a time more than 12 months after the time
as of which the amount thereof is being computed and
excluding any deferred income taxes that are included in
current liabilities), and (ii) all goodwill, trade names,
trademarks, patents, unamortized debt discount and expense
and other like intangible assets, all as set forth on the
most recent consolidated balance sheet of the Company and
computed in accordance with GAAP.
"Consolidated Net Worth": at any date, the
stockholders' equity of the Company and its Subsidiaries at
such date, determined in accordance with GAAP.
"Consolidated Total Debt": the aggregate of all
Indebtedness (including the current portion thereof) of the
Company and its Subsidiaries on a consolidated basis.
"Continuing Director": any member of the Board of
Directors of the Company who is a member of such Board on
the date of this Agreement, and any Person who is a member
of such Board and whose nomination as a director was
approved by a majority of the Continuing Directors then on
such Board.
"Contractual Obligation": as to any Person, any
provision of any security issued by such Person or of any
agreement, instrument or undertaking to which such Person is
a party or by which it or any of its property is bound.
"Control Group Person": any Person which is a member
of the controlled group or is under common control with the
Company within the meaning of Section 414(b) or 414(c) of
the Code or Section 4001(b)(1) of ERISA.
"Default": any of the events specified in subsection
8.1, whether or not any requirement for the giving of
notice, the lapse of time, or both, or any other condition,
has been satisfied.
"Distribution": (a) the declaration or payment of any
dividend on or in respect of any shares of any class of
Capital Stock of the Company other than dividends payable
solely in shares of common stock of the Company; (b) the
purchase, redemption or other acquisition of any shares of
any class of Capital Stock of the Company directly or
indirectly through a Subsidiary or otherwise; and (c) any
other distribution on or in respect of any shares of any
class of Capital Stock of the Company.
"Dollars" and"$": dollars in lawful currency of the
United States of America.
"Domestic Lending Office": with respect to each Bank
the office of such Bank located within the United States
which shall be making or maintaining Alternate Base Rate
Loans.
"ERISA": the Employee Retirement Income Security Act
of 1974, as amended from time to time.
"Eurocurrency Reserve Requirements": for any day as
applied to a Eurodollar Loan, the aggregate (without
duplication) of the rates (expressed as a decimal fraction)
of reserve requirements in effect on such day (including,
without limitation, basic, supplemental, marginal and
emergency reserves under any regulations of the Board of
Governors of the Federal Reserve System or other
Governmental Authority having jurisdiction with respect
thereto), dealing with reserve requirements prescribed for
eurocurrency funding (currently referred to as "Eurocurrency
Liabilities" in Regulation D of such Board) maintained by a
member bank of such System.
"Eurodollar Lending Office": with respect to each
Bank, the office of such Bank which shall be making or
maintaining Eurodollar Loans.
"Eurodollar Loans": Revolving Credit Loans hereunder
at such time as they are made and/or are being maintained at
a rate of interest based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during
each Interest Period pertaining to a Eurodollar Loan, the
rate per annum equal to the average (rounded upwards to the
nearest whole multiple of one sixteenth of one percent) of
the respective rates notified to the Agent by the Reference
Banks as the rate at which each of their Eurodollar Lending
Offices is offered Dollar deposits two Working Days prior to
the beginning of such Interest Period in the interbank
eurodollar market where the eurodollar and foreign currency
and exchange operations of such Eurodollar Lending Office
are then being conducted at or about 10:00 A.M., New York
City time, for delivery on the first day of such Interest
Period for the number of days comprised therein and in an
amount comparable to the amount of the Eurodollar Loan of
such Reference Bank to be outstanding during such Interest
Period.
"Eurodollar Tranche": the collective reference to
Eurodollar Loans having the same Interest Period (whether or
not originally made on the same day).
"Event of Default": any of the events specified in
subsection 8.1, provided that any requirement for the giving
of notice, the lapse of time, or both, or any other
condition, event or act has been satisfied.
"Existing Credit Agreement": the Credit Agreement,
dated as of August 13, 1997, among the Company, the banks
and other financial institutions parties thereto, The Chase
Manhattan Bank, as agent, and others, as amended or
otherwise modified.
"Financing Lease": any lease of property, real or
personal, if the then present value of the minimum rental
commitment thereunder should, in accordance with GAAP, be
capitalized on a balance sheet of the lessee.
"Fixed Rate Auction Advance Request": any CAF Loan
Request requesting the CAF Loan Banks to offer to make CAF
Loans at a fixed rate (as opposed to a rate composed of the
Applicable LIBOR Auction Advance Rate plus or minus a
margin).
"Funding Agreement": that certain RFC Loan Agreement
dated as of October 11, 2001 among Humana Inc., the Several
Banks and other Financial Institutions from time to time
parties thereto, Relationship Funding Company, LLC and The
Chase Manhattan Bank.
"GAAP": (a) with respect to determining compliance by
the Company with the provisions of subsections 7.1, 7.2 and
7.5, generally accepted accounting principles in the United
States of America consistent with those utilized in
preparing the audited financial statements referred to in
subsection 4.6 and (b) with respect to the financial
statements referred to in subsection 4.6 or the furnishing
of financial statements pursuant to subsection 6.4 and
otherwise, generally accepted accounting principles in the
United States of America from time to time in effect.
"Governmental Authority": any nation or government,
any state or other political subdivision thereof and any
entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to
government.
"Green Bay Facility": offices of the Company located
at 0000 Xxxxxxxxx Xxxxxxxxx, Xx Xxxx, Xxxxxxxxx.
"Grid CAF Loan Note": as defined in subsection 2.3(e).
"Guarantee Obligation": as to any Person, any
arrangement whereby credit is extended to one party on the
basis of any promise of such Person, whether that promise is
expressed in terms of an obligation to pay the Indebtedness
of another, or to purchase an obligation owed by that other,
to purchase assets or to provide funds in the form of lease
or other types of payments under circumstances that would
enable that other to discharge one or more of its
obligations, whether or not such arrangement is listed in
the balance sheet of the obligor or referred to in a
footnote thereto, but shall not include endorsements of
items for collection in the ordinary course of business.
"Headquarters": the principal executive offices of the
Company located at 000 Xxxx Xxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxx 00000.
"HMO": a health maintenance organization doing
business as such (or required to qualify or to be licensed
as such) under HMO Regulations.
"HMO Regulation": all laws, regulations, directives
and administrative orders applicable under federal or state
law specific to health maintenance organizations and any
regulations, orders and directives promulgated or issued
pursuant thereto.
"HMO Regulator": any Person charged with the
administration, oversight or enforcement of an HMO
Regulation.
"HMO Subsidiary": any Subsidiary of the Company that
is now or hereafter an HMO.
"Indebtedness": of a Person, at a particular date, the
sum (without duplication) at such date of (a) all
indebtedness of such Person for borrowed money or for the
deferred purchase price of property or services or which is
evidenced by a note, bond, debenture or similar instrument,
(b) all obligations of such Person under Financing Leases,
(c) all obligations of such Person in respect of letters of
credit, acceptances, or similar obligations issued or
created for the account of such Person in excess of
$1,000,000, (d) all liabilities secured by any Lien on any
property owned by the Company or any Subsidiary even though
such Person has not assumed or otherwise become liable for
the payment thereof, (e) the amount of any Synthetic Lease
Obligations of such Person, (f) all Guarantee Obligations
relating to any of the foregoing in excess of $1,000,000,
and (g) for purposes of subsection 8.1(e) only, all
obligations of such Person in respect of Interest Rate
Protection Agreements.
"Individual CAF Loan Note": as defined in subsection
2.3(e).
"Insolvency" or "Insolvent": at any particular time, a
Multiemployer Plan which is insolvent within the meaning of
Section 4245 of ERISA.
"Insurance Regulation": any law, regulation, rule,
directive or order applicable and specific to an insurance
company.
"Insurance Regulator": any Person charged with the
administration, oversight or enforcement of any Insurance
Regulation.
"Insurance Subsidiary": any Subsidiary of the Company
that is now or hereafter doing business (or required to
qualify or to be licensed) under Insurance Regulations.
"Interest Payment Date": (a) as to any Alternate Base
Rate Loan, the last day of each March, June, September and
December, commencing on the first of such days to occur
after Alternate Base Rate Loans are made or Eurodollar Loans
are converted to Alternate Base Rate Loans and the final
maturity date of such Loan, (b) as to any Eurodollar Loan in
respect of which the Company has selected an Interest Period
of one, two or three months, the last day of such Interest
Period, (c) as to any CAF Loan in respect of which the
Company has selected an Interest Period not exceeding 90
days or three months, as the case may be, the last day of
such Interest Period and (d) as to any Eurodollar Loan in
respect of which the Company has selected a longer Interest
Period than the periods described in clause (b) and as to
any CAF Loan in respect of which the Company has selected a
longer Interest Period than the periods described in clause
(c), each day that is three months, or a whole multiple
thereof, after the first day of such Interest Period, and
the last day of such Interest Period.
"Interest Period": (a) with respect to any Eurodollar
Loans:
(i) initially, the period commencing on the borrowing or
conversion date, as the case may be, with respect to such
Eurodollar Loans and ending one, two, three or six months
thereafter (or, with the consent of all the Banks, nine or twelve
months thereafter), as selected by the Company in its notice of
borrowing as provided in subsection 2.1(b) or its notice of
conversion as provided in subsection 2.7(a), as the case may be;
and
(ii) thereafter, each period commencing on the last day of the
next preceding Interest Period applicable to such Eurodollar
Loans and ending one, two, three or six months thereafter (or,
with the consent of all the Banks, nine or twelve months
thereafter), as selected by the Company by irrevocable notice to
the Agent not less than three Business Days prior to the last day
of the then current Interest Period with respect to such
Eurodollar Loans;
provided that, all of the foregoing provisions relating to
Interest Periods are subject to the following:
(1) if any Interest Period pertaining to a Eurodollar Loan
would otherwise end on a day which is not a Business Day, such
Interest Period shall be extended to the next succeeding Business
Day unless the result of such extension would be to carry such
Interest Period into another calendar month in which event such
Interest Period shall end on the immediately preceding Business
Day;
(2) if the Company shall fail to give notice as provided
above, the Company shall be deemed to have selected an Alternate
Base Rate Loan to replace the affected Eurodollar Loan;
(3) any Interest Period pertaining to a Eurodollar Loan that
begins on the last Business Day of a calendar month (or on a day
for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall end on
the last Business Day of a calendar month;
(4) any interest period pertaining to a Eurodollar Loan that
would otherwise end after the Termination Date shall end on the
Termination Date; and
(5) the Company shall select Interest Periods so as not to
require a payment or prepayment of any Eurodollar Loan during an
Interest Period for such Loan; and
(b) with respect to any CAF Loans, the period commencing on the
Borrowing Date therefor and ending on the maturity date for such
CAF Loans as set forth in subsection 2.2(b)(i).
"Interest Rate Protection Agreement": any interest
rate protection agreement, interest rate futures contract,
interest rate option, interest rate cap or other interest
rate hedge arrangement to or under which the Company or any
of its Subsidiaries is a party or a beneficiary on the date
hereof or becomes a party or a beneficiary after the date
hereof.
"Jacksonville Facility": the offices of the Company
located at 00 Xxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx.
"Lender Affiliate": (a) any Affiliate of any Bank,
(b) any Person that is administered or managed by any Bank
and that is engaged in making, purchasing, holding or
otherwise investing in commercial loans and similar
extensions of credit in the ordinary course of its business
and (c) with respect to any Bank which is a fund that
invests in commercial loans and similar extensions of
credit, any other fund that invests in commercial loans and
similar extensions of credit and is managed or advised by
the same investment advisor as such Bank or by an Affiliate
of such Bank or investment advisor.
"Leverage Ratio": at the last day of any full fiscal
quarter of the Company, the ratio of (a) all Indebtedness of
the Company and its Subsidiaries outstanding on such date to
(b) Consolidated EBITDA for the period of four fiscal
quarters of the Company ended on such day.
"LIBOR Auction Advance Request": any CAF Loan Request
requesting the CAF Loan Banks to offer to make CAF Loans at
an interest rate equal to the Applicable LIBOR Auction
Advance Rate plus or minus a margin.
"Lien": any mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien
(statutory or other), or preference, priority or other
security agreement or preferential arrangement that has the
same practical effect as any of the foregoing (including,
without limitation, any conditional sale or other title
retention agreement, any financing lease having
substantially the same economic effect as any of the
foregoing).
"Liquidity Facility Agreement": the Liquidity
Agreement dated as of October 11, 2001 among Relationship
Funding Company, LLC, the Liquidity Institutions (as defined
therein) and The Chase Manhattan Bank.
"Loan": any loan made by any Bank pursuant to this
Agreement.
"Loan Documents": this Agreement and the Notes.
"Margin Stock": as defined in Regulation U.
"Margin Stock Collateral": all Margin Stock (other
than Portfolio Margin Stock) of the Company and its
Subsidiaries by which the Loans are deemed "indirectly
secured" within the meaning of Regulation U.
"Material Adverse Effect": any material adverse effect
on (a) the business, assets, operations or condition
(financial or otherwise) of the Company and its Subsidiaries
taken as a whole, (b) the ability of the Company to perform
its obligations under this Agreement and the Notes or (c)
the rights and remedies of the Banks with respect to the
Company and its Subsidiaries under any of the Loan
Documents.
"Maturity Date": the first anniversary of the
Termination Date (or, if such date is not a Business Day,
the next succeeding Business Day).
"Multiemployer Plan": a Plan which is a multiemployer
plan as defined in Section 4001(a)(3) of ERISA.
"Other Collateral": all assets of the Company and its
Subsidiaries (other than Margin Stock) by which the Loans
are deemed "indirectly secured" within the meaning of
Regulation U.
"Non-U.S. Bank": as defined in subsection 2.15(b).
"Note": any Revolving Credit Note or CAF Loan Note.
"Participants": as defined in subsection 10.6(b).
"Payment Sharing Notice": a written notice from the
Company, or any Bank, informing the Agent that an Event of
Default has occurred and is continuing and directing the
Agent to allocate payments thereafter received from the
Company in accordance with subsection 2.11(c).
"PBGC": the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA.
"Person": an individual, partnership, corporation,
business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other
entity of whatever nature.
"Plan": at a particular time, any employee benefit
plan which is covered by ERISA and in respect of which the
Company or a Control Group Person is (or, if such plan were
terminated at such time, would under Section 4069 of ERISA
be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Portfolio Margin Stock": Margin Stock held by
Insurance Subsidiaries or HMO Subsidiaries as portfolio
investments, as to which the restrictions of Section 7 shall
not apply.
"Pricing Grid". the Pricing Grid set forth in Schedule II.
"Purchasing Banks": as defined in subsection 10.6(d).
"RFC Loans": as defined in the Funding Agreement.
"Reference Banks": The Chase Manhattan Bank, Citibank
N.A. and Bank of America, N.A..
"Register": as defined in subsection 10.6(e).
"Regulation T": Regulation T of the Board of Governors
of the Federal Reserve System.
"Regulation U": Regulation U of the Board of Governors
of the Federal Reserve System.
"Regulation X": Regulation X of the Board of Governors
of the Federal Reserve System.
"Reorganization": with respect to any Multiemployer
Plan, the condition that such plan is in reorganization
within the meaning of such term as used in Section 4241 of
ERISA.
"Reportable Event": any of the events set forth in
Section 4043(b) of ERISA, other than those events as to
which the thirty day notice period is waived under
subsections .22, .23, .25, .27 or .28 of PBGC Reg. 4043.
"Required Banks": (a) during the Commitment Period,
Banks whose Commitment Percentages aggregate at least 51%
and (b) after the Commitments have expired or been
terminated, Banks whose outstanding Loans represent in the
aggregate at least 51% of all outstanding Loans.
"Requirement of Law": as to any Person, the
Certificate of Incorporation and By-Laws or other
organizational or governing documents of such Person, and
any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in
each case applicable to or binding upon such Person or any
of its property or to which such Person or any of its
property is subject.
"Responsible Officer": the chief executive officer,
the president, any executive or senior vice president or
vice president of the Company, the chief financial officer,
treasurer or controller of the Company.
"Revolving Credit Loans": the collective reference to
the Tranche A Revolving Credit Loans and the Tranche B
Revolving Credit Loans.
"Revolving Credit Notes": as defined in subsection
2.3(e).
"Riverview Square": the office building of the Company
located at 000 Xxxx Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000.
"Significant Subsidiary": means, at any particular
time, any Subsidiary of the Company that would be a
"significant subsidiary" of the Company within the meaning
of Rule 1-02 under Regulation S-X promulgated by the
Securities and Exchange Commission.
"Single Employer Plan": any Plan which is covered by
Title IV of ERISA, but which is not a Multiemployer Plan.
"Solvent": with respect to any Person (or group of
Persons) on a particular date, that on such date (i) the
fair value of the property of such Person (or group of
Persons) is greater than the total amount of liabilities,
including, without limitation, contingent liabilities, of
such Person (or group of Persons), (ii) the present fair
salable value of the assets of such Person (or group of
Persons) is not less than the amount that will be required
to pay the probable liability of such Person (or group of
Persons) on its debts as they become absolute and matured,
(iii) such Person (or group of Persons) is able to pay its
debts and other liabilities, contingent obligations and
other commitments as they mature in the normal course of
business, (iv) such Person (or group of Persons) does not
intend to, and does not believe that it will, incur debts or
liabilities beyond such Person's (or group of Person's)
ability to pay as such debts and liabilities mature, (v)
such Person (or group of Persons) is not engaged in a
business or a transaction, and is not about to engage in a
business or a transaction, for which such Person's (or group
of Person's) property (after giving effect to any engagement
in such business or transaction) would constitute
unreasonably small capital after giving due consideration to
the prevailing practice in the industry in which such Person
(or group of Persons) is engaged and (vi) such Person (or
group of Persons) is solvent under all applicable HMO
Regulations and Insurance Regulations. In computing the
amount of contingent liabilities at any time, it is intended
that such liabilities will be computed at the amount which,
in light of all the facts and circumstances existing at such
time, represents the amount that can reasonably be expected
to become an actual or matured liability.
"Subsidiary": as to any Person, a corporation of which
shares of stock having ordinary voting power (other than
stock having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors
or other managers of such corporation are at the time owned,
or the management of which is otherwise controlled, directly
or indirectly through one or more intermediaries, or both,
by such Person. Unless otherwise qualified, all references
to a "Subsidiary" or to "Subsidiaries" in this Agreement
shall refer to a Subsidiary or Subsidiaries of the Company.
"Synthetic Lease": each arrangement, however described,
under which the obligor accounts for its interest in the
property covered thereby under GAAP as lessee of a lease
which is not a capital lease under GAAP and accounts for its
interest in the property covered thereby for Federal income
tax purposes as the owner.
"Synthetic Lease Interest Components": with respect to
any Person for any period, the portion of rent paid or
payable (without duplication) for such period under
Synthetic Leases for such Person that would be treated as
interest in accordance with Financial Accounting Standards
Board Statement No. 13 if such Synthetic Leases were treated
as capital leases under GAAP.
"Synthetic Lease Obligation": as to any Person with
respect to any Synthetic Lease at any time of determination,
the amount of the liability of such Person in respect of
such Synthetic Lease that would (if such lease was required
to be classified and accounted for as a capital lease on a
balance sheet of such Person in accordance with GAAP) be
required to be capitalized on the balance sheet of such
Person at such time.
"Taxes": as defined in subsection 2.15.
"Termination Date": the date which is 364 days after
the Closing Date (or, if such date is not a Business Day,
the next preceding Business Day).
"Tranche A Commitment": as to any Bank, its obligation
to make Tranche A Revolving Credit Loans to the Company
pursuant to subsection 2.1(a) in an aggregate principal
amount not to exceed at any one time outstanding the amount
set forth opposite such Bank's name in Schedule I in the
column captioned "Tranche A Commitment Amount", as such
amount may be reduced or increased from time to time as
provided herein.
"Tranche A Commitment Percentage": as to any Bank, the
percentage of the aggregate Tranche A Commitments
constituted by such Bank's Tranche A Commitment.
"Tranche A Revolving Credit Loans": as defined in
subsection 2.1(a).
"Tranche B Commitment": as to any Bank, its obligation
to make Tranche B Revolving Credit Loans to the Company
pursuant to subsection 2.1(b) (and/or to convert RFC Loans
to Tranche B Revolving Credit Loans pursuant to subsection
2.1(d)) in an aggregate principal amount not to exceed at
any one time outstanding the amount set forth opposite such
Bank's name in Schedule I in the column captioned "Tranche B
Commitment Amount", as such amount may be reduced or
increased from time to time as provided herein.
"Tranche B Commitment Percentage": as to any Bank, the
percentage of the aggregate Tranche B Commitments
constituted by such Bank's Tranche B Commitment.
"Tranche B Revolving Credit Loans": as defined in
subsection 2.1(b).
"Transfer Effective Date": as defined in each
Commitment Transfer Supplement.
"Transferee": as defined in subsection 10.6(g).
"Transition Date": the date on which (i) the Banks
parties to the Funding Agreement shall have purchased all of
the outstanding RFC Loans and (ii) pursuant to subsection
2.19 of the Funding Agreement, the Company shall have caused
the RFC Loans to be converted to Tranche B Revolving Credit
Loans hereunder and shall have caused all commitments of the
Banks to extend credit under the Liquidity Facility
Agreement and the Funding Agreement to be terminated.
"Type": as to any Revolving Credit Loan, its nature as
an Alternate Base Rate Loan or Eurodollar Loan.
"Uniform Customs": the Uniform Customs and Practice
for Documentary Credits (1993 Revision), International
Chamber of Commerce Publication No. 500, as the same may be
amended from time to time.
"Voting Stock": of any corporation, shares of capital
stock or other securities of such corporation entitled to
vote generally in the election of directors of such
corporation.
"Waterside Building": the real property located at 000
Xxxx Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, including the
building housing insurance claim processing operations of
the Company.
"Waterside Garage": the parking garage of the Company
located at 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000.
"Working Day": any Business Day on which dealings in
foreign currencies and exchange between banks may be carried
on in London, England.
1.2 Other Definitional Provisions
(a) Unless otherwise specified therein, all terms
defined in this Agreement shall have the defined meanings when
used in the Notes or any certificate or other document made or
delivered pursuant hereto.
(b) As used herein and in the other Loan Documents, and any
certificate or other document made or delivered pursuant hereto
or thereto, accounting terms relating to the Company and its
Subsidiaries not defined in subsection 1.1 and accounting terms
partly defined in subsection 1.1, to the extent not defined,
shall have the respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this
Agreement, and Section, subsection, Schedule and Exhibit
references are to this Agreement unless otherwise specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF LOANS
2.1 Revolving Credit Loans; Conversion of RFC Loans to Tranche
B Revolving Credit Loans
(a) Subject to the terms and conditions hereof,
each Bank having a Tranche A Commitment severally agrees to make
loans ("Tranche A Revolving Credit Loans") to the Company from
time to time during the Commitment Period in an aggregate
principal amount at any one time outstanding which does not
exceed the Tranche A Commitment of such Bank, provided that the
Aggregate Outstanding Extensions of Credit of all Banks shall not
at any time exceed (i) prior to the Transition Date, the
aggregate amount of the Tranche A Commitments or (ii) from and
after the Transition Date, the aggregate amount of the
Commitments. During the Commitment Period the Company may use
the Tranche A Commitments by borrowing, prepaying the Tranche A
Revolving Credit Loans in whole or in part, and reborrowing, all
in accordance with the terms and conditions hereof. The Tranche
A Revolving Credit Loans may be (i) Eurodollar Loans, (ii)
Alternate Base Rate Loans or (iii) a combination thereof, as
determined by the Company and notified to the Agent in accordance
with subsection 2.1(c). Eurodollar Loans shall be made and
maintained by each Bank at its Eurodollar Lending Office, and
Alternate Base Rate Loans shall be made and maintained by each
Bank at its Domestic Lending Office.
(b) Subject to the terms and conditions hereof, each
Bank having a Tranche B Commitment severally agrees to make loans
("Tranche B Revolving Credit Loans") to the Company from time to
time during the Commitment Period (but in any event not prior to
the Transition Date) in an aggregate principal amount at any one
time outstanding which does not exceed the Tranche B Commitment
of such Bank, provided that the Aggregate Outstanding Extensions
of Credit of all Banks shall not at any time exceed (i) prior to
the Transition Date, the aggregate amount of the Tranche A
Commitments or (ii) from and after the Transition Date, the
aggregate amount of the Commitments. During the Commitment
Period the Company may use the Tranche B Commitments by
borrowing, prepaying the Tranche B Revolving Credit Loans in
whole or in part, and reborrowing, all in accordance with the
terms and conditions hereof. The Tranche B Revolving Credit
Loans may be (i) Eurodollar Loans, (ii) Alternate Base Rate Loans
or (iii) a combination thereof, as determined by the Company and
notified to the Agent in accordance with subsection 2.1(c).
Eurodollar Loans shall be made and maintained by each Bank at its
Eurodollar Lending Office, and Alternate Base Rate Loans shall be
made and maintained by each Bank at its Domestic Lending Office.
(c) The Company may borrow under the Commitments during the
Commitment Period on any Working Day if the borrowing is of
Eurodollar Loans or on any Business Day if the borrowing is of
Alternate Base Rate Loans; provided that the Company shall give
the Agent irrevocable notice (which notice must be received by
the Agent (i) prior to 11:30 A.M., New York City time three
Working Days prior to the requested Borrowing Date, in the case
of Eurodollar Loans, and (ii) prior to 12:00 P.M., New York City
time, on the requested Borrowing Date, in the case of Alternate
Base Rate Loans), specifying (A) the amount to be borrowed, (B)
the requested Borrowing Date, (C) whether the borrowing is to be
of Tranche A Revolving Credit Loans or Tranche B Revolving Credit
Loans, and whether such Loans are to be Eurodollar Loans,
Alternate Base Rate Loans, or a combination thereof, and (D) if
the borrowing is to be entirely or partly of Eurodollar Loans,
the length of the Interest Period therefor. Each borrowing
pursuant to the Commitments shall be in an aggregate principal
amount equal to the lesser of (i) $10,000,000 or a whole multiple
of $1,000,000 in excess thereof and (ii) the then Available
Commitments. Upon receipt of such notice from the Company, the
Agent shall promptly notify each Bank thereof. Each Bank will
make the amount of its pro rata share of each borrowing available
to the Agent for the account of the Company at the office of the
Agent set forth in subsection 10.2 prior to 2:00 P.M., New York
City time, on the Borrowing Date requested by the Company in
funds immediately available to the Agent. The proceeds of all
such Revolving Credit Loans will then be promptly made available
to the Company by the Agent at such office of the Agent by
crediting the account of the Company on the books of such office
with the aggregate of the amounts made available to the Agent by
the Banks.
(d) In addition to utilization of the Tranche B Revolving Credit
Commitments for borrowings of Tranche B Revolving Credit Loans
from and after the Transition Date, the Company may, in the
circumstances described in subsection 2.19 of the Funding
Agreement, and upon irrevocable written notice to such effect
given by the Company to the Agent, cause the outstanding RFC
Loans to be converted to Tranche B Revolving Credit Loans,
whereupon the outstanding RFC Loans shall become Tranche B
Revolving Credit Loans for all purposes of this Agreement to the
same extent as if such RFC Loans had been made as Tranche B
Revolving Credit Loans on the borrowing date of such RFC Loans.
2.2 CAF Loans
(a) The Company may borrow CAF Loans from time to
time on any Business Day (in the case of CAF Loans made pursuant
to a Fixed Rate Auction Advance Request) or any Working Day (in
the case of CAF Loans made pursuant to a LIBOR Auction Advance
Request) during the period from the Closing Date until the date
occurring 14 days prior to the Termination Date in the manner set
forth in this subsection 2.2 and in amounts such that the
Aggregate Outstanding Extensions of Credit of all Banks at any
time shall not exceed (i) prior to the Transition Date, the
aggregate amount of the Tranche A Commitments or (ii) from and
after the Transition Date, the aggregate amount of the
Commitments.
(b) (i) The Company shall request CAF Loans by delivering a CAF
Loan Request to the CAF Loan Agent, not later than 12:00 Noon
(New York City time) four Working Days prior to the proposed
Borrowing Date (in the case of a LIBOR Auction Advance Request),
and not later than 10:00 A.M. (New York City time) one Business
Day prior to the proposed Borrowing Date (in the case of a Fixed
Rate Auction Advance Request). Each CAF Loan Request may solicit
bids for CAF Loans in an aggregate principal amount of
$10,000,000 or an integral multiple of $1,000,000 in excess
thereof and for not more than three alternative maturity dates
for such CAF Loans. The maturity date for each CAF Loan (x) if
made pursuant to a Fixed Rate Auction Advance Request, shall be
not less than 7 days nor more than 360 days after the Borrowing
Date therefor (and in any event not after the Termination Date)
and (y) if made pursuant to a LIBOR Auction Advance Request,
shall be one, two, three, six, nine or twelve months after the
Borrowing Date therefor (and in any event not after the
Termination Date). The CAF Loan Agent shall promptly notify each
CAF Loan Bank by facsimile transmission of the contents of each
CAF Loan Request received by it.
(ii) In the case of a LIBOR Auction Advance Request, upon receipt
of notice from the CAF Loan Agent of the contents of such CAF
Loan Request, any CAF Loan Bank that elects, in its sole
discretion, to do so, shall irrevocably offer to make one or more
CAF Loans at the Applicable LIBOR Auction Advance Rate plus or
minus a margin for each such CAF Loan determined by such CAF Loan
Bank in its sole discretion. Any such irrevocable offer shall be
made by delivering a CAF Loan Offer to the CAF Loan Agent, before
9:30 A.M., New York City time, three Working Days before the
proposed Borrowing Date, setting forth the maximum amount of CAF
Loans for each maturity date, and the aggregate maximum amount
for all maturity dates, which such Bank would be willing to make
(which amounts may, subject to subsection 2.2(a), exceed such CAF
Loan Bank's Commitment) and the margin above or below the
Applicable LIBOR Auction Advance Rate at which such CAF Loan Bank
is willing to make each such CAF Loan; the CAF Loan Agent shall
advise the Company before 10:00 A.M., New York City time, three
Working Days before the proposed Borrowing Date of the contents
of each such CAF Loan Offer received by it. If the CAF Loan
Agent in its capacity as a CAF Loan Bank shall, in its sole
discretion, elect to make any such offer, it shall advise the
Company of the contents of its CAF Loan Offer before 9:00 A.M.,
New York City time, three Working Days before the proposed
Borrowing Date.
(iii) In the case of a Fixed Rate Auction Advance Request,
upon receipt of notice from the Agent of the contents of such CAF
Loan Request, any CAF Loan Bank that elects, in its sole
discretion, to do so, shall irrevocably offer to make one or more
CAF Loans at a rate or rates of interest for each such CAF Loan
determined by such CAF Loan Bank in its sole discretion. Any
such irrevocable offer shall be made by delivering a CAF Loan
Offer to the CAF Loan Agent, before 9:30 A.M., New York City
time, on the proposed Borrowing Date, setting forth the maximum
amount of CAF Loans for each maturity date, and the aggregate
maximum amount for all maturity dates, which such CAF Loan Bank
would be willing to make (which amounts may, subject to
subsection 2.2(a), exceed such CAF Loan Bank's Commitment) and
the rate or rates of interest at which such CAF Loan Bank is
willing to make each such CAF Loan; the CAF Loan Agent shall
advise the Company before 10:15 A.M., New York City time, on the
proposed Borrowing Date of the contents of each such CAF Loan
Offer received by it. If the CAF Loan Agent or any affiliate
thereof in its capacity as a CAF Loan Bank shall, in its sole
discretion, elect to make any such offer, it shall advise the
Company of the contents of its CAF Loan Offer before 9:15 A.M.,
New York City time, on the proposed Borrowing Date.
(iv) The Company shall before 11:00 A.M., New York City time,
three Working Days before the proposed Borrowing Date (in the
case of CAF Loans requested by a LIBOR Auction Advance Request)
and before 11:00 A.M., New York City time, on the proposed
Borrowing Date (in the case of CAF Loans requested by a Fixed
Rate Auction Advance Request) either, in its absolute discretion:
(A) cancel such CAF Loan Request by giving the CAF Loan Agent
telephone notice to that effect, or
(B) accept one or more of the offers made by any CAF Loan Bank
or CAF Loan Banks pursuant to clause (ii) or clause (iii) above,
as the case may be, by giving telephone notice to the CAF Loan
Agent (immediately confirmed by delivery to the CAF Loan Agent of
a CAF Loan Confirmation) of the amount of CAF Loans for each
relevant maturity date to be made by each CAF Loan Bank (which
amount for each such maturity date shall be equal to or less than
the maximum amount for such maturity date specified in the CAF
Loan Offer of such CAF Loan Bank, and for all maturity dates
included in such CAF Loan Offer shall be equal to or less than
the aggregate maximum amount specified in such CAF Loan Offer for
all such maturity dates) and reject any remaining offers made by
CAF Loan Banks pursuant to clause (ii) or clause (iii) above, as
the case may be; provided, however, that (x) the Company may not
accept offers for CAF Loans for any maturity date in an aggregate
principal amount in excess of the maximum principal amount
requested in the related CAF Loan Request, (y) if the Company
accepts any of such offers, it must accept offers strictly based
upon pricing for such relevant maturity date and no other
criteria whatsoever and (z) if two or more CAF Loan Banks submit
offers for any maturity date at identical pricing and the Company
accepts any of such offers but does not wish to borrow the total
amount offered by such CAF Loan Banks with such identical
pricing, the Company shall accept offers from all of such CAF
Loan Banks in amounts allocated among them pro rata according to
the amounts offered by such CAF Loan Banks (or as nearly pro rata
as shall be practicable after giving effect to the requirement
that CAF Loans made by a CAF Loan Bank on a Borrowing Date for
each relevant maturity date shall be in a principal amount of
$5,000,000 or an integral multiple of $1,000,000 in excess
thereof provided that if the number of CAF Loan Banks that submit
offers for any maturity date at identical pricing is such that,
after the Company accepts such offers pro rata in accordance with
the foregoing, the CAF Loans to be made by such CAF Loan Banks
would be less than $5,000,000 principal amount, the number of
such CAF Loan Banks shall be reduced by the CAF Loan Agent by lot
until the CAF Loans to be made by such remaining CAF Loan Banks
would be in a principal amount of $5,000,000 or an integral
multiple of $1,000,000 in excess thereof).
(v) If the Company notifies the CAF Loan Agent that a CAF Loan
Request is cancelled pursuant to clause (iv)(A) above, the CAF
Loan Agent shall give prompt, but in no event more than one hour
later, telephone notice thereof to the CAF Loan Banks, and the
CAF Loans requested thereby shall not be made.
(vi) If the Company accepts pursuant to clause (iv)(B) above one
or more of the offers made by any CAF Loan Bank or CAF Loan
Banks, the CAF Loan Agent shall promptly, but in no event more
than one hour later, notify each CAF Loan Bank which has made
such an offer of the aggregate amount of such CAF Loans to be
made on such Borrowing Date for each maturity date and of the
acceptance or rejection of any offers to make such CAF Loans made
by such CAF Loan Bank. Each CAF Loan Bank which is to make a CAF
Loan shall, before 12:00 Noon, New York City time, on the
Borrowing Date specified in the CAF Loan Request applicable
thereto, make available to the Agent at its office set forth in
subsection 10.2 the amount of CAF Loans to be made by such CAF
Loan Bank, in immediately available funds. The Agent will make
such funds available to the Company as soon as practicable on
such date at the Agent's aforesaid address. As soon as
practicable after each Borrowing Date, the Agent shall notify
each Bank of the aggregate amount of CAF Loans advanced on such
Borrowing Date and the respective maturity dates thereof.
(c) Within the limits and on the conditions set forth in this
subsection 2.2, the Company may from time to time borrow under
this subsection 2.2, repay pursuant to subsection 2.3, and
reborrow under this subsection 2.2.
2.3 Repayment of Loans; Evidence of Debt
(a) The Company hereby unconditionally promises to
pay to the Agent for the account of each Bank (i) the then unpaid
principal amount of each Revolving Credit Loan of such Bank on
the Maturity Date (or such earlier date on which the Loans become
due and payable pursuant to Section 8), and (ii) the principal
amount of each CAF Loan made by such Bank on the maturity date
therefor as set forth in the CAF Loan Request for such CAF Loan
(or on such earlier date on which the Loans become due and
payable pursuant to Section 8). The Company hereby further
agrees to pay interest on the unpaid principal amount of the
Loans from time to time outstanding from the date hereof until
payment in full thereof at the rates per annum, and on the dates,
set forth in subsection 2.8.
(b) Each Bank shall maintain in accordance with its usual
practice an account or accounts evidencing indebtedness of the
Company to such Bank resulting from each Loan of such Bank from
time to time, including the amounts of principal and interest
payable and paid to such Bank from time to time under this
Agreement.
(c) The Agent shall maintain the Register pursuant to subsection
10.6(e), and a subaccount therein for each Bank, in which shall
be recorded (i) (A) the amount of each Revolving Credit Loan made
hereunder, the Type thereof and each Interest Period applicable
thereto and (B) the amount of each CAF Loan made by such Bank,
the maturity date therefor as set forth in the CAF Loan Request
for such CAF Loan, the interest rate applicable thereto and each
Interest Payment Date applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and
payable from the Company to each Bank hereunder and (iii) both
the amount of any sum received by the Agent hereunder from the
Company and each Bank's share thereof.
(d) The entries made in the Register and the accounts of each
Bank maintained pursuant to subsection 2.3(b) shall, to the
extent permitted by applicable law, be prima facie evidence of
the existence and amounts of the obligations of the Company
therein recorded; provided, however, that the failure of any Bank
or the Agent to maintain the Register or any such account, or any
error therein, shall not in any manner affect the obligation of
the Company to repay (with applicable interest) the Loans made to
such Company by such Bank in accordance with the terms of this
Agreement.
(e) The Company agrees that, upon the request to the Agent by
any Bank, the Company will execute and deliver to such Bank (i) a
promissory note of the Company evidencing the Revolving Credit
Loans of such Bank, substantially in the form of Exhibit A with
appropriate insertions as to payee, date and principal amount (a
"Revolving Credit Note"), (ii) a promissory note of the Company
evidencing the initial CAF Loan or Loans of such Bank,
substantially in the form of Exhibit B with appropriate
insertions (a "Grid CAF Loan Note"), and/or (iii) a promissory
note of the Company evidencing amounts advanced by such Bank
pursuant to subsection 2.2 which have the same maturity date and
interest rate as amounts advanced by such Bank evidenced by a
Grid CAF Loan Note and which such Bank wishes to constitute more
than one CAF Loan (which principal amounts shall not be less than
$5,000,000 for any such CAF Loans), substantially in the form of
Exhibit C with appropriate insertions (an "Individual CAF Loan
Note"). Upon a Bank's receipt of an Individual CAF Loan Note
evidencing a CAF Loan, such Bank shall endorse on the schedule
attached to its Grid CAF Loan Note the transfer of such CAF Loan
from such Grid CAF Loan Note to such Individual CAF Loan Note.
2.4 Fees
(a) The Company agrees to pay to the Agent, for the
account of each Bank, on the last day of each fiscal quarter, a
facility fee in respect of the average daily amount of the
Commitment of such Bank during such fiscal quarter (such amount,
the "Average Quarterly Commitment"). Such fee shall be computed
in respect of the Tranche A Commitments and the Tranche B
Commitments at the applicable rates per annum set forth in the
Pricing Grid.
(b) The Company agrees to pay to the Agent the other fees in
the amounts, and on the dates, agreed to by the Company and the Agent
in the fee letter, dated June 29, 2001, between the Agent and the
Company. The Agent will distribute to the Banks their respective
portions of upfront fees paid by the Company to the Agent, as
agreed between the Agent and each Bank.
2.5 Termination, Reduction or Conversion of Commitments
(a) The Company shall have the right, upon not
less than five Business Days' notice to the Agent, to terminate
the Commitments or, from time to time, to reduce the amount of
the Commitments, provided that no such termination or reduction
shall be permitted if, after giving effect thereto and to any
prepayments of the Loans made on the effective date thereof, (i)
the then outstanding principal amount of the Loans would exceed
the amount of the Commitments then in effect, (ii) the then
outstanding principal amount of the Tranche A Revolving Credit
Loans or the Tranche B Revolving Credit Loans would exceed the
amount of the Tranche A Revolving Credit Commitments or the
Tranche B Revolving Credit Commitments, respectively, or (iii)
the amount of the commitment of any Bank under the Liquidity
Facility Agreement would exceed the amount of the Tranche B
Commitment of such Bank. Except as provided for in subsection
2.5(c) herein, each reduction of the Tranche A Commitments or the
Tranche B Commitments shall be applied ratably to the Tranche A
Commitment or Tranche B Commitment, respectively, of each Bank
based upon the respective amounts of such Commitments. Each
reduction of Commitments after the Transition Date shall be
applied ratably to the Commitment of each Bank based upon the
respective amounts of such Commitments.
(b) Any such reduction shall be in an amount of $10,000,000 or
a whole multiple of $1,000,000 in excess thereof, and shall reduce
permanently the amount of the Commitments then in effect.
(c) Notwithstanding any provision herein, in the event that
pursuant to Section 2.4 of the Funding Agreement, the Facility
Amount (as defined therein) is reduced, the Tranche B Commitments
shall be reduced by an amount equal to such reduction and such
reduction of the Tranche B Commitments shall be applied ratably
to the Tranche B Commitment of each Bank based upon the
respective amount of its Tranche B Commitment; provided, that, in
the event the Company shall have elected, pursuant to Section
4.5(d) of the Liquidity Facility Agreement, to make a non pro
rata reduction of the Aggregate Commitment (as defined therein)
by reducing the commitments of any Downgraded Bank (as defined
therein) under the Liquidity Facility Agreement, the portion of
the Tranche B Commitment of such Downgraded Bank in an amount
equal to such reduction of commitments under the Liquidity
Facility Agreement shall be converted into a Tranche A Commitment
of such Downgraded Bank hereunder.
2.6 Optional Prepayments
The Company may at any time and from time to time,
prepay the Revolving Credit Loans, in whole or in part, without
premium or penalty (subject to the provisions of subsection
2.16), upon at least three Business Days' irrevocable notice to
the Agent in the case of Eurodollar Loans and one Business Day's
irrevocable notice to the Agent in the case of Alternate Base
Rate Loans, specifying the date and amount of prepayment and
whether the prepayment is of Eurodollar Loans or Alternate Base
Rate Loans or a combination thereof, and if of a combination
thereof, the amount of prepayment allocable to each. Upon
receipt of such notice the Agent shall promptly notify each Bank
thereof. If such notice is given, the payment amount specified
in such notice shall be due and payable on the date specified
therein, together with accrued interest to such date on the
amount prepaid. Partial prepayments shall be in an aggregate
principal amount of $5,000,000, or a whole multiple thereof, and
may only be made if, after giving effect thereto, subsection
2.7(c) shall not have been contravened.
2.7 Conversion Options; Minimum Amount of Loans.
(a) The Company may elect from time to time to convert
Eurodollar Loans to Alternate Base Rate Loans by giving the Agent
at least two Business Days' prior irrevocable notice of such
election (given before 10:00 A.M., New York City time, on the
date on which such notice is required), provided that any such
conversion of Eurodollar Loans shall, subject to the fourth
following sentence, only be made on the last day of an Interest
Period with respect thereto. The Company may elect from time to
time to convert Alternate Base Rate Loans to Eurodollar Loans by
giving the Agent at least three Working Days' prior irrevocable
notice of such election (given before 11:30 A.M., New York City
time, on the date on which such notice is required). Upon
receipt of such notice, the Agent shall promptly notify each Bank
thereof. Promptly following the date on which such conversion is
being made each Bank shall take such action as is necessary to
transfer its portion of such Revolving Credit Loans to its
Domestic Lending Office or its Eurodollar Lending Office, as the
case may be. All or any part of outstanding Eurodollar Loans and
Alternate Base Rate Loans may be converted as provided herein,
provided that, unless the Required Banks otherwise agree, (i) no
Revolving Credit Loan may be converted into a Eurodollar Loan
when any Event of Default has occurred and is continuing, (ii)
partial conversions shall be in an aggregate principal amount of
$5,000,000 or a whole multiple thereof, and (iii) any such
conversion may only be made if, after giving effect thereto,
subsection 2.7(c) shall not have been contravened.
(b) Any Eurodollar Loans may be continued as such upon the
expiration of an Interest Period with respect thereto by
compliance by the Company with the notice provisions contained in
subsection 2.7(a); provided that, unless the Required Banks
otherwise agree, no Eurodollar Loan may be continued as such when
any Event of Default has occurred and is continuing, but shall be
automatically converted to an Alternate Base Rate Loan on the
last day of the then current Interest Period with respect
thereto. The Agent shall notify the Banks promptly that such
automatic conversion contemplated by this subsection 2.7(b) will
occur.
(c) All borrowings, conversions, payments, prepayments and
selection of Interest Periods hereunder shall be in such amounts
and be made pursuant to such elections so that, after giving
effect thereto, the aggregate principal amount of the Loans
comprising any Eurodollar Tranche shall not be less than
$10,000,000. At no time shall there be more than 10 Eurodollar
Tranches.
2.8 Interest Rate and Payment Dates for Loans
(a) The Eurodollar Loans comprising each Eurodollar
Tranche shall bear interest for each day during each Interest
Period with respect thereto on the unpaid principal amount
thereof at a rate per annum equal to the Eurodollar Rate plus the
Applicable Margin.
(b) Alternate Base Rate Loans shall bear interest for each day
from and including the date thereof on the unpaid principal
amount thereof at a rate per annum equal to the Alternate Base
Rate plus the Applicable Margin.
(c) CAF Loans shall bear interest from the Borrowing Date to the
maturity date therefor as set forth in the CAF Loan Request for
such CAF Loan on the unpaid principal amount thereof at the rate
of interest determined pursuant to subsection 2.2(b).
(d) If all or a portion of the (i) principal amount of any
Loans, (ii) any interest payable thereon or (iii) any fee or
other amount payable hereunder shall not be paid when due
(whether at the stated maturity, by acceleration or otherwise),
such overdue amount shall bear interest at a rate per annum which
is 2% above the Alternate Base Rate, and any overdue interest or
other amount payable hereunder shall bear interest at a rate per
annum which is 2% above the Alternate Base Rate, in each case
from the date of such non-payment until paid in full (after as
well as before judgment). If all or a portion of the principal
amount of any Loans shall not be paid when due (whether at stated
maturity, by acceleration or otherwise), each Eurodollar Loan
shall, unless the Required Banks otherwise agree, be converted to
an Alternate Base Rate Loan at the end of the last Interest
Period with respect thereto.
(e) Interest shall be payable in arrears on each Interest
Payment Date.
2.9 Computation of Interest and Fees
(a) Interest in respect of Alternate Base Rate
Loans shall be calculated on the basis of a (i) 365-day (or 366-
day, as the case may be) year for the actual days elapsed when
such Alternate Base Rate Loans are based on the Prime Rate, and
(ii) a 360-day year for the actual days elapsed when based on the
Base CD Rate or the Federal Funds Effective Rate. Interest in
respect of Eurodollar Loans and CAF Loans shall be calculated on
the basis of a 360-day year for the actual days elapsed. The
Agent shall as soon as practicable notify the Company and the
Banks of each determination of a Eurodollar Rate. Any change in
the interest rate on a Revolving Credit Loan resulting from a
change in the Alternate Base Rate or the Applicable Margin or the
Eurocurrency Reserve Requirements shall become effective as of
the opening of business on the day on which such change in the
Alternate Base Rate is announced, such Applicable Margin changes
as provided herein or such change in the Eurocurrency Reserve
Requirements shall become effective, as the case may be. The
Agent shall as soon as practicable notify the Company and the
Banks of the effective date and the amount of each such change.
(b) Each determination of an interest rate by the Agent
pursuant to any provision of this Agreement shall be conclusive and
binding on the Company and the Banks in the absence of manifest
error. The Agent shall, at the request of the Company, deliver
to the Company a statement showing the quotations used by the
Agent in determining any interest rate pursuant to subsection
2.8(a) or (d).
(c) If any Reference Bank's Commitment shall terminate
(otherwise than on termination of all the Commitments), or its
Revolving Credit Loans shall be assigned for any reason
whatsoever, such Reference Bank shall thereupon cease to be a
Reference Bank, and if, as a result of the foregoing, there shall
only be one Reference Bank remaining, then the Agent (after
consultation with the Company and the Banks) shall, by notice to
the Company and the Banks, designate another Bank as a Reference
Bank so that there shall at all times be at least two Reference
Banks.
(d) Each Reference Bank shall use its best efforts to furnish
quotations of rates to the Agent as contemplated hereby. If any
of the Reference Banks shall be unable or otherwise fails to
supply such rates to the Agent upon its request, the rate of
interest shall be determined on the basis of the quotations of
the remaining Reference Banks or Reference Bank.
(e) Facility fees shall be computed on the basis of a 365-day
year for the actual days elapsed.
2.10 Inability to Determine Interest Rate
In the event that:
(i) the Agent shall have determined in its reasonable
judgment (which determination shall be conclusive and binding upon
the Company) that, by reason of circumstances affecting the interbank
eurodollar market generally, adequate and reasonable means do not
exist for ascertaining the Eurodollar Rate for any requested
Interest Period;
(ii) only one of the Reference Banks is able to obtain bids for
its Dollar deposits for such Interest Period in the manner
contemplated by the term "Eurodollar Rate"; or
(iii) the Agent shall have received notice prior to the first
day of such Interest Period from Banks constituting the Required
Banks that the interest rate determined pursuant to subsection
2.8(a) for such Interest Period does not accurately reflect the
cost to such Banks (as conclusively certified by such Banks) of
making or maintaining their affected Loans during such Interest
Period;
with respect to (A) proposed Revolving Credit Loans that the
Company has requested be made as Eurodollar Loans, (B) Eurodollar
Loans that will result from the requested conversion of Alternate
Base Rate Loans into Eurodollar Loans or (C) the continuation of
Eurodollar Loans beyond the expiration of the then current
Interest Period with respect thereto, the Agent shall forthwith
give facsimile or telephonic notice of such determination to the
Company and the Banks at least one day prior to, as the case may
be, the requested Borrowing Date for such Eurodollar Loans, the
conversion date of such Loans or the last day of such Interest
Period. If such notice is given (x) any requested Eurodollar
Loans shall be made as Alternate Base Rate Loans, (y) any
Alternate Base Rate Loans that were to have been converted to
Eurodollar Loans shall be continued as Alternate Base Rate Loans
and (z) any outstanding Eurodollar Loans shall be converted, on
the last day of the then current Interest Period with respect
thereto, to Alternate Base Rate Loans. Until such notice has
been withdrawn by the Agent, no further Eurodollar Loans shall be
made, nor shall the Company have the right to convert Alternate
Base Rate Loans to Eurodollar Loans. The Agent shall withdraw
such notice upon its determination that the event or events which
gave rise to such notice no longer exist.
2.11 Pro Rata Borrowings and Payments
(a) Each borrowing by the Company of Revolving
Credit Loans under the Tranche A Commitments or the Tranche B
Commitments shall be made ratably from the Banks in accordance
with their Tranche A Commitment Percentages or Tranche B
Commitment Percentages, as the case may be.
(b) Whenever any payment received by the Agent under this
Agreement or any Note is insufficient to pay in full all amounts
then due and payable to the Agent and the Banks under this
Agreement and the Notes, and the Agent has not received a Payment
Sharing Notice (or if the Agent has received a Payment Sharing
Notice but the Event of Default specified in such Payment Sharing
Notice has been cured or waived), such payment shall be
distributed and applied by the Agent and the Banks in the
following order: first, to the payment of fees and expenses due
and payable to the Agent under and in connection with this
Agreement; second, to the payment of all expenses due and payable
under subsection 10.5(a), ratably among the Banks in accordance
with the aggregate amount of such payments owed to each such
Bank; third, to the payment of fees due and payable under
subsection 2.4, ratably among the Banks in accordance with their
Commitment Percentages; fourth, to the payment of interest then
due and payable on the Loans, ratably among the Banks in
accordance with the aggregate amount of interest owed to each
such Bank; and fifth, to the payment of the principal amount of
the Loans which is then due and payable, ratably among the Banks
in accordance with the aggregate principal amount owed to each
such Bank.
(c) After the Agent has received a Payment Sharing Notice which
remains in effect, all payments received by the Agent under this
Agreement or any Note shall be distributed and applied by the
Agent and the Banks in the following order: first, to the
payment of all amounts described in clauses first through third
of the foregoing paragraph (b), in the order set forth therein;
and second, to the payment of the interest accrued on and the
principal amount of all of the Loans, regardless of whether any
such amount is then due and payable, ratably among the Banks in
accordance with the aggregate accrued interest plus the aggregate
principal amount owed to such Bank.
(d) All payments (including prepayments) to be made by the
Company on account of principal, interest and fees shall be made
without set-off or counterclaim and shall be made to the Agent,
for the account of the Banks, at the Agent's office set forth in
subsection 10.2, in lawful money of the United States of America
and in immediately available funds. The Agent shall distribute
such payments to the Banks promptly upon receipt in like funds as
received. If any payment hereunder (other than payments on the
CAF Loans made pursuant to a LIBOR Auction Advance Request)
becomes due and payable on a day other than a Business Day, such
payment shall be extended to the next succeeding Business Day,
and, with respect to payments of principal, interest thereon
shall be payable at the then applicable rate during such
extension. If any payment on a CAF Loan made pursuant to a LIBOR
Auction Advance Request becomes due and payable on a day other
than a Working Day, the maturity thereof shall be extended to the
next succeeding Working Day unless the result of such extension
would be to extend such payment into another calendar month in
which event such payment shall be made on the immediately
preceding Working Day.
(e) Unless the Agent shall have been notified in writing by any
Bank prior to a Borrowing Date that such Bank will not make the
amount which would constitute its Tranche A Commitment Percentage
or Tranche B Commitment Percentage, as the case may be, of the
borrowing of Revolving Credit Loans on such date available to the
Agent, the Agent may assume that such Bank has made such amount
available to the Agent on such Borrowing Date, and the Agent may,
in reliance upon such assumption, make available to the Company a
corresponding amount. If such amount is made available to the
Agent on a date after such Borrowing Date, such Bank shall pay to
the Agent on demand an amount equal to the product of (i) the
daily average Federal Funds Effective Rate during such period as
quoted by the Agent, times (ii) the amount of such Bank's Tranche
A Commitment Percentage or Tranche B Commitment Percentage, as
the case may be, of such borrowing, times (iii) a fraction the
numerator of which is the number of days that elapse from and
including such Borrowing Date to the date on which such Bank's
Tranche A Commitment Percentage or Tranche B Commitment
Percentage, as the case may be, of such borrowing shall have
become immediately available to the Agent and the denominator of
which is 360. A certificate of the Agent submitted to any Bank
with respect to any amounts owing under this subsection 2.11(e)
shall be conclusive, absent manifest error. If such Bank's
Tranche A Commitment Percentage or Tranche B Commitment
Percentage, as the case may be, of such borrowing is not in fact
made available to the Agent by such Bank within three Business
Days of such Borrowing Date, the Agent shall be entitled to
recover such amount with interest thereon at the rate per annum
applicable to Alternate Base Rate Loans hereunder, on demand,
from the Company.
2.12 Illegality
Notwithstanding any other provisions herein, if
after the date hereof the adoption of or any change in any
Requirement of Law or in the interpretation or application
thereof shall make it unlawful for any Bank to make or maintain
Eurodollar Loans as contemplated by this Agreement, (a) the Bank
shall, within 30 Working Days after it becomes aware of such
fact, notify the Company, through the Agent, of such fact, (b)
the commitment of such Bank hereunder to make Eurodollar Loans or
convert Alternate Base Rate Loans to Eurodollar Loans shall
forthwith be cancelled and (c) such Bank's Revolving Credit Loans
then outstanding as Eurodollar Loans, if any, shall be converted
automatically to Alternate Base Rate Loans on the respective last
days of the then current Interest Periods for such Revolving
Credit Loans or within such earlier period as required by law.
Each Bank shall take such action as may be reasonably available
to it without material legal or financial disadvantage (including
changing its Eurodollar Lending Office) to prevent the adoption
of or any change in any such Requirement of Law from becoming
applicable to it.
2.13 Requirements of Law
(a) If after the date hereof the adoption of or any
change in any Requirement of Law or in the interpretation or
application thereof or compliance by any Bank with any request or
directive (whether or not having the force of law) after the date
hereof from any central bank or other Governmental Authority:
(i) shall subject any Bank to any tax of any kind whatsoever
(other than a withholding tax) with respect to this Agreement,
any Revolving Credit Note, or any Eurodollar Loans made by it, or
change the basis of taxation of payments to such Bank of
principal, facility fee, interest or any other amount payable
hereunder in respect of Revolving Credit Loans (except for
changes in the rate of tax on the overall net income of such
Bank);
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets
held by, or deposits or other liabilities in or for the account
of, advances or loans by, or other credit extended by, or any
other acquisition of funds by, any office of such Bank which are
not otherwise included in the determination of the Eurodollar
Rate hereunder; or
(iii) shall impose on such Bank any other condition;
and the result of any of the foregoing is to increase the cost to
such Bank, by any amount which such Bank reasonably deems to be
material, of making, renewing or maintaining advances or
extensions of credit or to reduce any amount receivable
hereunder, in each case, in respect thereof, then, in any such
case, the Company shall promptly pay such Bank, upon its demand,
any additional amounts necessary to compensate such Bank for such
additional cost or reduced amount receivable; provided, however,
that notwithstanding anything contained in this subsection
2.13(a) to the contrary, such Bank shall not be entitled to
receive any amounts pursuant to this subsection 2.13(a) that it
is also entitled to pursuant to subsection 2.15(a). If a Bank
becomes entitled to claim any additional amounts pursuant to this
subsection 2.13(a), it shall, within 30 Business Days after it
becomes aware of such fact, notify the Company, through the
Agent, of the event by reason of which it has become so entitled.
A certificate as to any additional amounts payable pursuant to
the foregoing sentence submitted by such Bank, through the Agent,
to the Company shall be conclusive in the absence of manifest
error. Each Bank shall take such action as may be reasonably
available to it without legal or financial disadvantage
(including changing its Eurodollar Lending Office) to prevent any
such Requirement of Law or change from becoming applicable to it.
This covenant shall survive the termination of this Agreement and
payment of the outstanding Revolving Credit Notes and all other
amounts payable hereunder.
(b) In the event that after the date hereof a Bank is required
to maintain reserves of the type contemplated by the definition
of "Eurocurrency Reserve Requirements", such Bank may require the
Company to pay, promptly after receiving notice of the amount
due, additional interest on the related Eurodollar Loan of such
Bank at a rate per annum determined by such Bank up to but not
exceeding the excess of (i) (A) the applicable Eurodollar Rate
divided by (B) one minus the Eurocurrency Reserve Requirements
over (ii) the applicable Eurodollar Rate. Any Bank wishing to
require payment of any such additional interest on account of any
of its Eurodollar Loans shall notify the Company no more than 30
Working Days after each date on which interest is payable on such
Eurodollar Loan of the amount then due it under this subsection
2.13(b), in which case such additional interest on such
Eurodollar Loan shall be payable to such Bank at the place
indicated in such notice. Each such notification shall be
accompanied by such information as the Company may reasonably
request.
2.14 Capital Adequacy
If any Bank shall have determined that after the
date hereof the adoption of or any change in any Requirement of
Law regarding capital adequacy or in the interpretation or
application thereof or compliance by such Bank or any corporation
controlling such Bank with any request or directive after the
date hereof regarding capital adequacy (whether or not having the
force of law) from any central bank or Governmental Authority,
does or shall have the effect of reducing the rate of return on
such Bank's or such corporation's capital as a consequence of its
obligations hereunder to a level below that which such Bank or
such corporation could have achieved but for such adoption,
change or compliance (taking into consideration such Bank's or
such corporation's policies with respect to capital adequacy) by
an amount which is reasonably deemed by such Bank to be material,
then from time to time, promptly after submission by such Bank,
through the Agent, to the Company of a written request therefor
(such request shall include details reasonably sufficient to
establish the basis for such additional amounts payable and shall
be submitted to the Company within 30 Working Days after it
becomes aware of such fact), the Company shall promptly pay to
such Bank such additional amount or amounts as will compensate
such Bank for such reduction. The agreements in this subsection
2.14 shall survive the termination of this Agreement and payment
of the Loans and the Notes and all other amounts payable
hereunder.
2.15 Taxes
(a) All payments made by the Company under this
Agreement shall be made free and clear of, and without reduction
or withholding for or on account of, any present or future
income, stamp or other taxes, levies, imposts, duties, charges,
fees, deductions or withholdings, now or hereafter imposed,
levied, collected, withheld or assessed by any Governmental
Authority excluding, in the case of the Agent and each Bank, net
income and franchise taxes imposed on the Agent or such Bank by
the jurisdiction under the laws of which the Agent or such Bank
is organized or any political subdivision or taxing authority
thereof or therein, or by any jurisdiction in which such Bank's
Domestic Lending Office or Eurodollar Lending Office, as the case
may be, is located or any political subdivision or taxing
authority thereof or therein (all such non-excluded taxes,
levies, imposts, deductions, charges or withholdings being
hereinafter called "Taxes"). If any Taxes are required to be
withheld from any amounts payable to the Agent or any Bank
hereunder or under the Notes, the amounts so payable to the Agent
or such Bank shall be increased to the extent necessary to yield
to the Agent or such Bank (after payment of all Taxes) interest
or any such other amounts payable hereunder at the rates or in
the amounts specified in this Agreement and the Notes. Whenever
any Taxes are payable by the Company, as promptly as possible
thereafter, the Company shall send to the Agent for its own
account or for the account of such Bank, as the case may be, a
certified copy of any original official receipt that is received
by the Company showing payment thereof (or, if no official
receipt is received by the Company, a statement of the Company
indicating payment thereof). If the Company fails to pay any
Taxes when due to the appropriate taxing authority or fails to
remit to the Agent the required receipts or other required
documentary evidence, the Company shall indemnify the Agent and
the Banks for any incremental taxes, interest or penalties that
may become payable by the Agent or any Bank as a result of any
such failure, except to the extent such failure is attributable
to a failure by a Non-U.S. Bank to comply with the form delivery
and notice requirements of paragraph (b) below.
(b) Each Bank (or Transferee) that is not a citizen or resident
of the United States of America, a corporation, partnership or
other entity created or organized in or under the laws of the
United States of America (or any jurisdiction thereof), or any
estate or trust that is subject to federal income taxation
regardless of the source of its income (a "Non-U.S. Bank") shall
deliver to the Company and the Agent (or, in the case of a
Participant, to the Bank from which the related participation
shall have been purchased) two copies of either U.S. Internal
Revenue Service Form W-8BEN or Form W-8ECI, or any subsequent
versions thereof or successors thereto, properly completed and
duly executed by such Non-U.S. Bank claiming complete exemption
from U.S. federal withholding tax on all payments by the Company
under this Agreement and the other Loan Documents. Such forms
shall be delivered by each Non-U.S. Bank on or before the date it
becomes a party to this Agreement (or, in the case of any
Participant, on or before the date such Participant purchases the
related participation). In addition, each Non-U.S. Bank shall
deliver such forms promptly upon the obsolescence or invalidity
of any form previously delivered by such Non-U.S. Bank. Each Non-
U.S. Bank shall promptly notify the Company at any time it
determines that it is no longer in a position to provide any
previously delivered certificate to the Company (or any other
form of certification adopted by the U.S. taxing authorities for
such purpose). Notwithstanding any other provision of this
paragraph, a Non-U.S. Bank shall not be required to deliver any
form pursuant to this paragraph that such Non-U.S. Bank is not
legally able to deliver, provided, however, that in the event
that the failure to be able to deliver such form is not
attributable to a change in law, the Company shall be relieved of
the obligation to make additional payments under subsection
2.15(a) above.
(c) The agreements in subsection 2.15 shall survive the
termination of this Agreement and the payment of the Loans and
all other amounts payable hereunder.
2.16 Indemnity
. The Company agrees to indemnify each Bank and to
hold each Bank harmless from any loss or expense (other than any
loss of anticipated margin or profit) which such Bank may sustain
or incur as a consequence of (a) default by the Company in
payment when due of the principal amount of or interest on any
Eurodollar Loans of such Bank, (b) default by the Company in
making a borrowing or conversion after the Company has given a
notice of borrowing in accordance with subsection 2.1(c) or a
notice of continuation or conversion pursuant to subsection 2.7,
(c) default by the Company in making any prepayment after the
Company has given a notice in accordance with subsection 2.6 or
(d) the making of a prepayment of a Eurodollar Loan on a day
which is not the last day of an Interest Period with respect
thereto, including, without limitation, in each case, any such
loss or expense arising from the reemployment of funds obtained
by it to maintain its Eurodollar Loans hereunder or from fees
payable to terminate the deposits from which such funds were
obtained. Any Bank claiming any amount under this subsection
2.16 shall provide calculations, in reasonable detail, of the
amount of its loss or expense. This covenant shall survive
termination of this Agreement and payment of the outstanding
Loans and all other amounts payable hereunder.
2.17 Application of Proceeds of Loans
. Subject to the provisions of the following sentence,
the Company may use the proceeds of the Loans for any lawful
general corporate purpose, including acquisitions. The Company
will not, directly or indirectly, apply any part of the proceeds
of any such Loan for the purpose of "purchasing" or "carrying"
any Margin Stock within the respective meanings of each of the
quoted terms under Regulation U, or to refund any indebtedness
incurred for such purpose, provided that the Company may use the
proceeds of Loans for such purposes, if such usage does not
violate Regulation U as now and from time to time hereafter in
effect.
2.18 Notice of Certain Circumstances; Assignment of Commitments
Under Certain Circumstances
. (a) Any Bank claiming any additional amounts
payable pursuant to subsections 2.13, 2.14 or 2.15 or exercising
its rights under subsection 2.12, shall, in accordance with the
respective provisions thereof, provide notice to the Company and
the Agent. Such notice to the Company and the Agent shall
include details reasonably sufficient to establish the basis for
such additional amounts payable or the rights to be exercised by
the Bank.
(b) Any Bank claiming any additional amounts payable pursuant to
subsections 2.13, 2.14 or 2.15 or exercising its rights under
subsection 2.12, shall use reasonable efforts (consistent with
legal and regulatory restrictions) to file any certificate or
document requested by the Company or to change the jurisdiction
of its applicable lending office if the making of such filing or
change would avoid the need for or reduce the amount of any such
additional amounts which may thereafter accrue or avoid the
circumstances giving rise to such exercise and would not, in the
reasonable determination of such Bank, be otherwise
disadvantageous in any material respect to such Bank.
(c) In the event that the Company shall be required to make any
additional payments to any Bank pursuant to subsections 2.13,
2.14 or 2.15 or any Bank shall exercise its rights under
subsection 2.12, the Company shall have the right at its own
expense, upon notice to such Bank and the Agent, to require such
Bank to transfer and to assign without recourse (in accordance
with and subject to the terms of subsection 10.6) all its
interest, rights and obligations under this Agreement to another
financial institution (including any Bank) acceptable to the
Agent (which approval shall not be unreasonably withheld) which
shall assume such obligations; provided that (i) no such
assignment shall conflict with any Requirement of Law and (ii)
such assuming financial institution shall pay to such Bank in
immediately available funds on the date of such assignment the
outstanding principal amount of such Bank's Loans together with
accrued interest thereon and all other amounts accrued for its
account or owed to it hereunder, including, but not limited to
additional amounts payable under subsections 2.4, 2.12, 2.13,
2.14, 2.15 and 2.16.
2.19 Regulation U
. (a) If at any time the Company shall use the
proceeds of any Loans for the purpose of "purchasing" or
"carrying" any Margin Stock within the respective meanings of
each of the quoted terms under Regulation U, or to refund any
indebtedness incurred for such purpose, and, after giving effect
to such purchase or refund, more than 25% of the value
(determined in accordance with Regulation U) of the assets
subject to the restrictions of Section 7 would be represented by
Margin Stock, the Company shall give notice thereof to the Agent
and the Banks, and thereafter the Loans made by each Bank shall
at all times be treated for purposes of Regulation U as two
separate extensions of credit (the "A Credit" and the "B Credit"
of such Bank and, collectively, the "A Credits" and the "B
Credits"), as follows:
(i) the aggregate amount of the A Credit of such Bank shall be
an amount equal to such Bank's pro rata share (based on the
amount of its Commitment Percentage) of the maximum loan value
(as determined in accordance with Regulation U), of all Margin
Stock Collateral; and
(ii) the aggregate amount of the B Credit of such Bank shall be
an amount equal to such Bank's pro rata share (based on the
amount of its Commitment Percentage) of all Loans outstanding
hereunder minus such Bank's A Credit.
In the event that any Margin Stock Collateral is acquired or
sold, the amount of the A Credit of such Bank shall be adjusted
(if necessary), to the extent necessary by prepayment, to an
amount equal to such Bank's pro rata share (based on the amount
of its Commitment Percentage) of the maximum loan value
(determined in accordance with Regulation U) as of the date of
such acquisition or sale) of the Margin Stock Collateral
immediately after giving effect to such acquisition or sale.
Nothing contained in this subsection 2.19 shall be deemed to
permit any sale of Margin Stock Collateral in violation of any
other provisions of this Agreement.
(b) Each Bank will maintain its records to identify the A Credit
of such Bank and the B Credit of such Bank, and, solely for the
purposes of complying with Regulation U, the A and B Credits
shall be treated as separate extensions of credit. Each Bank
hereby represents and warrants that the loan value of the Other
Collateral is sufficient for such Bank to lend its pro rata share
of the B Credit.
(c) The benefits of the indirect security in Margin Stock
Collateral created by any provisions of this Agreement shall be
allocated first to the benefit and security of the payment of the
principal of and interest on the A Credits of the Banks and of
all other amounts payable by the Company under this Agreement in
connection with the A Credits (collectively, the "A Credit
Amounts") and second, only after the payment in full of the A
Credit Amounts, to the benefit and security of the payment of the
principal of and interest on the B Credits of the Banks and of
all other amounts payable by the Company under this Agreement in
connection with the B Credits (collectively, the "B Credit
Amounts"). The benefits of the indirect security in Other
Collateral created by any provisions of this Agreement, shall be
allocated first to the benefit and security of the payment of the
B Credit Amounts and second, only after the payment in full of
the B Credit Amounts, to the benefit and security of the payment
of the A Credit Amounts.
(d) The Company shall furnish to each Bank at the time of each
acquisition and sale of Margin Stock Collateral such information
and documents as the Agent or such Bank may require to determine
the A and B Credits, and at any time and from time to time, such
other information and documents as the Agent or such Bank may
reasonably require to determine compliance with Regulation U.
(e) Each Bank shall be responsible for its own compliance with
and administration of the provisions of this subsection 2.19 and
Regulation U, and the Agent shall have no responsibility for any
determinations or allocations made or to be made by any Bank as
required by such provisions.
2.20 Borrowings and Repayments after Transition Date.
As promptly as practicable after the Transition Date,
the Company will make borrowings and repayments in respect of
Revolving Credit Loans in amounts such that, after giving effect
to such borrowings and repayments, the outstanding Revolving
Credit Loans will be held by the Banks ratably based upon their
respective Commitments; and all borrowings and repayment of
Revolving Credit Loans thereafter shall be made ratably based
upon the respective Commitments of the Banks.
SECTION 3. [RESERVED]
SECTION 4. REPRESENTATIONS AND WARRANTIES
The Company hereby represents and warrants that:
4.1 Corporate Existence; Compliance with Law
. Each of the Company and its Subsidiaries (a) is duly
organized, validly existing and in good standing under the laws
of the jurisdiction of its organization, (b) has the corporate
power and authority, and the legal right, to make, deliver and
perform the Loan Documents to which it is a party, to own and
operate its property, to lease the property it operates as lessee
and to conduct the business in which it is currently engaged, (c)
is duly qualified as a foreign corporation and in good standing
under the laws of each jurisdiction where its ownership, lease or
operation of property or the conduct of its business requires
such qualification and (d) is in compliance with all Requirements
of Law, including, without limitation, HMO Regulations and
Insurance Regulations, except to the extent that the failure to
be so qualified or to comply therewith would not have a Material
Adverse Effect.
4.2 No Legal Obstacle to Agreement; Enforceability
. Neither the execution and delivery of any Loan
Document, nor the making by the Company of any borrowings
hereunder, nor the consummation of any transaction herein or
therein referred to or contemplated hereby or thereby nor the
fulfillment of the terms hereof or thereof or of any agreement or
instrument referred to in this Agreement, has constituted or
resulted in or will constitute or result in a breach of any
Requirement of Law, including without limitation, HMO Regulations
and Insurance Regulations, or any Contractual Obligation of the
Company or any of its Subsidiaries, or result in the creation
under any agreement or instrument of any security interest, lien,
charge or encumbrance upon any of the assets of the Company or
any of its Subsidiaries. No approval, authorization or other
action by any Governmental Authority, including, without
limitation, HMO Regulators and Insurance Regulators, or any other
Person is required to be obtained by the Company or any of its
Subsidiaries in connection with the execution, delivery and
performance of this Agreement or the other Loan Documents or the
transactions contemplated hereby or thereby, or the making of any
borrowing by the Company hereunder. This Agreement has been, and
each other Loan Document will be, duly executed and delivered on
behalf of the Company. This Agreement constitutes, and each
other Loan Document when executed and delivered will constitute,
a legal, valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
the enforcement of creditors' rights generally and by general
equitable principles (whether enforcement is sought by
proceedings in equity or at law).
4.3 Litigation
. Except as disclosed in the Company's Annual Report
on Form 10-K for its fiscal year ended December 31, 2000 and the
Company's Quarterly Reports on Form 10-Q for its fiscal quarters
ended March 31, 2001 and June 30, 2001 filed with the Securities
and Exchange Commission and previously distributed to the Banks,
as of the date hereof, there is no litigation, at law or in
equity, or any proceeding before any federal, state, provincial
or municipal board or other governmental or administrative
agency, including without limitation, HMO Regulators and
Insurance Regulators, pending or to the knowledge of the Company
threatened which, after giving effect to any applicable
insurance, could reasonably be expected to have a Material
Adverse Effect or which seeks to enjoin the consummation of any
of the transactions contemplated by this Agreement or any other
Loan Document, and no judgment, decree, or order of any federal,
state, provincial or municipal court, board or other governmental
or administrative agency, including without limitation, HMO
Regulators and Insurance Regulators, has been issued against the
Company or any Subsidiary which has, or may involve, a material
risk of a Material Adverse Effect. The Company does not believe
that the final resolution of the matters disclosed in its Annual
Report on Form 10-K for its fiscal year ended December 31, 2000
and the Company's Quarterly Reports on Form 10-Q for its fiscal
quarters ended March 31, 2001 and June 30, 2001 filed with the
Securities and Exchange Commission and previously distributed to
the Banks, will have a Material Adverse Effect.
4.4 Disclosure
. Neither this Agreement nor any agreement, document,
certificate or statement furnished to the Banks by the Company in
connection herewith (including, without limitation, the
information relating to the Company and its Subsidiaries included
in the Confidential Information Memorandum dated September 2001
delivered in connection with the syndication of the credit
facilities hereunder) contains any untrue statement of material
fact or, taken as a whole together with all other information
furnished to the Banks by the Company, omits to state a material
fact necessary in order to make the statements contained herein
or therein not misleading. All pro forma financial statements
made available to the Banks have been prepared in good faith
based upon reasonable assumptions. There is no fact known to the
Company which materially adversely affects or in the future could
reasonably be expected to materially adversely affect the
business, operations, affairs or condition of the Company and its
Subsidiaries on a consolidated basis, except to the extent that
they may be affected by future general economic conditions.
4.5 Defaults
. Neither the Company nor any of its Subsidiaries is
in default under or with respect to any Requirement of Law or
Contractual Obligation in any respect which has had, or may have,
a Material Adverse Effect. No Default or Event of Default has
occurred and is continuing.
4.6 Financial Condition
. The Company has furnished to the Agent and each Bank
copies of the following:
(a) The Annual Report of the Company on Form 10-K for the fiscal
year ended December 31, 2000; and
(b) the Quarterly Reports of the Company on Form 10-Q for the
fiscal quarters ended March 31, 2001 and June 30, 2001.
The financial statements included therein, including the related
schedules and notes thereto, have been prepared in accordance
with GAAP applied consistently throughout the periods involved
(except as disclosed therein). As of the date of such financial
statements, neither the Company nor any of its Subsidiaries had
any known contingent liabilities of any significant amount which
in accordance with GAAP are required to be referred to in said
financial statements or in the notes thereto which could
reasonably be expected to have a Material Adverse Effect. During
the period from December 31, 2000 to and including the date
hereof, there has been no sale, transfer or other disposition by
the Company or any of its consolidated Subsidiaries of any asset
reflected on the balance sheet referred to above that would have
been a material part of its business or property and no purchase
or other acquisition of any business or property (including any
capital stock of any other Person) material in relation to the
consolidated financial condition of the Company and its
consolidated Subsidiaries at December 31, 2000 other than as
disclosed in Schedule VI.
4.7 Changes in Condition
. Since December 31, 2000, there has been no
development or event nor any prospective development or event,
which has had, or could reasonably be expected to have, a
Material Adverse Effect.
4.8 Assets
. The Company and each Subsidiary have good and
marketable title to all material assets carried on their books
and reflected in the financial statements referred to in
subsection 4.6 or furnished pursuant to subsection 6.4, except
for assets held on Financing Leases or purchased subject to
security devices providing for retention of title in the vendor,
and except for assets disposed of as permitted by this Agreement.
4.9 Tax Returns
. The Company and each of its Subsidiaries have filed
all tax returns which are required to be filed and have paid, or
made adequate provision for the payment of, all taxes which have
or may become due pursuant to said returns or to assessments
received. All federal tax returns of the Company and its
Subsidiaries through their fiscal years ended in 1997 have been
audited by the Internal Revenue Service or are not subject to
such audit by virtue of the expiration of the applicable period
of limitations, and the results of such audits are fully
reflected in the balance sheets referred to in subsection 4.6.
The Company knows of no material additional assessments since
said date for which adequate reserves have not been established.
4.10 Contracts, etc
. Attached hereto as Schedule III is a statement of
outstanding Indebtedness of the Company and its Subsidiaries for
borrowed money in excess of $2,000,000 as of the date set forth
therein, and a complete and correct list of all agreements,
contracts, indentures, instruments, documents and amendments
thereto to which the Company or any Subsidiary is a party or by
which it is bound pursuant to which any such Indebtedness of the
Company and its Subsidiaries is outstanding on the date hereof.
Said Schedule III also includes a complete and correct list of
all such Indebtedness of the Company and its Subsidiaries
outstanding on the date indicated in respect of Guarantee
Obligations in excess of $2,000,000 and letters of credit in
excess of $2,000,000, and there have been no increases in such
Indebtedness since said date other than as permitted by this
Agreement.
4.11 Subsidiaries
. As of the date hereof, the Company has only the
Subsidiaries set forth in Schedule IV, all of the outstanding
capital stock of each of which is duly authorized, validly
issued, fully paid and nonassessable and owned as set forth in
said Schedule IV. Schedule IV indicates all Subsidiaries of the
Company which are not Wholly-Owned Subsidiaries and the
percentage ownership of the Company and its Subsidiaries in each
such Subsidiary. The capital stock and securities owned by the
Company and its Subsidiaries in each of the Company's
Subsidiaries are owned free and clear of any mortgage, pledge,
lien, encumbrance, charge or restriction on the transfer thereof
other than restrictions on transfer imposed by applicable
securities laws and restrictions, liens and encumbrances
outstanding on the date hereof and listed in said Schedule IV.
4.12 Burdensome Obligations
. Neither the Company nor any Subsidiary is a party to
or bound by any agreement, deed, lease or other instrument, or
subject to any charter, by-law or other corporate restriction
which, in the reasonable opinion of the management thereof, is so
unusual or burdensome as to in the foreseeable future have a
Material Adverse Effect. The Company does not presently
anticipate that future expenditures of the Company and its
Subsidiaries needed to meet the provisions of any federal or
state statutes, orders, rules or regulations will be so
burdensome as to have a Material Adverse Effect.
4.13 Pension Plans
. Each Plan maintained by the Company, any Subsidiary
or any Control Group Person or to which any of them makes or will
make contributions is in material compliance with the applicable
provisions of ERISA and the Code. Neither the Company nor any
Subsidiary nor any Control Group Person maintains, contributes to
or participates in any Plan that is a "defined benefit plan" as
defined in ERISA. Neither the Company, any Subsidiary, nor any
Control Group Person has since August 31, 1987 maintained,
contributed to or participated in any Multiemployer Plan, with
respect to which a complete withdrawal would result in any
withdrawal liability. The Company and its Subsidiaries have met
all of the funding standards applicable to all Plans that are not
Multiemployer Plans, and there exists no event or condition which
would permit the institution of proceedings to terminate any Plan
that is not a Multiemployer Plan. The current value of the
benefits guaranteed under Title IV of ERISA of each Plan that is
not a Multiemployer Plan does not exceed the current value of
such Plan's assets allocable to such benefits.
4.14 Environmental and Public and Employee Health and Safety
Matters
. The Company and each Subsidiary has complied with
all applicable Federal, state, and other laws, rules and
regulations relating to environmental pollution or to
environmental regulation or control or to public or employee
health or safety, except to the extent that the failure to so
comply would not be reasonably likely to result in a Material
Adverse Effect. The Company's and the Subsidiaries' facilities
do not contain, and have not previously contained, any hazardous
wastes, hazardous substances, hazardous materials, toxic
substances or toxic pollutants regulated under the Resource
Conservation and Recovery Act, the Comprehensive Environmental
Response Compensation and Liability Act, the Hazardous Materials
Transportation Act, the Toxic Substance Control Act, the Clean
Air Act, the Clean Water Act or any other applicable law relating
to environmental pollution or public or employee health and
safety, in violation of any such law, or any rules or regulations
promulgated pursuant thereto, except for violations that would
not be reasonably likely to result in a Material Adverse Effect.
The Company is aware of no events, conditions or circumstances
involving environmental pollution or contamination or public or
employee health or safety, in each case applicable to it or its
Subsidiaries, that would be reasonably likely to result in a
Material Adverse Effect.
4.15 Federal Regulations
. No part of the proceeds of any Loans will be used in
any transaction or for any purpose which violates the provisions
of Regulations T, U or X as now and from time to time hereafter
in effect. If requested by any Bank or the Agent, the Company
will furnish to the Agent and each Bank a statement to the
foregoing effect in conformity with the requirements of Form FR
U-1 or Form FR G-3 referred to in Regulation U.
4.16 Investment Company Act; Other Regulations
. The Company is not an "investment company", or a
company "controlled" by an "investment company", within the
meaning of the Investment Company Act of 1940, as amended.
Except as set forth in Schedule VII, the Company is not subject
to regulation under any Federal or State statute or regulation
(other than Regulation X) which limits its ability to incur
Indebtedness.
4.17 Solvency
. Each of the Company, and the Company and its
Subsidiaries taken as a whole, is Solvent.
4.18 Casualties
. Neither the businesses nor the properties of the
Company or any of its Subsidiaries are affected by any fire,
explosion, accident, strike, lockout or other material labor
dispute, drought, storm, hail, earthquake, embargo, act of God or
of the public enemy or other casualty (whether or not covered by
insurance) that could reasonably be expected to have a Material
Adverse Effect.
4.19 Business Activity
. Except as set forth in Schedule VIII, neither the
Company nor any of its Subsidiaries is engaged in any line of
business that is not related to the healthcare industry other
than the sale of life insurance in connection with the sale of
medical insurance or other healthcare services, sale of long term
care insurance, or any business or activity which is immaterial
to the Company and its Subsidiaries on a consolidated basis.
4.20 Purpose of Loans
. The proceeds of the Loans shall be used to repay any
amounts outstanding under the Existing Credit Agreement and to
finance any other lawful general corporate purpose, including
acquisitions, provided that no part of the proceeds of any Loans
will be used in any transaction or for any purpose which violates
the provisions of Regulation U as now and from time to time
hereafter in effect.
SECTION 5. CONDITIONS
5.1 Conditions to the Closing Date
. The obligations of each Bank to make the Loans
contemplated by subsections 2.1 and 2.2 shall be subject to the
compliance by the Company with its agreements herein contained
and to the satisfaction, on or before October 15, 2001, of the
following conditions:
(a) Loan Documents. The Agent shall have received this
Agreement, executed and delivered by a duly authorized officer of
the Company, with a counterpart for each Bank.
(b) Legal Opinions. The Agent shall have received, with a copy
for each Bank, opinions rendered by (i) the assistant general
counsel of the Company, substantially in the form of Exhibit I-1,
and (ii) Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx, counsel to the
Company, substantially in the form of Exhibit I-2.
(c) Closing Certificate. The Agent shall have received, with a
copy for each Bank, a Closing Certificate, substantially in the
form of Exhibit H and dated the Closing Date, executed by a
Responsible Officer of the Company.
(d) Legality, etc. The consummation of the transactions
contemplated hereby shall not contravene, violate or conflict
with, any Requirement of Law including, without limitation, HMO
Regulations and Insurance Regulations, and all necessary
consents, approvals and authorizations of any Governmental
Authority or any Person to or of such consummation shall have
been obtained and shall be in full force and effect.
(e) Fees. The Agent shall have received the fees to be received
on the Closing Date referred to in subsection 2.4(b).
(f) Corporate Proceedings. The Agent shall have received, with
a copy for each Bank, a copy of the resolutions, in form and
substance reasonably satisfactory to the Agent, of the Board of
Directors of the Company authorizing (i) the execution, delivery
and performance of this Agreement, the Notes and the other Loan
Documents, and (ii) the borrowings contemplated hereunder,
certified by the Secretary or an Assistant Secretary of the
Company as of the Closing Date, which certificate shall state
that the resolutions thereby certified have not been amended,
modified, revoked or rescinded and shall be in form and substance
reasonably satisfactory to the Agent.
(g) Corporate Documents. The Agent shall have received, with a
copy for each Bank, true and complete copies of the certificate
of incorporation and by-laws of the Company, certified as of the
Closing Date as complete and correct copies thereof by the
Secretary or an Assistant Secretary of the Company.
(h) No Material Litigation. Except as previously disclosed to
the Agent and the Banks pursuant to subsection 4.3, no
litigation, inquiry, investigation, injunction or restraining
order (including any proposed statute, rule or regulation) shall
be pending, entered or threatened which, in the reasonable
judgment of the Required Banks, could reasonably be expected to
have a Material Adverse Effect.
(i) Incumbency Certificate. The Agent shall have received, with
a copy for each Bank, a certificate of the Secretary or an
Assistant Secretary of the Company, dated the Closing Date, as to
the incumbency and signature of the officers of the Company
executing each Loan Document and any certificate or other
document to be delivered by it pursuant hereto and thereto,
together with evidence of the incumbency of such Secretary or
Assistant Secretary.
(j) Good Standing Certificates. The Agent shall have received,
with a copy for each Bank, copies of certificates dated as of a
recent date from the Secretary of State or other appropriate
authority of such jurisdiction, evidencing the good standing of
the Company in its jurisdiction of incorporation and in Kentucky.
(k) No Change. There shall not have occurred any change, or
event, and a Bank shall not have become aware of any previously
undisclosed information regarding the Company and its
Subsidiaries, which in each case in the reasonable judgment of
the Required Banks, could reasonably be expected to have a
Material Adverse Effect.
(l) Repayment of Outstanding Loans. On the Closing Date, all
Loans and other amounts outstanding under the Existing Credit
Agreement, if any, shall be repaid contemporaneously with the
making of Loans hereunder and all commitments to extend credit
thereunder shall be terminated.
5.2 Conditions to Each Loan
. The agreement of each Bank to make any Loan
requested to be made by it on any date is subject to the
satisfaction of the following conditions precedent:
(a) Representations and Warranties. In the case of each Loan
(other than any Tranche B Revolving Credit Loans resulting from
the conversion of RFC Loans to Tranche B Revolving Credit Loans
pursuant to subsection 2.1(d)), each of the representations and
warranties made by the Company and its Subsidiaries in or
pursuant to the Loan Documents shall be true and correct in all
material respects on and as of such date as if made on and as of
such date.
(b) No Default. In the case of each Loan (other than any
Tranche B Revolving Credit Loans resulting from the conversion of
RFC Loans to Tranche B Revolving Credit Loans pursuant to
subsection 2.1(d)), no Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to
the Loans requested to be made on such date.
(c) Additional Matters. All corporate and other proceedings,
and all documents, instruments and other legal matters in
connection with the transactions contemplated by this Agreement
and the other Loan Documents shall be reasonably satisfactory in
form and substance to the Agent, and the Agent shall have
received such other documents, instruments, legal opinions or
other items of information reasonably requested by it, including,
without limitation, copies of any debt instruments, security
agreements or other material contracts to which the Company may
be a party in respect of any aspect or consequence of the
transactions contemplated hereby or thereby as it shall
reasonably request.
(d) Regulations. In the case of any Loan the proceeds of which
will be used, in whole or in part, to finance an acquisition,
such acquisition shall be in full compliance with all applicable
requirements of law, including, without limitation, Regulations
T, U and X of the Board of Governors of the Federal Reserve
System.
(e) Governmental, Third Party Approvals. In the case of any
Loan the proceeds of which will be used, in whole or in part, to
finance an acquisition, all necessary governmental and regulatory
approvals, and all third party approvals the failure to obtain
which would result in the acceleration of indebtedness unless
such indebtedness is paid when due, in connection with such
acquisition or in connection with this Agreement shall have been
obtained and remain in effect, and all applicable waiting periods
with respect to antitrust matters shall have expired without any
action being taken by any competent authority which restrains
such acquisition.
(f) No Restraints. In the case of any Loan the proceeds of
which will be used, in whole or in part, to finance an
acquisition, there shall exist no judgment, order, injunction or
other restraint which would prevent the consummation of such
acquisition.
(g) Form FR U-1; Form FR G-3. In the case of any Loan the
proceeds of which will be used, in whole or in part, to purchase
or carry Margin Stock, the Company shall have executed and
delivered to the Agent and each Bank a statement on Form FR U-1
referred to in Regulation U or, if applicable, Form FR G-3
referred to in Regulation U, showing compliance with Regulation U
after giving effect to such Loan.
(h) Legal Opinion. In the case of any Loan the proceeds of
which will be used, in whole or in part, to purchase or carry
Margin Stock, the Agent shall have received, with a copy for each
Bank, a written legal opinion of Fried, Frank, Harris, Xxxxxxx &
Xxxxxxxx, counsel to the Company, or such other counsel
reasonably acceptable to the Banks, to the effect that such Loan
and the Company's use of the proceeds thereof does not violate
Regulation U or Regulation X.
Each borrowing by the Company hereunder shall constitute a
representation and warranty by the Company as of the date of such
extension of credit that the conditions contained in this
subsection 5.2 have been satisfied.
SECTION 6. AFFIRMATIVE COVENANTS
The Company hereby agrees that, from and after the
Closing Date and so long as the Commitments remain in effect, any
Note remains outstanding and unpaid or any other amount is owing
to any Bank or the Agent hereunder, the Company shall and (except
in the case of delivery of financial information, reports and
notices) shall cause each of its Subsidiaries to:
6.1 Taxes, Indebtedness, etc
. Duly pay, discharge or otherwise satisfy, or cause
to be paid, discharged or otherwise satisfied, before the same
shall become in arrears, all taxes, assessments, levies and other
governmental charges imposed upon such corporation and its
properties, sales and activities, or any part thereof, or upon
the income or profits therefrom; provided, however, that any such
tax, assessment, charge or levy need not be paid if the validity
or amount thereof shall currently be contested in good faith by
appropriate proceedings and if the Company or the Subsidiary in
question shall have set aside on its books appropriate reserves
in conformity with GAAP with respect thereto. Each of the
Company and its Subsidiaries will promptly pay when due, or in
conformance with customary trade terms, all other Indebtedness,
liabilities and other obligations of whatever nature incident to
its operations; provided, however, that any such Indebtedness,
liability or obligation need not be paid if the validity or
amount thereof shall currently be contested in good faith and if
the Company or the Subsidiary in question shall have set aside on
its books appropriate reserves in conformity with GAAP with
respect thereto.
6.2 Maintenance of Properties; Maintenance of Existence
. Keep its material properties in good repair, working
order and condition and will comply at all times with the
provisions of all material leases and other material agreements
to which it is a party so as to prevent any material loss or
forfeiture thereof or thereunder unless compliance therewith is
being contested in good faith by appropriate proceedings and if
the Company or the Subsidiary in question shall have set aside on
its books appropriate reserves in conformity with GAAP with
respect thereto; and in the case of the Company or any Subsidiary
of the Company while such Person remains a Subsidiary, will do
all things necessary to preserve, renew and keep in full force
and effect and in good standing its corporate existence and all
rights, privileges and franchises necessary to continue such
businesses.
6.3 Insurance
. Maintain or cause to be maintained, with financially
sound and reputable insurers including any Subsidiary which is
engaged in the business of providing insurance protection,
insurance (including, without limitation, public liability
insurance, business interruption insurance, reinsurance for
medical claims and professional liability insurance against
claims for malpractice) with respect to its material properties
and business and the properties and business of its Subsidiaries
in at least such amounts and against at least such risks as are
customarily carried under similar circumstances by other
corporations engaged in the same or a similar business; and
furnish to each Bank, upon written request, full information as
to the insurance carried. Such insurance may be subject to co-
insurance, deductibility or similar clauses which, in effect,
result in self-insurance of certain losses, and the Company may
self-insure against such loss or damage, provided that adequate
insurance reserves are maintained in connection with such self-
insurance.
6.4 Financial Statements
. The Company will and will cause each of its
Subsidiaries to maintain a standard modern system of accounting
in which full, true and correct entries will be made of all
dealings or transactions in relation to its business and affairs
in accordance with GAAP consistently applied, and will furnish
(or make available via the IntraLinks website) the following to
the Agent and each Bank (if not provided via Intralinks, in
duplicate if so requested):
(a) Annual Statements. As soon as available, and in any event
within 100 days after the end of each fiscal year, the
consolidated balance sheet as at the end of each fiscal year and
consolidated statements of profit and loss and of retained
earnings for such fiscal year of the Company and its
Subsidiaries, together with comparative consolidated figures for
the next preceding fiscal year, accompanied by reports or
certificates of PricewaterhouseCoopers, or, if they cease to be
the auditors of the Company, of other independent public
accountants of national standing and reputation, to the effect
that such balance sheet and statements were prepared in
accordance with GAAP consistently applied and fairly present the
financial position of the Company and its Subsidiaries as at the
end of such fiscal year and the results of their operations and
changes in financial position for the year then ended and the
statement of such accountants and of the treasurer of the Company
that such said accountants and treasurer have caused the
provisions of this Agreement to be reviewed and that nothing has
come to their attention to lead them to believe that any Default
exists hereunder or, if such is not the case, specifying such
Default or possible Default and the nature thereof. In addition,
such financial statements shall be accompanied by a certificate
of the treasurer of the Company containing computations showing
compliance with subsections 7.1, 7.2, 7.3 and 7.5.
(b) Quarterly Statements. As soon as available, and in any
event within 55 days after the close of each of the first three
fiscal quarters of the Company and its Subsidiaries in each year,
consolidated balance sheets as at the end of such fiscal quarter
and consolidated profit and loss and retained earnings statements
for the portion of the fiscal year then ended, of the Company and
its Subsidiaries, together with computations showing compliance
with subsections 7.1, 7.2, 7.3 and 7.5, accompanied by a
certificate of the treasurer of the Company that such statements
and computations have been properly prepared in accordance with
GAAP, consistently applied, and fairly present the financial
position of the Company and its Subsidiaries as at the end of
such fiscal quarter and the results of their operations and
changes in financial position for such quarter and for the
portion of the fiscal year then ended, subject to normal audit
and year-end adjustments, and to the further effect that he has
caused the provisions of this Agreement and all other agreements
to which the Company or any of its Subsidiaries is a party and
which relate to Indebtedness to be reviewed, and has no knowledge
that any Default has occurred under this Agreement or under any
such other agreement, or, if said treasurer has such knowledge,
specifying such Default and the nature thereof.
(c) ERISA Reports. The Company will furnish the Agent with
copies of any request for waiver of the funding standards or
extension of the amortization periods required by Sections 303
and 304 of ERISA or Section 412 of the Code promptly after any
such request is submitted by the Company to the Department of
Labor or the Internal Revenue Service, as the case may be.
Promptly after a Reportable Event occurs, or the Company or any
of its Subsidiaries receives notice that the PBGC or any Control
Group Person has instituted or intends to institute proceedings
to terminate any pension or other Plan, or prior to the Plan
administrator's terminating such Plan pursuant to Section 4041 of
ERISA, the Company will notify the Agent and will furnish to the
Agent a copy of any notice of such Reportable Event which is
required to be filed with the PBGC, or any notice delivered by
the PBGC evidencing its institution of such proceedings or its
intent to institute such proceedings, or any notice to the PBGC
that a Plan is to be terminated, as the case may be. The Company
will promptly notify each Bank upon learning of the occurrence of
any of the following events with respect to any Plan which is a
Multiemployer Plan: a partial or complete withdrawal from any
Plan which may result in the incurrence by the Company or any of
is Subsidiaries of withdrawal liability in excess of $1,000,000
under Subtitle E of Title IV of ERISA, or of the termination,
insolvency or reorganization status of any Plan under such
Subtitle E which may result in liability to the Company or any of
its Subsidiaries in excess of $1,000,000. In the event of such a
withdrawal, upon the request of the Agent or any Bank, the
Company will promptly provide information with respect to the
scope and extent of such liability, to the best of the Company's
knowledge.
6.5 Certificates; Other Information
. Furnish (or make available via the IntraLinks
website) to the Agent and each Bank:
(a) within five Business Days after the same are sent, copies
of all financial statements and reports which the Company sends to
its stockholders, and within five Business Days after the same
are filed, copies of all financial statements and reports which
the Company may make to, or file with, the Securities and
Exchange Commission;
(b) not later than thirty days prior to the end of each fiscal
year of the Company, a schedule of the Company's insurance
coverage and such supplemental schedules with respect thereto as
the Agent and the Banks may from time to time reasonably request;
(c) within five Business Days after the consummation of a
transaction described in subsection 7.4(c) or (d) or subsection
7.5(f) which, in each case, involves a Significant Subsidiary or
assets which, if they constituted a separate Subsidiary, would
constitute a Significant Subsidiary, a certificate of the
treasurer or chief financial officer of the Company demonstrating
pro forma compliance with the financial covenants in this
Agreement after giving effect to such transaction; and
(d) promptly, such additional financial and other information as
any Bank may from time to time reasonably request.
6.6 Compliance with ERISA
. Each of the Company and its Subsidiaries will meet,
and will cause all Control Group Persons to meet, all minimum
funding requirements applicable to any Plan imposed by ERISA or
the Code (without giving effect to any waivers of such
requirements or extensions of the related amortization periods
which may be granted), and will at all times comply, and will
cause all Control Group Persons to comply, in all material
respects with the provisions of ERISA and the Code which are
applicable to the Plans. At no time shall the aggregate actual
and contingent liabilities of the Company under Sections 4062,
4063, 4064 and other provisions of ERISA (calculated as if the
30% of collective net worth amount referred to in Section
4062(b)(1)(A)(i)(II) of ERISA exceeded the actual total amount of
unfunded guaranteed benefits referred to in Section
4062(B)(1)(A)(i)(I) of ERISA) with respect to all Plans (and all
other pension plans to which the Company, any Subsidiary, or any
Control Group Person made contributions prior to such time)
exceed $5,000,000. Neither the Company nor its Subsidiaries will
permit any event or condition to exist which could permit any
Plan which is not a Multiemployer Plan to be terminated under
circumstances which would cause the lien provided for in Section
4068 of ERISA to attach to the assets of the Company or any of
its Subsidiaries.
6.7 Compliance with Laws
. Comply with all Contractual Obligations and
Requirements of Law (including, without limitation, the HMO
Regulations, Insurance Regulations, Regulation X and laws
relating to the protection of the environment), except where the
failure to comply therewith could not, in the aggregate, have a
Material Adverse Effect.
6.8 Inspection of Property; Books and Records; Discussions
. Keep proper books of records and account in which
full, true and correct entries in conformity with GAAP, all
Requirements of Law, including but not limited to, HMO
Regulations and Insurance Regulations, and the terms hereof shall
be made of all dealings and transactions in relation to its
business and activities; and, upon reasonable notice, permit
representatives of any Bank to visit and inspect any of its
properties and examine and make abstracts from any of its books
and records at any reasonable time and as often as may reasonably
be desired and to discuss the business, operations, properties
and financial and other condition of the Company and its
Subsidiaries with officers and employees of the Company and its
Subsidiaries and with its independent certified public
accountants.
6.9 Notices
. Promptly give notice to the Agent and each Bank of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of the Company or any of its Subsidiaries or (ii)
litigation, investigation or proceeding which exists at any time
between the Company or any of its Subsidiaries and any
Governmental Authority (including, without limitation, HMO
Regulators and Insurance Regulators), which in either case, if
not cured or if adversely determined, as the case may be, could
reasonably be expected to have a Material Adverse Effect;
(c) the commencement of any litigation or proceeding or a
material development or material change in any ongoing litigation
or proceeding affecting the Company or any of its Subsidiaries as
a result of which commencement, development or change the Company
or one of its Subsidiaries could reasonably be expected to incur
a liability (as a result of an adverse judgment or ruling,
settlement, incurrence of legal fees and expenses or otherwise)
of $10,000,000 or more and not covered by insurance or in which
material injunctive or similar relief is sought;
(d) the following events, as soon as possible and in any event
within 30 days after the Company knows thereof: (i) the
occurrence or expected occurrence of any Reportable Event with
respect to any Plan, or any withdrawal from, or the termination,
Reorganization or Insolvency of any Multiemployer Plan or (ii)
the institution of proceedings or the taking of any other action
by the PBGC or the Company or any Commonly Controlled Entity or
any Multiemployer Plan with respect to the withdrawal from, or
the terminating, Reorganization or Insolvency of, any Plan;
(e) a development or event which could reasonably be expected to
have a Material Adverse Effect;
(f) the material non-compliance with any Contractual Obligation
or Requirement of Law, including, without limitation, HMO
Regulations and Insurance Regulations, that is not currently
being contested in good faith by appropriate proceedings;
(g) the revocation of any material license, permit,
authorization, certificate or, qualification of the Company or
any Subsidiary by any Governmental Authority, including, without
limitation, the HMO Regulators and Insurance Regulators; and
(h) any significant change in or material additional restriction
placed on the ability of a Significant Subsidiary to continue
business as usual, including, without limitation, any such
restriction prohibiting the payment to the Company of dividends
by any Significant Subsidiary, by any Governmental Authority,
including, without limitation, the HMO Regulators and Insurance
Regulators.
Each notice pursuant to this subsection shall be accompanied by a
statement of a Responsible Officer setting forth details of the
occurrence referred to therein and stating what action the
Company proposes to take with respect thereto.
6.10 Maintenance of Licenses, Etc
. Preserve and maintain, and cause each of its
Subsidiaries to preserve and maintain, all licenses, permits,
authorizations, certifications and qualifications (including,
without limitation, those qualifications with respect to solvency
and capitalization) required under the HMO Regulations or the
Insurance Regulations in connection with the ownership or
operation of HMO's or insurance companies except were the failure
to do so would not result in a Material Adverse Effect.
6.11 Further Assurances
. Execute any and all further documents, and take all
further action which the Required Banks or the Agent may
reasonably request in order to effectuate the transactions
contemplated by the Loan Documents.
SECTION 7. NEGATIVE COVENANTS
The Company hereby agrees that, from and after the
Closing Date and so long as the Commitments remain in effect, any
Note remains outstanding and unpaid or any other amount is owing
to any Bank or the Agent hereunder, the Company shall not, and
shall not permit any of its Subsidiaries to, directly or
indirectly:
7.1 Financial Condition Covenants.
(a) Maintenance of Net Worth. Permit Consolidated Net Worth
at any time to be less than 75% of its Consolidated Net Worth of the
Company and its consolidated subsidiaries as at March 31, 2001
plus 50% of Consolidated Net Income for each full fiscal quarter
after March 31, 2001 (without any deduction for any such fiscal
quarter in which such Consolidated Net Income is a negative
number).
(b) Interest Coverage. Permit the ratio of (i) Consolidated
EBIT for any period of four consecutive fiscal quarters of the
Company ending with any fiscal quarter set forth below to (ii)
Consolidated Interest Expense during such period, to be less than
the ratio set forth opposite such period below:
Fiscal Quarter Interest Coverage
Ending Ratio
September 30, 2001 - 3.00
September 30, 2002
December 31, 2002 - 3.50
September 30, 2003
December 31. 2003 - 4.00
and thereafter
(c) Maximum Leverage Ratio. Permit the Leverage Ratio on the
last day of any full fiscal quarter of the Company ending with
any fiscal quarter set forth below to be more than the ratio set
forth opposite such period below:
Fiscal Quarter Ending Leverage Ratio
September 30, 2001 - 3.00
September 30, 2002
December 31, 2002 - 2.75
September 30, 2003
December 31. 2003 - 2.50
and thereafter
7.2 Limitation on Subsidiary Indebtedness
. The Company shall not permit any of the Subsidiaries
of the Company to create, incur, assume or suffer to exist any
Indebtedness, except:
(a) Indebtedness of any Subsidiary to the Company or any other
Subsidiary;
(b) Indebtedness of a corporation which becomes a Subsidiary
after the date hereof, provided that (i) such indebtedness
existed at the time such corporation became a Subsidiary and was
not created in anticipation thereof and (ii) immediately before
and after giving effect to the acquisition of such corporation by
the Company no Default or Event of Default shall have occurred
and be continuing; or
(c) additional Indebtedness of Subsidiaries of the Company not
exceeding $125,000,000 in aggregate principal amount at any one
time outstanding.
7.3 Limitation on Liens
. Create, incur, assume or suffer to exist any Lien
upon any of its property, assets or revenues, whether now owned
or hereafter acquired, except for:
(a) Liens, if any, securing the obligations of the Company under
this Agreement and the Notes;
(b) Liens for taxes not yet due or which are being contested in
good faith by appropriate proceedings, provided that adequate
reserves with respect thereto are maintained on the books of the
Company or its Subsidiaries, as the case may be, in conformity
with GAAP;
(c) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business which are not overdue for a period of more than 60 days
or which are being contested in good faith by appropriate
proceedings;
(d) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation;
(e) deposits to secure the performance of bids, trade contracts
(other than for borrowed money), leases, statutory obligations,
surety and appeal bonds, performance bonds and other obligations
of a like nature incurred in the ordinary course of business;
(f) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which,
in the aggregate, are not substantial in amount and which do not
in any case materially detract from the value of the property
subject thereto or materially interfere with the ordinary conduct
of the business of the Company or such Subsidiary;
(g) Liens in existence on the Closing Date listed on Schedule V,
securing Indebtedness in existence on the Closing Date, provided
that no such Lien is spread to cover any additional property
after the Closing Date and that the amount of Indebtedness
secured thereby is not increased;
(h) Liens securing Indebtedness of the Company and its
Subsidiaries not prohibited hereunder incurred to finance the
acquisition of fixed or capital assets, provided that (i) such
Liens shall be created substantially simultaneously with the
acquisition of such fixed or capital assets, (ii) such Liens do
not at any time encumber any property other than the property
financed by such Indebtedness and (iii) the principal amount of
Indebtedness secured by any such Lien shall at no time exceed 80%
of the original purchase price of such property;
(i) Liens on the property or assets of a corporation which
becomes a Subsidiary after the date hereof, provided that (i)
such Liens existed at the time such corporation became a
Subsidiary and were not created in anticipation thereof, (ii) any
such Lien is not spread to cover any other property or assets
after the time such corporation becomes a Subsidiary and (iii)
the amount of Indebtedness secured thereby, if any, is not
increased;
(j) Liens on the Headquarters, Riverview Square, the
Waterside Garage, the Jacksonville Facility, the Green Bay
Facility and the Waterside Building; or
(k) Liens not otherwise permitted under this subsection 7.3
securing obligations in an aggregate amount not exceeding at any
time 10% of Consolidated Net Tangible Assets as at the end of the
immediately preceding fiscal quarter of the Company.
7.4 Limitations on Fundamental Changes
. Enter into any merger, consolidation or
amalgamation, or liquidate, wind up or dissolve itself (or suffer
any liquidation or dissolution), or make any material change in
its method of conducting business, or purchase or otherwise
acquire all or substantially all of the Capital Stock, or the
property, business or assets, of any other Person (other than any
Subsidiary) or any business division thereof except:
(a) any Subsidiary of the Company may be merged or consolidated
with or into the Company (provided that the Company shall be the
continuing or surviving corporation) and any Subsidiary of the
Company may be merged or consolidated with or into any one or
more wholly owned Subsidiaries of the Company (provided that the
surviving corporation shall be a wholly owned Subsidiary);
(b) the Company may merge into another corporation owned by the
Company for the purpose of causing the Company to be incorporated
in a different jurisdiction;
(c) the Company or a wholly owned Subsidiary of the Company may
merge with another corporation, provided that (i) the Company or
such wholly owned Subsidiary (subject to clause (ii)), as the
case may be, shall be the continuing or surviving corporation of
such merger, (ii) in the case of a wholly owned Subsidiary of the
Company which is merged into another corporation which is the
continuing or surviving corporation of such merger, the Company
shall cause such continuing or surviving corporation to be a
wholly owned Subsidiary of the Company and (iii) immediately
before and after giving effect to such merger no Default or Event
of Default shall have occurred and be continuing; or
(d) the Company and its Subsidiaries may purchase or otherwise
acquire all or substantially all of the Capital Stock, or the
property, business or assets, of any other Person, or any
business division thereof, so long as no Default or Event of
Default shall have occurred and be continuing.
7.5 Limitation on Sale of Assets
. Convey, sell, lease, assign, transfer or otherwise
dispose of any of its property, business or assets (including,
without limitation, receivables and leasehold interests), whether
now owned or hereafter acquired, except:
(a) obsolete or worn out property disposed of in the ordinary
course of business;
(b) the sale or discount without recourse of accounts receivable
arising in the ordinary course of business in connection with the
compromise or collection thereof;
(c) the sale or other disposition of the Headquarters,
Riverview Square, the Waterside Garage, the Green Bay
Facility, the Jacksonville Facility and the Waterside
Building;
(d) the sale or other disposition of securities held for
investment purposes in the ordinary course of business;
(e) any wholly owned Subsidiary may sell, lease, transfer or
otherwise dispose of any or all of its assets (upon voluntary
liquidation or otherwise) to the Company or any other wholly
owned Subsidiary of the Company (except to a Subsidiary referred
to in subsection 7.2(b)); or
(f) the sale or other disposition of any other property so long
as no Default or Event of Default shall have occurred and be
continuing; provided that the aggregate book value of all assets
so sold or disposed of in any period of twelve consecutive
calendar months shall not exceed in the aggregate 12% of the
Consolidated Assets of the Company and its Subsidiaries as on the
first day of such period.
7.6 Limitation on Distributions
. The Company shall not make any Distribution except
that, so long as no Default exists or would exist after giving
effect thereto, the Company may make a Distribution.
7.7 Transactions with Affiliates
. Enter into any transaction (unless such transaction
or a series of such transactions is immaterial), including,
without limitation, any purchase, sale, lease or exchange of
property or the rendering of any service, with any Affiliate
(other than the Company and its Subsidiaries) unless such
transaction is otherwise permitted under this Agreement, is in
the ordinary course of the Company's or such Subsidiary's
business and is upon fair and reasonable terms no less favorable
to the Company or such Subsidiary, as the case may be, than it
would obtain in an arm's length transaction.
7.8 Sale and Leaseback
. Enter into any arrangement with any Person providing
for the leasing by the Company or any Subsidiary of real or
personal property which has been or is to be sold or transferred
by the Company or such Subsidiary to such Person or to any other
Person to whom funds have been or are to be advanced by such
Person on the security of such property or rental obligations of
the Company or such Subsidiary, unless such arrangement is upon
fair and reasonable terms no less favorable to the Company or
such Subsidiary than would be obtained in a comparable arm's
length transaction between an informed and willing seller or
lessor under no compulsion to sell or lease and an informed and
willing buyer or lessee under no compulsion to buy or lease.
SECTION 8. DEFAULTS
8.1 Events of Default
. Upon the occurrence of any of the following events:
(a) any default shall be made by the Company in any payment in
respect of: (i) interest on any of the Loans or any fee payable
hereunder as the same shall become due and such default shall
continue for a period of five days; or (ii) any principal of the
Loans as the same shall become due, whether at maturity, by
prepayment, by acceleration or otherwise; or
(b) any default shall be made by either the Company or any
Subsidiary of the Company in the performance or observance of any
of the provisions of subsections 7.1, 7.2, 7.3, 7.4, 7.5, 7.6,
7.7 and 7.8; or
(c) any default shall be made in the due performance or
observance of any other covenant, agreement or provision to be
performed or observed by the Company under this Agreement, and
such default shall not be rectified or cured within a period of
30 days; or
(d) any representation or warranty made or deemed made by the
Company herein or in any other Loan Document or which is
contained in any certificate, document or financial or other
statement furnished at any time under or in connection with this
Agreement shall have been untrue in any material respect on or as
of the date made and the facts or circumstances to which such
representation or warranty relates shall not have been
subsequently corrected to make such representation or warranty no
longer incorrect in any material respect; or
(e) any default shall be made in the payment of any item of
Indebtedness of the Company or any Subsidiary, or under the terms
of any agreement relating to any Indebtedness of the Company or
any Subsidiary, and such default shall continue without having
been duly cured, waived or consented to, beyond the period of
grace, if any, therein specified; provided, however, that such
default shall not constitute an Event of Default unless the
aggregate outstanding principal amount of such item of
Indebtedness and all other items of Indebtedness of the Company
and its Subsidiaries as to which such defaults exist and have
continued without being duly cured, waived or consented to beyond
the respective periods of grace, if any, therein specified
exceeds $25,000,000; or
(f) either the Company or any Subsidiary shall be involved in
financial difficulties as evidenced:
(i) by its commencement of a voluntary case under Title
11 of the United States Code as from time to time in effect, or
by its authorizing, by appropriate proceedings of its board of
directors or other governing body, the commencement of such a
voluntary case;
(ii) by the filing against it of a petition commencing an
involuntary case under said Title 11 which shall not have been
dismissed within 60 days after the date on which said petition is
filed or by its filing an answer or other pleading within said 60-
day period admitting or failing to deny the material allegations
of such a petition or seeking, consenting or acquiescing in the
relief therein provided;
(iii) by the entry of an order for relief in any involuntary
case commenced under said Title 11;
(iv) by its seeking relief as a debtor under any applicable law,
other than said Title 11, of any jurisdiction relating to the
liquidation or reorganization of debtors or to the modification
or alteration of the rights of creditors, or by its consenting to
or acquiescing in such relief;
(v) by the entry of an order by a court of competent
jurisdiction (i) finding it to be bankrupt or insolvent, (ii)
ordering or approving its liquidation, reorganization or any
modification or alteration of the rights of its creditors, or
(iii) assuming custody of, or appointing a receiver or other
custodian for, all or a substantial part of its property; or
(vi) by its making an assignment for the benefit of, or entering
into a composition with, its creditors, or appointing or
consenting to the appointment of a receiver or other custodian
for all or a substantial part of its property; or
(vii) the Company or any of its Subsidiaries shall generally
not, or shall be unable to, or shall admit in writing its
inability to, pay its debts as they become due; or
(g) a Change in Control of the Company shall occur;
(h) (i) any Person shall engage in any "prohibited transaction"
(as defined in Section 406 of ERISA or Section 4975 of the Code)
involving any Plan, (ii) any "accumulated funding deficiency" (as
defined in Section 302 of ERISA), whether or not waived, shall
exist with respect to any Plan, (iii) a Reportable Event shall
occur with respect to, or proceedings shall commence to have a
trustee appointed, or a trustee shall be appointed, to administer
or to terminate, any Single Employer Plan, which Reportable Event
or commencement of proceedings or appointment of a trustee is, in
the reasonable opinion of the Required Banks, likely to result in
the termination of such Plan for purposes of Title IV of ERISA,
(iv) any Single Employer Plan shall terminate for purposes of
Title IV of ERISA, (v) the Company or any Commonly Controlled
Entity shall, or in the reasonable opinion of the Required Banks
is likely to, incur any liability in connection with a withdrawal
from, or the Insolvency or Reorganization of, a Multiemployer
Plan or (vi) any other event or condition shall occur or exist,
with respect to a Plan; and in each case in clauses (i) through
(vi) above, such event or condition, together with all other such
events or conditions, if any, could subject the Company or any of
its Subsidiaries to any tax, penalty or other liabilities which
in the aggregate could have a Material Adverse Effect; or
(i) one or more judgments or decrees shall be entered against
the Company or any of its Subsidiaries and such judgments or
decrees shall not have been vacated, discharged, stayed or bonded
pending appeal within 45 days from the entry thereof that (i)
involves in the aggregate a liability (not paid or fully covered
by insurance) of $25,000,000 or more, or (ii) could reasonably be
expected to have a Material Adverse Effect; or
(j) (i) any material non-compliance by the Company or any
Significant Subsidiary with any term or provision of the HMO
Regulations or Insurance Regulations pertaining to fiscal
soundness, solvency or financial condition; or (ii) the assertion
in writing by an HMO Regulator or Insurance Regulator that it is
taking administrative action against the Company or any
Significant Subsidiary to revoke or suspend any contract of
insurance, license, permit, certification, authorization,
accreditation or charter or to enforce the fiscal soundness,
solvency or financial provisions or requirements of the HMO
Regulations or Insurance Regulations against any of such entities
and the Company or such Significant Subsidiary shall have been
unable to cause such HMO Regulator or Insurance Regulator to
withdraw such written notice within five Business Days following
receipt of such written notice by the Company or such Significant
Subsidiary, in each of clauses (i) and (ii), to the extent such
event will or is reasonably expected to have a Material Adverse
Effect; or
(k) on or after the Closing Date, (i) for any reason any Loan
Document ceases to be or is not in full force and effect or (ii)
the Company shall assert that any Loan Document has ceased to be
or is not in full force and effect;
then, and in any such event, (A) if such event is an Event of
Default specified in paragraph (f) above with respect to the
Company, automatically the Commitments shall immediately
terminate and the Loans hereunder (with accrued interest thereon)
and all other amounts owing under this Agreement shall
immediately become due and payable, and (B) if such event is any
other Event of Default, either or both of the following actions
may be taken: (i) with the consent of the Required Banks, the
Agent may, or upon the request of the Required Banks, the Agent
shall, by notice to the Company, declare the Commitments to be
terminated forthwith, whereupon the Commitments shall immediately
terminate; and (ii) with the consent of the Required Banks, the
Agent may, or upon the request of the Required Banks, the Agent
shall, by notice of default to the Company, declare the Loans
hereunder (with accrued interest thereon) and all other amounts
owing under this Agreement (the "Bank Obligations") to be due and
payable forthwith, whereupon the same shall immediately become
due and payable.
Except as expressly provided above in this Section,
presentment, demand, protest and all other notices of any kind
are hereby expressly waived.
8.2 Annulment of Defaults
. An Event of Default shall not be deemed to be in
existence for any purpose of this Agreement if the Agent, with
the consent of or at the direction of the Required Banks, subject
to subsection 10.1, shall have waived such event in writing or
stated in writing that the same has been cured to its reasonable
satisfaction, but no such waiver shall extend to or affect any
subsequent Event of Default or impair any rights of the Agent or
the Banks upon the occurrence thereof.
8.3 Waivers
. The Company hereby waives to the extent permitted by
applicable law (a) all presentments, demands for performance,
notices of nonperformance (except to the extent required by the
provisions hereof), protests, notices of protest and notices of
dishonor in connection with any of the Loans, (b) any requirement
of diligence or promptness on the part of any Bank in the
enforcement of its rights under the provisions of this Agreement
or any Note, and (c) any and all notices of every kind and
description which may be required to be given by any statute or
rule of law.
8.4 Course of Dealing
. No course of dealing between the Company and any
Bank shall operate as a waiver of any of the Banks' rights under
this Agreement or any Note. No delay or omission on the part of
any Bank in exercising any right under this Agreement or any Note
or with respect to any of the Bank Obligations shall operate as a
waiver of such right or any other right hereunder. A waiver on
any one occasion shall not be construed as a bar to or waiver of
any right or remedy on any future occasion. No waiver or consent
shall be binding upon any Bank unless it is in writing and signed
by the Agent or such of the Banks as may be required by the
provisions of this Agreement. The making of a Loan during the
existence of a Default shall not constitute a waiver thereof.
SECTION 9. THE AGENT
9.1 Appointment
. Each Bank hereby irrevocably designates and appoints
The Chase Manhattan Bank as the Agent and CAF Loan Agent of such
Bank under this Agreement, and each such Bank irrevocably
authorizes The Chase Manhattan Bank, as the Agent and CAF Loan
Agent for such Bank, to take such action on its behalf under the
provisions of this Agreement and to exercise such powers and
perform such duties as are expressly delegated to the Agent or
CAF Loan Agent, as the case may be, by the terms of this
Agreement, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the
contrary elsewhere in this Agreement, neither the Agent nor the
CAF Loan Agent shall have any duties or responsibilities, except
those expressly set forth herein, or any fiduciary relationship
with any Bank, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be
read into this Agreement or otherwise exist against the Agent or
the CAF Loan Agent.
9.2 Delegation of Duties
. The Agent or the CAF Loan Agent may execute any of
its duties under this Agreement by or through agents or attorneys-
in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. Neither the Agent nor the CAF
Loan Agent shall be responsible for the negligence or misconduct
of any agents or attorneys-in-fact selected by it with reasonable
care.
9.3 Exculpatory Provisions
. Neither the Agent nor the CAF Loan Agent nor any of
its officers, directors, employees, agents, attorneys-in-fact or
Affiliates shall be (a) liable for any action lawfully taken or
omitted to be taken by it or such Person under or in connection
with this Agreement (except for its or such Person's own gross
negligence or willful misconduct), or (b) responsible in any
manner to any of the Banks for any recitals, statements,
representations or warranties made by the Company or any officer
thereof contained in this Agreement or in any certificate,
report, statement or other document referred to or provided for
in, or received by the Agent or the CAF Loan Agent under or in
connection with, this Agreement or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this
Agreement or the Notes or for any failure of the Company to
perform its obligations hereunder. Neither the Agent nor the CAF
Loan Agent shall be under any obligation to any Bank to ascertain
or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement, or to
inspect the properties, books or records of the Company.
9.4 Reliance by Agent
. The Agent and the CAF Loan Agent shall be entitled
to rely, and shall be fully protected in relying, upon any Note,
writing, resolution, notice, consent, certificate, affidavit,
letter, cablegram, telegram, telecopy, telex or teletype message,
statement, order or other document or conversation believed by it
to be genuine and correct and to have been signed, sent or made
by the proper Person or Persons and upon advice and statements of
legal counsel (including, without limitation, counsel to the
Company), independent accountants and other experts selected by
the Agent or the CAF Loan Agent. The Agent may deem and treat
the payee of any Note as the owner thereof for all purposes
unless a written notice of assignment, negotiation or transfer
thereof shall have been filed with the Agent. The Agent and the
CAF Loan Agent shall be fully justified in failing or refusing to
take any action under this Agreement unless it shall first
receive such advice or concurrence of the Required Banks as it
deems appropriate or it shall first be indemnified to its
satisfaction by the Banks against any and all liability and
expense which may be incurred by it by reason of taking or
continuing to take any such action. The Agent and the CAF Loan
Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement and the Notes in
accordance with a request of the Required Banks, and such request
and any action taken or failure to act pursuant thereto shall be
binding upon all the Banks and all future holders of the Notes.
9.5 Notice of Default
. The Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default
hereunder unless the Agent has received notice from a Bank or the
Company referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a "notice of
default". In the event that the Agent receives such a notice,
the Agent shall promptly give notice thereof to the Banks. The
Agent shall take such action with respect to such Default or
Event of Default as shall be reasonably directed by the Required
Banks; provided that, unless and until the Agent shall have
received such directions, the Agent may (but shall not be
obligated to) take such action, or refrain from taking such
action, with respect to such Default or Event of Default as it
shall deem advisable in the best interests of the Banks.
9.6 Non-Reliance on Agent and Other Banks
. Each Bank expressly acknowledges that neither the
Agent nor the CAF Loan Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates has made any
representations or warranties to it and that no act by the Agent
or the CAF Loan Agent hereinafter taken, including any review of
the affairs of the Company, shall be deemed to constitute any
representation or warranty by the Agent to any Bank. Each Bank
represents to the Agent and the CAF Loan Agent that it has,
independently and without reliance upon the Agent or the CAF Loan
Agent or any other Bank, and based on such documents and
information as it has deemed appropriate, made its own appraisal
of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Company
and made its own decision to make its Loans hereunder and enter
into this Agreement. Each Bank also represents that it will,
independently and without reliance upon the Agent or the CAF Loan
Agent or any other Bank, and based on such documents and
information as it shall deem appropriate at the time, continue to
make its own credit analysis, appraisals and decisions in taking
or not taking action under this Agreement, and to make such
investigation as it deems necessary to inform itself as to the
business, operations, property, financial and other condition and
creditworthiness of the Company. Except for notices, reports and
other documents expressly required to be furnished to the Banks
by the Agent or the CAF Loan Agent hereunder, neither the Agent
nor the CAF Loan Agent shall have any duty or responsibility to
provide any Bank with any credit or other information concerning
the business, operations, property, financial and other condition
or creditworthiness of the Company which may come into the
possession of the Agent or the CAF Loan Agent or any of its
officers, directors, employees, agents, attorneys-in-fact or
Affiliates.
9.7 Indemnification
. The Banks agree to indemnify the Agent and the CAF
Loan Agent in its capacity as such (to the extent not reimbursed
by the Company and without limiting the obligation of the Company
to do so), ratably according to the respective amounts of their
then existing Commitments, from and against any and all
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind
whatsoever which may at any time (including without limitation at
any time following the payment of the Loans) be imposed on,
incurred by or asserted against the Agent or the CAF Loan Agent
in any way relating to or arising out of this Agreement, or any
documents contemplated by or referred to herein or the
transactions contemplated hereby or any action taken or omitted
by the Agent or the CAF Loan Agent under or in connection with
any of the foregoing; provided that no Bank shall be liable for
the payment of any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the Agent's or the CAF
Loan Agent's gross negligence or willful misconduct. The
agreements in this subsection shall survive the payment of the
Loans and all other amounts payable hereunder.
9.8 Agent and CAF Loan Agent in Its Individual Capacity
. The Agent and the CAF Loan Agent and its Affiliates
may make loans to, accept deposits from and generally engage in
any kind of business with the Company as though the Agent or the
CAF Loan Agent were not the Agent or the CAF Loan Agent
hereunder. With respect to its Loans made or renewed by it and
any Note issued to it, the Agent and the CAF Loan Agent shall
have the same rights and powers under this Agreement as any Bank
and may exercise the same as though it were not the Agent, and
the terms "Bank" and "Banks" shall include the Agent or the CAF
Loan Agent in its individual capacity.
9.9 Successor Agent and CAF Loan Agent
. The Agent or the CAF Loan Agent may resign as Agent
or CAF Loan Agent, as the case may be, upon 10 days' notice to
the Banks. If the Agent or the CAF Loan Agent shall resign as
Agent or CAF Loan Agent, as the case may be, under this
Agreement, then the Required Banks shall appoint from among the
Banks a successor agent for the Banks which successor agent shall
be approved by the Company, whereupon such successor agent shall
succeed to the rights, powers and duties of the Agent or CAF Loan
Agent, as the case may be, and the term "Agent" or "CAF Loan
Agent", as the case may be, shall mean such successor agent
effective upon its appointment, and the former Agent's or CAF
Loan Agent's rights, powers and duties as Agent or CAF Loan Agent
shall be terminated, without any other or further act or deed on
the part of such former Agent or CAF Loan Agent or any of the
parties to this Agreement or any holders of the Notes. After any
retiring Agent's or CAF Loan Agent's resignation hereunder as
Agent or CAF Loan Agent, the provisions of this subsection 9.9
shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was Agent or CAF Loan Agent under this
Agreement.
SECTION 10. MISCELLANEOUS
10.1 Amendments and Waivers
. Neither this Agreement, any Note, nor any terms
hereof or thereof may be amended, supplemented or modified except
in accordance with the provisions of this subsection. With the
written consent of the Required Banks, the Agent and the Company
may, from time to time, enter into written amendments,
supplements or modifications hereto for the purpose of adding any
provisions to this Agreement or the Notes or changing in any
manner the rights of the Banks or of the Company hereunder or
thereunder or waiving, on such terms and conditions as the Agent
may specify in such instrument, any of the requirements of this
Agreement or the Notes or any Default or Event of Default and its
consequences; provided, however, that no such waiver and no such
amendment, supplement or modification shall (a) extend the
maturity (whether as stated, by acceleration or otherwise) of any
Note (subject to the extension provisions of subsection 2.5
hereof), or reduce the rate or extend the time of payment of
interest thereon, or reduce or extend the payment of any fee
payable to the Banks hereunder, or reduce the principal amount
thereof, or change the amount of any Bank's Commitment, or amend,
modify, waive any provision of Section 2.11, in each case without
the consent of each Bank directly affected thereby, or (b) amend,
modify or waive any provision of this subsection 10.1 or reduce
the percentage specified in the definition of Required Banks or
consent to the assignment or transfer by the Company of any of
its rights and obligations under this Agreement, in each case
without the written consent of all the Banks, or (c) amend,
modify or waive any provision of Section 9 without the written
consent of the then Agent. Any such waiver and any such
amendment, supplement or modification shall apply equally to each
of the Banks and shall be binding upon the Company, the Banks,
the Agent and all future holders of the Notes. In the case of
any waiver, the Company, the Banks and the Agent shall be
restored to their former position and rights hereunder and under
the outstanding Notes, and any Default or Event of Default waived
shall be deemed to be cured and not continuing; but no such
waiver shall extend to any subsequent or other Default or Event
of Default, or impair any right consequent thereon.
10.2 Notices
. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing
(including by telecopy), and, unless otherwise expressly provided
herein, shall be deemed to have been duly given or made when
delivered by hand, or three Business Days after being deposited
in the mail, postage prepaid, or one Business Day after being
deposited with an overnight courier service, or, in the case of
telecopy notice, when sent, confirmation of receipt received,
addressed (i) in the case of notices, requests and demands to or
upon the Company, the Agent, and the CAF Loan Agent, as set forth
below and (ii) in the case of notices, requests and demands to or
upon any Bank, as set forth in an administrative questionnaire
delivered by such Bank to the Agent, or, in each case, to such
other address as may be hereafter notified by the respective
parties hereto and any future holders of the Notes:
The Company: Humana Inc.
The Humana Building
000 Xxxx Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. XxXxxxxx,
Vice President and
Treasurer
Telecopy: (000) 000-0000
The Agent and
CAF Loan Agent: The Chase Manhattan Bank
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxx Xxx
Telecopy: (000) 000-0000
with a copy to: Chase Agent Bank Services
One Chase Xxxxxxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx
Telecopy: (000) 000-0000
provided that any notice, request or demand to or upon the Agent
or the Banks pursuant to Section 2 shall not be effective until
received.
10.3 No Waiver; Cumulative Remedies
. No failure to exercise and no delay in exercising,
on the part of the Agent or any Bank, any right, remedy, power or
privilege hereunder, shall operate as a waiver thereof; nor shall
any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein
provided are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by law.
10.4 Survival of Representations and Warranties
. All representations and warranties made hereunder
and in any document, certificate or statement delivered pursuant
hereto or in connection herewith shall survive the execution and
delivery of this Agreement and the Notes.
10.5 Payment of Expenses and Taxes; Indemnity
. (a) The Company agrees (i) to pay or reimburse the
Agent for all its reasonable out-of-pocket costs and expenses
incurred in connection with the development, preparation and
execution of, and any amendment, supplement or modification to,
this Agreement and the Notes and any other documents prepared in
connection herewith, and the consummation of the transactions
contemplated hereby and thereby, including, without limitation,
the reasonable fees and disbursements of counsel to the Agent,
(ii) to pay or reimburse each Bank and the Agent for all their
reasonable costs and expenses incurred in connection with the
enforcement or preservation of any rights under this Agreement,
the Notes and any such other documents, including, without
limitation, reasonable fees and disbursements of counsel
(including, without limitation, the allocated cost of in-house
counsel) to the Agent and to the several Banks, and (iii) to pay,
indemnify, and hold each Bank and the Agent harmless from, any
and all recording and filing fees and any and all liabilities
with respect to, or resulting from any delay in paying, stamp,
excise and other taxes, if any, which may be payable or
determined to be payable in connection with the execution and
delivery of, or consummation of any of the transactions
contemplated by, or any amendment, supplement or modification of,
or any waiver or consent under or in respect of, this Agreement,
the Notes and any such other documents.
(b) The Company will indemnify each of the Agent and the Banks
and the directors, officers and employees thereof and each
Person, if any, who controls each one of the Agent and the Banks
(any of the foregoing, an "Indemnified Person") and hold each
Indemnified Person harmless from and against any and all claims,
damages, liabilities and expenses (including without limitation
all fees and disbursements of counsel (including without
limitation, the allocated cost of in-house counsel) with whom an
Indemnified Person may consult in connection therewith and all
expenses of litigation or preparation therefor) which an
Indemnified Person may incur or which may be asserted against it
in connection with any litigation or investigation (whether or
not such Indemnified Person is a party to such litigation or
investigation) involving this Agreement, the use of any proceeds
of any Loans under this Agreement by the Company or any
Subsidiary, any officer, director or employee thereof, excluding
litigation commenced by the Company against any of the Agent or
the Banks which (i) seeks enforcement of any of the Company's
rights hereunder and (ii) is determined adversely to any of the
Agent or the Banks (all such non-excluded claims, damages,
liabilities and expenses, "Indemnified Liabilities"), provided
that the Company shall have no obligation hereunder to any
Indemnified Person with respect to Indemnified Liabilities to the
extent such Indemnified Liabilities resulted from the gross
negligence or willful misconduct of such Indemnified Person.
(c) The agreements in this subsection 10.5 shall survive
repayment of the Loans and all other amounts payable hereunder.
10.6 Successors and Assigns; Participations; Purchasing Banks
. (a) This Agreement shall be binding upon and inure
to the benefit of the Company, the Banks, the Agent, all future
holders of the Notes and their respective successors and assigns,
except that the Company may not assign or transfer any of its
rights or obligations under this Agreement without the prior
written consent of each Bank.
(b) Any Bank other than a Conduit Lender may, in the ordinary
course of its commercial banking business and in accordance with
applicable law, at any time sell to one or more banks or other
entities ("Participants") participating interests in any Loans
owing to such Bank, any Notes held by such Bank, any Commitments
of such Bank and/or any other interests of such Bank hereunder
and under the other Loan Documents. In the event of any such
sale by a Bank of a participating interest to a Participant, such
Bank's obligations under this Agreement to the other parties
under this Agreement shall remain unchanged, such Bank shall
remain solely responsible for the performance thereof, such Bank
shall remain the holder of any such Notes for all purposes under
this Agreement, and the Company and the Agent shall continue to
deal solely and directly with such Bank in connection with such
Bank's rights and obligations under this Agreement and under the
other Loan Documents. The Company agrees that if amounts
outstanding under this Agreement and the Notes are due or unpaid,
or shall have been declared or shall have become due and payable
upon the occurrence of an Event of Default, each Participant
shall be deemed to have the right of offset in respect of its
participating interest in amounts owing under this Agreement and
any Notes to the same extent as if the amount of its
participating interest were owing directly to it as a Bank under
this Agreement or any Notes, provided that such right of offset
shall be subject to the obligation of such Participant to share
with the Banks, and the Banks agree to share with such
Participant, as provided in subsection 10.7. The Company also
agrees that each Participant shall be entitled to the benefits of
subsections 2.13, 2.14 and 2.15 with respect to its participation
in the Commitments and the Eurodollar Loans outstanding from time
to time; provided that no Participant shall be entitled to
receive any greater amount pursuant to such subsections than the
transferor Bank would have been entitled to receive in respect of
the amount of the participation transferred by such transferor
Bank to such Participant had no such transfer occurred. No
Participant shall be entitled to consent to any amendment,
supplement, modification or waiver of or to this Agreement or any
Note, unless the same is subject to clause (a) of the proviso to
subsection 10.1.
(c) Any Bank other than any Conduit Lender may, in the ordinary
course of its commercial banking business and in accordance with
applicable law, at any time assign to one or more banks or other
entities ("CAF Loan Assignees") any CAF Loan owing to such Bank
and any Individual CAF Loan Note held by such Bank evidencing
such CAF Loan, pursuant to a CAF Loan Assignment executed by the
assignor Bank and the CAF Loan Assignee. Upon such execution,
from and after the date of such CAF Loan Assignment, the CAF Loan
Assignee shall, to the extent of the assignment provided for in
such CAF Loan Assignment, be deemed to have the same rights and
benefits of payment and enforcement with respect to such CAF Loan
and Individual CAF Loan Note and the same rights of offset
pursuant to subsection 8.1 and under applicable law and
obligation to share pursuant to subsection 10.7 as it would have
had if it were a Bank hereunder; provided that unless such CAF
Loan Assignment shall otherwise specify and a copy of such CAF
Loan Assignment shall have been delivered to the Agent for its
acceptance and recording in the Register in accordance with
subsection 10.6(f), the assignor thereunder shall act as
collection agent for the CAF Loan Assignee thereunder, and the
Agent shall pay all amounts received from the Company which are
allocable to the assigned CAF Loan or Individual CAF Loan Note
directly to such assignor without any further liability to such
CAF Loan Assignee. A CAF Loan Assignee under a CAF Loan
Assignment shall not, by virtue of such CAF Loan Assignment,
become a party to this Agreement or have any rights to consent to
or refrain from consenting to any amendment, waiver or other
modification of any provision of this Agreement or any related
document; provided that if a copy of such CAF Loan Assignment
shall have been delivered to the Agent for its acceptance and
recording in the Register in accordance with subsection 10.6(f),
neither the principal amount of, the interest rate on, nor the
maturity date of any CAF Loan or Individual CAF Loan Note
assigned to the CAF Loan Assignee thereunder will be modified
without the written consent of such CAF Loan Assignee. If a CAF
Loan Assignee has caused a CAF Loan Assignment to be recorded in
the Register in accordance with subsection 10.6(f), such CAF Loan
Assignee may thereafter, in the ordinary course of its business
and in accordance with applicable law, assign such Individual CAF
Loan Note to any Bank, to any affiliate or subsidiary of such CAF
Loan Assignee or to any other financial institution that has
total assets in excess of $1,000,000,000 and that in the ordinary
course of its business extends credit of the type evidenced by
such Individual CAF Loan Note, and the foregoing provisions of
this subsection 10.6(c) shall apply, mutatis mutandis, to any
such assignment by a CAF Loan Assignee. Except in accordance
with the preceding sentence, CAF Loans and Individual CAF Loan
Notes may not be further assigned by a CAF Loan Assignee, subject
to any legal or regulatory requirement that the CAF Loan
Assignee's assets must remain under its control.
(d) Any Bank other than a Conduit Lender may, in the ordinary
course of its commercial banking business and in accordance with
applicable law, at any time sell to any Bank or any Lender
Affiliate thereof, and, with the consent of the Company (unless
an Event of Default is continuing) and the Agent (which in each
case shall not be unreasonably withheld) to one or more
additional banks or financial institutions ("Purchasing Banks")
all or any part of its rights and/or obligations under this
Agreement and the Notes pursuant to a Commitment Transfer
Supplement, executed by such Purchasing Bank, such transferor
Bank and the Agent (and, in the case of a Purchasing Bank that is
not then a Bank or a Lender Affiliate, and subject to the other
qualifiers above, by the Company); provided, however, that (i)
the Commitments purchased by such Purchasing Bank that is not
then a Bank or a Lender Affiliate shall be equal to or greater
than $5,000,000, (ii) the transferor Bank which has transferred
less than all of its Loans and Commitments to any such Purchasing
Bank shall retain a minimum Commitment, after giving effect to
such sale, equal to or greater than $10,000,000 and (iii) any
sale by a Bank of any portion of its Tranche B Commitment prior
to the Transition Date must be accompanied by a simultaneous sale
to such Purchasing Bank of such selling Bank's pro rata share of
its commitment pursuant to and in accordance with Section 4.5(a)
of the Liquidity Facility Agreement and such Purchasing Bank
shall be an Eligible Assignee (as defined in the Liquidity
Facility Agreement). For purposes of the proviso contained in
the previous sentence, the amounts described therein shall be
aggregated in respect of each Bank and its Lender Affiliates, if
any. Upon (i) such execution of such Commitment Transfer
Supplement, (ii) delivery of an executed copy thereof to the
Company and (iii) payment by such Purchasing Bank, such
Purchasing Bank shall for all purposes be a Bank party to this
Agreement and shall have all the rights and obligations of a Bank
under this Agreement, to the same extent as if it were an
original party hereto with the Commitment Percentage of the
Commitments set forth in such Commitment Transfer Supplement.
Such Commitment Transfer Supplement shall be deemed to amend this
Agreement to the extent, and only to the extent, necessary to
reflect the addition of such Purchasing Bank and the resulting
adjustment of Commitment Percentages arising from the purchase by
such Purchasing Bank of all or a portion of the rights and
obligations of such transferor Bank under this Agreement and the
Notes. Upon the consummation of any transfer to a Purchasing
Bank, pursuant to this subsection 10.6(d), the transferor Bank,
the Agent and the Company shall make appropriate arrangements so
that, if required, replacement Notes are issued to such
transferor Bank and new Notes or, as appropriate, replacement
Notes, are issued to such Purchasing Bank, in each case in
principal amounts reflecting their Commitment Percentages or, as
appropriate, their outstanding Loans as adjusted pursuant to such
Commitment Transfer Supplement. Notwithstanding the foregoing,
any Conduit Lender may assign at any time to its designating Bank
hereunder without the consent of the Company or the Agent any or
all of the Loans it may have funded hereunder and pursuant to its
designation agreement and without regard to the limitations set
forth in the first sentence of this subsection 10.6(d).
(e) The Agent shall maintain at its address referred to in
subsection 10.2 (a) copy of each CAF Loan Assignment and each
Commitment Transfer Supplement delivered to it and a register
(the "Register") for the recordation of (i) the names and
addresses of the Banks and the Commitment of, and principal
amount of the Loans owing to, each Bank from time to time, and
(ii) with respect to each CAF Loan Assignment delivered to the
Agent, the name and address of the CAF Loan Assignee and the
principal amount of each CAF Loan owing to such CAF Loan
Assignee. The entries in the Register shall be conclusive, in
the absence of manifest error, and the Company, the Agent and the
Banks may treat each Person whose name is recorded in the
Register as the owner of the Loan recorded therein for all
purposes of this Agreement. The Register shall be available for
inspection by the Company or any Bank or CAF Loan Assignee at any
reasonable time and from time to time upon reasonable prior
notice.
(f) Upon its receipt of a CAF Loan Assignment executed by an
assignor Bank and a CAF Loan Assignee, together with payment to
the Agent of a registration and processing fee of $2,500], the
Agent shall promptly accept such CAF Loan Assignment, record the
information contained therein in the Register and give notice of
such acceptance and recordation to the assignor Bank, the CAF
Loan Assignee and the Company. Upon its receipt of a Commitment
Transfer Supplement executed by a transferor Bank and a
Purchasing Bank (and, in the case of a Purchasing Bank that is
not then a Bank or an affiliate thereof, by the Company and the
Agent) together with payment to the Agent of a registration and
processing fee of $3,500, the Agent shall (i) promptly accept
such Commitment Transfer Supplement (ii) on the Transfer
Effective Date determined pursuant thereto record the information
contained therein in the Register and give notice of such
acceptance and recordation to the Banks and the Company.
(g) The Company authorizes each Bank to disclose to any
Participant, CAF Loan Assignee or Purchasing Bank (each, a
"Transferee") and any prospective Transferee any and all
financial information in such Bank's possession concerning the
Company which has been delivered to such Bank by the Company
pursuant to this Agreement or which has been delivered to such
Bank by the Company in connection with such Bank's credit
evaluation of the Company prior to entering into this Agreement.
(h) If, pursuant to this subsection 10.6, any interest in this
Agreement or any Note is transferred to a Non-U.S. Bank, the
transferor Bank shall cause such Transferee, concurrently with
the effectiveness of such transfer to comply with the provisions
of subsection 2.15.
(i) For the avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this Section 10.6 concerning
assignments relate only to absolute assignments and that such
provisions do not prohibit assignments creating security
interests, including any pledge or assignment by a Bank to any
Federal Reserve Bank in accordance with applicable law.
(j) Each of the Company, each Bank and the Agent hereby confirms
that it will not institute against a Conduit Lender or join any
other Person in instituting against a Conduit Lender any
bankruptcy, reorganization, arrangement, insolvency or
liquidation proceeding under any state bankruptcy or similar law,
for one year and one day after the payment in full of the latest
maturing commercial paper note issued by such Conduit Lender;
provided, however, that each Bank designating any Conduit Lender
hereby agrees to indemnify, save and hold harmless each other
party hereto for any loss, cost, damage or expense arising out of
its inability to institute such a proceeding against such Conduit
Lender during such period of forbearance.
(k) In the event that any Bank shall be a "Downgraded Bank" (as
defined in subsection 4.5(b) of the Liquidity Facility Agreement
or any successor provision thereof) and the Company has pursuant
to such subsection 4.5(b) replaced any such Bank with increased
commitments from other Banks or commitments from any Additional
Bank(s) (as defined in such subsection 4.5(b)), such Downgraded
Bank shall assign the portion of its Tranche B Commitments
hereunder to each such other Bank or Additional Bank
corresponding to the portion of the commitments transferred to
such other Bank or Additional Bank pursuant to subsection 4.5(b)
of the Liquidity Facility Agreement pursuant to a Commitment
Transfer Supplement, executed by such Downgraded Bank, the
transferee Bank(s), the Agent and the Company.
(l) In the event that any Bank shall be a "Defaulting Replaced
Bank" (as defined in subsection 4.5(b) of the Liquidity Facility
Agreement or any successor provision thereof) and the Company has
pursuant to such subsection 4.5(b) replaced any such Bank with
increased commitments from other Banks or any Additional Bank(s)
(as defined in such subsection 4.5(b)), such Defaulting Replaced
Bank shall assign the portion of its Tranche B Commitments
hereunder to each such other Bank or Additional Bank
corresponding to the portion of the commitments transferred to
such other Bank or Additional Bank pursuant to subsection 4.5(b)
of the Liquidity Facility Agreement pursuant to a Commitment
Transfer Supplement, executed by such Defaulting Replaced Bank,
the transferee Bank(s), the Agent and the Company.
10.7 Adjustments; Set-off
(a) Except to the extent that this Agreement provides
for payments to be allocated to a particular Bank or Banks, if
any Bank (a "Benefitted Bank") shall at any time receive any
payment of all or part of its Loans, or interest thereon, or
receive any collateral in respect thereof (whether voluntarily or
involuntarily, by offset, pursuant to events or proceedings of
the nature referred to in subsection 8.1(f), or otherwise) in a
greater proportion than any such payment to and collateral
received by any other Bank, if any, in respect of such other
Bank's Loans, or interest thereon, such Benefitted Bank shall
purchase for cash from the other Banks such portion of each such
other Bank's Loans, or shall provide such other Banks with the
benefits of any such collateral, or the proceeds thereof, as
shall be necessary to cause such Benefitted Bank to share the
excess payment or benefits of such collateral or proceeds ratably
with each of the Banks; provided, however, that if all or any
portion of such excess payment or benefits is thereafter
recovered from such Benefitted Bank, such purchase shall be
rescinded, and the purchase price and benefits returned, to the
extent of such recovery, but without interest. The Company
agrees that each Bank so purchasing a portion of another Bank's
Loan may exercise all rights of a payment (including, without
limitation, rights of offset) with respect to such portion as
fully as if such Bank were the direct holder of such portion.
(b) In addition to any rights and remedies of the Banks provided
by law, at any time when an Event of Default is in existence,
each Bank shall have the right, without prior notice to the
Company, any such notice being expressly waived by the Company to
the extent permitted by applicable law, upon any amount becoming
due and payable by the Company hereunder (whether at the stated
maturity, by acceleration or otherwise), to set off and
appropriate and apply against such amount any and all deposits
(general or special, time or demand, provisional or final), in
any currency, and any other credits, indebtedness or claims, in
any currency, in each case whether direct or indirect, absolute
or contingent, matured or unmatured, at any time held or owing by
such Bank or any branch or agency thereof to or for the credit or
the account of the Company. Each Bank agrees promptly to notify
the Company and the Agent after any such setoff and application
made by such Bank, provided that the failure to give such notice
shall not affect the validity of such setoff and application.
10.8 Counterparts
. This Agreement may be executed by one or more of the
parties to this Agreement on any number of separate counterparts
and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. A set of the copies of
this Agreement signed by all the parties shall be lodged with the
Company and the Agent.
10.9 GOVERNING LAW
. THIS AGREEMENT AND THE NOTES AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND THE NOTES
SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.
10.10 WAIVERS OF JURY TRIAL
. THE COMPANY, THE AGENT, THE CAF LOAN AGENT AND THE
BANKS EACH HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY
JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT, THE NOTES OR ANY OTHER LOAN DOCUMENT AND FOR ANY
COUNTERCLAIM THEREIN.
10.11 Submission To Jurisdiction; Waivers
. The Company hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement, or for recognition and
enforcement of any judgment in respect thereof, to the non-
exclusive general jurisdiction of the Courts of the State of New
York, the courts of the United States of America for the Southern
District of New York, and appellate courts from any thereof; and
(b) consents that any such action or proceeding may be brought
in such courts, and waives any objection that it may now or
hereafter have to the venue of any such action or proceeding in
any such court or that such action or proceeding was brought in
an inconvenient court and agrees not to plead or claim the same.
10.12 Confidentiality of Information
. Each Bank acknowledges that some of the information
furnished to such Bank pursuant to this Agreement may be received
by such Bank prior to the time such information shall have been
made public, and each Bank agrees that it will keep all
information so furnished confidential and shall make no use of
such information until it shall have become public, except (a) in
connection with matters involving operations under or enforcement
of this Agreement or the Notes, (b) in accordance with each
Bank's obligations under law or regulation or pursuant to
subpoenas or other process to make information available to
governmental or regulatory agencies and examiners or to others,
(c) to each Bank's Affiliates, employees, agents (including
accountants, legal counsel and other advisors) and Transferees
and prospective Transferees so long as such Persons agree to be
bound by this subsection 10.12 and (d) with the prior written
consent of the Company.
10.13 Existing Credit Agreement
. Each Bank which is a Bank party to the Existing
Credit Agreement and the Company acknowledge that the commitments
under the Existing Credit Agreement will terminate on the Closing
Date, and each such Bank hereby waives any requirement of the
Existing Credit Agreement that the Company give any notice of
such termination.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and
duly authorized officers as of the day and year first above
written.
HUMANA INC.
By: /s/ Xxxxx X. XxXxxxxx
Name: Xxxxx X. XxXxxxxx
Title: Vice President and Treasurer
THE CHASE MANHATTAN BANK, as Agent,
as CAF Loan Agent and as a Bank
By: /s/ Xxxx Xxx Xxx
Name: Xxxx Xxx Xxx
Title: Vice President
Bank of America, N.A.
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Principal
Bank of Louisville
By: /s/ S. Xxxxxx Xxxxxx, Xx.
Name: S. Xxxxxx Xxxxxx, Xx.
Title: Senior Vice President
Citibank, N.A.
(Name of Institution)
By: /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Managing Director
------------------------------
(Name of Institution)
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Authorized Signatory
National City Bank of Kentucky
(Name of Institution)
By: /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Senior Vice President
PNC Bank, National Association
As Co-Agent and Bank
By: /s/ Xxxxxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx
Title: Vice President
The Bank of New York
(Name of Institution)
By: /s/ Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
THE BANK OF NOVA SCOTIA
(Name of Institution)
By: /s/ Xxxxxxx X. X. Xxxxx
Name: Xxxxxxx X.X. Xxxxx
Title: Managing Director
U.S. Bank National Association
(Name of Institution)
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Sr. Vice President
Wachovia Bank, N.A.
(Name of Institution)
By: /s/ Xxxxx X. Love
Name: Xxxxx X. Love
Title: SVP
SCHEDULE I
Commitment Amounts and Percentages;
Lending Offices; Address for Notices
A. Commitment Amounts and Percentages
Name of Bank Commitment Commitment
Amount Percentage
THE CHASE MANHATTAN BANK $42,250,000 15.94%
BANK OF AMERICA, N.A. $32,250,000 12.17%
CITIBANK, N.A. $32,250,000 12.17%
WACHOVIA BANK, N.A. $32,250,000 12.17%
THE BANK OF NOVA SCOTIA $25,000,000 9.43%
XXXXXX BROTHERS HOLDINGS, INC. $25,000,000 9.43%
U.S. BANK NATIONAL ASSOCIATION $25,000,000 9.43%
PNC BANK, NATIONAL ASSOCIATION $17,500,000 6.60%
NATIONAL CITY BANK OF KENTUCKY $12,500,000 4.72%
THE BANK OF NEW YORK $12,500,000 4.72%
BANK OF LOUISVILLE $ 8,500,000 3.21%
-----------
TOTAL $265,000,000 100.00%
B. LENDING OFFICES; ADDRESSES FOR NOTICES
THE CHASE MANHATTAN BANK
000 Xxxx Xxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxx Xxx
Telephone: (000) 000-0000
PNC BANK
000 Xxxx Xxxxxxxxx Xx.
Xxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
THE BANK OF NOVA SCOTIA
000 Xxxxxxxxx Xx. X.X., Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxx
Telephone: (000) 000-0000
XXXXXX BROTHERS HOLDINGS, INC
To be determined
THE BANK OF NEW YORK
Xxx Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Telephone: (000) 000-0000
NATIONAL CITY BANK OF KENTUCKY
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxx
Telephone: (000) 000-0000
BANK OF AMERICA, N.A.
000 X. Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxx Xxxxx
Telephone: (000) 000-0000
WACHOVIA BANK, N.A.
000 Xxxxxxxxx Xxxxxx, X.X., 00xx Xxxxx
Xxxxxxx, XX 00000
Attention: M. Xxxxxx Xxxx, III
Telephone (000) 000-0000
CITIBANK, N.A.
000 Xxxx Xxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxx
Telephone: (000) 000-0000
U.S. BANK NATIONAL ASSOCIATION
000 X. Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Telephone: (000) 000-0000
SCHEDULE II
PRICING GRID
Public Debt Alternate Eurodollar Facility Facility
Ratings Base Rate Margin Fee- Fee -
S&P/Moody's Margin Tranche A Tranche B
Level 1 > 0 bps 85 bps 15 bps 20.0 bps
BBB+/Baa1
Level 2 > 0 bps 95 bps 17.5 bps 22.5 bps
BBB/Baa2
Level 3 > BBB- 5 bps 105 bps 20.0 bps 25.0 bps
/Baa3
Level 4 > 20 bps 120 bps 30.0 bps 35.0 bps
BB+/Ba1
Xxxxx 0 < 37.5 bps 137.5 bps 37.5 bps 50.0 bps
BB+/Ba1
Pricing will be determined based upon the lower of the ratings
from S&P or Moody's, but in the event the Company's ratings are
more than one Level apart, the pricing will be determined by
using the rating which is one Level above the lower rating;
provided, that (i) if on any day the ratings from S&P or Moody's
are not at the same Level, then the Level applicable to the
lower of such ratings shall be applicable for such day, (ii) if
on any day the rating of only one of S&P or Xxxxx'x is
available, then the Level of such rating shall be applicable for
such day and (iii) if on any day a rating is available from
neither of S&P or Moody's, then Xxxxx 0 xxxxx xx applicable for
such day. Any change in the applicable Level resulting from a
change in the rating of a S&P or Moody's shall become effective
on the date such change is publicly announced by S&P or Moody's,
as applicable.
