COMPOSITE CONFORMED COPY*
$2,800,000,000
CREDIT AGREEMENT
dated as of
January 30, 1997
as amended by
Amendment No.1, dated as of July 25, 1997
Amendment No.2, dated as of March 16, 1999
and Amendment No. 3, dated as of October 1, 1999
among
Xxxxx Healthcare Corporation
The Lenders, Managing Agents and Co-Agents Party Hereto
The Swingline Bank Party Hereto
The Bank of New York
The Bank of Nova Scotia
as Documentation Agents
Bank of America National Trust and Savings Association
as Syndication Agent
and
Xxxxxx Guaranty Trust Company of New York
as Administrative Agent
----------
Arranged by:
X.X. Xxxxxx Securities Inc.
as Arranger
BancAmerica Securities, Inc.
BNY Capital Markets, Inc.
The Bank of Nova Scotia
as Co-Arrangers
_______________________________________
* Composite Conformed Copy incorporates the indicated amendments. Signature
pages, Commitment Schedule and Exhibits have not been updated from 1/30/97.
TABLE OF CONTENTS(1)
PAGE
ARTICLE 1
DEFINITIONS
SECTION 1.01. DEFINITIONS.......................................................................1
SECTION 1.02. ACCOUNTING TERMS AND DETERMINATIONS..............................................21
ARTICLE 2
THE CREDITS
SECTION 2.01. SYNDICATED BORROWINGS............................................................21
SECTION 2.02. NOTICE OF SYNDICATED BORROWING...................................................22
SECTION 2.03. MONEY MARKET BORROWINGS..........................................................22
SECTION 2.04. NOTICE TO LENDERS; FUNDING OF LOANS..............................................27
SECTION 2.05. NOTES............................................................................28
SECTION 2.06. MATURITY OF LOANS................................................................28
SECTION 2.07. OPTIONAL PREPAYMENTS OF SYNDICATED LOANS.........................................28
SECTION 2.08. NOTICE OF SYNDICATED PREPAYMENT..................................................28
SECTION 2.09. INTEREST RATES...................................................................29
SECTION 2.10. METHOD OF ELECTING INTEREST RATES................................................31
SECTION 2.11. FEES.............................................................................32
SECTION 2.12. TERMINATION OR REDUCTION OF COMMITMENTS..........................................33
SECTION 2.13. GENERAL PROVISIONS AS TO PAYMENTS................................................33
SECTION 2.14. FUNDING LOSSES...................................................................34
SECTION 2.15. COMPUTATION OF INTEREST AND FEES.................................................34
SECTION 2.16. SWINGLINE LOANS..................................................................34
SECTION 2.17. LETTERS OF CREDIT................................................................36
ARTICLE 3
CONDITIONS
SECTION 3.01. CLOSING..........................................................................43
SECTION 3.02. TERMINATION OF EXISTING COMMITMENTS..............................................46
SECTION 3.03. BORROWINGS AND ISSUANCES OR EXTENSIONS OF LETTERS OF CREDIT......................46
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. CORPORATE EXISTENCE AND POWER....................................................47
SECTION 4.02. CORPORATE AND GOVERNMENTAL AUTHORIZATION.........................................48
___________________
(1) The Table of Contents is not a part of this Agreement.
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PAGE
SECTION 4.03. BINDING EFFECT...................................................................48
SECTION 4.04. FINANCIAL INFORMATION............................................................48
SECTION 4.05. LITIGATION.......................................................................49
SECTION 4.06. COMPLIANCE WITH ERISA............................................................49
SECTION 4.07. COMPLIANCE WITH LAWS.............................................................50
SECTION 4.08. ENVIRONMENTAL MATTERS............................................................50
SECTION 4.09. TAXES............................................................................50
SECTION 4.10. MATERIAL SUBSIDIARIES............................................................51
SECTION 4.11. CERTAIN LAWS NOT APPLICABLE......................................................51
SECTION 4.12. FULL DISCLOSURE..................................................................51
SECTION 4.13. CERTAIN DOCUMENTS................................................................51
SECTION 4.14. LEGALITY OF ACQUISITION..........................................................51
ARTICLE 5
COVENANTS
SECTION 5.01. INFORMATION......................................................................52
SECTION 5.02. MAINTENANCE OF PROPERTY; INSURANCE...............................................54
SECTION 5.03. CONDUCT OF BUSINESS, MAINTENANCE OF EXISTENCE....................................54
SECTION 5.04. COMPLIANCE WITH LAWS.............................................................55
SECTION 5.05. INSPECTION OF PROPERTY, BOOKS AND RECORDS........................................55
SECTION 5.06. CONSOLIDATIONS, MERGERS AND SALES OF ASSETS......................................55
SECTION 5.07. NEGATIVE PLEDGE..................................................................56
SECTION 5.08. DEBT OF SUBSIDIARIES.............................................................58
SECTION 5.09. DEBT RATIO.......................................................................59
SECTION 5.10. CONSOLIDATED NET WORTH...........................................................59
SECTION 5.11. FIXED CHARGE RATIO...............................................................59
SECTION 5.12. RESTRICTED PAYMENTS..............................................................60
SECTION 5.13. RESTRICTION ON INVESTMENTS.......................................................60
SECTION 5.14. RESTRICTIONS ON INCLUDED EQUITY AFFILIATES.......................................61
SECTION 5.15. RESTRICTION ON PREPAYING SUBORDINATED DEBT.......................................62
SECTION 5.16. TRANSACTIONS WITH AFFILIATES.....................................................63
SECTION 5.17. SENIOR STATUS....................................................................63
SECTION 5.18. PAYMENT OF DIVIDENDS BY MATERIAL SUBSIDIARIES....................................63
SECTION 5.19. RETIREMENT OF ORNDA DEBT.........................................................63
SECTION 5.20. USE OF PROCEEDS..................................................................64
ARTICLE 6
DEFAULTS
SECTION 6.01. EVENTS OF DEFAULT................................................................64
SECTION 6.02. NOTICE OF DEFAULT................................................................67
SECTION 6.03. CASH COVER.......................................................................67
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PAGE
ARTICLE 7
THE AGENTS
SECTION 7.01. APPOINTMENT AND AUTHORIZATION....................................................67
SECTION 7.02. AGENTS AND AFFILIATES............................................................67
SECTION 7.03. ACTION BY THE ADMINISTRATIVE AGENT...............................................68
SECTION 7.04. CONSULTATION WITH EXPERTS........................................................68
SECTION 7.05. LIABILITY OF THE AGENTS..........................................................68
SECTION 7.06. INDEMNIFICATION..................................................................69
SECTION 7.07. CREDIT DECISION..................................................................69
SECTION 7.08. SUCCESSOR ADMINISTRATIVE AGENT...................................................69
SECTION 7.09. FEES.............................................................................69
SECTION 7.10. OTHER AGENTS.....................................................................70
ARTICLE 8
CHANGE IN CIRCUMSTANCE
SECTION 8.01. BASIS FOR DETERMINING INTEREST RATE INADEQUATE OR UNFAIR.........................70
SECTION 8.02. ILLEGALITY.......................................................................71
SECTION 8.03. INCREASED COST AND REDUCED RETURN................................................71
SECTION 8.04. TAXES............................................................................73
SECTION 8.05. BASE RATE LOANS SUBSTITUTED FOR AFFECTED EURO-DOLLAR LOANS.......................75
ARTICLE 9
MISCELLANEOUS
SECTION 9.01. NOTICES..........................................................................75
SECTION 9.02. NO WAIVERS.......................................................................76
SECTION 9.03. EXPENSES; INDEMNIFICATION........................................................76
SECTION 9.04. SHARING OF SET-OFFS..............................................................77
SECTION 9.05. AMENDMENTS AND WAIVERS...........................................................77
SECTION 9.06. SUCCESSORS AND ASSIGNS...........................................................78
SECTION 9.07. NO RELIANCE ON MARGIN STOCK AS COLLATERAL........................................80
SECTION 9.08. CONFIDENTIALITY..................................................................80
SECTION 9.09. WAIVER OF JURY TRIAL.............................................................81
SECTION 9.10. GOVERNING LAW; SUBMISSION TO JURISDICTION........................................81
SECTION 9.11. COUNTERPARTS; INTEGRATION........................................................81
Commitment Schedule
Schedule 4.05 - Pending Litigation
Schedule 5.06 - Permitted Asset Sales
Exhibit A - Note
iii
Exhibit B - Money Market Request
Exhibit C - Money Market Invitation
Exhibit D - Money Market Quote
Exhibit E - Swingline Note
Exhibit F - Senior Officer's Closing Certificate
Exhibit G - Opinion of Xxxxxx, Xxxx & Xxxxxxxx LLP, Special Counsel
for the Borrower
Exhibit H - Opinion of Xxxxx Xxxxx, General Counsel for the Borrower
Exhibit I - Opinion of Special Counsel for the Administrative Agent
Exhibit J - Assignment and Assumption Agreement
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CREDIT AGREEMENT
AGREEMENT dated as of January 30, 1997, as amended by Amendment No. 1,
dated as of July 25, 1997, Amendment No. 2, dated as of March 16, 1999 and
Amendment No. 3, dated as of October 1, 1999 among XXXXX HEALTHCARE CORPORATION,
the LENDERS, MANAGING AGENTS, CO-AGENTS and SWINGLINE BANK party hereto, THE
BANK OF NEW YORK and THE BANK OF NOVA SCOTIA, as Documentation Agents, BANK OF
AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as Syndication Agent, and XXXXXX
GUARANTY TRUST COMPANY OF NEW YORK, as Administrative Agent.
WHEREAS, terms used in these recitals have the meanings assigned to
them in Section 1.01;
WHEREAS, the Borrower has agreed to acquire OrNda and its Subsidiaries
pursuant to the Merger Agreement;
WHEREAS, in connection with such Acquisition, the Borrower desires to
purchase, redeem or otherwise refinance some, but not all, of the outstanding
Debt of the Borrower, OrNda and their respective Subsidiaries;
WHEREAS, the Borrower desires to have available to it a credit facility
in the aggregate amount of $2,800,000,000 pursuant to which it may (i) borrow to
purchase, redeem or otherwise refinance such outstanding Debt, (ii) borrow for
the general corporate purposes (including working capital needs) of the Borrower
and its Subsidiaries after the Acquisition is consummated and (iii) obtain
Letters of Credit to meet the needs of the Borrower and its Subsidiaries after
the Acquisition is consummated; and
WHEREAS, this Agreement is intended by the Borrower to replace the
Borrower's Existing Credit Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.1. DEFINITIONS. The following terms, as used herein, have
the following meanings:
"Absolute Rate Auction" means a solicitation of Money Market Quotes
setting forth Money Market Absolute Rates pursuant to Section 2.03.
"Acquisition" means the acquisition of OrNda and its Subsidiaries by
the Borrower as described in the Merger Agreement.
"Adjusted EBITDA" means, for any period of four consecutive Fiscal
Quarters, Consolidated EBITDA for such period adjusted as follows:
(i) by deducting, to the extent included in such Consolidated
EBITDA, the Borrower's Pro Rata Share of each Equity Affiliate's net
income for such period; and
(ii) by adding back, with respect to each Equity Affiliate
that is an Included Equity Affiliate on the Date of Determination, an
amount equal to the lesser of:
(x) the Borrower's Pro Rata Share of the sum of (A)
such Included Equity Affiliate's net income for such period
plus (B) to the extent deducted in determining such net
income, its interest expense, income taxes, depreciation and
amortization, or
(y) the sum of (A) all dividends and other
distributions paid in cash by such Included Equity Affiliate
during such period to the Borrower and its Subsidiaries and
(B) the Borrower's Pro Rata Share of such Included Equity
Affiliate's interest expense for such period.
"Adjusted Interest Expense" means, for any period of four consecutive
Fiscal Quarters, the sum of (i) Consolidated Interest Expense for such period
and (ii) with respect to each Equity Affiliate that is an Included Equity
Affiliate at the end of such period, an amount equal to the Borrower's Pro Rata
Share of such Included Equity Affiliate's interest expense for such period.
"Adjusted London Interbank Offered Rate" has the meaning set forth in
Section 2.09(b).
"Adjusted Rental Expense" means, for any period of four consecutive
Fiscal Quarters, the sum of (i) Consolidated Rental Expense for such period and
(ii) with respect to each Equity Affiliate that is an Included Equity Affiliate
at the end of such period, an amount equal to the Borrower's Pro Rata Share of
such Included Equity Affiliate's rental expense for such period.
"Adjusted Total Debt" means at any time, without duplication, the sum
of (i) the consolidated Debt of the Borrower and its Subsidiaries, PLUS (ii) the
Borrower's Pro Rata Share of the Debt of each Included Equity Affiliate, MINUS
2
(iii) the lesser of (x) the outstanding principal amount of the Borrower's 6%
Exchangeable Subordinated Notes due 2005 or (y) the sum of (a) the aggregate
market value of the shares of common stock of Ventas, Inc. for which such
outstanding notes are exchangeable plus (b) the amount of proceeds from the sale
by the Borrower of shares of common stock of Vencor, Inc. that are, at such
time, held in escrow for the benefit of holders of such Notes, and minus (iv)
the Excess Receivables Adjustment.
"Administrative Agent" means Xxxxxx Guaranty Trust Company of New York,
in its capacity as Administrative Agent for the Lenders hereunder, and its
successors in such capacity.
"Administrative Questionnaire" means, with respect to each Lender, an
administrative questionnaire in the form prepared by the Administrative Agent
and submitted to the Administrative Agent (with a copy to the Borrower) duly
completed by such Lender.
"Affiliate" means, with respect to any Person, (i) any Person that
directly, or indirectly through one or more intermediaries, controls such Person
(a "Controlling Person") or (ii) any Person which is controlled by or is under
common control with a Controlling Person. As used herein, the term "control"
means possession, directly or indirectly, of the power to direct or cause the
direction of the management of a Person by voting securities, by contract or
otherwise.
"Agents" means the Administrative Agent, the Documentation Agents and
the Syndication Agent, and "Agent" means any one of them.
"Aggregate Investment in Equity Affiliates" has the meaning set forth
in Section 5.13(a).
"Aggregate LC Exposure" means at any time the sum, without duplication,
of (i) the aggregate amount that is (or may thereafter become) available for
drawing under all Letters of Credit outstanding at such time and (ii) the
aggregate unpaid amount of all LC Reimbursement Obligations outstanding at such
time.
"Applicable Lending Office" means, with respect to any Lender, (i) in
the case of its Base Rate Loans and its participations in Letters of Credit, its
Domestic Lending Office, (ii) in the case of its Euro-Dollar Loans, its
Euro-Dollar Lending Office and (iii) in the case of its Money Market Loans, its
Money Market Lending Office.
"Arranger" means X.X. Xxxxxx Securities Inc.
"Assignee" has the meaning set forth in Section 9.06(c).
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"Availability Period" means the period from and including the Closing
Date to but excluding the Termination Date.
"Base Rate" means, for any day, a rate per annum equal to the higher of
(i) the Prime Rate for such day and (ii) the sum of 1/2 of 1% plus the Federal
Funds Rate for such day.
"Base Rate Borrowing" means a borrowing of Base Rate Loans pursuant to
Section 2.01 or 2.16(h).
"Base Rate Loan" means a Syndicated Loan which bears interest at the
Base Rate (or any higher rate determined pursuant to Section 2.09(a)) pursuant
to the applicable Notice of Syndicated Borrowing or Notice of Interest Rate
Election or the provisions of Section 2.16(h) or Article 8.
"Borrower" means Xxxxx Healthcare Corporation, a Nevada corporation,
and its successors.
"Borrower's Existing Credit Agreement" means the $1,550,000,000 Credit
Agreement dated as of March 1, 1996 among the Borrower, the Lenders and Managing
Agents party thereto, Bank of America National Trust and Savings Association as
Documentation Agent, The Bank of New York as Syndication Agent and Xxxxxx
Guaranty Trust Company of New York as Administrative Agent, as in effect
immediately before the Closing Date.
"Borrower's Pro Rata Share" means:
(i) with respect to the Debt of any Included Equity Affiliate
at any date, a percentage of such Debt equal to the percentage of such
Equity Affiliate's net income (or net loss) to be included in
determining, in accordance with GAAP, the consolidated net income of
the Borrower and its Subsidiaries for periods after such date (assuming
no change in any relevant ownership interests); and
(ii) with respect to the net income, interest expense, rental
expense, income taxes, depreciation, amortization and other non-cash
charges (if similar to depreciation and amortization) of any Equity
Affiliate for any period of four consecutive Fiscal Quarters, a
percentage thereof equal to the percentage of such Equity Affiliate's
net income (or net loss) for such period included in determining, on a
Pro Forma Basis, the consolidated net income of the Borrower and its
Subsidiaries for such period.
"Borrowing" means a Syndicated Borrowing, a Money Market Borrowing or
a Swingline Borrowing.
4
"Closing Date" means the date on which all the conditions set forth in
Section 3.01 have been satisfied (or waived in accordance with Section 9.05).
"Co-Agents" means the Lenders designated as Co-Agents on the signature
pages hereof, in their respective capacities as Co-Agents in connection with the
credit facility provided hereunder.
"Co-Arrangers" means BancAmerica Securities, Inc., BNY Capital Markets,
Inc. and The Bank of Nova Scotia.
"Combined Companies" means the Borrower and its Subsidiaries and OrNda
and its Subsidiaries.
"Commitment" means (i) with respect to any Lender listed on the
Commitment Schedule, the amount set forth opposite its name on the Commitment
Schedule as its Commitment or (ii) with respect to any Assignee, the amount of
the transferor Lender's Commitment assigned to such Assignee pursuant to Section
9.06(c), in each case as such amount may be reduced from time to time pursuant
to Section 2.12 or changed as result of an assignment pursuant to Section
9.06(c). The term "Commitment" does not include the Swingline Commitment.
"Commitment Percentage" means, with respect to any Lender at any time,
the percentage which the amount of such Lender's Commitment at such time
represents of the aggregate amount of all the Lenders' Commitments at such time.
At any time after the Commitments shall have terminated, the term "Commitment
Percentage" shall refer to a Lender's Commitment Percentage immediately before
such termination, adjusted to reflect any subsequent assignments pursuant to
Section 9.06(c).
"Commitment Schedule" means the Commitment Schedule attached hereto.
"Consolidated EBITDA" means, for any period of four consecutive Fiscal
Quarters, the sum of (i) the consolidated net income of the Borrower and its
Subsidiaries for such period plus (ii) to the extent deducted in determining
such consolidated net income, the sum of (A) interest expense, (B) income taxes,
(C) depreciation and amortization expenses, (D) other non-cash charges (other
than those non-cash charges that reflect a past expenditure of cash within such
four-quarter period (such as prepaid expenses and other similar charges) or
future expenditure of cash) and (E) merger-related charges, all determined on a
Pro Forma Basis; PROVIDED that Consolidated EBITDA shall be calculated so as to
exclude the effect of (w) any gain or loss that is classified as extraordinary
in accordance with GAAP, (x) any gain or loss from any sale or other disposition
of any Healthcare Facility, any Healthcare Business or any Equity Interest in
any
5
Person and, without duplication, (y) (a) impairment and other unusual cash
charges reported by the Borrower for the fourth Fiscal Quarter of 1999 in the
aggregate amount of $65,000,000, (b) impairment and other unusual cash charges
reported by the Borrower after August 31, 1999 with respect to physician
practices in an aggregate amount (together with such charges recorded in any
prior Fiscal Quarter and excluded from the calculation of Consolidated EBITDA
pursuant to this clause (b)) not in excess of $200,000,000, and (c) other
impairment or unusual cash charges reported by the Borrower after August 31,
1999 in an aggregate amount (together with such charges recorded in any prior
Fiscal Quarter and excluded from the calculation of Consolidated EBITDA pursuant
to this clause (c)) not in excess of $100,000,000 (and not in excess of
$25,000,000 in any Fiscal Quarter beginning after August 31, 1999 plus the
portions of such amounts, if any, not utilized in prior Fiscal Quarters
beginning after August 31, 1999).
"Consolidated Interest Expense" means, for any period of four
consecutive Fiscal Quarters, the consolidated interest expense of the Borrower
and its Subsidiaries for such period, determined on a Pro Forma Basis.
"Consolidated Net Worth" means, at any time, the consolidated
stockholders' equity of the Borrower and its Subsidiaries at such time.
"Consolidated Rental Expense" means, for any period of four consecutive
Fiscal Quarters, the consolidated rental expense of the Borrower and its
Subsidiaries for such period, determined on a Pro Forma Basis.
"Continuing Director" means (i) any individual who is a director of the
Borrower on the date of this Agreement and (ii) any individual who becomes a
director of the Borrower after the date of this Agreement and is elected or
nominated for election as a director of the Borrower by a majority of the
individuals who were Continuing Directors immediately before such election or
nomination.
"Credit Exposure" means, with respect to any Lender at any time, (i)
the amount of its Commitment at such time or (ii) if its Commitment shall have
terminated, an amount equal to the sum of the aggregate outstanding principal
amount of its Loans plus its LC Exposure at such time plus any participation in
Swingline Loans held by it pursuant to Section 2.16(h).
"Date of Determination", when used with respect to determining any
amount for any period of four consecutive Fiscal Quarters, means (i) the last
day of such period, if such amount is being determined for purposes of Section
5.11 or (ii) the day as of which the debt ratio is being determined, if such
amount is being determined for purposes of Section 5.09.
6
"Debt" of any Person means at any date, without duplication, (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person to pay the deferred purchase price of property or
services, except trade accounts payable arising in the ordinary course of
business and deferred compensation payable to members of management of such
Person, (iv) all obligations of such Person as lessee which are capitalized in
accordance with GAAP and (v) all Guarantees by such Person of obligations of
other Persons of the types described in the foregoing clauses (i) through (iv),
inclusive (any such Guarantee to be included in any calculation of the amount of
such Person's Debt at an amount equal to the principal amount guaranteed
thereby). If such Person Guarantees Debt of another Person by causing a letter
of credit to be issued in support thereof, the "Debt" of such Person includes
(without duplication) such Person's obligation to reimburse the issuing bank for
drawings (including any future drawings) in respect of principal under such
letter of credit.
"Default" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"Domestic Business Day" means any day except a Saturday, Sunday or
other day on which commercial banks in New York City are authorized by law to
close.
"Domestic Lending Office" means, as to each Lender, its office located
at its address set forth in its Administrative Questionnaire (or identified in
its Administrative Questionnaire as its Domestic Lending Office) or such other
office as such Lender may hereafter designate as its Domestic Lending Office by
notice to the Borrower and the Administrative Agent.
"Environmental Laws" means any and all federal, state and local
statutes, laws, judicial decisions, regulations, ordinances, rules, judgments,
orders, decrees, plans, injunctions, permits, concessions, grants, franchises,
licenses, agreements and other governmental restrictions relating to the
environment, the effect of the environment on human health or to emissions,
discharges or releases of pollutants, contaminants, Hazardous Substances or
wastes into the environment including, without limitation, ambient air, surface
water, ground water or land, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of pollutants, contaminants, Hazardous Substances or wastes or the
clean-up or other remediation thereof.
"Equity Affiliate" means, at any date, a Person in which the Borrower
or a Subsidiary has an Equity Interest that would be accounted for on the equity
method in the Borrower's consolidated financial statements if such statements
were prepared as of such date. If such Person has any consolidated subsidiaries,
7
the term "Equity Affiliate" shall mean such Person and its consolidated
subsidiaries, and all amounts to be determined for purposes of this Agreement
with respect to such Equity Affiliate shall be determined with respect to such
Person and its consolidated subsidiaries on a consolidated basis. For any period
prior to the Closing Date, the term "Equity Affiliate" includes any affiliate of
OrNda that is an Equity Affiliate immediately after the Closing Date.
"Equity Interest" means (i) in the case of a corporation, any shares of
its capital stock, (ii) in the case of a partnership, any partnership interest
(whether general or limited), (iii) in the case of any other business entity,
any participation or other interest in the equity or profits thereof or (iv) any
warrant, option or other right to acquire any Equity Interest described in the
foregoing clauses (i), (ii) and (iii), other than a right to convert a debt
security into, or exchange a debt security for, any such Equity Interest.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, or any successor statute.
"ERISA Group" means the Borrower, its Subsidiaries and all members of a
controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with the Borrower or any
Subsidiary, are treated as a single employer under Section 414 of the Internal
Revenue Code.
"Euro-Dollar Borrowing" means a borrowing pursuant to Section 2.01 of
Euro-Dollar Loans having the same initial Interest Period.
"Euro-Dollar Business Day" means any Domestic Business Day on which
commercial banks are open for international business (including dealings in
dollar deposits) in London.
"Euro-Dollar Lending Office" means, as to each Lender, its office,
branch or Affiliate located at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its
Euro-Dollar Lending Office) or such other office, branch or Affiliate of such
Lender as it may hereafter designate as its Euro-Dollar Lending Office by notice
to the Borrower and the Administrative Agent.
"Euro-Dollar Loan" means a Syndicated Loan which bears interest at a
Euro-Dollar Rate pursuant to the applicable Notice of Syndicated Borrowing or
Notice of Interest Rate Election.
"Euro-Dollar Margin" means 68.75 basis points (0.6875%) per annum.
8
"Euro-Dollar Rate" means a rate of interest determined pursuant to
Section 2.09(b) or (c) on the basis of an Adjusted London Interbank Offered
Rate.
"Euro-Dollar Reference Banks" means the principal London offices of
Xxxxxx Guaranty Trust Company of New York, Bank of America National Trust and
Savings Association, The Bank of New York and The Bank of Nova Scotia.
"Euro-Dollar Reserve Percentage" has the meaning set forth in Section
2.09(b).
"Events of Default" has the meaning set forth in Section 6.01.
"Evergreen Letter of Credit" means a Letter of Credit that is
automatically extended unless the relevant LC Issuing Bank gives notice to the
beneficiary thereof stating that such Letter of Credit will not be extended.
"Excess Receivables Adjustment" means, at any time, an amount equal to
the product of (i) Excess Days Outstanding for the Fiscal Quarter ending at, or
most recently ended prior to, such time, MULTIPLIED BY (ii) Daily Net Revenue
for such Fiscal Quarter; provided that in no event shall the Excess Receivables
Adjustment at any time be less than zero or greater than (x) at any time prior
to March 1, 2001, $500,000,000 and (y) at any time on or after March 1, 2001,
$250,000,000. For purposes hereof, (i) "Excess Days Outstanding" means, for any
Fiscal Quarter, the difference between (x) the quotient obtained by dividing (a)
consolidated accounts receivable, less allowance for doubtful accounts, of the
Borrower and its Subsidiaries at the end of such Fiscal Quarter BY (b) Daily Net
Revenue for such Fiscal Quarter, MINUS (y) 85; and (ii) "Daily Net Revenue" for
any Fiscal Quarter means the quotient obtained by dividing (x) consolidated net
operating revenues of the Borrower and its Subsidiaries for such Fiscal Quarter
BY (y) the number of calendar days occurring in such Fiscal Quarter.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Facility Fee Rate" means 31.25 basis points (0.3125%) per annum.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upward, if necessary, to the nearest 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Domestic Business Day
next succeeding such day, PROVIDED that (i) if such day is not a Domestic
Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Domestic Business Day as so published on the
next succeeding Domestic Business Day, and (ii) if no such rate is so published
on such next succeeding Domestic Business Day, the Federal Funds Rate for such
day shall be
9
the average rate quoted to Xxxxxx Guaranty Trust Company of New York on such
day on such transactions as determined by the Administrative Agent.
"Financial Obligations" of any Person means at any date, without
duplication:
(i) Debt of such Person,
(ii) all obligations of such Person to reimburse any bank or
other Person in respect of amounts paid under a letter of credit or
similar instrument or to make any payment pursuant to a Hedging
Obligation,
(iii) all Debt that is secured by a Lien on any asset of such
Person but is not otherwise an obligation of such Person, PROVIDED that
the amount of any Financial Obligation described in this clause (iii)
shall be deemed to be equal to the lesser of the amount of the relevant
Debt or the book value of the asset or assets of such Person securing
such Debt, and
(iv) all Guarantees by such Person of Financial Obligations of
other Persons of the types described in clauses (i) and (ii) of this
definition.
"Financing Documents" means this Agreement (including the Schedules and
Exhibits hereto), the Notes and the Swingline Note, and "Financing Document"
means any one of them.
"Fiscal Quarter" means a fiscal quarter of the Borrower.
"Fiscal Year" means a fiscal year of the Borrower.
"GAAP" means at any time generally accepted accounting principles as
then in effect in the United States, applied on a basis consistent (except for
changes with which the Borrower's independent public accountants have concurred)
with the most recent audited consolidated financial statements of the Borrower
and its Subsidiaries theretofore delivered to the Lenders.
"Group of Loans" means at any time a group of Syndicated Loans
consisting of (i) all Syndicated Loans which are Base Rate Loans at such time or
(ii) all Syndicated Loans which are Euro-Dollar Loans having the same Interest
Period at such time; PROVIDED that, if a Loan of any particular Lender is
converted to or made as a Base Rate Loan pursuant to Section 8.02 or 8.05, such
Loan shall be included in the same Group or Groups of Loans from time to time as
it would have been in if it had not been so converted or made.
10
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt or other
payment obligation of any other Person, including without limiting the
generality of the foregoing, any obligation, direct or indirect, contingent or
otherwise, of such Person (i) to purchase or pay (or advance or supply funds for
the purchase or payment of) such Debt or other payment obligation (whether
arising by virtue of partnership arrangements, by agreement to keep-well, to
purchase assets, goods, securities or services, to take-or-pay, or to maintain
financial statement conditions or otherwise) or (ii) entered into for the
purpose of assuring in any other manner the obligee of such Debt or other
payment obligation of the payment thereof or to protect such obligee against
loss in respect thereof (in whole or in part), PROVIDED that the term Guarantee
shall not include endorsements for collection or deposit in the ordinary course
of business. The term "Guarantee" used as a verb has a corresponding meaning.
"Hazardous Substances" means any toxic, radioactive, caustic or
otherwise hazardous substance, including petroleum, its derivatives, by-products
and other hydrocarbons, or any substance having any constituent elements
displaying any of the foregoing characteristics.
"Healthcare Business" means any going concern healthcare business or
any other going concern business that is related or ancillary to one or more
Healthcare Facilities or healthcare businesses.
"Healthcare Facility" means a hospital, outpatient clinic, long-term
care facility, medical office building or other comparable facility that is used
or useful in providing healthcare services.
"Hedging Obligation" means, with respect to any Person, any obligation
of such Person under (i) any interest rate swap agreement, interest rate cap
agreement or interest rate collar agreement, (ii) any foreign exchange contract
or currency swap agreement or (iii) any other agreement or arrangement of a type
designed to protect a Person against fluctuations in interest rates or currency
exchange rates.
"Included Equity Affiliate" means, at any time, an Equity Affiliate
that the Borrower has theretofore designated, by written notice to the
Administrative Agent and the Lenders, as an Included Equity Affiliate for
purposes of this Agreement; PROVIDED that at such time the Borrower or a
Subsidiary has the right to receive distributions of substantially all of the
Borrower's Pro Rata Share of such Equity Affiliate's net income for future
periods free of any restriction except a restriction that the Borrower or such
Subsidiary may agree to after such time. The Borrower may revoke any such
designation by written notice to the Administrative Agent and the Lenders at any
time.
"Indemnitee" has the meaning set forth in Section 9.03(b).
11
"Interest Period" means: (1) with respect to each Euro-Dollar Loan, the
period commencing on the date of borrowing specified in the applicable Notice of
Syndicated Borrowing or on the date specified in an applicable Notice of
Interest Rate Election and ending one, two, three or six months thereafter, as
the Borrower may elect in the applicable notice; PROVIDED that:
(a) any Interest Period which would otherwise end on a day
which is not a Euro-Dollar Business Day shall be extended to the next
succeeding Euro-Dollar Business Day unless such Euro-Dollar Business
Day falls in another calendar month, in which case such Interest Period
shall end on the next preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar
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, subject to clause (c) below, end on the last
Euro-Dollar Business Day of a calendar month; and
(c) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date;
(2) with respect to each Money Market LIBOR Borrowing, the period
commencing on the date of such Borrowing and ending such whole number of months
thereafter as the Borrower may elect in accordance with Section 2.03; PROVIDED
that:
(a) any Interest Period which would otherwise end on a day
which is not a Euro-Dollar Business Day shall be extended to the next
succeeding Euro-Dollar Business Day unless such Euro-Dollar Business
Day falls in another calendar month, in which case such Interest Period
shall end on the next preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar
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, subject to clause (c) below, end on the last
Euro-Dollar Business Day of a calendar month; and
(c) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date; and
(3) with respect to each Money Market Absolute Rate Borrowing, the
period commencing on the date of such Borrowing and ending such number of
12
days thereafter (but not less than 7 days) as the Borrower may elect in
accordance with Section 2.03; PROVIDED that:
(a) any Interest Period which would otherwise end on a day
which is not a Euro-Dollar Business Day shall be extended to the next
succeeding Euro-Dollar Business Day; and
(b) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended, or any successor statute.
"Investment" means, with respect to any Person, any investment by such
Person in any other Person (including an Affiliate) in the form of loans,
capital contributions (excluding commission, travel and similar advances to
officers and employees made in the ordinary course of business), purchases or
other acquisitions for consideration of Debt, Equity Interests or other
securities and all other items that are or would be classified as investments on
a balance sheet prepared in accordance with GAAP.
"Investment Grade Rating" means a rating of senior long-term unsecured
debt securities of the Borrower without any third party credit support as (i)
BBB- or higher by S&P and (ii) Baa3 or higher by Moody's.
"LC Exposure" means, with respect to any Lender at any time, an amount
equal to its Commitment Percentage of the Aggregate LC Exposure at such time.
"LC Fee Rate" means 68.75 basis points (0.6875%) per annum.
"LC Indemnitees" has the meaning set forth in Section 2.17(m).
"LC Issuing Bank" has the meaning set forth in Section 2.17(a).
"LC Office" means, with respect to any LC Issuing Bank, the office at
which it books any Letter of Credit issued by it.
"LC Payment Date" has the meaning set forth in Section 2.17(i).
"LC Reimbursement Due Date" has the meaning set forth in Section
2.17(j).
"LC Reimbursement Obligations" means, at any time, all obligations of
the Borrower to reimburse the LC Issuing Banks for amounts paid by the LC
Issuing Banks in respect of drawings under Letters of Credit, including any
13
portion of any such obligation to which a Lender has become subrogated pursuant
to Section 2.17(k).
"Lender" means each lender listed on the Commitment Schedule, each
Assignee which becomes a Lender pursuant to Section 9.06(c), and their
respective successors. The term "Lender" does not include the Swingline Bank in
its capacity as such.
"Lending Parties" means the Lenders, the LC Issuing Banks, the Managing
Agents, the Co-Agents, the Swingline Bank and the Agents.
"Letter of Credit" means a letter credit issued hereunder by an LC
Issuing Bank.
"LIBOR Auction" means a solicitation of Money Market Quotes setting
forth Money Market Margins based on the London Interbank Offered Rate pursuant
to Section 2.03.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind, or any other type of
preferential arrangement that has substantially the same practical effect as a
security interest, in respect of such asset. For purposes of this Agreement, the
Borrower or any Subsidiary shall be deemed to own subject to a Lien any asset
which it has acquired or holds subject to the interest of a vendor or lessor
under any conditional sale agreement, capital lease or other title retention
agreement relating to such asset.
"Loan" means a Syndicated Loan or a Money Market Loan and "Loans"
means both of the foregoing. The term "Loan" does not include a Swingline
Loan.
"London Interbank Offered Rate" has the meaning set forth in Section
2.09(b).
"Managing Agents" means the Lenders designated as Managing Agents on
the signature pages hereof, in their respective capacities as Managing Agents in
connection with the credit facility provided hereunder.
"Material Adverse Effect" means a material adverse effect on the
business, operations, properties, financial condition or prospects of the
Combined Companies, considered as a whole.
"Material Financial Obligations" means non-contingent Financial
Obligations (other than the Notes, the Swingline Note and the LC Reimbursement
Obligations) of the Borrower and/or one or more Subsidiaries, arising in one or
14
more related transactions, in an aggregate principal or face amount exceeding
$35,000,000; PROVIDED that, for purposes of this definition and clause (g) of
Section 6.01, (i) contingent obligations of the Borrower or any Subsidiary to
reimburse a bank or other Person for amounts not yet drawn under a letter of
credit or similar instrument shall be deemed to be non-contingent (and to have
been accelerated) if they are required to be prepaid or cash collateralized as a
result of a default under the relevant reimbursement agreement and (ii)
contingent obligations of the Borrower or any Subsidiary under any Hedging
Obligation shall be deemed to be non-contingent (and to have been accelerated)
if such Hedging Obligation is terminated by reason of a default by the Borrower
or any Subsidiary.
"Material Plan" means at any time a Plan or Plans having aggregate
Unfunded Liabilities in excess of $35,000,000.
"Material Subsidiary" means any Subsidiary of the Borrower, except (i)
a Subsidiary that is not actively engaged in business and has assets of less
than $15,000,000 and liabilities of less than $15,000,000 or (ii) a Subsidiary
that is actively engaged in business and has assets of less than $10,000,000 and
liabilities of less than $10,000,000.
"Merger Agreement" means the Agreement and Plan of Merger dated as of
October 16, 1996 among the Borrower, OrNda and OHC Acquisition Co., a
wholly-owned subsidiary of the Borrower, as amended as of November 22, 1996.
"Metrocrest Reimbursement Agreement" means the Letter of Credit and
Reimbursement Agreement dated as of November 1, 1994 among the Borrower, the
banks party thereto, and The Bank of New York, as Issuing Bank and Agent
thereunder, as amended from time to time.
"Money Market Absolute Rate" has the meaning set forth in Section
2.03(d).
"Money Market Absolute Rate Loan" means a loan made or to be made by a
Lender pursuant to an Absolute Rate Auction.
"Money Market Borrowing" means a borrowing of Money Market Loans
pursuant to a LIBOR Auction or an Absolute Rate Auction.
"Money Market Lending Office" means, as to each Lender, its Domestic
Lending Office or such other office, branch or Affiliate of such Lender as it
may hereafter designate as its Money Market Lending Office by notice to the
Borrower and the Administrative Agent; PROVIDED that any Lender may from time to
time by notice to the Borrower and the Administrative Agent designate separate
Money Market Lending Offices for its Money Market LIBOR Loans, on the one hand,
and its Money Market Absolute Rate Loans, on the other hand, in which case all
15
references herein to the Money Market Lending Office of such Lender shall be
deemed to refer to either or both of such offices, as the context may require.
"Money Market LIBOR Loan" means a loan made or to be made by a Lender
pursuant to a LIBOR Auction (including such a loan bearing interest at the Base
Rate pursuant to Section 8.01(a)).
"Money Market Loan" means a Money Market LIBOR Loan or a Money Market
Absolute Rate Loan.
"Money Market Margin" has the meaning set forth in Section 2.03(d).
"Money Market Quote" means an offer by a Lender to make a Money Market
Loan in accordance with Section 2.03.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" means at any time an employee pension benefit plan
within the meaning of Section 4001(a)(3) of ERISA to which any member of the
ERISA Group is then making or accruing an obligation to make contributions or
has within the preceding five plan years made contributions, including for these
purposes any Person which ceased to be a member of the ERISA Group during such
five year period.
"New Public Debt" means $1,300,000,000 of senior notes and $700,000,000
of senior subordinated notes of the Borrower to be issued and sold in an
underwritten public offering as described in the New Public Debt Prospectus.
"New Public Debt Prospectus" means the prospectus covering the offering
and sale of the New Public Debt, as filed with the SEC pursuant to SEC Rule
424(b) on January 27, 1997.
"Non-Recourse Purchase Money Debt" of any Person means Debt incurred to
finance additions to its property, plant and equipment (or to refinance Debt
incurred for such purpose); PROVIDED that the lender or other obligee of such
Debt has no recourse (except for breach of representations, warranties and/or
covenants customary in asset-based financing) to assets of such Person, the
Borrower or any Subsidiary other than the assets financed or refinanced by such
Debt and cash flows attributable to such assets.
"Notes" means promissory notes of the Borrower, substantially in the
form of Exhibit A hereto, issued hereunder to evidence the obligation of the
Borrower to repay the Loans (other than the Swingline Loans), and "Note" means
any one of such promissory notes.
16
"Notice of Borrowing" means a Notice of Syndicated Borrowing (as
defined in Section 2.02), a Notice of Money Market Borrowing (as defined in
Section 2.03(f)) or a Notice of Swingline Borrowing (as defined in Section
2.16(b)).
"Notice of Interest Rate Election" has the meaning set forth in Section
2.10.
"OrNda" means OrNda HealthCorp, a Delaware corporation.
"OrNda's Existing Credit Agreement" means the Amended and Restated
Credit, Security, Guaranty and Pledge Agreement dated as of October 27, 1995
among OrNda, OrNda Hospital Corporation (formerly known as Summit Hospital
Corporation), AHM Acquisition Co., Inc., the Guarantors named therein, the
Lenders named therein and the Agents named therein, as amended from time to
time.
"OrNda Tender Offers" means tender offers and consent solicitations to
purchase for cash any and all of OrNda's 12.25% Senior Subordinated Notes due
2002 and 11.375% Senior Subordinated Notes due 2004 as described in the New
Public Debt Prospectus under the heading "Related Transactions -- The
Refinancing".
"Outstanding Committed Amount" means, with respect to any Lender at any
time, the sum of (i) the outstanding principal amount of each of its Syndicated
Loans, (ii) each outstanding participation in Swingline Loans (if any) held by
it pursuant to Section 2.16(h) and (iii) its LC Exposure, all determined at such
time after giving effect to any prior assignments by or to such Lender pursuant
to Section 9.06(c).
"Parent" means, with respect to any Lender, any Person controlling such
Lender.
"Participant" has the meaning set forth in Section 9.06(b).
"Person" means an individual, a corporation, a partnership, an
association, a trust or any other entity or organization, including a government
or political subdivision or an agency or instrumentality thereof.
"Plan" means at any time an employee pension benefit plan (other than a
Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Internal Revenue Code and
either (i) is maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (ii) has at any time within
the preceding five years been maintained, or contributed to, by any Person which
was
17
at such time a member of the ERISA Group for employees of any Person which
was at such time a member of the ERISA Group.
"Prime Rate" means the rate of interest publicly announced by Xxxxxx
Guaranty Trust Company of New York in New York City from time to time as its
Prime Rate.
"Pro Forma Basis", when used with respect to determining any amount for
any period of four consecutive Fiscal Quarters, means that if, at any time after
such period began and on or before the Date of Determination, the Borrower or
any of its Subsidiaries acquired or disposed of (i) an Equity Interest in a
Person that is (or by reason of such acquisition becomes) a Subsidiary or an
Equity Affiliate or (ii) a Healthcare Facility or Healthcare Business, such
amount shall be determined (to the extent practicable) as if such Equity
Interest, Healthcare Facility or Healthcare Business had been acquired or
disposed of at the beginning of such period (and as if the consideration
therefor had been given or received and any related incurrence or repayment of
Debt had occurred at such time); PROVIDED that, in the case of the Borrower's
acquisition of OrNda, such amount shall be determined on the basis of the same
assumptions, and after giving effect to the same transactions and events as of
the same dates, as were used in preparing the pro forma financial information
included in the New Public Debt Prospectus under the heading "Pro Forma
Financial Information", except that the retirement of the debt subject to the
OrNda Tender Offers shall be given such effect only if (and to the extent that)
such debt has been acquired by the Borrower or one of its Subsidiaries, or
otherwise retired, on or before the Date of Determination.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Required Lenders" means at any time Lenders having more than 50% of
the aggregate amount of the Credit Exposures at such time.
"Restricted Asset Transfer" means any sale or other transfer by the
Borrower or any Subsidiary (or by OrNda or any of its Subsidiaries after
November 30, 1996) of any Healthcare Facility, any Healthcare Business or any
Equity Interest in any Person (including, without limitation, any such transfer
accomplished by means of a merger or consolidation), except:
(i) a sale or other transfer to the Borrower or a Subsidiary;
(ii) a transfer accomplished by means of a merger or
consolidation of the Borrower permitted by Section 5.06(a);
(iii) a sale or other transfer of assets that were held for sale
as of November 30, 1996;
18
(iv) any issuance or sale by the Borrower of Equity Interests
in the Borrower;
(v) any sale or other transfer of Equity Interests in Vencor,
Inc., pursuant to the provisions of the Borrower's 6% Exchangeable
Subordinated Notes due 2005 or otherwise;
(vi) a sale or other transfer of Equity Interests in any
Person that is neither a Subsidiary nor an Equity Affiliate;
(vii) any sale or other transfer of assets to an Equity
Affiliate; and
(viii) any sale of assets identified in Schedule 5.06 hereto,
PROVIDED that such sale occurs not later than March 31, 2000.
"S&P" means Standard & Poor's Ratings Services.
"SEC" means the United States Securities and Exchange Commission.
"Senior Officer of the Borrower" means an Executive Vice President, a
Senior Vice President or the Treasurer of the Borrower.
"Subsidiary" means, as to any Person at any date, any corporation or
other entity the accounts of which would be consolidated with those of such
Person in its consolidated financial statements if such statements were prepared
as of such date in accordance with GAAP. Unless otherwise specified,
"Subsidiary" means a Subsidiary of the Borrower.
"Swingline Availability Period" means the period from and including the
Closing Date to but excluding the Swingline Maturity Date.
"Swingline Bank" means Xxxxxx Guaranty Trust Company of New York, in
its capacity as the Swingline Bank under the swingline facility described in
Section 2.16, and its successors in such capacity.
"Swingline Borrowing" means a borrowing of a Swingline Loan pursuant to
Section 2.16(a).
"Swingline Commitment" means the obligation of the Swingline Bank to
make Swingline Loans to the Borrower in aggregate principal amount at any one
time outstanding not to exceed $10,000,000.
"Swingline Loan" means a loan made by the Swingline Bank pursuant to
Section 2.16(a).
19
"Swingline Maturity Date" means the day that is 30 days before the
Termination Date.
"Swingline Note" has the meaning set forth in Section 2.16(d).
"Syndicated Borrowing" means a Base Rate Borrowing pursuant to Section
2.01 or Section 2.16(h) or a Euro-Dollar Borrowing pursuant to Section 2.01.
"Syndicated Loan" means a loan made pursuant to Section 2.01 or Section
2.16(h); PROVIDED that, if any such loan or loans (or portions thereof) are
combined or subdivided pursuant to a Notice of Interest Rate Election, the term
"Syndicated Loan" shall refer to the combined principal amount resulting from
such combination or to each of the separate principal amounts resulting from
such subdivision, as the case may be.
"Termination Date" means January 31, 2002 or, if such day is not a
Euro-Dollar Business Day, the next preceding Euro-Dollar Business Day.
"Unfunded Liabilities" means, with respect to any Plan at any time, the
amount (if any) by which (i) the value of all benefit liabilities under such
Plan, determined on a plan termination basis using the assumptions prescribed by
the PBGC for purposes of Section 4044 of ERISA, exceeds (ii) the fair market
value of all Plan assets allocable to such liabilities under Title IV of ERISA
(excluding any accrued but unpaid contributions), all determined as of the then
most recent valuation date for such Plan, but only to the extent that such
excess represents a potential liability of a member of the ERISA Group to the
PBGC or any other Person under Title IV of ERISA.
"United States" means the United States of America, including the
States and the District of Columbia, but excluding its territories and
possessions.
SECTION 1.02. ACCOUNTING TERMS AND DETERMINATIONS. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared in accordance with GAAP as
in effect from time to time; PROVIDED that, if the Borrower notifies the
Administrative Agent that the Borrower wishes to amend any provision hereof to
eliminate the effect of any change in GAAP on the operation of such provision
(or if the Administrative Agent notifies the Borrower that the Required Lenders
wish to amend any provision hereof for such purpose), then such provision shall
be applied on the basis of GAAP as in effect immediately before the relevant
change in GAAP became effective, until either such notice is withdrawn or such
provision is amended in a manner satisfactory to the Borrower and the Required
Lenders.
ARTICLE 2
THE CREDITS
SECTION 2.01. SYNDICATED BORROWINGS. Each Lender severally agrees, on
the terms and conditions set forth in this Agreement, to make loans to the
Borrower pursuant to this Section from time to time during the Availability
Period; PROVIDED that, immediately after each such loan is made, such Lender's
Outstanding Committed Amount shall not exceed its Commitment. Each borrowing
under this Section shall be a Syndicated Borrowing made from the several Lenders
ratably in proportion to their respective Commitments. Each such Syndicated
Borrowing shall be in an aggregate amount of $10,000,000 or any larger multiple
of $1,000,000; PROVIDED that (i) any such Syndicated Borrowing may be in the
aggregate amount of the unused Commitments and (ii) if such Syndicated Borrowing
is made on the Swingline Maturity Date, such Syndicated Borrowing may be in the
aggregate amount of the Swingline Loans outstanding on such date. Within the
foregoing limits, the Borrower may borrow under this Section, repay, or to the
extent permitted by Section 2.07, prepay Syndicated Loans and reborrow at any
time during the Availability Period under this Section.
SECTION 2.02. NOTICE OF SYNDICATED BORROWING. The Borrower shall give
the Administrative Agent notice (a "Notice of Syndicated Borrowing") not later
than (x) 11:00 A.M. (New York City time) on the date of each Base Rate Borrowing
and (y) 1:00 P.M. (New York City time) on the third Euro-Dollar Business Day
before each Euro-Dollar Borrowing, specifying:
(i) the date of such Borrowing, which shall be a Domestic
Business Day in the case of a Base Rate Borrowing or a Euro-Dollar
Business Day in the case of a Euro-Dollar Borrowing,
(ii) the aggregate amount of such Borrowing,
(iii) whether such Borrowing is to be a Base Rate Borrowing
or a Euro-Dollar Borrowing, and
(iv) in the case of a Euro-Dollar Borrowing, the duration
of the initial Interest Period applicable thereto.
Each Interest Period specified in a Notice of Syndicated Borrowing shall comply
with the provisions of the definition of Interest Period.
SECTION 2.03. MONEY MARKET BORROWINGS.
(a) THE MONEY MARKET OPTION. At any time during the Availability
Period, the Borrower may, as set forth in this Section, request the Lenders to
make offers to make Money Market Loans to the Borrower; PROVIDED that,
immediately
21
after any such Money Market Loans are made and any Loans to be repaid
substantially concurrently therewith are repaid:
(i) if the Borrower has an Investment Grade Rating, the
aggregate outstanding principal amount of the Money Market Loans shall
be limited only by Section 3.03(c);
(ii) if the Borrower does not have an Investment Grade Rating,
but its senior long-term unsecured debt securities without any
third-party credit support are rated BB+ or higher by S&P and Ba1 or
higher by Xxxxx'x, the aggregate outstanding principal amount of the
Money Market Loans shall not exceed the lesser of (x) the amount
permitted by Section 3.03(c) or (y) $500,000,000;
(iii) if the Borrower's senior long-term unsecured debt
securities without any third-party credit support are not rated BB+ or
higher by S&P and Ba1 or higher by Xxxxx'x, but are rated BB or higher
by S&P and Ba2 or higher by Xxxxx'x, the aggregate outstanding
principal amount of the Money Market Loans shall not exceed the lesser
of (x) the amount permitted by Section 3.03(c) or (y) $250,000,000; and
(iv) if the Borrower's senior long-term unsecured debt
securities without any third-party credit support are not rated BB or
higher by S&P and Ba2 or higher by Xxxxx'x, the Borrower may not
request or accept any offers to make Money Market Loans.
The Lenders may, but shall have no obligation to, make such offers and the
Borrower may, but shall have no obligation to, accept any such offers in the
manner set forth in this Section.
(b) MONEY MARKET QUOTE REQUEST. When the Borrower wishes to request
offers to make Money Market Loans under this Section, it shall transmit to the
Administrative Agent by telex or facsimile transmission a Money Market Quote
Request substantially in the form of Exhibit B hereto so as to be received no
later than 1:00 P.M. (New York City time) on (x) the fifth Euro-Dollar Business
Day prior to the date of Borrowing proposed therein, in the case of a LIBOR
Auction or (y) the Domestic Business Day next preceding the date of Borrowing
proposed therein, in the case of an Absolute Rate Auction (or, in either case,
such other time or date as the Borrower and the Administrative Agent shall have
mutually agreed and shall have notified to the Lenders not later than the date
of the Money Market Quote Request for the first LIBOR Auction or Absolute Rate
Auction for which such change is to be effective) specifying:
(i) the proposed date of Borrowing, which shall be a
Euro-Dollar Business Day in the case of a LIBOR Auction or a Domestic
Business Day in the case of an Absolute Rate Auction,
22
(ii) the aggregate amount of such Borrowing, which shall be
$10,000,000 or a larger multiple of $1,000,000;
(iii) the duration of the Interest Period applicable thereto,
subject to the provisions of the definition of Interest Period, and
(iv) whether the Money Market Quotes requested are to set
forth a Money Market Margin or a Money Market Absolute Rate.
The Borrower may request offers to make Money Market Loans for more than one
Interest Period in a single Money Market Quote Request. No Money Market Quote
Request shall be given within five Euro-Dollar Business Days (or such other
number of days as the Borrower and the Administrative Agent may agree) of any
other Money Market Quote Request.
(c) INVITATION FOR MONEY MARKET QUOTES. Promptly upon receipt of a
Money Market Quote Request, the Administrative Agent shall send to the Lenders
by telex or facsimile transmission an Invitation for Money Market Quotes
substantially in the form of Exhibit C hereto, which shall constitute an
invitation by the Borrower to each Lender to submit Money Market Quotes offering
to make the Money Market Loans to which such Money Market Quote Request relates
in accordance with this Section.
(d) SUBMISSION AND CONTENTS OF MONEY MARKET QUOTES. (i) Each Lender may
submit a Money Market Quote containing an offer or offers to make Money Market
Loans in response to any Invitation for Money Market Quotes. Each Money Market
Quote must comply with the requirements of this subsection (d) and must be
submitted to the Administrative Agent by telex or facsimile transmission at its
offices specified in or pursuant to Section 9.01 not later than (x) 2:00 P.M.
(New York City time) on the fourth Euro-Dollar Business Day prior to the
proposed date of Borrowing, in the case of a LIBOR Auction or (y) 10:00 A.M.
(New York City time) on the proposed date of Borrowing, in the case of an
Absolute Rate Auction (or, in either case, such other time or date as the
Borrower and the Administrative Agent shall have mutually agreed and shall have
notified to the Lenders not later than the date of the Money Market Quote
Request for the first LIBOR Auction or Absolute Rate Auction for which such
change is to be effective); PROVIDED that Money Market Quotes submitted by the
Administrative Agent (or any affiliate of the Administrative Agent) in the
capacity of a Lender may be submitted, and may only be submitted, if the
Administrative Agent or such affiliate notifies the Borrower of the terms of the
offer or offers contained therein not later than (x) one hour prior to the
deadline for the other Lenders, in the case of a LIBOR Auction or (y) 15 minutes
prior to the deadline for the other Lenders, in the case of an Absolute Rate
Auction. Subject to Articles 3 and 6, any
23
Money Market Quote so made shall be irrevocable except with the written
consent of the Administrative Agent given on the instructions of the Borrower.
(ii) Each Money Market Quote shall be substantially in the form
of Exhibit D hereto and shall in any case specify:
(A) the proposed date of Borrowing,
(B) the principal amount of the Money Market Loan for which
each such offer is being made, which principal amount
(w) may be greater than or less than the Commitment of
the quoting Lender, (x) must be $10,000,000 or a larger
multiple of $1,000,000, (y) may not exceed the
principal amount of Money Market Loans for which offers
were requested and (z) may be subject to an aggregate
limitation as to the principal amount of Money Market
Loans for which offers being made by such quoting
Lender may be accepted,
(C) in the case of a LIBOR Auction, the margin above or
below the applicable London Interbank Offered Rate (the
"Money Market Margin") offered for each such Money
Market Loan, expressed as a percentage (specified to
the nearest 1/10,000th of 1%) to be added to or
subtracted from such base rate,
(D) in the case of an Absolute Rate Auction, the rate of
interest per annum (specified to the nearest 1/10,000th
of 1%) (the "Money Market Absolute Rate") offered for
each such Money Market Loan, and
(E) the identity of the quoting Lender.
A Money Market Quote may set forth up to five separate offers by the quoting
Lender with respect to each Interest Period specified in the related Invitation
for Money Market Quotes.
(iii) Any Money Market Quote shall be disregarded if it:
(A) is not substantially in conformity with Exhibit D
hereto or does not specify all of the information
required by subsection (d)(ii);
(B) contains qualifying, conditional or similar language;
(C) proposes terms other than or in addition to those set
forth in the applicable Invitation for Money Market
Quotes; or
24
(D) arrives after the time set forth in subsection (d)(i).
(e) NOTICE TO BORROWER. The Administrative Agent shall promptly notify
the Borrower of the terms of (x) any Money Market Quote submitted by a Lender
that is in accordance with subsection (d) and (y) any Money Market Quote that
amends, modifies or is otherwise inconsistent with a previous Money Market Quote
submitted by such Lender with respect to the same Money Market Quote Request.
Any such subsequent Money Market Quote shall be disregarded by the
Administrative Agent unless such subsequent Money Market Quote is submitted
solely to correct a manifest error in such former Money Market Quote. The
Administrative Agent's notice to the Borrower shall specify (A) the aggregate
principal amount of Money Market Loans for which offers have been received for
each Interest Period specified in the related Money Market Quote Request, (B)
the respective principal amounts and Money Market Margins or Money Market
Absolute Rates, as the case may be, so offered and (C) if applicable,
limitations on the aggregate principal amount of Money Market Loans for which
offers in any single Money Market Quote may be accepted.
(f) ACCEPTANCE AND NOTICE BY BORROWER. Not later than (x) 1:00 P.M.
(New York City time) on the third Euro-Dollar Business Day prior to the proposed
date of Borrowing, in the case of a LIBOR Auction or (y) 11:00 A.M. (New York
City time) on the proposed date of Borrowing, in the case of an Absolute Rate
Auction (or, in either case, such other time or date as the Borrower and the
Administrative Agent shall have mutually agreed and shall have notified to the
Lenders not later than the date of the Money Market Quote Request for the first
LIBOR Auction or Absolute Rate Auction for which such change is to be
effective), the Borrower shall notify the Administrative Agent of its acceptance
or non-acceptance of the offers so notified to it pursuant to subsection (e). In
the case of acceptance, such notice (a "Notice of Money Market Borrowing") shall
specify the aggregate principal amount of offers for each Interest Period that
are accepted. Subject to the applicable limitation in subsection (a) of this
Section, the Borrower may accept any Money Market Quote in whole or in part;
PROVIDED that:
(i) the aggregate principal amount of each Money Market
Borrowing may not exceed the applicable amount set forth in the related
Money Market Quote Request,
(ii) the principal amount of each Money Market Borrowing
must be $10,000,000 or a larger multiple of $1,000,000,
(iii) acceptance of offers may only be made on the basis of
ascending Money Market Margins or Money Market Absolute Rates, as the
case may be, and
25
(iv) the Borrower may not accept any offer that is described in
subsection (d)(iii) or that otherwise fails to comply with the
requirements of this Agreement.
(g) ALLOCATION BY ADMINISTRATIVE AGENT. If offers are made by two or
more Lenders with the same Money Market Margins or Money Market Absolute Rates,
as the case may be, for a greater aggregate principal amount than the amount in
respect of which such offers are accepted for the related Interest Period, the
principal amount of Money Market Loans in respect of which such offers are
accepted shall be allocated by the Administrative Agent among such Lenders as
nearly as possible (in multiples of $1,000,000, as the Administrative Agent may
deem appropriate) in proportion to the aggregate principal amounts of such
offers. Determinations by the Administrative Agent of the amounts of Money
Market Loans shall be conclusive in the absence of manifest error.
SECTION 2.04. NOTICE TO LENDERS; FUNDING OF LOANS. (a) Upon receipt
of a Notice of Syndicated Borrowing or a Notice of Money Market Borrowing,
the Administrative Agent shall promptly notify each Lender participating in
such Borrowing of the contents of such Notice of Borrowing and such Lender's
share of such Borrowing. Such Notice of Borrowing shall not thereafter be
revocable by the Borrower.
(b) Not later than 1:00 P.M. (New York City time) on the date of each
such Borrowing, each Lender participating therein shall make available its share
of such Borrowing, in Federal or other funds immediately available in New York
City, to the Administrative Agent at its address referred to in Section 9.01.
Unless the Administrative Agent determines that any applicable condition
specified in Article 3 has not been satisfied, the Administrative Agent shall
(i) apply the funds so received from the Lenders to repay all Swingline Loans
(if any) then outstanding, together with interest accrued thereon, and (ii) make
the remainder of such funds available to the Borrower at the Administrative
Agent's aforesaid address.
(c) Unless the Administrative Agent shall have received notice from a
Lender prior to the date of any such Borrowing that such Lender will not make
available to the Administrative Agent such Lender's share of such Borrowing, the
Administrative Agent may assume that such Lender has made such share available
to the Administrative Agent on the date of such Borrowing in accordance with
subsection (b) of this Section and the Administrative Agent may, in reliance
upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Lender shall not have so
made its share of such Borrowing available to the Administrative Agent, such
Lender and the Borrower severally agree to repay to the Administrative Agent
forthwith on demand such corresponding amount together with interest thereon,
for each day from the date such amount is made available to the Borrower until
the date such
26
amount is repaid to the Administrative Agent, at (i) in the case of the
Borrower, a rate per annum equal to the higher of the Federal Funds Rate and
the interest rate applicable to such Borrowing pursuant to Section 2.09 and
(ii) in the case of such Lender, the Federal Funds Rate. If such Lender shall
repay to the Administrative Agent such corresponding amount, such amount so
repaid shall constitute such Lender's Loan included in such Borrowing for
purposes of this Agreement. If the Borrower shall repay such corresponding
amount, such repayment shall not affect any rights the Borrower may have
against any defaulting Lender.
SECTION 2.05. NOTES. (a) The Borrower's obligation to repay the Loans
of each Lender shall be evidenced by a single Note payable to the order of such
Lender for the account of its Applicable Lending Office.
(b) Each Lender may, by notice to the Borrower and the Administrative
Agent, request that its Base Rate Loans, its Euro-Dollar Loans or its Money
Market Loans be evidenced by a separate Note. Each such Note shall be
substantially in the form of Exhibit A hereto, with appropriate modifications to
reflect the fact that it evidences solely the relevant type of Loans. Each
reference in this Agreement to a "Note" or the "Notes" of such Lender shall be
deemed to refer to and include any or all of such Notes, as the context may
require.
(c) Upon receipt of each Lender's Note pursuant to Section 3.01(b), the
Administrative Agent shall forward such Note to such Lender. Each Lender shall
record the date, amount and type of each Loan made by it and the date and amount
of each payment of principal made with respect thereto, and may, if such Lender
so elects in connection with any transfer or enforcement of its Note, endorse on
the schedule forming a part thereof appropriate notations to evidence the
foregoing information with respect to each such Loan evidenced thereby then
outstanding; PROVIDED that the failure of any Lender to make any such
recordation or endorsement shall not affect the obligations of the Borrower
under this Agreement or the Notes. Each Lender is hereby irrevocably authorized
by the Borrower so to endorse its Note and to attach to and make a part of its
Note a continuation of any such schedule as and when required.
SECTION 2.06. MATURITY OF LOANS. (a) Each Syndicated Loan shall mature,
and the principal amount thereof shall be due and payable, on the Termination
Date.
(b) Each Money Market Loan shall mature, and the principal amount
thereof shall be due and payable, on the last day of the Interest Period
applicable thereto.
SECTION 2.07. OPTIONAL PREPAYMENTS OF SYNDICATED LOANS. The Borrower
may at its option, by Notice of Syndicated Prepayment given in accordance with
Section 2.08, prepay any Group of Loans (subject, in the case of a Group of
Euro-
27
Dollar Loans, to Section 2.14), in each case in whole at any time, or from
time to time in part in amounts aggregating at least $10,000,000, by paying the
principal amount to be prepaid together with interest accrued thereon to the
date of prepayment. Each such optional prepayment shall be applied to prepay
ratably the Loans of the several Lenders included in such Group of Loans.
SECTION 2.08. NOTICE OF SYNDICATED PREPAYMENT. (a) The Borrower shall
give the Administrative Agent notice (a "Notice of Syndicated Prepayment") not
later than (x) 11:00 A.M. (New York City time) on the date of each prepayment of
Base Rate Loans and (y) 1:00 P.M. (New York City time) on the third Euro-Dollar
Business Day before each prepayment of Euro-Dollar Loans, specifying:
(i) the date of such prepayment, which shall be a Domestic
Business Day in the case of a prepayment of Base Rate Loans or a
Euro-Dollar Business Day in the case of a prepayment of Euro-Dollar
Loans,
(ii) the aggregate amount of such prepayment, and
(iii) the Group or Groups of Loans to which such prepayment is
to be applied.
If the Borrower fails to specify the Group or Groups of Loans to which any such
prepayment is to be applied, such Group or Groups of Loans shall be selected by
the Administrative Agent. Each repayment or prepayment of Syndicated Loans shall
be applied ratably to the Loans included in the Group or Groups of Loans
selected by the Borrower or the Administrative Agent, as the case may be.
(b) Upon receipt of a Notice of Syndicated Prepayment, the
Administrative Agent shall promptly notify each relevant Lender of the contents
thereof and of such Lender's ratable share of such prepayment and such Notice of
Syndicated Prepayment shall not thereafter be revocable by the Borrower.
SECTION 2.09. INTEREST RATES. (a) Each Base Rate Loan shall bear
interest on the outstanding principal amount thereof, for each day from and
including the date such Loan is made to but excluding the date it becomes due,
at a rate per annum equal to the Base Rate for such day. Such interest shall be
payable in arrears on the last Domestic Business Day of each Fiscal Quarter and,
with respect to the principal amount of any Base Rate Loan converted to a
Euro-Dollar Loan, on the date such amount is so converted. Any overdue principal
of or interest on any Base Rate Loan shall bear interest, payable on demand, for
each day until paid at a rate per annum equal to the sum of 2% plus the Base
Rate for such day.
(b) Each Euro-Dollar Loan shall bear interest on the outstanding
principal amount thereof, for each day during each Interest Period applicable
28
thereto, at a rate per annum equal to the sum of the Euro-Dollar Margin for such
day plus the Adjusted London Interbank Offered Rate applicable to such Interest
Period. Such interest shall be payable for each Interest Period on the last day
thereof and, if such Interest Period is longer than three months, three months
after the first day thereof.
The "Adjusted London Interbank Offered Rate" applicable to any Interest
Period means a rate per annum equal to the quotient obtained (rounded upward, if
necessary, to the next higher 1/100 of 1%) by dividing (i) the applicable London
Interbank Offered Rate by (ii) 1.00 minus the Euro-Dollar Reserve Percentage.
The "London Interbank Offered Rate" applicable to any Interest Period
means the average (rounded upward, if necessary, to the next higher 1/16 of 1%)
of the respective rates per annum at which deposits in dollars are offered to
each of the Euro-Dollar Reference Banks in the London interbank market at
approximately 11:00 A.M. (London time) two Euro-Dollar Business Days before the
first day of such Interest Period in an amount approximately equal to the
principal amount of the Euro-Dollar Loan of such Euro-Dollar Reference Bank to
which such Interest Period is to apply and for a period of time comparable to
such Interest Period.
"Euro-Dollar Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (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 five billion dollars in
respect of "Eurocurrency liabilities" (or in respect of any other category of
liabilities which includes deposits by reference to which the interest rate on
Euro-Dollar Loans is determined or any category of extensions of credit or other
assets which includes loans by a non-United States office of any Lender to
United States residents).
(c) Any overdue principal of or interest on any Euro-Dollar Loan shall
bear interest, payable on demand, for each day until paid, at a rate per annum
equal to the higher of (i) the sum of 2% plus the Euro-Dollar Margin for such
day plus the quotient obtained (rounded upward, if necessary, to the next higher
1/100 of 1%) by dividing (x) the average (rounded upward, if necessary, to the
next higher 1/16 of 1%) of the respective rates per annum at which one day (or,
if such amount due remains unpaid more than three Euro-Dollar Business Days,
then for such other period of time not longer than six months as the
Administrative Agent may select) deposits in dollars in an amount approximately
equal to such overdue payment due to each of the Euro-Dollar Reference Banks are
offered to such Euro-Dollar Reference Bank in the London interbank market for
the applicable period determined as provided above by (y) 1.00 minus the
Euro-Dollar Reserve Percentage (or, if the circumstances described in clause (a)
or (b) of Section 8.01
29
shall exist, at a rate per annum equal to the sum of 2% plus the Base Rate
for such day) and (ii) the sum of 2% plus the Euro-Dollar Margin for such day
plus the Adjusted London Interbank Offered Rate applicable to such Loan at
the date such payment was due.
(d) Each Euro-Dollar Reference Bank agrees to use its best efforts to
furnish quotations to the Administrative Agent as contemplated hereby. If any
Euro-Dollar Reference Bank does not furnish a timely quotation, the
Administrative Agent shall determine the relevant interest rate on the basis of
the quotation or quotations furnished by the remaining Euro-Dollar Reference
Bank or Banks or, if none of such quotations is available on a timely basis, the
provisions of Section 8.01 shall apply.
(e) Subject to Section 8.01(a), each Money Market LIBOR Loan shall
bear interest on the outstanding principal amount thereof, for the Interest
Period applicable thereto, at a rate per annum equal to the sum of the London
Interbank Offered Rate for such Interest Period (determined in accordance with
Section 2.09(b) as if the related Money Market LIBOR Borrowing were a Syndicated
Euro-Dollar Borrowing) plus (or minus) the Money Market Margin quoted by the
Lender making such Loan in accordance with Section 2.03. Each Money Market
Absolute Rate Loan shall bear interest on the outstanding principal amount
thereof, for the Interest Period applicable thereto, at a rate per annum equal
to the Money Market Absolute Rate quoted by the Lender making such Loan in
accordance with Section 2.03. Such interest shall be payable for each Interest
Period on the last day thereof and, if such Interest Period is longer than three
months, at intervals of three months after the first day thereof. Any overdue
principal of or interest on any Money Market Loan shall bear interest, payable
on demand, for each day until paid at a rate per annum equal to the sum of 2%
plus the Base Rate for such day.
SECTION 2.10. METHOD OF ELECTING INTEREST RATES. (a) The Loans included
in each Syndicated Borrowing shall bear interest initially at the type of rate
specified by the Borrower in the applicable Notice of Syndicated Borrowing.
Thereafter, the Borrower may from time to time elect to change or continue the
type of interest rate borne by each Group of Loans (subject in each case to the
provisions of Article 8), as follows:
(i) if such Loans are Base Rate Loans, the Borrower may elect
to convert such Loans to Euro-Dollar Loans as of any Euro-Dollar
Business Day; and
(ii) if such Loans are Euro-Dollar Loans, the Borrower may
elect to convert such Loans to Base Rate Loans or elect to continue
such Loans as Euro-Dollar Loans for an additional Interest Period, in
each case
30
effective on the last day of the then current Interest Period
applicable to such Loans.
Each such election shall be made by delivering a notice (a "Notice of Interest
Rate Election") to the Administrative Agent at least three Euro-Dollar Business
Days before the conversion or continuation selected in such notice is to be
effective. A Notice of Interest Rate Election may, if it so specifies, apply to
only a portion of the aggregate principal amount of the relevant Group of Loans;
PROVIDED that (i) such portion is allocated ratably among the Loans comprising
such Group and (ii) the portion to which such Notice applies, and the remaining
portion to which it does not apply, are each $10,000,000 or any larger multiple
of $1,000,000.
(b) Each Notice of Interest Rate Election shall specify:
(i) the Group of Loans (or portion thereof) to which such
notice applies;
(ii) the date on which the conversion or continuation selected
in such notice is to be effective, which shall comply with the
applicable clause of subsection (a) above;
(iii) if the Loans comprising such Group are to be converted to
Euro-Dollar Loans, the duration of the initial Interest Period
applicable thereto; and
(iv) if such Loans are to be continued as Euro-Dollar Loans for
an additional Interest Period, the duration of such additional Interest
Period.
Each Interest Period specified in a Notice of Interest Rate Election shall
comply with the provisions of the definition of Interest Period.
(c) Upon receipt of a Notice of Interest Rate Election from the
Borrower pursuant to subsection (a) above, the Administrative Agent shall
promptly notify each Lender of the contents thereof and such notice shall not
thereafter be revocable by the Borrower. If the Borrower fails to deliver a
timely Notice of Interest Rate Election to the Administrative Agent for any
Group of Euro-Dollar Loans, such Loans shall be converted to Base Rate Loans on
the last day of the then current Interest Period applicable thereto.
SECTION 2.11. FEES. The Borrower shall pay to the Administrative Agent,
for the account of the Lenders ratably in proportion to their Credit Exposures,
a facility fee calculated for each day at the Facility Fee Rate on the aggregate
amount of the Credit Exposures on such day. Such facility fee shall accrue from
and including the Closing Date to but excluding the date on which the Credit
Exposures are reduced to zero and shall be payable quarterly on each March 31,
31
June 30, September 30 and December 31 and on the date on which the Credit
Exposures are reduced to zero.
SECTION 2.12. TERMINATION OR REDUCTION OF COMMITMENTS. The Borrower
may, upon at least three Domestic Business Days' notice to the Administrative
Agent, (i) terminate the Commitments at any time, if there are no Syndicated
Loans, Swingline Loans or LC Exposures outstanding at such time, or (ii) ratably
reduce from time to time by an aggregate amount of $10,000,000 or any multiple
of $1,000,000 in excess thereof, the aggregate amount of the Commitments in
excess of the sum of the aggregate outstanding principal amount of all
Syndicated Loans and Swingline Loans and the Aggregate LC Exposure at such time.
Unless previously terminated, the Commitments shall terminate at the close of
business on the Termination Date.
SECTION 2.13. GENERAL PROVISIONS AS TO PAYMENTS. (a) The Borrower shall
make each payment of principal of, and interest on, the Loans and LC
Reimbursement Obligations, and of fees hereunder (other than fees payable
directly to the LC Issuing Banks), not later than 12:00 Noon (New York City
time) on the date when due, in Federal or other funds immediately available in
New York City, to the Administrative Agent at its address referred to in Section
9.01. The Administrative Agent will promptly distribute to each Lender its
ratable share (if any) of each such payment received by the Administrative Agent
for the account of the Lenders. Whenever any payment of principal of, or
interest on, Base Rate Loans, Swingline Loans or LC Reimbursement Obligations or
any payment of fees shall be due on a day which is not a Domestic Business Day,
the date for payment thereof shall be extended to the next succeeding Domestic
Business Day. Whenever any payment of principal of, or interest on, Euro-Dollar
Loans shall be due on a day which is not a Euro-Dollar Business Day, the date
for payment thereof shall be extended to the next succeeding Euro-Dollar
Business Day unless such Euro-Dollar Business Day falls in another calendar
month, in which case the date for payment thereof shall be the next preceding
Euro-Dollar Business Day. Whenever any payment of principal of, or interest on,
Money Market Loans shall be due on a day which is not a Euro-Dollar Business
Day, the date for payment thereof shall be extended to the next succeeding
Euro-Dollar Business Day. If the date for any payment of principal is extended
by operation of law or otherwise, interest thereon shall be payable for such
extended time.
(b) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to any Lenders
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each Lender on such
date an amount equal to the amount then due such Lender. If and to the extent
that the Borrower shall not have so made such payment, each Lender shall repay
to the
32
Administrative Agent forthwith on demand the amount so distributed to such
Lender together with interest thereon, for each day from the date such amount
is distributed to such Lender until the date such Lender repays such amount
to the Administrative Agent, at the Federal Funds Rate.
SECTION 2.14. FUNDING LOSSES. If the Borrower makes any payment of
principal with respect to any Euro-Dollar Loan or any Euro-Dollar Loan is
converted to a Base Rate Loan (pursuant to Article 2, 6 or 8 or otherwise) on
any day other than the last day of an Interest Period applicable thereto, or the
last day of an applicable period fixed pursuant to Section 2.09(c), or the
Borrower fails to borrow or prepay or convert any Euro-Dollar Loans after notice
has been given to any Lender in accordance with Section 2.04(a) or 2.10(c), the
Borrower shall reimburse each Lender within 15 days after demand for any
resulting loss or expense incurred by it (or by an existing or prospective
Participant in the related Loan), including (without limitation) any loss
incurred in obtaining, liquidating or employing deposits from third parties, but
excluding loss of margin for the period after any such payment or conversion or
failure to borrow or prepay or convert, PROVIDED that such Lender shall have
delivered to the Borrower a certificate setting forth in reasonable detail the
amount of such loss or expense and the method of calculation thereof, which
certificate shall be conclusive in the absence of manifest error.
SECTION 2.15. COMPUTATION OF INTEREST AND FEES. (a) Interest based on
the Prime Rate hereunder shall be computed on the basis of a year of 365 days
(or 366 days in a leap year) and paid for the actual number of days elapsed
(including the first day but excluding the last day). All other interest and
fees shall be computed on the basis of a year of 360 days and paid for the
actual number of days elapsed (including the first day but excluding the last
day).
(b) The Administrative Agent shall determine each interest rate
applicable to the Loans hereunder and each Facility Fee Rate and LC Fee Rate
applicable hereunder. The Administrative Agent shall give prompt notice to the
Borrower and the relevant Lenders of each interest rate, Facility Fee Rate and
LC Fee Rate so determined, and its determination thereof shall be conclusive in
the absence of manifest error.
SECTION 2.16. SWINGLINE LOANS. (a) SWINGLINE COMMITMENT. The Swingline
Bank agrees, on the terms and conditions set forth in this Agreement, to make
loans to the Borrower pursuant to this Section from time to time during the
Swingline Availability Period; PROVIDED that, immediately after each such loan
is made, the aggregate outstanding principal amount of such loans shall not
exceed the Swingline Commitment. Each loan under this Section shall be in a
principal amount of at least $1,000,000 and shall bear interest for each day at
the Base Rate for such day. Within the foregoing limits, the Borrower may borrow
under this
33
Section, repay Swingline Loans and reborrow at any time during the Swingline
Availability Period under this Section.
(b) NOTICE OF SWINGLINE BORROWING. The Borrower shall give the
Swingline Bank notice (a "Notice of Swingline Borrowing") not later than 2:00
P.M. (New York City time) on the date of each Swingline Borrowing, specifying
(i) the date of such Borrowing, which shall be a Domestic Business Day, and (ii)
the amount of such Borrowing.
(c) FUNDING OF SWINGLINE LOANS. Not later than 3:00 P.M. (New York
City time) on the date of each Swingline Borrowing, the Swingline Bank shall,
unless the Swingline Bank determines that any applicable condition specified in
Article 3 has not been satisfied, make available the amount of such Swingline
Borrowing, in Federal or other funds immediately available in New York City, to
the Borrower at the Swingline Bank's address referred to in Section 9.01.
(d) SWINGLINE NOTE. The Borrower's obligation to repay the Swingline
Loans shall be evidenced by a single Note substantially in form of Exhibit E
hereto (the "Swingline Note").
(e) OPTIONAL PREPAYMENT OF SWINGLINE LOANS. The Borrower may prepay
the Swingline Loans in whole at any time, or from time to time in part in a
principal amount of at least $1,000,000, by giving notice of such prepayment to
the Swingline Bank not later than 12:00 Noon (New York City time) on the date of
prepayment and paying the principal amount to be prepaid, together with interest
accrued thereon to the date of prepayment, to the Swingline Bank at its address
referred to in Section 9.01, in Federal or other funds immediately available in
New York City, not later than 3:00 P.M. (New York City time) on the date of
prepayment.
(f) MANDATORY PREPAYMENT OF SWINGLINE LOANS. On the date of each
Borrowing pursuant to Section 2.01 or 2.03, the Borrower shall prepay all
Swingline Loans then outstanding, together with interest accrued thereon to the
date of prepayment.
(g) MATURITY OF SWINGLINE LOANS. All Swingline Loans outstanding on
the Swingline Maturity Date shall be due and payable on such date, together with
interest accrued thereon to such date.
(h) REFUNDING UNPAID SWINGLINE LOANS. If (i) the Swingline Loans are
not paid in full on the Swingline Maturity Date or (ii) the Swingline Loans
become immediately due and payable pursuant to Section 6.01, the Swingline Bank
(or the Administrative Agent on its behalf) may, by notice to the Lenders
(including the Swingline Bank, in its capacity as a Lender), require each Lender
to pay to the Swingline Bank an amount equal to such Lender's Commitment
34
Percentage of the aggregate unpaid principal amount of the Swingline Loans then
outstanding. Such notice shall specify the date on which such payments are to be
made, which shall be the first Domestic Business Day after such notice is given.
Not later than 12:00 Noon (New York City time) on the date so specified, each
Lender shall pay the amount so notified to it to the Swingline Bank at its
address referred to in Section 9.01, in Federal or other funds immediately
available in New York City. The amount so paid by each Lender shall constitute a
Base Rate Loan to the Borrower; PROVIDED that, if the Lenders are prevented from
making such Base Rate Loans to the Borrower by the provisions of the United
States Bankruptcy Code or otherwise, the amount so paid by each Lender shall
constitute a purchase by it of a participation in the unpaid principal amount of
the Swingline Loans (and interest accruing thereon after the date of such
payment). Each Lender's obligation to make such payment to the Swingline Bank
under this subsection (h) shall be absolute and unconditional and shall not be
affected by any circumstance, including, without limitation, (i) any set-off,
counterclaim, recoupment, defense or other right which such Lender or any other
Person may have against the Swingline Bank or the Borrower, (ii) the occurrence
or continuance of a Default or an Event of Default or the termination of the
Commitments, (iii) any adverse change in the condition (financial or otherwise)
of the Borrower or any other Person, (iv) any breach of this Agreement by the
Borrower or any other party hereto or (v) any other circumstance, happening or
event whatsoever, whether or not similar to any of the foregoing; PROVIDED that
no Lender shall be obligated to make any payment to the Swingline Bank under
this subsection (h) with respect to a Swingline Loan made by the Swingline Bank
at a time when it knew that a Default had occurred and was continuing.
(i) TERMINATION OF SWINGLINE COMMITMENT. The Borrower may, upon at
least three Domestic Business Days' notice to the Administrative Agent,
terminate the Swingline Commitment at any time, if no Swingline Loans are
outstanding at such time. Unless previously terminated, the Swingline Commitment
shall terminate at the close of business on the Swingline Maturity Date.
SECTION 2.17. LETTERS OF CREDIT. (a) LC ISSUING BANKS. The Borrower
may, at any time, request any Lender to issue one or more letters of credit
hereunder. Any Lender may, but shall not be obligated to, agree to issue such
letters of credit. If any Lender so agrees, it shall send notice to the
Administrative Agent confirming its agreement, whereupon such Lender shall
become an "LC Issuing Bank" for the purposes hereof.
(b) ISSUANCE. Each LC Issuing Bank agrees, on the terms and conditions
set forth in this Agreement, to issue at the request of the Borrower the Letters
of Credit that such LC Issuing Bank has agreed with the Borrower to issue;
PROVIDED that (i) no Letter of Credit shall be issued after the date that is
thirty days before the Termination Date and (ii) immediately after each such
Letter of Credit is
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issued and participations therein are sold to the Lenders as provided in this
subsection:
(A) the Aggregate LC Exposure shall not exceed $250,000,000
and
(B) in the case of each Lender, its Outstanding Committed
Amount shall not exceed its Commitment.
Whenever an LC Issuing Bank issues a Letter of Credit hereunder, such LC Issuing
Bank shall be deemed, without further action by any party hereto, to have sold
to each Lender (including such LC Issuing Bank in its capacity as a Lender), and
each Lender shall be deemed, without further action by any party hereto, to have
purchased from such LC Issuing Bank, a participation in such Letter of Credit,
on the terms specified in this Section, equal to such Lender's Commitment
Percentage thereof.
(c) NOTICE OF PROPOSED ISSUANCE. With respect to each Letter of
Credit, the Borrower shall give the relevant LC Issuing Bank and the
Administrative Agent at least three Domestic Business Days' prior notice (i)
specifying the date such Letter of Credit is to be issued and (ii) describing
the proposed terms of such Letter of Credit and the nature of the transactions
to be supported thereby. Promptly after it receives such notice, the
Administrative Agent shall notify each Lender of the contents thereof.
(d) CONDITIONS TO ISSUANCE. No LC Issuing Bank shall issue any Letter
of Credit unless:
(i) such Letter of Credit shall be satisfactory in form and
substance to such LC Issuing Bank,
(ii) the Borrower shall have executed and delivered such other
instruments and agreements relating to such Letter of Credit as such LC
Issuing Bank shall have reasonably requested,
(iii) such LC Issuing Bank shall have confirmed with the
Administrative Agent on the date of such issuance that the limitations
specified in clauses (A) and (B) of subsection (b)(ii) of this Section
will not be exceeded immediately after such Letter of Credit is issued
and
(iv) such LC Issuing Bank shall not have been notified in
writing by the Borrower, the Administrative Agent or the Required
Lenders that any condition specified in clause (c), (d) or (e) of
Section 3.03 is not satisfied at the time such Letter of Credit is to
be issued.
36
(e) NOTICE OF ACTUAL ISSUANCE. Promptly after it issues any Letter of
Credit, the relevant LC Issuing Bank shall notify the Administrative Agent of
the date, face amount, beneficiary or beneficiaries and expiry date of such
Letter of Credit. Promptly after it receives such notice, the Administrative
Agent shall notify each Lender of the contents thereof and the amount of such
Lender's participation in such Letter of Credit. Promptly after it issues any
Letter of Credit, the relevant LC Issuing Bank shall send a copy of such Letter
of Credit to the Administrative Agent.
(f) EXPIRY DATES. No Letter of Credit shall have an expiry date later
than the fifth Domestic Business Day before the Termination Date. Subject to the
preceding sentence, each Letter of Credit, when issued hereunder, shall expire
on or before the first anniversary of the date of such issuance; PROVIDED that
the expiry date of any Letter of Credit may be extended from time to time (i) at
the Borrower's request or (ii) in the case of an Evergreen Letter of Credit,
automatically, in each case so long as such extension is for a period not
exceeding one year and is granted (or the last day on which notice can be given
to prevent such extension occurs) no earlier than three months before the then
existing expiry date thereof.
(g) NOTICE OF PROPOSED EXTENSIONS OF EXPIRY DATES. The relevant LC
Issuing Bank shall give the Administrative Agent at least three Domestic
Business Days' notice before such LC Issuing Bank extends (or allows an
automatic extension of) the expiry date of any Letter of Credit issued by it.
Such notice shall identify such Letter of Credit, the date on which it is to be
extended (or the last day on which notice can be given to prevent such
extension) and the date to which it is to be extended. Promptly after it
receives such notice, the Administrative Agent shall notify each Lender of the
contents thereof. No LC Issuing Bank shall extend (or allow the extension of)
the expiry date of any Letter of Credit if:
(i) such extension does not comply with subsection (f) of this
Section or
(ii) such LC Issuing Bank shall have been notified by the
Administrative Agent or the Required Lenders that any condition
specified in clause (c), (d) or (e) of Section 3.03 is not satisfied
at the time of such proposed extension.
If any Letter of Credit is not extended after notice of a proposed extension
thereof has been given to the Lenders, the relevant LC Issuing Bank shall
promptly notify the Administrative Agent of such failure to extend. Promptly
after it receives such notice, the Administrative Agent shall notify each Lender
thereof.
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(h) FEES. The Borrower shall pay to the Administrative Agent, for the
account of the Lenders ratably in proportion to their Commitment Percentages, a
letter of credit fee for each day at the LC Fee Rate for such day on the
aggregate amount available for drawing (whether or not conditions for drawing
have been satisfied) under all Letters of Credit outstanding at the close of
business on such day. Such letter of credit fee shall be payable with respect to
each Letter of Credit in arrears on the last Domestic Business Day of each
calendar quarter and on the Termination Date. The Borrower shall pay to each LC
Issuing Bank fronting fees and other charges in the amounts and at the times
agreed between the Borrower and such LC Issuing Bank. The LC Issuing Banks shall
furnish to the Administrative Agent upon request such information as the
Administrative Agent shall require in order to calculate the amount of any fee
payable for the account of Lenders under this subsection (h).
(i) DRAWINGS. If an LC Issuing Bank receives a demand for payment
under any Letter of Credit issued by it and determines that such demand should
be honored, such LC Issuing Bank shall (i) promptly notify the Borrower and the
Administrative Agent as to the amount to be paid by such LC Issuing Bank as a
result of such demand and the date of such payment (an "LC Payment Date") and
(ii) make such payment in accordance with the terms of such Letter of Credit.
(j) REIMBURSEMENT BY THE BORROWER. (A) If any amount is drawn under
any Letter of Credit, the Borrower irrevocably and unconditionally
agrees to reimburse the relevant LC Issuing Bank for such amount,
together with any and all reasonable charges and expenses which such
LC Issuing Bank may pay or incur relative to such drawing. Such
reimbursement shall be due and payable on the relevant LC Payment Date
or the date on which such LC Issuing Bank notifies the Borrower of
such drawing, whichever is later; PROVIDED that, if such notice is
given after 10:00 A.M. (New York City time) on the later of such
dates, such reimbursement shall be due and payable on the next
following Domestic Business Day (the date on which it is due and
payable being an "LC Reimbursement Due Date").
(B) In addition, the Borrower agrees to pay, on the applicable LC
Reimbursement Due Date, interest on each amount drawn under a Letter
of Credit, for each day from and including the date such amount is
drawn to but excluding such LC Reimbursement Due Date, at the Base
Rate for such day. The Borrower also agrees to pay, on demand,
interest on any overdue amount (including any overdue interest)
payable under this subsection (j), for each day from and including the
date when such amount becomes due to but excluding the date such
amount is paid in full, at a rate per annum equal to the sum of 2%
plus the Base Rate for such day.
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(C) Each payment by the Borrower pursuant to this subsection (j)
shall be made to the relevant LC Issuing Bank in Federal or other
funds immediately available to it at its address referred to in
Section 9.01.
(k) PAYMENTS BY LENDERS. (A) If the Borrower fails to pay any LC
Reimbursement Obligation in full when due, the relevant LC Issuing
Bank may notify the Administrative Agent of the unreimbursed amount
and request that the Lenders reimburse such LC Issuing Bank for their
respective Commitment Percentages thereof. Promptly after it receives
any such notice, the Administrative Agent shall notify each Lender of
the unreimbursed amount and such Lender's Commitment Percentage
thereof. Upon receiving such notice from the Administrative Agent,
each Lender shall make available to such LC Issuing Bank, at its
address referred to in Section 9.01, an amount equal to such Lender's
Commitment Percentage of such unreimbursed amount, in Federal or other
funds immediately available to such LC Issuing Bank, by 3:00 P.M. (New
York City time) (i) on the date such Lender receives such notice if it
is received at or before 12:00 Noon (New York City time) on such day
or (ii) on the next Domestic Business Day if such notice is received
after 12:00 Noon (New York City time) on the date of receipt, in each
case together with interest on such amount for each day from and
including the relevant LC Payment Date to but excluding the day such
payment is due from such Lender at the Federal Funds Rate for such
day. Upon payment in full thereof, such Lender shall be subrogated to
the rights of such LC Issuing Bank against the Borrower to the extent
of such Lender's Commitment Percentage of the related LC Reimbursement
Obligation (including interest accrued thereon).
(B) If any Lender fails to pay when due any amount to be paid by
it pursuant to clause (A) of this subsection, interest shall accrue on
such Lender's obligation to make such payment, for each day from and
including the date such payment became due to but excluding the date
such Lender makes such payment, at a rate per annum equal to (x) for
each day from the day such payment is due to the third succeeding
Domestic Business Day, inclusive, the Federal Funds Rate for such day
and (y) for each day thereafter the sum of 2% plus the Base Rate for
such day.
(C) If the Borrower shall reimburse any LC Issuing Bank for any
drawing with respect to which any Lender shall have made funds
available to such LC Issuing Bank in accordance with clause (A) of
this subsection, such LC Issuing Bank shall promptly upon receipt of
such reimbursement distribute to such Lender its Commitment Percentage
thereof, including interest, to the extent received by such LC Issuing
Bank.
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(l) EXCULPATORY PROVISIONS. The Borrower's obligations under this
Section shall be absolute and unconditional under any and all circumstances and
irrespective of any setoff, counterclaim or defense to payment which the
Borrower may have or have had against any LC Issuing Bank, any Lender, any
beneficiary of any Letter of Credit or any other Person. The Borrower assumes
all risks of the acts or omissions of any beneficiary of any Letter of Credit
with respect to the use of such Letter of Credit by such beneficiary. None of
the LC Issuing Banks (in the absence of its own gross negligence or willful
misconduct), the Lenders and their respective officers, directors, employees and
agents shall be responsible for, and the obligations of each Lender to make
payments to each LC Issuing Bank and of the Borrower to reimburse each LC
Issuing Bank for drawings pursuant to this Section (other than obligations
resulting solely from the gross negligence or willful misconduct of the relevant
LC Issuing Bank) shall not be excused or affected by, among other things, (i)
the use which may be made of any Letter of Credit or any acts or omissions of
any beneficiary or transferee in connection therewith; (ii) the validity,
sufficiency or genuineness of documents presented under any Letter of Credit or
of any endorsements thereon, even if such documents should in fact prove to be
in any or all respects invalid, insufficient, fraudulent or forged; (iii)
payment by any LC Issuing Bank against presentation of documents to it which do
not comply with the terms of the relevant Letter of Credit or (iv) any dispute
between or among the Borrower, any beneficiary of any Letter of Credit or any
other Person or any claims or defenses whatsoever of the Borrower or any other
Person against any beneficiary of any Letter of Credit. No LC Issuing Bank shall
be liable for any error, omission, interruption or delay in transmission,
dispatch or delivery of any message or advice, however transmitted, in
connection with any Letter of Credit. Any action taken or omitted by any LC
Issuing Bank or any Lender in connection with any Letter of Credit and the
related drafts and documents, if done without willful misconduct or gross
negligence, shall be binding upon the Borrower and shall not place any LC
Issuing Bank or any Bank under any liability to the Borrower.
(m) INDEMNIFICATION BY BORROWER. The Borrower agrees to indemnify and
hold harmless each Lender, each LC Issuing Bank and the Administrative Agent
(collectively, the "LC Indemnitees") from and against any and all claims,
damages, losses, liabilities, reasonable costs and reasonable expenses
(including, without limitation, the reasonable fees and disbursements of
counsel) which such LC Indemnitee may incur (or which may be claimed against
such LC Indemnitee by any Person whatsoever) by reason of or in connection with
any execution and delivery or transfer of or payment or failure to pay under any
Letter of Credit or any actual or proposed use of any Letter of Credit; PROVIDED
that the Borrower shall not be required to indemnify any LC Issuing Bank for any
such claims, damages, losses, liabilities, costs or expenses to the extent, but
only to the extent, caused by (i) its own willful misconduct or gross negligence
or (ii) its failure to pay under any Letter of Credit issued by it after the
presentation to it of a request strictly complying with the terms and conditions
of such Letter of Credit. Nothing
40
in this subsection is intended to limit the obligations of the Borrower under
any other provision of this Section.
(n) INDEMNIFICATION BY LENDERS. The Lenders shall, ratably in
proportion to their Commitment Percentages, indemnify each LC Issuing Bank, (to
the extent not reimbursed by the Borrower) against any claims, damages, losses,
liabilities, reasonable costs and reasonable expenses (including, without
limitation, reasonable fees and disbursements of counsel) that any such
indemnitee may suffer or incur in connection with this Section or any action
taken or omitted by such indemnitee under this Section; PROVIDED that the
Lenders shall not be required to indemnify any LC Issuing Bank for any such
claims, damages, losses, liabilities, costs or expenses to the extent, but only
to the extent, caused by (i) its own gross negligence or willful misconduct,
(ii) its failure to pay under any Letter of Credit issued by it after the
presentation to it of a request strictly complying with the terms and condition
of such Letter of Credit, (iii) its liabilities under any Letter of Credit
issued by it in contravention of clause (iii) (to the extent that the
limitations referred to therein were in fact exceeded) or clause (iv) of
subsection (d) of this Section or (iv) its liabilities under any Letter of
Credit extended (or allowed to be automatically extended) by it in contravention
of clause (i) or (ii) of subsection (g) of this Section.
(o) LIABILITY FOR DAMAGES. Nothing in this Section shall preclude the
Borrower or any Lender from asserting against any LC Issuing Bank any claim for
direct (but not consequential) damages suffered by the Borrower or such Lender
to the extent, but only to the extent, caused by (A) the willful misconduct or
gross negligence of such LC Issuing Bank in determining whether a request
presented under any Letter of Credit issued by it complied with the terms
thereof or (B) such LC Issuing Bank's failure to pay under any such Letter of
Credit after the presentation to it of a request strictly complying with the
terms and conditions thereof.
(p) DUAL CAPACITIES. In its capacity as a Lender, each LC Issuing Bank
shall have the same rights and obligations under this Section as any other
Lender.
ARTICLE 3
CONDITIONS
41
SECTION 3.01. CLOSING. This Agreement shall become effective when all
the following conditions have been satisfied (or waived in accordance with
Section 9.05):
(a) the Administrative Agent shall have received (i)
counterparts hereof signed by the Borrower, the Lenders listed on the
Commitment Schedule, the Swingline Bank and the Agents or (ii) in the
case of any such party as to which an executed counterpart shall not
have been received, telex, facsimile or other written confirmation (in
form satisfactory to the Administrative Agent) that a counterpart
hereof has been executed by such party;
(b) the Administrative Agent shall have received (i) a duly
executed Note, dated on or before the Closing Date and complying with
the provisions of Section 2.05, for each Lender and (ii) a duly
executed Swingline Note, dated on or before the Closing Date, for the
Swingline Bank;
(c) the Administrative Agent shall have received evidence
satisfactory to it that the Borrower and OrNda will comply with the
provisions of Section 3.02 on the Closing Date and that they have
received all consents (if any) required to enable them to do so from
the lenders under the Borrower's Existing Credit Agreement and OrNda's
Existing Credit Agreement that are not parties to this Agreement;
(d) the Administrative Agent shall have received evidence
satisfactory to it that (i) all security interests created pursuant to
OrNda's Existing Credit Agreement will be released on the Closing Date,
(ii) termination statements will be delivered for filing under the
Uniform Commercial Code as required to evidence the termination of such
security interests and (iii) all stock certificates and other
instruments pledged under OrNda's Existing Credit Agreement will be
returned to OrNda;
(e) the Administrative Agent shall have received evidence
satisfactory to it that the Acquisition has been consummated
substantially on the terms set forth in the Merger Agreement and all
conditions to the consummation of the Acquisition, as set forth in the
Merger Agreement, have been fulfilled in all material respects;
(f) the Administrative Agent shall have received evidence
satisfactory to it that the consideration paid or to be paid by the
Borrower and its Subsidiaries as a result of the Acquisition to the
former holders of common stock of OrNda and options to purchase such
common stock will consist only of shares of common stock of the
Borrower and cash to purchase fractional shares;
42
(g) the Administrative Agent shall have received evidence
satisfactory to it that the Borrower will receive, on or within five
Domestic Business Days after the Closing Date, the net cash proceeds of
the issuance and sale of the New Public Debt;
(h) the Administrative Agent shall have received a
certificate, substantially in the form of Exhibit F hereto, dated the
Closing Date and signed by a Senior Officer of the Borrower;
(i) the Administrative Agent shall have received a certificate
of a Senior Officer of the Borrower certifying that, if this Agreement
had been in effect on November 30, 1996, and the transactions and
events reflected in the "Pro Forma Financial Information" included in
the New Public Debt Prospectus (other than the consummation of the
OrNda Tender Offers) had occurred on the dates assumed in the
preparation thereof, (i) the Borrower would have been in compliance
with the requirements of Sections 5.09 to 5.11, inclusive, at the end
of such Fiscal Quarter and (ii) no Default would have occurred and been
continuing at such time. Such certificate shall set forth in reasonable
detail the calculations required to establish the correctness of clause
(i);
(j) the Administrative Agent shall have received an opinion of
Xxxxxx, Xxxx & Xxxxxxxx LLP, special counsel for the Borrower,
substantially in the form of Exhibit G hereto, dated the Closing Date
and covering such other matters incident to the transactions
contemplated by this Agreement as any Agent shall reasonably request;
(k) the Administrative Agent shall have received an opinion of
the Borrower's General Counsel, dated the Closing Date, substantially
in the form of Exhibit H hereto and covering such other matters
incident to the transactions contemplated by this Agreement as any
Agent shall reasonably request;
(l) the Administrative Agent shall have received an opinion of
Xxxxx Xxxx & Xxxxxxxx, special counsel for the Administrative Agent,
dated the Closing Date, substantially in the form of Exhibit I hereto
and covering such other matters incident to the transactions
contemplated by this Agreement as any Agent shall reasonably request;
(m) the Administrative Agent shall have received a copy of the
opinion of counsel for the Borrower delivered pursuant to Section 8.2
of the Merger Agreement and a letter from such counsel to the effect
that the Agents and the Lenders are entitled to rely on such opinion as
if it were addressed to them;
43
(n) the Administrative Agent shall have received a copy of the
opinion of counsel for OrNda delivered pursuant to Section 8.3 of the
Merger Agreement and a letter from such counsel to the effect that the
Agents and the Lenders are entitled to rely on such opinion as if it
were addressed to them;
(o) the Administrative Agent shall have received a certificate
of the Secretary of the Borrower, dated the Closing Date, as to the
restated articles of incorporation and restated bylaws of the Borrower,
no amendments thereto, the adoption by the Borrower's board of
directors of the resolutions referred to in clause (p) below and the
incumbency of each officer of the Borrower who executed or will execute
any Financing Document or any other document to be delivered pursuant
to this Agreement on the Closing Date;
(p) the Administrative Agent shall have received a copy of
resolutions (in form and substance satisfactory to the Agents) of the
Borrower's board of directors authorizing the execution, delivery and
performance of the Financing Documents, certified by the Secretary of
the Borrower to be in full force and effect without modification on the
Closing Date;
(q) the Borrower shall have paid or made arrangements
satisfactory to the Administrative Agent for paying all expenses
payable by the Borrower on or before the Closing Date pursuant to
Section 9.03(a);
(r) the Borrower shall have paid to the Administrative Agent
for the account of each Lender a fee calculated in accordance with the
memorandum dated December 24, 1996 to Prospective Xxxxx Healthcare
Corporation Lenders from the Arranger and the Co-Arrangers;
(s) the Metrocrest Reimbursement Agreement shall have been
amended so that references therein to the covenants and events of
default in the Borrower's Existing Credit Agreement refer instead to
the covenants and events of default in this Agreement; and
(t) the Administrative Agent shall have received all documents
it may reasonably request relating to the existence of the Borrower,
the corporate authority for and the validity of the Financing Documents
and any other matters relevant thereto, all in form and substance
reasonably satisfactory to the Administrative Agent.
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When this Agreement becomes effective, the Administrative Agent shall promptly
notify the Borrower and the Lenders that it is effective, and such notice shall
be conclusive and binding on all parties hereto.
SECTION 3.02. TERMINATION OF EXISTING COMMITMENTS. (a) The Borrower
agrees that on the Closing Date it will (i) prepay all loans outstanding under
the Borrower's Existing Credit Agreement, (ii) terminate the commitments of the
lenders thereunder immediately after such prepayment and (iii) pay all interest
and facility fees accrued thereunder to but excluding the Closing Date. The
Lenders that are parties to the Borrower's Existing Credit Agreement waive the
provisions thereof to the extent (and only to the extent) that such provisions
would otherwise require the Borrower to give prior notice of such prepayment and
termination of commitments thereunder. Notwithstanding such termination, the
Borrower shall remain obligated on and after the Closing Date to compensate the
lenders under Section 2.12 of the Borrower's Existing Credit Agreement for any
funding losses incurred by reason of such prepayment and under Sections 8.3, 8.4
and 9.3 thereof for any amounts payable to them thereunder.
(b) The Borrower agrees that on the Closing Date it will cause OrNda
to (i) prepay all loans outstanding under OrNda's Existing Credit Agreement,
(ii) terminate the commitments of the lenders thereunder immediately after such
prepayment and (iii) pay all interest and commitment fees accrued thereunder to
but excluding the Closing Date. The Lenders that are parties to OrNda's Existing
Credit Agreement (including The Bank of Nova Scotia in its capacity as
Administrative Agent thereunder) (x) waive the provisions thereof to the extent
(and only to the extent) that such provisions would otherwise require OrNda to
give prior notice of such prepayment and termination of commitments thereunder
and (y) consent to the termination on the Closing Date of all participations in
letters of credit sold to such Lenders pursuant to OrNda's Existing Credit
Agreement. Notwithstanding such termination, OrNda shall remain obligated on and
after the Closing Date to compensate such lenders under Section 2.5.2 of OrNda's
Existing Credit Agreement for any funding losses incurred by reason of such
prepayment and under Sections 2.12, 2.13, 2.19 and 12.3 thereof for any amounts
payable to them thereunder.
SECTION 3.03. BORROWINGS AND ISSUANCES OR EXTENSIONS OF LETTERS OF
CREDIT. The obligation of any Lender to make a Loan on the occasion of any
Borrowing (except a Syndicated Borrowing pursuant to Section 2.16(h)), the
obligation of the Swingline Bank to make any Swingline Loan and the obligation
of any LC Issuing Bank to issue (or extend or allow the extension of the expiry
date of ) any Letter of Credit are each subject to the satisfaction of the
following conditions:
(a) the fact that the Closing Date shall have occurred on or
prior to May 31, 1997;
45
(b) receipt by the Administrative Agent of a Notice of
Borrowing as required by Section 2.02, 2.03 or 2.16(b), as the case may
be, or receipt by the relevant LC Issuing Bank of a notice of proposed
issuance or extension as required by Section 2.17(b) or (e), as the
case may be;
(c) the fact that, immediately after such Borrowing or
issuance or extension of a Letter of Credit, the sum of the aggregate
outstanding principal amount of the Loans plus the Aggregate LC
Exposure (and, in the case of a Swingline Borrowing, the Swingline
Loans) will not exceed the aggregate amount of the Commitments;
(d) the fact that, immediately before and after such Borrowing
or issuance or extension of a Letter of Credit, no Default shall have
occurred and be continuing; and
(e) the fact that the representations and warranties of the
Borrower contained in this Agreement shall be true on and as of the
date of such Borrowing or issuance or extension of a Letter of Credit.
Each Borrowing and each issuance or extension of a Letter of Credit shall be
deemed to be a representation and warranty by the Borrower on the date of such
Borrowing or issuance or extension of a Letter of Credit as to the facts
specified in clauses (c), (d) and (e) of this Section.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
SECTION 4.01. CORPORATE EXISTENCE AND POWER. The Borrower is a
corporation duly incorporated, validly existing and in good standing under the
laws of the State of Nevada, and has all corporate powers and all material
governmental licenses, authorizations, consents and approvals required to carry
on its business as now conducted.
SECTION 4.02. CORPORATE AND GOVERNMENTAL AUTHORIZATION. The execution,
delivery and performance by the Borrower of the Financing Documents (i) are
within its corporate powers, (ii) have been duly authorized by all necessary
corporate action, (iii) require no action by or in respect of, or filing with,
any governmental body, agency or official, (iv) do not contravene any provision
of applicable law or regulation or of the articles of incorporation or by-laws
of the Borrower, (v) do not constitute a breach of or default under any
agreement, judgment, injunction, order, decree or other instrument binding upon
the Borrower or any of its Subsidiaries, except for breaches and defaults which,
in the
46
aggregate, could not reasonably be expected to have a Material Adverse Effect
or have an adverse effect on the validity or enforceability of any material
provision of any Financing Document, or (vi) result in the creation or
imposition of any Lien on any asset of the Borrower or any of its
Subsidiaries.
SECTION 4.03. BINDING EFFECT. This Agreement constitutes a valid and
binding agreement of the Borrower and the Notes and the Swingline Note, when
executed and delivered in accordance with this Agreement, will constitute valid
and binding obligations of the Borrower, in each case enforceable against the
Borrower in accordance with its terms.
SECTION 4.04. FINANCIAL INFORMATION. (a) The consolidated balance sheet
of the Borrower and its Subsidiaries as of May 31, 1996 and the related
consolidated statements of operations, cash flows and changes in stockholders'
equity for the Fiscal Year then ended, reported on by KPMG Peat Marwick LLP and
set forth in the Borrower's 1996 Form 10-K, a copy of which has been delivered
to each of the Lenders, fairly present, in conformity with GAAP, the
consolidated financial position of the Borrower and its Subsidiaries as of such
date and their consolidated results of operations and cash flows for such Fiscal
Year.
(b) The unaudited condensed consolidated balance sheet of the Borrower
and its Subsidiaries as of November 30, 1996 and the related unaudited condensed
consolidated statements of operations and cash flows for the six months then
ended, set forth in the Borrower's quarterly report on Form 10-Q for the Fiscal
Quarter ended November 30, 1996, a copy of which has been delivered to each of
the Lenders, fairly present, on a basis consistent with the financial statements
referred to in subsection (a) of this Section, the consolidated financial
position of the Borrower and its Subsidiaries as of such date and their
consolidated results of operations and cash flows for such six-month period
(subject to normal year-end adjustments).
(c) The consolidated balance sheet of OrNda and its Subsidiaries as of
August 31, 1996 and the related consolidated statements of operations, cash
flows and changes in stockholders' equity for the Fiscal Year then ended,
reported on by Ernst & Young LLP and set forth in OrNda's 1996 Form 10-K, a copy
of which has been delivered to each of the Lenders, fairly present, in
conformity with GAAP, the consolidated financial position of OrNda and its
Subsidiaries as of such date and their consolidated results of operations and
cash flows for such Fiscal Year.
(d) The unaudited condensed consolidated balance sheet of OrNda and
its Subsidiaries as of November 30, 1996 and the related unaudited condensed
consolidated statements of operations and cash flows for the three months then
ended, set forth in OrNda's quarterly report on Form 10-Q for its Fiscal Quarter
47
ended November 30, 1996, a copy of which has been delivered to each of the
Lenders, fairly present, on a basis consistent with the financial statements
referred to in subsection (c) of this Section, the consolidated financial
position of OrNda and its Subsidiaries as of such date and their consolidated
results of operations and cash flows for such three-month period (subject to
normal year-end adjustments).
(e) The pro forma condensed combined balance sheet of the Combined
Companies as of November 30, 1996 and the related condensed combined statements
of operations set forth in the New Public Debt Prospectus under the heading "Pro
Forma Financial Information" fairly present their combined financial position at
such date and combined results of operations for the periods specified therein,
on a Pro Forma Basis.
(f) There has been no material adverse change since November 30, 1996
in the business, operations, properties, financial condition or prospects of the
Combined Companies considered as a whole.
SECTION 4.05. LITIGATION. Except as described in Schedule 4.05 hereto,
there are no actions, suits or proceedings pending against, or to the knowledge
of the Borrower threatened against, any of the Combined Companies or any of
their respective properties, before any court or arbitrator or any governmental
body, agency or official in which there is a reasonable possibility of adverse
decisions which in the aggregate could reasonably be expected to have a Material
Adverse Effect or which in any manner draw into question the validity of any of
the Financing Documents.
SECTION 4.06. COMPLIANCE WITH ERISA. Each member of the ERISA Group
has fulfilled its obligations under the minimum funding standards of ERISA
and the Internal Revenue Code with respect to each Plan and is in compliance
in all material respects with the presently applicable provisions of ERISA
and the Internal Revenue Code with respect to each Plan. No member of the
ERISA Group has (i) sought a waiver of the minimum funding standard under
Section 412 of the Internal Revenue Code in respect of any Plan, (ii) failed
to make any contribution or payment to any Plan or Multiemployer Plan, or
made any amendment to any Plan, which has resulted or could result in the
imposition of a Lien or the posting of a bond or other security under ERISA
or the Internal Revenue Code or (iii) incurred any liability under Title IV
of ERISA other than a liability to the PBGC for premiums under Section 4007
of ERISA.
SECTION 4.07. COMPLIANCE WITH LAWS. The Borrower and its
Subsidiaries are in compliance in all material respects with all applicable
laws, rules and regulations (including without limitation health care laws,
rules and regulations), other than such laws, rules or regulations (i) the
validity or applicability of which the Borrower or such Subsidiary is
contesting in good faith by appropriate
48
proceedings or (ii) failures to comply with which could not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.
SECTION 4.08. ENVIRONMENTAL MATTERS. The Borrower has reviewed the
effect of Environmental Laws on the business, operations and properties of the
Borrower and its Subsidiaries, and has in good faith attempted to identify and
evaluate the associated liabilities and costs (including, without limitation,
capital or operating expenditures required for clean-up or closure of properties
presently or previously owned, capital or operating expenditures required to
achieve or maintain compliance with environmental protection standards imposed
by law or as a condition of any license, permit or contract, any related
constraints on operating activities, including any periodic or permanent
shutdown of any facility or reduction in the level of or change in the nature of
operations conducted thereat, any costs or liabilities in connection with
off-site disposal of wastes or Hazardous Substances, and actual or potential
liabilities to third parties, including employees, and any related costs and
expenses); PROVIDED that, with respect to OrNda and its Subsidiaries, on and at
all times prior to the first anniversary of the Closing Date, such review has
been and during such time will be limited to (i) a review (without independent
investigation) of information supplied by OrNda as to the effect of
Environmental Laws on it and its Subsidiaries and (ii) a review of any other
information relating to the effect of Environmental Laws on OrNda and its
Subsidiaries of which the Borrower obtains actual knowledge after the Closing
Date. On the basis of the foregoing review, the Borrower has reasonably
concluded that such associated liabilities and costs, including the costs of
compliance with Environmental Laws, are unlikely to have a Material Adverse
Effect.
SECTION 4.09. TAXES. The Combined Companies have filed all United
States Federal income tax returns and all other material tax returns which
are required to be filed by them and have paid all taxes shown to be due on
such returns or pursuant to any assessment received by any of them (unless
such assessment is being contested in good faith by appropriate proceedings).
The charges, accruals and reserves on the books of the Combined Companies in
respect of taxes or other governmental charges are, in the opinion of the
Borrower, adequate.
SECTION 4.10. MATERIAL SUBSIDIARIES. Each Material Subsidiary is a
corporation duly incorporated, validly existing and in good standing under the
laws of its jurisdiction of incorporation, and has all corporate powers and all
material governmental licenses, authorizations, consents and approvals required
to carry on its business as now conducted.
SECTION 4.11. CERTAIN LAWS NOT APPLICABLE. The Borrower is neither an
"investment company" nor a Person directly or indirectly "controlled" by or
"acting on behalf of" an "investment company" within the meaning of the
49
Investment Company Act of 1940, as amended. The Borrower is neither a "holding
company", nor an "affiliate" of a "holding company" or a "subsidiary company" of
a "holding company", as such terms are defined in the Public Utility Holding
Company Act of 1935, as amended.
SECTION 4.12. FULL DISCLOSURE. All information heretofore furnished by
the Borrower to any Agent or any Lender for purposes of or in connection with
this Agreement or any transaction contemplated hereby is, and all such
information hereafter furnished by the Borrower to any Agent or any Lender will,
taken as a whole, be true and accurate in all material respects on the date as
of which such information is stated or certified. The Borrower has disclosed to
the Lenders in writing any and all facts which have or may (to the extent the
Borrower can now reasonably foresee) have a Material Adverse Effect.
SECTION 4.13. CERTAIN DOCUMENTS. (a) The copies of the Merger Agreement
and the Company Disclosure Letter and Parent Disclosure Letter referred to
therein, in the form delivered to each Lender prior to the date of this
Agreement, are correct and complete copies thereof as in effect on the date of
this Agreement.
(b) The copy of the New Public Debt Prospectus delivered to each
Lender prior to the date of this Agreement is a correct and complete copy of the
New Public Debt Prospectus as filed with the SEC on January 27, 1997.
SECTION 4.14. LEGALITY OF ACQUISITION. On the Closing Date, the
Acquisition will be consummated in compliance with all applicable laws and in
accordance with the provisions of the Merger Agreement. The consummation of the
Acquisition will not (i) contravene any provision of applicable law or
regulation in any manner that could reasonably be expected to have a Material
Adverse Effect, (ii) contravene any provision of the charter or by-laws of any
party to the Merger Agreement, (iii) constitute a breach of or default under any
instrument or agreement binding upon any such party or any of its Subsidiaries
or of any judgment, injunction, order, decree or other instrument binding upon
any such party, except for breaches and defaults which, in the aggregate, could
not reasonably be expected to have a Material Adverse Effect or (iv) result in
the creation or imposition of any Lien on any asset of any such party or any of
its Subsidiaries.
50
ARTICLE 5
COVENANTS
The Borrower agrees that, so long as any Lender has any Credit
Exposure hereunder or any Swingline Loan remains outstanding or any interest
or fees accrued hereunder remain unpaid:
SECTION 5.01. INFORMATION. The Borrower will deliver to each
Lender:
(a) as soon as available and in any event within 90 days after the
end of each Fiscal Year, an audited consolidated balance sheet of the
Borrower and its Subsidiaries as of the end of such Fiscal Year and the
related audited consolidated statements of operations, cash flows and changes
in stockholders' equity for such Fiscal Year, setting forth in each case in
comparative form the figures for the previous Fiscal Year, all reported on in
a manner acceptable to the SEC by KPMG Peat Marwick LLP or other independent
public accountants of nationally recognized standing;
(b) as soon as available and in any event within 45 days after the
end of each of the first three Fiscal Quarters of each Fiscal Year, a
condensed consolidated balance sheet of the Borrower and its Subsidiaries as
of the end of such Fiscal Quarter, the related condensed consolidated
statements of operations for such Fiscal Quarter and for the portion of the
Fiscal Year ended at the end of such Fiscal Quarter and the related condensed
consolidated statement of cash flows for the portion of the Fiscal Year then
ended, setting forth in the case of such condensed consolidated statements of
operations and cash flows in comparative form the figures for the
corresponding Fiscal Quarter and the corresponding portion of the previous
Fiscal Year, all certified (subject to normal year-end adjustments) as to
fairness of presentation and consistency with GAAP by a Senior Officer of the
Borrower;
(c) concurrently with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate of a
Senior Officer of the Borrower (i) setting forth in reasonable detail the
calculations required to establish whether the Borrower was in compliance
with the requirements of Sections 5.09 to 5.11, inclusive, on the date of
such financial statements and (ii) stating whether any Default exists on the
date of such certificate and, if any Default then exists, setting forth the
details thereof and the action which the Borrower is taking or proposes to
take with respect thereto;
(d) simultaneously with the delivery of each set of financial
statements referred to in clause (a) above, a statement by the firm of
51
independent public accountants which reported on such statements that, in
making the examination necessary for reporting on such financial statements,
they did not obtain knowledge of any Default hereunder except as described in
such statement;
(e) within five days after any officer of the Borrower obtains
knowledge of any Default, if such Default is then continuing, a certificate
of a Senior Officer of the Borrower setting forth the details thereof and the
action which the Borrower is taking or proposes to take with respect thereto;
(f) promptly upon the mailing thereof to the shareholders of the
Borrower generally, copies of all financial statements, reports and proxy
statements so mailed;
(g) promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration statements
on Form S-8 or its equivalent) and reports on Forms 10-K, 10-Q and 8-K (or
their equivalents) which the Borrower shall have filed with the SEC;
(h) if and when any member of the ERISA Group (i) gives or is
required to give notice to the PBGC of any "reportable event" (as defined in
Section 4043 of ERISA) with respect to any Plan which might constitute
grounds for a termination of such Plan under Title IV of ERISA, or knows that
the plan administrator of any Plan has given or is required to give notice of
any such reportable event, a copy of the notice of such reportable event
given or required to be given to the PBGC; (ii) receives notice of complete
or partial withdrawal liability under Title IV of ERISA or notice that any
Multiemployer Plan is in reorganization, is insolvent or has been terminated,
a copy of such notice; (iii) receives notice from the PBGC under Title IV of
ERISA of an intent to terminate, impose liability (other than for premiums
under Section 4007 of ERISA or premium-related penalties) in respect of, or
appoint a trustee to administer any Plan, a copy of such notice; (iv) applies
for a waiver of the minimum funding standard under Section 412 of the
Internal Revenue Code, a copy of such application; (v) gives notice of intent
to terminate any Plan under Section 4041(c) of ERISA, a copy of such notice
and other information filed with the PBGC; (vi) gives notice of withdrawal
from any Plan pursuant to Section 4063 of ERISA, a copy of such notice; or
(vii) fails to make any payment or contribution to any Plan or Multiemployer
Plan or makes any amendment to any Plan which has resulted or could result in
the imposition of a Lien or the posting of a bond or other security, a
certificate of a Senior Officer of the Borrower setting forth details as to
such occurrence and the action, if any, which the Borrower or applicable
member of the ERISA Group is required or proposes to take; and
52
(i) from time to time such additional information regarding the
financial position or business of the Borrower and its Subsidiaries as the
Administrative Agent, at the request of any Lender, may reasonably request.
SECTION 5.02. MAINTENANCE OF PROPERTY; INSURANCE. (a) The Borrower and
each Material Subsidiary will keep all property useful and necessary in its
business in good working order and condition, ordinary wear and tear excepted.
(b) The Borrower and each Material Subsidiary will maintain, with
financially sound and reputable insurance companies (which may be Affiliates
of the Borrower or part of the Borrower's self-insurance program) insurance
on all their properties in at least such amounts and against at least such
risks as are usually insured against in the same general area and by
companies engaged in the same or similar businesses and maintain professional
liability and malpractice insurance against claims usually insured against by
companies engaged in the same or similar businesses, and furnish to each
Lender, upon written request by any of the Agents, full information as to the
insurance carried.
SECTION 5.03. CONDUCT OF BUSINESS, MAINTENANCE OF EXISTENCE. (a) The
Borrower and its Material Subsidiaries will continue to engage primarily in
business of the same general type as now conducted by the Borrower and its
Material Subsidiaries.
(b) The Borrower and each Material Subsidiary will preserve, renew
and keep in full force and effect its corporate existence and take all
reasonable action to maintain its rights, privileges and franchises necessary
or desirable in the normal conduct of business, PROVIDED that (i) the
foregoing shall not prohibit any merger, consolidation or sale of assets
expressly permitted by Section 5.06 and (ii) any Material Subsidiary may
liquidate or dissolve if the Borrower in good faith determines that such
liquidation or dissolution is in the best interests of the Borrower and its
Subsidiaries and not materially adverse to the Lenders.
SECTION 5.04. COMPLIANCE WITH LAWS. The Borrower and each Material
Subsidiary will comply with all material applicable laws, ordinances, rules,
regulations and requirements of governmental authorities (including without
limitation Environmental Laws, ERISA and the rules and regulations thereunder
and Public Law 92-603), and hold and maintain in full force and effect all
certifications, governmental approvals, licenses and permits necessary or
desirable to enable the Borrower and its Material Subsidiaries to conduct their
respective businesses as now conducted, except where the failure to comply
therewith or hold and maintain such certifications, governmental approvals,
licenses or permits could not, in the aggregate, reasonably be expected to have
a Material Adverse Effect.
53
SECTION 5.05. INSPECTION OF PROPERTY, BOOKS AND RECORDS. The Borrower
and each Material Subsidiary will keep proper books of record and account in
which full, true and correct entries shall be made of all dealings and
transactions in relation to its business and activities; and will permit
representatives of the Administrative Agent (at the request of any Lender) at
such requesting Lender's expense to visit and inspect any of their respective
properties, to examine and make abstracts (at such Lender's expense, unless an
Event of Default shall have occurred and be continuing, in which case at the
Borrower's expense) from any of their respective books and records and to
discuss their respective affairs, finances and accounts with officers of the
Borrower and with the accountants of the Borrower, all upon reasonable notice
and at such reasonable times and as often as may reasonably be desired.
SECTION 5.06. CONSOLIDATIONS, MERGERS AND SALES OF ASSETS. (a) The
Borrower will not merge or consolidate with any other Person, or sell or
otherwise transfer all or substantially all of its assets to any other Person,
unless after giving effect to such merger, consolidation, sale or other
transfer, (i) no Default shall have occurred and be continuing and (ii) the
corporation surviving such merger or consolidation (if other than the Borrower)
or the Person acquiring such assets is organized under the laws of a state of
the United States and assumes in writing all the obligations of the Borrower
hereunder and said surviving corporation or acquiring Person delivers to each
Lender an opinion of counsel reasonably satisfactory to the Required Lenders, in
form and substance satisfactory to the Required Lenders, to the effect that the
assumption of such obligations by such surviving corporation or acquiring Person
is effective and is fully binding upon and enforceable against such surviving
corporation or acquiring Person.
(b) The Borrower will not make any Restricted Asset Transfer, or permit
any of its Subsidiaries to make any Restricted Asset Transfer, unless
immediately after giving effect thereto:
(i) no Default (under Section 5.13(b) or otherwise) shall have
occurred and be continuing,
(ii) the aggregate book value of all assets sold or otherwise
transferred by the Combined Companies in Restricted Asset Transfers
during the twelve months then ended does not exceed 10% of the
consolidated total assets of the Borrower and its Subsidiaries at the
time of such Restricted Asset Transfer, and
(iii) the aggregate book value of all assets sold or otherwise
transferred by the Combined Companies in Restricted Asset Transfers
after November 30, 1996 does not exceed 15% of the consolidated total
assets of the Borrower and its Subsidiaries at the time of such
Restricted Asset Transfer.
54
For purposes of this subsection (b) and Section 5.13(b), the book value of
assets sold in a Restricted Asset Transfer shall be determined immediately prior
to such Restricted Asset Transfer.
SECTION 5.07. NEGATIVE PLEDGE. After the Closing Date, neither the
Borrower nor any Subsidiary will create, assume or suffer to exist any Lien on
any asset now owned or hereafter acquired by it, except:
(a) any Lien existing prior to the Closing Date securing Debt;
PROVIDED that the Liens created by OrNda's Existing Credit Agreement shall be
released on or before the Closing Date;
(b) any Lien on bonds issued by the Metrocrest Hospital Authority
(and related proceeds and other distributions) granted to secure the
Borrower's obligations under the Metrocrest Reimbursement Agreement and the
Securities Pledge and Security Agreement referred to therein;
(c) any Lien arising out of the refinancing, extension, renewal or
refunding of any Debt secured by any Lien permitted by clause (a) above;
PROVIDED that (i) the principal amount of such Debt is not increased and (ii)
such Debt is not secured by any additional assets;
(d) if the letters of credit issued pursuant to the Metrocrest
Reimbursement Agreement are replaced by other letters of credit issued for
the same purpose, any Lien securing the Borrower's obligations under the
reimbursement agreement relating to such replacement letters of credit;
PROVIDED that (i) the aggregate amount of such letters of credit is not
increased and (ii) the Borrower's obligations under the related reimbursement
agreement are not secured or required to be secured by any assets except the
assets by which the Borrower's obligations under the Metrocrest Reimbursement
Agreement are secured or required to be secured;
(e) any Lien securing Non-Recourse Purchase Money Debt;
(f) any Lien on assets of a Person which becomes a Subsidiary after
the Closing Date; PROVIDED that such Lien secures only (i) Debt of such
Person that is outstanding when such Person becomes a Subsidiary and was not
created in contemplation of such event or (ii) Debt incurred solely for the
purpose of refinancing Debt described in the foregoing clause (i);
55
(g) carriers', warehousemen's, mechanics', transporters,
materialmen's, repairmen's or other like Liens arising in the ordinary course
of business;
(h) any Lien imposed by any governmental authority for taxes,
assessments, governmental charges, duties or levies not delinquent or which
are being contested in good faith and by appropriate proceedings; PROVIDED
that adequate reserves with respect thereto are maintained on the books of
the Borrower and its Subsidiaries in accordance with GAAP;
(i) Liens on cash and cash equivalents securing obligations of the
Borrower and its Subsidiaries with respect to workers' compensation,
malpractice and other insurance policies; PROVIDED that the aggregate amount
of cash and cash equivalents subject to such Liens may not exceed $35,000,000
at any time;
(j) Liens arising in the ordinary course of business (other than
Liens permitted by clause (g), (h) or (i) above) which (i) do not secure
Financial Obligations, (ii) do not secure any single obligation in an
outstanding amount exceeding $10,000,000 and (iii) do not secure obligations
in an aggregate outstanding amount exceeding $50,000,000;
(k) Liens on cash and cash equivalents securing Hedging Obligations,
PROVIDED that the aggregate amount of cash and cash equivalents subject to
such Liens may not exceed $50,000,000 at any time;
(l) any Lien on cash and cash equivalents securing LC Reimbursement
Obligations pursuant to Section 6.03;
(m) any Lien on an asset leased by the Borrower or a Subsidiary
under a capital lease securing its obligations as lessee under such capital
lease;
(n) any Lien on any asset of a Subsidiary securing Debt owed to the
Borrower; and
(o) Liens not otherwise permitted by the foregoing clauses of this
Section securing Debt; PROVIDED that, immediately after any such Debt is
incurred, the aggregate outstanding principal or face amount of all Debt
secured pursuant to this clause (o) shall not exceed $15,000,000.
56
SECTION 5.08. DEBT OF SUBSIDIARIES. After the Closing Date, no
Subsidiary will incur, assume or otherwise be liable in respect of any Debt,
except:
(a) Debt subject to the OrNda Tender Offers and other Debt
outstanding at the close of business on the Closing Date in an aggregate
principal or face amount not exceeding $400,000,000;
(b) Debt owing to the Borrower;
(c) Non-Recourse Purchase Money Debt;
(d) Debt of any Person which becomes a Subsidiary after the Closing
Date; PROVIDED that (i) such Debt is outstanding when such Person becomes a
Subsidiary and was not created in contemplation of such event or (ii) such
Debt is incurred solely for the purpose of refinancing Debt described in the
foregoing clause (i);
(e) Guarantees by any Subsidiary of Debt relating to any assets sold
or otherwise disposed of by it; PROVIDED that (i) such Debt was outstanding
when such assets were disposed of and was not created in contemplation of the
disposition thereof and (ii) the sum of (x) the aggregate outstanding
principal amount of all Debt which is Guaranteed by the Borrower or any of
its Subsidiaries pursuant to this clause (e) and (y) the aggregate amount of
all lease payments under operating leases which are Guaranteed by any
Subsidiary after November 30, 1996 shall not exceed $200,000,000 at any time;
(f) Debt consisting of the obligations of any Subsidiary as lessee
which are capitalized in accordance with GAAP; and
(g) Debt of any Subsidiary not otherwise permitted by the foregoing
clauses of this Section; PROVIDED that the aggregate outstanding principal or
face amount of all Debt of Subsidiaries permitted by this clause (g) shall
not exceed $35,000,000 at any time.
SECTION 5.9. DEBT RATIO. At the close of business on any day on or
after August 31, 1999, the ratio of (i) Adjusted Total Debt at such time to
(ii) Adjusted EBITDA for the period of four consecutive Fiscal Quarters most
recently ended at or prior to such time will not be greater than 3.75.
SECTION 5.10. CONSOLIDATED NET WORTH. Consolidated Net Worth will at
no time be less than the sum of (i) $2,750,000,000 PLUS (ii) (a) 75% of the
consolidated net income of the Borrower and its Subsidiaries for each Fiscal
Quarter ended after November 30, 1996 and commencing on or before August 31,
1999, and (b) 100% of the consolidated net income of the Borrower and its
57
Subsidiaries for each Fiscal Quarter commencing after August 31, 1999, in any
case if such consolidated net income for such Fiscal Quarter is positive
(PROVIDED that, for any Fiscal Quarter for which consolidated net income of the
Borrower and its Subsidiaries was reduced as a result of a charge described in
clause (iv), (v), (vi) or (vii), consolidated net income for such Fiscal Quarter
shall be calculated to exclude the after-tax effect of such charge), PLUS (iii)
100% of the amount by which the consolidated stockholders' equity of the
Borrower and its Subsidiaries is increased after November 30, 1996 as a result
of any issuance of common stock of the Borrower (other than the issuance of
common stock of the Borrower as consideration for the Acquisition), MINUS (iv)
the amount of non-recurring charges (calculated on an after-tax basis) recorded
by the Borrower in the third and fourth Fiscal Quarters of 1997 and the fourth
Fiscal Quarter of 1999, MINUS (v) impairment and other unusual cash charges
(calculated on a pre-tax basis) reported by the Borrower after August 31, 1999
with respect to physician practices not in excess of $200,000,000 in the
aggregate, MINUS (vi) the amount of other impairment and unusual cash charges
(calculated on a pre-tax basis) reported by the Borrower after August 31, 1999
not in excess of $100,000,000 in the aggregate, MINUS (vii) without duplication,
the amount of non-cash charges (calculated on a pre-tax basis) reported by the
Borrower after August 31, 1999 (a) with respect to physician practices not in
excess of $250,000,000 in the aggregate and (b) with respect to impairment and
other unusual charges not in excess of $250,000,000 in the aggregate, and PLUS
(viii) the tax benefit of any charges described in clauses (v), (vi) and (vii).
SECTION 5.11. FIXED CHARGE RATIO. At the end of each Fiscal Quarter
ending after the Closing Date, the ratio of (i) the sum of Adjusted EBITDA plus
Adjusted Rental Expense to (ii) the sum of Adjusted Interest Expense plus
Adjusted Rental Expense, all calculated for the period of four consecutive
Fiscal Quarters then ended, will not be less than 2.0 to 1.
SECTION 5.12. RESTRICTED PAYMENTS. Neither the Borrower nor any
Subsidiary will declare or make (i) any dividend or other distribution on any
shares of capital stock of the Borrower (except dividends payable solely in
shares of its capital stock) or (ii) any payment on account of the purchase,
redemption, retirement, acquisition, defeasance or prepayment of any Equity
Interests in the Borrower, unless the Borrower has an Investment Grade Rating
when such dividend is declared or when the Borrower or such Subsidiary become
legally obligated to make such distribution or other payment, as the case may
be; provided, however, that the Borrower may redeem or repurchase rights to
purchase shares of the Borrower's Series B Junior Participating Preferred Stock
outstanding under the Borrower's stockholder rights plan in effect on August 31,
1999, for an aggregate redemption or repurchase price not in excess of
$4,000,000; PROVIDED, FURTHER, that the Borrower may from time to time
distribute to its stockholders Equity Interests in other Persons held by the
Borrower so long as (i) the aggregate operating income of such Persons, plus
their depreciation and
58
amortization expense, for the respective periods of four consecutive Fiscal
Quarters most recently ended prior to the respective dates of declaration of
distribution of Equity Interests therein, is less than 5% of Consolidated
EBITDA for the four-quarter period most recently ended prior to the date of
determination, and (ii) the aggregate net tangible assets of all such Persons
(LESS in the case of any such Person that is not a wholly-owned Subsidiary, a
portion of the net tangible assets of such Person allocable, on a pro rata
basis, to Equity Interests of such Person held by Persons other than the
Borrower and its Subsidiaries) at the respective dates of declaration of such
distributions of the Equity Interests of such Persons are less than 5% of
consolidated net tangible assets of the Borrower on August 31, 1999.
SECTION 5.13. RESTRICTION ON INVESTMENTS. (a) The sum of (i) the
aggregate book value of all Investments in Equity Affiliates held by the
Borrower and its Subsidiaries, as determined from time to time in accordance
with GAAP, and (ii) the Loss Adjustment Amount for each Equity Affiliate in
which the Combined Companies make an Investment after November 30,1996 (such sum
being called the "Aggregate Investment in Equity Affiliates") will not at any
time exceed 17.5% of the consolidated total assets of the Borrower and its
Subsidiaries at such time. The term "Loss Adjustment Amount" means, for any
Equity Affiliate at any time, the cumulative amount by which the book value of
Investments by the Combined Companies in such Equity Affiliate has theretofore
been reduced by operating losses, write downs or writeoffs of assets or other
special charges.
(b) The sum of (i) the Aggregate Investment in Equity Affiliates and
(ii) the aggregate book value of all assets sold or otherwise transferred in
Restricted Asset Transfers after November 30, 1996 will not at any time exceed
27.5% of the consolidated total assets of the Borrower and its Subsidiaries at
such time.
SECTION 5.14. RESTRICTIONS ON INCLUDED EQUITY AFFILIATES. (a) DEBT. On
and after the Closing Date, no Included Equity Affiliate will incur, assume or
otherwise be liable in respect of any Debt, except:
(i) Debt of such Included Equity Affiliate outstanding when it
first becomes an Equity Affiliate and not created in contemplation of
such event;
(ii) Debt of any partner, member or shareholder of such Included
Equity Affiliate that (x) is assumed by such Included Equity Affiliate
in connection with a contribution of assets to its capital by such
partner, member or shareholder and (y) was not created in contemplation
of such event;
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(iii) Debt secured by a Lien on any asset acquired by such
Included Equity Affiliate; PROVIDED that (x) such Debt was outstanding
and was secured by such Lien prior to the acquisition of such asset by
such Included Equity Affiliate and (y) neither such Debt nor such Lien
was created in contemplation of such acquisition;
(iv) Non-Recourse Purchase Money Debt;
(v) Debt incurred solely for the purpose of refinancing (x)
Debt of such Included Equity Affiliate permitted by clause (i), (ii),
(iii) or (iv) above or (y) Debt that such Included Equity Affiliate
would be permitted to assume by clause (ii) above;
(vi) Debt owing to the Borrower or any Subsidiary;
(vii) Debt incurred to satisfy working capital requirements; and
(viii) other Debt of Included Equity Affiliates not exceeding
$15,000,000 in aggregate principal amount outstanding at any time.
(b) LIENS. On and after the Closing Date, no Included Equity Affiliate
will create, assume or suffer to exist any Lien securing Debt on any asset now
owned or hereafter acquired by it, except:
(i) any Lien securing Debt permitted by clause (i) or (ii) of
subsection (a) above; PROVIDED that such Lien is limited to assets
securing such Debt at the time it is assumed;
(ii) any Lien securing Debt permitted by clause (iii) of
subsection (a) above; PROVIDED that such Lien is limited in each case
to the asset that was acquired subject to such Lien and any
improvements thereto;
(iii) any Lien securing Debt permitted by clause (iv) of
subsection (a) above; PROVIDED that such Lien is limited in each case
to the assets acquired, constructed or improved with the proceeds of
such Debt;
(iv) any Lien securing Debt permitted by clause (v) of
subsection (a) above; PROVIDED that in each case the Debt refinanced
thereby was secured and such Lien is limited to the assets that
secured the Debt refinanced thereby;
(v) any Lien securing Debt permitted by clause (vi) of
subsection (a) above; and
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(vi) other Liens securing Debt of Included Equity Affiliates not
exceeding $2,000,000 in aggregate principal amount outstanding at any
time.
SECTION 5.15. RESTRICTION ON PREPAYING SUBORDINATED DEBT. Neither the
Borrower nor any Subsidiary will prepay, defease or purchase, prior to the date
on which it is required by its terms to be repaid, repurchased or otherwise
retired, all or any portion of any Debt of the Borrower that is subordinated in
right of payment to the Loans; PROVIDED that (x) the Borrower may prepay,
defease or repurchase such Debt in an aggregate amount not in excess of the net
cash proceeds received by the Borrower from the issue and sale or incurrence of
additional subordinated Debt in the 12 month period prior to, or substantially
concurrently with, such prepayment, defeasance or repurchase, so long as such
additional subordinated Debt has a final maturity after the final maturity of,
and a weighted average life that is longer than the weighted average life of,
the subordinated Debt prepaid, defeased or repurchased, (y) the Borrower may
repurchase its 6% Exchangeable Subordinated Notes due 2005 in exchange for
additional Debt of the Borrower subordinated on substantially identical terms,
so long as such additional subordinated Debt requires no scheduled payment of
principal prior to the scheduled maturity of the Borrower's 6% Exchangeable
Subordinated Notes due 2005, and (z) in addition to any subordinated Debt
prepaid, defeased or repurchased pursuant to clause (x) or (y), the Borrower may
prepay, defease or repurchase such Debt so long as the aggregate cash (or value
of property) used therefor, plus the aggregate amount of Restricted Payments
made in accordance with Section 5.12, does not at any time exceed the sum of (i)
$500,000,000 and (ii) 50% of the Borrower's cumulative consolidated net income
for the period (treated as a single accounting period) commencing June 1, 1998
and ending on the last day of the last Fiscal Quarter ended prior to the date of
such prepayment, defeasance or repurchase.
SECTION 5.16. TRANSACTIONS WITH AFFILIATES. The Borrower will not, and
will not permit any Subsidiary to, directly or indirectly, pay any funds to or
for the account of, make any investment (whether by acquisition of stock or
indebtedness, by loan, advance, transfer of property, guarantee or other
agreement to pay, purchase or service, directly or indirectly, any Debt, or
otherwise) in, lease, sell, transfer or otherwise dispose of any assets,
tangible or intangible, to, or participate in, or effect, any transaction with,
any Affiliate except on an arms-length basis on terms at least as favorable to
the Borrower or such Subsidiary as it could have obtained from a third party who
was not an Affiliate; PROVIDED that the foregoing provisions of this Section
shall not prohibit (x) any such Person from declaring or paying any lawful
dividend or other payment ratably in respect of all of its capital stock of the
relevant class so long as, after giving effect thereto, no Default shall have
occurred and be continuing or (y) any such transaction between or among the
Borrower and its Subsidiaries.
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SECTION 5.17. SENIOR STATUS. The obligations of the Borrower under the
Financing Documents will at all times constitute "senior debt" as defined in any
instrument or agreement evidencing or governing any subordinated debt of the
Borrower outstanding on or after the Closing Date.
SECTION 5.18. PAYMENT OF DIVIDENDS BY MATERIAL SUBSIDIARIES. After the
Closing Date neither the Borrower nor any of its Material Subsidiaries will
enter into any agreement or arrangement which would limit in any way the ability
of any Material Subsidiary to pay any dividend.
SECTION 5.19. RETIREMENT OF ORNDA DEBT. If the Borrower does not
consummate the OrNda Tender Offers and obtain sufficient consents from the
holders of OrNda's 12.25% Senior Subordinated Notes due 2002 and 11.375% Senior
Subordinated Notes due 2004 to eliminate the restrictive covenants intended to
be eliminated thereby, the Borrower will cause all of OrNda's outstanding 12.25%
Senior Subordinated Notes due 2002 to be redeemed on or before May 31, 1997.
SECTION 5.20. USE OF PROCEEDS. (a) The proceeds of the Loans will be
used by the Borrower (i) to purchase, redeem or otherwise refinance outstanding
Debt of the Borrower, OrNda and their respective Subsidiaries and (ii) for
general corporate purposes (including working capital needs) of the Borrower and
its Subsidiaries after the Acquisition is consummated.
(b) The Letters of Credit will be used by the Borrower for the general
corporate purposes of the Borrower and its Subsidiaries.
(c) Neither the proceeds of the Loans nor any Letter of Credit will be
used, directly or indirectly, for the purpose, whether immediate, incidental or
ultimate, of buying or carrying any "margin stock" within the meaning of
Regulation U in any manner which would (i) violate any applicable law or
regulation or (ii) require any Form FRU-1 or any successor form to be executed.
ARTICLE 6
DEFAULTS
SECTION 6.01. EVENTS OF DEFAULT. If one or more of the following events
("Events of Default") shall have occurred:
(a) any principal of any Loan or Swingline Loan shall not be
paid when due;
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(b) any LC Reimbursement Obligation, any interest on any Loan,
Swingline Loan or LC Reimbursement Obligation, any fee or any other amount
payable under any Financing Document shall not be paid within three Domestic
Business Days after it becomes due;
(c) the Borrower (or any Subsidiary or Included Equity Affiliate)
shall fail to comply with any covenant applicable to it contained in Sections
5.06 through 5.20, inclusive;
(d) the Borrower shall fail to observe or perform any covenant or
agreement contained in this Agreement (other than those covered by clause
(a), (b) or (c) above) within 30 days after such failure occurs or, if later,
10 days after written notice thereof has been given to the Borrower by the
Administrative Agent at the request of the Required Lenders;
(e) any representation, warranty, certification or statement made by
the Borrower in this Agreement or by the Borrower or any Subsidiary in any
certificate, financial statement or other document delivered pursuant hereto
shall prove to have been incorrect in any material respect when made (or
deemed made);
(f) the Borrower and/or one or more Subsidiaries shall fail to make
one or more payments in respect of Material Financial Obligations when due or
within any applicable grace period;
(g) any event or condition shall occur which results in the
acceleration of the maturity of Material Financial Obligations, or enables
(any applicable grace period having expired) the holder or holders of
Material Financial Obligations or any Person acting on their behalf to
accelerate the maturity thereof;
(h) the Borrower or any Material Subsidiary shall commence a
voluntary case or other proceeding seeking liquidation, reorganization or
other relief with respect to itself or its debts under any bankruptcy,
insolvency or other similar law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator, custodian or other similar
official of it or any substantial part of its property, or shall consent to
any such relief or to the appointment of or taking possession by any such
official in an involuntary case or other proceeding commenced against it, or
shall make a general assignment for the benefit of creditors, or shall fail
generally to pay its debts as they become due, or shall take any corporate
action to authorize any of the foregoing;
(i) an involuntary case or other proceeding shall be commenced
against the Borrower or any Material Subsidiary seeking liquidation,
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reorganization or other relief with respect to it or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver, liquidator, custodian or
other similar official of it or any substantial part of its property, and
such involuntary case or other proceeding shall remain undismissed and
unstayed for a period of 60 days; or an order for relief shall be entered
against the Borrower or any Material Subsidiary under the federal bankruptcy
laws as now or hereafter in effect;
(j) any member of the ERISA Group shall fail to pay when due an
amount or amounts aggregating in excess of $25,000,000 which it shall have
become liable to pay under Title IV of ERISA; or notice of intent to
terminate a Material Plan shall be filed under Title IV of ERISA by any
member of the ERISA Group, any plan administrator or any combination of the
foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to
terminate, to impose liability (other than for premiums under Section 4007 of
ERISA or premium-related penalties) in respect of, or to cause a trustee to
be appointed to administer any Material Plan; or a condition shall exist by
reason of which the PBGC would be entitled to obtain a decree adjudicating
that any Material Plan must be terminated; or there shall occur a complete or
partial withdrawal from, or a default, within the meaning of Section
4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which
could cause one or more members of the ERISA Group to incur a current payment
obligation in excess of $25,000,000;
(k) a judgment or order for the payment of money in excess of
$25,000,000 (net of insurance to the extent that the insurer shall have
admitted coverage thereof) shall be rendered against the Borrower or any
Subsidiary and such judgment or order shall continue unsatisfied and unstayed
for a period of 30 days; or
(l) any person or group of persons (within the meaning of Section 13
or 14 of the Exchange Act) shall have acquired beneficial ownership (within
the meaning of Rule 13d-3 promulgated by the SEC under the Exchange Act) of
20% or more of the outstanding shares of common stock of the Borrower; or
Continuing Directors shall no longer constitute a majority of the Borrower's
board of directors;
then, and in every such event, while such event is continuing, the
Administrative Agent shall:
(i) if requested by Lenders having more than 50% in aggregate
amount of the Commitments, by notice to the Borrower terminate the
Commitments and the Swingline Commitment and they shall thereupon
terminate,
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(ii) if requested by Lenders having more than 50% of the
Aggregate LC Exposure, by notice to each LC Issuing Bank instruct such
LC Issuing Bank (x) not to extend the expiry date of any outstanding
Letter of Credit and/or (y) in the case of any Evergreen Letter of
Credit, to give notice to the beneficiary thereof terminating such
Letter of Credit as soon as is permitted by the provisions thereof,
whereupon such LC Issuing Bank shall deliver notice to that effect
promptly (or as soon thereafter as is permitted by the provisions of
the relevant Letter of Credit) to the beneficiary of each such Letter
of Credit and the Borrower; and
(iii) if requested by Lenders holding Notes evidencing more than
50% in aggregate outstanding principal amount of the Loans, by notice
to the Borrower declare the Notes and the Swingline Note (in each case
together with accrued interest thereon) to be, and the Notes and the
Swingline Note shall thereupon become, immediately due and payable
without presentment, demand, protest or other notice of any kind, all
of which are hereby waived by the Borrower;
PROVIDED that, if any Event of Default specified in clause (h) or (i) above
occurs with respect to the Borrower, then without any notice to the Borrower or
any other act by the Administrative Agent or the Lenders, the Commitments and
the Swingline Commitment shall thereupon terminate and the Notes and the
Swingline Note (in each case together with accrued interest thereon) shall
become immediately due and payable without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the Borrower.
SECTION 6.02. NOTICE OF DEFAULT. The Administrative Agent shall give
notice to the Borrower under clause (d) of Section 6.01 promptly upon being
requested to do so by the Required Lenders and shall thereupon notify all the
Lenders thereof.
SECTION 6.03. CASH COVER. The Borrower agrees that, if an Event of
Default shall have occurred and be continuing and Lenders having more than 50%
of the Aggregate LC Exposure instruct the Administrative Agent to request cash
collateral pursuant to this Section, the Borrower will, promptly after it
receives such request from the Administrative Agent, pay to the Administrative
Agent an amount in immediately available funds equal to the then aggregate
amount available for subsequent drawings under all outstanding Letters of
Credit, to be held by the Administrative Agent, under arrangements satisfactory
to it, to secure the payment of all LC Reimbursement Obligations arising from
subsequent drawings under such Letters of Credit; PROVIDED that, if any Event of
Default specified in clause (h) or (i) of Section 6.01 occurs with respect to
the Borrower, the Borrower shall pay such amount to the Administrative Agent
forthwith
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without any notice or demand or any other act by the Administrative Agent or
the Lenders.
ARTICLE 7
THE AGENTS
SECTION 7.01. APPOINTMENT AND AUTHORIZATION. Each Lender irrevocably
appoints and authorizes the Administrative Agent to take such action as agent on
its behalf and to exercise such powers under this Agreement as are delegated to
it by the terms hereof, together with all such powers as are reasonably
incidental thereto.
SECTION 7.02. AGENTS AND AFFILIATES. Each of Xxxxxx Guaranty Trust
Company of New York, Bank of America National Trust and Savings Association, The
Bank of New York and The Bank of Nova Scotia shall have the same rights and
powers under the Financing Documents as any other Lender and may exercise or
refrain from exercising the same as though it were not an Agent, and each of
Xxxxxx Guaranty Trust Company of New York, Bank of America National Trust and
Savings Association, The Bank of New York and The Bank of Nova Scotia and their
respective Affiliates may accept deposits from, lend money to, and generally
engage in any kind of business with the Borrower or any of the Borrower's
Subsidiaries or Equity Affiliates as if it were not an Agent under any of the
Financing Documents.
SECTION 7.03. ACTION BY THE ADMINISTRATIVE AGENT. The obligations of
the Administrative Agent hereunder are only those expressly set forth herein.
Without limiting the generality of the foregoing, the Administrative Agent shall
not be required to take any action with respect to any Default, except as
expressly provided in Article 6.
SECTION 7.04. CONSULTATION WITH EXPERTS. The Administrative Agent may
consult with legal counsel (who may be counsel for the Borrower), independent
public accountants and other experts selected by it with reasonable care and
shall not be liable for any action taken or omitted to be taken by it in good
faith in accordance with the advice of such counsel, accountants or experts.
SECTION 7.05. LIABILITY OF THE AGENTS. None of the Agents, their
respective Affiliates and their respective directors, officers, agents or
employees shall be liable for any action taken or not taken by such Person in
connection with any Financing Document (i) in the absence of its own gross
negligence or willful misconduct or (ii) with the consent or at the request of
the Required Lenders, PROVIDED that this clause (ii) shall not affect any rights
the Borrower may have against the Lenders that made such request. None of the
Agents, the Managing
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Agents, the Co-Agents, their respective Affiliates and their respective
directors, officers, agents or employees shall be responsible for or have any
duty to ascertain, inquire into or verify (i) any statement, warranty or
representation made in connection with any Financing Document or any
Borrowing; (ii) the performance or observance of any of the covenants or
agreements of the Borrower in any Financing Document; (iii) the satisfaction
of any condition specified in Article 3, except, in the case of the
Administrative Agent, receipt of items required to be delivered to it; or
(iv) the validity, effectiveness or genuineness of any Financing Document or
any other instrument or writing furnished in connection therewith. The
Administrative Agent shall not incur any liability by acting in reliance upon
any notice, consent, certificate, statement, or other writing (which may be a
bank wire, telex, facsimile transmission or similar writing) believed by it
to be genuine or to be signed by the proper party or parties.
SECTION 7.06. INDEMNIFICATION. The Lenders shall, ratably in accordance
with their Credit Exposures, indemnify each Agent, the Swingline Bank, their
respective Affiliates and their respective directors, officers, agents and
employees (to the extent not reimbursed by the Borrower) against any cost,
expense (including counsel fees and disbursements), claim, demand, action, loss
or liability (except such as result from the relevant indemnitee's gross
negligence or willful misconduct) that such indemnitees may suffer or incur in
connection with the Financing Documents or any action taken or omitted by the
relevant indemnitee thereunder.
SECTION 7.07. CREDIT DECISION. Each Lender acknowledges that it has,
independently and without reliance upon any Agent, Managing Agent, Co-Agent or
other Lender, and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender also acknowledges that it will, independently and without
reliance upon any Agent, Managing Agent, Co-Agent or other Lender, and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking any action
under the Financing Documents.
SECTION 7.08. SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent
may resign at any time by giving notice thereof to the Lenders and the Borrower.
Upon any such resignation, the Required Lenders shall have the right to appoint
a successor Administrative Agent. If no successor Administrative Agent shall
have been so appointed by the Required Lenders, and shall have accepted such
appointment, within 30 days after the retiring Administrative Agent gives notice
of resignation, then the retiring Administrative Agent may, on behalf of the
Lenders, appoint a successor Administrative Agent, which shall be a commercial
bank organized or licensed under the laws of the United States or of any State
thereof and having a combined capital and surplus of at least $50,000,000. Upon
the acceptance of its appointment as Administrative Agent
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hereunder by a successor Administrative Agent, such successor Administrative
Agent shall thereupon succeed to and become vested with all the rights and
duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations (excepting
liabilities previously incurred) hereunder. After any retiring Administrative
Agent's resignation hereunder as Administrative Agent, the provisions of this
Article shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Administrative Agent.
SECTION 7.09. FEES. The Borrower shall pay to the Administrative Agent
for its own account fees in the amounts and at the times previously agreed upon
between the Borrower and the Administrative Agent.
SECTION 7.10. OTHER AGENTS. The Managing Agents, Co-Agents and Agents
(other than the Administrative Agent), in their capacities as such, shall have
no duties or obligations of any kind under the Financing Documents. The use of
the term "Agent" in this Agreement is not intended to connote any fiduciary or
other implied (or express) obligations arising under agency doctrine of any
applicable law. Instead, such term is used merely as a matter of market custom,
and, in the case of the Administrative Agent, such term is intended to create or
reflect only an administrative relationship between independent contracting
parties.
ARTICLE 8
CHANGE IN CIRCUMSTANCE
SECTION 8.01. BASIS FOR DETERMINING INTEREST RATE INADEQUATE OR
UNFAIR . If on or prior to the first day of any Interest Period for any
Euro-Dollar Loan or Money Market LIBOR Loan:
(a) the Administrative Agent is advised by the Euro-Dollar Reference
Banks that deposits in dollars (in the applicable amounts) are not being
offered to the Euro-Dollar Reference Banks in the relevant market for such
Interest Period, or
(b) in the case of a Group of Euro-Dollar Loans, Lenders having 50%
or more of the aggregate principal amount of such Loans advise the
Administrative Agent that the Adjusted London Interbank Offered Rate as
determined by the Administrative Agent will not adequately and fairly reflect
the cost to such Lenders of funding such Loans for such Interest Period,
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the Administrative Agent shall forthwith give notice thereof to the Borrower and
the Lenders, whereupon until the Administrative Agent notifies the Borrower that
the circumstances giving rise to such suspension no longer exist, (i) the
obligations of the Lenders to make or maintain Euro-Dollar Loans shall be
suspended and (ii) each outstanding Euro-Dollar Loan shall be converted into a
Base Rate Loan on the last day of the then current Interest Period applicable
thereto. Unless the Borrower notifies the Administrative Agent at least two
Domestic Business Days before the date of any Euro-Dollar Borrowing or Money
Market LIBOR Borrowing for which a Notice of Borrowing has previously been given
that it elects not to borrow on such date, (i) if such Borrowing is a
Euro-Dollar Borrowing, such Borrowing shall instead be made as a Base Rate
Borrowing and (ii) if such Borrowing is a Money Market LIBOR Borrowing, the
Money Market LIBOR Loans comprising such Borrowing shall bear interest for each
day from and including the first day to but excluding the last day of the
Interest Period applicable thereto at the Base Rate for such day.
SECTION 8.02. ILLEGALITY. If, on or after the date of this Agreement,
the adoption of any applicable law, rule or regulation, or any change in any
applicable law, rule or regulation, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by any Lender (or its Euro-Dollar Lending Office) with any request or directive
(whether or not having the force of law) made on or after the date of this
Agreement by any such authority, central bank or comparable agency shall make it
unlawful or impossible for any Lender (or its Euro-Dollar Lending Office) to
make, maintain or fund its Euro-Dollar Loans and such Lender shall so notify the
Administrative Agent, the Administrative Agent shall forthwith give notice
thereof to the other Lenders and the Borrower, whereupon until such Lender
notifies the Borrower and the Administrative Agent that the circumstances giving
rise to such suspension no longer exist, the obligation of such Lender to make
Euro-Dollar Loans, or to convert outstanding Base Rate Loans into Euro-Dollar
Loans, shall be suspended. Before giving any notice to the Administrative Agent
pursuant to this Section, such Lender shall designate a different Euro-Dollar
Lending Office if such designation will avoid the need for giving such notice
and will not, in the judgment of such Lender, be otherwise disadvantageous to
such Lender. If such notice is given, each Euro-Dollar Loan of such Lender then
outstanding shall be converted to a Base Rate Loan either (a) on the last day of
the then current Interest Period applicable to such Euro-Dollar Loan if such
Lender may lawfully continue to maintain and fund such Loan to such day or (b)
immediately if such Lender shall determine that it may not lawfully continue to
maintain and fund such Loan to such day.
SECTION 8.03. INCREASED COST AND REDUCED RETURN. (a) If, on or after
(x) the date hereof, in the case of any Euro-Dollar Loan or Letter of Credit or
any obligation to make Euro-Dollar Loans or issue or participate in any Letter
of
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Credit or (y) the date of the related Money Market Quote, in the case of any
Money Market Loan, the adoption of any applicable law, rule or regulation, or
any change in any applicable law, rule or regulation, or any change in the
interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender (or its Applicable
Lending Office) or any LC Issuing Bank with any request or directive (whether
or not having the force of law) made on or after the date of this Agreement
by any such authority, central bank or comparable agency shall impose, modify
or deem applicable any reserve (including, without limitation, any such
requirement imposed by the Board of Governors of the Federal Reserve System,
but excluding with respect to any Euro-Dollar Loan any such requirement
included in an applicable Euro-Dollar Reserve Percentage), special deposit,
insurance assessment or similar requirement against assets of, deposits with
or for the account of, or credit (including Letters of Credit and
participations therein) extended by, any Lender (or its Applicable Lending
Office) or any LC Issuing Bank or shall impose on any Lender (or its
Applicable Lending Office) or any LC Issuing Bank or on the London interbank
market any other condition affecting its Euro-Dollar Loans, its Notes, its
obligation to make Euro-Dollar Loans, its Money Market Loans or its
obligations hereunder in respect of Letters of Credit, and the result of any
of the foregoing is to increase the cost to such Lender (or its Applicable
Lending Office) or such LC Issuing Bank of making or maintaining any
Euro-Dollar Loan or Money Market Loan or issuing or participating in any
Letter of Credit, or to reduce the amount of any sum received or receivable
by such Lender (or its Applicable Lending Office) or such LC Issuing Bank
under this Agreement or under its Note with respect thereto, by an amount
deemed by such Lender or LC Issuing Bank to be material, then, within 15 days
after demand by such Lender or LC Issuing Bank (with a copy to the
Administrative Agent), the Borrower shall pay to such Lender or LC Issuing
Bank such additional amount or amounts as will (subject to subsection (e) of
this Section) compensate such Lender or LC Issuing Bank for such increased
cost or reduction.
(b) If any Lender shall have determined that, after the date hereof,
the adoption of any applicable law, rule or regulation regarding capital
adequacy, or any change in any such law, rule or regulation, or any change in
the interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or any request or directive regarding capital adequacy
(whether or not having the force of law) made on or after the date of this
Agreement by any such authority, central bank or comparable agency, has or would
have the effect of reducing the rate of return on capital of such Lender (or its
Parent) as a consequence of such Lender's obligations hereunder to a level below
that which such Lender (or its Parent) could have achieved but for such
adoption, change, request or directive (taking into consideration its policies
with respect to capital adequacy) by an amount deemed by such Lender to be
material, then from time to time, within 15
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days after demand by such Lender (with a copy to the Administrative Agent),
the Borrower shall pay to such Lender such additional amount or amounts as
will (subject to subsection (d) of this Section) compensate such Lender (or
its Parent) for such reduction.
(c) Each Lender and LC Issuing Bank will promptly notify the Borrower
and the Administrative Agent of any event of which it has knowledge, occurring
after the date hereof, which will entitle such Lender or LC Issuing Bank to
compensation pursuant to this Section and will designate a different Applicable
Lending Office if such designation will avoid the need for, or reduce the amount
of, such compensation and will not, in the judgment of such Lender or LC Issuing
Bank, be otherwise disadvantageous to it. A certificate of any Lender or LC
Issuing Bank claiming compensation under this Section and setting forth in
reasonable detail the additional amount or amounts to be paid to it hereunder
and the method of calculation thereof and shall be conclusive in the absence of
manifest error. In determining such amount, such Lender or LC Issuing Bank may
use any reasonable averaging and attribution methods.
(d) No Lender shall be entitled to claim compensation pursuant to this
Section for (i) Taxes or Other Taxes (as such terms are defined in Section 8.04)
or (ii) any increased cost or reduction incurred or accrued more than 90 days
before such Lender first notifies the Borrower of the change in law or other
circumstance on which such claim is based.
SECTION 8.04. TAXES. (a) For purposes of this Section, the following
terms have the following meanings:
"Taxes" means any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings with respect to any payment by the
Borrower pursuant to any Financing Document, and all liabilities with respect
thereto, EXCLUDING (i) in the case of each Lending Party, taxes imposed on its
income, and franchise or similar taxes imposed on it, by a jurisdiction under
the laws of which it is organized or in which its principal executive office is
located or in which its Applicable Lending Office is located and (ii) in the
case of each Lender, any United States withholding tax imposed on such payments
but only to the extent that such Lender is subject to United States withholding
tax at the time such Lender first becomes a party to this Agreement.
"Other Taxes" means any present or future stamp or documentary taxes
and any other excise or property taxes, or similar charges or levies, which
arise from any payment made pursuant to any Financing Document, or from the
execution or delivery of, or otherwise with respect to, any Financing Document.
(b) Any and all payments by any Borrower to or for the account of any
Lending Party under any Financing Document shall be made without deduction
71
for any Taxes or Other Taxes; PROVIDED that, if the Borrower shall be
required by law to deduct any Taxes or Other Taxes from any such payment, (i)
the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums
payable under this Section 8.04) such Lending Party receives an amount equal
to the sum it would have received had no such deductions been made, (ii) the
Borrower shall make such deductions, (iii) the Borrower shall pay the full
amount deducted to the relevant taxation authority or other authority in
accordance with applicable law and (iv) the Borrower shall furnish to the
Administrative Agent, at its address referred to in Section 9.1, the original
or a certified copy of a receipt evidencing payment thereof.
(c) The Borrower agrees to indemnify each Lending Party for the full
amount of Taxes or Other Taxes (including, without limitation, any Taxes or
Other Taxes imposed or asserted by any jurisdiction on amounts payable under
this Section 8.04) paid by such Lending Party and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto.
This indemnification shall be paid within 15 days after such Lending Party makes
demand therefor.
(d) Each Lending Party organized under the laws of a jurisdiction
outside the United States, on or prior to its execution and delivery of this
Agreement in the case of each Lending Party listed on the signature pages hereof
and on or prior to the date on which it becomes a Lending Party in the case of
each other Lending Party, and from time to time thereafter if requested in
writing by the Borrower (but only so long as such Lending Party remains lawfully
able to do so), shall provide the Borrower and the Administrative Agent with
Internal Revenue Service form 1001 or 4224, as appropriate, or any successor
form prescribed by the Internal Revenue Service, certifying that such Lending
Party is entitled to benefits under an income tax treaty to which the United
States is a party which exempts such Lending Party from United States
withholding tax or reduces the rate of withholding tax on payments of interest
for the account of such Lending Party or certifying that the income receivable
pursuant to the Financing Documents is effectively connected with the conduct of
a trade or business in the United States.
(e) For any period with respect to which a Lending Party has failed to
provide the Borrower and the Administrative Agent with the appropriate form
pursuant to Section 8.04(d) (unless such failure is due to a change in treaty,
law or regulation occurring after the date on which such form originally was
required to be provided), such Lending Party shall not be entitled to
indemnification under Section 8.04(b) or (c) with respect to Taxes imposed by
the United States; PROVIDED that if a Lending Party, which is otherwise exempt
from or subject to a reduced rate of withholding tax, becomes subject to Taxes
because of its failure to deliver a form required hereunder, the Borrower shall
take such steps as such
72
Lending Party shall reasonably request to assist such Lending Party to
recover such Taxes.
(f) If the Borrower is required to pay additional amounts to or for
the account of any Lender pursuant to this Section 8.04, such Lender will change
the jurisdiction of its Applicable Lending Office if, in the judgment of such
Lender, such change (i) will eliminate or reduce any such additional payment
which may thereafter accrue and (ii) is not otherwise disadvantageous to such
Lender.
SECTION 8.05. BASE RATE LOANS SUBSTITUTED FOR AFFECTED EURO-DOLLAR
LOANS. If (i) the obligation of any Lender to make Euro-Dollar Loans has been
suspended pursuant to Section 8.02 or (ii) any Lender has demanded compensation
under Section 8.03 or 8.04 with respect to its Euro-Dollar Loans and the
Borrower shall, by at least five Euro-Dollar Business Days' prior notice to such
Lender through the Administrative Agent, have elected that the provisions of
this Section shall apply to such Lender, then, unless and until such Lender
notifies the Borrower that the circumstances giving rise to such suspension or
demand for compensation no longer exist, all Loans which would otherwise be made
by such Lender as (or continued as or converted into) Euro-Dollar Loans shall
instead be made as (or converted into) Base Rate Loans (on which interest and
principal shall be payable contemporaneously with the related Euro-Dollar Loans
of the other Lenders). If such Lender notifies the Borrower that the
circumstances giving rise to such notice no longer apply, the principal amount
of each such Base Rate Loan shall be converted into a Euro-Dollar Loan on the
first day of the next succeeding Interest Period applicable to the related
Euro-Dollar Loans of the other Lenders.
ARTICLE 9
MISCELLANEOUS
SECTION 9.01. NOTICES. All notices, requests and other communications
to any party hereunder shall be in writing (including bank wire, telex,
facsimile transmission or similar writing) and shall be given to such party:
(x) in the case of the Borrower, the Swingline Bank or the
Administrative Agent, at its address, facsimile number or telex number
set forth on the signature pages hereof,
(y) in the case of any Lender or Agent (other than the
Administrative Agent), at its address, facsimile number or telex
number set forth in its Administrative Questionnaire or
73
(z) in the case of any party, such other address, facsimile
number or telex number as such party may hereafter specify for the
purpose by notice to the Administrative Agent and the Borrower.
Each such notice, request or other communication shall be effective (i) if given
by telex, when such telex is transmitted to the telex number referred to in this
Section and the appropriate answerback is received, (ii) if given by facsimile
transmission, when transmitted to the facsimile number referred to in this
Section and confirmation of receipt is received, (iii) if given by mail, 72
hours after such communication is deposited in the mails with first class
postage prepaid, addressed as aforesaid or (iv) if given by any other means,
when delivered at the address referred to in this Section; PROVIDED that notices
to the Administrative Agent or an LC Issuing Bank under Article 2 or Article 8
shall not be effective until received.
SECTION 9.02. NO WAIVERS. No failure or delay by any Lending Party in
exercising any right, power or privilege under any Financing Document shall
operate as a waiver thereof nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. The rights and remedies herein provided shall be
cumulative and not exclusive of any rights or remedies provided by law.
SECTION 9.03. EXPENSES; INDEMNIFICATION. (a) The Borrower shall pay (i)
all out-of-pocket expenses of the Administrative Agent, including reasonable
fees and disbursements of special counsel for the Administrative Agent, in
connection with the preparation and administration of the Financing Documents,
any waiver or consent thereunder or any amendment thereof or any Default or
alleged Default thereunder, (ii) all out-of-pocket expenses of the Arranger and
each Co-Arranger (but not any fees and disbursements of its counsel) in
connection with the preparation of the Financing Documents, any waiver or
consent thereunder or any amendment thereof and (iii) if an Event of Default
occurs, all out-of-pocket expenses incurred by each Lending Party, including
(without duplication) the fees and disbursements of outside counsel and the
allocated cost of inside counsel, in connection with such Event of Default and
any collection, bankruptcy, insolvency, workout or other enforcement proceedings
resulting therefrom.
(b) The Borrower shall indemnify each Lending Party, the Arranger, the
Co-Arrangers and their respective Affiliates and the respective directors,
directors, officers, agents and employees of the foregoing (each an
"Indemnitee") and hold each Indemnitee harmless from and against any and all
liabilities, losses, damages, costs and expenses of any kind, including, without
limitation, the reasonable fees and disbursements of counsel, which may be
incurred by such Indemnitee in connection with any investigative, administrative
or judicial proceeding (whether or not such Indemnitee shall be designated a
party thereto) brought or threatened
74
relating to or arising out of any Financing Document or any actual or
proposed use by the Borrower or any of its Subsidiaries or Equity Affiliates
of any Letters of Credit or any proceeds of the Loans; PROVIDED that no
Indemnitee shall have the right to be indemnified hereunder for such
Indemnitee's own gross negligence or willful misconduct as determined by a
court of competent jurisdiction.
SECTION 9.04. SHARING OF SET-OFFS. (a) Each Lender agrees that if it
shall, by exercising any right of set-off or counterclaim or otherwise, receive
payment of a proportion of the aggregate amount of principal and interest due
with respect to the Loans and participations in LC Reimbursement Obligations
held by it which is greater than the proportion received by any other Lender in
respect of the aggregate amount of principal and interest due with respect to
the Loans and participations in LC Reimbursement Obligations held by such other
Lender, the Lender receiving such proportionately greater payment shall purchase
such participations in the Loans and participations in LC Reimbursement
Obligations held by the other Lenders, and such other adjustments shall be made,
as may be required so that all such payments of principal and interest with
respect to the Loans and participations in LC Reimbursement Obligations held by
the Lenders shall be shared by the Lenders pro rata.
(b) Nothing in this Section shall impair the right of any Lender to
exercise any right of set-off or counterclaim it may have and to apply the
amount subject to such exercise to the payment of indebtedness of the Borrower
other than its indebtedness in respect of the Loans and the LC Reimbursement
Obligations.
(c) The Borrower agrees, to the fullest extent it may effectively do
so under applicable law, that any holder of a participation in a Note or LC
Reimbursement Obligation, whether or not acquired pursuant to the foregoing
arrangements, may exercise rights of set-off or counterclaim and other rights
with respect to such participation as fully as if such holder of a participation
were a direct creditor of the Borrower in the amount of such participation.
SECTION 9.05. AMENDMENTS AND WAIVERS. Any provision of this Agreement
or the Notes may be amended or waived if, but only if, such amendment or waiver
is in writing and is signed by the Borrower and the Required Lenders (and, if
the rights or duties of any Agent or LC Issuing Bank are affected thereby, by
such Agent or LC Issuing Bank, as the case may be); PROVIDED that no such
amendment or waiver shall:
(i) unless signed by all the Lenders, increase or decrease any
Commitment (except for a ratable decrease in all the Commitments),
postpone the date fixed for the termination of any Commitment or,
except as expressly provided in Section 2.17, extend the expiry date
of any Letter of Credit, reduce the principal of or rate of interest
on any Syndicated Loan or the amount of any LC Reimbursement
Obligation or any interest
75
thereon, or postpone the Termination Date or any date fixed for any
payment of interest on any Syndicated Loan or of any LC
Reimbursement Obligation or any interest thereon;
(ii) unless signed by the Swingline Bank, increase the
Swingline Commitment, postpone the date fixed for the termination of
the Swingline Commitment or otherwise affect any of its rights or
obligations hereunder;
(iii) unless signed by all the Lenders entitled to receive such
fees, reduce or postpone the date fixed for any scheduled payment of
fees hereunder;
(iv) unless signed by all the Lenders, change any provision of
this Section or any other provision of this Agreement specifying which
Lenders may take any action that the Lenders or any of them are
entitled to take hereunder; or
(v) unless signed by each Lender affected thereby, waive any
condition set forth in clause (b), (c), (q) or (r) of Section 3.01.
SECTION 9.06. SUCCESSORS AND ASSIGNS. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns, except that the Borrower
may not assign or otherwise transfer any of its rights under the Financing
Documents without the prior written consent of all the Lenders, the LC Issuing
Banks and the Swingline Bank.
(b) Any Lender may at any time grant to one or more banks or other
institutions (each a "Participant") participating interests in its Commitment or
any or all of its Loans and participations in the Letters of Credit. If any
Lender grants such a participating interest to a Participant, whether or not
upon notice to the Borrower and the Administrative Agent, such Lender shall
remain responsible for the performance of its obligations hereunder, and the
Borrower, the LC Issuing Banks and the Administrative Agent shall continue to
deal solely and directly with such Lender in connection with such Lender's
rights and obligations under the Financing Documents. Any agreement pursuant to
which any Lender may grant such a participating interest shall provide that such
Lender shall retain the sole right and responsibility to enforce the obligations
of the Borrower and the LC Issuing Banks under the Financing Documents
including, without limitation, the right to approve any amendment, modification
or waiver of any provision thereof; provided that such participation agreement
may provide that such Lender will not agree to any modification, amendment or
waiver of this Agreement described in clause (i) or (iii) of Section 9.05
without the consent of the Participant. An assignment or other transfer which is
not permitted by subsection (c) or (d) below
76
shall be given effect for purposes of this Agreement only to the extent of a
participating interest granted in accordance with this subsection (b).
(c) Any Lender may at any time after the Closing Date assign to one or
more banks or other institutions (each an "Assignee") all, or a pro rata part of
all, of its rights and obligations under the Financing Documents, and such
Assignee shall assume such rights and obligations, pursuant to an Assignment and
Assumption Agreement substantially in the form of Exhibit J hereto signed by
such Assignee and such transferor Lender, with (and subject to) the subscribed
consent of the Borrower (which shall not be unreasonably withheld), the LC
Issuing Banks and the Swingline Bank, and with notice to the Administrative
Agent; PROVIDED that:
(A) if such Assignee is an Affiliate of such transferor Lender or was
a Lender immediately prior to such assignment, no such consent shall
be required;
(B) such assignment may, but need not, include rights of the
transferor Lender in respect of outstanding Money Market Loans;
(C) if such Assignee is not an Affiliate of the transferor Lender and
was not a Lender immediately prior to such assignment, then, unless
the Borrower otherwise agrees, the portion of the transferor Lender's
Commitment assigned to such Assignee shall be at least $20,000,000;
and
(D) unless the Borrower otherwise agrees, the transferor Lender and/or
its Affiliates shall retain, in the aggregate, a Commitment at least
equal to the greater of (x) $20,000,000 or (y) 50% of the Commitment
assumed by the transferor Lender when it first became a Lender
hereunder;
PROVIDED that, if the aggregate amount of the Commitments is reduced pursuant to
Section 2.12 or otherwise, the minimum amounts specified in clause (C) and
subclauses (x) and (y) of clause (D) above shall be correspondingly reduced.
When (i) such Assignment and Assumption Agreement has been signed and delivered,
(ii) notice thereof has been given to the Administrative Agent and (iii) such
Assignee has paid to such transferor Lender an amount equal to the purchase
price agreed between such transferor Lender and such Assignee, such Assignee
shall be a Lender party to this Agreement and shall have all the rights and
obligations of a Lender to the extent set forth in such Assignment and
Assumption Agreement, and the transferor Lender shall be released from its
obligations hereunder to a corresponding extent, and no further consent or
action by any party shall be required. Upon the consummation of any assignment
pursuant to this subsection (c), the transferor Lender, the Administrative Agent
and the Borrower shall make appropriate arrangements so that, if required, a new
Note is issued to the Assignee. In connection with any such assignment, either
the transferor
77
Lender or the Assignee shall pay to the Administrative Agent an
administrative fee for processing such assignment in the amount of $3,000. If
the Assignee is not incorporated under the laws of the United States or a
State thereof, it shall deliver to the Borrower and the Administrative Agent
certification as to exemption from deduction or withholding of any United
States federal income taxes in accordance with Section 8.04(d).
(d) Any Lender may at any time assign all or any portion of its rights
under the Financing Documents to a Federal Reserve Bank. No such assignment
shall release the transferor Lender from its obligations thereunder.
(e) No Assignee, Participant or other transferee of any Lender's
rights shall be entitled to receive any greater payment under or by reason by
Section 8.03 or 8.04 than such Lender would have been entitled to receive with
respect to the rights transferred, unless such transfer is made with the
Borrower's prior written consent or by reason of the provisions of Section 8.02,
8.03 or 8.04 requiring such Lender to designate a different Applicable Lending
Office under certain circumstances or, in the case of an Assignee, at a time
when the circumstances giving rise to such greater payment did not exist.
Subject to the foregoing limitation, any Lender claiming compensation or
indemnification pursuant to Section 8.03 or 8.04 may include in its claim
similar compensation or indemnification for any Participant having a
participating interest in such Lender's rights.
SECTION 9.07. NO RELIANCE ON MARGIN STOCK AS COLLATERAL. Each of the
Lenders represents to the Administrative Agent and each of the other Lenders
that it in good faith is not relying upon any "margin stock" (as defined in
Regulation U) as collateral in the extension or maintenance of the credit
provided for in this Agreement.
SECTION 9.08. CONFIDENTIALITY. Each Lending Party agrees to keep any
information delivered or made available by the Borrower to it confidential from
anyone other than persons employed or retained by such Lending Party who are, or
are expected to be, engaged in evaluating, approving, structuring or
administering the credit facility provided herein; PROVIDED that nothing herein
shall prevent any Lending Party from disclosing such information (a) to any
other Lending Party, (b) to any other Person if reasonably incidental to the
administration of the credit facility provided herein, (c) upon the order of any
court or administrative agency, (d) upon the request or demand of any regulatory
agency or authority, (e) which had been publicly disclosed other than as a
result of a disclosure by any Lending Party prohibited by this Agreement, (f) in
connection with any litigation to which such Lending Party or any of its
Affiliates may be a party, (g) to the extent necessary in connection with the
exercise of any remedy hereunder, (h) to such Lending Party's legal counsel and
independent auditors, (i) to any Affiliate of such Lending Party, solely in
connection with this Agreement
78
or any other transaction or proposed transaction between such Lending Party
and/or its Affiliates and the Borrower and/or its Affiliates, and (j) subject
to provisions substantially similar to those contained in this Section, to
any actual or proposed Participant or Assignee.
SECTION 9.09. WAIVER OF JURY TRIAL. THE BORROWER AND EACH LENDING PARTY
HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THE FINANCING DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED THEREBY.
SECTION 9.10. GOVERNING LAW; SUBMISSION TO JURISDICTION . EACH OF THE
FINANCING DOCUMENTS SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK. THE BORROWER HEREBY SUBMITS TO THE NONEXCLUSIVE
JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK AND OF ANY NEW YORK STATE COURT SITTING IN NEW YORK CITY FOR PURPOSES
OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THE FINANCING DOCUMENTS
OR THE TRANSACTIONS CONTEMPLATED THEREBY. THE BORROWER IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT
AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT
IN AN INCONVENIENT FORUM.
SECTION 9.11. COUNTERPARTS; INTEGRATION. This Agreement may be signed
in any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement constitutes the entire agreement and understanding among the
parties hereto and supersedes any and all prior agreements and understandings,
oral or written, relating to the subject matter hereof.
79
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
XXXXX HEALTHCARE CORPORATION
By:
-----------------------------------
Title:
Xxxxx Healthcare Corporation
0000 Xxxxx Xxxxxx
Xxxxx Xxxxxxx, XX 00000
Attention: Treasurer
(with a copy to General
Counsel)
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, as a Lender and as the
Swingline Bank
By:
-----------------------------------
Title:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as a Lender and as Syndication Agent
By:
-----------------------------------
Title:
00
XXX XXXX XX XXX XXXX, as a Lender and
as a Documentation Agent
By:
-----------------------------------
Title:
THE BANK OF NOVA SCOTIA, as a Lender
and as a Documentation Agent
By:
-----------------------------------
Title:
THE INDUSTRIAL BANK OF JAPAN,
LIMITED, LOS ANGELES AGENCY, as a
Lender and as a Managing Agent
By:
-----------------------------------
Title:
ABN AMRO BANK N.V.
LOS ANGELES INTERNATIONAL
BRANCH, as a Lender and as a
Managing Agent
By:
-----------------------------------
Title:
By:
-----------------------------------
Title:
81
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY, as a Lender and as a
Managing Agent
By:
-----------------------------------
Title:
THE CHASE MANHATTAN BANK, as a
Lender and as a Managing Agent
By:
-----------------------------------
Title:
DEUTSCHE BANK NEW YORK AND/OR
CAYMAN ISLANDS BRANCHES, as a
Lender and as a Managing Agent
By:
-----------------------------------
Title:
By:
-----------------------------------
Title:
FLEET NATIONAL BANK, as a Lender and as
a Managing Agent
By:
-----------------------------------
Title:
82
THE LONG-TERM CREDIT BANK OF
JAPAN, LTD., as a Lender and as a
Managing Agent
By:
-----------------------------------
Title:
MELLON BANK, N.A., as a Lender and as a
Managing Agent
By:
-----------------------------------
Title:
NATIONSBANK OF TEXAS, N.A., as a Lender
and as a Managing Agent
By:
-----------------------------------
Title:
PNC BANK, N.A., as a Lender and as a
Managing Agent
By:
-----------------------------------
Title:
THE SANWA BANK LIMITED, DALLAS
AGENCY, as a Lender and as a
Managing Agent
By:
-----------------------------------
Title:
83
SOCIETE GENERALE, as a Lender and as a
Managing Agent
By:
-----------------------------------
Title:
THE SUMITOMO BANK, LIMITED, as a
Lender and as a Managing Agent
By:
-----------------------------------
Title:
TORONTO DOMINION (TEXAS), INC., as a
Lender and as a Managing Agent
By:
-----------------------------------
Title:
WACHOVIA BANK OF GEORGIA, N.A., as a
Lender and as a Managing Agent
By:
-----------------------------------
Title:
COMMERZBANK AG
LOS ANGELES BRANCH, as a Lender and
as a Co-Agent
By:
-----------------------------------
Title:
By:
-----------------------------------
Title:
84
CREDIT LYONNAIS NEW YORK BRANCH,
as a Lender and as a Co-Agent
By:
-----------------------------------
Title:
THE DAI-ICHI KANGYO BANK, LTD.
LOS ANGELES AGENCY, as a Lender and
as a Co-Agent
By:
-----------------------------------
Title:
THE FUJI BANK, LIMITED, as a Lender and
as a Co-Agent
By:
-----------------------------------
Title:
KREDIETBANK N.V., as a Lender and as a
Co-Agent
By:
-----------------------------------
Title:
By:
-----------------------------------
Title:
85
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A. "RABOBANK
NEDERLAND" NEW YORK BRANCH, as a
Lender and as a Co-Agent
By:
-----------------------------------
Title:
By:
-----------------------------------
Title:
BANK OF MONTREAL, as a Lender
By:
-----------------------------------
Title:
BANQUE PARIBAS, as a Lender
By:
-----------------------------------
Title:
By:
-----------------------------------
Title:
CORESTATES BANK, N.A., as a Lender
By:
-----------------------------------
Title:
86
CREDIT SUISSE FIRST BOSTON, as a Lender
By:
-----------------------------------
Title:
By:
-----------------------------------
Title:
THE MITSUBISHI TRUST AND BANKING
CORPORATION, as a Lender
By:
-----------------------------------
Title:
87
SUNTRUST BANK, CENTRAL FLORIDA NATIONAL
ASSOCIATION, as a Lender
By:
______________________________
Title:
STATE OF GEORGIA
COUNTY OF XXXXXX
On the ___ day of _________, 1997 personally appeared ____________, as
the ________ PRESIDENT of SunTrust Bank, Central Florida, National Association,
and before me executed the attached CREDIT AGREEMENT dated as of January 30,
1997 between Xxxxx Healthcare Corporation and SunTrust Bank, Central Florida,
National Association, as Lender.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal, in
the state and county aforesaid.
_________________________________________________________
Signature of Notary Public, State of_____________________
_________________________________________________________
(Print, Type or Stamp Commissioned Name of Notary Public)
Personally known ______; OR Produced identification _____
Type of identification produced: ________________________
_________________________________________________________
(Notary Seal)
88
THE SAKURA BANK LIMITED LOS
ANGELES AGENCY, as a Lender
By:
______________________________
Title:
THE ROYAL BANK OF SCOTLAND plc, as a
Lender
By:
______________________________
Title:
HIBERNIA NATIONAL BANK, as a Lender
By:
______________________________
Title:
THE SUMITOMO TRUST & BANKING
COMPANY LTD. NEW YORK BRANCH,
as a Lender
By:
______________________________
Title:
BANCA COMMERCIALE ITALIANA LOS
ANGELES FOREIGN BRANCH, as a Lender
By:
______________________________
Title:
By:
______________________________
Title:
00
XXXXXX XXXXXXXXX XX XXXXXXXX
EXTERIEUR, as a Lender
By:
______________________________
Title:
By:
______________________________
Title:
BHF-BANK AKTIENGESELLSCHAFT, as a
Lender
By:
______________________________
Title:
By:
______________________________
Title:
MICHIGAN NATIONAL BANK, as a Lender
By:
______________________________
Title:
THE NIPPON CREDIT BANK, LTD., LOS
ANGELES AGENCY, as a
Lender
By:
______________________________
Title:
90
THE TOKAI BANK LIMITED, LOS ANGELES
AGENCY, as a Lender
By:
______________________________
Title:
UNITED STATES NATIONAL BANK OF
OREGON, as a Lender
By:
______________________________
Title:
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, as Administrative Agent
By:
______________________________
Title:
c/o X.X. Xxxxxx Services Inc.
000 Xxxxxxx Xxxxxxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxx
Facsimile number: 000-000-0000
91
COMMITMENT SCHEDULE
LENDER COMMITMENT
------ ----------
Xxxxxx Guaranty Trust Company of New York.......................................$ 125,000,000
Bank of America National Trust and Savings Association..........................$ 125,000,000
The Bank of New York............................................................$ 125,000,000
The Bank of Nova Scotia.........................................................$ 125,000,000
The Industrial Bank of Japan, Limited, Los Angeles Agency.......................$ 100,000,000
ABN AMRO Bank N.V. Los Angeles International Branch.............................$ 85,000,000
Bank of Tokyo-Mitsubishi Trust Company..........................................$ 85,000,000
The Chase Manhattan Bank........................................................$ 85,000,000
Deutsche Bank New York and/or Cayman Islands Branches...........................$ 85,000,000
Fleet National Bank.............................................................$ 85,000,000
The Long-Term Credit Bank of Japan, Ltd.........................................$ 85,000,000
Mellon Bank, N.A................................................................$ 85,000,000
NationsBank of Texas, N.A.......................................................$ 85,000,000
PNC Bank, N.A...................................................................$ 85,000,000
The Sanwa Bank Limited, Dallas Agency...........................................$ 85,000,000
Societe Generale................................................................$ 85,000,000
The Sumitomo Bank, Limited......................................................$ 85,000,000
Toronto Dominion (Texas), Inc...................................................$ 85,000,000
Wachovia Bank of Georgia, N.A...................................................$ 85,000,000
Commerzbank AG Los Angeles Branch...............................................$ 65,000,000
Credit Lyonnais New York Branch.................................................$ 65,000,000
The Dai-Ichi Kangyo Bank, Ltd. Los Angeles Agency...............................$ 65,000,000
The Fuji Bank, Limited..........................................................$ 65,000,000
Kredietbank N.V.................................................................$ 65,000,000
Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A. "Rabobank Nederland"
New York Branch..............................................................$ 65,000,000
Bank of Montreal................................................................$ 50,000,000
Banque Paribas..................................................................$ 50,000,000
CoreStates Bank, N.A............................................................$ 50,000,000
Credit Suisse First Boston......................................................$ 50,000,000
The Mitsubishi Trust and Banking Corporation....................................$ 50,000,000
The Sakura Bank Limited Los Angeles Agency......................................$ 50,000,000
SunTrust Bank, Central Florida National Association.............................$ 50,000,000
The Royal Bank of Scotland plc..................................................$ 35,000,000
Hibernia National Bank..........................................................$ 30,000,000
The Sumitomo Trust & Banking Company Ltd. New York Branch.......................$ 30,000,000
Banca Commerciale Italiana Los Angeles Foreign Branch...........................$ 25,000,000
Banque Francaise du Commerce Exterieur..........................................$ 25,000,000
BHF-Bank Aktiengesellschaft.....................................................$ 25,000,000
Michigan National Bank..........................................................$ 25,000,000
The Nippon Credit Bank, Ltd., Los Angeles Agency................................$ 25,000,000
LENDER COMMITMENT
------ ----------
The Tokai Bank, Limited, Los Angeles Agency.....................................$ 25,000,000
United States National Bank of Oregon...........................................$ 25,000,000
==========
TOTAL.....................................................................$ 2,800,000,000
4.05-1
SCHEDULE 4.05
Pending Litigation
The Borrower hereby incorporates by reference the disclosure concerning the
legal proceedings referred to in its annual report on Form 10-K for its fiscal
year ended May 31, 1996 and its quarterly report on Form 10-Q for its fiscal
quarter ended November 30, 1996. The Borrower also hereby incorporates by
reference the disclosure concerning the legal proceedings referred to in OrNda's
annual report on Form 10-K for its fiscal year ended August 31, 1996, and
OrNda's quarterly report on Form 10-Q for its fiscal quarter ended November 30,
1996.
4.05-2
SCHEDULE 5.06
PERMITTED ASSET SALES
PHOENIX/TUCSON AREA:
Community Hospital Medical Center
Mesa General Hospital Medical Center
St. Luke's Medical Center
Tempe St. Luke's Hospital
Tucson General Hospital
TEXAS:
Bayou City (Houston - 2 locations)
Garland Community Hospital (Dallas)
Odessa Regional Medical Center (Odessa)
Southwest General Hospital (San Antonio)
Trinity Valley Medical Center (Palestine)
Mid-Jefferson Hospital (Nederland)
Park Place Hospital (Port Xxxxxx)
TAMPA AREA:
Memorial Hospital of Tampa
Palms of Pasadena Hospital
Town and Country Hospital
OTHERS:
Columbia Regional Hospital (Missouri)
Xxxxxx Union Hospital (Indiana)
Lake Xxxx Hospital (Nevada)
Minden Hospital (Louisiana)
Winona Memorial Hospital (Indiana)
5.06-1
EXHIBIT A
NOTE
New York, New York
, 199
For value received, XXXXX HEALTHCARE CORPORATION, a Nevada
corporation (the "Borrower"), promises to pay to the order of
________________ (the "Lender"), for the account of its Applicable Lending
Office, the unpaid principal amount of each Loan made by the Lender to the
Borrower pursuant to the Credit Agreement referred to below on the maturity
date provided for in the Credit Agreement. The Borrower promises to pay
interest on the unpaid principal amount of each such Loan on the dates and at
the rate or rates provided for in the Credit Agreement. All such payments of
principal and interest shall be made in lawful money of the United States in
Federal or other immediately available funds at the office of Xxxxxx Guaranty
Trust Company of New York, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx.
All Loans made by the Lender, the respective dates and amounts
thereof and all payments of the principal with respect thereto shall be
recorded by the Lender and, if the Lender so elects in connection with any
transfer or enforcement hereof, appropriate notations to evidence the
foregoing information with respect to each such Loan then outstanding may be
endorsed by the Lender on the schedule attached hereto, or on a continuation
of such schedule attached to and made a part hereof; provided that the
failure of the Lender to make any such recordation or endorsement shall not
affect the obligations of the Borrower hereunder or under any other Financing
Document.
This note is one of the Notes referred to in the Credit Agreement
dated as of January 30, 1997 among the Borrower, the Lenders, Managing
Agents, Co-Agents and Swingline Bank party thereto, The Bank of New York and
The Bank of Nova Scotia, as Documentation Agents, Bank of America National
Trust and Savings Association, as Syndication Agent, and Xxxxxx Guaranty
Trust Company of New York, as Administrative Agent (as the same may be
amended from time to time, the "Credit Agreement"). Terms defined in the
Credit Agreement are used herein with
A-1
the same meanings. Reference is made to the Credit Agreement for provisions
for the prepayment hereof and the acceleration of the maturity hereof.
XXXXX HEALTHCARE CORPORATION
By
________________________________
Title:
A-2
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
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AMOUNT OF
AMOUNT OF TYPE OF PRINCIPAL NOTATION MADE
DATE LOAN LOAN REPAID BY
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A-3
EXHIBIT B
FORM OF MONEY MARKET QUOTE REQUEST
[Date]
To: Xxxxxx Guaranty Trust Company of New York
(the "Administrative Agent")
From: Xxxxx Healthcare Corporation
Re: Credit Agreement dated as of January 30, 1997 (the "Credit Agreement")
among the Borrower and the Lenders, Managing Agents, Co-Agents,
Swingline Bank and Agents party thereto
We hereby give notice pursuant to Section 2.03 of the Credit Agreement
that we request Money Market Quotes for the following proposed Money Market
Borrowing(s):
Date of Borrowing: __________________
PRINCIPAL AMOUNT(2) INTEREST PERIOD(3)
------------------- ------------------
$
Such Money Market Quotes should offer a Money Market [Margin]
[Absolute Rate]. [The applicable base rate is the London Interbank Offered
Rate.]
Terms used herein have the meanings assigned to them in the Credit
Agreement.
Xxxxx Healthcare Corporation
By
___________________________________
Title:
________________________
(2) Amount must be $10,000,000 or a larger multiple of $1,000,000.
(3) Not less than one month (LIBOR Auction) or not less than 7 days
(Absolute Rate Auction), subject to the provisions of the definition of
Interest Period.
B-1
EXHIBIT C
FORM OF INVITATION FOR MONEY MARKET QUOTES
To: [Name of Lender]
Re: Invitation for Money Market Quotes to Xxxxx Healthcare Corporation (the
"Borrower")
Pursuant to Section 2.03 of the Credit Agreement dated as of January
30, 1997 among the Borrower, the Lenders, Managing Agents, Co-Agents, Swingline
Bank and Agents party thereto, and the undersigned, as Administrative Agent, we
are pleased on behalf of the Borrower to invite you to submit Money Market
Quotes to the Borrower for the following proposed Money Market Borrowing(s):
Date of Borrowing: __________________
PRINCIPAL AMOUNT INTEREST PERIOD
---------------- ---------------
$
Such Money Market Quotes should offer a Money Market [Margin]
[Absolute Rate]. [The applicable base rate is the London Interbank Offered
Rate.]
Please respond to this invitation by no later than [2:00 P.M.] [10:00
A.M.] (New York City time) on [date].
XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK
By
___________________________________
Authorized Officer
C-1
EXHIBIT D
FORM OF MONEY MARKET QUOTE
To: Xxxxxx Guaranty Trust Company of New York, as Administrative Agent
Re: Money Market Quote to Xxxxx Healthcare Corporation (the "Borrower")
In response to your invitation on behalf of the Borrower dated
_____________, 19__, we hereby make the following Money Market Quote on the
following terms:
1. Quoting Lender: ________________________________
2. Person to contact at Quoting Lender: ______________________
3. Date of Borrowing: ____________________(4)
4. We hereby offer to make Money Market Loan(s) in the following
principal amounts, for the following Interest Periods and at the following
rates:
Principal Amount(5) Interest Period(6) Money Market Margin(7) Absolute Rate(8)
---------------------------------------------------------------------------------------------
$
$
[Provided, that the aggregate principal amount of Money Market Loans
for which the above offers may be accepted shall not exceed
$____________.]
_____________________________
(4) As specified in the related Invitation.
(5) Principal amount bid for each Interest Period may not exceed
principal amount requested. Specify aggregate limitation if the sum of the
individual offers exceeds the amount the bank is willing to lend. Bids must
be made for $10,000,000 or a larger multiple of $1,000,000.
(6) Not less than one month or not less than 7 days, as specified in
the related Invitation. No more than five bids are permitted for each
Interest Period.
(7) Margin over or under the London Interbank Offered Rate
determined for the applicable Interest Period. Specify percentage (to the
nearest 1/10,000 of 1%) and specify whether "PLUS" or "MINUS".
(8) Specify rate of interest per annum (to the nearest 1/10,000th of
1%).
D-1
We understand and agree that the offer(s) set forth above, subject to
the satisfaction of the applicable conditions set forth in the Credit Agreement
dated as of January 30, 1997 among the Borrower, the Lenders, Managing Agents,
Co-Agents, Swingline Bank and Agents party thereto and yourselves, as
Administrative Agent, irrevocably obligates us to make the Money Market Loan(s)
for which any offer(s) are accepted, in whole or in part.
Very truly yours,
[NAME OF LENDER]
Dated: By
_______________________________
Authorized Officer
D-2
EXHIBIT E
SWINGLINE NOTE
New York, New York
, 199
For value received, XXXXX HEALTHCARE CORPORATION, a Nevada corporation
(the "Borrower"), promises to pay to the order of XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK (the "Swingline Bank") the unpaid principal amount of each Swingline
Loan made by the Swingline Bank to the Borrower pursuant to the Credit Agreement
referred to below on the maturity date provided for in the Credit Agreement. The
Borrower promises to pay interest on the unpaid principal amount of each such
Swingline Loan on the dates and at the rate or rates provided for in the Credit
Agreement. All such payments of principal and interest shall be made in lawful
money of the United States in Federal or other immediately available funds at
the office of Xxxxxx Guaranty Trust Company of New York, 00 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx.
All Swingline Loans made by the Swingline Bank and all repayments of
the principal thereof shall be recorded by the Swingline Bank and, if the
Swingline Bank so elects in connection with any transfer or enforcement hereof,
appropriate notations to evidence the foregoing information with respect to each
such Swingline Loan then outstanding may be endorsed by the Swingline Bank on
the schedule attached hereto, or on a continuation of such schedule attached to
and made a part hereof; provided that the failure of the Swingline Bank to make
any such recordation or endorsement shall not affect the obligations of the
Borrower hereunder or under any other Financing Document.
This note is the Swingline Note referred to in the Credit Agreement
dated as of January 30, 1997 among the Borrower, the Lenders, Managing Agents,
Co-Agents and Swingline Bank party thereto, The Bank of New York and The Bank of
Nova Scotia, as Documentation Agents, Bank of America National Trust and Savings
Association, as Syndication Agent, and Xxxxxx Guaranty Trust Company of New
York, as Administrative Agent (as the same may be amended from time to time, the
"Credit Agreement"). Terms defined in the Credit Agreement are used herein with
E-1
the same meanings. Reference is made to the Credit Agreement for provisions for
the prepayment hereof and the acceleration of the maturity hereof.
XXXXX HEALTHCARE CORPORATION
By
___________________________________
Title:
E-2
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
------------------------------------------------------------------------------------------------------
AMOUNT OF
AMOUNT OF PRINCIPAL
DATE LOAN REPAID NOTATION MADE BY
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E-3
EXHIBIT F
SENIOR
OFFICER'S
CLOSING CERTIFICATE
I, [name], [title] of Xxxxx Healthcare Corporation, a Nevada
corporation (the "Borrower"), in connection with (i) the closing held today (the
"Closing") under the $2,800,000,000 Credit Agreement dated as of January 30,
1997 (the "Borrower's Credit Agreement") among the Borrower and the Lenders,
Managing Agents, Co-Agents, Swingline Bank and Agents party thereto, and (ii)
the borrowing today (the "First Borrowing") by the Borrower thereunder, DO
HEREBY CERTIFY that:
1. The representations and warranties made by the Borrower in the
Borrower's Credit Agreement are true on and as of the date hereof.
2. Immediately before and after the First Borrowing under the
Borrower's Credit Agreement, no Default will have occurred and be continuing.
3. The Borrower has made available, or has irrevocably instructed the
relevant banks to make available from the proceeds of the New Public Debt and/or
the First Borrowing, to Xxxxxx Guaranty Trust Company of New York, as Agent
under the Borrower's Existing Credit Agreement, funds sufficient to pay in full
the principal of all loans outstanding under the Borrower's Existing Credit
Agreement on the date hereof and all interest and fees accrued thereunder to but
excluding the date hereof.
4. (A) OrNda has given The Bank of Nova Scotia, as Agent under OrNda's
Existing Credit Agreement ("OrNda's Agent"), irrevocable notice of termination
of the commitments of the lenders thereunder, (B) the Borrower has made
available, or has irrevocably instructed the relevant banks to make available
from the proceeds of the New Public Debt and/or the First Borrowing, to OrNda's
Agent for the account of OrNda, an amount sufficient to pay in full the
principal of all loans and reimbursement obligations outstanding on the date
hereof under OrNda's Existing Credit Agreement and all interest and fees accrued
thereunder to but excluding the date hereof and (C) OrNda has irrevocably
instructed OrNda's Agent to apply such proceeds to pay such amounts in full on
the date hereof.
5. The Acquisition has been consummated substantially on the terms set
forth in the Merger Agreement and all conditions to the consummation of the
Acquisition, as set forth in the Merger Agreement, have been fulfilled in all
material respects.
F-1
6. The total consideration paid by the Borrower and its Subsidiaries as
a result of the Acquisition to the former holders of common stock of OrNda and
options to purchase such common stock consists only of shares of common stock of
the Borrower and cash to purchase fractional shares.
7. All approvals, consents and other actions, by or in respect of, or
filings with, any governmental body, agency, official, authority or other Person
required in connection with the Acquisition, the OrNda Tender Offers, the
issuance and sale of the New Public Debt or the transactions contemplated by the
Financing Documents have been obtained, taken or made, except for (i) any
consent which is not required because an applicable waiting period has expired
without action being taken and (ii) other approvals, consents and other actions
as to which failures to obtain or take them could not, in the aggregate,
reasonably be expected to have a Material Adverse Effect or an adverse effect on
the validity or enforceability of any material provision of any Financing
Document.
8. No order, decree, judgment, ruling or injunction exists which
restrains or otherwise prevents the consummation of the Acquisition in the
manner contemplated by the Merger Agreement, the consummation of the OrNda
Tender Offers, the issuance and sale of the New Public Debt in the manner
described in the New Public Debt Prospectus or the making of the Loans. No
action, suit or proceeding is pending or threatened in which there is a
reasonable possibility of an adverse decision which would have a Material
Adverse Effect or an adverse effect on the validity or enforceability of any
material provision of any Financing Document.
9. The officer who executed the Borrower's Credit Agreement on behalf
of the Borrower was authorized by the Borrower's board of directors to, and did,
approve of the terms of the Borrower's Credit Agreement.
Terms used herein and not defined herein have the meanings assigned to
them in the Borrower's Credit Agreement.
________________________________
Name:
Title:
[Closing Date]
F-2
EXHIBIT G
OPINION OF
XXXXXX, XXXX & XXXXXXXX LLP
SPECIAL COUNSEL TO THE BORROWER
[Closing Date]
To: The Lenders, Managing Agents,
Co-Agents, Swingline Bank
and Agents Party to the Credit
Agreement referred to herein
Re: Credit Agreement dated as of January 30, 1997 among
Xxxxx Healthcare Corporation and the Lenders,
Managing Agents, Co-Agents, Swingline Bank and Agents
party thereto
Ladies and Gentlemen:
We have acted as special counsel to Xxxxx Healthcare Corporation, a
Nevada corporation (the "Borrower"), in connection with the Credit Agreement
dated as of January 30, 1997 (the "Credit Agreement") among the Borrower, the
Lenders, Managing Agents, Co-Agents and Swingline Bank party thereto, The Bank
of New York and The Bank of Nova Scotia, as Documentation Agents, Bank of
America NT & SA, as Syndication Agent, and Xxxxxx Guaranty Trust Company of New
York, as Administrative Agent. Terms defined in the Credit Agreement and not
otherwise defined herein are used herein as therein defined.
This opinion is delivered pursuant to Section 3.01(j) of the Credit
Agreement.
In rendering this opinion, we have examined originals or copies
certified or otherwise identified to our satisfaction as being true copies of
the following documents and instruments:
(a) the Credit Agreement, including the Exhibits and Schedules
thereto;
(b) the Notes;
(c) the Swingline Note;
G-1
(d) a certificate of even date herewith of the corporate
secretary of the Borrower as to resolutions, incumbency of certain
officers and the form of articles of incorporation and by-laws of the
Borrower in effect on the date hereof;
(e) a certificate of even date herewith executed by an officer
of the Borrower setting forth or certifying certain factual matters;
and
(f) a certificate of recent date of the Secretary of State of
Nevada as to the legal existence of the Borrower in good standing under
the laws of Nevada.
The documents referred to in Items (a) through (c) are sometimes referred to
herein collectively as the "Financing Documents".
We have, with your permission, assumed, without independent
investigation or inquiry with respect to any such matter, that:
(a) The Borrower is a validly existing corporation in good standing
under the laws of the State of Nevada. The Borrower has requisite corporate
power and authority to own and operate its properties, to conduct its business
in the manner in which it presently is conducted, and to execute, deliver and
perform its obligations under each of the Financing Documents.
(b) Each of the Financing Documents has been duly authorized by all
necessary corporate action on the part of the Borrower. Each of the Financing
Documents has been duly executed and delivered on behalf of the Borrower.
(c) Each Lender and the Administrative Agent each has all requisite
power and authority to execute, deliver and perform its obligations under the
Credit Agreement; the execution and delivery of the Credit Agreement and
performance of such obligations have been duly authorized by all necessary
action on the part of such Lender and the Administrative Agent; and the Credit
Agreement is the legal, valid and binding obligation of such Lender or the
Administrative Agent, enforceable against it in accordance with its terms.
(d) The execution and delivery of the Credit Agreement by each Lender
and the Administrative Agent and performance by each of them of their respective
obligations thereunder comply with all laws and regulations that are applicable
to such Lender or the Administrative Agent or the transactions contemplated by
the Credit Agreement because of the nature of their respective businesses
(provided that the assumption stated in this subparagraph (d) does not relate to
any matter as to which we expressly state our opinion herein).
G-2
(e) The signatures on all documents examined by us are genuine, and
all individuals executing such documents were thereunto duly authorized.
(f) The documents submitted to us as originals are authentic and the
documents submitted to us as certified or reproduction copies conform to the
originals.
With respect to questions of fact material to the opinions expressed
below, we have, with your consent, relied upon certificates of public officials
and officers of the Borrower, in each case without having independently verified
the accuracy or completeness thereof.
With respect to any opinion herein in regard to the existence or
absence of facts that is stated to be to our actual knowledge, such statement
means that, during the course of our representation of the Borrower, no
information has come to the attention of the lawyers in our Firm participating
in such representation that has given them actual knowledge of facts contrary to
the existence or absence of the facts indicated. No inference as to our
knowledge of the existence or absence of such facts should be drawn from our
representation of the Borrower.
Based upon the foregoing, and subject to the qualifications,
exceptions, limitations and assumptions hereinafter set forth, we are of the
opinion that:
(1) Each of the Financing Documents constitutes the legal, valid and
binding obligation of the Borrower and is enforceable against the Borrower in
accordance with its terms.
(2) No consent, approval or authorization of, and no registration,
declaration or filing with any administrative, governmental or other public
authority is required under the laws of the United States of America or the
State of New York which, in our experience, are generally applicable to
transactions of the type contemplated by the Credit Agreement, or under the
Nevada General Corporation Law, to be obtained or made in connection with the
execution, delivery and performance by the Borrower, or for the validity or
enforceability against the Borrower, of any of the Financing Documents.
(3) Neither the execution and delivery of the Financing Documents and
the performance by the Borrower of its obligations thereunder nor the
consummation of the transactions contemplated thereby constitutes or will
constitute a violation of any laws of the United States of America or the State
of New York which, in our experience, are generally applicable to transactions
of the type contemplated by the Credit Agreement, or under the Nevada General
Corporation Law or the California Corporations Code, or, to our actual
knowledge, of any order of any court or governmental authority that is
applicable to the Borrower.
G-3
(4) The Borrower is neither an "investment company" nor a Person
directly or indirectly "controlled" by or "acting on behalf of" an "investment
company" within the meaning of the Investment Company Act of 1940, as amended.
The Borrower is neither a "holding company", nor an "affiliate" of a "holding
company" or a "subsidiary company" of a "holding company", as such terms are
defined in the Public Utility Holding Company Act of 1935, as amended.
(5) Neither the making of the Loans on the Closing Date pursuant to,
nor the application of the proceeds of the Loans in accordance with, the Credit
Agreement will violate Regulation G, U or X promulgated by the Board of
Governors of the Federal Reserve System.
Each of the opinions set forth above is subject to the following
exceptions, qualifications, limitations and assumptions:
(a) Our opinions are subject to the effect of bankruptcy, insolvency,
reorganization, moratorium, arrangement or other similar laws affecting
enforcement of creditors' rights generally, including, without limitation, the
effect of statutory or other laws regarding fraudulent conveyances or transfers,
preferential transfers, and of laws affecting distributions by corporations to
stockholders.
(b) Our opinions are subject to the application of general principles
of equity, whether considered in a case or proceeding at law or in equity,
including, without limitation, concepts of materiality, reasonableness, good
faith and fair dealing.
(c) Our opinions are subject to the qualifications that
indemnification provisions in any of the Financing Documents may be
unenforceable to the extent that such indemnification may be held to be in
violation of or against public policy.
This opinion is limited to the effect of (i) the laws of the United
States of America and the State of New York, (ii) for purposes only of our
opinion expressed in Paragraph 3 herein, the California Corporations Code, and
(iii) to the limited extent set forth below, the General Corporation Law of the
State of Nevada. Although we are not admitted to practice in the State of
Nevada, we are generally familiar with the General Corporation Law of the State
of Nevada and have made such inquiries as we consider necessary to render our
opinions expressed in Paragraphs 2 and 3 hereof. This opinion relates to the
present state of the laws referred to herein and, in rendering this opinion, we
assume no obligation to revise or supplement this opinion should the present
laws, or the interpretation thereof, be changed.
This opinion is rendered to the Lenders, the Managing Agents, the
Co-Agents, the Swingline Bank and the Agents as of the date hereof in connection
with the Credit
G-4
Agreement, and may not be relied upon by any other person (except an LC
Issuing Bank) or by them in any other context.
Very truly yours,
Xxxxxx, Xxxx & Xxxxxxxx
G-5
EXHIBIT H
OPINION OF
XXXXX XXXXX
GENERAL COUNSEL FOR THE BORROWER
[Closing Date]
To: The Lenders, Managing Agents,
Co-Agents, Swingline Bank
and Agents Party to the Credit
Agreement referred to herein
Ladies and Gentlemen:
I am the General Counsel of Xxxxx Healthcare Corporation, a Nevada
corporation (the "Borrower"), and have acted as such in connection with the
Credit Agreement dated as of January 30, 1997 (the "Credit Agreement") among the
Borrower, the Lenders, Managing Agents, Co-Agents and Swingline Bank party
thereto, The Bank of New York and The Bank of Nova Scotia, as Documentation
Agents, Bank of America National Trust & Savings Association, as Syndication
Agent, and Xxxxxx Guaranty Trust Company of New York, as Administrative Agent.
This opinion is delivered to you pursuant to Section 3.01(k) of the
Credit Agreement. Terms used herein which are defined in the Credit Agreement
have the respective meanings set forth in the Credit Agreement, unless otherwise
defined herein.
In connection with this opinion, I have examined executed copies of
each of the Credit Agreement (including all of the Schedules and Exhibits
thereto), the Notes and the Swingline Note (together, the "Financing
Documents") and such corporate documents and records of the Borrower and its
Subsidiaries and certificates of public officials and officers of the
Borrower and its Subsidiaries, and such other documents, as I have deemed
necessary or appropriate for the purposes of this opinion. In stating my
opinion, I have assumed the genuineness of all signatures and the authority
of persons signing the Financing Documents on behalf of parties thereto other
than the Borrower, the authenticity of all documents submitted to me as
originals and the conformity to authentic original documents of all documents
submitted to me as certified, conformed or photostatic copies. This opinion
is limited to the laws of
X-0
Xxxxxxxxxx, Xxx Xxxx and the United States of America, and to the general
corporate laws of the State of Nevada.
Based upon the foregoing, I am of the opinion that:
1. CORPORATE EXISTENCE; COMPLIANCE WITH LAW. The Borrower (a) is
duly organized, validly existing and in good standing under the laws of the
State of Nevada, and (b) has the corporate power, authority and legal right to
own or operate its properties or to lease the properties it operates and to
conduct the business in which it is currently engaged. Except as could not, in
the aggregate, reasonably be expected to have a Material Adverse Effect or an
adverse effect on the validity or enforceability of any material provision of
any Financing Document, (x) the Borrower is duly qualified as a foreign
corporation, and in good standing under the laws of each jurisdiction where its
ownership, lease or operation of properties or the conduct of its business
requires such qualification, and (y) each of the Borrower and its Subsidiaries
is in compliance with all laws, regulations, decrees and orders applicable to
the Borrower or any of its Subsidiaries (including, without limitation, laws,
regulations, decrees and orders relating to environmental, occupational and
health standards and controls and in respect to antitrust, monopoly, restraint
of trade or unfair competition). The Borrower and its Subsidiaries have obtained
all certifications, licenses, accreditations and approvals that are necessary to
conduct their respective businesses. None of the Borrower or any of its
Subsidiaries has received or, to the best of my knowledge, expects to receive,
any order or notice of any violation or claim of violation of any law,
regulation, decree, rule, judgment or order of any governmental authority or
agency relating to the ownership or operation of any hospital or other facility
owned or operated by it, as to which the cost of compliance or the consequences
of noncompliance, individually or in the aggregate, would have a Material
Adverse Effect or which would impair the ability of the Borrower to discharge
any of its obligations under any of the Financing Documents.
2. CORPORATE POWER; AUTHORIZATION. The Borrower has the corporate
power, authority and legal right to execute, deliver and perform the Financing
Documents and to borrow and obtain the issuance of letters of credit thereunder,
and has taken all necessary corporate action to authorize the borrowings and the
issuance of such letters of credit on the terms and conditions of the Financing
Documents and to authorize the execution, delivery and performance of the
Financing Documents. No consent of any other Person, and no authorization of,
notice to, or other act by or in respect of the Borrower by any governmental
authority, agency or instrumentality is required in connection with borrowings
or the issuance of letters of credit thereunder or with the execution, delivery,
performance, validity or enforceability of the Financing Documents. The Borrower
has duly executed and delivered each Financing Document.
3. NO LEGAL BAR. The execution, delivery and performance by the
Borrower of the Financing Documents, the borrowings and the issuance of
letters of
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credit thereunder and the use of the proceeds of such borrowings and the use
of such letters of credit will not violate (except to the extent that such
violation, if any, would not have a Material Adverse Effect or an adverse
effect on the validity or enforceability of any material provision of any
Financing Document) any provision of any existing law or regulation
applicable to the Borrower or any of its Subsidiaries or of any award, order
or decree applicable to the Borrower or any of its Subsidiaries known to me
(after due inquiry) of any court, arbitrator or governmental authority, or of
the restated articles of incorporation or restated by-laws of the Borrower
or, to the best of my knowledge (after due inquiry), of any security issued
by the Borrower or of any material mortgage, indenture, lease, contract or
other agreement or undertaking to which the Borrower is a party or by which
the Borrower or any of its respective properties or assets may be bound, and
will not result in or require the creation or imposition of any Lien
prohibited by the Credit Agreement on any of its properties or revenues
pursuant to the provisions of any such mortgage, indenture, contract, lease
or other agreement or other undertaking.
4. NO MATERIAL LITIGATION. To the best of my knowledge, after due
inquiry, (i) there are no pending or threatened actions, suits, proceedings or
investigations against the Borrower or any of its Subsidiaries in any court or
by or before any arbitrator or governmental authority that calls into question
the validity of the Financing Documents and (ii) except as disclosed in Schedule
4.05 to the Credit Agreement, there are no such pending or threatened actions,
suits, proceedings or investigations in which there is a reasonable possibility
of an adverse determination that could reasonably be expected to have a Material
Adverse Effect or an adverse effect on the validity or enforceability of any
material provision of any Financing Document. For purposes of the preceding
sentence, I have assumed that, in medical malpractice actions now pending or
threatened against the Borrower and its Subsidiaries, damages would be assessed
consistent with the Borrower's past experience. The past experience of the
Borrower has been that damages assessed in such suits have been adequately
covered by insurance. In rendering the opinions set forth in this paragraph 4, I
have not conducted a search of any federal or state court docket. My inquiry has
been limited to consultation with counsel representing the Borrower and its
Subsidiaries in litigation matters.
This opinion relates to the present state of the laws referred to
herein and, in rendering this opinion, I assume no obligation to revise or
supplement this opinion should the present laws, or the interpretation thereof,
be changed. This opinion is rendered to the Lenders, the Managing Agents, the
Co-Agents, the Swingline Bank and the Agents as of the date hereof in connection
with the Credit Agreement, and
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may not be relied upon by any other person (except an LC Issuing Bank) or by
them in any other context.
Very truly yours,
________________________________
Xxxxx X. Xxxxx
General Counsel
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EXHIBIT I
OPINION OF
XXXXX XXXX & XXXXXXXX
SPECIAL COUNSEL FOR THE ADMINISTRATIVE AGENT
[Closing Date]
To the Lenders , Managing Agents,
Co-Agents, Swingline Bank
and Agents
c/x Xxxxxx Guaranty Trust Company
of New York, as Administrative Agent
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
We have participated in the preparation of the $2,800,000,000 Credit
Agreement dated as of January 30, 1997 (the "Credit Agreement") among Xxxxx
Healthcare Corporation, a Nevada corporation, the Lenders, Managing Agents,
Co-Agents and Swingline Bank party thereto, The Bank of New York and The Bank of
Nova Scotia, as Documentation Agents, Bank of America National Trust & Savings
Association, as Syndication Agent, and Xxxxxx Guaranty Trust Company of New
York, as Administrative Agent, and have acted as special counsel for the
Administrative Agent for the purpose of rendering this opinion pursuant to
Section 3.01(l) of the Credit Agreement. Terms defined in the Credit Agreement
are used herein as therein defined.
We have examined originals or copies, certified or otherwise identified
to our satisfaction, of such documents, corporate records, certificates of
public officials and other instruments and have conducted such other
investigations of fact and law as we have deemed necessary or advisable for
purposes of this opinion.
Upon the basis of the foregoing, we are of the opinion that:
1. The Credit Agreement constitutes a valid and binding agreement of
the Borrower and the Notes and Swingline Note constitute valid and binding
obligations of the Borrower, in each case enforceable in accordance with its
terms, except as the same may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and by general principles of equity.
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We are members of the Bar of the State of New York and the foregoing
opinion is limited to the laws of the State of New York and the federal laws of
the United States of America. Insofar as the foregoing opinions involve matters
governed by the laws of any other jurisdiction, we have relied, with your
permission and without independent investigation, upon the opinions of Xxxxxx,
Xxxx & Xxxxxxxx and Xxxxx Xxxxx, Esq., each dated the date hereof, a copy of
each of which has been delivered to you, and we have assumed, without
independent investigation, the correctness of the matters set forth in each such
opinion, our opinion being subject to the qualifications and limitations set
forth in each such opinion with respect thereto. In addition, we express no
opinion as to the effect (if any) of any law of any jurisdiction (except the
State of New York) in which any Lender is located which limits the rate of
interest that such Lender may charge or collect.
This opinion is rendered solely to you in connection with the above
matter. This opinion may not be relied upon by you for any other purpose or
relied upon by any other Person (except an LC Issuing Bank) without our prior
written consent.
Very truly yours,
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EXHIBIT J
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of _________, 19__ between [ASSIGNOR] (the
"Assignor") and [ASSIGNEE] (the "Assignee").
WITNESSETH
WHEREAS, this Assignment and Assumption Agreement relates to the Credit
Agreement dated as of January 30 , 1997 among Xxxxx Healthcare Corporation (the
"Borrower"), the Lenders, Managing Agents, Co-Agents and Swingline Bank party
thereto, The Bank of New York and The Bank of Nova Scotia, as Documentation
Agents, Bank of America National Trust & Savings Association, as Syndication
Agent, and Xxxxxx Guaranty Trust Company of New York, as Administrative Agent
(as amended from time to time, the "Credit Agreement");
[WHEREAS, as provided under the Credit Agreement, the Assignor has a
Commitment to make Loans to the Borrower and participate in Letters of Credit in
the amount of $_______________, under which the Assignor has outstanding
Syndicated Loans in the aggregate principal amount of $___________ at the date
hereof];
[WHEREAS, Letters of Credit with a total amount available for drawing
thereunder of $________ are outstanding at the date hereof, and]
[WHEREAS, the Assignor proposes to assign to the Assignee all of the
rights of the Assignor under the Credit Agreement in respect of a portion of its
Commitment in an amount equal to $__________ (the "Commitment Assigned Amount"),
together with a corresponding portion of each of its outstanding Syndicated
Loans and its LC Exposure, and the Assignee proposes to accept such assignment
of such rights and assume the corresponding obligations from the Assignor;]
[WHEREAS, the Assignor also proposes to assign to the Assignee Money
Market Loans in an aggregate outstanding principal amount of $__________;]
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
SECTION 1. DEFINITIONS. All capitalized terms not otherwise defined
herein have the respective meanings set forth in the Credit Agreement.
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SECTION 2. ASSIGNMENT. The Assignor hereby assigns and sells to the
Assignee all of the rights of the Assignor under the Credit Agreement with
respect to its Commitment to the extent of the Commitment Assigned Amount, and
the Assignee hereby accepts such assignment from the Assignor and assumes all of
the obligations of the Assignor under the Credit Agreement to the extent of the
Commitment Assigned Amount, including the purchase from the Assignor of a
pro-rata portion of the outstanding principal amount of each Syndicated Loan
made by the Assignor, and a pro rata portion of its LC Exposure. Upon the
execution and delivery hereof by the Assignor and the Assignee[, the Borrower,
the Issuing Banks, the Agent and the Swingline Bank] and the payment of the
amounts specified in Section 3 required to be paid on the date hereof (i) the
Assignee shall, as of the date hereof, succeed to the rights and be obligated to
perform the obligations of a Lender under the Credit Agreement with a Commitment
in an amount equal to the Commitment Assigned Amount, (ii) the Commitment of the
Assignor shall, as of the date hereof, be reduced by a like amount and the
Assignor released from its obligations under the Credit Agreement to the extent
such obligations have been assumed by the Assignee. The assignment provided for
herein shall be without recourse to the Assignor.
SECTION 3. PAYMENTS. As consideration for the assignment and sale
contemplated in Section 2 hereof, the Assignee shall pay to the Assignor on the
date hereof in Federal funds the amount heretofore agreed between them.(9)
Facility fees accrued with respect to the Commitment Assigned Amount to the date
hereof are for the account of the Assignor and such fees accruing with respect
to the Commitment Assigned Amount on and after the date hereof are for the
account of the Assignee. Each of the Assignor and the Assignee agrees that if it
receives any amount under the Credit Agreement which is for the account of the
other party hereto, it shall receive the same for the account of such other
party to the extent of such other party's interest therein and shall promptly
pay the same to such other party.
[SECTION 4. CONSENT OF THE BORROWER, THE LC ISSUING BANKS AND THE
SWINGLINE LENDER. This Agreement is conditioned upon the consent of the
Borrower, the LC Issuing Banks and the Swingline Bank pursuant to Section
9.06(c) of the Credit Agreement.]
SECTION 5. NON-RELIANCE ON ASSIGNOR. The Assignor makes no
representation or warranty in connection with, and shall have no responsibility
with respect to, the solvency, financial condition or statements of the Borrower
or the validity and enforceability of the obligations of the Borrower in respect
of any Financing Document. The Assignee acknowledges that it has, independently
and without reliance on the Assignor, and based on such documents and
information as it
______________________________
(9) Amount should combine principal together with accrued interest
and breakage compensation, if any, to be paid by the Assignee. It may be
preferable in an appropriate case to specify these amounts generically or by
formula rather than as a fixed sum.
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has deemed appropriate, made its own credit analysis and decision to enter into
this Agreement and will continue to be responsible for making its own
independent appraisal of the business, affairs and financial condition of the
Borrower.
SECTION 6. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 7. COUNTERPARTS. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
[ASSIGNOR]
By
------------------------------
Title:
[ASSIGNEE]
By
------------------------------
Title:
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[The undersigned consent to the foregoing assignment:
XXXXX HEALTHCARE CORPORATION
By
------------------------------
Title:
XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK,
as Swingline Bank
By
------------------------------
Title:
[LC ISSUING BANKS]
By
------------------------------
Title: ]
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