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EXHIBIT 10.16
THIRD
AMENDED AND RESTATED
LOAN AGREEMENT
among
EMCARE, INC.,
EMCARE HOLDINGS INC.,
TEXAS COMMERCE BANK NATIONAL ASSOCIATION,
individually and as agent
and
the other banks named herein
dated
as of
7 March 1997
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CHASE SECURITIES INC.,
as Arranger
2
TABLE OF CONTENTS
Page
ARTICLE 1 - Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.2 Other Definitional Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE 2 - Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 2.1 Commitment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 2.2 The Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 2.3 Repayment of Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 2.4 Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 2.5 Requests for Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 2.6 Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 2.7 Conversions and Continuations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 2.8 Commitment Fee; Reduction, Termination and Extension of Commitment . . . . . . . . . . . . 17
Section 2.9 Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 2.10 Procedure for Issuing Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 2.11 Drawing on Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 2.12 Letter of Credit Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 2.13 Obligations Absolute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 2.14 Limitation of Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE 3 - Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 3.1 Method of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 3.2 Optional Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 3.3 Pro Rata Treatment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 3.4 Non-Receipt of Funds by the Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 3.5 Withholding Taxes and Other Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 3.6 Withholding Tax Exemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE 4 - Yield Protection and Illegality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 4.1 Additional Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 4.2 Limitation on Types of Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 4.3 Illegality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 4.4 Substitute Base Rate Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 4.5 Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 4.6 Capital Adequacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
ARTICLE 5 - Conditions Precedent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 5.1 Initial Advance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 5.2 All Advances and Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE 6 - Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 6.1 Existence; Place of Business; Chief Executive Office . . . . . . . . . . . . . . . . . . . 29
Section 6.2 Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
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Section 6.3 Corporate Action; No Breach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 6.4 Operation of Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 6.5 Litigation and Judgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 6.6 Rights in Properties; Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 6.7 Enforceability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 6.8 Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 6.9 Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 6.10 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 6.11 Use of Proceeds; Margin Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 6.12 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 6.13 Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 6.14 Organizational Structure and Capitalization . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 6.15 Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 6.16 Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 6.17 Investment Company Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 6.18 Public Utility Holding Company Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
ARTICLE 7 - Positive Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 7.1 Reporting Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 7.2 Maintenance of Existence; Conduct of Business . . . . . . . . . . . . . . . . . . . . . . . 36
Section 7.3 Maintenance of Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 7.4 Taxes and Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 7.5 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 7.6 Inspection Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 7.7 Keeping Books and Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 7.8 Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 7.9 Compliance with Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 7.10 Further Assurances; Additional Affiliate Guaranties . . . . . . . . . . . . . . . . . . . . 37
Section 7.11 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 7.12 Administration Management Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
ARTICLE 8 - Negative Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 8.1 Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 8.2 Limitation on Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 8.3 Mergers, Acquisitions and Dissolutions . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 8.4 Restricted Payments; Consent to Dividend . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 8.5 Loans and Investments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 8.6 Transactions With Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 8.7 Disposition of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 8.8 Sale and Leaseback . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 8.9 Nature of Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 8.10 Accounting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
ARTICLE 9 - Financial Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 9.1 Combined Net Worth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 9.2 Interest Coverage Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
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Section 9.3 Leverage Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
ARTICLE 10 - Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 10.1 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 10.2 Remedies Upon Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 10.3 Setoff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 10.4 Performance by Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 10.5 Continuance of Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
ARTICLE 11 - The Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 11.1 Appointment, Powers and Immunities . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 11.2 Rights of Agent as a Bank . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 11.3 Sharing of Payments, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 11.4 INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 11.5 Independent Credit Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 11.6 Several Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 11.7 Successor Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 11.8 Administration Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
ARTICLE 12 - Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 12.1 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 12.2 INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 12.3 Limitation of Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 12.4 No Duty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 12.5 Agent and Banks Not Fiduciary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 12.6 Equitable Relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 12.7 No Waiver; Cumulative Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 12.8 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 12.9 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 12.10 ENTIRE AGREEMENT; AMENDMENT AND RESTATEMENT MODIFICATION OF LOAN DOCUMENTS . . . . . . . . 55
Section 12.11 Maximum Interest Rate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 12.12 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 12.13 Applicable Law; Venue; Service of Process . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 12.14 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 12.15 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 12.16 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 12.17 Non-Application of Chapter 15 of Texas Credit Code . . . . . . . . . . . . . . . . . . . . 57
Section 12.18 Amendments, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 12.19 Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 12.20 WAIVER OF JURY TRIAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
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INDEX TO EXHIBITS
Exhibit Description of Exhibit
------- ----------------------
"A" Note
"B" Credit Request Form
"C" Compliance Certificate
"D" Assignment and Acceptance
"E" Subsidiary Pledge Agreement
"F" Affiliate Guaranty
INDEX TO SCHEDULES
Schedule Description of Schedule
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1.1(A) Commitments
1.1(B) Existing Guaranties
6.1 Principal Place of Business;
Chief Executive Office
6.5 Existing Litigation
6.14 List of Subsidiaries and PAs
8.1 Existing Debt
8.2 Existing Liens
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THIRD AMENDED AND RESTATED LOAN AGREEMENT
THIS THIRD AMENDED AND RESTATED LOAN AGREEMENT (the "Agreement"),
dated as of March 7, 1997, is among EMCARE, INC., a Delaware corporation
("EmCare"), EMCARE HOLDINGS INC., a Delaware corporation ("Parent"), TEXAS
COMMERCE BANK NATIONAL ASSOCIATION, a national banking association and
successor in interest by merger to Texas Commerce Bank, National Association
("Texas Commerce"), the other banks or lending institutions which are or which
may from time to time become signatories hereto or any successor or assignee
thereof (individually, including Texas Commerce, a "Bank" and collectively the
"Banks") and Texas Commerce as agent for itself and the other Banks (in such
capacity, the "Agent").
R E C I T A L S:
a. EmCare, Parent and Texas Commerce
have entered into that certain Amended and
Restated Loan Agreement dated as of February
3, 1995 (as amended, the "Original Loan
Agreement") pursuant to which Texas Commerce
made a revolving credit loan available to
EmCare.
b. Texas Commerce assigned portions of
its commitment under the Original Loan
Agreement to certain other Banks (the "1996
Banks") pursuant to the Assignment Agreements
each such 1996 Bank has entered into with
Texas Commerce, all of which are dated
February 21, 1996.
C. EmCare, Parent, the 1996 Banks, and Texas Commerce entered
into that certain Second Amended and Restated Loan Agreement dated as of
February 16, 1996, which amended and restated the original Loan Agreement in
its entirety (as the same has been modified, the "Second Loan Agreement").
D. EmCare and Parent have requested that the 1996 Banks increase
the amount of credit available to Parent under the Second Loan Agreement. The
1996 Banks, along with the additional Banks named herein, are willing to
increase the amount of credit made available to Parent, subject to the terms
and provisions of the Second Loan Agreement as amended and restated in its
entirety in accordance with the terms hereof.
NOW THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto agree as follows:
ARTICLE 1
Definitions
Section 1.1 Definitions. As used in this Agreement, the
following terms have the following meanings:
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"Acquisition" means the acquisition (by purchase, agreements
to make payments in the future, merger, consolidation or otherwise) of
(i) all or a substantial part of the assets of any Person or any
shares or other evidence of beneficial ownership of any Person; (ii)
any contract to manage the physician staffing, recruiting and/or
scheduling for an emergency department of a hospital or to manage any
other aspect of the healthcare services of another Person to the
extent Parent, a Subsidiary or a PA was not the original party
thereto; or (iii) the right to manage (pursuant to an Administrative
Management Agreement) a Person who, immediately prior to the
acquisition, was not a Subsidiary or PA and who was engaged in the
business of managing physician staffing, recruiting and/or scheduling
for emergency departments of hospitals or engaged in the business of
managing any other healthcare services of another Person. If Parent, a
Subsidiary or a PA is selected by a hospital to manage the physician
staffing, recruiting and/or scheduling for an emergency department or
any other aspect of the healthcare services of another Person and
neither Parent, any Subsidiary nor any PA is required to make any
payment to any Person, whether now or in the future, as a condition to
the award of the applicable contract (other than payments made in
connection with the purchase of equipment or materials which are
required to be obtained to perform under such contract), then the
acquisition of such contract shall not be deemed to be an
"Acquisition."
"Additional Costs" has the meaning specified in Section 4.1.
"Adjusted Base Rate" means, for any day, a rate per annum
(rounded upwards to the nearest 1/16 of 1%) equal to the greatest of
(a) the Prime Rate in effect on such day, (b) the Base CD Rate in
effect on such day plusone percent (1%) or (c) the Federal Funds Rate
in effect on such day plus one-half of one percent (.50%). If for any
reason Agent shall have determined (which determination shall be
conclusive absent manifest error) that it is unable to ascertain the
Base CD Rate or the Federal Funds Rate, or both, for any reason,
including the inability or failure of Texas Commerce to obtain
sufficient quotations in accordance with the definitions thereof, the
Adjusted Base Rate shall be determined without regard to clause (b) or
(c), or both, of the first sentence of this definition, as
appropriate, until the circumstances giving rise to such inability no
longer exist. Any change in the Adjusted Base Rate due to a change in
the Prime Rate, the Three-Month Secondary CD Rate or the Federal Funds
Rate shall be effective on the effective date of such change in the
Prime Rate, the Three-Month Secondary CD Rate or the Federal Funds
Rate, respectively. As used herein, this definition and the following
terms have the following meanings:
"Assessment Rate" means, at any time, the rate
(rounded upwards, if necessary, to the nearest 1/16 of 1%)
then charged by the Federal Deposit Insurance Corporation (or
any successor) to Texas Commerce for deposit insurance for
Dollar time deposits with Texas Commerce at the Principal
Office as determined by Agent.
"Base CD Rate" means the sum of (a) the quotient of
(i) the Three-Month Secondary CD Rate divided by (ii) the
remainder of 1.00 minus the Reserve Requirement plus (b) the
Assessment Rate; the Base CD Rate shall be
THIRD AMENDED AND RESTATED LOAN AGREEMENT, Page 8
8
adjusted automatically on and as of the effective date of any
change in the Reserve Requirement, the Assessment Rate or the
Three-Month Secondary CD Rate.
"Federal Funds Rate" means, for any day, the rate per
annum (rounded upwards, if necessary, to the nearest 1/16 of
1%) equal to the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve
System arranged by the Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the
Business Day next succeeding such day, provided that (i) if
the day for which such rate is to be determined is not a
Business Day, the Federal Funds Rate for such day shall be
such rate on such transactions on the next preceding Business
Day as so published on the next succeeding Business Day, and
(ii) if such rate is not so published on such next succeeding
Business Day, the Federal Funds Rate for any day shall be the
average rate charged to Texas Commerce on such day on such
transactions.
"Prime Rate" shall mean the rate of interest per
annum then most recently established by Texas Commerce as its
prime rate in effect from day to day at the Principal Office;
each change in the Prime Rate shall be effective on the date
of such change. The Prime Rate may not be Texas Commerce's
best or favored rate and the Banks may make other loans to
other Persons at rates lower than the Prime Rate.
"Three-Month Secondary CD Rate" means, for any day,
the secondary market rate for three-month certificates of
deposit reported as being in effect on such day (or, if such
day shall not be a Business Day, the next preceding Business
Day) by the Board of Governors of the Federal Reserve System
(or any successor governmental agency) through the public
information telephone line of the Federal Reserve Bank of New
York (which rate will, under the current practices of the
Board of Governors of the Federal Reserve System, be published
in Federal Reserve Statistical Release H.15(519) during the
week following such day), or, if such rate shall not be so
reported on such day or such next preceding Business Day, the
average of the secondary market quotations for three-month
certificates of deposit of major money center banks in New
York City received at approximately 10:00 A.M., New York City
time, on such day (or, if such day shall not be a Business
Day, on the next preceding Business Day) by Texas Commerce
from three New York City negotiable certificate of deposit
dealers of recognized standing selected by Texas Commerce.
"Adjusted Eurodollar Rate" means, for any Eurodollar Advance
for any Interest Period therefor, the rate per annum (rounded upwards,
if necessary, to the nearest 1/16 of 1%) determined by Agent to be
equal to the Eurodollar Rate for such Eurodollar Advance for such
Interest Period divided by 1 minus the Reserve Requirement for such
Eurodollar Advance for such Interest Period.
THIRD AMENDED AND RESTATED LOAN AGREEMENT, Page 9
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"Administrative Management Agreement" means, as of the date of
determination, an agreement then in effect pursuant to which a
professional association or corporation engaged in the practice of
medicine has agreed to permit a Subsidiary to perform comprehensive
management and related administrative services to such Person for the
nonmedical aspects of such Person's business.
"Advance" means each advance of funds by the Banks to Parent
pursuant to Article 2.
"Affiliate" means, as to any Person, any other Person (i) that
directly or indirectly, through one or more intermediaries, controls
or is controlled by, or is under common control with, such Person;
(ii) that directly or indirectly beneficially owns or holds five
percent (5%) or more of any class of voting stock of such Person; or
(iii) five percent (5%) or more of the voting stock of which is
directly or indirectly beneficially owned or held by the Person in
question. The term "control" means the possession, directly or
indirectly, of the power to direct or cause direction of the
management and policies of a Person, whether through the ownership of
voting securities, by contract, or otherwise; provided, however, in no
event shall the Agent or any Bank be deemed an Affiliate of Parent or
any of its Subsidiaries.
"Affiliate Guaranty" means an Existing Guaranty or the
guaranty of EmCare, any other Subsidiary or a PA in favor of Agent in
substantially the form of Exhibit "F", as the same may be amended,
supplemented, or otherwise modified.
"Agent" has the meaning set forth in the Introduction of this
Agreement.
"Agreement" has the meaning specified in the introduction to
this Agreement.
"Applicable Lending Office" means for each Type of Advance,
the Lending Office of a Bank (or of an Affiliate of such Bank)
designated for such Type of Advance below its name on the signature
pages hereof or such other office of a Bank (or of an Affiliate of
such Bank) as a Bank may from time to time specify to Agent as the
office by which its Advances of such Type are to be made and
maintained.
"Applicable Rate" has the meaning specified in subsection
2.4(a).
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Bank and its assignee and accepted by the Agent and,
if applicable, Parent pursuant to Section 12.8 in substantially the
form of Exhibit "D" hereto.
"Bank Accounts" has the meaning specified in subsection 10.3.
"Base Margin" has the meaning specified in subsection 2.4(a).
"Base Rate Advances" means Advances that bear interest at
rates based upon the Adjusted Base Rate.
THIRD AMENDED AND RESTATED LOAN AGREEMENT, Page 10
10
"Business Day" means (i) any day on which commercial banks are
not authorized or required to close in Texas, and (ii) with respect to
all borrowings, payments, Conversions, Continuations, Interest Periods
and notices in connection with Eurodollar Advances, any day which is a
Business Day described in clause (i) above and which is also a day on
which dealings in Dollar deposits are carried out in the London
interbank market.
"Capital Lease Obligation" means obligations under any lease
of real or personal property that is required to be capitalized for
financial reporting purposes in accordance with GAAP, and the amount
of such obligations shall be the capitalized amount of such
obligations determined in accordance with GAAP.
"Closing Date" means March 7, 1997.
"Code" means the Internal Revenue Code of 1986, as amended,
and the regulations promulgated and rulings issued thereunder.
"Combined Funded Debt" means, at any particular time, the sum
of the following for Parent and the Subsidiaries (determined on a
consolidated basis) and any ER Management Party that is not otherwise
a Subsidiary determined on a combined basis in accordance with GAAP
(without duplication): (i) the sum of (a) current maturities of long
term Debt; and (b) long term Debt (the items described in clause (a)
and (b) herein the "Funded Debt"); minus (ii) the sum of (a) all
Funded Debt which is owed to an Affiliate and which is permitted by
the terms of subsection 8.1(d) and (b) all Funded Debt permitted by
subsection 8.1(c).
"Combined Interest Expense" means, for any period, all cash
interest paid or payable for such period by Parent and the
Subsidiaries (determined on a consolidated basis), and any ER
Management Party that is not a Subsidiary (calculated on a combined
basis in accordance with GAAP).
"Combined Net Worth" means, at any particular time, all
amounts which, in conformity with GAAP, would be included as
stockholders' equity on a combined balance sheet of Parent and the
Subsidiaries (determined on a consolidated basis) and any ER
Management Party that is not otherwise a Subsidiary.
"Commitment" means, as to any Bank, the obligation of such
Bank to make Advances hereunder in an aggregate principal amount at
any one time outstanding up to but not exceeding the amount set forth
opposite the name of such Bank on Schedule 1.1(A) hereto or in the
applicable Assignment and Acceptance as such amount may be reduced
pursuant to Section 2.8. The aggregate Commitments on the Closing
Date equal One Hundred Million Dollars ($100,000,000).
"Commitment Fee Rate" has the meaning specified in Section 2.8.
THIRD AMENDED AND RESTATED LOAN AGREEMENT, Page 11
11
"Compliance Certificate" means a certificate, in substantially
the form of Exhibit "C", properly completed and signed by an
authorized financial officer of Parent.
"Continue", "Continuation", and "Continued" shall refer to the
continuation pursuant to Section 2.7 of a Eurodollar Advance as a
Eurodollar Advance from one Interest Period to the next Interest
Period.
"Convert", "Conversion", and "Converted" shall refer to a
conversion pursuant to Section 2.7 or Article 4 of one Type of Advance
into another Type of Advance.
"Credit Request Form" means a certificate, in substantially
the form of Exhibit "B", properly completed and signed by an
authorized officer of Parent requesting an Advance or the issuance of
a Letter of Credit.
"Debt" means as to any Person at any time (without
duplication): (i) all obligations of such Person for borrowed money,
(ii) all obligations of such Person evidenced by bonds, notes,
debentures, or other similar instruments, (iii) all obligations of
such Person to pay the deferred purchase price of property or services
(including for the deferred purchase price for an Acquisition, whether
paid under the terms of a non-compete or consulting agreement or
otherwise) except trade accounts payable of such Person arising in the
ordinary course of business which are not past due by more than ninety
(90) days unless such trade accounts payable are being contested in
good faith by appropriate proceedings, (iv) all Capital Lease
Obligations of such Person, (v) all Debt or other obligations of
others Guaranteed by such Person, (vi) all obligations secured by a
Lien existing on property owned by such Person, whether or not the
obligations secured thereby have been assumed by such Person or are
non-recourse to the credit of such Person, (vii) all reimbursement
obligations of such Person (whether contingent or otherwise) in
respect of letters of credit, bankers' acceptances, surety or other
bonds and similar instruments, and (viii) all liabilities of such
Person in respect of unfunded vested benefits under any Plan.
"Default Rate" means the Maximum Rate or, if no Maximum Rate
exists, the sum of the Adjusted Base Rate in effect from day to day
plus four percent (4%).
"Dollars" and "$" mean lawful money of the United States of
America.
"EBIT" means for any period, Net Income for such period plus
(i) the sum of, but without duplication and only in each case to the
extent deducted in determining Net Income for such period (a) Combined
Interest Expense, (b) all taxes based on income of Parent and the
Subsidiaries (determined on a consolidated basis) and any ER
Management Party that is not otherwise a Subsidiary accrued during
such period, (c) all non-operating charges, (d) all extraordinary
non-cash charges, and (e) all non-recurring non-cash charges and (f)
all cash charges attributable to the settlement of the United States
Department of Justice civil lawsuit pending as of the Closing Date
against EmCare, relating to claims under the False Claims Act arising
from reimbursements under the Medicare, Medicaid and CHAMPUS programs,
provided that the aggregate
THIRD AMENDED AND RESTATED LOAN AGREEMENT, Page 12
12
amount added to Net Income pursuant to this clause (f) during the
entire term of this Agreement shall not exceed Eight Million Dollars
($8,000,000), minus (ii) the sum of but without duplication and only
in each case to the extent added in determining Net Income for such
period (a) all non-cash revenue items, (b) all non- operating revenue
items and/or (c) any extraordinary or non-recurring revenue items.
"EmCare" has the meaning set forth in the Introduction hereto.
"EmCare Pledge Agreement" means the Amended and Restated
Pledge Agreement between EmCare and Agent dated February 16, 1996 and
as the same has been and may hereafter be amended, supplemented or
otherwise modified.
"EMTAC Pledge Agreement" means that certain Pledge Agreement
between EMTAC, INC. and Texas Commerce dated as of December 31, 1993,
as modified by the Second Loan Agreement as the same may hereafter be
amended, supplemented or otherwise modified.
"ER Management Contract" means, as of the date of
determination, an agreement then in effect between an ER Management
Party and a hospital pursuant to which the ER Management Party manages
the physician staffing, recruiting and/or scheduling for the emergency
department of the hospital.
"ER Management Parties" means each Subsidiary and each PA
engaged in the business of managing physician staffing, recruiting
and/or scheduling for the emergency departments of hospitals.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations and published
interpretations thereunder.
"ERISA Affiliate" means any corporation or trade or business
which is a member of the same controlled group of corporations (within
the meaning of Section 414(b) of the Code) as any Obligated Party or
is under common control (within the meaning of Section 414(c) of the
Code) with any Obligated Party.
"Eurodollar Advances" means Advances the interest rates on
which are determined on the basis of the rates referred to in the
definition of "Adjusted Eurodollar Rate" in this Section 1.1.
"Eurodollar Margin" has the meaning specified in subsection
2.4(a).
"Eurodollar Rate" means, for any Eurodollar Advance for any
Interest Period therefor, the rate per annum (rounded upwards, if
necessary, to the nearest 1/16 of 1%) quoted by Texas Commerce at
approximately 11:00 A.M. London time (or as soon thereafter as
practicable) two Business Days prior to the first day of such Interest
Period that Texas Commerce is offered by leading banks in the London
interbank market for Dollar deposits in immediately available funds
having a term comparable to such Interest
THIRD AMENDED AND RESTATED LOAN AGREEMENT, Page 13
13
Period and in an amount comparable to the principal amount of the
Eurodollar Advance to which such Interest Period relates.
"Event of Default" has the meaning specified in Section 10.1.
"Existing Collateral Documents" means the EmCare Pledge
Agreement, Parent Pledge Agreement, the Network Pledge Agreement,
EMTAC Pledge Agreement and the Trust Pledge Agreement.
"Existing Guaranties" means the documents described on
Schedule 1.1(B).
"Federal Funds Rate" has the meaning set forth in the
definition of Adjusted Base Rate.
"GAAP" means generally accepted accounting principles, applied
on a consistent basis, as set forth in opinions of the Accounting
Principles Board of the American Institute of Certified Public
Accountants and/or in statements of the Financial Accounting Standards
Board and/or their respective successors and which are applicable in
the circumstances as of the date in question. Accounting principles
are applied on a "consistent basis" when the accounting principles
observed in a current period are comparable in all material respects
to those accounting principles applied in a preceding period.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt
or other obligation of any other Person and, 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 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 obligation of the payment thereof or to protect the 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.
"Guarantors" means EmCare, each PA and each Subsidiary.
"Insignificant Subsidiary" has the meaning specified in
Section 7.10.
"Interest Period" means with respect to any Eurodollar
Advances, each period commencing on the date such Advances are made or
Converted from Advances of another Type or, in the case of each
subsequent, successive Interest Period applicable to a Eurodollar
Advance, the last day of the next preceding Interest Period with
respect to such Advance, and ending on the numerically corresponding
day in the first, second, third or sixth calendar month thereafter, in
each case as Parent may select as provided in Section 2.5 or 2.7
hereof, except that each such Interest Period which commences on the
THIRD AMENDED AND RESTATED LOAN AGREEMENT, Page 14
14
last Business Day of a calendar month (or on any day for which there
is no numerically corresponding day in the appropriate subsequent
calendar month) shall end on the last Business Day of the appropriate
subsequent calendar month. Notwithstanding the foregoing: (i) each
Interest Period which would otherwise end on a day which is not a
Business Day shall end on the next succeeding Business Day or, if such
succeeding Business Day falls in the next succeeding calendar month,
on the next preceding Business Day; (ii) any Interest Period which
would otherwise extend beyond the Revolving Termination Date shall end
on the Revolving Termination Date; (iii) no more than four (4)
Interest Periods shall be in effect at the same time; and (iv) no
Interest Period shall have a duration of less than one (1) month and,
if the Interest Period for any Eurodollar Advances would otherwise be
a shorter period, such Advances shall not be available hereunder.
"Letter of Credit" means any standby letter of credit issued
by Agent pursuant to Article 2 of this Agreement.
"Letter of Credit Liabilities" means, at any time, the
aggregate face amounts of all outstanding Letters of Credit.
"Leverage Ratio" means, at any particular time, the ratio of
Combined Funded Debt as of such time to Operating Cash Flow computed
for the completed four (4) fiscal quarters ending as of the date of
calculation.
"Lien" means any lien, mortgage, security interest, tax lien,
financing statement, pledge, charge, hypothecation, assignment,
preference, priority, or other encumbrance of any kind or nature
whatsoever (including, without limitation, any conditional sale or
title retention agreement), whether arising by contract, operation of
law, or otherwise.
"Loan Documents" means this Agreement, the Note, the Affiliate
Guaranties, the Pledge Agreements and other promissory notes, security
agreements, deeds of trust, assignments, guaranties, and other
instruments, agreements, and other documentation executed and
delivered pursuant to or in connection with this Agreement, the Second
Loan Agreement, and the Original Loan Agreement, as such instruments,
agreements and other documentation may be amended, modified, renewed,
extended, supplemented, or otherwise modified from time to time.
"Material Adverse Effect" means any material adverse effect
(i) on the business, condition (financial or otherwise), operations,
prospects or properties of the Obligated Parties taken as a whole or
(ii) on the ability of any Obligated Party to pay and perform its
obligations under the Loan Documents to which it is a party, any
material Administrative Management Agreements to which it is a party
or the material ER Management Contracts to which it is a party.
"Maximum Rate" means the maximum rate of nonusurious interest
permitted from day to day by applicable law, including as to Article
5069-1.04, Vernon's Texas Civil Statutes (and as the same may be
incorporated by reference in other Texas statutes),
THIRD AMENDED AND RESTATED LOAN AGREEMENT, Page 15
15
but otherwise without limitation, that rate based upon the "indicated
rate ceiling" and calculated after taking into account any and all
relevant fees, payments, and other charges which are contracted for,
charged or received in connection with the Loan Documents which are
deemed to be interest under applicable law.
"Multiemployer Plan" means a multiemployer plan defined as
such in Section 3(37) of ERISA to which contributions have been made
by any Obligated Party or any ERISA Affiliate and which is covered by
Title IV of ERISA.
"Net Income" means, for any period, the net income of Parent
and the Subsidiaries (determined on a consolidated basis in accordance
with GAAP) and any ER Management Party that is not otherwise a
Subsidiary determined in accordance with GAAP on a combined basis.
"Network Pledge Agreement" means that certain Pledge Agreement
between EmCare Physicians Network, Inc. and Agent dated February 16,
1996, as modified by that certain Consent Letter dated as of November
21, 1996, that certain Consent Letter dated as of December 31, 1996,
and as the same may hereafter be amended, supplemented or otherwise
modified.
"Note" means a promissory note of Parent payable to the order
of a Bank, in substantially the form of Exhibit "A" hereto, and all
extensions, renewals, and other modifications thereof.
"Obligated Party" means Parent and each Subsidiary and each PA
that has executed an Affiliate Guaranty or any other Person who is or
becomes party to any agreement that guarantees or secures payment and
performance of the Obligations or any part thereof.
"Obligations" means all obligations, indebtedness, and
liabilities of Parent to Agent and the Banks under this Agreement and
the other Loan Documents, now existing or hereafter arising, whether
direct, indirect, related, unrelated, fixed, contingent, liquidated,
unliquidated, joint, several, or joint and several, including, without
limitation, all interest accruing thereon and all attorneys' fees and
other expenses incurred in the enforcement or collection thereof.
"Operating Cash Flow" means for any period, Net Income for
such period plus (i) the sum of, but without duplication and only in
each case to the extent deducted in determining Net Income for such
period (a) depreciation and amortization expenses for such period; (b)
Combined Interest Expense; (c) all taxes based on income of Parent and
the Subsidiaries (determined on a consolidated basis) and any ER
Management Party that is not otherwise a Subsidiary accrued during
such period; (d) all other non-cash or non-operating charges
(including without limitation, all extraordinary non-cash charges and
all non-recurring non-cash charges); and (e) all cash charges
attributable to the settlement of the United States Department of
Justice civil lawsuit pending as of the Closing Date against EmCare,
relating to claims under the False Claims Act arising from
THIRD AMENDED AND RESTATED LOAN AGREEMENT, Page 16
16
reimbursements under the Medicare, Medicaid and CHAMPUS programs,
provided that the aggregate amount added to Net Income during the
entire term of this Agreement pursuant to this clause (e) shall not
exceed Eight Million Dollars ($8,000,000), minus (ii) the sum of but
without duplication and only in each case to the extent added in
determining Net Income for such period (a) all non-cash revenue items,
(b) all non-operating revenue items and/or (c) any extraordinary or
non-recurring revenue items.
"Original Loan Agreement" has the meaning specified in the
Recitals.
"PA" means any professional association or professional
corporation engaging in the practice of medicine which is (i) an
Affiliate of Parent and (ii) has entered into an Administrative
Management Agreement with Parent or a Subsidiary; provided that, if
such Administrative Management Agreement is terminated, such
association or corporation shall no longer be considered a PA for
purposes of this Agreement.
"Parent" has the meaning specified in the Introduction hereto.
"Parent Property" has the meaning specified in Section 10.3.
"Parent Pledge Agreement" means the Amended and Restated
Pledge Agreement between Parent and Agent dated February 16, 1996, as
the same has been and may be amended, supplemented or otherwise
modified.
"PBGC" means the Pension Benefit Guaranty Corporation or any
entity succeeding to all or any of its functions under ERISA.
"Person" means any individual, corporation, business trust,
association, company, partnership, joint venture, governmental
authority, or other entity.
"Plan" means any employee benefit or other plan established or
maintained by any Obligated Party or any ERISA Affiliate and which is
covered by Title IV of ERISA.
"Pledge Agreements" means the Subsidiary Pledge Agreements and
the Parent Pledge Agreement.
"Potential Default" means any condition or event which, after
notice or lapse of time or both, would constitute an Event of Default.
"Principal Office" means the office of Agent located at 0000
Xxxxxx, Xxxxxxx, Xxxxx.
"Prohibited Transaction" means any transaction set forth in
Section 406 of ERISA or Section 4975 of the Code.
"Pro Rata" means, as to any Bank, its ratable share expressed
as a percentage obtained by multiplying by one hundred (100) the ratio
obtained by either (a) dividing the
THIRD AMENDED AND RESTATED LOAN AGREEMENT, Page 17
17
Commitment of the Bank in question by the total Commitments of all the
Banks or (b) dividing the aggregate principal amount of the Advances
and/or Letter of Credit Liabilities outstanding which were made by or,
with respect to Letter of Credit Liabilities, participated in by the
Bank in question, by the aggregate principal amount of the Advances
and/or Letter of Credit Liabilities outstanding hereunder.
"Quarterly Payment Date" means the last day of March, June,
September, and December of each year.
"Regulation D" means Regulation D of the Board of Governors of
the Federal Reserve System as the same may be amended or supplemented
from time to time.
"Regulatory Change" means, with respect to any Bank, any
change after the date of this Agreement in United States federal,
state, or foreign laws or regulations (including Regulation D) or the
adoption or making after such date of any interpretations, directives,
or requests applying to a class of banks including any Bank of or
under any United States federal or state, or any foreign, laws or
regulations (whether or not having the force of law) by any court or
governmental or monetary authority charged with the interpretation or
administration thereof.
"Reportable Event" means any of the events set forth in
Section 4043 of ERISA.
"Required Banks" means at any time while no Advances or Letter
of Credit Liabilities are outstanding, Banks holding at least
sixty-six and two thirds percent (66 2/3%) of the aggregate amount of
the Commitments and, at any time while Advances and/or Letter of
Credit Liabilities are outstanding, Banks holding at least sixty-six
and two thirds percent (66 2/3%) of the outstanding aggregate
principal amount of the Advances and/or Letter of Credit Liabilities.
"Reserve Requirement" means, for any Eurodollar Advance for
any Interest Period therefor or with respect to the calculation of the
Adjusted Base Rate, the average maximum rate at which reserves
(including any marginal, supplemental or emergency reserves) are
required to be maintained during such Interest Period or as of such
calculation date under Regulation D by member banks of the Federal
Reserve System in New York City with deposits exceeding one billion
Dollars against (i) in the case of Eurodollar Advances "Eurocurrency
Liabilities" as such term is used in Regulation D or (ii) in the case
of the calculation of the Adjusted Base Rate, three-month non-personal
Dollar time deposits in an amount of One Hundred Thousand Dollars
($100,000) or more. Without limiting the effect of the foregoing, the
Reserve Requirement shall reflect any other reserves required to be
maintained by such member banks by reason of any Regulatory Change
against (i) any category of liabilities which includes deposits by
reference to which the Adjusted Eurodollar Rate is to be determined or
(ii) any category of extensions of credit or other assets which
include Eurodollar Advances or Base Rate Advances.
THIRD AMENDED AND RESTATED LOAN AGREEMENT, Page 18
18
"Revolving Termination Date" means 11:00 A.M. Houston, Texas
time on March 7, 2000, or such earlier or later date and time on which
the Commitments terminate as provided in this Agreement.
"RICO" means the Racketeer Influenced and Corrupt Organization
Act of 1970, as amended from time to time.
"Second Loan Agreement" has the meaning specified in the
Recitals.
"Subsidiary" means (a) any corporation of which more than
fifty percent (50%) of the issued and outstanding securities having
ordinary voting power for the election of a majority of directors is
owned or controlled, directly or indirectly, by Parent, by Parent and
one or more other Subsidiaries, or by one or more other Subsidiaries
and (b) any business trust, association, partnership, joint venture or
other entity of which more than fifty percent (50%) of the ownership
interest thereof having ordinary voting or management power is owned
or controlled, directly or indirectly, by Parent and one or more other
Subsidiaries, or by one or more other Subsidiaries.
"Subsidiary Pledge Agreement" means a Pledge Agreement
substantially in the form of Exhibit "E" hereto executed by a
Subsidiary, as the same may be amended, supplemented or otherwise
modified. The Subsidiary Pledge Agreements include the EmCare Pledge
Agreement, the EMTAC Pledge Agreement, the Trust Pledge Agreement and
the Network Pledge Agreement.
"Succession Agreements" means that certain Stock Transfer and
Option Agreement dated February 24, 1997 among EmCare, the PAs that
are or are to become a party thereto in accordance with its terms and
Xxxxxxx X. Xxxxx, Xx., M.D., and that certain Stock Transfer and
Option Agreement dated February 24, 1997 among EmCare, the PAs that
are or are to become a party thereto in accordance with its terms and
Xxxxxx X. Xxxxxx, M.D., as each such agreement exists as of the
Closing Date without further amendment or other modification unless
amended with the consent of the Required Banks.
"Texas Commerce" has the meaning set forth in the Introduction
to this Agreement.
"Trust Pledge Agreement" means that certain Pledge Agreement
between EMTAC Business Trust and Texas Commerce dated December 31,
1993, as modified by the Second Loan Agreement and as the same may
hereafter be amended, supplemented or otherwise modified.
"Type" means any type of Advance (i.e., Base Rate Advance or
Eurodollar Advance).
Section 1.2 Other Definitional Provisions. All definitions
contained in this Agreement are equally applicable to the singular and plural
forms of the terms defined. The words "hereof", "herein", and "hereunder" and
words of similar import referring to this Agreement refer to this
THIRD AMENDED AND RESTATED LOAN AGREEMENT, Page 19
19
Agreement as a whole and not to any particular provision of this Agreement.
Unless otherwise specified, all Article, Exhibit and Section references pertain
to this Agreement. All accounting terms not specifically defined herein shall
be construed in accordance with GAAP. Terms used herein that are defined in
the Uniform Commercial Code as adopted by the State of Texas, unless otherwise
defined herein, shall have the meanings specified in the Uniform Commercial
Code as adopted by the State of Texas.
ARTICLE 2
Advances
Section 2.1 Commitment. Subject to the terms and conditions of
this Agreement, each Bank severally agrees to make one or more Advances to
Parent from time to time from the Closing Date to and including the Revolving
Termination Date in an aggregate amount at any time outstanding up to but not
exceeding the amount of such Bank's Commitment as then in effect minus such
Bank's interest in all the outstanding Letter of Credit Liabilities. Subject
to the foregoing limitations, and the other terms and provisions of this
Agreement, Parent may borrow, repay, and reborrow hereunder the amount of the
Commitments by means of Base Rate Advances and Eurodollar Advances until the
Revolving Termination Date and, until the Revolving Termination Date, Parent
may Convert all or part of one Type of Advance into another Type of Advance or
Continue all or part of any Eurodollar Advance. Each Type of Advance shall be
made and maintained at the Banks' Applicable Lending Office for such Type of
Advance.
Section 2.2 The Note. The obligation of Parent to repay a Bank
for Advances made by such Bank and interest thereon shall be evidenced by a
Note executed by Parent, payable to the order of such Bank in the principal
amount of such Bank's Commitment as originally in effect.
Section 2.3 Repayment of Advances. Parent shall repay the unpaid
principal amount of all outstanding Advances on the Revolving Termination Date.
Section 2.4 Interest.
(a) Rate. The unpaid principal amount of the Advances
shall bear interest prior to maturity at a varying rate per annum
equal from day to day to the lesser of (i) the Maximum Rate or (ii)
the Applicable Rate, each such change in the rate of interest charged
on the Advances to become effective, without notice to Parent, on the
effective date of each change in the Applicable Rate or the Maximum
Rate, as the case may be; provided, however, if at any time the rate
of interest specified in clause (ii) preceding shall exceed the
Maximum Rate, thereby causing the interest on the Advances to be
limited to the Maximum Rate, then any subsequent reduction in the
Applicable Rate shall not reduce the rate of interest on the Advances
below the Maximum Rate until the aggregate amount of interest accrued
on the Advances equals the aggregate amount of interest which would
have accrued on the Advances if the interest rate specified in clause
(ii) preceding had at all times been in effect. All past due
principal and interest shall bear
THIRD AMENDED AND RESTATED LOAN AGREEMENT, Page 20
20
interest at the Default Rate. As used in this subsection 2.4(a), the
following terms shall have the meanings set forth below:
"Applicable Rate" means: (i) during the period that
an Advance is a Base Rate Advance, the Adjusted Base Rate plus
the Base Margin and (ii) during the period that an Advance is
a Eurodollar Advance, the Adjusted Eurodollar Rate plus the
Eurodollar Margin. Upon delivery of the Compliance
Certificate accompanying the financial statements delivered in
accordance with subsections 7.1(b) as of the end of each
fiscal quarter, commencing with the Compliance Certificate
delivered for the quarter ending March 31, 1997, the Base
Margin and the Eurodollar Margin shall be automatically
adjusted in accordance with the Parent's actual Leverage Ratio
set forth therein and the table set forth in the applicable
definition, such adjustment to be retroactive to the first day
of the fiscal quarter in which such Compliance Certificate is
delivered. If Parent fails to deliver such Compliance
Certificate which sets forth the Leverage Ratio during any
fiscal quarter, the Base Margin and Eurodollar Margin during
the quarter for which such Compliance Certificate was not
delivered shall automatically be adjusted to one-half of one
percent (0.50%) and two percent (2.00%), respectively,
retroactively to the first day of such quarter.
"Base Margin" means, during each fiscal quarter, the
percent set forth in the table below opposite the Parent's
actual Leverage Ratio determined as of the last day of the
preceding fiscal quarter:
---------------------------------------------------
LEVERAGE RATIO BASE MARGIN
-------------- -----------
---------------------------------------------------
Less than or equal to 2.5 to 1.0 .00%
---------------------------------------------------
Greater than 2.5 to 1.0 .25%
---------------------------------------------------
; provided that, prior to the delivery of the first quarter
end Compliance Certificate hereunder, the Base Margin shall be
zero percent (0%) unless and until it is retroactively
adjusted in accordance with the definitions of Applicable Rate
and Base Margin.
"Eurodollar Margin" means, during each fiscal
quarter, the percent set forth in the table below opposite the
Parent's actual Leverage Ratio determined as of the last day
of the preceding fiscal quarter:
---------------------------------------------------------
LEVERAGE RATIO EURODOLLAR MARGIN
-------------- -----------------
---------------------------------------------------------
Less than 1.0 to 1.0 .75%
---------------------------------------------------------
Less than or equal to 1.5 to 1.0
but greater than or equal to 1.0 1.00%
to 1.0
---------------------------------------------------------
Greater than 1.5 to 1.0 but less
than or equal to 2.0 to 1.0 1.25%
---------------------------------------------------------
Greater than 2.0 to 1.0 but less 1.50%
than or equal to 2.5 to 1.0
---------------------------------------------------------
Greater than 2.5 to 1.0 1.75%
---------------------------------------------------------
THIRD AMENDED AND RESTATED LOAN AGREEMENT, Page 21
21
; provided that, prior to the delivery of the first
quarter end Compliance Certificate hereunder, the Eurodollar
Margin shall be one percent (1%) unless and until it is
retroactively adjusted in accordance with the definitions of
Applicable Rate and Eurodollar Margin.
(b) Payment. Accrued and unpaid interest on the Advances
shall be due and payable as follows: (i) in the case of Base Rate
Advances, on each Quarterly Payment Date; (ii) in the case of each
Eurodollar Advance, on the last day of the Interest Period with
respect thereto and, in the case of an Interest Period with a duration
greater than three months, at three-month intervals after the first
day of such Interest Period; and (iii) on the Revolving Termination
Date.
(c) Computation. Interest on the Eurodollar Advances
shall be computed on the basis of a year of 360 days and the actual
number of days elapsed (including the first day but excluding the last
day) unless such calculation would result in a usurious rate, in which
case interest shall be calculated on the basis of a year of 365 or 366
days, as the case may be. Interest on the Base Rate Advances shall be
computed on the basis of (i) a year of 365 or 366 days as the case may
be and the actual number of days elapsed (including the first days but
excluding the last) when the Prime Rate (as defined in the definition
of Adjusted Base Rate) is the applicable Adjusted Base Rate and (ii) a
year of 360 days and the actual number of days elapsed (including the
first day but excluding the last) when the Base CD Rate or Federal
Funds Rate (both as defined in the definition of Adjusted Base Rate)
is the applicable Adjusted Base Rate unless such calculation would
result in a usurious rate, in which case interest shall be calculated
on the basis of a year of 365 or 366 days, as the case may be.
Section 2.5 Requests for Advances. Parent shall give Agent
notice by means of a Credit Request Form of each requested Advance, at least
one (1) business day before the requested date of each Base Rate Advance and at
least three (3) Business Days before the requested date of each Eurodollar
Advance, specifying: (i) the requested date of such Advance (which shall be a
Business Day), (ii) the amount of such Advance, (iii) the Type of the Advance,
and (iv) in the case of a Eurodollar Advance, the duration of the Interest
Period for such Advance. Agent at its option may accept telephonic requests
for Advances, provided that such acceptance shall not constitute a waiver of
Agent's right to delivery of a Credit Request Form in connection with
subsequent Advances. Any telephonic request for an Advance by Parent shall be
promptly confirmed by submission of a properly completed Credit Request Form to
Agent. Each Advance shall be in a minimum principal amount of Five Hundred
Thousand Dollars ($500,000). The aggregate principal amount of Eurodollar
Advances having the same Interest Period shall be at least equal to One Million
Dollars ($1,000,000). The Agent shall promptly notify each Bank of each notice
received by Agent under this Section 2.5. Not later than 1:00 P.M. Houston,
Texas time on the date specified for each Advance hereunder, each Bank will
make available to the Agent at the Principal Office in immediately available
funds, for the account of Parent, its Pro Rata (calculated based on the
Commitments) share of each Advance. After the Agent's receipt of such funds
and subject to the other terms and conditions of this Agreement, the Agent will
make such Advance available to Parent by depositing the same, in immediately
available funds, in an account of Parent (designated by Parent) maintained with
the
THIRD AMENDED AND RESTATED LOAN AGREEMENT, Page 22
22
Agent at the Principal Office. All notices by Parent under this Section shall
be irrevocable and shall be given not later than 11:00 A.M. Houston, Texas,
time on the day which is not less than the number of Business Days specified
above for such notice.
Section 2.6 Use of Proceeds. The advances outstanding under the
Second Loan Agreement on the Closing Date shall be repaid with the initial
Advances hereunder but the commitments under the Second Loan Agreement shall
not be extinguished but shall continue uninterrupted under the terms of this
Agreement. The proceeds of any additional Advances shall be used for general
corporate purposes including to finance (a) the working capital and capital
expenditure needs of Parent and the Subsidiaries and (b) Acquisitions permitted
hereunder.
Section 2.7 Conversions and Continuations. Parent shall have the
right from time to time to Convert all or part of one Type of Advance into
another Type of Advance or to Continue all or part of any Eurodollar Advance by
giving Agent written notice at least one (1) Business Day before Conversion
into a Base Rate Advance and at least three (3) Business Days before Conversion
into or Continuation of a Eurodollar Advance, specifying: (i) the conversion or
Continuation date, (ii) the amount of the Advance to be Converted or Continued,
(iii) in the case of Conversions, the Type of Advance to be Converted into, and
(iv) in the case of a Continuation of or Conversion into a Eurodollar Advance,
the duration of the Interest Period applicable thereto; provided that (a)
Eurodollar Advances may only be Converted on the last day of the Interest
Period, and (b) except for Conversions to Base Rate Advances, no Conversions
shall be made while an Event of Default or Potential Default has occurred and
is continuing. The Agent shall promptly notify each Bank of any notice
received under this Section 2.7. All notices given by Parent under this
Section shall be irrevocable and shall be given not later than 11:00 A.M.
Houston, Texas time on the day which is not less than the number of Business
Days specified above for such notice. If Parent shall fail to give Agent the
notice as specified above for Continuation or Conversion of a Eurodollar
Advance prior to the end of the Interest Period with respect thereto, such
Eurodollar Advance shall automatically be Converted into a Base Rate Advance on
the last day of the Interest Period for such Eurodollar Advance.
Section 2.8 Commitment Fee; Reduction, Termination and Extension
of Commitment.
(a) Commitment Fee. Parent agrees to pay to the Agent
for the benefit of each Bank a commitment fee on the average daily
unused portion of the Commitments, from and including the Closing
Date, to and including the Revolving Termination Date, at the rate
equal to the Commitment Fee Rate per annum based on a 360 day year and
the actual number of days elapsed, payable on each Quarterly Payment
Date, and on the Revolving Termination Date. The term "Commitment Fee
Rate" means, during each fiscal quarter, the basis points set forth in
the table below opposite the Parent's actual Leverage Ratio determined
as of the last day of the preceding fiscal quarter:
===========================================================
COMMITMENT FEE RATE
LEVERAGE RATIO (IN BASIS POINTS)
--------------
-----------------------------------------------------------
Less than 1.0 to 1.0 18.75
-----------------------------------------------------------
Greater than or equal to 1.0 to 22.00
1.0 but less than or equal to 1.5
to 1.0
-----------------------------------------------------------
THIRD AMENDED AND RESTATED LOAN AGREEMENT, Page 23
23
-----------------------------------------------------------
COMMITMENT FEE RATE
LEVERAGE RATIO (IN BASIS POINTS)
--------------
-----------------------------------------------------------
Greater than 1.5 to 1.0 but less 25.00
than or equal to 2.0 to 1.0
-----------------------------------------------------------
Greater than 2.0 to 1.0 but less 31.25
than or equal to 2.5 to 1.0
-----------------------------------------------------------
Greater than 2.5 to 1.0 37.50
===========================================================
; provided that, prior to the delivery of the first quarter end
Compliance Certificate hereunder, the Commitment Fee Rate shall be
22.00 basis points unless and until it is retroactively adjusted in
accordance with this definition. Upon delivery of the Compliance
Certificate accompanying the financial statements delivered in
accordance with subsections 7.1(b) as of the end of each fiscal
quarter, commencing with the Compliance Certificate delivered for the
quarter ending March 31, 1997, the Commitment Fee Rate shall be
automatically adjusted in accordance with the Parent's actual Leverage
Ratio set forth therein and the table set forth above, such adjustment
to be retroactive to the first day of the fiscal quarter in which such
Compliance Certificate is delivered. If Parent fails to deliver such
Compliance Certificate which sets for the Leverage Ratio during any
fiscal quarter, the Commitment Fee Rate during the quarter for which
such Compliance Certificate was not delivered shall automatically be
adjusted to 37.5 basis points retroactively to the first day of such
quarter.
(b) Reduction or Termination. Parent shall have the
right at any time to terminate in whole or from time to time to
irrevocably reduce in part the Commitments upon at least five (5)
Business Days prior notice to the Agent specifying the effective date
thereof, whether a termination or reduction is being made, and the
amount of any partial reduction, provided that each partial reduction
shall be in the amount of One Million Dollars ($1,000,000) or an
integral multiple thereof and Parent shall simultaneously prepay the
amount by which the unpaid principal amount of the Advances exceeds
the Commitments (after giving effect to such notice) plus accrued and
unpaid interest on the principal amount so prepaid and any amounts due
under Section 4.5. The Commitments may not be reinstated after they
have been terminated or reduced.
(c) Extension of Commitment/Revolving Termination Date.
The Banks have no obligation or commitment to extend the Revolving
Termination Date. However, on or before October 31 of 1998 and 1999
the Parent may request that the Banks conduct a review of the
Obligated Parties to determine whether to extend the Revolving
Termination Date for another one-year period from the then current
Revolving Termination Date. If the Parent makes such a request by
such date, the Banks will conduct the review of the Obligated Parties
and will advise the Parent on or before January 15 of the next
calendar year of their decision whether to extend the Revolving
Termination Date. The Banks' determination as to the extension of the
Revolving Termination Date shall be made by the Banks in their sole
discretion, will only be considered if the financial condition of the
Obligated Parties is satisfactory to the Banks and no Event of Default
or Potential Default shall have occurred and be continuing and will
only be effective if all the Banks agree.
Section 2.9 Letters of Credit. Subject to the terms and
conditions of this Agreement, Agent agrees to issue one or more Letters of
Credit for the account of Parent from time to time
THIRD AMENDED AND RESTATED LOAN AGREEMENT, Page 24
24
from the Closing Date to and including the Revolving Termination Date;
provided, however, that (i) the outstanding Letter of Credit Liabilities shall
not at any time exceed Five Million Dollars ($5,000,000) and (ii) the sum of
the outstanding Letter of Credit Liabilities plus the aggregate outstanding
amount of the Advances shall not at any time exceed the aggregate Commitments.
Each Letter of Credit shall have an expiration date not later than forty-five
(45) days prior to the Revolving Termination Date, shall be payable in Dollars,
shall have a minimum face amount of Fifty Thousand Dollars ($50,000), must
support a transaction that is entered into in the ordinary course of Parent's,
any Subsidiary's or any PA's business, must otherwise be satisfactory in form
and substance to Agent and shall be issued pursuant to such documentation
(including, without limitation, Agent's standard application for issuance of
letters of credit as then in effect) as Agent may require; provided, that, in
the event of any conflict between the terms of such agreement and the other
Loan Documents, the terms of the other Loan Documents shall control. No Letter
of Credit shall require any payment by Agent to the beneficiary thereunder
pursuant to a drawing prior to the third Business Day following presentment of
a draft and any related documentation to Agent. Upon the date of issue of a
Letter of Credit, the Agent shall be deemed, without further action by any
party hereto, to have sold to each other Bank, and each other Bank shall be
deemed, without further action by any party hereto, to have purchased from the
Agent a participation to the extent of such Bank's Pro Rata (calculated based
on the Commitments) share of such Letter of Credit and the related Letter of
Credit Liabilities.
Section 2.10 Procedure for Issuing Letters of Credit. Each Letter
of Credit shall be issued on at least three (3) Business Days prior notice from
Parent to Agent by means of a Credit Request Form describing the transaction
proposed to be supported thereby and specifying (a) the date on which such
Letter of Credit is to be issued (which shall be a Business Day), and (b) the
terms of such Letter of Credit. Agent at its option may accept telephonic
requests for Letters of Credit, provided that such acceptance shall not
constitute a waiver of Agent's right to require delivery of a Credit Request
Form in connection with subsequent Letters of Credit. Any telephonic request
for a Letter of Credit by Parent shall be promptly confirmed by submission of a
properly completed Credit Request Form to Agent. Upon fulfillment of the
applicable conditions precedent in Article 5, Agent shall make the applicable
Letter of Credit available to Parent or, if so requested by Parent, to the
beneficiary of the Letter of Credit and shall provide a copy thereof to each
Bank.
Section 2.11 Drawing on Letters of Credit.
(a) Funding of Drawings. Upon receipt from the
beneficiary of any Letter of Credit of any demand for payment or other
drawing under such Letter of Credit, the Agent shall promptly notify
the Parent and each Bank as to the amount to be paid as a result of
such demand or drawing and the respective payment date. Not later
than 1:00 P.M. on the applicable payment date, each Bank will make
available to the Agent, at the Principal Office, in immediately
available funds, an amount equal to such Bank's Pro Rata (calculated
based on the Commitments) share of the amount to be paid as a result
of such demand or drawing even if the conditions to an Advance under
Article 5 hereof have not been satisfied.
THIRD AMENDED AND RESTATED LOAN AGREEMENT, Page 25
25
(b) Reimbursements. The Parent shall be irrevocably and
unconditionally obligated to immediately reimburse the Agent for any
amounts paid by the Agent or the Banks upon any demand for payment or
drawing under any Letter of Credit, without presentment, demand,
protest, or other formalities of any kind on the date of the
corresponding payment under the Letter of Credit. Subject to the
other terms and conditions of this Agreement, such reimbursement may
be made by Parent requesting an Advance in accordance with Section 2.5
the proceeds of which shall be credited against the Parent's
obligations under this Section 2.11. The Agent will pay to each Bank
such Bank's Pro Rata (calculated based on the applicable Letter of
Credit Liabilities) share of all amounts received from the Parent for
application in payment, in whole or in part, to the reimbursement
obligation in respect of any Letter of Credit, but only to the extent
such Bank has made payment to the Agent in respect of such Letter of
Credit pursuant to clause (a) of this Section 2.11.
Section 2.12 Letter of Credit Fee. Parent shall pay to Agent for
the account of each Bank a letter of credit fee payable on the date each Letter
of Credit is issued in an amount equal to the greater of (a) such Bank's Pro
Rata (calculated based on the Commitments) share of Two Hundred Dollars ($200)
or (b) the Eurodollar Margin (as defined in Section 2.4) in effect on the date
of issuance (without giving effect to any retroactive change thereto) per annum
of such Bank's Pro Rata (calculated based on the Commitments) share of the
stated amount of such Letter of Credit, for the period during which such Letter
of Credit will remain outstanding, based on a 360-day year and the actual
number of days to elapse. After receiving any payment of any letter of credit
fees under this Section 2.12, the Agent will promptly pay to each Bank the
letter of credit fees then due such Bank. With respect to each Letter of
Credit, the Parent will also pay to the Agent for its account only and on the
date of issuance of the Letter of Credit an issuance fee per annum equal to one
quarter of one percent (.25%) of the stated amount of the Letter of Credit.
The Parent will also pay to the Agent for its account only, all customary fees
for amendments to and processing of the Letters of Credit.
Section 2.13 Obligations Absolute. The obligations of Parent to
reimburse Agent and the Banks for draws under any Letter of Credit shall be
absolute, unconditional, and irrevocable, and shall be performed strictly in
accordance with the terms of this Agreement and the other Loan Documents under
all circumstances whatsoever, including without limitation the following
circumstances: (a) any lack of validity or enforceability of any Letter of
Credit or any other Loan Document; (b) any amendment or waiver of or any
consent to departure from any Loan Document; (c) the existence of any claim,
set-off, counterclaim, defense or other rights which any Obligated Party or any
other Person may have at any time against any beneficiary of any Letter of
Credit, Agent, any Bank, or any other Person, whether in connection with this
Agreement or any other Loan Document or any unrelated transaction; (d) any
statement, draft, or other document presented under any Letter of Credit
proving to be forged, fraudulent, invalid, or insufficient in any respect or
any statement therein being untrue or inaccurate in any respect whatsoever; (e)
payment by Agent under any Letter of Credit against presentation of a draft or
other document which does not comply with the terms of such Letter of Credit;
or (f) any other circumstance or happening whatsoever, whether or not similar
to any of the foregoing.
THIRD AMENDED AND RESTATED LOAN AGREEMENT, Page 26
26
Section 2.14 Limitation of Liability. Parent and EmCare assume
all risks of the acts or omissions of any beneficiary of any Letter of Credit
with respect to its use of such Letter of Credit. Neither Agent, any Bank nor
any of their respective officers or directors shall have any responsibility or
liability to any Obligated Party or any other Person for: (a) the failure of
any draft to bear any reference or adequate reference to any Letter of Credit,
or the failure of any documents to accompany any draft at negotiation, or the
failure of any Person to surrender or to take up any Letter of Credit or to
send documents apart from drafts as required by the terms of any Letter of
Credit, or the failure of any Person to note the amount of any instrument on
any Letter of Credit, each of which requirements, if contained in any Letter of
Credit itself, it is agreed may be waived by Agent, (b) errors, omissions,
interruptions, or delays in transmission or delivery of any messages, (c) the
validity, sufficiency, or genuineness of any draft or other document, or any
endorsement(s) thereon, even if any such draft, document or endorsement should
in fact prove to be in any and all respects invalid, insufficient, fraudulent,
or forged or any statement therein is untrue or inaccurate in any respect, (d)
the payment by the Agent to the beneficiary of any Letter of Credit against
presentation of any draft or other document that does not comply with the terms
of the Letter of Credit, or (e) any other circumstance whatsoever in making or
failing to make any payment under a Letter of Credit. The applicable Obligated
Party shall have a claim against Agent, and Agent shall be liable to the
applicable Obligated Party, to the extent of any direct, but not consequential,
damages suffered by the applicable Obligated Party which were caused by (i)
Agent's willful misconduct or gross negligence in determining whether documents
presented under any Letter of Credit complied with the terms thereof or (ii)
Agent's willful failure to pay under any Letter of Credit after presentation to
it of documents strictly complying with the terms and conditions of such Letter
of Credit. Agent may accept documents that appear on their face to be in
order, without responsibility for further investigation, regardless of any
notice or information to the contrary.
ARTICLE 3
Payments
Section 3.1 Method of Payment. All payments of principal,
interest, and other amounts to be made by any Obligated Party under this
Agreement, the Note, and the other Loan Documents shall be made to Agent at its
Principal Office for the account of the Banks' Applicable Lending Offices in
Dollars and in immediately available funds, without setoff, deduction, or
counterclaim, not later than 11:00 A.M. Houston, Texas time on the date on
which such payment shall become due (each such payment made after such time on
such due date to be deemed to have been made on the next succeeding Business
Day). Each Obligated Party shall, at the time of making each such payment,
specify to Agent the Advances or other sums payable under this Agreement, the
Note, or other Loan Document to which such payment is to be applied (and in the
event that the Obligated Party fails to so specify, or if an Event of Default
has occurred and is continuing, Agent may apply such payment to the Obligations
in such order and manner as it may elect in its sole discretion, subject to
Section 3.3). Whenever any payment under this Agreement, the Note, or any
other Loan Document shall be stated to be due on a day that is not a Business
Day, such payment may be made on the next succeeding Business Day, and such
extension of time shall in such case be included in the computation of the
payment of interest and fee, as the case may be. Agent agrees to pay to the
Banks their respective shares of
THIRD AMENDED AND RESTATED LOAN AGREEMENT, Page 27
27
all payments received under the Loan Documents to which the Banks are entitled.
Any such payment by the Agent to a Bank shall be made on or before 3:00 P.M.,
Houston, Texas time on the Business Day on which Agent is deemed to receive the
corresponding payment under the Loan Documents. If the Agent fails to send a
Bank its share of a payment received under the Loan Documents on such Business
Day and by such time, the Agent shall pay to such Bank interest on its share of
such payment for the period commencing on the date such payment was required to
be made to the Bank until the Bank receives such payment at a rate per annum
equal to the Federal Funds Rate for such period.
Section 3.2 Optional Payment. Parent may, at any time in the
case of Base Rate Advances and with at least three (3) Business Days prior
notice to Agent in the case of Eurodollar Advances prepay or repay, as
applicable, the outstanding Advances in whole at any time or from time to time
in part without premium or penalty, provided that (i) Eurodollar Advances may
be prepaid or repaid only on the last day of the Interest Period for such
Advances unless Parent pays the amounts owing in connection with Section 4.5,
(ii) each partial prepayment or repayment shall be in the principal amount of
Five Hundred Thousand Dollars ($500,000) or an integral multiple thereof, and
(iii) each prepayment or repayment shall be accompanied with unpaid interest
accrued on the principal amount paid.
Section 3.3 Pro Rata Treatment. Except to the extent otherwise
provided herein: (i) each Advance shall be by the Banks under Section 2.1 and
2.11, each payment of fees under Sections 2.8 and 2.12 shall be made for the
account of the Banks, and each termination or reduction of the Commitments
under Section 2.8 shall be applied to the Commitments of the Banks, Pro Rata
(calculated based on the Commitments); (ii) each Conversion of Advances of a
particular Type (other than Conversions provided for by Section 4.4), shall be
made Pro Rata among the Banks holding Advances of such Type according to the
respective principal amounts of such Advances held by such Banks; (iii) each
payment and prepayment of principal of or interest on Advances by Parent of a
particular Type shall be made to the Agent for the account of the Banks holding
Advances of such Type Pro Rata in accordance with the respective unpaid
principal amounts of such Advances held by such Banks; and (iv) Interest
Periods for Advances of a particular Type shall be allocated among the Banks
holding Advances of such Type Pro Rata according to the respective principal
amounts held by such Banks.
Section 3.4 Non-Receipt of Funds by the Agent. Unless the Agent
shall have been notified by a Bank or Parent (the "Payor") prior to the date on
which such Bank is to make payment to the Agent of the proceeds of an Advance
to be made by it hereunder or Parent is to make a payment to the Agent for the
account of one or more of the Banks, as the case may be (such payment being
herein called the "Required Payment"), which notice shall be effective upon
receipt, that the Payor does not intend to make the Required Payment to the
Agent, the Agent may assume that the Required Payment has been made and may, in
reliance upon such assumption (but shall not be required to), make the amount
thereof available to the intended recipient on such date and, if the Payor has
not in fact made the Required Payment to the Agent, the recipient of such
payment shall, on demand, pay to the Agent the amount made available to it
together with interest thereon in respect of the period commencing on the date
such amount was so made available by the Agent until the date the Agent
recovers such amount at a rate per annum equal to the Federal Funds Rate for
such period.
THIRD AMENDED AND RESTATED LOAN AGREEMENT, Page 28
28
Section 3.5 Withholding Taxes and Other Costs. All payments by
Parent of principal of and interest on the Notes and of all fees and other
amounts payable under any Loan Document are payable without deduction for or on
account of any present or future taxes, duties or other charges levied or
imposed by the United States of America or by the government of any
jurisdiction outside the United States of America or by any political
subdivision or taxing authority of or in any of the foregoing through
withholding or deduction with respect to any such payments, excluding taxes,
duties or other charges on, or measured by, overall net income (including
franchise taxes) of Agent or any Bank. If any such taxes, duties or other
charges are so levied or imposed, Parent will pay additional interest or will
make additional payments in such amounts so that every net payment of principal
of and interest on the Notes and of all other amounts payable by it under any
Loan Document, after withholding or deduction for or on account of any such
present or future taxes, duties or other charges, will not be less than the
amount provided for herein or therein, provided that Parent, shall have no
obligation to pay such additional amounts to any Bank to the extent that such
taxes, duties, or other charges are levied or imposed by reason of the failure
of such Bank to comply with the provisions of Section 3.6. Parent shall
furnish promptly to the Agent for distribution to each affected Bank, as the
case may be, official receipts evidencing any such withholding or reduction.
Agent and each Bank agrees that it will take all reasonable actions (including,
without limitation, changing the jurisdiction of its lending office) to avoid
or to minimize amounts payable by Parent pursuant to this Section 3.5.
Section 3.6 Withholding Tax Exemption. Each Bank that is not
incorporated under the laws of the United States of America or a state thereof
agrees that it will deliver to Parent and the Agent two duly completed copies
of United States Internal Revenue Service Form 1001 or 4224, certifying in
either case that such Bank is entitled to receive payments from Parent under
any Loan Document without deduction or withholding of any United States federal
income taxes. Each Bank which so delivers a Form 1001 or 4224 further
undertakes to deliver to Parent and the Agent two additional copies of such
form (or a successor form) on or before the date such form expires or becomes
obsolete or after the occurrence of any event requiring a change in the most
recent form so delivered by it, and such amendments thereto or extensions or
renewals thereof as may be reasonably requested by Parent or the Agent, in each
case certifying that such Bank is entitled to receive payments from Parent
under any Loan Document without deduction or withholding of any United States
federal income taxes, unless an event (including without limitation any change
in treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent such Bank from duly completing and delivering any such
form with respect to it and such Bank advises Parent and the Agent that it is
not capable of receiving such payments without any deduction or withholding of
United States federal income tax.
ARTICLE 4
Yield Protection and Illegality
Section 4.1 Additional Costs.
THIRD AMENDED AND RESTATED LOAN AGREEMENT, Page 29
29
(a) Parent shall pay directly to a Bank from time to time
such amounts as such Bank may determine to be necessary to compensate
it for any out-of-pocket costs incurred by such Bank which such Bank
determines are attributable to its making or maintaining of any
Eurodollar Advances hereunder or its obligation to make any of such
Advances hereunder, or any actual reduction in any amount receivable
by such Bank hereunder in respect of any such Advances or such
obligation (such increases in costs and reductions in amounts
receivable being herein called "Additional Costs"), resulting from any
Regulatory Change which:
(i) changes the basis of taxation of any amounts
payable to such Bank under this Agreement or the Note in
respect of any of such Advances (other than taxes imposed on
the overall net income of such Bank or its Applicable Lending
Office for any of such Advances by the jurisdiction in which
such Bank has its principal office or such Applicable Lending
Office);
(ii) imposes or modifies any reserve, special
deposit, minimum capital, capital ratio, or similar
requirement relating to any extensions of credit or other
assets of, or any deposits with or other liabilities or
commitments of, such Bank (including any of such Advances or
any deposits referred to in the definition of "Eurodollar
Rate" in Section 1.1 hereof); or
(iii) imposes any other condition affecting this
Agreement or the Note or any of such extensions of credit,
liabilities or commitments.
A Bank will notify Parent (with a copy to Agent) of any event
occurring after the date of this Agreement which will entitle such
Bank to compensation pursuant to this Section 4.1 (a) as promptly as
practicable after it obtains knowledge thereof and determines to
request such compensation, and will designate a different Applicable
Lending Office for the Advances affected by such event if such
designation will avoid the need for, or reduce the amount of, such
compensation and will not, in the sole opinion of such Bank, violate
any law, rule, or regulation or be in any way disadvantageous to such
Bank. A Bank will furnish Parent with a certificate setting forth the
basis and the amount of each of its requests for compensation under
this Section 4.1(a). If a Bank requests compensation from Parent under
this Section 4.1(a), Parent may, by notice to such Bank (with a copy
to Agent) suspend the obligation of such Bank to make additional
Advances of the Type with respect to which such compensation is
requested until the Regulatory Change giving rise to such request
ceases to be in effect (in which case the provisions of Section 4.4
shall be applicable).
(b) Without limiting the effect of the foregoing
provisions of this Section 4.1, in the event that, by reason of any
Regulatory Change, a Bank either (i) incurs Additional Costs based on
or measured by the excess above a specified level of the amount of a
category of deposits or other liabilities of such Bank which includes
deposits by reference to which the interest rate on Eurodollar
Advances is determined as provided in this Agreement or a category of
extensions of credit or other assets of such Bank which
THIRD AMENDED AND RESTATED LOAN AGREEMENT, Page 30
30
includes Eurodollar Advances or (ii) becomes subject to restrictions
on the amount of such a category of liabilities or assets which it may
hold, then, if such Bank so elects by notice to Parent (with a copy to
Agent) the obligation of such Bank to make additional Advances of such
Type hereunder shall be suspended until such Regulatory Change ceases
to be in effect (in which case the provisions of Section 4.4 hereof
shall be applicable).
(c) Determinations and allocations by a Bank for purposes
of this Section 4.1 of the effect of any Regulatory Change on its
costs of maintaining its obligations to make Advances or of making or
maintaining Advances or on amounts receivable by it in respect of
Advances, and of the additional amounts required to compensate it in
respect of any Additional Costs, shall be conclusive, provided that
such determinations and allocations are made on a reasonable basis.
Section 4.2 Limitation on Types of Advances. Anything herein to
the contrary notwithstanding, if with respect to any Eurodollar Advances for
any Interest Period therefor:
(a) the Agent reasonably determines (which determination
shall be conclusive) that quotations of interest rates for the
relevant deposits referred to in the definition of "Eurodollar Rate"
in Section 1.1 hereof are not being provided in the relative amounts
or for the relative maturities for purposes of determining the rate of
interest for such Advances as provided in this Agreement; or
(b) the Required Banks reasonably determine (which
determination shall be conclusive) that the relevant rates of interest
referred to in the definition of "Eurodollar Rate" in Section 1.1
hereof on the basis of which the rate of interest for such Advances
for such Interest Period is to be determined do not accurately reflect
the cost to the Banks of making or maintaining such Advances for such
Interest Period;
then Agent shall give Parent prompt notice thereof specifying the relevant
amounts or periods, and so long as such condition remains in effect, the Banks
shall be under no obligation to make additional Eurodollar Advances or to
Convert Base Rate Advances into Eurodollar Advances and Parent shall, on the
last day(s) of the then current Interest Period(s) for the outstanding
Eurodollar Advances, either prepay such Advances or Convert such Advances into
Base Rate Advances in accordance with the terms of this Agreement.
Section 4.3 Illegality. Notwithstanding any other provision of
this Agreement, in the event that it becomes unlawful for any Bank or its
Applicable Lending Office to (a) honor its obligation to make Eurodollar
Advances hereunder or (b) maintain Eurodollar Advances hereunder, then such
Bank shall promptly notify the Parent thereof (with a copy to Agent) and such
Bank's obligation to make or maintain Eurodollar Advances and to Convert other
Types of Advances into Eurodollar Advances hereunder shall be suspended until
such time as such Bank may again make and maintain Eurodollar Advances (in
which case the provisions of Section 4.4 hereof shall be applicable).
THIRD AMENDED AND RESTATED LOAN AGREEMENT, Page 31
31
Section 4.4 Substitute Base Rate Advances. If the obligation of
a Bank to make Eurodollar Advances shall be suspended pursuant to Section 4.1,
4.2, or 4.3 hereof, all Advances which would be otherwise made by such Bank as
Eurodollar Advances shall be made instead as Base Rate Advances and all
Advances which would otherwise be Converted into Eurodollar Advances shall be
Converted instead into (or shall remain as) Base Rate Advances (and, if an
event referred to in Section 4.1(b) or 4.3 hereof has occurred and such Bank so
requests by notice to Parent, with a copy to Agent, all Eurodollar Advances of
such Bank then outstanding shall be automatically Converted into Base Rate
Advances on the date specified by such Bank in such notice) and, to the extent
that Eurodollar Advances are so made as (or Converted into) Base Rate Advances,
all payments and prepayments of principal which would otherwise be applied to
such Bank's Eurodollar Advances shall be applied instead to its Base Rate
Advances.
Section 4.5 Compensation. Parent shall pay to a Bank, upon the
request of such Bank, such amount or amounts as shall be sufficient (in the
reasonable opinion of such Bank) to compensate it for any actual loss, out-of-
pocket cost, or out-of-pocket expense incurred by it as a result of:
(a) Any payment, prepayment or Conversion of a Eurodollar
Advance for any reason (including, without limitation, the
acceleration of outstanding Advances pursuant to Section 10.2) on a
date other than the last day of an Interest Period for such Advance;
or
(b) Any failure by Parent for any reason (including,
without limitation, the failure of any conditions precedent specified
in Article 5 to be satisfied) to borrow, Convert, or repay a
Eurodollar Advance on the date for such borrowing, Conversion, or
repayment, specified in the relevant notice of borrowing, repayment,
or Conversion under this Agreement.
Without limiting the effect of the preceding sentence, such compensation shall
include an amount equal to the excess, if any, of (i) the amount of interest
which otherwise would have accrued on the principal amount so paid or Converted
or not borrowed for the period from the date of such payment, Conversion, or
failure to borrow to the last day of the Interest Period for such Advance (or,
in the case of a failure to borrow, the Interest Period for such Advance which
would have commenced on the date specified for such borrowing) at the
applicable rate of interest for such Advance provided for herein over (ii) the
interest component of the amount such Bank would have bid in the London
interbank market for Dollar deposits of leading banks and amounts comparable to
such principal amount and with maturities comparable to such period.
Section 4.6 Capital Adequacy. If after the date hereof, a Bank
shall have determined that the adoption of any applicable law, rule or
regulation regarding capital adequacy, or any change therein, 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 such Bank (or its parent) with any
request or directive regarding capital adequacy (whether or not having the
force of law) of any such authority, central bank or comparable agency, has or
would have the effect of reducing the rate of return on such Bank's (or its
parent's) capital as a consequence of its obligations hereunder or the
transactions
THIRD AMENDED AND RESTATED LOAN AGREEMENT, Page 32
32
contemplated hereby to a level below that which such Bank (or its parent) could
have achieved but for such adoption, change or compliance (taking into
consideration such Bank's policies with respect to capital adequacy) by an
amount reasonably deemed by such Bank to be material, then from time to time,
within ten (10) Business Days after demand by such Bank, Parent shall pay to
such Bank such additional amount or amounts as will compensate such Bank (or
its parent) for such reduction. A certificate of a Bank claiming compensation
under this Section and setting forth the additional amount or amounts to be
paid to it hereunder shall be conclusive, provided that the determination
thereof is made on a reasonable basis. In determining such amount or amounts,
such Bank may use any reasonable averaging and attribution methods.
ARTICLE 5
Conditions Precedent
Section 5.1 Initial Advance. The effectiveness of this Agreement
and the obligation of each Bank to make Advances or issue Letters of Credit is
subject to the condition precedent that Agent shall have received on or before
the day of such Advance or issuance of such Letter of Credit, all of the
following, each dated (unless otherwise indicated) the date hereof, in form and
substance satisfactory to Agent:
(a) Resolutions. Resolutions of the Board of Directors
of each Obligated Party or similar evidence of authority, certified by
its Secretary, an Assistant Secretary or other authorized Person which
authorize the execution, delivery, and performance of the Loan
Documents to which it is or is to be a party;
(b) Incumbency Certificate. A certificate of incumbency
certified by the Secretary, an Assistant Secretary or other authorized
Person of each Obligated Party certifying the names of its
representatives authorized to sign each of the Loan Documents to which
it is or is to be a party (including the certificates contemplated
herein) together with specimen signatures of such representatives;
(c) Articles of Incorporation or Association. The
articles of incorporation, association or organization (or similar
document) of each Obligated Party certified by the Secretary of State
of the state of its incorporation, association or organization and
dated a current date or, a certification from an authorized
representative that its articles of incorporation, association or
organization (or similar document) have not been amended or otherwise
modified since the last date on which such document had been provided
to Texas Commerce;
(d) Bylaws; Operating Agreement. The bylaws or operating
agreement of each Obligated Party certified by its Secretary, an
Assistant Secretary or other authorized Person or a certification from
an authorized representative that its bylaws or operating agreement
have not been amended or otherwise modified since the last date on
which such document had been provided to Texas Commerce;
THIRD AMENDED AND RESTATED LOAN AGREEMENT, Page 33
33
(e) Governmental Certificates. Certificates of the
appropriate government officials of the state of incorporation,
association or organization of each Obligated Party as to the
existence and good standing of each Obligated Party, each dated a
current date;
(f) Note. The Notes executed by Parent, one payable to
each Person that is a Bank dated the date hereof in the amount of its
Commitment;
(g) Affiliate Guaranty. A duly executed Affiliate
Guaranty for each Subsidiary and each PA that has not executed an
Existing Guaranty;
(h) EmCare Pledge Amendment. An amendment to the EmCare
Pledge Agreement covering the equity interests in each Subsidiary
directly owned by EmCare and not otherwise pledged thereunder as of
the Closing Date, duly executed together with the original
certificates evidencing the equity interests pledged pursuant thereto
and blank executed stock powers or assignments relating to such equity
interests;
(i) Search. The results of Uniform Commercial Code, tax
and judgment lien searches showing all liens on file against each
Obligated Party who is granting Liens in any property or providing an
Affiliate Guaranty for the first time in connection with this
Agreement in each jurisdiction in which it conducts business, such
searches to be as of a current date;
(j) Opinion of Counsel. A favorable opinion of legal
counsel to the Obligated Parties, as to such matters as the Agent may
reasonably request;
(k) Attorneys' Fees and Expenses. Evidence that the
costs and expenses (including attorneys' fees) referred to in Section
12.1, to the extent incurred, shall have been paid in full by Parent;
(l) Fees. Evidence that the fees described in that
certain fee letter from Texas Commerce and Chase Securities, Inc. to
Parent dated January 23, 1997 shall have been paid to Agent in full
and that each Bank shall have been paid the up front and renewal fees
to which it is entitled; and
(m) Interest and Fees Under Second Loan Agreement.
Evidence that all unpaid interest and fees accrued under the Second
Loan Agreement and all eurodollar breakage costs arising thereunder as
a result of the refinancing of any advances made under the Second Loan
Agreement shall be paid in full on the Closing Date.
Section 5.2 All Advances and Letters of Credit. The obligation
of each Bank to make any Advance (including the initial Advance under this
Agreement) or issue any Letter of Credit (including the initial Letter of
Credit under this Agreement) is subject to the following additional conditions
precedent:
(a) Credit Request Form. Agent shall have received, in
accordance with Section 2.5 or 2.10, as applicable, a Credit Request
Form, dated the date of such Advance
THIRD AMENDED AND RESTATED LOAN AGREEMENT, Page 34
34
or the date of the issuance of such Letter of Credit, executed by an
authorized officer of Parent, all of the statements in which shall be
true and correct on and as of such date whether or not such Credit
Request Form is actually delivered; and
(b) Additional Documentation. Agent and the Banks shall
have received such additional approvals or other documentation as
Agent or its legal counsel, Jenkens & Xxxxxxxxx, a Professional
Corporation, may request.
ARTICLE 6
Representations and Warranties
To induce Agent and each Bank to enter into this Agreement, EmCare and
Parent each represent and warrant to Agent and each Bank that:
Section 6.1 Existence; Place of Business; Chief Executive Office.
Each of Parent and each Subsidiary (a) is a corporation, business trust or
limited partnership (as specified on Schedule 6.14 or elsewhere in this
Agreement) duly organized, validly existing, and in good standing under the
laws of the jurisdiction of its incorporation or organization, as applicable;
(b) has all requisite power and authority to own its assets and carry on its
business as now being or as proposed to be conducted; and (c) is qualified to
do business in all jurisdictions in which the nature of its business makes such
qualification necessary and where failure to so qualify would have a Material
Adverse Effect. Each PA (a) is a professional association or professional
corporation duly organized, validly existing and in good standing under the
laws of the jurisdiction of its association or incorporation; (b) has all
requisite power and authority to own its assets and to carry on its business as
now being or as proposed to be conducted; and (c) is qualified to do business
in all jurisdictions in which the nature of its business makes such
qualification necessary and where failure to so qualify would have a Material
Adverse Effect. Each Obligated Party has the power and authority to execute,
deliver, and perform its obligations under the Loan Documents, the
Administrative Management Agreements and the ER Management Contracts to which
it is a party. The principal place of business and chief executive office of
each of Parent, EmCare, EMTAC, INC., the EMTAC Business Trust, EmCare
Physicians Network, Inc., and Capital Emergency Associates, L.L.C. is set forth
on Schedule 6.1 hereto.
Section 6.2 Financial Statements. Parent has delivered to Agent
and each Bank audited consolidated financial statements of Parent and its
Subsidiaries as at and for the fiscal year ended December 31, 1995, unaudited
consolidated financial statements of Parent and the Subsidiaries for the nine
(9) month period ended September 30, 1996 and unaudited financial statements of
Parent and the Subsidiaries on a consolidating line of business basis for the
fiscal year ended December 31, 1995. Such financial statements have been
prepared in accordance with GAAP, and fairly and accurately present, on a
consolidated or consolidating line of business basis (as applicable), the
financial condition of the Persons the subject thereof as of the respective
dates indicated therein and the results of operations for the respective
periods indicated therein. Neither Parent, any Subsidiary nor any PA has any
material contingent liabilities, liabilities for taxes, material forward or
long-term commitments, or unrealized or
THIRD AMENDED AND RESTATED LOAN AGREEMENT, Page 35
35
anticipated losses from any unfavorable commitments not reflected in such
financial statements. There has been no material adverse change in the
business, condition (financial or otherwise), operations, prospects, or
properties of Parent, the Subsidiaries and the PAs, taken as a whole, since the
effective date of the most recent financial statements referred to in this
Section.
Section 6.3 Corporate Action; No Breach. The execution,
delivery, and performance by each Obligated Party of the Loan Documents, the
Administrative Management Agreements and the ER Management Contracts to which
each is a party have been duly authorized by all requisite action on the part
of each Obligated Party and do not and will not violate or conflict with the
articles of incorporation or association, bylaws, partnership agreement or
trust agreement of any Obligated Party or any law, rule, or regulation or any
order, writ, injunction, or decree of any court, governmental authority, or
arbitrator, and do not and will not conflict with, result in a breach of, or
constitute a default under, or result in the creation or imposition of any Lien
(except a Lien in favor of Agent) upon any of the revenues or assets of any
Obligated Party pursuant to the provisions of any indenture, mortgage, deed of
trust, security agreement, franchise, permit, license, or other instrument or
agreement by which any Obligated Party or any of their respective properties is
bound.
Section 6.4 Operation of Business. Each Obligated Party
possesses all licenses, permits, franchises, patents, copyrights, trademarks,
and tradenames, or rights thereto, to conduct their respective businesses
substantially as now conducted, where the failure to possess such license,
permit, franchise, patent, copyright, tradename, tradename, or rights would
have a Material Adverse Effect and no Obligated Party is in material violation
of any valid rights of others with respect to any of the forgoing.
Section 6.5 Litigation and Judgments. Except as disclosed on
Schedule 6.5 or pursuant to a notice given in accordance with Section 7.1(f) or
7.1(c), (a) there is no action, suit, investigation, or proceeding before or by
any court, governmental authority, arbitrator or mediator pending, or to the
knowledge of Parent or EmCare, threatened against or affecting any Obligated
Party which, if determined adversely to such Obligated Party, could result in
any liability owed by such Obligated Party in an amount in excess of One
Hundred Thousand Dollars ($100,000) and (b) there are no outstanding judgments
against any Obligated Party which if not discharged or stayed would create an
Event of Default under Section 10.1(g). None of the matters disclosed on
Schedule 6.5 are reasonably expected to have a Material Adverse Effect.
Section 6.6 Rights in Properties; Liens. Parent, each Subsidiary
and each PA have good and indefeasible title to or valid leasehold interests in
their respective properties and assets, real and personal, including the
properties, assets, and leasehold interests reflected in the financial
statements described in Section 6.2, and none of the properties, assets, or
leasehold interests of Parent, any Subsidiary or any PA is subject to any Lien,
except as permitted by Section 8.2. None of the Liens disclosed on Schedule
8.2 attached to any collateral securing the Obligations.
Section 6.7 Enforceability. The Loan Documents, Administrative
Management Agreements and ER Management Contracts to which each Obligated Party
is party constitute the legal, valid, and binding obligations of such Obligated
Party, enforceable against such Obligated
THIRD AMENDED AND RESTATED LOAN AGREEMENT, Page 36
36
Party in accordance with their respective terms, except as limited by
bankruptcy, insolvency, or other laws of general application relating to the
enforcement of creditors' rights.
Section 6.8 Approvals. No authorization, approval, or consent
of, and no filing or registration with, any court, governmental authority, or
third party is or will be necessary for the execution, delivery, or performance
by any Obligated Party of the Loan Documents, Administrative Management
Agreements and ER Management Contracts to which it is a party or for the
validity or enforceability thereof.
Section 6.9 Debt. Parent, the Subsidiaries and the PAs have no
Debt, except as permitted by Section 8.1.
Section 6.10 Taxes. Each Obligated Party has filed all tax
returns (federal, state, and local) required to be filed, including all income,
franchise, employment, property, and sales taxes, and have paid all of their
respective liabilities for taxes, assessments, governmental charges, and other
levies that are due and payable, and Parent knows of no pending investigation
of any Obligated Party by any taxing authority or of any pending but unassessed
tax liability of any Obligated Party. The federal income tax liability of each
Obligated Party has never been audited by the Internal Revenue Service.
Section 6.11 Use of Proceeds; Margin Securities. Neither Parent,
any Subsidiary nor any PA is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of purchasing
or carrying margin stock (within the meaning of Regulations G, T, U, or X of
the Board of Governors of the Federal Reserve System), and no part of the
proceeds of any extension of credit under this Agreement will be used to
purchase or carry any such margin stock or to extend credit to others for the
purpose of purchasing or carrying margin stock.
Section 6.12 ERISA. Each Obligated Party is in compliance in all
material respects with all applicable provisions of ERISA. Neither a
Reportable Event nor a Prohibited Transaction has occurred and is continuing
with respect to any Plan. No notice of intent to terminate a Plan has been
filed, nor has any Plan been terminated. No circumstances exist which
constitute grounds entitling the PBGC to institute proceedings to terminate or
appoint a trustee to administer a Plan, nor has the PBGC instituted any such
proceedings. Neither any Obligated Party nor any ERISA Affiliate has
completely or partially withdrawn from a Multiemployer Plan. Each Obligated
Party and each ERISA Affiliate have met their minimum funding requirements
under ERISA with respect to all of their Plans, and the present value of all
vested benefits under each Plan do not exceed the fair market value of all Plan
assets allocable to such benefits, as determined on the most recent valuation
date of the Plan and in accordance with the provisions of ERISA. Neither any
Obligated Party nor any ERISA Affiliate has incurred any liability to the PBGC
under ERISA.
Section 6.13 Disclosure. No statement, information, report,
certification, representation, or warranty made by any Obligated Party in any
Loan Document or furnished to Agent or any Bank in connection with any Loan
Document or any transaction contemplated hereby contains any untrue statement
of a material fact or omits to state any material fact
THIRD AMENDED AND RESTATED LOAN AGREEMENT, Page 37
37
necessary to make the statements herein or therein not misleading. There is no
fact known to either Parent or EmCare which has a Material Adverse Effect, or
which reasonably could be expected, in the judgment of either Parent or EmCare,
to have a Material Adverse Effect in the future.
Section 6.14 Organizational Structure and Capitalization.
(a) Subsidiaries. Parent has no Subsidiaries other than
those listed on Schedule 6.14 hereto and those otherwise permitted to
be acquired or created under the terms hereof, and Schedule 6.14 sets
forth with respect to the Subsidiaries listed thereon, the
jurisdiction of incorporation or organization, as applicable, of each
Subsidiary, the type of each such Subsidiary, the percentage of
Parent's and its Subsidiaries' ownership of the outstanding voting
stock of each such corporate Subsidiary, the authorized and
outstanding capital stock of each such corporate Subsidiary, and the
type and percentage of Parent's and its Subsidiaries' ownership
interest in each other such Subsidiary. All of the outstanding
capital stock of, or other ownership interest in, each Subsidiary has
been validly issued, is fully paid, is nonassessable and is not
subject to any restriction on transfer except for restrictions imposed
by applicable federal and state securities laws and those contained in
the limited partnership agreement of EmCare OP, L.P. and the deed of
trust of EMTAC Business Trust. All the issued and outstanding shares
of capital stock of, or other ownership interest in, each Subsidiary
are free and clear of all Liens other than those in favor of the Agent
granted in accordance with the terms of the Loan Documents and such
shares or other ownership interests have been issued in compliance
with all applicable state and federal laws concerning the issuance of
securities. There are no preemptive or other outstanding rights,
options, warrants, conversion rights or similar agreements or
understandings for the purchase or acquisition from any Subsidiary of
any shares of capital stock, other securities or other ownership
interests of any Subsidiary. The Obligated Parties who have executed
a Pledge Agreement in accordance with the provisions hereof have the
unrestricted right to pledge their respective interests in each of the
Subsidiaries pursuant to and in accordance with the terms of the Loan
Documents.
(b) PAs. There are no PAs other than as set forth on
Schedule 6.14 and those otherwise permitted to be acquired or created
under the terms hereof and Schedule 6.14 sets forth the jurisdiction
of association or incorporation of each PA listed thereon. Xxxxxxx X.
Xxxxx, Xx., M.D. owns the percentage of each PA reflected on Schedule
6.14. Except as reflected on Schedule 6.14, all the issued and
outstanding shares of capital stock of each PA are duly authorized and
validly issued, fully paid, are non-assessable and are not subject to
any restriction on transfer except for restrictions imposed by
applicable federal and state securities and antitrust laws and
applicable laws restricting the transfer of stock of a professional
association or professional corporation to individuals duly licensed
and engaged in the practice of medicine. All issued and outstanding
shares of each PA are free and clear of all Liens and were issued in
compliance with all applicable state and federal laws concerning the
issuance of securities. Except as set forth in the Succession
Agreements, there are no preemptive or other outstanding rights,
options, warrants, conversion rights or similar agreements or
THIRD AMENDED AND RESTATED LOAN AGREEMENT, Page 38
38
understandings for the purchase or acquisition from any PA, Xxxxxx X.
Xxxxxx, M.D., or Xxxxxxx X. Xxxxx, Xx., M.D. of any shares of capital
stock or other securities of any PA.
Section 6.15 Agreements. No Obligated Party is a party to any
indenture, loan, or credit agreement, or to any lease or other agreement or
instrument, or subject to any charter or corporate restriction which reasonably
could, in the judgment of either EmCare or Parent, have a Material Adverse
Effect. No Obligated Party is in default in any respect in the performance,
observance, or fulfillment of any of the obligations, covenants, or conditions
contained in any agreement or instrument material to its business to which it
is a party including, without limitation or in addition, any Administrative
Management Agreements or any ER Management Contracts to which it is a party.
Section 6.16 Compliance with Laws. Neither Parent, any Subsidiary
nor any PA is in violation in any material respect of any law, rule,
regulation, order, or decree of any court, governmental authority, or
arbitrator.
Section 6.17 Investment Company Act. Neither Parent, any
Subsidiary nor any PA is an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
Section 6.18 Public Utility Holding Company Act. Neither Parent,
any Subsidiary nor any PA is a "holding company" or a "subsidiary company" of a
"holding company" or an "affiliate" of a "holding company" or a "public
utility" within the meaning of the Public Utility Holding Company Act of 1935,
as amended.
ARTICLE 7
Positive Covenants
Parent covenants and agrees that, as long as the Obligations or any
part thereof are outstanding or any Bank has any Commitment hereunder, Parent
will perform and observe the following positive covenants, unless the Required
Banks shall otherwise consent in writing:
Section 7.1 Reporting Requirements. Parent will furnish to Agent
and each Bank:
(a) Annual Financial Statements. As soon as available,
and in any event within one hundred twenty (120) days after the end of
each fiscal year of Parent, beginning with the fiscal year ending
December 31, 1996:
(i) a copy of the annual audit report of Parent
and the Subsidiaries on a consolidated basis for such fiscal
year, containing a balance sheet, statement of income,
statement of stockholder's equity, and statement of cash flows
as at the end of such fiscal year and for the twelve (12)
month period then ended, setting forth in comparative form the
figures for the preceding fiscal year, all in reasonable
detail and audited and certified by Ernst & Young, or other
independent certified public accountants of recognized
standing acceptable to the
THIRD AMENDED AND RESTATED LOAN AGREEMENT, Page 39
39
Agent, to the effect that such reports have been prepared in
accordance with GAAP; and
(ii) a certificate of such independent certified
public accountants to Agent and the Banks (A) stating that to
their knowledge no Event of Default or Potential Default has
occurred and is continuing, or if in their opinion an Event of
Default or Potential Default has occurred and is continuing, a
statement as to the nature thereof, and (B) confirming the
calculations set forth in the officer's certificate delivered
simultaneously therewith.
(b) Quarterly and Semi-Annual Financial Statements. As
soon as available, and in any event within forty-five (45) days after:
(i) the end of each quarter of each fiscal year
of Parent (excluding, with respect to clause (A) below only,
the last quarter of each fiscal year) beginning with the
quarter ending March 31, 1997:
(A) a copy of an unaudited financial
report of Parent and the Subsidiaries on a
consolidated basis as of the end of such quarter and
for the portion of the fiscal year then ended and
containing a balance sheet, statement of income and
statement of cash flow, all in reasonable detail
certified by the chief financial officer of Parent to
have been prepared in accordance with GAAP and to
fairly and accurately present (subject to year-end
audit adjustments) the financial condition and
results of operations of Parent and the Subsidiaries,
on a consolidated basis, at the date and for the
periods indicated therein; and
(B) a copy of an unaudited report of
Parent and the Subsidiaries on a consolidating line
of business basis, as of the end of such quarter and
for the portion of the fiscal year then ended, and
containing balance sheets, statements of income and
statements of cash flows and setting forth in
comparative form the forecasted figures for the
quarter and portion of the fiscal year then ended as
set forth in the annual operating plan delivered in
accordance with subsection 7.1(d), all in reasonable
detail certified by the chief financial officer of
Parent to have been prepared in accordance with GAAP
and to fairly and accurately present the financial
condition and results of operations of the Parent and
the Subsidiaries, on a consolidating line of business
basis, at the date and for the periods indicated
therein; and
(ii) each June 30 and December 30 of each fiscal
year of Parent beginning June 30, 1997, a copy of the
unaudited financial reports of each PA and each other ER
Management Party as of the end of such month and for the
portion of the fiscal year then ended, containing on an
individual basis, a balance sheet and statement of income, all
in reasonable detail and certified by the chief financial
officer of Parent to have been prepared in accordance with
GAAP
THIRD AMENDED AND RESTATED LOAN AGREEMENT, Page 40
40
and to fairly and accurately present the financial condition
and results of operation of the PA and each other ER
Management Party at the date and for the periods indicated
therein;
(c) Compliance Certificate and Malpractice Liability
Claim Management Report. Concurrently with the delivery of each of
the financial statements referred to in subsections 7.1(a) and 7.1(b),
a Compliance Certificate and a malpractice liability claims management
report in form acceptable to Agent;
(d) Annual Operating Plan. Concurrently with the
delivery of each of the financial statements delivered in accordance
with subsection 7.1(a), forecasted (on a quarter by quarter basis)
balance sheets, profit and loss statements and cash flow statements
(together with appropriate supporting details and a statement of
underlying assumptions) for the Parent and the Subsidiaries on a
consolidating line of business basis for the fiscal year in which such
balance sheets and statements are delivered;
(e) Management Letters. Promptly upon receipt thereof, a
copy of any management letter or written report submitted to Parent,
any Subsidiary or any PA by independent certified public accountants
with respect to the business, condition (financial or otherwise),
operations, prospects, or properties of Parent, any Subsidiary or any
PA;
(f) Notice of Litigation. Promptly after the
commencement thereof, notice of all actions, suits, and proceedings
before any court or governmental department, commission, board,
bureau, agency, arbitration or mediation panel or other
instrumentality, domestic or foreign, affecting any Obligated Party
which (a), if determined adversely to such Obligated Party, could
result in any liability owed by such Obligated Party in an amount in
excess of One Hundred Thousand Dollars ($100,000) in any single case
or in excess of One Million Dollars ($1,000,000.00) in the aggregate,
and (b) is not disclosed in the malpractice claims management report
delivered in accordance with Section 7.1(c);
(g) Notice of Default. As soon as possible and in any
event within five (5) days after the discovery by Parent or EmCare of
each Event of Default and each Potential Default, a written notice
setting forth the details of such Event of Default or Potential
Default and the action which Parent or EmCare has taken and proposes
to take with respect thereto;
(h) ERISA Reports. Promptly after the filing or receipt
thereof, copies of all reports, including annual reports, and notices
which any Obligated Party files with or receives from the PBGC or the
U.S. Department of Labor under ERISA; and as soon as possible and in
any event within five (5) days after Parent or EmCare knows or has
reason to know that any Reportable Event or Prohibited Transaction has
occurred with respect to any Plan or that the PBGC any Obligated Party
has instituted or will institute proceedings under Title IV of ERISA
to terminate any Plan, a certificate of the chief financial officer of
Parent or EmCare setting forth the details as to such Reportable Event
THIRD AMENDED AND RESTATED LOAN AGREEMENT, Page 41
41
or Prohibited Transaction or Plan termination and the action that the
applicable Obligated Party proposes to take with respect thereto;
(i) Reports to Other Creditors. Promptly after the
furnishing thereof, copies of any statement or report furnished to any
other party pursuant to the terms of any indenture, loan, or credit or
similar agreement to which any Obligated Party is a party and not
otherwise required to be furnished to Agent and the Banks pursuant to
any other clause of this Section;
(j) Notice of Material Adverse Effect. As soon as
possible and in any event within five (5) days after the discovery by
Parent or EmCare thereof, written notice of any matter that could, in
the judgment of Parent or EmCare, have a Material Adverse Effect;
(k) Malpractice Liability Insurance Certificates. Within
the ten (10) day period prior to the expiration of any malpractice
liability insurance policy covering Parent, any Subsidiary or any PA,
a certificate executed by an authorized financial officer of Parent
certifying to the amount and types of risks covered by the policy of
malpractice liability insurance to become effective at such
expiration;
(l) Proxy Statements, Etc. As soon as available, one
copy of each financial statement, report, notice or proxy statement
sent by Parent or any Subsidiary to its stockholders generally and one
copy of each regular, periodic or special report, registration
statement, or prospectus filed by Parent or any Subsidiary with any
securities exchange or the Securities and Exchange Commission or any
successor agency; and
(m) General Information. Promptly, such other
information concerning any Obligated Party as Agent or any Bank may
from time to time reasonably request, including, without limitation,
copies of any ER Management Contract that Agent or any Bank may
reasonably request.
Section 7.2 Maintenance of Existence; Conduct of Business.
Except as permitted by Section 8.3, (a) Parent will preserve and maintain, and
will cause each Subsidiary and each PA to preserve and maintain, its existence;
(b) Parent will preserve and maintain, and will cause each Subsidiary and each
PA to preserve and maintain all of its privileges, licenses, permits,
franchises, qualifications and rights that are necessary in the ordinary
conduct of its business; provided that, neither Parent, any Subsidiary nor any
PA shall have any obligation to preserve and maintain a privilege, license,
permit, franchise qualification or right if the failure to preserve and
maintain the privilege, license, permit, franchise, qualification or right in
question would not create a Material Adverse Effect; and (c) Parent will
conduct, and cause each Subsidiary and each PA to conduct, its business as
presently conducted in an orderly and efficient manner in accordance with good
business practices.
Section 7.3 Maintenance of Properties. Parent will maintain,
keep, and preserve, and cause each Subsidiary and each PA to maintain, keep,
and preserve, all of its properties (tangible and intangible) necessary in the
proper conduct of its business in good working order and
THIRD AMENDED AND RESTATED LOAN AGREEMENT, Page 42
42
condition; provided neither Parent, any Subsidiary nor any PA shall have any
obligation to maintain, keep, and preserve a property if the failure to
maintain, keep and preserve such property would not create a Material Adverse
Effect.
Section 7.4 Taxes and Claims. Parent will pay or discharge, and
will cause each Subsidiary and each PA to pay or discharge, at or before
maturity or before becoming delinquent (a) all taxes, levies, assessments, and
governmental charges imposed on it or its income or profits or any of its
property, and (b) all lawful claims for labor, material, and supplies, which,
if unpaid, could reasonably be expected to become a Lien upon any of its
property; provided, however, that neither Parent, any Subsidiary nor any PA
shall be required to pay or discharge any tax, levy, assessment, or
governmental charge which is being contested in good faith by appropriate
proceedings diligently pursued, and for which adequate reserves have been
established.
Section 7.5 Insurance. Parent will maintain, and will cause each
Subsidiary and each PA to maintain, with financially sound and reputable
insurance companies malpractice liability insurance and other insurance on its
property, assets, and business at least in such amounts and against such risks
as are usually insured against by Persons engaged in similar businesses.
Section 7.6 Inspection Rights. Upon three (3) days prior notice
and at any reasonable time during normal business hours, Parent will permit,
and will cause each Subsidiary and each PA to permit, representatives of Agent
and any Bank to examine and make copies of the books and records of, and visit
and inspect the properties of Parent, any Subsidiary or any PA, and to discuss
the business, operations, and financial condition of Parent and the other
Obligated Parties with their respective officers and employees and with their
independent certified public accountants.
Section 7.7 Keeping Books and Records. Parent will maintain, and
will cause each Subsidiary and each PA to maintain, proper books of record and
account of all dealings and transactions in relation to its business and
activities in conformity with GAAP.
Section 7.8 Compliance with Laws. Parent will comply, and will
cause each Subsidiary and each PA to comply, in all material respects with all
applicable laws, rules, regulations, orders, and decrees of any court,
governmental authority, or arbitrator.
Section 7.9 Compliance with Agreements. Parent will comply, and
will cause each Subsidiary and each PA to comply, in all material respects with
all agreements, contracts, and instruments binding on it or affecting its
properties or business, including, without limitation, each ER Management
Contract and each Administrative Management Agreement to which it is a party.
Section 7.10 Further Assurances; Additional Affiliate Guaranties.
Parent will execute and deliver, and will cause each Subsidiary and each PA to
execute and deliver, such further documentation as may be requested by Agent to
carry out the provisions and purposes of this Agreement and the other Loan
Documents and to preserve and perfect the Liens of Agent in the collateral
provided to secure the obligations of the Obligated Parties under the Loan
Documents. In furtherance of the foregoing, Parent will cause each Subsidiary
and each PA created or
THIRD AMENDED AND RESTATED LOAN AGREEMENT, Page 43
43
acquired after the date hereof to execute and deliver to Agent an Affiliate
Guaranty and deliver to Agent any Administrative Management Agreement to which
such Subsidiary or PA is a party, promptly after such creation or acquisition
or in any event within thirty (30) days after Agent's request; provided that,
if a Subsidiary is established for the purposes of obtaining a federal tax
identification number, such Subsidiary has no assets other than such federal
tax identification number and such Subsidiary's initial capitalization (which
may not exceed One Thousand Dollars ($1,000.00) in the aggregate) and such
Subsidiary does not generate any revenue, then as long as all of the foregoing
conditions are satisfied, such Subsidiary shall not be required to execute and
deliver an Affiliate Guaranty (if and as long as all of the foregoing
conditions are satisfied with respect to a Subsidiary such Subsidiary shall be
an "Insignificant Subsidiary"). If any one of the foregoing conditions become
not applicable to a Subsidiary, Parent will comply with its obligations set
forth in the foregoing sentence. Parent will, and will cause each Subsidiary,
to promptly and in any event within thirty (30) days after Agent's request
pledge to the Agent to secure the Obligations (or in the case of a Subsidiary,
to secure its obligations under the Loan Documents to which it is a party), all
the capital stock or other ownership interests in any Subsidiary it acquires or
establishes after the date hereof other than an Insignificant Subsidiary and
other than Capital Billing Services, Inc. If a Subsidiary which was an
Insignificant Subsidiary is no longer an Insignificant Subsidiary or if the
Agent requests with respect to Capital Billing Services Inc., Parent will, and
will cause each Subsidiary that has any ownership interest in such Subsidiary,
to promptly and in any event within thirty (30) days after Agent's request
pledge to Agent to secure the Obligations (or in the case of a Subsidiary, to
secure its obligations under the Loan Documents to which it is a party) all
capital stock or other ownership interests in such Subsidiary.
Section 7.11 ERISA. Parent will comply, and will cause each
Subsidiary and each PA to comply, with all minimum funding requirements, and
all other material requirements, of ERISA, if applicable, so as not to give
rise to any liability thereunder.
Section 7.12 Administration Management Agreements. Parent will,
and will cause each Subsidiary and each PA to maintain in effect each
Administrative Management Agreement now existing or hereafter entered into
except an Administrative Management Agreement may be terminated if the assets
of the PA that is a party thereto are disposed of in a transaction permitted by
Section 8.3 or Section 8.7.
ARTICLE 8
Negative Covenants
Parent covenants and agrees that, as long as the Obligations or any
part thereof are outstanding or any Bank has any Commitment hereunder, Parent
will perform and observe the following negative covenants, unless the Required
Banks shall otherwise consent in writing:
Section 8.1 Debt. Parent will not incur, create, assume, or
permit to exist, and will not permit any Subsidiary or any PA to incur, create,
assume, or permit to exist, any Debt, except:
(a) Debt to Agent and the Banks arising under the Loan
Documents;
THIRD AMENDED AND RESTATED LOAN AGREEMENT, Page 44
44
(b) Debt which is secured by a purchase money Lien, the
proceeds of which is used to acquire assets which are (i) utilized in
the ordinary course of business of Parent, the Subsidiaries or the PAs
and (ii) not acquired in an Acquisition;
(c) Debt incurred in connection with the financing of
medical malpractice premiums provided that at no time shall the
maturity of any such Debt extend past a date which is twelve (12)
months from the date such Debt is incurred;
(d) Debt of a Subsidiary or a PA owed to Parent or
another Subsidiary; provided that any such Debt is subordinated to the
obligations arising under the Loan Documents on terms acceptable to
the Agent;
(e) Debt of the type described in clauses (i), (ii),
(iii), (iv) and (v) of the definition thereof incurred in order to
finance an Acquisition after the Closing Date but only if such Debt is
(i) owed to the seller who is a party to the Acquisition in question,
or a party related to such seller, (ii) does not require the payment
of interest, and (iii) is not secured by any Lien;
(f) Existing Debt described on Schedule 8.1 hereto and
any extensions, renewals or refinancings of such Debt on substantially
similar terms that applied to such Debt immediately prior to such
extension, renewal or refinancing so long as (i) the principal amount
of such Debt after such renewal, extension or refinancing shall not
exceed the principal amount of such Debt which was outstanding
immediately prior to such renewal, extension or refinancing, and (ii)
such Debt shall not be secured by any assets other than assets
securing such Debt, if any, prior to such renewal, extension or
refinancing; and
(g) Debt, other than Debt described under subsections
8.1(a) through (f), in an amount not to exceed, in the aggregate, Five
Million Dollars ($5,000,000) at any time outstanding.
Section 8.2 Limitation on Liens. Parent will not incur, create,
assume, or permit to exist, and will not permit any Subsidiary or any PA to
incur, create, assume, or permit to exist, any Lien upon any of its property,
assets, or revenues, whether now owned or hereafter acquired, except the
following, none of which shall encumber the collateral pledged under the Pledge
Agreements except the Liens described in clause (b) below:
(a) Liens disclosed on Schedule 8.2 hereto and any
renewal or modification of such Liens in a transaction permitted by
Section 8.1(f);
(b) Liens in favor of Agent arising under the Loan
Documents;
(c) Encumbrances consisting of minor easements, zoning
restrictions, or other restrictions on the use of real property that
do not (individually or in the aggregate) materially affect the value
of the assets encumbered thereby or materially impair the
THIRD AMENDED AND RESTATED LOAN AGREEMENT, Page 45
45
ability of Parent, the Subsidiary or the PAs to use such assets in
their respective businesses, and none of which is violated in any
material respect by existing or proposed structures or land use;
(d) Liens for taxes, assessments, or other governmental
charges which are not delinquent or which are being contested in good
faith and for which adequate reserves have been established;
(e) Liens of mechanics, materialmen, warehousemen,
carriers or other similar statutory Liens securing obligations that
are not yet due and are incurred in the ordinary course of business or
which are being contested in good faith and for which adequate
reserves have been established;
(f) Liens resulting from good faith deposits to secure
payments of workmen's compensation or other social security programs
or to secure the performance of tenders, statutory obligations, surety
and appeal bonds, bids, or contracts (other than for payment of Debt)
in the ordinary course of business;
(g) Liens for purchase money obligations permitted by
Section 8.1(b); provided that: (i) the purchase of the asset subject
to any such Lien is otherwise permitted hereunder and (ii) any such
Lien encumbers only the asset so acquired;
(h) Leases or subleases granted to others in the ordinary
course of business; and
(i) Liens on any property existing at the time, and not
created in anticipation of, an Acquisition permitted by Section 8.3;
provided such Liens do not encumber any property required to be
pledged to the Agent under the terms hereof.
Section 8.3 Mergers, Acquisitions and Dissolutions. Parent will
not, and will not permit any Subsidiary or any PA to, become a party to a
merger or consolidation, or make any other Acquisitions, or dissolve or
liquidate; provided, however, (i) any Subsidiary may merge or consolidate with
another Subsidiary or with any other Person if the surviving Person assumes the
obligations under any applicable Affiliate Guaranty (subject to the limitations
set forth in clause (v) below) and other Loan Documents to which such
Subsidiary is a party or may merge or consolidate into Parent if Parent is the
surviving Person; (ii) any Subsidiary may dissolve or liquidate if its assets
are transferred to Parent or a Subsidiary or otherwise disposed of in
accordance with Section 8.7; (iii) any PA may merge, consolidate, dissolve or
liquidate if it is no longer a party to an Administrative Management Agreement
(and thus no longer a PA hereunder); (iv) any PA who continues to be a party to
an Administrative Management Agreement may merge or consolidate with another
professional association or professional corporation involved in the practice
of medicine if the surviving Person assumes the obligations under any
applicable Affiliate Guaranty and applicable Administrative Management
Agreement and if the surviving Person otherwise becomes a PA after such
transaction (subject to the limitations set forth in clause (v) below); and (v)
Parent, any Subsidiary or any PA may make Acquisitions if the aggregate Dollar
amount of the total consideration paid (whether cash, property or estimated
future payments under consulting, noncompete or other agreements,
THIRD AMENDED AND RESTATED LOAN AGREEMENT, Page 46
46
including the value of any capital stock of the Parent issued to the seller in
connection therewith) by Parent, the Subsidiaries and the PAs in connection
with any one such transaction does not exceed Twenty Million Dollars
($20,000,000).
Section 8.4 Restricted Payments; Consent to Dividend. Parent
will not, and will not permit any Subsidiary or any PA to, declare or pay any
dividends or make any other payment or distribution (in cash, property, or
obligations) on account of its capital stock or other equity interest, or
redeem, purchase, retire, or otherwise acquire any of its capital stock or
other equity interest, or set apart any money for a sinking or other analogous
fund for any dividend or other distribution on its capital stock or other
equity interest or for any redemption, purchase, retirement, or other
acquisition of any of its capital stock or other equity interest, or grant or
issue any capital stock or other equity interest or any warrant, right, or
option pertaining to its capital stock or other equity interest, or issue any
security convertible into capital stock or other equity interest, or permit any
of its Subsidiaries to purchase any capital stock or other equity interest of
Parent or any Subsidiary; provided, however, (a) any Subsidiary that is one
hundred percent owned by any one or more Obligated Parties may declare and pay
cash dividends on account of its capital stock or make distributions to its
owners so long as no Potential Default or Event of Default exists or would
result therefrom, (b) any Subsidiary may issue capital stock or other equity
interest if such capital stock or other equity interest is issued to Parent or
the Obligated Party that directly owns such Subsidiary and pledged by such
Obligated Party to Agent in accordance with the applicable Pledge Agreement,
and (c) Parent may issue capital stock or any warrant, right or option
pertaining to its capital stock or any securities convertible into its capital
stock.
Section 8.5 Loans and Investments. Parent will not make, and
will not permit any Subsidiary or any PA to make, any advance, loan, extension
of credit, or capital contribution to or investment in, or purchase or own, or
permit any Subsidiary or any PA to purchase or own, any stock, bonds, notes,
debentures, or other securities of any Person, except:
(a) readily marketable direct obligations of the United
States of America and mortgage participation certificates or other
securities issued and guaranteed as to timely payment by any
governmental agency of the United States of America, including without
limitation, or in addition, the Federal National Mortgage Association,
the Federal Home Loan Mortgage Corporation, Student Loan Marketing
Association or the Government National Mortgage Association;
(b) readily marketable direct obligations of any state or
municipality of the United States of America if at the time of
purchase such obligations are rated in one of the two highest rating
categories of Standard and Poor's Corporation or Xxxxx'x Investors
Service;
(c) fully insured certificates of deposit with maturities
of one year or less from the date of acquisition of any commercial
bank operating in the United States having capital and surplus in
excess of $50,000,000.00;
THIRD AMENDED AND RESTATED LOAN AGREEMENT, Page 47
47
(d) commercial paper of a domestic issuer if at the time
of purchase such paper is rated in one of the two highest rating
categories of Standard and Poor's Corporation or Xxxxx'x Investors
Service;
(e) Acquisitions to the extent permitted by Section 8.3;
(f) loans permitted in accordance with subsection 8.1(d);
(g) money market or mutual funds that invest primarily in
any of the investments permitted under subsections 8.5(a), (b), (c)
and (d);
(h) loans made in connection with an Acquisition (of the
type described in clauses (i) or (iii) of the definition of
Acquisition and which is permitted by Section 8.3) to the seller who
is a party to such Acquisition which are fully secured by accounts
receivable relating to the contract or rights acquired; provided that
the aggregate amount of such loans at any time outstanding shall not
exceed One Million Dollars ($1,000,000); and
(i) capital contributions to or investments in an
existing or to be created Subsidiary provided that the aggregate
amount contributed to or invested in any one Subsidiary shall not
exceed either (i) in the aggregate One Thousand Dollars ($1,000.00) or
(ii) if such Subsidiary is utilized to make an Acquisition, the
aggregate Dollar amount of the total cash consideration paid to the
seller in such Acquisition less any amount loaned to such Subsidiary
by Parent or any other Subsidiary for such purpose, provided such
contribution or investment under this clause (ii) is made only in
connection with the closing of the related Acquisition.
Section 8.6 Transactions With Affiliates. Except for the
transactions contemplated by the Administrative Management Agreements, Parent
will not enter into, and will not permit any Subsidiary or any PA to enter
into, any transaction, including, without limitation, the purchase, sale, or
exchange of property or the rendering of any service, with any Affiliate of
Parent, such Subsidiary or such PA, except in the ordinary course of and
pursuant to the reasonable requirements of Parent's, such Subsidiary's or such
PA's business and upon fair and reasonable terms no less favorable to Parent,
such Subsidiary or such PA than would be obtained in a comparable arm's-length
transaction with a Person not an Affiliate of Parent, such Subsidiary or such
PA.
Section 8.7 Disposition of Assets. Parent will not sell, lease,
assign, transfer, or otherwise dispose of any of its assets, or permit any
Subsidiary or any PA to do so with any of its assets except (a) the disposition
of obsolete or worn out equipment or other assets no longer necessary in the
Parent's, the Subsidiaries or the PA's business, as applicable, (b) other
dispositions of assets in the ordinary course of business, and (c) other
disposition of assets provided that the book value of the assets disposed of
under the permissions of this clause (c) shall not exceed Two Million Dollars
($2,000,000) in the aggregate during the period from the Closing Date through
the Revolving Termination Date and, as of the date of any such disposition, no
Potential Default or Event of Default exists or would result therefrom.
THIRD AMENDED AND RESTATED LOAN AGREEMENT, Page 48
48
Section 8.8 Sale and Leaseback. Parent will not enter into, and
will not permit any Subsidiary or any PA to enter into, any arrangement with
any Person pursuant to which it leases from such Person real or personal
property that has been or is to be sold or transferred, directly or indirectly,
by it to such Person.
Section 8.9 Nature of Business. Parent will not, and will not
permit any Subsidiary or PA to, engage in any business other than the
businesses in which they are engaged as of the date hereof and any business
relating to physician management, staffing, recruiting, billing and/or
scheduling or other management of health care services.
Section 8.10 Accounting. Parent will not make, and will not
permit any Subsidiary or any PA to make, any change in accounting treatment or
reporting practices, except as required or permitted by GAAP.
ARTICLE 9
Financial Covenants
Parent covenants and agrees that, as long as the Obligations or any
part thereof are outstanding or any Bank has any Commitment hereunder, Parent
will observe and perform the following financial covenants, unless the Required
Banks shall otherwise consent in writing:
Section 9.1 Combined Net Worth. Parent will at all times
maintain Combined Net Worth in an amount not less than the sum of (a)
Fifty-Five Million Dollars ($55,000,000); plus (b) an amount equal to
seventy-five percent (75%) of Net Income for each fiscal quarter, beginning
with the Net Income for the fiscal quarter ending March 31, 1997; plus (c) an
amount equal to eighty percent (80%) of all contributions made to the capital
of Parent after December 31, 1996. If Net Income for a fiscal quarter is
negative, no adjustment to the requisite level of Combined Net Worth shall be
made.
Section 9.2 Interest Coverage Ratio. As of the last day of each
fiscal quarter of Parent, Parent shall maintain a ratio of EBIT to Combined
Interest Expenses of not less than 3.0 to 1.0 computed on the basis of the EBIT
and Combined Interest Expenses for the four (4) fiscal quarters ending on the
date of calculation.
Section 9.3 Leverage Ratio. Parent will maintain a Leverage
Ratio of not greater than 3.0 to 1.0 as of the last day of each fiscal quarter.
ARTICLE 10
Default
Section 10.1 Events of Default. Each of the following shall be
deemed an "Event of Default":
THIRD AMENDED AND RESTATED LOAN AGREEMENT, Page 49
49
(a) Parent shall fail to pay (i) when due any principal
installment due under the terms of the Loan Documents, any
reimbursement obligation under Section 2.11(b) or any part of either
of the foregoing; (ii) within three (3) days of the date due, any
interest or commitment fee due under the terms of the Loan Documents
or any part thereof; and (iii) within ten (10) days of the date due,
any other Obligations or any part thereof.
(b) Any certification, representation or warranty made or
deemed made by any Obligated Party (or any of their respective
officers) in any Loan Document or in any certificate, report, notice,
or financial statement furnished at any time in connection with this
Agreement shall be false, misleading, or erroneous in any material
respect when made or deemed to have been made.
(c) Any Obligated Party shall fail to perform, observe,
or comply with any covenant, agreement, or term contained in Sections
or subsections 7.1(a), 7.1(b), 7.1(c), 7.1(g), 7.2(a), 7.4, 7.5, 7.10,
Article 8 or Article 9 of this Agreement, Sections 2.2, 2.3, or 2.4 of
any Pledge Agreement or the subordination provisions of any Affiliate
Guaranty.
(d) Any Obligated Party shall fail to perform, observe,
or comply with any covenant, agreement or term contained in any
section of this Agreement or any other Loan Document other than those
covenants, agreements and terms listed in subsections 10.1(a) and
10.1(c) and such failure shall continue for a period of ten (10) days
after the earlier of (A) the date the Agent notifies Parent of such
failure or (B) the date Parent should have notified Agent of such
failure under subsection 7.1(h).
(e) Parent, any Subsidiary, or any other Obligated Party
shall commence a voluntary 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 a
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
generally fail to pay its debts as they become due or shall take any
corporate action to authorize any of the foregoing.
(f) An involuntary proceeding shall be commenced against
Parent, any Subsidiary, or any other Obligated Party seeking
liquidation, 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 for it or a
substantial part of its property, and such involuntary proceeding
shall remain undismissed and unstayed for a period of thirty (30)
days.
(g) Parent, any Subsidiary, or any other Obligated Party
shall fail to discharge within a period of thirty (30) days after the
commencement thereof any attachment, sequestration, or similar
proceeding or proceedings involving an aggregate amount in
THIRD AMENDED AND RESTATED LOAN AGREEMENT, Page 50
50
excess of One Hundred Thousand Dollars ($100,000) against any of its
assets or properties.
(h) A final judgment or judgments for the payment of
money in excess of One Hundred Thousand Dollars ($100,000) in the
aggregate shall be rendered by a court or courts against Parent, any
Subsidiaries, or any other Obligated Party and the same shall not be
discharged (or provision shall not be made for such discharge), or a
stay of execution thereof shall not be procured, within thirty (30)
days from the date of entry thereof and Parent or the relevant
Subsidiary or other Obligated Party shall not, within said period of
thirty (30) days, or such longer period during which execution of the
same shall have been stayed, appeal therefrom and cause the execution
thereof to be stayed during such appeal.
(i) Parent, any Subsidiary, or any other Obligated Party
shall fail to pay when due any principal of or interest on any Debt
(other than the Obligations) in an aggregate amount equal to or in
excess of One Hundred Thousand Dollars ($100,000), or the maturity of
any such Debt shall have been accelerated, or any such Debt shall have
been required to be prepaid prior to the stated maturity thereof, or
any event shall have occurred that permits (or, with the giving of
notice or lapse of time or both, would permit) any holder or holders
of such Debt or any Person acting on behalf of such holder or holders
to accelerate the maturity thereof or require any such prepayment.
(j) This Agreement or any other Loan Document shall cease
to be in full force and effect or shall be declared null and void or
the validity or enforceability thereof shall be contested or
challenged by Parent, any Subsidiary, any other Obligated Party or any
of their respective owners, or Parent or any other Obligated Party
shall deny that it has any further liability or obligation under any
of the Loan Documents.
(k) Any of the following events shall occur or exist with
respect to any Obligated Party or any ERISA Affiliate: (i) any
Prohibited Transaction involving any Plan; (ii) any Reportable Event
with respect to any Plan; (iii) the filing under Section 4041 of ERISA
of a notice of intent to terminate any Plan or the termination of any
Plan; (iv) any event or circumstance that could reasonably be expected
to constitute grounds entitling the PBGC to institute proceedings
under Section 4042 of ERISA for the termination of, or for the
appointment of a trustee to administer, any Plan, or the institution
by the PBGC of any such proceedings; (v) complete or partial
withdrawal under Section 4201 or 4204 of ERISA from a Multiemployer
Plan or the reorganization, insolvency, or termination of any
Multiemployer Plan; and in each case above, such event or condition,
together with all other events or conditions, if any, have subjected
or could in the reasonable opinion of Agent subject any Obligated
Party to any tax, penalty, or other liability to a Plan, a
Multiemployer Plan, the PBGC, or otherwise (or any combination
thereof) which in the aggregate exceed or could reasonably be expected
to exceed One Hundred Thousand Dollars ($100,000).
(l) Parent, any Subsidiaries, or any other Obligated
Party, or any of their properties, revenues, or assets, shall become
the subject of an order of forfeiture, seizure,
THIRD AMENDED AND RESTATED LOAN AGREEMENT, Page 51
51
or divestiture (whether under RICO or otherwise) and the same shall
not have been discharged within thirty (30) days from the date of
entry thereof.
(m) Agent shall fail to have, for any reason except its
own negligence, a valid perfected and first priority security interest
in any of the collateral securing the Obligations.
(n) A majority of the outstanding capital stock of any PA
with the power to elect a majority of the board of directors of such
PA shall fail to be owned by Xxxxxxx X. Xxxxx, Xx., M.D., any other
physician who is an officer, director, employee or medical director of
Parent or a Subsidiary and has a financial interest in Parent and/or
any other physician who acquires ownership in a PA under the terms of
the Succession Agreements (any of the foregoing herein a "Permitted
Physician"); provided that, (i) if in creating or acquiring a PA,
Permitted Physicians do not own such majority because no Permitted
Physician is licensed to practice in the jurisdiction in which such PA
is established, no Event of Default shall occur as long as the PA has
executed and delivered an Affiliate Guaranty and one or more Permitted
Physicians are diligently pursuing a license to practice in such
jurisdiction and have the right to acquire such majority interest, and
after obtaining such license Permitted Physicians acquire such
majority interest, and (ii) this clause (n) shall not apply to any
professional association or corporation which is no longer a party to
an Administrative Management Agreement.
(o) Xxxxxxx X. Xxxxx, Xx., M.D. shall fail to own and
control directly the shares of each PA which are owned by him on the
Closing Date except for (i) transfers contemplated by the Succession
Agreement to which he is a party, (ii) any PA which is no longer in
existence as a result of a transaction permitted by Section 8.3 and
(iii) any professional association or corporation no longer a party to
an Administrative Management Agreement.
Section 10.2 Remedies Upon Default. If any Event of Default shall
occur, Agent may (and if directed by the Required Banks, shall) do any one or
more of the following:
(a) Acceleration. By written notice to Parent, declare
all Obligations immediately due and payable, and the same shall
thereupon become immediately due and payable, without any other
notice, demand, presentment, notice of dishonor, notice of
acceleration, notice of intent to accelerate, protest, or other
formalities of any kind, all of which are hereby expressly waived by
Parent and EmCare.
(b) Termination of Commitments. By written notice to
Parent, terminate the Commitments.
(c) Judgment. Reduce any claim to judgment.
(d) Foreclosure. Foreclose or otherwise enforce any Lien
granted to the Agent for the benefit of the Banks to secure payment
and performance of the Obligations in accordance with the terms of the
Loan Documents.
THIRD AMENDED AND RESTATED LOAN AGREEMENT, Page 52
52
(e) Cash Collateral. By written notice to Parent,
require Parent to immediately deposit with and pledge to Agent for the
benefit of the Banks, cash or cash equivalent investments in an amount
equal to the outstanding Letter of Credit Liabilities as security for
the Obligations.
(f) Rights. Exercise any and all rights and remedies
afforded by the law of the State of Texas or any other jurisdiction,
by any of the Loan Documents, by equity, or otherwise.
Provided, however, that upon the occurrence of an Event of Default under
Section 10.1(e) or 10.1(f), the Commitments of all of the Banks shall
automatically terminate, and the outstanding principal of and accrued and
unpaid interest on the Notes and all other obligations of Parent under the Loan
Documents shall thereupon become immediately due and payable without notice,
demand, presentment, notice of dishonor, notice of acceleration, notice of
intent to accelerate, protest, or other formalities of any kind, all of which
are hereby expressly waived by Parent.
Section 10.3 Setoff. If any Event of Default shall occur, Agent
and each Bank shall also have the right to setoff and apply against the
Obligations, at any time and without notice to Parent, any and all deposits
(general or special, time or demand, provisional or final) or other sums at any
time credited by or owing from Agent or any such Bank to Parent whether or not
the Obligations are then due. As further security for the Obligations, Parent
hereby grants to Agent and each Bank a security interest in all money,
instruments, and other property of Parent now or hereafter held by Agent or any
such Bank, including, without limitation, property held in safekeeping (all
such property herein the "Parent Property"). In addition to the Agent's right
of setoff and as further security for the Obligations, Parent hereby grants to
Agent and each Bank a security interest in all deposits (general or special,
time or demand, provisional or final) and other accounts of Parent now or
hereafter on deposit with or held by Agent or any such Bank and all other sums
at any time credited by or owing from Agent or any such Bank to Parent (all
such deposits and sums herein the "Bank Accounts"). Prior to the occurrence of
any Event of Default, Parent may have access to and use in the ordinary course
of business all of the Parent Property and all of the Bank Accounts but after
the occurrence and during the continuance of an Event of Default, (i) Parent
shall not, without the written consent of Agent, withdraw or otherwise use any
of the Parent Property or any of the funds in the Bank Accounts and (ii) Agent
and each Bank shall be entitled to exercise all rights and remedies of a
secured party under the Uniform Commercial Code as adopted by the State of
Texas in respect of such Parent Property and Bank Accounts and the Agent's and
Banks' security interest therein.
Section 10.4 Performance by Agent. If any Obligated Party shall
fail to perform any covenant, duty, or agreement contained in any of the Loan
Documents, Agent may provide Parent written notice of such failure and if the
applicable Obligated Party shall not have remedied such failure (or shall
otherwise not have taken action satisfactory to Agent to remedy such failure)
within five (5) days of receipt by Parent of such notice, then Agent may
perform or attempt to perform such covenant, duty, or agreement on behalf of
the applicable Obligated Party. In such event, Parent shall, at the request of
Agent, promptly pay any amount expended by Agent in such performance or
attempted performance to Agent, together with interest thereon
THIRD AMENDED AND RESTATED LOAN AGREEMENT, Page 53
53
at the Default Rate from the date of such expenditure until paid.
Notwithstanding the foregoing, it is expressly agreed that neither Agent nor
any Bank shall have any liability or responsibility for the performance of any
obligation of any Obligated Party under any Loan Document.
Section 10.5 Continuance of Event of Default. For purposes of all
Loan Documents, an Event of Default shall be deemed to have continued until the
Agent shall have actually received evidence satisfactory to Agent that such
Event of Default has been remedied.
ARTICLE 11
The Agent
Section 11.1 Appointment, Powers and Immunities. In order to
expedite the various transactions contemplated by this Agreement, the Banks
hereby irrevocably appoint and authorize Texas Commerce to act as their Agent
hereunder and under each of the other Loan Documents and confirm and continue
the appointment of Texas Commerce as Agent pursuant to the Second Loan
Agreement on the terms herein set forth. Texas Commerce consents to such
appointment and agrees to perform the duties of the Agent as specified herein.
The Banks authorize and direct the Agent to take such action in their name and
on their behalf under the terms and provisions of the Loan Documents and to
exercise such rights and powers thereunder as are specifically delegated to or
required of the Agent for the Banks, together with such rights and powers as
are reasonably incidental thereto. The Agent is hereby expressly authorized to
act as the Agent on behalf of itself and the other Banks:
(a) To receive on behalf of each of the Banks any payment
of principal, interest, fees or other amounts paid pursuant to this
Agreement and the Notes and to distribute to each Bank its share of
all payments so received as provided in this Agreement;
(b) To receive all documents and items to be furnished
under the Loan Documents to the extent provided herein;
(c) To act as nominee for and on behalf of the Banks in
and under the Loan Documents;
(d) To arrange for the means whereby the funds of the
Banks are to be made available to Parent;
(e) To distribute to the Banks information, requests,
notices, payments, prepayments, documents and other items received
from any Obligated Party;
(f) To execute and deliver to the Obligated Parties, and
other Persons, all requests, demands, approvals, notices, and consents
received from the Banks;
(g) To the extent permitted by the Loan Documents, to
exercise on behalf of each Bank all rights and remedies of Banks upon
the occurrence of any Event of Default;
THIRD AMENDED AND RESTATED LOAN AGREEMENT, Page 54
54
(h) To be the secured party on behalf of the Banks under
any document securing payment of the Obligations, including without
limitation, the Existing Collateral Documents and to accept, execute,
and deliver such documents as the secured party; and
(i) To take such other actions as may be requested by
Required Banks.
Neither the Agent nor any of its Affiliates, officers, directors,
employees, attorneys, or agents shall be liable for any action taken or omitted
to be taken by any of them hereunder or otherwise in connection with this
Agreement or any of the other Loan Documents except for its or their own gross
negligence or willful misconduct. Without limiting the generality of the
preceding sentence, the Agent (i) may treat the payee of any Note as the holder
thereof until the Agent receives written notice of the assignment or transfer
thereof signed by such payee and in form satisfactory to the Agent; (ii) shall
have no duties or responsibilities except those expressly set forth in this
Agreement and the other Loan Documents, and shall not by reason of this
Agreement or any other Loan Document be a trustee or fiduciary for any Bank;
(iii) shall not be required to initiate any litigation or collection
proceedings hereunder or under any other Loan Document except to the extent
requested by Required Banks; (iv) shall not be responsible to the Banks for any
recitals, statements, representations or warranties contained in this Agreement
or any other Loan Document, or any certificate or other document referred to or
provided for in, or received by any of them under, this Agreement or any other
Loan Document, or for the value, validity, effectiveness, enforceability, or
sufficiency of this Agreement or any other Loan Document or any other document
referred to or provided for herein or therein or for any failure by any Person
to perform any of its obligations hereunder or thereunder; (v) may consult with
legal counsel (including counsel for the Parent), independent public
accountants, and other experts selected by it and shall not be liable for any
action taken or omitted to be taken in good faith by it in accordance with the
advice of such counsel, accountants, or experts; and (vi) shall incur no
liability under or in respect of any Loan Document by acting upon any notice,
consent, certificate, or other instrument or writing believed by it to be
genuine and signed or sent by the proper party or parties. As to any matters
not expressly provided for by this Agreement, the Agent shall in all cases be
fully protected in acting, or in refraining from acting, hereunder in
accordance with instructions signed by Required Banks, and such instructions of
Required Banks and any action taken or failure to act pursuant thereto shall be
binding on all of the Banks; provided, however, that the Agent shall not be
required to take any action which exposes the Agent to personal liability or
which is contrary to any Loan Document or applicable law.
Section 11.2 Rights of Agent as a Bank. With respect to its
Commitment, the Advances made by it and the Note issued to it, Texas Commerce
in its capacity as a Bank hereunder shall have the same rights and powers
hereunder as any other Bank and may exercise the same as though it were not
acting as the Agent, and the term "Bank" or "Banks" shall, unless the context
otherwise indicates, include the Agent in its individual capacity. The Agent
and its Affiliates may (without having to account therefor to any Bank) accept
deposits from, lend money to, act as trustee under indentures of, provide
merchant banking services to, and generally engage in any kind of business with
any Obligated Party, and any other Person who may do business with or own
securities of any Obligated Party, all as if it were not acting as the Agent
and without any duty to account therefor to the Banks.
THIRD AMENDED AND RESTATED LOAN AGREEMENT, Page 55
55
Section 11.3 Sharing of Payments, Etc. If any Bank shall obtain
any payment of any principal of or interest on any Advance made by it under
this Agreement or payment of any other obligation under the Loan Documents then
owed by any Obligated Party to such Bank, whether voluntary, involuntary,
through the exercise of any right of setoff, banker's lien, counterclaim or
similar right, or otherwise, in excess of its Pro Rata (calculated based on the
outstanding Advances and Letter of Credit Liabilities) share such Bank shall
promptly purchase from the other Banks participation in the Advances held by
them hereunder in such amounts, and make such other adjustments from time to
time as shall be necessary to cause such purchasing Bank to share the excess
payment ratably with each of the other Banks in accordance with its Pro Rata
(calculated based on the outstanding Advances and Letter of Credit Liabilities)
portion thereof. To such end, all of the Banks shall make appropriate
adjustments among themselves (by the resale of participations sold or
otherwise) if all or any portion of such excess payment is thereafter rescinded
or must otherwise be restored. Parent agrees, to the fullest extent it may
effectively do so under applicable law, that any Bank so purchasing a
participation in the Advances made by the other Banks may exercise all rights
of setoff, banker's lien, counterclaim, or similar rights with respect to such
participation as fully as if such Bank were a direct holder of Advances to the
Parent in the amount of such participation. Nothing contained herein shall
require any Bank to exercise any such right or shall affect the right of any
Bank to exercise, and retain the benefits of exercising, any such right with
respect to any other indebtedness or obligation of any Obligated Party;
provided, however, if a Bank exercises the right of set-off against any
property of an Obligated Party, it shall exercise such rights first with
respect to the Obligations until the Obligations are satisfied in full before
exercising such right with respect to any other indebtedness or obligation of
such Obligated Party.
Section 11.4 INDEMNIFICATION. THE BANKS HEREBY AGREE TO INDEMNIFY
THE AGENT FROM AND HOLD THE AGENT HARMLESS AGAINST (TO THE EXTENT NOT
REIMBURSED UNDER SECTIONS 12.1 AND 12.2, BUT WITHOUT LIMITING THE OBLIGATIONS
OF PARENT UNDER SECTIONS 12.1 AND 12.2), PRO RATA IN ACCORDANCE WITH THEIR
RESPECTIVE COMMITMENTS, ANY AND ALL LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES,
PENALTIES, ACTIONS, JUDGMENTS, DEFICIENCIES, SUITS, COSTS, EXPENSES (INCLUDING
ATTORNEYS' FEES), AND DISBURSEMENTS OF KIND OR NATURE WHATSOEVER WHICH MAY BE
IMPOSED ON, INCURRED OR ASSERTED AGAINST THE AGENT IN ANY WAY RELATING TO OR
ARISING OUT OF ANY OF THE LOAN DOCUMENTS OR ANY ACTION TAKEN OR OMITTED TO BE
TAKEN BY THE AGENT UNDER OR IN RESPECT OF ANY OF THE LOAN DOCUMENTS; PROVIDED,
FURTHER, THAT NO BANK SHALL BE LIABLE FOR ANY PORTION OF THE FOREGOING TO THE
EXTENT CAUSED BY THE AGENT'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. WITHOUT
LIMITATION OF THE FOREGOING, IT IS THE EXPRESS INTENTION OF THE BANKS THAT THE
AGENT SHALL BE INDEMNIFIED HEREUNDER FROM AND HELD HARMLESS AGAINST ALL OF SUCH
LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS,
DEFICIENCIES, SUITS, COSTS, EXPENSES (INCLUDING ATTORNEYS' FEES), AND
DISBURSEMENTS OF ANY KIND OR NATURE DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RESULTING FROM THE SOLE OR CONTRIBUTORY NEGLIGENCE OF THE AGENT. Without
limiting any
THIRD AMENDED AND RESTATED LOAN AGREEMENT, Page 56
56
other provision of this Section, each Bank agrees to reimburse the Agent
promptly upon demand for its Pro Rata (calculated on the basis of the
Commitments) share of any and all out-of-pocket expenses (including attorneys'
fees) incurred by the Agent in connection with the preparation, execution,
delivery, administration, modification, amendment or enforcement (whether
through negotiations, legal proceedings, or otherwise) of, or legal advice in
respect of rights or responsibilities under, the Loan Documents, to the extent
that the Agent is not reimbursed for such expenses by Parent.
Section 11.5 Independent Credit Decisions. Each Bank agrees that
it has independently and without reliance on the Agent or any other Bank, and
based on such documents and information as it has deemed appropriate, made its
own credit analysis of the Obligated Parties and decision to enter into this
Agreement and that it will, independently and without reliance upon the Agent
or any other Bank, and based upon such documents and information as it shall
deem appropriate at the time, continue to make its own analysis and decisions
in taking or not taking action under this Agreement or any of the other
Documents. The Agent shall not be required to keep itself informed as to the
performance or observance by any Obligated Party of this Agreement or any other
Loan Document or to inspect the properties or books of any Obligated Party.
Except for notices, reports and other documents and information expressly
required to be furnished to the Banks by the Agent hereunder or under the other
Loan Documents, the Agent shall not have any duty or responsibility to provide
any Bank with any credit or other financial information concerning the affairs,
financial condition or business of any Obligated Party (or any of their
Affiliates) which may come into the possession of the Agent or any of its
Affiliates.
Section 11.6 Several Commitments. The Commitments and other
obligations of the Banks under this Agreement are several. The default by any
Bank in making an Advance in accordance with its Commitment shall not relieve
the other Banks of their obligations under this Agreement. In the event of any
default by any Bank in making any Advance, each nondefaulting Bank shall be
obligated to make its Advance but shall not be obligated to advance the amount
which the defaulting Bank was required to advance hereunder. In no event shall
any Bank be required to advance an amount or amounts which shall in the
aggregate exceed such Bank's Commitment. No Bank shall be responsible for any
act or omission of any other Bank.
Section 11.7 Successor Agent. Subject to the appointment and
acceptance of a successor Agent as provided below, the Agent may resign at any
time by giving notice thereof to the Banks and Parent and the Agent may be
removed by the Required Banks, at any time if it has materially failed to
fulfill any obligation as Agent hereunder. Upon any such resignation or
removal, Required Banks, subject to Parent's approval, will have the right to
appoint a successor Agent. If no successor Agent shall have been so appointed
by Required Banks and shall have accepted such appointment within thirty (30)
days after the Agent's giving of notice of resignation or the Required Banks'
removal of the retiring Agent, then the Agent may, on behalf of the Banks,
appoint a successor Agent, which shall be a commercial bank organized under the
laws of the United States of America or any State thereof and having combined
capital and surplus of at least One Hundred Million Dollars ($100,000,000.00).
Upon the acceptance of its appointment as successor Agent, such successor Agent
shall thereupon succeed to and become vested with all rights, powers,
privileges, immunities, and duties of the resigning or removed
THIRD AMENDED AND RESTATED LOAN AGREEMENT, Page 57
57
Agent, and the resigning or removed Agent shall be discharged from its duties
and obligations under this Agreement and the other Loan Documents. After any
Agent's resignation or removal as Agent, the provisions of this Article 11
shall continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was the Agent.
Section 11.8 Administration Fee. On each anniversary of the
Closing Date, Parent agrees to pay to Agent the annual administration fee
described in that certain fee letter from Chase Securities, Inc. and Texas
Commerce to Parent dated January 23, 1997.
ARTICLE 12
Miscellaneous
Section 12.1 Expenses. Parent hereby agrees to pay on demand:
(i) all reasonable out- of-pocket costs and expenses incurred by the Agent in
connection with the preparation, negotiation, and execution of this Agreement
and the other Loan Documents and any and all amendments, modifications,
renewals, extensions, and supplements thereof and thereto, including, without
limitation, the reasonable out-of-pocket fees and expenses of Agent's legal
counsel, (ii) all reasonable out-of-pocket costs and expenses incurred by the
Agent and the Banks in connection with the enforcement of this Agreement or any
other Loan Document, including, without limitation, the reasonable
out-of-pocket fees and expenses of legal counsel for the Agent and the Banks,
and (iii) all other reasonable out-of-pocket costs and expenses incurred by the
Agent in connection with this Agreement or any other Loan Document, including,
without limitation, all out-of-pocket costs and expenses and all taxes (other
than income taxes), assessments, filing fees, and other charges levied by a
governmental authority or otherwise payable in respect of this Agreement
(whether or not reasonable) or any other Loan Document or in obtaining any
appraisal in respect of the collateral securing the obligations of any
Obligated Party under the Loan Documents.
SECTION 12.2 INDEMNIFICATION. PARENT HEREBY INDEMNIFIES THE AGENT
AND EACH BANK AND EACH AFFILIATE THEREOF (INCLUDING WITHOUT LIMITATION, CHASE
SECURITIES, INC.) AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES,
ATTORNEYS, AND AGENTS FROM, AND HOLDS EACH OF THEM HARMLESS AGAINST, ANY AND
ALL LOSSES, LIABILITIES, CLAIMS, DAMAGES, PENALTIES, JUDGMENTS, COSTS, AND
EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES) TO WHICH ANY OF THEM MAY BECOME
SUBJECT WHICH DIRECTLY OR INDIRECTLY ARISE FROM OR RELATE TO (I) THE
NEGOTIATION, EXECUTION, DELIVERY, PERFORMANCE, ADMINISTRATION, OR ENFORCEMENT
OF ANY OF THE LOAN DOCUMENTS OR THE ORIGINAL LOAN AGREEMENT, (II) ANY BREACH BY
ANY OBLIGATED PARTY OF ANY REPRESENTATION, WARRANTY, COVENANT, OR OTHER
AGREEMENT CONTAINED IN ANY OF THE LOAN DOCUMENTS, OR (III) ANY INVESTIGATION,
LITIGATION, OR OTHER PROCEEDING ARISING OUT OF THE LOAN DOCUMENTS, INCLUDING,
WITHOUT LIMITATION, ANY THREATENED INVESTIGATION, LITIGATION, OR OTHER
PROCEEDING RELATING TO ANY OF THE FOREGOING EXCEPT TO THE EXTENT ANY LOSS,
LIABILITY, CLAIM, DAMAGE, PENALTY, JUDGMENT, COST OR
THIRD AMENDED AND RESTATED LOAN AGREEMENT, Page 58
58
EXPENSE IS FOUND TO HAVE RESULTED FROM SUCH INDEMNIFIED PERSON'S GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT. WITHOUT LIMITING ANY PROVISION OF THIS
AGREEMENT OR OF ANY OTHER LOAN DOCUMENT, IT IS THE EXPRESS INTENTION OF THE
PARTIES HERETO THAT EACH PERSON TO BE INDEMNIFIED UNDER THIS SECTION SHALL BE
INDEMNIFIED FROM AND HELD HARMLESS AGAINST ANY AND ALL LOSSES, LIABILITIES,
CLAIMS, DAMAGES, PENALTIES, JUDGMENTS, COSTS, AND EXPENSES (INCLUDING
REASONABLE ATTORNEYS' FEES) ARISING OUT OF OR RESULTING FROM THE SOLE OR
CONTRIBUTORY NEGLIGENCE OF THE PERSON TO BE INDEMNIFIED.
Section 12.3 Limitation of Liability. Neither Agent, any Bank nor
any Affiliate, officer, director, employee, attorney, or agent of Agent or any
Bank shall have any liability with respect to, and Parent and EmCare (and, by
its execution of the Loan Documents to which it is a Party, each other
Obligated Party) hereby waives, releases, and agrees not to xxx any of them
upon, any claim for any special, indirect, incidental, or consequential damages
suffered or incurred by any Obligated Party in connection with, arising out of,
or in any way related to, the Original Loan Agreement, the Second Loan
Agreement or any of the Loan Documents, or any of the transactions contemplated
by the Original Loan Agreement, the Second Loan Agreement or any of the Loan
Documents, unless such special, indirect, incidental or consequential damages
arose as a result of acts or omissions on the part of the applicable party
which constitute gross negligence or willful misconduct. Parent and EmCare
(and by its execution of the Loan Documents to which it is a party, each other
Obligated Party) hereby waives, releases, and agrees not to xxx Agent, any Bank
or any Affiliate, officer, director, employee, attorney, or agent for punitive
damages in respect of any claim in connection with, arising out of, or in any
way related to, the Original Loan Agreement, the Second Loan Agreement or any
of the other Loan Documents, or any of the transactions contemplated by the
Original Loan Agreement, the Second Loan Agreement or any of the other Loan
Documents, unless such claim arose as a result of acts or omissions on the part
of the applicable party which constitute gross negligence or willful
misconduct.
Section 12.4 No Duty. All attorneys, accountants, appraisers, and
other professional Persons and consultants retained by Agent or any Bank shall
have the right to act exclusively in the interest of the Agent or the
applicable Bank and shall have no duty of disclosure, duty of loyalty, duty of
care, or other duty or obligation of any type or nature whatsoever to any
Obligated Party or any other Person.
Section 12.5 Agent and Banks Not Fiduciary. The relationship
between the Obligated Parties, on the one hand and the Agent and the Banks, on
the other hand, is solely that of debtor and creditor, and neither Agent nor
any Bank has any fiduciary or other special relationship with any Obligated
Party, and no term or condition of any of the Loan Documents shall be construed
so as to deem the relationship between the Obligated Parties, on the one hand
and the Agent and the Banks, on the other hand, to be other than that of debtor
and creditor.
Section 12.6 Equitable Relief. Parent and EmCare recognize that
in the event any Obligated Party fails to pay, perform, observe, or discharge
any or all of the obligations, any remedy at law may prove to be inadequate
relief to the Agent and the Banks. Parent and EmCare
THIRD AMENDED AND RESTATED LOAN AGREEMENT, Page 59
59
(and by its execution of the Loan Documents to which it is a party, each other
Obligated Party) therefore agree that Agent or any Bank, if they so request,
shall be entitled to temporary and permanent injunctive relief in any such case
without the necessity of proving actual damages.
Section 12.7 No Waiver; Cumulative Remedies. No failure on the
part of Agent or any Bank to exercise and no delay in exercising, and no course
of dealing with respect to, any right, power, or privilege under any Loan
Document shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, power, or privilege under any Loan Document preclude any
other or further exercise thereof or the exercise of any other right, power, or
privilege. The rights and remedies provided for in the Loan Documents are
cumulative and not exclusive of any rights and remedies provided by law.
Section 12.8 Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns. Neither Parent nor EmCare may assign or
transfer any of its rights or obligations hereunder without the prior written
consent of the Agent and all of the Banks.
(a) Participations. Any Bank may sell participations to
one or more banks or other institutions in or to all or a portion of its rights
and obligations under this Agreement and the other Loan Documents (including,
without limitation, all or a portion of its Commitments and the Advances owing
to it); provided, however, that (i) such Bank's obligations under this
Agreement and the other Loan Documents (including, without limitation, its
Commitment) shall remain unchanged, (ii) such Bank shall remain solely
responsible to Parent for the performance of such obligations, (iii) such Bank
shall remain the holder of its Note for all purposes of this Agreement, (iv)
Parent shall continue to deal solely and directly with such Bank in connection
with such Bank's rights and obligations under this Agreement and the other Loan
Documents, and (v) such Bank shall not sell a participation that conveys to the
participant the right to vote or give or withhold consents under this Agreement
or any other Loan Document, other than the right to vote upon or consent to (1)
any increase of such Bank's Commitment, (2) any reduction of the principal
amount of, or interest to be paid on, the Advances or the Note of such Bank,
(3) any reduction of any commitment fee or other amount payable to such Bank
under any Loan Document, or (4) any postponement of any date for the payment of
any amount payable in respect of the Advances or Note of such Bank.
(b) Assignments. Parent, EmCare and each of the Banks
agree that any Bank (the "Assigning Bank") may at any time assign to one or
more banks or other institutions all, or a proportionate part of all, of its
rights and obligations under this Agreement and the other Loan Documents
(including, without limitation, its Commitment and Advances) (each an
"Assignee"); provided that the Assigning Bank obtains the prior written consent
of Agent and if the assignment is made prior to the occurrence of an Event of
Default or to a Person who is not an Affiliate of the Assigning Bank, the prior
written consent of Parent which shall not be unreasonably withheld. In
connection with any such assignment, the Assignor and Assignee shall execute
and deliver to the Parent and Agent, for their acceptance (when required) and
the Agent's recording, an Assignment and Acceptance, together with the Note
subject to such assignment. Upon such execution, delivery, acceptance, and
recording, from and after the effective date specified in the Assignment and
Acceptance, the Assignee's rights and obligations
THIRD AMENDED AND RESTATED LOAN AGREEMENT, Page 60
60
under this Agreement and the other Loan Documents shall be established or
increased, as the case may be, to the extent set forth in the Assignment and
Acceptance and the Assigning Bank's rights and obligations under this Agreement
and the other Loan Documents shall be released and reduced by a corresponding
amount. Upon its receipt of an Assignment and Acceptance executed by an
Assigning Bank and Assignee, together with the Note subject to such assignment,
the Agent shall (i) accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register (hereafter defined), and (iii)
give prompt written notice thereof to Parent. Within five (5) Business Days
after its receipt of such notice, Parent shall at its own expense (i) execute
and deliver to the Agent a Note payable to the order of the Assignee in an
amount equal to such Assignee's new or increased Commitment and (ii) execute
and deliver to the Agent a new Note payable to the order of the Assigning Bank
in an amount equal to the Commitment retained by the Assigning Bank hereunder.
After its receipt of such new Notes and the effective date of the Assignment
and Acceptance, the Assigning Bank shall cancel and return the old Note to
Parent. In connection with any such Assignment and Acceptance, the Assigning
Bank shall pay to the Agent an administration fee for processing such
assignment in the amount of Three Thousand Dollars ($3,000.00); provided that
such administration fee shall not be payable to Agent if the Assigning Bank is
making an assignment to one of its Affiliates. Upon compliance with the
procedures and limitations set forth in this Section 12.8, each Assignee shall
become a "Bank" for purposes of this Agreement from and after the effective
date of the Assignment and Acceptance. Each Assigning Bank shall give the
Agent and Parent at least ten (10) Business Days prior written notice of each
proposed assignment. Each assignment shall be in the minimum principal amount
of Five Million Dollars ($5,000,000). The Agent shall maintain at its address
referred to on the signature pages hereto a copy of each Assignment and
Acceptance delivered to and accepted by it in a register for the recordation of
the names and addresses of the Assignees under this Section 12.8 and the
Commitments of, and the principal amount of the Advances owing to, each such
Assignee from time to time (the "Register"). The entries in the Register shall
be conclusive and binding for all purposes, absent manifest error, and Parent,
the Banks, and the Assignees may treat each Person whose name is recorded in
the Register as a Bank hereunder for all purposes of this Agreement. The
Register shall be available for inspection by Parent, any Assigning Bank, or
any Assignee at any reasonable time and from time to time upon reasonable prior
notice.
(c) Information. Any Bank may furnish any information
concerning Parent or any other Obligated Party in the possession of such Bank
from time to time to assignees and participants (including prospective
assignees and participants).
Section 12.9 Survival. All representations and warranties made in
any Loan Document shall survive the execution and delivery of the Loan
Documents, and no investigation by Agent or any Bank or any closing shall
affect the representations and warranties or the right of Agent or any Bank to
rely upon them. Without prejudice to the survival of any other obligation
hereunder, the obligations under Article 4 and Sections 11.4, 12.1 and 12.2
shall survive repayment of the Notes and terminations of the Commitment.
Section 12.10 ENTIRE AGREEMENT; AMENDMENT AND RESTATEMENT
MODIFICATION OF LOAN DOCUMENTS. EFFECTIVE AS OF THE CLOSING DATE, THIS
AGREEMENT AMENDS AND RESTATES IN IT ENTIRETY THE SECOND LOAN
THIRD AMENDED AND RESTATED LOAN AGREEMENT, Page 61
61
AGREEMENT EXCEPT TO THE EXTENT THE SECOND LOAN AGREEMENT MODIFIED LOAN
DOCUMENTS OTHER THAN THE ORIGINAL LOAN AGREEMENT. THE LOAN DOCUMENTS (OTHER
THAN THE SECOND LOAN AGREEMENT) EMBODY THE FINAL, ENTIRE AGREEMENT AMONG THE
PARTIES HERETO AND SUPERSEDE ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS,
REPRESENTATIONS, AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THE
SUBJECT MATTER HEREOF (INCLUDING THE SECOND LOAN AGREEMENT) AND MAY NOT BE
CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT
ORAL AGREEMENTS OR DISCUSSIONS OF THE PARTIES HERETO. THERE ARE NO ORAL
AGREEMENTS AMONG THE PARTIES HERETO. EmCare, Parent, Agent and each Bank
ratify and confirm each of the Loan Documents entered into prior to the Closing
Date (other than the Original Loan Agreement, the Second Loan Agreement and the
Parent Guaranty, as defined in the Original Loan Agreement, but including the
Existing Collateral Documents and the Existing Guaranties) and agree that such
Loan Documents shall continue to be legal, valid, binding and enforceable in
accordance with their respective terms except as limited by bankruptcy,
insolvency or other laws of general application relating to the enforcement of
creditor's rights. Without limiting the generality of the foregoing and
notwithstanding any Loan Document to the contrary, EmCare, Parent, Agent and
each Bank agree and acknowledge that as of the Closing Date:
(a) the term "Loan Agreement" as used in each Loan
Document means this Agreement;
(b) the term "Guarantied Indebtedness" as used in the
Existing Guaranties means the Obligations as defined herein;
(c) the term "Obligations" or "Secured Obligations" as
used in the Existing Collateral Documents means the Obligations as
defined herein;
(d) the term "Secured Party" as used in any Existing
Collateral Documents means Texas Commerce in its capacity as Agent
hereunder for the benefit of itself and the other Banks; and
(e) the term "Lender" as used in any Existing Guaranty
means Texas Commerce in its capacity as Agent hereunder for the
benefit of itself and the other Banks and the Banks.
To facilitate the foregoing, Texas Commerce confirms its assignment to
the Agent for the benefit of itself and the other Banks of all of its right,
title and interest in and to the Existing Collateral Documents and Existing
Guaranties.
Section 12.11 Maximum Interest Rate. No provision of any Loan
Document shall require the payment or the collection of interest in excess of
the maximum permitted by applicable law. If any excess of interest in such
respect is hereby provided for, or shall be adjudicated to be so provided, in
any Loan Document or otherwise in connection with this loan transaction, the
provisions of this Section shall govern and prevail and neither Parent nor the
THIRD AMENDED AND RESTATED LOAN AGREEMENT, Page 62
62
sureties, guarantors, successors, or assigns of Parent shall be obligated to
pay the excess amount of such interest or any other excess sum paid for the
use, forbearance, or detention of sums loaned pursuant hereto. In the event
any Bank ever receives, collects, or applies as interest any such sum, such
amount which would be in excess of the maximum amount permitted by applicable
law shall be applied as a payment and reduction of the principal of the
indebtedness evidenced by its Note and, if the principal of its Note has been
paid in full, any remaining excess shall forthwith be paid to Parent. In
determining whether or not the interest paid or payable exceeds the Maximum
Rate, Parent and each Bank shall, to the extent permitted by applicable law,
(i) characterize any nonprincipal payment as an expense, fee, or premium rather
than as interest, (ii) exclude voluntary prepayments and the effects thereof,
and (iii) amortize, prorate, allocate, and spread in equal or unequal parts the
total amounts of interest throughout the entire contemplated term of the
indebtedness evidenced by its Note so that interest for the entire term does
not exceed the Maximum Rate.
Section 12.12 Notices. All notices and other communications
provided for in any Loan Documents to which any Obligated Party is a party
shall be given or made in writing and telecopied, mailed by certified mail
return receipt requested, or delivered to the intended recipient at the
"Address for Notices" specified below its name on the signature pages hereof
and with respect to each Obligated Party, at the Parent's "Address for Notices"
or, as to any party at such other address as shall be designated by such party
in a notice to each other party given in accordance with this Section. Except
as otherwise provided in this Agreement, all such communications shall be
deemed to have been duly given when transmitted by telecopy, subject to
telephone confirmation of receipt, or when personally delivered or, in the case
of a mailed notice, when duly deposited in the mails, in each case given or
addressed as aforesaid; provided, however, notices to Agent pursuant to Article
2 shall not be effective until received by Agent.
Section 12.13 Applicable Law; Venue; Service of Process. This
Agreement shall be governed by and construed in accordance with the laws of the
State of Texas and the applicable laws of the United States of America. This
Agreement shall be performable for all purposes in Xxxxxx County, Texas. Any
action or proceeding against any Obligated Party under or in connection with
any of the Loan Documents may be brought in any state or federal court in
Xxxxxx County, Texas. EmCare and Parent (and by execution of the Loan
Documents to which it is a party, each other Obligated Party) each hereby
irrevocably (i) submits to the nonexclusive jurisdiction of such courts, and
(ii) waives any objections it may now or hereafter have as to the venue of any
such action or proceeding brought in any such court or that any such court is
an inconvenient forum. EmCare and Parent (and by execution of the Loan
Documents to which it is a party, each other Obligated Party) each agree that
service of process upon it may be made by certified or registered mail, return
receipt requested, at its address specified or determined in accordance with
the provisions of Section 12.12. Nothing herein or in any of the other Loan
Documents shall affect the right of Agent or any Bank to serve process in any
other manner permitted by law or shall limit the right of Agent or any Bank to
bring any action or proceeding against any Obligated Party or with respect to
any of its property in courts in other jurisdictions. Any action or proceeding
by any Obligated Party against Agent or any Bank shall be brought only in a
court located in Xxxxxx County, Texas.
THIRD AMENDED AND RESTATED LOAN AGREEMENT, Page 63
63
Section 12.14 Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same agreement.
Section 12.15 Severability. Any provision of this Agreement held
by a court of competent jurisdiction to be invalid or unenforceable shall not
impair or invalidate the remainder of this Agreement and the effect thereof
shall be confined to the provision held to be invalid or illegal.
Section 12.16 Headings. The headings, captions, and arrangements
used in this Agreement are for convenience only and shall not affect the
interpretation of this Agreement.
Section 12.17 Non-Application of Chapter 15 of Texas Credit Code.
The provisions of Chapter 15 of the Texas Credit Code (Vernon's Texas Civil
Statutes, Article 5069-15) are specifically declared by the parties hereto not
to be applicable to this Agreement or any of the other Loan Documents or to the
transaction contemplated hereby.
Section 12.18 Amendments, Etc. No amendment or waiver of any
provision of this Agreement, the Notes, or any other Loan Document to which any
Obligated Party is a party, nor any consent to any departure by Obligated Party
therefrom, shall in any event be effective unless the same shall be agreed or
consented to by Required Banks and the applicable Obligated Party, and each
such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given; provided, that no amendment, waiver, or
consent shall, unless in writing and signed by all of the Banks and Parent, do
any of the following: (a) increase the Commitments of the Banks; (b) reduce the
principal of, or interest on, the Notes or any fees or other amounts payable
hereunder; (c) postpone any date fixed for any payment of principal of, or
interest on, the Notes or any fees or other amounts payable hereunder; (d)
waive any of the conditions specified in Article 5; (e) change the percentage
of the Commitments or of the aggregate unpaid principal amount of the Notes or
the number of Banks which shall be required for the Banks or any of them to
take any action under this Agreement; (f) change any provision contained in
this Section 12.18; or (g) release any collateral or any Guarantor; except that
Agent may release, without the consent or agreement of any Bank, (i) any Lien
in collateral which secures the Obligations if such collateral is permitted to
be disposed of under this Agreement and (ii) any Obligated Party from their
obligations under the Loan Documents if such Obligated Party is no longer a PA
or is no longer owned by Parent or a Subsidiary as a result of a transaction
permitted by this Agreement. Notwithstanding anything to the contrary
contained in this Section, no amendment, waiver, or consent shall be made with
respect to Article 11 hereof without the prior written consent of the Agent.
Section 12.19 Construction. The Obligated Parties (by execution of
the Loan Documents to which they are a party), Agent and each Bank acknowledge
that each of them has had the benefit of legal counsel of its own choice and
has been afforded an opportunity to review this Agreement and the other Loan
Documents with its legal counsel and that this Agreement and the other Loan
Documents shall be construed as if jointly drafted by the Obligated Parties,
Agent and the Banks.
THIRD AMENDED AND RESTATED LOAN AGREEMENT, Page 64
64
Section 12.20 WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, PARENT, AGENT AND EACH BANK (AND BY EXECUTION OF
THE LOAN DOCUMENTS TO WHICH IT IS A PARTY, EACH OTHER OBLIGATED PARTY), HEREBY
IRREVOCABLY AND EXPRESSLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION,
PROCEEDING, OR COUNTERCLAIM (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE)
ARISING OUT OF OR RELATING TO ANY OF THE LOAN DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED THEREBY.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
PARENT:
EMCARE HOLDINGS INC.
EMCARE, INC.
By: /s/ XXXXXX X. XXXXXXXX
----------------------------------------------
Xxxxxx X. Xxxxxxxx
Senior Vice President of each company
Address for Notices:
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Fax No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Chief Financial Officer
THIRD AMENDED AND RESTATED LOAN AGREEMENT, Page 65
65
AGENT:
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, as Agent and individually as a Bank
By: /s/ XXXX XXXXXX
-----------------------------------------------
Xxxx Xxxxxx
Senior Vice President
Address for Notices:
Loan Syndication Services
1111 Xxxxxx, 9th Floor, MS46
Xxxxxxx, Xxxxx 00000
Attention: Xxxx Xxxxxxx
Telephone No.: (000) 000-0000
Fax No.: (000) 000-0000
With a copy to:
0000 Xxxx Xxxxxx
Xxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Fax No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Dallas Corporate Banking Group
Lending Office for Base Rate Advances:
0000 Xxxxxx
Xxxxxxx, Xxxxx 00000
Lending Office for Eurodollar Advances:
0000 Xxxxxx
Xxxxxxx, Xxxxx 00000
THIRD AMENDED AND RESTATED LOAN AGREEMENT, Page 66
66
OTHER BANKS:
CORESTATES BANK, N.A.
By: /s/ XXXXXXXX X. XXXXX
------------------------------------------------
Name: Xxxxxxxx X. Xxxxx
----------------------------------------------
Title: Commercial Officer
---------------------------------------------
Address for Notices:
F.C. 1-8-3-22
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Telephone No.: 000-000-0000
Fax No.: 000-000-0000
Attention: Xxxxxxxx X. Xxxxx
Lending Office for Base Rate Advances:
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Lending Office for Eurodollar Advances:
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
THIRD AMENDED AND RESTATED LOAN AGREEMENT, Page 67
67
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ XXXX X. BACK
------------------------------------------------
Xxxx X. Back
Corporate Banking Officer
Address for Notices:
Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Telephone No.: 000-000-0000
Fax No.: 000-000-0000
Attention: Xxxx X. Back
Lending Office for Base Rate Advances:
Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Lending Office for Eurodollar Advances:
Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
THIRD AMENDED AND RESTATED LOAN AGREEMENT, Page 68
68
XXXXX FARGO BANK (TEXAS), NATIONAL ASSOCIATION
By: /s/ XXXX XX XXXX
-------------------------------------------------
Name: Xxxx Xx Xxxx
----------------------------------------------
Title: Vice President
---------------------------------------------
Address for Notices:
0000 Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, Xxxxx 00000
Telephone No.: 000-000-0000
Fax No.: 000-000-0000
Attention: Xxxx Xx Xxxx
Lending Office for Base Rate Advances:
0000 Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, Xxxxx 00000
Lending Office for Eurodollar Advances:
0000 Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, Xxxxx 00000
THIRD AMENDED AND RESTATED LOAN AGREEMENT, Page 69
69
COMERICA BANK - TEXAS
By: /s/ XXXXXXX X. XXXXXX
------------------------------------------------
Name: Xxxxxxx X. Xxxxxx
-------------------------------------
Title: Vice President
------------------------------------
Address for Notices:
0000 Xxx Xxxxxx, 0xx Xxxxx
Xxxxxx, Xxxxx 00000
Telephone No.: 000-000-0000
Fax No.: 000-000-0000
Attention: Xxxxxxx X. Xxxxxx
Vice President
Lending Office for Base Rate Advances:
0000 Xxx Xxxxxx, 0xx Xxxxx
Xxxxxx, Xxxxx 00000
Lending Office for Eurodollar Advances:
0000 Xxx Xxxxxx, 0xx Xxxxx
Xxxxxx, Xxxxx 00000
THIRD AMENDED AND RESTATED LOAN AGREEMENT, Page 70
70
HIBERNIA NATIONAL BANK
By: /s/ XXXXXXXXXXX X. XXXXX
------------------------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
-------------------------------------
Title: Assistant Vice President
------------------------------------
Address for Notices:
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Telephone No.: 000-000-0000
Fax No.: 000-000-0000
Attention: Xxxxx Xxxxx
Assistant Vice President
Lending Office for Base Rate Advances:
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Lending Office for Eurodollar Advances:
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
THIRD AMENDED AND RESTATED LOAN AGREEMENT, Page 71
71
SUNTRUST BANK, CENTRAL FLORIDA,
NATIONAL ASSOCIATION
By: /s/ XXXXX X. XXXXXXX
------------------------------------------------
Name: Xxxxx X. Xxxxxxx
-------------------------------------
Title: Vice President
------------------------------------
Address for Notices:
000 X. Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Telephone No.: 000-000-0000
Fax No.: 000-000-0000
Attention: Xxxxxxx X. Xxxxxxx
First Vice President
Lending Office for Base Rate Advances:
000 X. Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Lending Office for Eurodollar Advances:
000 X. Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
STATE OF GEORGIA Section
Section
COUNTY OF XXXXXX Section
On the 6th day of March 1997 personally appeared Xxxxx X. Xxxxxxx, as
the Vice President of SunTrust Bank, Central Florida, National Association, and
before me executed the attached THIRD AMENDED AND RESTATED LOAN AGREEMENT dated
as of March ___, 1997 between EmCare, Inc., EmCare Holdings Inc., Texas Commerce
Bank National Association as Agent and the other banks names herein (including
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.
/s/ XXXXXX X. XXXXXXXXX
--------------------------------------------
Signature of Notary Public, State of Georgia
THIRD AMENDED AND RESTATED LOAN AGREEMENT, Page 72
72
(Print, Type or Stamp Commissioned Name of Notary Public)
Personally known X ; OR Produced identification
---
________
Type of identification
produced:_________________________________________
(Notary Seal)
THIRD AMENDED AND RESTATED LOAN AGREEMENT, Page 73
73
BANQUE PARIBAS HOUSTON AGENCY
By: /s/ [ILLEGIBLE]
------------------------------------------------
Name: [ILLEGIBLE]
-------------------------------------
Title: Vice President
------------------------------------
By: /s/ XXXXX XXXXXX
------------------------------------------------
Xxxxx Xxxxxx
Vice President
Address for Notices:
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Telephone No.: 000-000-0000
Fax No.: 000-000-0000
Attention: Xxxxx Xxxxxx
Vice President
Lending Office for Base Rate Advances:
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Lending Office for Eurodollar Advances:
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
THIRD AMENDED AND RESTATED LOAN AGREEMENT, Page 74
74
Obligated Party Consent and Contribution
Each undersigned Obligated Party hereby consents and agrees to this
Agreement (including, without limitation, Section 12.10 hereof) and the Loan
Documents executed pursuant hereto and the transactions contemplated hereby and
agrees that the Loan Documents to which it is a party (including, without
limitation, the Existing Guaranties and the Existing Collateral Documents)
shall remain in full force and effect and shall continue to be legal, valid and
binding obligations, enforceable against it in accordance with their respective
terms except as limited by bankruptcy, insolvency or other laws of general
application relating to the enforcement of creditor's rights. Without limiting
the generality of the foregoing and notwithstanding any Loan Document to the
contrary, each undersigned Obligated Party, Agent and each Bank agree and
acknowledge that as of the Closing Date:
(a) the term "Loan Agreement" as used in each Loan
Document means this Agreement;
(b) the term "Guarantied Indebtedness" as used in the
Existing Guaranties means the Obligations as defined herein;
(c) the term "Obligations" or "Secured Obligations" as
used in the Existing Collateral Documents means the Obligations as
defined herein;
(d) the term "Secured Party" as used in any Existing
Collateral Documents means Texas Commerce in its capacity as Agent
hereunder for the benefit of itself and the other Banks; and
(e) the term "Lender" as used in any Existing Guaranty
means Texas Commerce in its capacity as Agent hereunder for the
benefit of itself and the other Banks and the Banks.
In order to effect an equitable sharing of the risks in borrowing the
Advances as contemplated hereunder but without impairing any right or remedy of
the Agent or the Banks under the Loan Documents, each of the undersigned
Obligated Parties (and by execution of the Loan Documents to which it is or may
be a party, each other Obligated Party) hereby agrees that if an Obligated
Party makes a payment under the Loan Documents to which it is a party in excess
of the reasonable equivalent value actually received by it under the terms or
as a result of the other Loan Documents (the "Value Received"), it shall be
subrogated to the rights of the Agent and the Banks against the other Obligated
Parties with respect to such payment and shall have the right of contribution
set forth below against the other Obligated Parties; provided that such
Obligated Party shall not enforce its rights to any payment by way of
subrogation or by exercising its rights of contribution until all the
Obligations shall have been paid in full.
If any Obligated Party makes a payment under the Loan Documents that
is more than an amount equal to the Value Received by such Obligated Party,
each other Obligated Party that
THIRD AMENDED AND RESTATED LOAN AGREEMENT, Page 75
75
has not made payments equal to its Value Received shall, when permitted by the
foregoing sentence, pay to each Obligated Party that paid more than its Value
Received an amount such that the net payments made by the Obligated Parties
under the Loan Documents shall be shared among the Obligated Parties pro rata
in proportion to their Value Received. If any Obligated Party receives any
payment by way of subrogation that is in excess of the amount of its Value
Received, the Obligated Party receiving such excess payments shall, when
permitted by this consent and contribution provision, pay to the other
Obligated Parties an amount such that the subrogation payments received by the
Obligated Parties shall be shared among the Obligated Parties in proportion to
their respective amounts of the Value Received.
EMTAC, INC.
EMTAC BUSINESS TRUST
MEDICAL EMERGENCY SERVICES
ASSOCIATES (MESA), INC.
AEP-EMCARE MEDICAL GROUP, INC.
By: /s/ XXXXXXX X. XXXXXX, III
--------------------------------------------
Xxxxxxx X. Xxxxxx, III
Authorized officer of all the foregoing
companies
EMCARE OP, L.P.
By: EmCare, Inc., its general partner
By: /s/ XXXXXX X. XXXXXXXX
----------------------------------------
Xxxxxx X. Xxxxxxxx
Senior Vice President
EMERGENCY HEALTH SERVICES ASSOCIATES
EMCARE MEDICAL SERVICES OF NEW YORK, P.C.
NATIONAL PRIMARY CARE NETWORK, P.A.
EMERGENCY HEALTH SERVICES ASSOCIATES
OF NEW MEXICO, P.C.
EMCARE MEDICAL SERVICES OF
PENNSYLVANIA, P.C.
CAPITAL EMCARE, P.A.
NETWORK FAMILY PHYSICIANS, P.A.
THIRD AMENDED AND RESTATED LOAN AGREEMENT, Page 76
76
CAPITAL BILLING SERVICES, INC.
EMCARE RECEIVABLES CORPORATION
REIMBURSEMENT TECHNOLOGIES, INC.
EMCARE PHYSICIANS NETWORK, INC.
CAPITAL EMERGENCY ASSOCIATES, L.L.C.
SEMS, INC.
AEP MANAGEMENT SERVICES, INC.
DOCTORS BILLING SERVICE, INC.
XXXXXXXXXX, XXXX & ASSOCIATES, M.D.'S, INC.
THE XXXXX GROUP, INC.
EMERGENCY SPECIALISTS OF ARKANSAS, INC. II
JASPER EMERGENCY PHYSICIANS, INC.
HOUSTON EMERGENCY PHYSICIANS, INC.
XXXXX PHYSICIANS, PA
XXXXX EMERGENCY PHYSICIANS, P.A.
XXXXX EMERGENCY PHYSICIANS, P.A.
By: /s/ XXXXXXX X. XXXXX, XX., M.D.
--------------------------------------------------
Xxxxxxx X. Xxxxx, Xx., M.D.
authorized officer for all companies
MESA EMCARE, S.C.
By: /s/ XXXXXX X. XXXXXX, M.D.
--------------------------------------------------
Xxxxxx X. Xxxxxx, M.D.
Vice President
THIRD AMENDED AND RESTATED LOAN AGREEMENT, Page 77
77
INDEX TO EXHIBITS
Exhibit Description of Exhibit
"A" Note
"B" Credit Request Form
"C" Compliance Certificate
"D" Assignment and Acceptance
"E" Subsidiary Pledge Agreement
"F" Affiliate Guaranty
INDEX TO SCHEDULES
Schedule Description of Schedule
1.1(A) Commitments
1.1(B) Existing Guaranties
6.1 Principal Place of Business;
Chief Executive Office
6.5 Existing Litigation
6.14 List of Subsidiaries and PAs
8.1 Existing Debt
8.2 Existing Liens
THIRD AMENDED AND RESTATED LOAN AGREEMENT, Page 78
78
EXHIBITS OMITTED
79
SCHEDULE 1.1(A)
TO
EMCARE
THIRD AMENDED AND RESTATED
LOAN AGREEMENT
COMMITMENTS
Bank Commitment
---- ----------
1. Texas Commerce Bank National Association $18,000,000
2. Corestates Bank, N.A. $14,000,000
3. The First National Bank of Chicago $14,000,000
4. Xxxxx Fargo Bank (Texas), National Association $14,000,000
5. Comerica Bank - Texas $10,000,000
6. Banque Paribas Houston Agency $10,000,000
7. Hibernia National Bank $10,000,000
8. SunTrust Bank, Central Florida, National Association $ 10,000,000
-----------
Total $100,000,000
============
80
SCHEDULE 1.1(B)
TO
EMCARE
THIRD AMENDED AND RESTATED
LOAN AGREEMENT
EXISTING GUARANTIES
Guaranty Agreements in favor of Texas Commerce or the Agent dated the date set
forth below and executed by the following Obligated Parties:
Obligated Party Date
--------------- ----
1. Emergency Health Services Associates October 27, 1993
2. Emergency Health Services of New Mexico, P.C. October 27, 1993
3. Emergency Medical Services of New York, P.C. October 27, 1993
4. National Primary Care Network, P.A. October 27, 1993
5. EMTAC, Inc. December 31, 1993
6. EmCare OP, L.P. December 31, 1993
7. EMTAC Business Trust December 31, 1993
8. EmCare Medical Services of Pennsylvania, P.C. December 31, 1993
9. EmCare Receivables Corporation February 3, 1995
10. EmCare Physicians Network, Inc. February 3, 1995
11. Capital Emergency Associates, L.L.C. March 15, 1995
12. Capital EmCare, P.A. March 15, 1995
13. Reimbursement Technologies, Inc. August 31, 1995
14. Medical Emergency Service Associates ("MESA"), Inc. May 15, 1996
15. MESA EmCare, S.C. May 15, 1996
16. Capital Billing Services, Inc. May 31, 1996
17. Emergency Specialist of Arkansas, Inc. II. February 16, 1996
18. Jasper Emergency Physicians, Inc. February 16, 1996
19. Houston Emergency Physicians, Inc. February 16, 1996
20. EmCare February 16, 1996
81
SCHEDULE 6.1
TO
EMCARE, INC.
THIRD AMENDED AND RESTATED
LOAN AGREEMENT
PRINCIPAL PLACE OF BUSINESS; CHIEF EXECUTIVE OFFICE
==============================================================================================
Place of Business;
Obligated Party Chief Executive Office
--------------- ----------------------
----------------------------------------------------------------------------------------------
1. EmCare 0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxx Xxxxxx, Xxxxx 00000
----------------------------------------------------------------------------------------------
2. Parent 0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxx Xxxxxx, Xxxxx 00000
----------------------------------------------------------------------------------------------
3. EMTAC, INC. 0000 Xxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxxxx 00000
----------------------------------------------------------------------------------------------
4. EmTac Business Trust 000 Xxxxx 0xx Xxxxxx, Xxxxx 0000
Xxx Xxxxx, Xxxxxx 00000
----------------------------------------------------------------------------------------------
5. EmCare Physicians Network, Inc. 0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxx Xxxxxx, Xxxxx 00000
----------------------------------------------------------------------------------------------
6. Capital Emergency Associates, LLC. 000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxx Xxxxxxx Xxxxxx, Xxxxxxxx 00000
==============================================================================================
82
SCHEDULE 6.5
TO
EMCARE, INC.
AMENDED AND RESTATED
LOAN AGREEMENT
EXISTING LITIGATION
1. United States v. EmCare and other contract management
companies - claims under the False Claims Act relating to reimbursement under
Medicare, Medicaid, and CHAMPUS programs. As of February 12, 1996, EmCare
Holding, Inc. announced an agreement in principle with the Civil Division of
the United States Department of Justice to settle civil claims alleged against
it in the civil lawsuit.
2. Medical malpractice litigation described on Annex 1 hereto.
83
SCHEDULE 6.14
TO
EMCARE, INC.
AMENDED AND RESTATED
LOAN AGREEMENT
A. LIST OF SUBSIDIARIES
84
===================================================================================================================================
Jurisdiction Authorized Stock Outstanding Stock
of or Approved or
Name and Type of Subsidiary Incorporation Percentage of Ownership Ownership Interest Ownership
or Interests
Organization
-----------------------------------------------------------------------------------------------------------------------------------
EMTAC, INC. Delaware 100% by EmCare 1,000 share of Common 1,000 Shares
(corporation) Stock Par Value $.01
-----------------------------------------------------------------------------------------------------------------------------------
EMTAC Business Trust Pennsylvania 100% by EMTAC, INC. 1,000 shares 1,000 Shares
(business trust) Par Value $.01
-----------------------------------------------------------------------------------------------------------------------------------
EmCare OP, L.P. Texas 100% of general general partnership All
(limited partnership) partner interest interests
owned by EmCare
100% of the limited partnership
limited partnership interest
interest owned by
EMTAC Business Trust
-----------------------------------------------------------------------------------------------------------------------------------
EmCare, Inc. Delaware 100% by Parent 1,000 shares of Common 1,000 Shares
(corporation) Stock Par Value $.01
-----------------------------------------------------------------------------------------------------------------------------------
EmCare Receivables Corporation Nevada 75% by EmCare 1,000 shares of Common 1,000 Shares
(corporation) 25% by Emergency Health Stock Par Value $.01
Services Associates
-----------------------------------------------------------------------------------------------------------------------------------
EmCare Physicians Network, Inc. Delaware 100% by Parent 1,000 shares of Common 1,000 Shares
(corporation) Stock Par Value $.01
-----------------------------------------------------------------------------------------------------------------------------------
Reimbursement Technologies, Inc. Pennsylvania 100% by EmCare 1,000 shares of Common 150 Shares
(corporation) Stock Par Value $1.00
-----------------------------------------------------------------------------------------------------------------------------------
Capital Billing Services, Inc. Maryland 100% by Capital Emergency 1,000 shares of Common 200 Shares
(corporation) Associates LLC Stock no Par Value
-----------------------------------------------------------------------------------------------------------------------------------
Emergency Specialists of Arkansas, Texas 100% by EmCare 1,000 shares of Common 1,000 Shares
Inc. II Stock Par Value $.01
(corporation)
-----------------------------------------------------------------------------------------------------------------------------------
Jasper Emergency Physicians, Inc. Missouri 100% by EmCare 1,000 shares of Common 1,000 Shares
(corporation) Stock Par Value $.01
-----------------------------------------------------------------------------------------------------------------------------------
Houston Emergency Physicians, Inc. Georgia 100% by EmCare 1,000 shares of Common 1,000 Shares
(corporation) Stock Par Value $.01
-----------------------------------------------------------------------------------------------------------------------------------
Capital Emergency Associates, LLC Maryland 99% by Parent N/A 1,000 Membership
(limited liability company) 1% by EmCare Interests
-----------------------------------------------------------------------------------------------------------------------------------
Medical Emergency Service Associates Illinois 100% by EmCare 100,000 shares of Common 3,000 Shares
(MESA), Inc. Stock
(corporation) $10. par value
5,000 shares of 1,650 Shares
Preferred A Shares
no par value
-----------------------------------------------------------------------------------------------------------------------------------
SEMS, Inc. Georgia 100% by EmCare 1,000 authorized shares 100 Shares
(corporation) of Common Stock no par
value
85
===================================================================================================================================
Jurisdiction Authorized Stock Outstanding Stock
of or Approved or
Name and Type of Subsidiary Incorporation Percentage of Ownership Ownership Interest Ownership
or Interests
Organization
-----------------------------------------------------------------------------------------------------------------------------------
AEP Management Services, Inc. California 100% by EmCare 75,000 shares of Common 1,000 Shares
(corporation) Stock $1.00 par value
-----------------------------------------------------------------------------------------------------------------------------------
Doctors Billing Service, Inc. California 100% by EmCare 50,000 shares of Common 1,000 Shares
(corporation) Stock no par value
-----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxxxxx, Xxxx & Associates, M.D.'s, Florida 100% by EmCare 5,000 shares of Common 1,000 Shares
Inc. Stock $1.00 par value
(corporation)
-----------------------------------------------------------------------------------------------------------------------------------
The Xxxxx Group, Inc. Texas 100% by EmCare 1,000,000 shares of 1,000 Shares
(corporation) Common Stock
$.10 par value
===================================================================================================================================
B. LIST OF PAS
=======================================================================================================
Name of PA Ownership Jurisdiction of
Association
-------------------------------------------------------------------------------------------------------
Emergency Health Services Associates Xx. Xxxxx 100% Texas
-------------------------------------------------------------------------------------------------------
Emergency Health Services Associates of New Mexico, Xx. Xxxxx 100% New Mexico
P.C.
-------------------------------------------------------------------------------------------------------
EmCare Medical Services of New York, P.C. Xx. Xxxxx 100% New York
-------------------------------------------------------------------------------------------------------
National Primary Care Network, P.A. Xx. Xxxxx 100% Texas
-------------------------------------------------------------------------------------------------------
EmCare Medical Services of Pennsylvania, P.C. Xx. Xxxxx 100% Pennsylvania
-------------------------------------------------------------------------------------------------------
Capital EmCare, P.A. Xx. Xxxxx 100% Texas
-------------------------------------------------------------------------------------------------------
MESA EmCare, S.C. 2/3 Xx. Xxxxxx; 1/3 Illinois
Xx. Xxxxx
-------------------------------------------------------------------------------------------------------
Network Family Physicians, P.A. 66 2/3 Xx. Xxxxx; 33 1/3 Texas
Xx. Xxxxxx
-------------------------------------------------------------------------------------------------------
Xxxxx Emergency Physicians, P.A. 100% Xx. Xxxxx Texas
-------------------------------------------------------------------------------------------------------
Xxxxx Emergency Physicians, P.A. 100% Xx. Xxxxx Texas
-------------------------------------------------------------------------------------------------------
AEP EmCare Medical Group, Inc. 100% Xx. Xxxxxx California
-------------------------------------------------------------------------------------------------------
Xxxxx Physicians, P.A. 100% Xx. Xxxxx Texas
=======================================================================================================
86
SCHEDULE 8.1
TO
EMCARE
AMENDED AND RESTATED
LOAN AGREEMENT
EXISTING DEBT
=========================================================================================================
Holder Principal Amount as of December 31, 1996
=========================================================================================================
EmCare OP, L.P.
---------------------------------------------------------------------------------------------------------
Capital Leases $ 9,346
---------------------------------------------------------------------------------------------------------
EmCare, Inc.
---------------------------------------------------------------------------------------------------------
Houston Emergicare, Inc. 882,231
---------------------------------------------------------------------------------------------------------
Houston Emergency Physicians, Inc. 306,104
---------------------------------------------------------------------------------------------------------
Suburban Houston Emergency Physicians Association 375,000
---------------------------------------------------------------------------------------------------------
Medical Emergency Service Associates, Inc. 1,935,085
---------------------------------------------------------------------------------------------------------
Southern Emergency Medical Specialists 308,934
---------------------------------------------------------------------------------------------------------
Associated Emergency Physicians Management Services, 1,129,340
Inc.
---------------------------------------------------------------------------------------------------------
Doctors Billing Service, Inc. 266,800
---------------------------------------------------------------------------------------------------------
Professional Emergency Services, Inc. 1,499,714
---------------------------------------------------------------------------------------------------------
The Xxxxx Group, Inc. 2,746,895
---------------------------------------------------------------------------------------------------------
Capital Emergency Associates, LLC
---------------------------------------------------------------------------------------------------------
Capital Leases 26,075
---------------------------------------------------------------------------------------------------------
Reimbursement Technologies
---------------------------------------------------------------------------------------------------------
Capital Leases 28,992
---------------------------------------------------------------------------------------------------------
The Xxxxx Group, Inc.
---------------------------------------------------------------------------------------------------------
TIFCO - Malpractice Insurance Note 258,066
---------------------------------------------------------------------------------------------------------
Line of Credit 200,000
---------------------------------------------------------------------------------------------------------
Emergency Specialists of Arkansas, Inc. II
---------------------------------------------------------------------------------------------------------
Emergency Specialists of Arkansas, Inc. 300,000
---------------------------------------------------------------------------------------------------------
EmCare Holdings Inc.
---------------------------------------------------------------------------------------------------------
Capital Emergency Associates, P.A. 1,280,923
---------------------------------------------------------------------------------------------------------
Doctors Billing Service, Inc.
---------------------------------------------------------------------------------------------------------
Notes Payable 60,000
---------------------------------------------------------------------------------------------------------
AEP Management Services, Inc.
---------------------------------------------------------------------------------------------------------
Notes Payable - Xx. Xxx 56,235
=========================================================================================================
87
SCHEDULE 8.2
TO
EMCARE, INC.
AMENDED AND RESTATED
LOAN AGREEMENT
EXISTING LIENS
==============================================================================================================
DEBTOR SECURED PARTY COLLATERAL
--------------------------------------------------------------------------------------------------------------
1. EmCare Lane, Enrlich & Accounts receivable from certain contracts
Chalpin, Ltd., as agent assigned to EmCare by Emergency Medicine
Consultants, Ltd., Emergency Medicine Consultants
Partnership and Lincoln Emergency Physicians Ltd.
--------------------------------------------------------------------------------------------------------------
2. EmCare Xxxxxx Leasing - Computer and other office equipment*
Capital Corp.*
--------------------------------------------------------------------------------------------------------------
3. EmCare Orlando Regional Accounts receivable from operations at Orlando
Medical Center, Inc. Regional Medical Center
--------------------------------------------------------------------------------------------------------------
4. EmCare Vanguard Financial Office equipment
Service Corp.
--------------------------------------------------------------------------------------------------------------
5. Emergency Health F. Xxxxx Xxxxxxxx, M.D. Accounts receivable from certain contract at
Services Memorial Hospital System
Associates, P.A.,
a dba for
Emergency Health
Services
Associates
==============================================================================================================
---------------------------------
* Multiple filings on record covering similar equipment
